SUSKAIN & MATERANZI - [2015] FamCAFC 153

FAMILY COURT OF AUSTRALIA

SUSKAIN & MATERANZI

[2015] FamCAFC 153

FAMILY LAW – APPEAL – Where the mother’s contact is restricted to cards and gifts – Where the father has sole parental responsibility – Where the primary judge gave sufficient weight to the benefit of the child having a meaningful relationship with the mother and the child’s need to spend time with siblings – Where the primary judge gave appropriate weight to the views of the child and gave adequate reasons – Where the primary judge considered all of the available options for the child to enjoy a meaningful relationship with the mother – Where appeal has no merit – Appeal dismissed.

FAMILY LAW – COSTS – Where appeal is wholly unsuccessful – Where the father seeks costs from the mother – Where the sum sought is modest and the father is entirely self-funded – The mother should pay the father’s costs at a fixed sum of $5,000.

Family Law Act 1975 (Cth) ss 60B(2)(b), 60CC(2)(a), 60CC(3)(a), (b) and (d), 65DAA, 117
Federal Proceedings (Costs) Act 1981 (Cth)

Goode and Goode (2006) FLC 93-286
H v W (1995) FLC 92-598
House v R (1936) 55 CLR 499
R v R (Children’s Wishes) (2002) FLC 93-108

APPELLANT:

Ms Suskain

RESPONDENT:

Mr Materanzi

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

776

2010

APPEAL NUMBER:

2014

DATE DELIVERED:

6 August 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

May, Ryan & Benjamin JJ

HEARING DATE:

27 November 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

27 June 2014

LOWER COURT MNC:

[2014] FamCA 454

REPRESENTATION

COUNSEL FOR THE APPELLANT:	Mr Blackah with Ms Murphy
SOLICITOR FOR THE RESPONDENT:	Ms Manfre

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Christie
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Aid NSW

Orders

The appeal is dismissed.
The appellant mother pay the respondent father’s costs fixed in the sum of $5,000.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Suskain & Materanzi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 95 of 2014
File Number: SYC 776 of 2010

Ms Suskain

Appellant

And

Mr Materanzi

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

By Notice of Appeal filed 24 July 2014, Ms Suskain (“the mother”) appeals final parenting orders made by Aldridge J on 27 June 2014.
The orders provided that H (“the child”), born in 2004, live with Mr Materanzi (“the father”) and spend no time with the mother. The mother’s contact with the child is restricted to cards and gifts on the occasions of Easter, Christmas and the child’s birthday subject to supervision of suitability by the father. The father is obliged every three months to send a report about the child together with photos and school reports. The father has sole parental responsibility.
The orders also provided for arrangements for the child to spend time with her maternal half-sisters, but restrained the mother from attending any visits between the child and her half-sisters, and from approaching or attending the child’s school.
The child has been living with the father since April 2011 and until these orders she had regular contact with the mother.
Should the appeal be allowed, the mother seeks to have all parenting orders discharged and for the parents to have equal shared parental responsibility of the child. The mother proposes that the child continues to live with the father and spend time with her on alternate weeks from Wednesday to Friday morning, alternate weekends, school holidays and special event days such as Mother’s Day, the child’s birthday, Christmas and Easter.
The father and the Independent Children’s Lawyer (“the ICL”) oppose the appeal being allowed.
We would mention that by way of Application in an Appeal filed on 28 October 2014, it was necessary that the mother seek the reinstatement of the appeal after she had failed to comply with procedural directions. On 27 November 2014, the Full Court reinstated the appeal.
In addition to that matter, at the outset of the appeal hearing, counsel for the mother sought to amend the Notice of Appeal to include an order seeking the court obtain and provide copies of the hearing transcripts before Aldridge J. It was argued the transcript was required to argue the mother’s appeal, but she could not afford the fees to purchase the document. Other alternatives were not suitable as the mother is profoundly deaf and unable to read sign language.
We ordered that the transcript be obtained, but limited to those excerpts of the mother and father giving evidence. The mother was then required to:
(3)…file and serve on the [father] and the Independent Children’s Lawyer submissions within 21 days of receiving the transcript in relation to those parts of the evidence said to relate to the following issues:
a)the mother and father’s evidence in relation to alleged non-compliance with court orders; and
b)the parties’ ability to communicate in relation to the child.
The mother filed her submission on 3 February 2015. The father and the ICL were entitled to respond to the submission within a further 21 days, but did not. The costs of this application were reserved.

