TIPPING & STANTON
[2016] FamCAFC 127
•18 July 2016
FAMILY COURT OF AUSTRALIA
| TIPPING & STANTON | [2016] FamCAFC 127 |
| FAMILY LAW – APPEAL – CHILDREN – Where the appellant was not prejudiced by the absence of part of the transcript in the proceedings – Where it was open to the trial judge to make an order for sole parental responsibility – Where there was no error in the trial judge’s interpretation of the single expert evidence or the weight afforded thereto – Where it was open for the trial judge to find that the respondents were witnesses of credit – Where nothing turned on the credit of the respondents in any case – Where it was open to the trial judge to find that the respondents had and would continue to encourage the relationship between the children and the appellant – Where it was open for the trial judge to find the appellant would not promote the relationship between the children and the respondents – Where the trial judge’s findings as to the appellant’s financial circumstances were open on the evidence – Where it cannot be said that a comparison of the parties’ financial circumstances was elevated to a primary consideration or given too much weight – Where it was open for the trial judge to find that the respondents played a greater role in the management of the children’s grief than did the appellant – Where the appellant failed to demonstrate that the trial judge’s order for the children to live with the respondent’s was plainly wrong – Where an order for flexibility in the spend time arrangements would be inconsistent with the trial judge’s order for sole parental responsibility in favour of the respondents – Where the trial judge properly considered the legislative pathway as it applies to people other than parents – Where the trial judge’s reasoning was adequate – Where the evidence demanded a finding that the respondents played a more significant role than the appellant in the children’s lives for the five years before trial – Where the appellant conceded that the children have a meaningful relationship with the maternal grandparents – Appeal dismissed. FAMILY LAW – COSTS – Where the respondents sought an order for costs – Where the appellant was wholly unsuccessful – Where the respondents incurred considerable expense in successfully defending the trial – Where the appellant is not impecunious – Order for costs made in favour of the respondents on party/party basis. |
| Family Law Act 1975 (Cth), ss 60CC, 65DAA, 117 |
| Cappetto & Cappetto [2013] FamCAFC 69 D & D (Costs) (No 2) (2010) FLC 93-435 Gronow v Gronow (1979) 144 CLR 513 Norbis v Norbis (1986) 161 CLR 513 Pisani and Pisani (2008) FLC 93-362 |
| APPELLANT: | Mr Tipping |
| RESPONDENTS: | Mr Stanton and Mrs Stanton |
| FILE NUMBER: | MLC | 1152 | of | 2011 |
| APPEAL NUMBER: | SOA | 1 | of | 2016 |
| DATE DELIVERED: | 18 July 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Austin JJ |
| HEARING DATE: | 12 May 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 December 2015 |
| LOWER COURT MNC: | [2015] FCCA 3140 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Martin and Ms McGee |
| SOLICITOR FOR THE APPELLANT: | Sambanis Family Law Pty Ltd |
| COUNSEL FOR THE RESPONDENTS: | Ms Smallwood |
| SOLICITOR FOR THE RESPONDENTS: | Lampe Family Lawyers |
Orders
The appeal be dismissed.
The appellant pay the respondents’ costs of and incidental to the appeal in the sum agreed or assessed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tipping & Stanton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 1 of 2016
File Number: MLC 1152 of 2011
| Mr Tipping |
Appellant
And
| Mr Stanton and Mrs Stanton |
Respondents
REASONS FOR JUDGMENT
Introduction
On 4 December 2015, orders were made by Judge O’Sullivan of the Federal Circuit Court in respect of three children pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) in proceedings between the maternal grandparents (“the respondents”), who were the applicants at first instance, and the father (“the appellant”), who was the respondent at first instance. The mother was not a party to the litigation due to her untimely death from breast cancer in early 2015.
The orders essentially provided for the respondents to have sole parental responsibility for the children, for the children to live with them, and for the children to spend time and communicate with the appellant. Due to the distance between the parties’ homes, visits between the children and the appellant were confined to one weekend per month and during school holiday periods. The orders reflected those proposed by the respondents and the Independent Children’s Lawyer (“ICL”), but were the opposite of those sought by the appellant.
The appellant pressed his Amended Notice of Appeal, filed on 15 April 2016, and was granted leave to rely upon the fresh evidence referred to in his Application in an Appeal, filed on the same date.
The appeal should be dismissed with costs for the reasons which follow.
Background
The three children were born in 2006, 2007, and 2008 and at trial were aged between nine and six years.
The appellant and the mother separated in June 2010, after which time the mother and the children moved from Melbourne to live in rural Victoria in the same township as the respondents. The appellant remained in Melbourne until he enlisted in the Defence Force in January 2012, after which time he moved to live at various locations in Victoria and NSW, settling finally in NSW.
Until the appellant’s enlistment in the Defence Force, visits between the children and the appellant were confined to alternate weekends, though they spent an additional week on holiday together in June 2011.
In August 2012, final parenting orders were made in earlier proceedings between the mother and the appellant, formalising the children’s residence with the mother and their time with the appellant for one week in all school holiday periods. Those orders were implemented unexceptionally until the mother’s death in early 2015. For all that time, the respondents were an integral part of the children’s daily lives, despite the mother and children maintaining a separate home.
