Vanderhum & Doriemus
[2007] FamCA 478
•24 May 2007
FAMILY COURT OF AUSTRALIA
| SCVG & KLD | [2007] FamCA 478 |
| FAMILY LAW - APPEAL FROM FAMILY COURT OF AUSTRALIA – FINDINGS OF FACT –Assertion that the trial Judge misunderstood expert opinion evidence not established. Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 cited. FAMILY LAW - STATUTORY INTERPRETATION - CONSTRUCTION OF STATUTE – Complaint that the trial Judge erred in failing to take into account provisions of the amending Part VII of the Family Law Act 1975 yet to become operative not established. Harris v Caladine (1991) FLC 92-217, CDJ v VAJ (1998) FLC 92-828 and Allesch v Maunz [2000] HCA 40; (2000) FLC 93-033 considered with respect to the nature of “rehearing” by way of appeal to Full Court. Schedule 1, Part 2, sections 43 & 44 Family Law Amendment (Shared Parental Responsibility) Act 2006 and Part VII Family Law Act 1975 considered. Contention that applying “the law” as contained in Part VII of the Act at time of hearing of appeal rejected. FAMILY LAW - APPEAL - FINDINGS OF FACT – Not established that the trial Judge erred in making certain finding of facts regarding financial circumstances of the parties. |
| Family Law Act 1975 Section 68F(2), Part VII, Part X Family Law Amendment (Shared Parental Responsibility) Act 2006 Schedule 1, Part 2, section 43 Acts Interpretation Act 1901 |
Allesch v Maunz [2000] HCA 40; (2000) FLC 93-033
CDJ v VAJ (1998) FLC 92-828 at 85,448
Harris v Caladine (1991) FLC 92-217 at 78,486
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Maxwell v Murphy (1957) 96 CLR 261 at 267; [1957] ALR 231; (1957) 31 ALJ 143
| APPELLANT: | SCVG |
| RESPONDENT: | KLD |
| FILE NUMBER: | SY | 2639 | of | 2005 |
| APPEAL NUMBER: | EA | 55 | of | 2006 |
| DATE DELIVERED: | 24 May 2007 |
| PLACE DELIVERED: | Parramatta |
| JUDGMENT OF: | COLEMAN, WARNICK & THACKRAY JJ |
| HEARING DATE: | 20 February 2007 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 April 2006 |
| LOWER COURT MNC: | [2006] FamCA 414 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | G R S.C. A G |
| SOLICITOR FOR THE APPELLANT: | A T & Co |
| COUNSEL FOR THE RESPONDENT: | P M SC A R |
| SOLICITOR FOR THE RESPONDENT: | M Lawyers |
Orders
That the appeal be dismissed.
That the father pay the mother’s costs of and incidental to the appeal as agreed or assessed on a party/party basis.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as SCVG & KLD. This judgment was previously published under the pseudonym Vanderhum & Doriemus.
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
Appeal Number: EA 55 of 2006
File Number: SY 2639 of 2005
| SCVG |
Appellant
And
| KLD |
Respondent
REASONS FOR JUDGMENT
This is an appeal by SVG (“the father”) against orders made by Moore J on 17 May 2006 in proceedings between the father and KLD (“the mother”) in relation to H born in 2002 and T born in 2004 who are the children of the former marriage of the father and mother.
The effect of her Honour’s orders was that until H commenced school, the children live with the father during school terms in a four weekly cycle for two weekends from Friday afternoon to Monday morning in S and on the intervening weekend from Saturday morning until Sunday afternoon in the B/C area. The orders also provided for a number of periods of five consecutive nights at three monthly intervals. Her Honour’s orders provided that, after H commenced school, the weekend time to be spent in the four weekly cycle become from later on Friday afternoon until Sunday afternoon for two out of three weekends, with the time to be spent with the father on the intervening weekend unchanged. In lieu of periods of five consecutive nights at three monthly intervals, the orders provided for the children to spend one half of the mid year school holidays with the father and one week during the Christmas school holiday period, together in certain years with the period from the afternoon of 23 December to the morning of 27 December. The orders also provided for telephone contact.
In the Further Amended Notice of Appeal which, with the consent of the mother, the father was allowed to rely upon at the hearing of the appeal, the father set out the orders he sought in lieu of those made by the trial Judge. As it was, sensibly in our view, common ground between Senior Counsel for the parties that a re-hearing of the proceedings would be ordered if the father’s appeal succeeded, it is sufficient to observe only that the orders sought by the father involved the children spending more time with him than did those made by the trial Judge.
The mother resisted the appeal and sought to maintain the trial Judge’s orders.
Background
At the date of her Honour’s judgment the father was aged 54 and the mother was aged 43. The parties commenced cohabitation in July 2001 and married in December 2001.
The parties separated on 17 January 2005 when the mother left the matrimonial home of the parties in S and moved to B where she had continued to reside up to the time of the trial Judge’s judgment.
On 6 May 2005 orders were made for the father to have contact with the children. Subsequently on 9 May 2005 orders were made for the father to have contact in a four weekly cycle in one week from Friday afternoon until Sunday afternoon, in the next from Friday afternoon to Sunday afternoon and in the third from Friday afternoon until Monday morning. Those orders were varied in some minor respects on 9 June 2005.
The child T was hospitalised in June 2005. She was subsequently diagnosed in September 2005 with chronic benign neutropenia, a potentially serious condition for which the prognosis was considered excellent by the medical practitioners who gave evidence in the proceedings before the trial Judge. The condition required the child to be closely monitored and referred for medical treatment and treated with intravenous antibiotics at the first sign of any infections or fever.
Appropriate expert medical treatment and support was available for the child both in S where the father sought that the children reside and in the B area, where the mother sought to continue to reside with the children.
The Trial Judge’s Judgment
Having identified, correctly at the time there is no doubt, the “approach” to the proceedings, the trial Judge traversed the lay and expert evidence which had been adduced before her.
Her Honour detailed the background to the proceedings, the salient features of that analysis having been earlier set out by us. In the course of her review of the evidence, the trial Judge chronicled in some detail the acrimonious exchanges between the parties, some involving the children, others not. We reproduce these passages of her Honour’s reasons in some detail as they are central to a major challenge to her decision. Her Honour recorded:
44. Over these past months T has been hospitalised on a number of occasions between June and November – on several occasions [four, as I recall] while she was in her father’s care – and some of the evidence relates to surrounding events. The more central features of that evidence follow:
(a)I accept [the father] did not inform [the mother] of T’s first hospitalisation in June in a timely way. He did send her a text message, but this was hours after the admission and after [the mother] had tried unsuccessfully to call him to enquire about the dressing on her leg. She was two hours away when she received the text message and arrived at 6pm. In the meantime, [the father] had left the area where T was being seen to take H and L to get an ice cream [understandably there was some restlessness] and during his absence T was taken to the ward without anyone being with her. Taken to this evidence in cross-examination, [the mother] agreed they were serious issues, she agreed it was in the children’s interests they be addressed immediately, and she conceded she had not asked her solicitor to write a letter raising them. But, as she pointed out, she raised these matters with [the father] directly in her email of 1 July. She made the point there, fairly in my view, that she could have been at the hospital much earlier had he advised her immediately when T had been taken to the hospital, and she specifically requested he do so in the future. Despite this specific request, I accept [the father] delayed notifying her of a later hospitalisation and I also accept he did not advise her T had been to hospital for treatment and observation on another occasion. Her knowledge about that came from the medication she had been prescribed by the Emergency Department.
(b)In the July admission, when she was to undergo the bone marrow aspirate, there was an issue in front of T and in front of hospital staff about who would take her into the theatre before [the mother] withdrew and told [the father] to take her.
(c)I accept [the mother’s] evidence that there have been occasions when [the father] has raised his voice in speaking to treating doctors and he has yelled at [the mother] in front of the children and medical staff.
(d)There have also been exchanges at the hospital in these circumstances:
· In July [the father] said to [the mother] ‘have you beaten [T]? What’s that on her head? Where’s H?’; she replied: ‘At [X]’s she did not want to come to the hospital’; and he said ‘You never listen to her normally. Why are you today?’
· In the context of asserting arrangements for the children contrary to the interim orders, he yelled at her ‘get fucked [K]’.
· On one occasion he asked her ‘Where is [H]?’, [the mother] replied ‘at [B]’ and his rejoinder was: ‘what being looked after by the vet’.