Background

The father was born in 1971 and is presently 44 years of age. The mother was born in 1975 and is presently 40 years of age. The parents met in 2002, lived together from March or April 2003 and separated in May 2004, just after the birth of the child.
The child has been the subject of extensive litigation. The father initiated proceedings in May 2004, a month after the parties separated, for interim and final orders. Final parenting orders were made by consent in November 2006. Those orders provided the child live with the mother and spend significant and substantial time with the father.
Both parties commenced new relationships. In late 2006 the mother commenced a relationship with Mr P, and they were married in November 2007. They have two children, J and D (“the sisters”). At the time of the hearing before the primary judge, the mother and Mr P were separated but living under the same roof. In February 2009 the father commenced a relationship with Ms B (“the father’s wife”) and they married in mid 2011. The father’s wife has an adult son from a previous marriage, who lives with them and the child.
The mother made sexual abuse allegations against the father in October 2007 and June 2009. Both allegations were investigated and found unsubstantiated. In the first instance the father’s time with the child was suspended but then re-commenced unsupervised.
In the second instance the father’s time was suspended and re-commenced in June 2010 under supervision. In this period, in February 2010, the father commenced new proceedings in the Family Court of Australia. After a defended hearing, on 14 April 2011, Stevenson J found that the father did not sexually abuse the child.
Stevenson J ordered that the mother and father have equal shared parental responsibility and if they failed to agree, the father would have sole responsibility for the child’s education and medical treatment. An order for change of the child’s living arrangements was made, with the child to live with the father and spend time with the mother. The changeovers for the child would occur at a changeover venue.
As there had been difficulties, an order was made regarding the child’s timely arrival to school when in the mother’s care:
(5)That in the event [the child] is late for school on three occasions in any one school term period while in the mother’s care, [the child’s] time with the mother in accordance with order 4.1 is to end at 7:00pm on Sunday and [the child’s] time with the mother in accordance with order 4.2 is to end at 7:00pm on Thursday.
In 2012, the father applied to reduce the child’s time with the mother, and sought a restraint on the mother visiting the child’s school. Prior to 2012, the child attended S Primary School. As a result of a number of difficulties involving the mother and the school (discussed below), the father then enrolled the child in CC Primary School, commencing 30 January 2012. On 3 February 2012 the mother removed the child from CC Primary School and on 6 February 2012 took the child to S Primary School, in their uniform and insisted the child be re-enrolled. The father collected the child and returned her to CC Primary School.
On 29 February 2012, Rees J delivered judgment. Her Honour found that the mother attended the S Primary School “on almost a daily basis” and would attempt to change the child’s lunch and clothes provided by the father. The mother was also found to have failed to return the child to the school as required by the orders, causing the child to miss school.
It was found that when the child was in the mother’s care, the child had only attended the CC Primary School on one Friday after spending the Thursday night with the mother. Further, on the weekends the child spent with the mother she had not attended school on the following Monday.
Rees J made new orders reducing the time the child would spend with the mother, to each alternate weekend from the conclusion of school on Friday until 7.00 pm on Sunday, Thursday evenings from 3.00 pm until 7.00 pm in each other week and at other times as agreed. The mother was also restrained from approaching CC Primary School without the father’s consent or unless it was in accordance with the orders.
Orders were also made appointing an ICL for the child.
The Thursday evening time the child spent with the mother was suspended by Aldridge J on 11 September 2013, because of continued changeover difficulties. The effect of this was that during term time, the child spent time with the mother each alternate weekend. Upon application of the mother, the hearing was otherwise vacated and adjourned to February 2014.
A Family Report was prepared on 2 March 2013 and updated on 12 February 2014.
Despite the gradual reduction in the time the child spent with the mother, it is of some significance to appreciate that up until the final order made by the primary judge, the parents had equal shared parental responsibility of the child.

Reasons of the Primary Judge

The central issue was articulated by Aldridge J:
3.As these proceedings developed it became clear the major issue for determination was whether the child, who presently lives with her father, should spend some time with her mother or none at all. If it was decided that the child should spend some time with the mother, the issue for determination was whether it should be from Friday to Monday or Saturday to Sunday evening every second week. Consideration of a number of ancillary orders including orders to facilitate changeover would also be required.
(emphasis added)
The primary judge paid particular attention to the history of mother’s non-compliance with orders and difficulties at changeovers (at [35] – [78]). The difficulties with changeovers became more pronounced in May 2011. The mother was found to be frequently late, failed to attend at all or would change the agreed location.
On 21 March 2013 the child was due to be collected by the father at 7.00 pm. The mother and child were not there. The father attended the mother’s home at about 8.00 pm where the mother refused to hand over the child, the child was in the shower. The parents disputed the version of events of that night. The primary judge preferred the evidence of the father, and found the police record was consistent with the father and Mr P’s version of events (at [49]). The primary judge concluded:
55.In those circumstances, I find that not only has the mother repeatedly failed to comply with the orders of the court but has done so in circumstances where the distress of the child has been aggravated.