At the time of the mother’s death, the appellant lived with his new partner near Town M, NSW. Upon notification of the mother’s death, the appellant travelled from NSW to Victoria, removed the children from the respondents’ care, and returned with them to his home in NSW, depriving them of the opportunity to attend the mother’s funeral.
The respondents immediately commenced proceedings against the appellant in the Federal Circuit Court and successfully obtained a recovery order, pursuant to which the children were returned to their care in Victoria. Further interim orders were later made in March 2015, with the parties’ consent, for the children to live with the respondents and to spend time with the appellant.
The final trial proceeded before the Federal Circuit Court in October 2015, with the orders pronounced and reasons delivered in December 2015.
The appellant appealed and, although the orders of the Federal Circuit Court were not stayed, the hearing of the appeal was expedited at the appellant’s request.
Ground 15 and the Application in an Appeal
Once the appeal was filed and the transcript was obtained to prepare the appeal books it became apparent that, by reason of a technical error, the oral evidence of the maternal grandfather at trial was not recorded and so there was no transcript of that portion of the evidence.
Ground 15 of the appeal provided:
15.The unavailability of the transcript of evidence of the maternal grandfather’s evidence before Judge O’Sullivan has severely compromised and prejudiced the father’s ability to adequately prosecute and conduct this appeal having regard to the nature of the grounds of appeal, such that a manifestly unjust and plainly unreasonable result will in all likelihood be achieved, unless the proceedings are remitted for a rehearing at first instance.
It was submitted by the appellant in writing:
…this ground ought be considered and determined first.
…
The matters the subject of challenge in grounds 1, 4, 5, 6 and 14 require extensive reference to “what was said” at trial by each of the grandparents.
…
The interests of justice are to be better served by upholding this ground of appeal than by obliging the appellant to prosecute his appeal in the absence of the transcript or reliable alternate record.
(original emphasis)
Although such written submissions suggested otherwise, the appellant confirmed he was not proposing bifurcation of the grounds of appeal by the adjournment of Grounds 1 - 14 until after Ground 15 was separately heard and determined. The appeal therefore proceeded in its entirety.
The appellant filed an Application in an Appeal on 15 April 2016 seeking to adduce fresh evidence in the appeal in an apparent attempt to fill the gap created by the absence of transcript. The proposed evidence, being three affidavits sworn by the appellant’s solicitor, comprised copies of one lawyer’s notes of the maternal grandfather’s oral evidence at the trial and an explanation of attempts made by the appellant’s solicitor to obtain similar notes from some of the other lawyers involved in the trial. The appellant was granted leave to rely upon that evidence, which was not opposed by the respondents.
The absence of transcript deprives the Court and the parties of a reliable record of the unrecorded oral evidence given at trial which may, but does not always, make it difficult for an appellant to prosecute an appeal (see Cappetto & Cappetto [2013] FamCAFC 69 at [52]; Pisani and Pisani (2008) FLC 93-362 at 82,435 – 82,441 [43] - [78]). Despite the appellant’s assertion to the contrary, he was not prejudiced by the absence of transcript in this instance and the fresh evidence he adduced did not assist his cause.
The appellant asserted the transcript was needed, and hence its unavailability was an insurmountable obstacle, because he sought to impugn the trial judge’s findings about the credit of the respondents, and in particular the maternal grandfather (Ground 4), together with some other findings based on acceptance of their evidence (Grounds 1, 5, 6, and 14), but the submission was misconceived. The absence of the transcript of the maternal grandfather’s evidence at trial had no bearing upon the appellant’s appeal for several reasons.
Importantly, the appellant conceded that neither respondent was
cross-examined at trial in a manner designed to attack their credit, and additionally, no final submission was made by him to the trial judge that any aspect of the evidence given by either respondent should be rejected for lack of veracity. Although the trial judge stated he would prefer the respondents’ evidence over the appellant’s evidence, were it necessary for any preference to be expressed (at [20]), there was no subsequent need for the preference to be applied to any factual dispute. As the appellant was impelled to admit, no order or material factual finding made by the trial judge turned on the acceptance of evidence given by the maternal grandfather and the concomitant rejection of evidence given by the appellant. The challenges to the respondents’ credit on appeal were therefore futile.
Even if the challenges were not futile and even if a transcript of the maternal grandfather’s oral evidence at trial did happen to be available, the appellant’s position would not have been vindicated because he did not suggest the maternal grandfather’s veracity was undermined by any contradictions between his affidavit evidence and the oral evidence he gave in cross-examination at trial. His evidence was apparently consistent throughout. Further, the trial judge’s findings about the maternal grandfather’s credit were based on an overall impression of him, not on merely the words he spoke (at [49], [50]). The availability of the transcript of his evidence would merely inform of what the maternal grandfather said, not the sincerity or persuasion with which the trial judge perceived he said it.
Given recognition of those facts and circumstances, the appellant desisted from further argument in support of Ground 15 and conceded his prosecution of at least Ground 4 was therefore “difficult”, though neither ground was formally withdrawn.
Ground 15 is rejected. The absence of the transcript of a small part of the oral evidence at trial did not impede the appellant’s ability to pursue the appeal.