· After [T’s] discharge into his care on one occasion he sent a text message to her suggesting the children stay with him until Tuesday [[T] had a medical appointment at the hospital on Tuesday] which included the message ‘please don’t make them suffer any more’;
(e)There have been occasions around [T’s] hospitalisation when [the father] has sought to extend the time [H] or both children spend in his care beyond that specified in the interim orders. Generally, [the mother] has refused to accommodate this and she has either driven back to [B] with both children immediately on [T’s] discharge, or she has remained in [S] and sent [H] back to [B] with her sister or with her parents. On one occasion there was open dispute in front of [H] between [the father] and the [mother’s family] about whether they would be taking her back to [B] with them. The evidence also establishes that on one occasion when she did agree to [H] staying with her father while she was at the hospital with [T], he arranged for [H] to attend at a day care centre at [C] [he had taken one day off to look after her but could not do so the next day]. As [the father] explained it, [H] was enthusiastic about going to the centre and that was why he did not return her to her mother. When [T] was discharged from hospital around noon that day [the mother] sent him a text message proposing she collect [H], but he maintained [H] could be collected at 4pm. As it happened, having located [H] at the day care centre, [the mother] collected her from there and returned to [B] with both children. In [the father’s] view, it was not in [H’s] or [T’s] interests to be undertaking a three hour drive when [T] had just been released from hospital and also, as he said when questioned about it, he wanted [H] to have an enjoyable day at the centre with friends rather than being ‘pulled out’ half way during the day. [The mother’s] view, on the other hand, is that it was not in anyone’s interests to begin the journey at 4pm instead of noon or for her to wait around the city with [T] for several hours to bide the time specified by [the father] for [H] to return to her care.
(f)In the face of [the father’s] proposal for ‘extra time’ on one occasion, [the mother] threatened to involve the police unless the children were handed over at the time designated by the orders. As [the father] explained subsequent events, the police contacted him but they took no action and he did make the children available at the designated time. [The maternal grandfather] has also threatened to call the police during exchanges about the children’s arrangements, once at the hospital and once at [the father’s] home. [The maternal grandfather] has also told his wife to ‘shut up [D]’ though I accept [the maternal grandmother] did not take offence and nor, in her view, was any intended by her husband.
45.There have been other developments over these past months that have thrown some light on the state of things and a summary account follows:
(i)[The father] has sent several objects and messages to [the mother] [and to her parents]:
(a)On 14 June [the mother] received from [the father] a copy of the movie entitled ‘The Terminator’ which came with a birthday card saying ‘Dear [mother’s name] to keep you company on the long drives. [father’s name]’. He explains it as a joke and part of a long running aside between them because she is an admirer of Arnold Schwarzenegger and his movies. But I think he is being disingenuous in trying to pass it off as an attempt at humour; there was nothing about the situation between them to warrant it being either sent or received with that intent.
(b)On 15 June [the maternal grandmother] received a parcel from [the father] which contained another parcel addressed to her daughter. That contained a gift wrapped old toilet cistern and a note ‘For [mother’s name] – Happy birthday’. He explains this by reference back to the fact that he had received a toilet cistern from [the maternal grandmother] the previous Christmas while at [B] and when he was renovating his [C] home he wrapped the old cistern and sent it as a present. [The maternal grandmother] explained it had been done as a joke, all family members got something or other and she could not remember who had got the toilet. Mr [G] would later describe her lack of recall as ‘amazing’ but I have no reason to doubt her evidence in any respect. It is entirely plausible she would not have and did not attach the same significance to it as, apparently, did [the father].
(c)On that same day [the mother] received a text message from [the father] early in the morning saying ‘smoke alarms must also be near all potential sources of fires like kitchen, all heaters also our girls are not to stay the night at your family relatives or friends houses unless they are fitted with smoke alarms.’ She later received a text message from him saying ‘have u seen the front page of the herald’ [a report about the reduction of child support paid to carers].
(d)In July [the mother] received an email from [the father] asking her to arrange to remove from his [C] home the bird bath that had been a gift from her brother, [N]. She made those arrangements with a quarry but later on he sent another email telling her it should stay where it is and to cancel the arrangements she had made to move it.
(e)In July [the maternal grandmother] received a parcel from [the father] addressed to her at ‘[B]’ and containing a used toilet seat along with some of [the mother’s] ‘bits and pieces’ from his [C] home.
(f)Later that month [the mother] received a letter from [the father], also addressed to her at ‘[B]’, enclosing a newspaper article called ‘The truth about liars’ suggesting liars ‘hold their lips tighter’. She explained this was a reference to an earlier comment [the father] had made to Dr [C] about [T] having the ‘tight lipped [mother’s family] look’.
(g)[The mother] alleges [the father] called her mobile phone at 4am on 6 July. He denies this [para 92] though he concedes he has called her at 6am because she is an early riser.
(h)After midnight on 24 July [the father] sent a text message to [the mother] reading ‘dearest [mother’s name] would u be so kind as to give me the address u have in mind for our children for Sunday and Monday nights lots of love [father’s name]’. This was followed by another text message saying ‘dear [mother’s name] in view of t reduced immunity her life would be at severe risk if she was to sleep in a house with hiv aids yours sincerely [father’s name].’ This was followed by a telephone call from his home number and then a further text message saying ‘dear [mother’s name] can you please confirm you received my last messages and that our children will not be exposed to any person with hiv or aids yours faithfully [father’s name][’]. Her parents received a similar message. Her brother, J, is gay. [The father] admits sending the text messages but says he did so when he woke distressed during the night.
(i)In early October [the mother] received a text message from him saying ‘[L] and I visited my parents yesterday the next headstone was [mother’s name]. She interpreted this as a threat. Of course he may not have intended it as such, but there could have been no reason to send it other than to destabilise her in some way.
(ii)Since August last year when she has collected the children on Sunday afternoons [the mother] has brought with her a ‘security guard’, Mr [E], who is employed at [the maternal grandmother’s] apartment. She attributed the decision to [the father’s] tone and manner towards her on those occasions. From [the father’s] perspective, he says he has found Mr [E’s] manner to be intimidating though he describes him as saying very little and he describes him as polite. Mr [E’s] evidence, on the other hand, includes description of some rather provocative and confronting behaviour from [the father] at times. As Mr [G] submitted, Mr [E] was paid to be there and it may be there was an evidence gathering purpose to his presence, but there was nothing to dent his credibility and I accept the account he gave of events in so far as they involved him.
(iii)On one occasion, [the mother] alleges [the father] reversed his car in front of hers so as to prevent her from driving away from his residence without backing up. [The father] denies any untoward intent, he tendered photographs to demonstrate where the two cars were placed, and he made the point that she could have reversed and then driven off. In fact she did so, but it was an unpersuasive attempt to lend some innocence to his actions.
(iv)[The mother] alleges [the father] is persistently late returning the children to her [or to others] on Sunday afternoons. From her perspective, there is a three hour drive involved before the children arrive home for their evening routine and it means the children arrive home much later than would otherwise be the case. It is not an isolated occasion by any means, as her evidence makes plain, and nor is it a matter of a few minutes or more. There is support about lateness from Mr [E] and [the maternal grandmother]. [The father] does not deny there have been late returns, but he seeks to put the issue into a child-related context, which he goes into at some length in his affidavit and he elaborated upon it at the hearing. That is to the effect that [H] is resisting the return to her mother at the end of the weekend visits [she was in tears and begging not to go on recent occasion]. As he put it [para 68] ‘The weekends that we have are “full on” and my observations are that [H] tries to fit in every possible activity that we have shared together.’ By late morning on Sundays she says she wants to stay with him, she misses him, and does not want to go to [B]. He reassures her by saying ‘I have had my turn with you, [H], and now it’s your Mummy’s turn’. He says he finds the conversations quite traumatic, though he does not indicate that to [H]. As the time approaches, she engages in ‘delaying tactics/behaviours’ and 3pm is a bad time for handover because if they are having lunch at someone’s house they are either not finished or [T] has already fallen asleep for her afternoon nap. He has taken the view that it is more appropriate they complete whatever activity they are doing, in the hope the trauma of the changeovers would not occur. However, he said the approach has been unsuccessful because [H] is still saying on Sunday mornings she does not want to go back to [B] and that she wants to stay with him. He was asked in cross-examination what he does to prepare the children for their return to their mother around that time. He agreed he does not have ‘quiet time’ to settle them beforehand because, as he put it, he has to ‘squeeze in’ all the activities [H] wants to do with him while they are together. I have no doubt [the father] sees the issue the way he explained. But however much he might have wanted it to be otherwise, the children have had a three hour journey ahead of them on those afternoons and the reality is that any delay in arriving home must influence the time they would have had for a settled evening routine before bedtime. Yet he seems not to have considered the impact of his frequent lateness on the children from that point of view or, if he has, not to have given priority to it. Nor does he seem to have considered the impact of his frequent lateness on the convenience of [the mother] or others. It also seems to me there are things he could have done that might have assisted the children [particularly [H]] to prepare for the changeover on time and yet he seems not to have considered the advantages of establishing a routine for the children directed towards that end. Alternatively, the persistent late return indicates an inability to organise himself and the children sufficiently to adhere to time schedules which in the day to day lives of children is not without consequences for them.