Abuse allegations

In addition to the previous sexual abuse allegations, the mother raised further issues of abuse during the hearing. She annexed as evidence the Facebook pages of the son of the father’s wife, complaining of his alleged bad behaviour and drug use and suggested the environment in which the child lives with the father was not safe. The primary judge rejected this and afforded the evidence little weight.
The mother relied on photographs purporting to show bruising on the child, and alleged the father and his wife hit the child and that he failed to provide her with proper food. The primary judge found the mother was “keen to latch onto anything” that might support her case, and found the complaints were misconceived (at [68]).

Two incidents of note

There were two particular incidents especially relevant to the orders made by the primary judge.
The first occurred on 14 October 2013, when the child injured one of her fingers and required surgery. The father and his wife took the child to the hospital on 18 October 2013. Prior to the mother’s arrival, the child became distressed and was concerned her mother would find out how she injured her finger (playing with friends from CC Primary School) and that she was wearing clothes given to her by the father. A hospital gown was arranged for the child so the mother would not see her in clothing provided by the father. The father observed that the child was uncomfortable and awkward interacting with the mother, but was “noticeably relaxed with her sisters”.
The father’s wife gave similar evidence, when she described helping the child get out of all the clothes she was wearing, including underwear, and into the hospital gown (at [70]). The primary judge described the circumstances for the child, as illustrating that the very difficult position in which the child has been placed:
72.It is the father’s and the father’s wife’s evidence that the child needs to have two sets of clothes one provided by the mother which she wears when with the mother and another set at other times. This is, according to them, because the mother becomes upset seeing the child in the clothes provided by the father which the child, in turn, finds distressing so she avoids the situation. She has two lunch boxes for the same reason.
73.The mother denies that this is so and asserts that it is the father and the father’s wife that will not allow the child to wear clothes provided by her when with them.
74.The position of the father is supported by the school records that show the mother attending at the child’s school to change clothes, shoes and lunch boxes on numerous occasions.
75.Given the school records, I have no difficulty in accepting the father’s wife’s apparently genuine evidence.
…
77.Importantly, this evidence demonstrates that the child was upset to the point of being clearly distressed by the thought of the mother seeing her in clothes provided by the father, even to the extent of her underwear.
78.The family consultant describes it as being very significant for the child, if it occurred. She indicated that this anxiety suggests that the child fears her mother might abandon her if she saw her in the father’s clothes and that she, thus, had the fear of abandonment or fear of the loss of a loved one, the mother.
The second incident involved a hand written note by the child to the mother. This was not an unusual form of communication between the mother and child, due to the mother being deaf. The mother relied on this note as evidence the child does not have a close relationship with the father or his wife, and that the child does not like living with him.
According to the mother the note was written during school holidays in January 2014. The mother denied it had been written the weekend before the hearing commenced on 24 February 2014 until confronted with the fact that part of the note was written on a document dated 12 February 2014. The mother denied writing the note or causing the child to write the note. It was observed that the content of the note differed from what the mother and child said to the family consultant about the child’s relationship with the father and his wife:
85.The family consultant recalled that the mother had told her that the relationship between the child and the father had improved because he had bought her clothes and food that she likes. There was, thus, a perception of improvement.
86.The family consultant concluded that this note confirms some of the questions she had raised about the child’s sense of freedom to express positive dimensions of her relationship with the father to the mother and to hide affectionate aspects of that relationship.
On this issue, the primary judge accepted the evidence of Mr P, the father and his wife. The primary judge noted the family consultant observed that the child said derogatory things to the mother about the father and his wife in order to please and placate her:
90.Thus, in the words of the family consultant, it is not necessary to determine whether the mother recruited the child to write the above note or not because, in either event, the purpose of the note is to meet the mother’s needs and not the child’s needs. Directly, or indirectly, in writing the note the child is trying to please her mother. It indicates that the child is in danger of having to create what the family consultant described as a ‘split self’ whereby the child will say different things to each parent to please them.
His Honour concluded that the child wrote the note so as to try and maintain her relationship with her mother.