Grounds 1, 2 and 12
These grounds of appeal were as follows:
1.The learned trial judge erred in making an order for sole parental responsibility, having regard to the parties’ history of communication as correctly identified at paragraph [168], the maternal grandparents’ evidence at the trial (
the maternal grandfather’s evidence as per contemporaneous notes taken in court), and the circumstance of court oversight of all interim arrangements between the parties which preceded the trial.(we permitted the appellant to amend the Ground during argument by deletion of the words indicated)
2.The learned trial judge erred in failing to take into account the significant effect of an order for sole parental responsibility in circumstances where the age disparity between the maternal grandparents and the youngest child was some 66 years.
12.The learned trial judge erred in making order (7) where the evidence was that the maternal grandparents wished to have sole parental responsibility for matters of emergency however were willing and prepared to consult with him on significant issues including schooling.
Each of these grounds was directed to the trial judge’s decision to make an order allocating sole parental responsibility for the children to the respondents, subject to their obligation to advise the appellant of their intended decisions, to invite and consider his response, and to notify him of their final decisions (Order 3).
The appellant’s challenge to the trial judge’s decision to allocate sole parental responsibility for the children to the same party with whom they were ordered to live was surprising, if not extraordinary, because he sought the very same outcome at trial.
The appellant sought orders for the children to live with him and for him to have sole parental responsibility for them. The respondents sought the same orders in reverse. The ICL proposed the allocation of equal shared parental responsibility for the children to both the appellant and respondents, but in final submissions conceded it was open for the Court to find on the evidence that an order for equal shared parental responsibility would not be in the children’s best interests (at [85]).
The trial judge ultimately found an order for equal shared parental responsibility between the appellant and the respondents would not serve the children’s best interests because (at [168]):
…there is no civil relationship between the parties, no effective communication, no good will, no evidence their parenting styles are similar, and no evidence they have a commitment to such an arrangement.
Consequently, parental responsibility for the children had to be allocated exclusively to one party and, since it was determined the children should live with the respondents, parental responsibility was allocated to them.
The appellant submitted it was open for the trial judge to allocate equal shared parental responsibility for the children to him and the respondents, even though his Honour did not do so. Perhaps it was open, but that seemed an unlikely eventuality in the face of the trial judge’s unchallenged findings about the lack of civility and co-operation between the parties, both parties proposing orders for sole parental responsibility, and the ICL’s concession that an order for equal shared parental responsibility may not reflect the children’s best interests. Regardless, these grounds of appeal were without merit unless the appellant could demonstrate that the order for sole parental responsibility was not open to his Honour, and he was unable to do that.
The respondents’ age had nothing to do with the allocation of parental responsibility. Both respondents had the unquestioned cognitive and intellectual capacity to exercise parental responsibility, though, in the event of their death or incapacity during the children’s minority, different orders might then be required. On the basis of the evidence adduced, the order allocating parental responsibility exclusively to the respondents was clearly open. The requirement for them to exercise such parental responsibility with due regard for the appellant’s views was a sufficiently prescriptive and enforceable condition of the order, borne of the maternal grandmother’s evidence of the respondents’ willingness to consult with the appellant so long as the ultimate decision rested with them.
These grounds of appeal fail.
Ground 3
This ground of appeal was as follows:
3.The learned trial judge erred in failing to give sufficient weight and or proper interpretation to the evidence of the jointly-appointed expert Mr [A] in relation to:
-the psychological bases for the children’s wishes.
-the nature of the children’s emotional relationship with the father.
-the father’s role in the children’s recovery from the death of their mother.
-the use of the phrase “is dad good enough”.
-the child [Z’s] answer that the maternal grandmother understands him more than “anyone else in the world”.
Mr A (“the single expert”) was the clinical psychologist engaged by the parties to prepare the family report, which was adduced in evidence and upon which he was cross-examined.
To contextualise this ground of appeal, the trial was conducted by the parties and the ICL on the basis of the mutual acceptance of several uncontroversial facts, namely:
(a)The children had loving relationships with the respondents;
(b)The children had loving relationships with the appellant;
(c)The children were living with and had been well cared for by the respondents; and
(d)The children expressed wishes to live with the appellant.
At trial, both the respondents and the ICL urged caution in the attribution of weight to the single expert’s evidence, which submissions the trial judge acknowledged. They contended the single expert’s evidence, in his written report and in cross-examination, was premised on misguided principles.
The respondents submitted:
…the Report proceeded upon a false premise that because one parent was dead the question in this case could be reduced to whether the [appellant] was “good enough” [as a parent, to warrant the children living with him].
The ICL submitted:
…[the single expert’s] evidence (which was but one piece of the evidence) made clear the Report had been limited to how the children viewed the world and their emotional views.
Such submissions were fair reflections of the single expert’s evidence, the flavour of which was to the general effect that children are “biologically primed to want to be with their parents” and that a parent should presumptively assume primary care in preference to grandparents if the parent is a “good enough” parent. It was also clear from the single expert’s cross-examination that he did not purport to canvass all of the factors the trial judge was obliged by the Act to consider in reaching a determination about how the children’s best interests would be served (s 60CC). The single expert said:
Your Honour, I think the obligation I have under the Family Law Act is to help you to understand how the children see the world and how they feel and what their wishes are. All those other matters are fortunately, from my perspective, I happily handball to you. The question of whether [the appellant’s] good enough as a parent is – is paramount in my thinking.