(v)The evidence also establishes the lateness is not confined to Sunday afternoon returns. I accept he has often been late in collecting and returning the children at [B] and, while I do accept some of those occasions are explicable by reason of problems with flights or hire cars, not all can be attributed to, or are explained by, matters beyond his control.
(vi)By contrast, I accept there was an occasion when [the mother] was running late [probably by 10 minutes or so] and [the father’s] reaction was to repeated ‘you’re late’ in a loud voice.
(vii)[The mother], I accept, has enrolled [H] in swimming classes at the Institute of Sport without informing [the father] she has done so and I further accept she enrolled the children in the [B] pre-school without informing him.
(viii)[The father] alleges [the mother] is ‘inflexible’ in her attitude towards the interim contact arrangements. Her attitude towards the ‘extra time’ requests surrounding [T’s] hospitalisations has already been noted and her views about that recorded. However, I do not see this as made out on the evidence as a whole. As [the mother] pointed out, since the interim orders were made she has agreed to requests for changes from [the father] on a number of occasions. In August she agreed to the children attending a family event; in October she agreed to accommodate his work arrangements; in December she agreed to a variation of the arrangements; and in January she agreed the children could accompany him and [L] and [A] and their friends for a holiday to [LI].
(ix)The [LI] holiday meant the children were absent with their father for nine days, but in that time they did not contact their mother at all. Nor was she able to contact them. Asked about this in cross-examination, [the father] said he offered to assist [H] call her mother but she did not want to. He agreed he calls [H] and speaks to her almost every night [he misses an odd night]. It also transpires that [T] fell ill while she was away on the holiday, yet [the father] did not advise her mother of it at the time. He advised her only after the return to Sydney when there was a second visit to the doctor and suspicion about a burst eardrum.
(x)In late July [the mother] consulted her general medical practitioner and was prescribed antidepressants and on 7 September she consulted with Professor [A] again. Professor [A] reports her being much happier since moving to [B] and working part time in the family business, of being less anxious, and enjoying looking after the girls within a supportive family context, including the assistance her mother gives her with the children. She describes [the mother] at the time as bright and articulate, but anxious about the Court case. She thought [the mother] the best she had seen her, despite having an ill child and a dying father, and she attributed that to the support of a close knit family and being out of the ‘oppressive and emotionally abusive relationship’ she had with her husband. In Professor [A’s] view, the ongoing support of family is essential and without this support network [the mother] would be ‘at risk of a depressive relapse and this would potentially jeopardise her ability [sic] optimally parent and bond with the girls.’ She concluded her report with the observation that [the mother] and the children will do very well if they are given the opportunity to remain in their currently supportive environment. Her further evidence at the hearing, though relatively brief, essentially confirmed the thrust of what was said in her reports.
Her Honour concluded that :
46.Much of what has been said of developments over these past months does not reflect well on [the father] and brings into question his personality which in turn raises for consideration the impact of it upon an assessment of the children’s best interests. On the one hand, there is a considerable body of unchallenged evidence presented in his case which runs counter to the sort of picture that emerges from some of his dealings with [the mother] and her family. For example -
· In any of their social engagements throughout their long friendship, Mr [Y] has never observed him to be aggressive or abusive or narcissistic or obsessive. Also, he has observed him caring for his children over the years and he describes him as focussed on their particular needs, they have been well cared for and given physical affection and emotional warmth.
· Ms [AK] has known him for 25 years and had frequent contact with him and his family in the time. She said she is aware of suggestions that he is ‘controlling or aggressive and could be described as self-centred or even narcissistic’ but she has never seen anything to fit that description. She views him as a loyal, gentle and loving person, a loving father focussed on his children and, when he was married, on his wives.
· His sister, [H], gave evidence along those same lines. She said she had never seen him raise a hand in anger or use abusive words to anyone. He is focussed upon the children’s needs and devoted to them.
· Ms [BL’s] daughter is a friend of [L’s] and she has known the [paternal] family since 1998. She has had occasion to see [the father] at school events, socially and at the hospital after his stroke. Similarly, though aware of suggestions he can be aggressive, controlling, narcissistic or self-focussed, she has never seen him be aggressive or controlling. She also describes him as very focussed on the needs of the children.
· Nor had Dr [T] witnessed any behaviour from [the father] that might be regarded as impulsive, aggressive or threatening.
· Finally, there is evidence from a work colleague, Mr [V], who has known him in a professional and social capacity for 25 years. He describes him as ‘dedicated, intelligent and responsible’ and in a social context to be ‘quite affable, pleasant and at times humorous.’ He referred to suggestions of self-obsession or narcissism, but he has not observed him to be abusive or aggressive nor to be obsessively interested in himself to the exclusion of others. Nor has he observed deterioration in his personality since his stroke; to the contrary, he is more concerned and aware of people around him.
Having thus concluded, the trial Judge also said:
47.All of this is positive affirmation for [the father] that stands uncontested. Yet it seems to me the evidence attracts two comments. First, while all of the witnesses acknowledged awareness of suggestions about aggression, abuse, narcissism and the like, that was expressed in general terms. No-one indicated any awareness of the particular actions of [the father] over these past months that incontrovertibly did occur, as discussed above. Secondly, it may readily be accepted that none of the witnesses have experienced behaviour of the kind generally described, and it is highly probable none have experienced behaviour of the particular kind [the mother] and her mother related here. But then none of them are his former partner/spouse and co-parent and thus have never had to negotiate with [the father] a significantly changed relationship arising from a separation which is beset by disagreement about future arrangements for children. Mr [G] makes the point on his behalf that the conduct occurred in a fairly narrow period, between June and November, and of course that is borne in mind. By the same token, there has not been just one or two ill considered incidents; there have been a series of actions that demonstrate a preparedness to engage in offensive and intimidating behaviour that seems to be quite reckless as to the impact it might have on others.
Her Honour referred to evidence of Dr Q, a consultant psychiatrist who was appointed as Single Expert, who suggested that whilst the mother and her family were not “impartial reporters” and that their reports had to be so seen, their descriptions of the father’s behaviour “suggest a severely narcissistic and obsessional personality who would have an excessive need to be loved and admired and to be in control of relationships and who, when these needs are frustrated, can behave in an impulsive, aggressive and threatening manner.”
Having accepted the description of the father’s behaviour provided by the mother and her family and Dr Q’s assessment of it, her Honour concluded that:
“…while [the father] is obviously intelligent and capable of acting in an urbane manner, he is also capable of impulsive, vindictive, intimidating and offensive behaviour without apparent regard for the impact of it upon others. These personality traits, in my assessment, are likely to render it quite difficult to conduct dealings with him in a courteous and constructive atmosphere, particularly if a position is taken about the children’s arrangements contrary to his own. For that to be played out in front of the children – and there have been occasions already when the children have been exposed to yelling and abuse – is particularly undesirable and certainly detrimental to their well-being for it to continue into the future”.
Her Honour did not accept a number of submissions critical of the mother’s attitude to the relationship between the children and their father and concluded that the mother:
“…attempted to reach agreement after separation without Court action and I can see no validity to any criticism of her because she maintained a position, as did [the father], and Court action ensued but at his instigation. She has adhered to the interim arrangements, despite their rigours, and she has agreed to arrangements for the children outside those orders, including an extended period to allow the children to have a holiday with their father. I am satisfied she is supportive of the children’s relationship with their father and will be in the future. What she does not support, obviously, is the need to contend with a steady stream of untoward behaviour or an overbearing attitude from [the father] on matters related to the children’s arrangements”.
The trial Judge then referred to the “future proposals” of the parties and it is not suggested that so doing revealed any misunderstanding of those arrangements. No part of this appeal turns on that aspect of her Honour’s judgment.
Under the heading “S. 68F(2) factors” the trial Judge considered the relevant section 68F(2) factors in the light of her conclusions with respect to the evidence. Most of those conclusions are uncontroversial for the purposes of the appeal. Her Honour concluded that the wishes of the children did not assume significance, that H had a “strong attachment to both parents” and T “appears to be very relaxed and happy … with both parents” and that both parents were “committed to their responsibilities as parents and doubtless each has a great deal to offer the children in the course of their upbringing”.
Her Honour referred to the evidence of Dr Q whose expert opinion was that “[a]n optimal situation would be one of [the mother] residing in Sydney and the children seeing their father twice each week perhaps for an afternoon in the midweek and two days and an overnight on the weekend” which, it was common ground, was a reference to each alternate weekend and not every weekend.
Having referred to submissions made on behalf of the father in relation to the children’s needs, her Honour observed that “none of this could draw any dissent, but more difficult than identifying their needs, however, is finding the balance which is more consistent with their best interests overall when a good many competing considerations related to their needs have to be put on opposite ends of the scales”.