Conclusions of the primary judge

The primary judge then set out the legislative framework to be applied to determine the living arrangements for the child (at [96] – [99]).
It was acknowledged at the outset that one of the primary considerations is the benefit to the child of having a meaningful relationship with both parents. It was noted that if a no contact order was made, there would be no relationship or no meaningful relationship between the child and the mother. In considering the alternatives the primary judge said:
101.Making an order for contact, albeit limited contact, with the mother will give the child the opportunity to maintain a relationship with the mother. That relationship is, however, harmful for the child in many ways and it could not be described as a meaningful relationship.
Emphasis was properly placed on the need to protect the child from psychological harm.
The child’s views that she would like to live with her mother were acknowledged and given some weight. The primary judge then turned his attention to the family reports. Initially, in May 2013, the child expressed a desire to live with the mother when asked to express three wishes. In February 2014, she declined to offer a view. This change was viewed in the context of the child expressing certain views to placate the mother. The family consultant observed that while the child’s views are important, “one of the most important factors is parental capacity to understand, appreciate and empathize with [the child]’s position and, therefore, ability to help her with her feelings about her predicament.” (at [109]). Only the father was found to be capable of supporting the child with “her feelings about her difficult family situation”.
The family consultant expressed concern that while the relationship between the child and the mother is loving, doubt surrounds whether the mother is meeting the child’s needs, or really if it is the child meeting the mother’s needs (at [112]):
113.This is manifested by the child in saying unpleasant things to the mother about the father, the father’s wife and where they reside, the food she is given, the school she attends. It is also manifested by the child not being able to wear clothes given to her by the father in the presence of the mother.

Paragraphs [118] – [119] record concerning examples of the child’s complaints to the father and his wife about the mother, and the family situation. The primary judge accepted their evidence. This evidence “accords with the contents of the note produced by the child” (at [120]).
The child made no complaints about the father, or the father’s wife, to the family consultant. There is no doubt that the child has a close and loving relationship with her two sisters, and gets on well with Mr P.
His Honour concluded that notwithstanding the genuine and loving relationship between the child and the mother, it has an “undercurrent” which is not in the child’s best interests (at [124]). This raised concerns about the time the child should have with the mother and it was found to weigh against an order for equal shared parental responsibility.
The primary judge referred to changeovers proving to be of great difficulty. The mother was found to have demonstrated herself to be disorganised and unwilling to facilitate smooth changeovers for the benefit of the child. They have often caused the child emotional upset and the primary judge was given no reason to expect this would improve. The primary judge acknowledged that the mother has not attended the child’s school for over a year, but found this was a result of an express injunction and not improved behaviour (at [154]). Obviously a no contact order would erase the stress of changeovers from the child’s life.
The primary judge also considered the child’s relationship with her sisters, the mother and Mr P. His Honour assessed the loss the child would feel from no contact with the mother or her sisters and that it would trigger a grief reaction. This loss, the judge considered, could be mitigated by continued contact with the sisters, which Mr P agreed to facilitate. As to the mother, the family consultant suggested that the feelings of loss that the child would experience would be easier to manage than the issues that have, and would continue to arise, if contact were to continue (at [135]).
The primary judge concluded that it would be desirable to make an order which would preclude involving the child in further litigation. His Honour found that the best means of achieving this would be a no contact order, as any form of contact would continue to result in conflict and dispute (at [158] – [163]). The mother continued to breach the current orders and her behaviour was having a significant impact on the child. His Honour considered that the circumstances were such that they sufficiently rebut the presumption in favour of equal shared parental responsibility (at [171]). The primary judge then determined it was not necessary to consider the issues raised by s 65DAA of the Family Law Act 1975 (Cth) (“the Act”).
The final consideration of the primary judge was whether a no contact order would be in the child’s best interests. The primary advantages of such an order were considered, including (at [175] – [177]):
a)reduced litigation;
b)removal from an environment – where she was forced to act in her mother’s interests rather than her own;
c)removed the risk of serious problems with both parents, and allowed the child to remain “in touch with her authentic self”; and
d)removed feelings of guilt and problems with self-esteem.
Real disadvantages were also acknowledged, including the loss of the relationship with the mother and sisters, although contact could still be facilitated with the sisters. A concern based on the evidence was that a contact order for time with the mother would continue an arrangement whereby the child “lives in two worlds”.
In weighing up these advantages and disadvantages, the primary judge concluded a no contact order would be in the child’s best interests for these reasons. First:
186.I bear in mind the long-term risk to the child of the long-term exposure to the mother and the psychological damage that will occur. Whilst there is a risk of there being emotional and psychological damage to the child if there is a no contact order I accept the family consultant’s view that the treatment of such damage is more straight forward than the management of the difficulties that will arise for the child if she continues to spend time with the mother. This is particularly so if the child is loved and supported. I am satisfied she will be. The evidence thus establishes that the child is likely to better off emotionally, in the long term, if a no contact order is made.
187.The second factor that persuades me to this view is twofold – there is certain to be further litigation if there are orders by which the child spend time with the mother and there are certain to be continued difficulties about changeovers, regardless of what orders are made and whatever steps are taken to try to prevent them.
188.Thirdly, the orders for time proposed by both the ICL and the father involved there be automatic suspensions of time if orders were contravened in specified ways. I have no doubt that sooner rather than later it would be asserted by the father that those triggers had taken place and I am equally certain that that would be vehemently denied by the mother. Even if there was not such a denial, I am certain that those orders would be triggered leading to significant periods of time when there would be no contact between the child and the mother. Such an off and on relationship would be most undesirable.
The primary judge then added:
190.It is appropriate to ameliorate the effects of that order by making orders for the exchange of gifts, cards and photos on important occasions. The father will be required regularly to provide photos of the child to the mother and to give her reports on the child’s progress. The father will be entitled to remove any unsuitable material before it is given to the child.
…
192.One of the factors I have taken into account is the fact that Mr [P] has said he will facilitate the child spending time with her sisters. He is not a party to the proceedings and orders cannot be made that will bind him. There are difficulties in his relationship with the mother and it cannot be assumed that for any particular time in the future they will remain living together and all that he will have sufficient control over the sisters to be able to facilitate them spending time with the child. He works shift work.