(transcript 12/10/15 at page 29, lines 31 - 35)
…normal development, normal family development, suggests that parents are the ones who are supposed to look after their kids unless they can’t.
(transcript 12/10/15 at page 37, lines 13 - 15)
In light of such evidence and such submissions, the trial judge said (at [44]):
…I will approach [the single expert’s] recommendations with particular caution given, on his own evidence, he approached this matter without regard to the matters the Court must consider in Part VII of the Act.
The appellant incorrectly equated that statement with the trial judge then unreasonably entertaining doubts about the reliability of the single expert’s opinions. Rather, as the trial judge actually said, he only cautiously evaluated the single expert’s recommendation for the children to live with the appellant, given the idiosyncratic perspective from which the single expert considered the child’s best interests should be determined.
The trial judge accepted, as reliable and correct, many of the opinions expressed by the single expert. For example, his Honour accepted the single expert’s opinions that the children genuinely wanted to live with the appellant (at [24]); that the respondents had taken good care of the children and could continue to do so (at [24], [32]); that the respondents assisted the children to cope with the grief of the loss of the mother (at [24]); that it was a “poor decision” for the appellant to prevent the children attending the mother’s funeral (at [27]); that it was the “less uncertain” option for the children to remain living with the respondents (at [29]); that the children were not fearful of the respondents, as the appellant alleged (at [31]); and that the respondents had and would continue to encourage the children’s relationships with the appellant (at [35]).
On the whole of the evidence, including that given by the single expert in both his report and during cross-examination, the trial judge concluded the children should live with the respondents. The single expert recommended the children should live with the appellant if the Court regarded him as a “good enough” parent and so the Court’s ultimate conclusion differed from the single expert’s ultimate recommendation, but that is unexceptional. There is no point vesting power in judges to determine parenting cases if they are merely confined to acceptance of recommendations made by single experts. The trial judge correctly recorded in the reasons his obligation to “make [his] own findings…having regard to the evidence of [the single expert]” (at [44]).
Contrary to the appellant’s contention, the trial judge did not misinterpret the single expert’s evidence, nor did his Honour err by failing to accord it sufficient weight. The trial judge correctly and carefully evaluated the single expert’s opinions and his ultimate recommendation, in circumstances where the single expert’s recommendation most probably sprang from an erroneous presumption that children should live with a parent rather than a grandparent if the parent is a sufficiently capable residential carer. The trial judge correctly cited and applied authority which establishes the Act does not import any presumption in favour of parents over others in the determination of proper parenting orders
(at [131] - [132]). As required, the trial judge assessed and then decided with whom the children should live in a keenly contested residential dispute between the respondents and the appellant. His Honour concluded the children’s interests would be better served by them living with the respondents.
The sub-paragraphs of Ground 3 were merely particulars of the way in which it was alleged the trial judge erred and do not, therefore, require individual attention, given rejection of the underlying misconception of the ground.
This ground of appeal fails.
Ground 4
This ground of appeal was as follows:
4.The learned trial judge’s finding at paragraph [20] that “I found the maternal grandparents to be careful and honest witnesses who gave their evidence in a considered manner” was not open to his Honour, having regard to their evidence at trial.
For reasons already explained, it was open for the trial judge to make favourable findings about the respondents’ credit, which motivated the appellant to admit it would therefore be “difficult” to succeed with this ground.
The appellant conceded the trial judge made unchallenged findings to the following effect in respect of the maternal grandfather (at [49] - [50]):
The maternal grandfather’s evidence, in contrast to that given by the [appellant], was refreshingly frank.
The maternal grandfather gave his evidence directly and with such evident sincerity that I am satisfied he is a witness whose evidence should be accepted.
The appellant’s complaint was that the trial judge did not make similarly specific findings about the maternal grandmother and so it was an error to compendiously refer to both respondents as “careful and honest witnesses”.
Although the trial judge did not make any positive credit findings specifically in relation to the maternal grandmother, no aspect of the evidence should necessarily have led the trial judge to find she was not a “careful and honest” witness. The appellant submitted that some of the evidence given by the maternal grandmother in cross-examination suggested she was not frank, careful, or considered, but that submission is rejected. The portions of the maternal grandmother’s evidence to which the appellant alluded simply disclosed she was ill-disposed towards him, but that did not call into question her integrity. On the contrary, her evidence amounted to candidly honest admissions of her dislike of him.
Since no aspect of the evidence must necessarily have driven the trial judge to conclude the maternal grandmother’s evidence lacked credit, it was eminently open for his Honour to find both respondents were “careful and honest witnesses”. In any event, as earlier mentioned, nothing eventually turned on findings about the respondents’ credit.
This ground of appeal fails.
Grounds 5 and 6
These grounds of appeal were as follows:
5.The learned trial judge’s conclusion at paragraph [153] that “on the evidence there is no basis for the father’s stated concern that the maternal grandparents will not encourage the children’s relationships with him” was not open to his Honour, having regard to the history of the maternal grandparents’ historical relationship with the mother, father and the children, the grandparents’ evidence at trial and the circumstance of court oversight of all interim arrangements between the parties which preceded the trial.