Uncontroversially for present purposes, her Honour recorded that each parent would “provide from whatever resources are available to them whatever is necessary to see the children have what is needed in those areas”.
Her Honour was not persuaded that the father was “inhibited to any relevant extent in the care of the children by reason of any physical disabilities and to the extent necessary he would have the assistance of a nanny”.
T’s special needs were referred to and, whilst her Honour recognized that “an appropriate level of care would be available to her in all probability from either of her parents, whatever the children’s living circumstances”, the mother had to “be seen as better able to provide that care – whether in Sydney or [B] – because she is the one who has provided continuity of care for [T] to this point and she is more readily available by reason of lesser work commitments and more flexibility provided by her family as her employer”.
The trial Judge did not accept Dr Q’s expert opinion evidence that the father had “no limitation in terms of meeting the children’s emotional needs”. After referring to Dr Q’s evidence, in a passage of her judgment with assumes considerable significance in this appeal, the trial Judge concluded that the father had “limitations” in relation to “meeting the children’s emotional needs”.
A number of matters were then detailed by her Honour during the course of which she concluded that the father’s “attitude towards the children’s mother and some of his behaviour towards her, on occasions in their presence – which I accept to have been variously rude, obstructive, unco-operative, loud and insulting – has put the children’s well-being at risk”. This was considered to be “behaviour from which they need protection”. Her Honour accepted Dr Q’s “observation under cross-examination that behaviour of that kind would be a reason for limiting their exposure to it by limiting contact”. As will be seen, that conclusion is pivotal to one of the grounds agitated in this appeal.
Her Honour further concluded that “other aspects of his [the father’s] behaviour, to which the children have not necessarily been directly exposed, tend to suggest [the father] is limited in his ability to discern and act upon the children’s needs, particularly if what is required runs counter to his own needs or wishes”, a number of examples of which were then provided. For the reasons which she had detailed, the trial Judge concluded that the mother’s “capacity to meet the children’s emotional needs is superior” to that of the father.
The question of whether the children should continue to reside with the mother at B as she sought, or with her in Sydney, as the father sought was then considered. Accurately there is no dispute, her Honour recorded that the “dilemma” which thus arose related to “practical difficulties for the children associated with maintaining frequent physical contact with their father if they remain living in [B] because of the distance involved”. It was common ground at trial that the driving time between Sydney and B was approximately three hours.
Under the heading “Advantages and disadvantages”, the trial Judge considered a number of factors, including the mother’s history of primary care of the children, her being “particularly well attuned to all of their needs, more so to their emotional needs than is their father”, the “considerable advantages from being in the ambit of her care” and the reality that if the father’s proposal was “adopted they [the children] would spend considerably more time away from their mother than if the arrangements are as she proposes”.
The mother’s greater ability to be “available spontaneously for medical consultations and/or hospitalisation and her family employment” giving the mother “the necessary flexibility to be available when required”, the fact that the children were “settled at pre-school”, and their family and other connections in the B district were all considered by the trial Judge to be factors favouring the mother’s proposal for the future care of the children.
Her Honour then directed her attention to the alternative proposal, whereby the mother and children would return to Sydney to live. As will be seen, this aspect of her Honour’s judgment assumes some prominence in this appeal. The trial Judge referred to the father’s proposal that the mother and children return to Sydney and live in accommodation which the father offered to provide.
The mother’s reasons for rejecting that proposal were accepted by her Honour. The trial Judge found that the mother “would have no accommodation and no present means of being able to afford any” and also referred to the submission of Counsel for the father that the mother “presented no detail about her financial situation, but then she was not changed about her lack of means when the opportunity arose”.
The trial Judge referred to evidence of accommodation owned by members of the mother’s family, none of which was accepted as necessarily being available to the mother. Her Honour concluded in relation to requiring the mother and children to return to live in Sydney that “The inevitable unhappiness and discontent such an arrangement would inevitably bring about would expose her to the risks discussed by Professor [A] whose professional support, I accept, could be no substitute for the support of her family in so many ways”.
The trial Judge ultimately concluded that the “very important considerations” weighed “heavily” in favour of the mother remaining with the children at B. It is no part of this appeal that her Honour failed to have regard to any “important considerations” in reaching her conclusion. Nor is it suggested that she had regard to any consideration which was unimportant or irrelevant.
Her Honour then turned her attention to the question of the contact the children would have with their father if they continued to reside at B and the fact that so doing would mean that the father’s “role in their lives – as distinct from their relationship with him – would inevitably be different because of the absence of ready accessibility to their school and to the many things they might become involved with in the future”. These factors her Honour considered to be “of central significance” and to “weigh against [the mother] remaining in [B] but returning with the children to live in Sydney”.
Ultimately, her Honour concluded that:
86.Both parents have put their perspective and it is understood that a decision such as must be made here can bring considerable disappointment and may seem unfair and wrong to the one who does not achieve the result urged. But, ultimately, a decision consistent with the best interests of the children has to be made. When all the evidence is reviewed and weighed, I have come to the conclusion that the children should remain living with their mother who should be permitted to continue living in [B]. The scales tip in that direction, in my assessment, because the likely advantages for the children from that arrangement and the disadvantages to them in not doing so outweighs the advantages and disadvantages of the children being returned to live in Sydney.
The Grounds of Appeal
Ground 7
Senior Counsel for the father first addressed Ground 7 of his client’s Second Further Amended Notice of Appeal. That ground provided:
7. That her Honour erred in finding that Dr [Q] gave evidence that if the appellant’s behaviour was accepted to be as alleged by the Respondent, “that behaviour of that kind would be a reason for limiting their exposure to it by limiting contact”.
The “nub” of the complaint raised by this ground was accordingly that the evidence, including the evidence of Dr Q, suggested that contact between the parents needed to be limited, rather than contact between the children and their father, and that the trial Judge had misunderstood Dr Q’s evidence in that regard.
Senior Counsel for the father referred to the trial Judge’s conclusion that the conduct of the father was “behaviour from which they [the children] need protection” and to her acceptance of Dr Q’s “observation under cross-examination that behaviour of that kind would be a reason for limiting their exposure to it by limiting contact”, and submitted that the trial Judge had misunderstood Dr Q’s evidence in relation to this topic.
The Court was referred to a number of passages in the transcript of the trial, commencing with Dr Q’s written report, which became an exhibit in the proceedings before the trial Judge. Senior Counsel for the father particularly relied upon the following passage from Dr Q’s report:
I noted this seeking out of her father [by the child [H]] for comfort, despite being in the care of her mother, demonstrates that she has a very strong attachment relationship with her father.
Reliance was also placed upon the following passage from Dr Q’s report:
[H] would probably cope quite well with a shared care regime but [the mother] wonders whether [the father] can manage that and continue with his work because he is also quite obsessed with work. [T] copes at present, she is a very easy child but [the mother] also worries whether [the father] could cope with her physically. He probably needs help from [A] and [L] and they probably don’t want to be involved in that kind of care.
Reference was then made to the following passages in Dr Q’s report:
a)[H] does not have the maturational capacity to express wishes that reflect her best interests and [T] is an infant and can only express herself behaviourally. However, both children exhibited behaviours that indicated a strong attachment to both parents.
b)It is difficult to assess [T’s] attachments because she is functioning at a level where she is still somewhat indiscriminate in her attachment relationships. She appears to be attached to both parents. She was very relaxed and seemed happy with both parents and with the extended family on both sides.
c)It is not yet clear whether [T] will be able to make up for the developmental delay she manifests at the moment. She has a serious medical condition but the prognosis for that is good. The combination of being a very heavy child and not very mobile and perhaps having some developmental delay is a very challenging situation for any parent and is particularly so for [the father] who has some physical disability. I had concerns about his physical capacity to cope with the two children and certainly he would need some assistance. He has no limitation in terms of meeting their emotional and intellectual needs.
d)[The father] impressed as a mature and worldly man yet the behaviours reporting by the maternal family, especially the sending of the toilets as birthday gifts, suggested very immature and perhaps vindictive behaviour. If the report of his behaviour provided by [the mother] and her family are to be relied upon, it appears that [the father] has significant personality problems. These are not impartial reports and must be read in that context, but they certainly suggest a severely narcissistic and obsessional personality who would have an excessive need to be loved and admired and to be in control of relationships and who, when these needs are frustrated, can behave in an impulsive, aggressive and threatening manner.
Reliance was also placed upon the following passage:
In my view the ideal outcome would be for [the mother] to reside in Sydney so that the children might have a generous amount of contact with their father. However, his proposal for shared care is in my view not realistic in terms of his physical capabilities. An optimal situation would be one of [the mother] residing in Sydney and the children seeing their father twice each week perhaps for an afternoon in the midweek and two days and an overnight on the weekend, with the assistance of a full time carer (either his sister or a nanny).