Grounds of Appeal

The mother relies on seven grounds in her Notice of Appeal:
1.That His Honour failed to give sufficient weight to the primary consideration of the benefit to the child of a meaningful relationship with the mother, contrary to Family Law Act s. 60CC(2)(a)
2.That His Honour failed to give sufficient weight to the right of the child to spend time on a regular basis with her siblings, contrary to Family Law Act s. 60B(2)(b)
3.That His Honour misconceived his function and failed to follow the legislative pathway
4.That His Honour failed to properly consider the evidence as to risk to the child
5.That His Honour failed to give sufficient weight to the views of the child
6.That His Honour failed to give adequate reasons for refusing the child time with the mother
7.That His Honour failed to consider all of the available options for the child to enjoy a meaningful relationship with the mother

Grounds 1, 3 and 7

It was agreed by counsel for the mother that these grounds are all linked and so it is convenient to deal with these grounds of appeal together.
The mother submits that the primary judge failed to “follow the legislative pathway”, as described in Goode and Goode (2006) FLC 93-286 (“Good and Good”), and in particular challenges the findings made in [101]-[102] of the reasons, which we repeat:
101.Making an order for contact, albeit limited contact, with the mother will give the child the opportunity to maintain a relationship with the mother. That relationship is, however, harmful for the child in many ways and it could not be described as a meaningful relationship.
102.The real issue in this case is whether it is in the child’s interests to have contact with her mother or not. If it is, in fact, not in the child’s interest to have contact with the mother that is the order that should be made, notwithstanding it would end the relationship between her and the mother for the foreseeable time.
It is submitted his Honour took a “simplistic approach” and failed to consider other options for the child and the mother to remain in contact. The legislative pathway referred to in Goode and Goode is well known, part of which we would repeat:
85.In our view however nothing turns upon the wording of the applications. That is because there is an obligation on the Court under s 61DA when making any parenting order to apply the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility, unless it is not applicable due to violence or abuse, or the presumption is rebutted because the Court finds that it would be contrary to the interests of the child to apply it, or it is inappropriate to apply the presumption in interim proceedings. The fact that the parties have sought such an order may be a relevant consideration but the Court’s obligation under s 61DA in relation to the presumption arises independently of what has been sought by the parties.
The primary judge expressly considered this aspect of the legislative pathway at [164] – [172] of his reasons. It was concluded that the presumption of equal shared parental responsibility should not apply because it was not in the child’s best interests. His Honour understood that the existing order provided for the parents to have equal shared parental responsibility, with the father to have sole responsibility for education and medical treatment in default of agreement. It was as a result of the mother’s conduct and the effect on the child that these orders had to be modified. Her non-compliance has seen restrictions imposed progressively to limit the disruption caused to the child’s life. The primary judge found:
167.Despite those attempts the breaches of the orders continue. The parties engage in lengthy correspondence, particularly about text about [sic] changeovers.
168.The mother’s behaviour, whether conscious or otherwise, in having the child say derogatory things about the father and his wife is continuing.
Thus, it was necessary to consider whether an order providing for equal shared responsibility should continue. The primary judge found:
170.The difficulties in communication between the parents are such and the attitude of mistrust of the mother towards the father and his wife means that equal shared parental responsibility for the major decisions in the child’s life is unlikely to produce anything other than further conflict.
171.The evidence sufficiently rebuts the presumption in favour of joint shared parental responsibility and an order will be made that the father have sole parental responsibility.
It could hardly be argued that since the primary judge found there should be no time with the mother, an order for equal shared parental responsibility could not operate without predicting real difficulties.
Counsel for the mother argues that the primary judge failed to consider other options, such as daytime visits, one weekend a month or a long-term supervision order so as to enable the child to “enjoy a meaningful relationship with the mother”. In this respect the finding of the primary judge that the child did not have a meaningful relationship with the mother in the sense of the relationship being harmful is significant (at [101]).
During the appeal, counsel for the mother conceded that no evidence was placed before the primary judge about the availability of long-term supervision, and further agreed that the family consultant did not consider it would be a good option for the child (Transcript, 27 November 2014, p 16 l 24 – 33).
It was argued that the finding that the relationship with the mother could cause the child harm did not negate a meaningful relationship and it was the primary judge’s duty to find a way to preserve that relationship - even if no options were put to his Honour to consider (Transcript, 27 November 2014, p 19 l 33 – 38). Counsel raised examples of positive interaction between the child and mother during supervision and observations of the family consultant. Presumably these are the beneficial aspects of the relationship to which s 60CC(2)(a) is addressed.
This argument does not appreciate the careful consideration of the primary judge. The grief the child would experience at the loss of a relationship with the mother was expressly addressed. The attachment and love the mother and the child have for each other was discussed. What this argument fails to take into account are the mother’s well-documented contraventions at changeovers, her interference at both of the child’s schools and the overall damaging effect of her behaviour on the child.
During the appeal, and in further written submissions, counsel for the mother made several references to the transcript to justify the contraventions and also drew our attention to the mother’s good behaviour leading up to the hearing in the court below. It refers to evidence, of both the father and the mother, of the mother complying with the orders in more recent times.
As recognised by his Honour, the mother’s behaviour did improve. However this was only in reaction to an injunction made by him to restrict her behaviour:
153.Much was made, on her behalf, of the mother having not attended the children’s school for over a year, in contrast to her previous behaviour.
154.The reality is that that was not the effect of a change in heart of the mother but the effect of an express injunction restraining her from attending at the children’s school.
The mother’s submission entirely fails to address his Honour’s findings about the distress caused to the child at changeovers leading up to the ordering of the injunction.
These grounds of appeal have no merit.