6.The learned trial judge’s conclusions at paragraph [144] that his Honour was “satisfied from all of the evidence that if the children were to live with them, the maternal grandparents will continue to encourage the children’s relationship with the father”, and at paragraph [147] that “the evidence doesn’t permit a finding to be made that he [the father] would promote the relationship with the maternal grandparents” were either:
(a) not available on the evidence; or
(b) contrary to the evidence of the distrust of the respective parties for each other (notwithstanding their expressed willingness to support the relationship between the children and the respective parties).
These grounds of appeal took issue with findings expressed by the trial judge in three paragraphs of the reasons, which were contended to be “not open”, “not available”, or “contrary to the evidence”, though the oral submissions made in support thereof did not correlate with the grounds. The appellant submitted the findings were “not reasonably open”, as opposed to not being open at all, which re-cast the complaint as one about the weight attached to parts of the evidence rather than an assertion of material factual mistakes.
The first conclusions reached by the trial judge were that the respondents had encouraged the children’s relationships with the appellant and would probably continue to do so in the future (at [144], [147]), about which the appellant had no reason to be concerned (at [153]). Not only was it open for the trial judge to so find, they were the most obvious findings to make in the face of two important pieces of evidence.
First, the single expert consistently expressed opinions to that effect. The appellant did not assert the trial judge made incorrect factual findings (and which he must therefore now accept as correct) when his Honour said of the single expert’s evidence (at [35], [42]):
…his evidence was the [respondents] had encouraged, and would continue to encourage, the children’s relationship with the [appellant].
[The single expert] said it was a “testament” to the [respondents] … that the children had a close relationship [sic] with the [appellant]…
(emphasis omitted)
Even though the single expert also said the respondents did not believe the appellant was “solid, consistent or reliable”, which evidence the trial judge also acknowledged (at [28]), it did not undermine the single expert’s opinions about the respondents’ willingness and capacity to promote the children’s relationships with the appellant. It is not inconsistent or illogical to conclude that, while the respondents are not enamoured of the appellant, they still promote the children’s relationships with him because they recognise his importance in their lives.
Secondly, it was uncontroversial that the children do in fact have strong relationships with the appellant, which they probably would not have if the relationships were not supported by the respondents. Given the children’s residence with the maternal family and the intermittency of their school holiday interaction with the appellant for some years before the trial, it is almost inconceivable the children could now enjoy such loving relationships with the appellant unless the relationships were encouraged by the respondents.
The other conclusion reached by the trial judge was that the evidence did not permit a reciprocal finding that the appellant would promote the children’s relationships with the respondents (at [147]), which finding the appellant apparently disputed. The appellant made no written or oral submission on appeal about this finding, which formed part of Ground 6, but it should still be addressed when that part of Ground 6 was not expressly abandoned.
The appellant’s decision to remove the children from the respondents’ care in the days between the mother’s death and her funeral was an insensitive reaction to the children’s grief, which did little to assuage the respondents’ beliefs about his lack of insight or their expectations about his intention to marginalise them in the children’s lives. After returning to NSW with the children, the appellant told them they were “staying [with him] for good and they were going to a new school”. The appellant admitted in cross-examination he realised after a “few months” that he had acted inappropriately, but he made no such admission in his affidavit. Such facts were not challenged.
The ICL submitted that the trial judge could have no confidence the appellant would promote the children’s relationships with the respondents if they lived with him instead. The appellant contended otherwise, but the trial judge did not accept his evidence on the issue because his Honour found (at [144] - [145]):
…the [appellant’s] disregard for the [respondents] was apparent despite his words suggesting otherwise.
Despite [the appellant’s] protestations to the contrary, it is evident that the [appellant] harbours resentment towards the [respondents] for what he sees as them usurping his role as parent.
(emphasis omitted)
The efficacy of those findings was not challenged, which is perhaps unsurprising when the ICL formed the same view on the evidence. In conjunction with the evidence about the manner in which the appellant removed the children from the respondents’ care immediately after the mother’s death, it was permissible for the trial judge to find the appellant would not promote the children’s relationships with the respondents.
The findings made by the trial judge, in so far as they were relevant to Grounds 5 and 6, were open and so those grounds of appeal fail.
Grounds 7 and 8
These grounds of appeal were as follows:
7.The learned trial judge erred in elevating the parties’ financial circumstances to a primary consideration in the determination of the best interests of the children.
8.The learned trial judge erred in giving too much weight to the
s 60CC(3)(d) Family Law Act 1975 consideration of the likely effect of any change in the children’s circumstances and the “uncertainty” of the father’s proposal, where the expert evidence on this factor was that the effect of either proposal on these children was neutral.The trial judge found the respondents’ parenting proposal offered a greater level of certainty to the children’s future than the appellant’s proposal, but the appellant submitted that finding was based on an unfair comparison of, and fixation upon, the parties’ financial circumstances.
The Act required the trial judge to consider the likely effect of any changes in the children’s circumstances if they were separated from the person/s with whom they had been living (s 60CC(3)(d)), which in this case was the respondents. With respect to that mandatory consideration, the trial judge’s finding was expressed thus (at [154]):
The proposals of the [respondents], and the Independent Children’s Lawyer, recognise the significance of the [appellant] in the children’s lives, and minimises the adverse impact on any changes to their current circumstances and is the least uncertain option.