In the course of referring us to this passage, Senior Counsel for the appellant fairly clarified that the reference to “the weekend” was at all times understood to be a reference to mean “the alternate weekend” as opposed to every weekend.
Dr Q’s supplementary report, which also became an exhibit before the trial Judge, was relied upon by Senior Counsel for the father, and in particular where it was stated that:
This information does not alter my opinion as expressed in my original report. As I commented then, it may be the case that the allegations made by the mother and her family about the father’s behaviour, especially at changeover and also at the hospital on some occasions, are reasonably accurate and in that case certain conclusions might be drawn about his personality. In the alternative, their characterisation of him may be prejudiced and it may be that his own family and friends give a clearer picture of his personalty and adjustment.
I still have some reservations about [the father’s] physical capacity to care for the children but it is not my area of expertise to go far in commenting on this and it may be a matter for a rehabilitation expert.
[The father’s] proposal for a shared care arrangement would require the mother to reside in Sydney. If she were to do so, which in my view would be optimal, I would recommend that the father have alternate extended weekend contact and a mid week visit in the second week, as outlined in my original report, rather than the six/eight day shared care plan that he has proposed.
Senior Counsel for the father also referred the Court to a number of passages in the cross-examination of Dr Q. In the course of cross-examination by Counsel for the father, Dr Q said:
[H] was outside and could be heard crying. She’d injured her knee lightly and wanted to return to [the father] in my office. I noted this seeking out of her father for comfort despite being in the care of her mother demonstrates she has a very strong attachment relationship with her father.
Having referred Dr Q to the passage in her report which we have set out earlier in relation to the “strong attachment relationship” of the child H to the father, Counsel for the father at trial suggested:
“It’s the case, isn’t it, that attachment so far as possible should be maintained?”
to which Dr Q replied:
“Yes”
Reliance was placed upon an exchange between Dr Q and Counsel for the father in the following terms:
If [T] is not exposed to her father in the frequency that you suggest, is it likely that she will not form the type of relationship that [H] has formed with her father?---Yes, it is likely that she won’t form the same kind of relationship.
The Court was also referred to the statement emerging during the course of cross-examination of Dr Q that “the optimal arrangement would be some way in which the children see their father every week and preferably, if it were possible, twice in a week”. The word “optimal” thus assumes some significance for the purpose of this challenge.
Senior Counsel for the father then referred the Court to the passages of the trial Judge’s judgment in which the father’s “bad behaviour” was chronicled. It was not submitted that the findings of fact there detailed had not been reasonably open to the trial Judge, although the father had, as her Honour’s reasons make clear, asserted quite different versions of a number of those events, but rather that the trial Judge had afforded such “bad behaviour” disproportionate significance having regard to the fact that Dr Q had been made aware of the allegations made by the mother and her family, the substance of which the trial Judge clearly accepted, that such conduct was largely “confined” to the period from June to November 2005 and was submitted to have been mitigated by the stresses under which the father, and all family members, were at the time labouring and the assertion that much of the father’s conduct could be seen as a response to “somewhat provocative behaviour” by or on behalf of the mother. In essence, it was thus submitted that Dr Q had maintained her recommendation despite the allegations made against the father.
The Court’s attention was fairly directed to paragraph 46 of judgment, in the course of which the trial Judge referred to the “considerable body of unchallenged evidence presented in his [the father’s] case which runs counter to the sort of picture that emerges from some of his dealings with the mother and her family”.
However, although not expressly referred to by Senior Counsel for the father, as earlier seen her Honour added:.
47.All of this is positive affirmation for [the father] that stands uncontested. Yet it seems to me the evidence attracts two comments. First, while all of the witnesses acknowledged awareness of suggestions about aggression, abuse, narcissism and the like, that was expressed in general terms. No-one indicated any awareness of the particular actions of [the father] over these past months that incontrovertibly did occur, as discussed above. Secondly, it may readily be accepted that none of the witnesses have experienced behaviour of the kind generally described, and it is highly probable none have experienced behaviour of the particular kind [the mother] and her mother related here. But then none of them are his former partner/spouse and co-parent and thus have never had to negotiate with [the father] a significantly changed relationship arising from a separation which is beset by disagreement about future arrangements for children. Mr [G] makes the point on his behalf that the conduct occurred in a fairly narrow period, between June and November, and of course that is borne in mind. By the same token, there has not been just one or two ill considered incidents; there have been a series of actions that demonstrate a preparedness to engage in offensive and intimidating behaviour that seems to be quite reckless as to the impact it might have on others.
There is little scope for doubting that the trial Judge was aware of each of the potentially “mitigating” factors which Senior Counsel for the father stressed in this appeal.
Turning to paragraph 78 of the trial Judge’s judgment, it was submitted that the conclusion that contact between the children and the father should be limited could only, in the circumstances, turn upon the oral evidence of Dr Q. Necessarily, we will examine this paragraph in detail later in these reasons.
Senior Counsel for the father then again took the Court to Dr Q’s cross-examination. Reliance was placed upon the following exchange:
Ask you to assume for the purpose of this question – is it not the case that if frequent contact between the parents is going to be abusive and unpleasant, then frequent contact is not going to benefit these children? ---Not if it’s frequent contact between the parents, no.
Well, there’s going to be frequent contact between the parents on contact changeover. You can assume that. And if that’s the case, it is not better that the contact be less frequent?---Well, there are also ways of avoiding the parents having any contact with each other when changeovers are fraught as between the parties. There are other ways of facilitating the changeover.
Reliance was also placed upon the following exchange during the course of cross-examination of Dr Q by Counsel for the mother:
What are the implications – again making the assumption that her Honour accepts the account of the maternal family – the implications for the children of the behaviour which the father displays towards the mother and her family?---Well, I think that’s very damaging to the children because really it’s kind of like being in a domestic violence relationship, which is very harmful to the children.
Finally, reliance was placed upon the following passage in the cross-examination of Senior Counsel for the father:
So for these children, can I suggest it’s more important that their mother stay well because their father isn’t behaving well? – If it’s the case that he’s behaving that way, then it may be better for her that she minimises her contact with him as much as possible, yes.
That’s even more the case, is it not, having regard to the fact of [T’s] illness? – Well, yes.
In relation to [T’s] illness, if we factor that into the equation and if for the purpose of this question you accept that the mother has given evidence, as has members of her family, that there is support available to her in caring for [T] and [H] in [B] and the mother has given evidence that there is no such support available to her in Sydney, does that not even more suggest that for her to be an optimal parent she needs to be in [B]? – Well, it’s optimal for her. I will accept that.
Well, in relation to these children, having regard to [T’s] illness, isn’t that a fairly important aspect? – Yes.
Although not relied upon by Senior Counsel for the father, the conclusion of that exchange was relied upon by Counsel for the mother. To provide a better context for understanding Dr Q’s evidence, and to avoid needing to repeat ourselves when referring to the submissions on behalf of the mother, we set out the balance of the cross-examination of Dr Q, which in fact concluded Dr Q’s evidence:
Because it’s not sufficient to say, is it, doctor, that for all children it would be a really wonderful thing if they could see their father twice a week? – Yes.
We have a child here who is hospitalised at the drop of a hat and a mother who has to cope with being in hospital with that very sick child and having somebody else to look after the child who’s left behind, and can I suggest to you that that’s a factor which almost outweighs the optimal situation of the children seeing their father up to twice a week? – Well, in the case you describe that if the father’s behaviour has been as described, then yes, I would agree with you in that case.
HER HONOUR: I didn’t get the last part of your answer. If his behaviour---? – If it is the case that the father has been behaving as has been suggested by the maternal family, then I would agree.
MS REES: I have nothing further. Thank you, your Honour.
HER HONOUR: Thank you very much. You are free to leave. Thank you for coming? – Thank you.
It was submitted that, properly understood, Dr Q’s evidence did not provide support for the trial Judge’s conclusion that the children’s “exposure” to “behaviour from which they need protection” justified limiting contact between the children and their father.
The trial Judge was accordingly said to have been only entitled to limit contact between the father and mother within the context of contact changeovers.
Senior Counsel for the father provided the Court with a “summary of affidavit evidence setting out assertions of unpleasant behaviour when the children were present”. Given the thrust of the submissions on behalf of the father, and concession, sensibly made in our view, that the trial Judge’s findings with respect to the father’s “bad behaviour” had been open to her, referring to the material referred to in this document does not advance matters for present purposes.
Nothing to which we have been referred in the submissions to the trial Judge by Counsel for the father at the conclusion of the trial, or which we have discovered for ourselves, advances the father’s complaint in this appeal.
On behalf of the mother it was submitted that Dr Q’s evidence was “consistent with the finding” of the trial Judge.