Ground 2

It was argued by the mother that the primary judge did not give sufficient weight to the right of the child to spend time with her siblings on a regular basis, pursuant to s 60B(2)(b) and ss 60CC(3)(b) and (d) of the Act. Further, that his Honour erred when he relied upon Mr P to facilitate an ongoing relationship between the child and her sisters.
Section 60B(2)(b) relevantly provides:
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
…
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and…
Sections 60CC(3)(b) and (d) provide:
(3)Additional considerations are:
(b)the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
…
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; …
Order 5 requires the father to make arrangements with Mr P to facilitate time for the child with her sisters for a minimum of once each fortnight during school term for a period of not less than four hours.
The primary judge accepted evidence that the child was close to her sisters and missed them, and expressly referred to the family consultant’s report to that effect (at [91], [107] – [109], [122]). Specifically, his Honour found:
125.The child has a close and loving relationship with her two sisters and enjoys the role of being an elder sister. The relationship with her two sisters is one of great value and importance to her as evidenced by being one of her three wishes that she live with her sisters.
As with the feelings of loss of the mother, his Honour acknowledged the child would experience this loss of her sisters as well (at [134]). Order 5 mitigates the effect of this feeling of loss to some extent, but it is noted that the relationship would not be quite the same (at [179]). It is also recognised that the orders could not bind Mr P, although he did advise the court he would do his best to facilitate this time. His Honour concluded:
193.There are thus many practical difficulties that face the child spending time with her sisters. It is very important that, to the extent that he can do so, Mr [P] facilitate the child h [sic] spending time with her sisters as much as he possibly can. Not only will that greatly be in the child’s interest but also in the interests of her sisters. Orders will be made providing Mr [P] with a copy of this Judgment and a copy of the orders.
The objects in s 60B(2)(b) and factors in ss 60CC(3)(b) and (d) are subject to the child’s best interests. Having found a no contact order would be in the child’s best interests, his Honour made orders to ensure the child could have a continuing relationship with her sisters to the extent it was practical and reasonable to do so. It is appropriate to conclude his Honour accurately weighed these considerations and constructed orders that will ensure the child does have time with her siblings. There is no merit in this ground of appeal.