However, that finding was based on much more evidence than merely the parties’ comparative financial circumstances. The trial judge took into account: the single expert’s opinion that it was the “less uncertain” option for the children to remain living with the respondents, because it would just be “business as usual” and “more of the same” (at [29], [33], [91]); the resentment the appellant felt towards the respondents for usurping his parental role
(at [145]); the children’s close and loving relationships with the respondents
(at [41], [151]); the respondents’ “track record” in caring for the children was “beyond reproach” and the children had “prospered” and “thriv[ed]” in their care (at [3], [29], [71], [73], [99], [112], [158], [160], [166]); the children had never lived with the appellant for more than a weekend or holiday period in the five years before trial, which rendered his parenting capacity relatively “untested” (at [150], [159]); and concerns about the appellant’s ability to prioritise the children’s needs above his own (at [161]).
The appellant chose to adduce evidence-in-chief about his assets and income, presumably because he considered his financial position was relevant in some way to the outcome of the proceedings, since there was no other reason for him to do so. He was cross-examined at length about his financial circumstances and the extent to which he was financially reliant upon his current partner and her parents, but little of that evidence found its way into the trial judge’s deliberations. In respect thereof, the most the trial judge said was (at [159]):
…and the evidence before the Court about his ability to provide for them, raises more questions than it answers. Certainly were his relationship with his new partner to end his financial circumstances would see him in a potentially parlous state.
The trial judge’s finding about the appellant’s financial situation was available on the evidence. The appellant’s partner was funding his legal costs, she owned the house in which they lived, she was expecting to borrow a large sum of money from her parents to re-develop it, and it was possible she would be moved to Adelaide by her employer.
The appellant’s financial circumstances were a consideration, but not the predominate factor, in the trial judge’s comparison of the stability offered to the children by the parties’ respective proposals. It could not be fairly said, as the appellant contended, that the parties’ financial circumstances were elevated to a “primary consideration” or given too much weight in the determination of the children’s best interests.
These grounds of appeal fail.
Ground 9
This ground of appeal was as follows:
9.The learned trial judge erred in attributing the children’s apparently positive recovery since their mother’s death solely to the contributions of the maternal grandparents, and failing to accord any or sufficient weight to the father’s significant contributions to this recovery.
The appellant contended the “tenor” of the trial judge’s reasons attributed the children’s recovery from their grief caused by the mother’s death to the care, love and support of the respondents, though his submissions were confused as to whether the succour he allegedly provided to the children was either ignored entirely or paid too little weight by the trial judge.
In support of the submission about the appellant’s contribution to the resolution of the children’s grief, the appellant referred to the evidence of the single expert in cross-examination, which was relevantly as follows:
Resolving grief also depends on being able to scaffold off other relationships. So presumably, at some level, [the children’s] relationship with [the respondents] and [the appellant] and [the appellant’s partner] and other people has helped them.
(transcript 12/10/15 page 14, lines 19 - 22)
My impression, your Honour, is that the children, in that – that period after their mum’s death, did better as a consequence of them having been with their dad. That’s my impression. Whether it could have been managed differently is a whole different issue, but it does appear to me as though him being there somehow helped them to scaffold through the grief.
(transcript 12/10/15 page 40, line 44 – page 41, line 2)
No-one explored with the single expert what he meant by the children’s ability to “scaffold off other relationships” and to “scaffold through the grief”, but presumably it simply meant they relied upon their relationships with other people they loved to fill the void created by the loss of their mother.
The children undeniably relied greatly upon the respondents for that purpose. The argument was confined to the extent they also relied upon the appellant for that purpose and the recognition given by the trial judge to such reliance.
Several observations may be made about the appellant’s submissions that are fatal to the success of this ground of appeal.
First, the appellant could not cite from the text of the trial judge’s reasons the explicit ignorance or rejection of any emotional contribution of that sort provided by him to the children. Rather, that was simply the appellant’s own perception of the “tenor” of the trial judge’s reasons.
Secondly, the evidence of the single expert fell considerably short of the ringing endorsement of the appellant’s asserted emotional support of the children. The single expert merely said he “presum[ed]” the children’s relationships with the appellant, among others, helped them cope and that it was his “impression” the children coped better as a result of spending some time with the appellant. Even if presumptions and impressions can properly be considered to constitute expert opinions, they are not strong ones.
Importantly, the single expert saw fit to emphasise how the transition of the children into the appellant’s care following the mother’s death “could have been managed differently”, which was plainly a euphemistic description of the appellant’s ill-considered decision to engage police assistance to remove the children from the respondents’ care, ostensibly permanently, in the children’s grief-stricken days between the mother’s death and her funeral. The trial judge acknowledged the single expert’s opinion of that reaction to be “a poor decision which showed a lack of insight” (at [27]) – a thoroughly apt description. How the removal of the children from the respondents’ care with police assistance, the deprivation of their opportunity to attend their mother’s funeral, and telling them they would then be permanently living with him in a different State helped them “scaffold through their grief” is not entirely obvious.
The trial judge cited the single expert’s admission that the respondents possibly demonstrated more insight into the children’s needs than the appellant (at [31]), but his Honour also specifically acknowledged the single expert’s opinion that the appellant’s presence with the children after the mother’s death helped them “to grieve by scaffolding off other relationships” (at [34]). Consequently, the trial judge did not ignore that aspect of the evidence which was favourable to the appellant, but gave it comparative weight when contemplating the parties’ respective insight into the children’s emotional needs.