Reliance was placed upon the following exchange, part of which we earlier quoted, during Dr Q’s cross-examination by Counsel for the mother:
You were asked some questions by Mr [G] about the benefits of frequent contact. Can I put this proposition to you, doctor: if the behaviour by [the father] towards [the mother] is as she describes? --- Yes.
Ask you to assume for the purpose of this question – is it not the case that if frequent contact between the parents is going to be abusive and unpleasant, then frequent contact is not going to benefit these children? ---Not if it’s frequent contact between the parents, no.
Well, there’s going to be frequent contact between the parents on contact changeover. You can assume that. And if that’s the case, is it not better that the contact be less frequent? ---Well, there are also ways of avoiding the parents having any contact with each other when changeovers are fraught as between the parties. There are other ways of facilitating the changeover.
It makes it fairly difficult though, doesn’t it, to facilitate changeovers on the sort of basis that you’re talking about, that is, not only at weekends but during the week, if the parents are unable to have a civil interaction?---It’s more difficult, yes.
What I’m really suggesting to you, doctor, is that there are benefits to these children of their parents coming into contact less frequently having regard to the behaviour between them?---I can certainly – yes, the way things have been in the past, yes.
It will be apparent that there is some overlap between this evidence and that relied upon by Senior Counsel for the father, albeit its significance is suggested to differ.
Another passage also relied upon by both Counsel, albeit with quite different emphasis, was that earlier quoted from the evidence of Dr Q in cross-examination, as follows:
What are the implications – again making the assumption that her Honour accepts the account of the maternal family – the implications for the children of the behaviour which the father displays towards the mother and her family? – Well, I think that’s very damaging to the children because really it’s kind of like being in a domestic violence relationship, which is very harmful to the children.
In oral submissions, Counsel for the mother directed the Court’s attention to the following portion of the trial Judge’s reasons:
74.…emphasised the children’s need at this age and stage of their development to have close and frequent contact with both of their parents. That was identified by Dr [Q] in her report where she used the words ‘ideal’ and ‘optimal’ in her initial report: [‘In my view the ideal outcome would be for [the mother] to reside in Sydney so that the children might have a generous amount of contact with their father.’ She adds, however, that [the father’s] proposal for shared care [as it then was] is not realistic in terms of his physical capabilities and she continued: ‘An optimal situation would be one of [the mother] residing in Sydney and the children seeing their father twice each week perhaps for an afternoon in the midweek and two days and an overnight on the weekend with the assistance of a full time carer (either his sister or a nanny.
Counsel for the mother then referred the Court to the concluding portion of Dr Q’s cross-examination which we have earlier set out.
It was submitted that there had been a “rounding up” of Dr Q by Counsel for the mother in the course of that cross-examination, a permissible interpretation of Dr Q’s evidence having been that the “optimal situation” of the children seeing their father twice each week was not achievable if, as the trial Judge found, as was conceded to have been open to her, the father’s behaviour “has been as described”.
The submissions of Senior Counsel for the father are superficially attractive, and appear to gain support from the evidence in cross-examination of Dr Q in relation to the impact on the benefit to the children of the parties of contact if “frequent contact between the parents is going to be abusive and unpleasant”.
The submission also appears to gain support from Dr Q’s evidence in response to the suggested importance of the mother remaining “well because their father isn’t behaving well” that “If it’s the case that he’s behaving that way, then it may be better for her that she minimises her contact with him as much as possible”.
It is instructive to consider the context in which these answers emerged. Dr Q was asked:
Ask you to assume for the purpose of this question – is it not the case that if frequent contact between the parents is going to be abusive and unpleasant, then frequent contact is not going to benefit these children? ---Not if it’s frequent contact between the parents, no.
Dr Q was then asked:
Well, there’s going to be frequent contact between the parents on contact changeover. You can assume that. And if that’s the case, is it not better that the contact be less frequent? ---Well, there are also ways of avoiding the parents having any contact with each other when changeovers are fraught as between the parties. There are other ways of facilitating the changeover.
It is reasonably clear that Dr Q was suggesting that contact between the children and a parent ought not be limited simply because the parents coming into contact with each other at contact changeovers was likely to be “abusive and unpleasant”.
Dr Q gave evidence that:
And if it is the fact that [the father] has behaved in the ways that [the mother] has described towards her, isn’t it even more important that the children have a parent who’s functioning as an optimal parent?---Yes.
She also said:
So for these children, can I suggest it’s more important that their mother stay well because their father isn’t behaving well?---If it’s the case that he’s behaving that way, then it may be better for her that she minimises her contact with him as much as possible, yes.
The focus of these questions was the mother’s “functioning as an optimal parent”. Whilst perhaps more directly relevant to the issue of residence, we are not persuaded that the topic was unrelated to the issue of contact. In any event we do not believe that either party’s case before this Court is significantly impacted by that evidence.
The passage which is particularly instructive for the purpose of this challenge is the following:
What are the implications – again making the assumption that her Honour accepts the account of the maternal family – the implications for the children of the behaviour which the father displays towards the mother and her family?---Well, I think that’s very damaging to the children because really it’s kind of like being in a domestic violence relationship, which is very harmful to the children.
The trial Judge clearly accepted this evidence as her Reasons for Judgment make clear:
It is notorious and needs no expert evidence to conclude that children’s healthy development will be enhanced if their love and respect for a parent is maintained intact and not undermined. [The father’s] attitude towards the children’s mother and some of his behaviour towards her, on occasions in their presence – which I accept to have been variously rude, obstructive, uncooperative, loud and insulting – has put the children’s well-being at risk. As Dr [Q] commented, if the reports of his behaviour are accepted [and they are] it constitutes a risk to the children akin to the impact on them of exposure to domestic violence which is also notoriously well known and needs no elaboration. I accept it is behaviour from which they need protection and I also accept as sound her observation under cross-examination that behaviour of that kind would be a reason for limiting their exposure to it by limiting contact.
It is reasonably apparent that, as the trial Judge, as she was entitled to, had accepted the “account of the maternal family” in terms of the “behaviour which the father displays towards the mother and her family”, the factual basis of acceptance of Dr Q’s expert opinion evidence that the situation would be “very damaging to the children” and be “kind of like being in a domestic violence relationship, which is very harmful to the children” was established. That conclusion provided a logical foundation for limiting contact between the children and their father (See Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705). That is the basis upon which her Honour limited contact to less than would otherwise have been “optimal”, as her reasons make clear.
This approach was quite consistent with the following evidence of Dr Q in cross-examination:
"And if it is the fact that [the father] has behaved in the ways that [the mother] has described towards her, isn't it even more important that the children have a parent who's functioning as an optimal parent?---Yes."
Even if Dr Q had regarded the husband's behaviour as limited in impact to the question of arrangements for contact handovers, the trial Judge was not bound to so limit its significance. We appreciate that this observation does not directly address the question of whether the trial Judge misconstrued the impact of Dr Q's evidence but having regard to what we have just said, we do not think that her Honour did so.
Moreover, whilst the concluding portion of Dr Q’s evidence is less than entirely clear, the exchange earlier quoted between Counsel for the mother and Dr Q and the learned trial Judge’s question seeking clarification of that evidence provides further support for concluding, as we do, that it was reasonably open to her Honour to conclude as she did in relation to the limitation of contact and Dr Q's evidence about that.
Whilst other interpretations of the evidence may have been open to the learned trial Judge that is not the test. We are not persuaded that her Honour “misunderstood” Dr Q’s evidence or that any aspect of the exercise of her discretion in that regard, or any step in the process of exercising that discretion has been shown to have been erroneous. We thus reject this challenge.
Ground 1
Senior Counsel for the father then urged Ground 1 of the Second Further Amended Notice of Appeal upon the Court. That Ground provided:
1. That her Honour erred in failing to take into account as a relevant fact the provisions of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 which was to become operative as and from 1 July 2006.
It was fairly submitted on behalf of the father that Counsel at trial (in late 2005 and February 2006) had not sought an adjournment of the proceedings to enable the amendments to Part VII of the Family Law Act1975 (“the Act”) which became effective on 1 July 2006 to govern the final determination of the proceedings. It was also conceded that Counsel at trial had said nothing by way of submission or otherwise to the learned trial Judge in relation to the anticipated amendments to Part VII of the Act.
On behalf of the father it was submitted that “the legislation having reached that stage” (ie. having passed through both Houses of Parliament), “although not reached its operative date, was not law but made clear the intent of the Parliament and a change in focus in many respects that was to become the law as and from 1 July 2006”. It was submitted that although “It is not the appellant’s case that her Honour was obliged to determine the case pursuant to the terms of the legislation which was not yet operative, but rather that those relevant matters flowing from the new legislation, the terms of which were then known, were proper factual matters for her Honour to have regard to pursuant to s.68F(2)(l) of the Act as it stood at the time of her Honour’s judgment”.