Ground 4

Counsel for the mother submits that his Honour failed to properly consider the evidence as to the risk to the child if she continued to spend time with the mother. It was argued that as the primary judge did not find the mother’s conduct constituted abuse, neglect or family violence, (at [104]) and because there was a meaningful relationship, those findings, or absence of findings should have led to an order for time with the mother.
This submission misunderstands his Honour’s findings. In determining there was no risk of the type referred to in s 60CC(2)(b), the primary judge did no more than say that even if the mother’s behaviour could be assessed as causing psychological harm, it did not constitute abuse, neglect or family violence and thus the nexus referred to in the section was not established. The primary judge then considered whether it would be in the child’s best interests to have contact with the mother. The matters considered by the primary judge included having regard to the child’s views, her relationship with her siblings, the loss of those relationships, the conflict at changeovers, the opinion of the family consultant, and more particularly, the behaviour of the child and the dual personality she adopted to please the mother. It was in these circumstances that his Honour concluded it would not be in the child’s best interests to have contact with the mother. That conclusion was entirely appropriate on the evidence.
There is no merit in this ground of appeal.

Ground 5

The mother argues that the primary judge failed to give sufficient weight to the views of the child. At [106] of his reasons his Honour states:
106.The child has clearly expressed her view to the family consultant, and to the father’s wife, that she would like to live with the mother. She is ten and her views must be given some weight.
The primary judge then analysed the various statements the child made to the family consultant. In the first report dated 2 May 2013, the child said she had no views to express, but during an activity made two wishes – one to live with the mother and the second to go back to S Primary School. In the second report dated 12 February 2014 the child expressed no wishes, but was tearful when describing how much she missed her mother and sisters.

The family consultant raised concerns about the weight to be attributed to the child’s views. It is necessary to repeat the relevant paragraph of the Family Report (dated 2 May 2013) in full, as it describes significant factors considered by the primary judge:
48.[The child] has expressed a wish to live with her mother and sisters. Whilst this is likely, to some degree, to reflect her missing her mother, stepfather and siblings, the possibility cannot be excluded that it might also reflect concern about the possible consequences of saying anything other than this. Regardless of the reasons for her expressing the wish, however, the decision as to where she lives, in this writer’s opinion, needs to made (sic) based on factors other than [the child]’s views. Perhaps one of the most important factors is parental capacity to understand, appreciate and empathize with [the child]’s position and, therefore, ability to help her with her feelings about her predicament. [The mother] does not appear to be receptive to the possibility of any interpretation other than her own for [the child]’s complaints about her father, his wife and life in his household. This does not position her to be able to help [the child] with her difficult feelings about her family situation. [The father] appears able to think about what [the child] says to him and about him as being related to her position between her mother and him. This positions him to be able to help her with her feelings about her difficult family situation.
Section 60CC(3)(a) requires the court to take into consideration any views expressed by the child, and any other factors the court thinks is relevant to those views. However, a trial judge is not be bound to make a decision in accordance with those views (H v W (1995) FLC 92-598, R v R (Children’s Wishes) (2002) FLC 93-108).
His Honour was mindful of the comments made by the family consultant and expressly found that the child’s views should “yield to those best interests.” (at [110]). While the child expressed a desire to live with her mother, his Honour and the family consultant were particularly concerned about the mother’s capacity and ability to meet the child’s needs (at [112] – [117]).
During the appeal, counsel for the mother agreed that although the child’s stated wish was to live with the mother, the mother did not make an application in the trial for the child to live with her (Transcript, 27 November 2014, p 26 l 21 – 44). Counsel for the mother could not direct this Court to any particular section of the Family Report that his Honour failed to have regard to under this ground, other than [38] of the Family Report on 2 May 2013 – which the judge expressly discussed (at [107]).
It was also suggested during the appeal hearing that although the mother did not apply for the child to live with her, the child’s views should have demonstrated and led to a finding that there was a meaningful relationship. As discussed earlier in these reasons, his Honour did have regard to the child’s views in assessing the relationship between the child and the mother.
Accordingly, his Honour did not err in the exercise of discretion in attributing some, but not significant, weight to the child’s views. These views were considered in the greater overall context of the child’s best interests, including more particularly the mother’s capacity to meet the child’s needs.
There is no substance in this ground.