The trial judge concluded (at 150]):
[The children] … have endured the upheaval of their mother’s illness and death earlier this year and have, the evidence is, been able to do so thanks to the care, love and support of the [respondents].
So much was indeed true. Evidently, the trial judge concluded the respondents played a much greater role in management of the children’s grief than did the appellant, but such a conclusion was well open on the evidence.
This ground of appeal fails.
Ground 10
This ground of appeal was as follows:
10.The learned trial judge erred in giving too much weight to the parenting arrangements which preceded the mother’s death and failing to give any or sufficient weight to:
(a)the circumstances surrounding those arrangements; and
(b)the relationship of the maternal grandparents with the family prior to the mother and children relocating to [Town N]; and
(c)the father’s demonstrated commitment to the children prior to and since the mother’s death.
Analysis of this ground was entirely an argument about the weight attributed to parts of the evidence by the trial judge. As is well known, an appellate court should be slow to overturn a trial judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight (Gronow v Gronow (1979) 144 CLR 513 at 519 - 520). It is only where the trial judge’s decision exceeds the generous ambit within which reasonable disagreement is possible and is plainly wrong that an appeal court is entitled to interfere (Norbis v Norbis (1986) 161 CLR 513 at 539 - 540).
There was very little, if any, factual conflict about the parenting arrangements in place for the children either before or after the appellant’s separation from the mother in June 2010.
During the parents’ cohabitation, they lived with the children in Melbourne and the respondents “had little to do with” them.
After the parents’ separation, the mother and children moved to live in the same country Victorian town as the respondents. They maintained a separate residence from the respondents, but the respondents were an integral part of the children’s daily lives until the mother’s death in January 2015, after which time they lived with the respondents until the trial in October 2015. The appellant remained living in Melbourne after separation from the mother, some hours distant by road journey from the children’s country home. The children visited with him on alternate weekends and during one school holiday period until, in January 2012, the appellant joined the Defence Force and ultimately moved away to NSW. For the next two years, until December 2013, the appellant and children only spent time together on a handful of occasions, though they maintained telephone communication. By August 2012, orders were in place between the mother and appellant confining the children’s visits with the appellant to school holiday periods. The appellant was discharged from the Defence Force in August 2014 and he has chosen to live near Town M, NSW ever since.
The appellant undoubtedly retained fervent interest in the children and wished to preserve the loving relationships he enjoys with them, but that was explicitly recognised by the trial judge. The evidence of the single expert that the appellant was “an important person” in the children’s lives and that their relationships with him were “relaxed and comfortable” was included in the trial judge’s reasons (at [26], [41]) and was clearly why the orders made by the trial judge provided for the children to spend as much time with the appellant as their school commitments and their geographical separation from him allowed.
In view of the uncontroversial facts about the children’s historical care and the acceptance of the single expert’s evidence about the quality of the children’s relationships with the appellant, he was unable to demonstrate the trial judge’s decision to order that the children live with the respondents was plainly wrong.
This ground of appeal fails.
Ground 11
This ground of appeal was as follows:
11.The learned trial judge erred in failing to clearly provide in the orders for the Independent Children’s Lawyer’s recommendation “that there be flexibility in the future as the children mature that weekend time occur in [Town O] on occasion”, in circumstances where the evidence was that agreement between the parties was likely impossible.
During final submissions, the ICL tendered as an exhibit the minute of orders she proposed for the children. Relevantly, the ICL proposed that the children spend time with the appellant on one weekend each month and for periods during each school holiday. It was proposed that the weekend visits be confined to the Victorian township in which the children lived, but that there be no such embargo on the school holiday visits. However, the ICL proposed endorsement of the following notation upon the orders:
The ICL has proposed weekend time in [Town N] but supports that there be flexibility in the future as the children mature that weekend time occur in [Town O] on occasion.
The appellant asserted the trial judge fell into error by failing to “formalise the ICL’s intention in the form of an order”, but such an assertion misconceived the forensic process and the trial judge’s role.
The ICL tendered her minute of orders, containing that notation, prior to the commencement of final submissions and then made final submissions before the parties. The ICL did not speak to the notation during final submissions. Nor did the appellant during his final submissions which followed. Although the respondents indicated their agreement with the orders proposed by the ICL, save for the manner in which parental responsibility would be allocated, such agreement was confined to the “orders” proposed. The respondents said nothing to suggest their concurrence with the endorsement of any notation on the orders about what might happen in the future, particularly when they sought sole parental responsibility for the children.
Significantly, the ICL did not propose that any order should be made about it. Rather, without explaining why, the ICL merely suggested a notation be endorsed on the orders confirming her hope for more flexible interaction between the children and the appellant at some indeterminate point in the future, which suggestion was not expressly embraced by the parties. The appellant now criticises the trial judge for failing to transform a mere individual aspiration of the ICL into a prescriptive and enforceable order, in a vacuum of evidence and submissions about how such an order could be crafted, when the ICL will have nothing more to do with the children and parties after the conclusion of this litigation.