With great respect to Senior Counsel for the father, how her Honour was supposed to have “regard to” the provisions of Part VII of the Act as they would become from 1 July 2006 was never made clear. We struggle to understand how a trial Judge could have “regard” to the “new” provisions of Part VII of the Act without applying those provisions and determining the case in accordance with them, notwithstanding that they had not become law and that Section 68F(2) clearly remained the law which governed the proceedings before her.
The thrust of this challenge, as Senior Counsel for the father frankly confirmed, is that the decision of a trial Judge may be rendered erroneous by a subsequent amendment to the Act. There was, fairly, no suggestion that the trial Judge had failed to correctly apply the provisions of Section 68F(2) of the Act, or that Section 68(F)(2) of the Act did not govern the proceedings when they were determined. That being so, we struggle to understand how her Honour could have decided the case in accordance with both the law as it was and the law as it was to become.
The argument for the father proceeded in reliance upon the following passage in the judgment of Dawson J in Harris v Caladine (1991) FLC 92-217 at 78,486.
A hearing de novo may be contrasted with an appeal stricto sensu and an appeal by way of rehearing. In an appeal stricto sensu the question is whether, upon the material before the tribunal below, the conclusion which was reached was correct. An appeal by way of rehearing involves the rehearing of the matter as at the date of the appeal, but upon the evidence called before the tribunal below, subject to a power to receive further evidence. On an appeal by way of rehearing the rights of the parties must be determined by reference to the circumstances, including the law, as they exist at the time of the rehearing. But an appeal by way of rehearing does not call for a fresh hearing as does a hearing de novo; the appeal court does not hear the witnesses again. See Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd., at pp 619-620; Quilter v. Mapleson (1882) 9 Q.B.D. 672, at p. 676; and Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan, at pp. 107-111.
Reliance was also placed upon the following passage in the judgment of McHugh, Gummow and Callinan JJ in CDJ v VAJ (1998) FLC 92-828 at 85,448:
Appellate jurisdiction in the strict sense is jurisdiction to determine whether the order of the court below was correct on the evidence and in accordance with the law then applicable. In contrast, the Full Court of the Family Court must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal.
Reliance was also placed upon the judgment of Gaudron, McHugh, Gummow and Hayne JJ in Allesch v Maunz [2000] HCA 40; (2000) FLC 93-033 paras 20 -23; in which their Honours said:
20The nature of the appeal to the Full Court is to be discerned from s 93A(2) of the Family Law Act1975 (Cth) (“the Act”), which was considered by this Court in CDJ v VAJ [(1998) FLC 92-828; 197 CLR 172] and in DJL v Central Authority [(2000) FLC 93-015; 74 ALJR 706; 170 ALR 659] and, also, from s 94 of the Act. Section 93A(2) provides that, subject to s 96, which is concerned with appeals from courts of summary jurisdiction:
“…in an appeal the Family Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence upon questions of fact, which evidence may be given by affidavit, by oral examination before the Family Court or a Judge or in such other manner as the Family Court may direct.”
21Section 94(1)(a)(i) [of the Family Law Act1975] provides that, subject to s 94AA, which is not presently relevant, an appeal lies to a Full Court of the Family Court from “a decree of the Family Court, constituted otherwise than as a Full Court, exercising original or appellate jurisdiction … under [the] Act”. And s 94(2) provides:
“Upon such an appeal, the Full Court may affirm, reverse or vary the decree or decision the subject of the appeal and may make such decree or decision as, in the opinion of the court, ought to have been made in the first instance, or may, if it considers appropriate, order a re-hearing, on such terms and conditions, if any, as it considers appropriate.”
22The majority in CDJ v VAJ proceeded on the basis that an appeal under s 94(1) of the Act [Family Law Act 1975] is an appeal by way of rehearing. That is undoubtedly correct. So much is to be discerned from the terms of s 93A(2), in particular its conferral of power to receive further evidence. That is not a power possessed by appellate courts whose jurisdiction is confined to appeals in the strict sense and whose function it is simply to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given. And an appeal under s 94(1) is, as s 93A(2) indicates, to be distinguished from an appeal under s 96 which is a hearing de novo.
23For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand.
It was submitted that this Court must, for the purpose of determining the challenges to the trial Judge’s decision made prior to the commencement of Part VII of the Act in its current form, apply the provisions of the legislation as it now is and that, doing so, her Honour having not directed her attention to the question of “time sharing” (which the law at the time of her judgment did not require of her), could be seen to have erred. If correct, this proposition has potentially far reaching consequences.
There is little doubt that a “change in the law” resulting from judicial decisions subsequent to delivery of judgment by a trial Judge can enliven appellate intervention. The “relocation” decisions of the Full Court in the light of decisions of the High Court in recent years are an example of how a change in the “law” as it is clarified by appellate Courts subsequent to delivery of a first instance judgment can result in otherwise unappealable decisions being overturned. There is, we perceive, a fundamental distinction between changes in the law of that kind and a “change in the law” as a result of amendments to the statutory provisions which govern proceedings in the Court. The former is really a change in the interpretation or expression of the law to the effect that the new interpretation is then taken to be what the law always was.
The learned authors of Halsbury’s Laws of Australia suggest (at 385-500) that “There is a presumption that Parliament intends all statutes, except those which are declaratory, or related to matters of procedure, to operate prospectively and not retrospectively unless the language used plainly manifests in express terms or, by clear implication, a contrary intention. So unless a contrary intention is shown, a statute will not be construed as taking away or altering the incidents of accrued rights the title to which consists in facts or events which have occurred before its enactment.” (See also Acts Interpretation Act 1901 (Cth) s 5; Maxwell v Murphy (1957) 96 CLR 261 at 267; [1957] ALR 231; (1957) 31 ALJ 143 per Dixon CJ)]
Although not so crudely expressed, in reality, if successful, the challenge embodied in this ground means that the provisions of Part VII of the Act as they commenced on 1 July 2006 have retrospective effect on appeal to this Court but only prospective effect at first instance. We have been referred to nothing in the legislation to indicate an intention that the provisions of Part VII as they now are were intended to have such retrospective effect. On the contrary, the terms of the Family Law Amendment (Shared Parental Responsibility) Act 2006 contain clear indications that the amendments were not intended to have retrospective effect.
Schedule 1, Part 2, section 43 of the Family Law Amendment (Shared Parental Responsibility) Act 2006 provide:
1) Section 60CC of the new Act applies to orders made on or after commencement.
2) The amendments made by items 13, 29 and 30 of this Schedule apply to parenting orders made on or after commencement.
3) The amendment made by item 14 of this Schedule applies to proceedings under Part VII, whether or not the proceedings were initiated before commencement.
4) The amendment made by item 15 of this Schedule applies to directions given under subsection 62G(2) of the new Act on or after commencement.
5) The amendments made by items 16 and 16A of this Schedule apply to parenting plans made on or after commencement.
6) The amendment made by item 22 of this Schedule applies to parenting orders made on or after commencement.
7) The amendment made by item 25 of this Schedule applies to parenting orders made on or after commencement. This includes, without limitation, a parenting order that varies an earlier parenting order, whether the earlier parenting order was made before or after commencement.
8) Sections 65DAA, 65DAB, 65DAC and 65DAE of the new Act apply to parenting orders made on or after commencement.
9) The amendment made by item 33 of this Schedule applies to a court proposing to make an order mentioned in subsection 65G(1) of the new Act, whether or not the proceedings to which the order relates were initiated before commencement.
Section 44 provides:
Grounds for discharging or varying parenting orders
The amendments made by this Schedule are taken not to constitute changed circumstances that would justify making an order to discharge or vary, or to suspend or revive the operation of, some or all of the parenting order that was made before commencement.
We glean nothing from the “items” in respect of which the date of “commencement” of the amendments assumes significance advances any suggestion of retrospectivity.
Section 60CC of the new Act applies to orders made on or after “commencement”. It is common ground that “commencement” of the amending legislation was 1 July 2006. It is clear from other parts of Section 43 that the provisions of Part VII as amended by the Shared Parental Responsibility amending legislation were intended to apply to orders made after the “commencement” of those provisions (see Section 43 (8)).
Throughout Section 43 repeated reference is made to provisions of the amending legislation which apply to “parenting orders made on or after commencement”. The explanatory memorandum to the legislation provides further support for concluding that the provisions of the “old Part VII” governed proceedings in which orders were made prior to the commencement of the “new Part VII” on 1 July 2006.
A constructionist approach to the amending legislation poses substantial hurdles to acceptance of the challenge embodied in this ground. It is significant that nothing submitted on behalf of the father really engages with or disputes the principles to which we have earlier referred. In reality the ground implicitly asserts that the provisions of the legislation amending the Act, and general principles of statutory construction do not apply to the present appeal because of the nature of an appeal to this Court. That contention draws support from the judgments of the High Court to which we have been referred and have earlier set out.