Ground 6

The mother argues that the primary judge failed to give adequate reasons in making a no contact order. Examples were raised of such alleged failure, which have already been addressed earlier in these reasons. They include the mother’s previous compliance with the orders, proposed amendments to changeover times and locations, the child’s grief at the loss of a relationship with the mother, the imbalance in their relationship and risk of future litigation.
It is not necessary to consider each of the examples raised under this ground of appeal. One particular submission raised other possibilities for changeovers and his Honour’s failure to consider those and give reasons for his decision.
The mother argued that the judge failed to give consideration to her proposals to have changeovers occur at the child’s school, at a chicken shop near the mother’s home or a contact centre. This submission ignores all of his Honour’s discussion on the very issue of changeovers and the stress and hardship this caused for the child, directly as a result of the mother’s behaviour. There is no doubt that injunctions had to be imposed to prevent the mother from attending the child’s school.
The primary judge gave an extensive judgment. Each aspect required to be examined under the Act was given thoughtful consideration. No contact orders are not made lightly and it is clear his Honour’s focus was to ensure the child’s best interests remained paramount. There is no merit to this ground of appeal.

Conclusion

As identified at the outset, the ICL opposed the appeal being allowed. We would repeat in part, the submission of counsel for the ICL during the appeal hearing, supporting a conclusion of no merit in any grounds of appeal. This particular excerpt was part of a submission regarding the mother’s compliance with previous orders regarding changeovers:
MS CHRISTIE: It’s perhaps at the heart of his Honour’s decision to order no contact that this child cannot be exposed to this type of conduct every single week or fortnight, depending upon the frequency, and I suppose that flows into a consideration of the next ground advanced, which was a purported failure on the part of the trial Judge to consider other options. We don’t make a concession that it would have been appropriate for his Honour to consider other options – sorry. That it would be an error of law for his Honour to fail to consider other options than those put to him by an applicant, a respondent and two different proposals from an independent children’s lawyer, all of which he had expert evidence in respect of.
Because when one looks at the other options available we have to look at how would another option have mitigated the identified risk, and there isn’t another option which has been advanced which would mitigate the risk of psychological harm which comes from a fear that something is going to happen when you’re in the presence of both of your [parents]. A fear that you can’t even wear the clothes from your father’s household to your, for example, supervised contact. It is this exposure to that nature of hostility which creates the psychological harm, and there is not a restraint identified by the appellant which is equal to the task of minimising that risk. His Honour, at paragraph 175 of the reasons, says that is one of the advantages and the reason why, potentially on balance, he favours, in this difficult case, removing the child from that psychologically damaging environment.
(Transcript of Appeal, 27 November 2014, p 37 l 43 – p 38 l 15)
This is an appeal from discretionary orders. The principles applicable to such appeals are well-known, see House v R (1936) 55 CLR 499. In this appeal the arguments were largely about the weight the judge should have attached to various factors.
There is no merit in any grounds raised in this appeal. That is not to say this Court is dismissive of the mother’s desire to spend time with the child. The decision of the primary judge, and of this Court to dismiss the appeal, goes further than these considerations. It is our duty to consider what is in the child’s best interests based on the evidence.
This child has been the subject of intense litigation and conflict between the parents most of her life. The mother is able to maintain indirect contact with the child pursuant to Order 10. The mother must acknowledge that it was her behaviour that has led to the no contact orders, and it is only her behaviour that can ultimately assist her in a further application in due course to increase time with the child.

Costs

At the conclusion of the appeal, we asked the parties for submissions on costs. Section 117(1) of the Act provides that, subject to other provisions of the Act, each party bear their own costs.
The mother seeks no order for costs. In the event the appeal succeeds, the mother seeks a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
If the appeal should fail, the father seeks an order for costs fixed in the sum of $5,000. The ICL seeks no order for costs.
This Court may make an order for costs pursuant to s 117(2) if it is of the opinion there are circumstances justifying such an order. In considering whether such an order should be made, regard is had to the factors set out in s 117(2A). The relevant factors in this matter are as follows:
a)Financial circumstances – the father has incurred significant costs in opposing this appeal, which he submits had no prospect of success. The father receives no spousal or child support from the mother. While he is currently employed, he is “cutting even” in terms of living expenses and income (Transcript of Appeal, 27 November 2014, p 46, l 17). He has no significant assets and lives in rental accommodation with his wife. The mother is in receipt of a parent’s pension, and it is submitted her deafness means it is unlikely she will gain employment while the father is entirely self-funded. Although this factor is not decisive, the mother has no capacity to pay an order for costs.
b)Legal aid – the mother was in receipt of legal aid during the hearing, although has had no legal aid to fund the appeal.
c)Conduct and success of appeal – the appeal is without merit and was wholly unsuccessful.
The appeal has been wholly unsuccessful. The sum sought is relatively modest. In the circumstances of this case, it is appropriate that the sum be fixed rather than putting the parties to the trouble and expense of the assessment process.
The mother should pay the father’s costs fixed in the sum of $5,000.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ryan & Benjamin JJ) delivered on 6 August 2015.

Associate:

Date: 6 August 2015