Disputes between parties under Part VII of the Act are quelled by orders that impose clear obligations and responsibilities. The trial judge made orders for the children to live with the respondents and for the respondents to have parental responsibility for them. The exercise of such parental responsibility will entail future consideration of whether the children’s expenditure of time with the appellant should forever be strictly in accordance with the Court’s orders or whether, with changing circumstances like the children’s increased maturity and thawed relations between the parties, arrangements could be more flexible. But, absent more litigation over the issue, such decisions remain the exclusive province of the respondents because of their parental responsibility for the children. Endorsement of the orders with a notation like the one proposed by the ICL would be inconsistent with the trial judge’s decision to vest parental responsibility for the children in the respondents and unjustifiably engender the appellant’s hope that the respondents will relent and abandon reliance on the Court’s orders.
It would have been foolhardy for the trial judge to have gone even further, as the appellant submitted he should, and made an order to try and accommodate such future “flexibility”. Even if such an order could have been crafted in a prescriptive way, no such order was sought by either party or the ICL, there was no evidence or submission at all to support such an order, and it would therefore probably have been made in circumstances that were procedurally unfair.
This ground of appeal fails.
Ground 13
This ground of appeal was as follows:
13.The learned trial judge ultimately failed to analyse and give due and proper weight to the provisions of ss 60CC, 65DA [sic] and 65DAA of the Family Law Act 1975.
The elusive nature of this ground of appeal was articulated to mean the trial judge failed to “follow the legislative pathway” of Part VII of the Act and, in particular, erroneously elevated the meaningfulness of the children’s relationships with the respondents to a “primary consideration” under
s 60CC(2)(a) of the Act. The appellant was wrong on both counts.
The trial judge correctly recounted the imperatives of the Act (at [125] - [130]) and then expressly acknowledged that, as grandparents, the respondents must be treated differently from, though not inferior to, parents under s 60CC of the Act (at [131] - [133]). Having done so, the trial judge then moved on to evaluate the evidence as it correlated to the individual s 60CC considerations which determined how the children’s best interests would be reflected in the Court’s orders (at [137] - [166]). Since equal shared parental responsibility for the children was not allocated to their “parents”, the trial judge was then relieved of the burden of mandatory consideration of the children’s residential options favoured by s 65DAA of the Act.
The process employed by the trial judge was exemplary and the appellant’s complaint was baseless. In oral submissions the appellant contended the trial judge’s analysis of the evidence in respect of the s 60CC considerations lacked detail, but that too was unmeritorious. When individually considering the
s 60CC factors in the reasons, the trial judge summarised his findings about the evidence and submissions which had already been traversed at length earlier in the reasons.
This ground of appeal fails.
Ground 14
This ground of appeal was as follows:
14.The learned trial judge’s findings at paragraphs [3], [149], [150], [152], [162] of the reasons concerning the historical extent and nature of the maternal grandparents’ care for the children were not supported by the evidence.
To prosecute this ground of appeal, the appellant relied on the submissions he made in support of Ground 10, contending that:
The trial judge’s reasons wrongly characterised the [respondents] as having been more heavily involved in the day to day parental care of the children…since separation than the evidence permitted.
The uncontroversial facts extracted in the discussion of Ground 10 fairly permitted, if not demanded, the trial judge’s finding that the respondents played a much more significant role than the appellant in the children’s lives for the five years before trial in October 2015. The eldest child was still only three years of age when the parents separated in January 2010, at which point the appellant began to play a much less significant role in their lives. For more than half of their young lives the children lived more closely with the mother and respondents than with the appellant.
As the appellant admitted in the Case Outline document he prepared immediately before the trial:
The children also enjoy a close and loving relationship [sic] with the [respondents].
[The appellant] recognises the importance of the children’s relationship with the [respondents].
…the opportunities for regular and frequent face to face contact is limited [because of the distance between the parties’ homes].
It followed from the appellant’s concessions that the children had important relationships with the respondents and, in the event of a decision for the children to live with them, the children’s future interaction with him would be curtailed by the distance between them.
This ground of appeal fails.
Conclusion and costs
The appeal fails in its entirety and must be dismissed.
In such an eventuality, the respondents sought a costs order against the appellant, which the appellant resisted.
Accepting the provisions of s 117 of the Act apply, the respondents relied upon s 117(2A)(e) of the Act to vindicate the costs order and the appellant relied upon s 117(2A)(a) of the Act to resist it.
The appeal was wholly unsuccessful and, having regard to the relative lack of merit in the various grounds of appeal and the submissions made in support of them, greater caution should have attended the decision to file and prosecute it. The respondents incurred considerable expense successfully defending the trial judge’s orders.
The appellant’s financial circumstances are undoubtedly tight, but he is not impecunious. He deposed to his financial circumstances at trial, which evidence disclosed his full-time employment generates annual gross income in excess of $50,000. He lives with his current partner in a home owned by her. She is also in full-time employment and they share their living expenses. The appellant was not legally aided on the appeal and funded his legal representation with money advanced by his current partner. In any event, poor financial circumstances do not preclude a costs order when it would otherwise be warranted (D & D (Costs) (No 2) (2010) FLC 93-435 at 84,766 [21]).
The appellant should pay the respondents’ costs of and incidental to the appeal on a party/party basis. If the parties cannot agree upon quantification of such costs then they should be assessed. The orders so provide.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Austin JJ) delivered on 18 July 2016.
Associate:
Date:
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