The authorities refer to appeals “in the strict sense”, appeals by way of “re-hearing”, and appeals by way of “hearing de novo”. There is no doubt that an appeal to this Court is an appeal by way of “re-hearing”. None of the authorities we have considered involved, directly or indirectly, the current controversy.
Whilst logic and commonsense militate against acceptance of the contention of Senior Counsel for the father, the various judgments of the High Court clearly, consistently and unequivocally state that the law governing an appeal to this Court is the law as it exists at the time of hearing the appeal. The question then arises as to what was the law as it existed at the time of hearing (and presumably deciding) the present appeal. The submission of Senior Counsel for the father that Part VII of the Act in its present form is the “law” as it now exists is deceptively simple.
The “law” applied by the Family Court is that which is embodied in the provisions of the Family Law Act 1975. The authorities, and logic, leave little room for doubt that Part VII of the Act in its current form would govern either a re-exercise of discretion by this Court or a new trial before a single Judge of the Court in the event of the appeal succeeding. We are not persuaded however that Part VII of the Act in its current form governs the appeal itself. Part VII of the Act provides a legislative basis for the exercise of original jurisdiction with respect to the matters therein referred to. Part X of the Act confers jurisdiction on this Court with respect to appeals, including against decisions under Part VII at first instance. Nothing in either Part suggests that the amendments to Part VII of the Act impact or were intended to impact, upon Part X.
As we have earlier noted, the common law has clearly and consistently regarded the retrospective operation of statutory provisions as exceptional, as have the principles of statutory construction. Nothing in the legislation by which Part VII of the Act was enacted evinces a legislative intention to make the changes to Part VII thereby provided apply retrospectively. On the contrary, the provisions of the amending legislation which we have earlier recorded, evince the intention that only cases determined (or commenced) at first instance after the commencing date of the legislation be determined in accordance with what was to become the “new” Part VII of the Act. It is clear, and has been conceded, that the express legislative intention is that cases determined at first instance before the commencement of the “new” Part VII of the Act be determined in accordance with the provisions of the “old” Part VII. The matters to which we have referred give rise in our view to a clearly implied legislative intention that the “old” Part VII of the Act applies to appeals to this Court against orders made under that Part, and is the law as it currently “exists” for the purpose of this appeal.
We are thus not persuaded that not applying the provisions of the “new” Part VII of the Act for the purpose of determining whether there is substance in the grounds of appeal the appeal (as opposed to re-determining the proceedings if substance is found in those grounds) constitutes a failure to apply the law as it exists at the time the appeal is heard, and determined. This challenge accordingly fails.
Ground 21
Senior Counsel for the father addressed the Court in support of Ground 21 of the Further Amended Notice of Appeal. That ground provided:
21.That her Honour erred in making findings favourable to the Mother in relation to the Mother’s financial position, when the onus was on the Mother to establish her financial position in circumstances that she asserted she lacked relevant financial means and the ability to afford to live in Sydney, and she proffered no relevant evidence of her financial position at all.
In support of this ground it was submitted that:
At all relevant times a live issue in proceedings was a question of whether the respondent mother had the financial capacity to provide accommodation for herself and the children in Sydney or nearby should the father’s application succeed.
It was then submitted:
Evidence of the respondent’s financial circumstances comprise a matter which are peculiarly within her knowledge. Where the issue exists and the respondent failed to provide any evidence (which would have been met assumedly by the simple act of completing a Financial Statement or equivalent) it is submitted that the appellant was entitled to the benefit of an inference.
It was further submitted:
Looked at another way, it is difficult to comprehend, in a forensic sense, how he could admissibly prove any proper picture of the respondent’s financial position.
Despite the lack of evidence on the topic counsel for the respondent submitted (AB3:642 line 32) that a move to Sydney would involve the respondent living in a city “where she cannot earn an income and where she would be dependent on social security for the support of herself and the children”.
Senior Counsel for the father asserted that the mother’s “financial circumstances remained unexplained”, with particular reference to Exhibit 21, a copy of which was supplied to us, and to some evidence given by the mother in cross-examination. It is apparent from Exhibit 21, an “ASIC Personal Name Extract” that the mother had held, and in some instances continued to hold positions in a number of corporations, and, in a number of instances, to beneficially own shares in those corporations. The value of those corporations was not apparent from Exhibit 21, nor were the rights attaching to the shares held by the mother or their value.
In brief cross-examination the mother revealed an absence of knowledge of her interest in those shareholdings. The ASIC Personal Name Extract was then tendered without objection and Counsel for the father moved on to other matters, without ever suggesting or otherwise raising the prospect that the mother would or could in the future benefit from those interests.
It was submitted on behalf of the father that:
Contrary to drawing an inference to the appellant’s favour the trial judge concluded, on facts that are unspecified, that the appellant “would have no accommodation and no present means of being able to afford any” in dealing with the appellant’s submission. As to the lack of evidence her Honour infers an obligation to cross examine on facts that the respondent left unstated and draws an adverse conclusion from the failure.
The trial Judge’s finding to which Senior Counsel for the father referred preceded her Honour recording that Counsel for the father at trial “made the point that she (the mother) presented no detail about her financial situation, but then she was not challenged about her lack of means when the opportunity arose”.
Her Honour then dealt with other issues and concluded that requiring the mother to return to live in Sydney with the children would occasion “inevitable unhappiness and discontent” and “expose her (the mother) to the risks discussed by Professor [A] whose professional support, I accept, could be no substitute for the support of her family in so many ways”. That finding has not been challenged in this appeal. Nor has it been suggested that, save to the extent to which we have referred, the mother was in any way “challenged about her lack of means”.
As a reading of the transcript makes clear, beyond asking a few questions of the mother about the entities referred to in the ASIC Personal Name Extract and tendering the document, nothing more was asked of the mother.
The thrust of the challenge embodied in this ground is that as the mother had asserted that she could not afford to live in Sydney, an evidentiary onus was cast upon her to demonstrate that such was the case. It was submitted that the mother had failed to discharge that onus and that, as such, the trial Judge’s conclusions of which the father complains were not reasonably open to her.
Before considering whether in fact there was a “live issue” about the mother’s ability to accommodate herself and the children in Sydney, we observe that the father’s own case was that he would acquire “a house in which she (the mother) and the children would live”. Whilst perhaps equivocal, it is difficult to regard such a stance, particularly in an acrimonious relationship between adults as this undoubtedly was at the time of trial, as consistent with the father asserting that the mother’s capacity to provide her own accommodation was a “live issue”.
We are not persuaded that the issue was in fact “live”. In her affidavit of evidence-in-chief the mother said:
79.I do not have accommodation available to me in Sydney. The unit owned by my parents is used by the whole family and is not available. I cannot afford to buy or rent accommodation.
80.I currently work two days a week for the family. In light of [T’s] illnesses it is unlikely I would find such forgiving or family friendly employers in Sydney. Without the job, I will be unable to afford to live especially in Sydney with its inherent costs. I would be at my wits end as I have always worked, except when [H] and [T] were small.
It was conceded that Counsel did not object to either of those paragraphs and that they were thus properly before the trial Judge. In fairness, it may be, as was submitted by Senior Counsel for the father, that as the matter was at the time in the “children’s cases project”, it could not have been objected to. Even accepting that argument, the fact remains that at no stage did Counsel for the father at trial actually test the mother in relation to her knowledge of the cost of accommodation in Sydney, her enquiries about such accommodation, or any consideration of her financial capacity to support herself in Sydney.
With great respect, and a measure of hindsight, if the mother’s capacity to accommodate herself in Sydney was considered by the father to be a “live issue” at trial, nothing to which we have been referred provided, other than what was clearly raised in submissions on behalf of the father after evidence in the trial concluded gave any indication to the mother or those advising her, or the trial Judge, that such was the case. On the contrary, as we have noted, it might reasonably be presumed, assuming the offer to have been bona fide, which the trial Judge accepted it to have been, that the father would not have made the offer of accommodation had he believed the mother to have had the capacity to secure her own accommodation in Sydney. We thus find this challenge lacks merit.
Whilst not abandoning any of the remaining grounds, Senior Counsel for the father did no more than invite the Court to have regard to the written submissions made in relation to them. This we have done. We have also considered the submissions in relation to those grounds contained in Counsel for the mother’s written submissions. Nothing emerging from that exercise persuades us that any of those grounds of appeal has merit.
Conclusion
No ground of appeal having found favour with this Court, the father’s appeal will be dismissed.
Costs
It was sensibly, and realistically, conceded by Senior Counsel for the father that if, as has transpired, the appeal was dismissed little could be said in opposition to the order sought on behalf of the mother namely that the father pay the mother’s costs of and incidental to the appeal.
No submissions seeking costs other than on a party/party basis were made to us. That is the appropriate basis of an order for costs in this appeal.
I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 24 May 2007
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