Vanetti & Harrison
[2023] FedCFamC1A 180
•23 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Vanetti & Harrison [2023] FedCFamC1A 180
Appeal from: Vanetti & Harrison [2023] FedCFamC1F 563 Appeal number(s): NAA 190 of 2023 File number(s): MLC 11706 of 2019 Judgment of: TREE, KARI & CAMPTON JJ Date of judgment: 23 October 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – PROPERTY – Where the mother appeals from final parenting and property settlement orders – Where these reasons are given in short form given the appeal raises no question of general principle – Procedural fairness – Appeal from discretionary judgment – Where no error of the kind identified by House v The King (1936) 55 CLR 499 is identified by the grounds – Where no ground of appeal succeeds – Appeal dismissed – Where each party should bear their own costs. Legislation: Family Law Act 1975 (Cth) ss 102NA, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36
Cases cited: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
De Winter v De Winter (1979) 23 ALR 211
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Number of paragraphs: 78 Date of hearing: 28 September 2023 Place: Heard in Melbourne, delivered in Cairns The Appellant: Litigant in person Counsel for the Respondent: Mr Thompson Solicitor for the Respondent: Melbourne Family Lawyers Solicitor for the Independent Children's Lawyer: Victoria Legal Aid (did not participate) ORDERS
NAA 190 of 2023
MLC 11706 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS VANETTI
Appellant
AND: MR HARRISON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
TREE, KARI & CAMPTON JJ
DATE OF ORDER:
23 OCTOBER 2023
THE COURT ORDERS THAT:
1.The appeal be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vanetti & Harrison has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE, KARI & CAMPTON JJ:
INTRODUCTION
On 12 July 2023, for written reasons then delivered, the primary judge made final parenting and property settlement orders in these proceedings. Pursuant to those orders, Mr Harrison (“the father”) has sole parental responsibility for the health and education of the parties’ two children, but otherwise parental responsibility is to be equally shared with Ms Vanetti (“the mother”). There were further orders that the children live with the father, but spend four nights per fortnight with the mother, together with day time each alternate Sunday. Arrangements for special days were also ordered.
As to the property proceedings, the primary judge was of the view that a 90/10 split in the father’s favour of the only substantive asset, comprising the father’s superannuation, was just and equitable, which in practical terms saw an amount of $20,000 allocated to the mother.
From those orders the mother appeals, which appeal is opposed by the father (the Independent Children’s Lawyer not being funded to appear at the appeal).
For the reasons which follow, the appeal will be dismissed. As the appeal raises no question of general principle, these reasons are in short form (s 36(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).
BACKGROUND
The father is presently 46 years of age and is a professional. The mother is presently 44 years of age and employed in administration.
The parties met in Country D (where the mother then lived) in 2012, married there in June 2013, and moved to Australia later that year. Their eldest child, X, was born in 2014, making him presently nine years of age. Their youngest child, Y, was born in 2017, making him presently six years old.
The parties separated in April 2019, thereby concluding a relationship of about six years duration.
These proceedings were commended by the mother in October 2019, with the trial of them commencing before the primary judge in February 2022, and ultimately concluding on 19 August of that year, having occupied some ten days of hearing.
THE APPEAL
The mother’s Notice of Appeal contended some 13 grounds, however, as filed, ran in excess of 100 pages. In large part that was because, inexplicably, her Notice of Appeal included the entire 80 pages of the primary judge’s reasons, together with other extraneous material. However it was also because, in addition to stating the grounds of appeal, the mother also, in effect, included under each ground a summary of her argument in relation to it.
Perhaps because of that irregular drafting style, the mother’s Summary of Argument, whilst only 15 pages in length, did not in fact summarise her arguments in relation to the grounds, and in fact, barely referred to any ground at all. Rather it proceeded as some kind of running critique of selected aspects of the primary judge’s reasons. We shall only have regard to it to the extent it is germane to the grounds of appeal.
At the outset, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 (“House”) must be established. There, the majority of the High Court said:
…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…
Grounds 1 and 8 raise concerns of, or akin to, procedural unfairness. We shall deal with those grounds first (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 581, 611-612 and 634).
Ground 1
This ground provides:
1.On the ground of substantial injustice: lack of written submission made by a lawyer.
(As per the original)
To understand this ground, a little more background is required, which is conveniently provided in the primary judgment as follows:
6.At the conclusion of evidence on 5 August 2022, I declined a request from counsel to restrict final submissions to written submissions. I directed that each party, including the independent children’s lawyer, would have 45 minutes to make closing submissions. Accordingly, all counsel were on notice as to how the available court time would be divided, including allowing for questions by me. I did not make a ruling that there could be no written submissions whatsoever, just that I would not confine the parties to submissions in writing.
7.Final submissions were made on Friday 19 August 2022 commencing at 10:00am and concluding at about 4:00pm. Counsel for the father and the independent children’s lawyer each prepared submissions in writing to which they spoke. The submissions were very well prepared and, in the case of the independent children’s lawyer, exemplary as to content and obviously taking many more hours in preparation than her grant of legal aid would have allowed. As mentioned later in these reasons, the mother’s written submissions were received subsequently. The mother’s s102NA representation ceased on the completion of the hearing. The mother wrote her own submissions. English is not the mother’s her [sic] first language, there are grammatical errors but I am confident that I understand the gist of what the mother intended to convey.
…
18.From Sunday 21 August to Thursday 25 August 2022, the mother sent numerous submissions which she had written herself, some amended submissions and an addendum. The submissions run to a total of about 90 pages. Ultimately, the other parties consented to the mother being able to rely on the submissions referred to (Exhibits “W14” and “W15”). Exhibit “W14” is in two parts. The first part has a headnote and is titled “Closing Submissions of the Wife”. The second part has a headnote and is titled “[The primary judge] Prior Her Final Orders”. I directed that the mother’s submissions be identified and could be relied upon and that “no further communications or attachments will be read, considered, placed on the court file or shown to her Honour”. On 31 May 2023 the independent children’s lawyer and the father’s solicitors stated in correspondence that they had no objection to the mother also being able to rely on certified extracts of intervention order proceedings dated 11 November 2022 which had been sent to my Chambers by the mother in the intervening period. The effect of allowing the certified extracts of the intervention order proceeding was to inform the court that each parent had withdrawn his/her application in the magistrates’ court and there was no intervention order in force between them.
(Emphasis added)
Under this ground, the mother now appears to contend that the primary judge ought, by a means which is unclear, have ensured that she had legal representation to write her submissions. However that is not an invariable incident of procedural fairness, which generally only requires each party to be given an adequate opportunity to be heard and to present their case (Kioa v West (1985) 159 CLR 550 at 582). Whilst it appears inexplicable that the mother’s funding pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”) was not extended to include closing submissions, here, legal representation to make submissions was not necessary to afford the mother a proper opportunity to present her case.
This ground fails.
Ground 8
This ground provides:
8.On the ground of substantial injustice due to a lack of cultural safety and cultural competence in this legal proceeding.
(As per the original)
The challenge raised by this ground appears to be, if not actually a contention of procedural unfairness, then akin to it. Particularly it is said that the mother ought to have been afforded a interpreter for the entirety of the trial, not just for the last day when she was self-represented.
However counsel for the mother did not ever raise the need for an interpreter with the court (nor indeed did her solicitors). Parties are generally bound by the conduct of their case at trial (Metwally v University of Wollongong (1985) 60 ALR 68 at 71 (“Metwally”)). In any event we are not satisfied that the lack of an interpreter for the first nine days of the trial in any way denied the mother a fair trial, given that she was represented by counsel.
This ground fails.
Ground 2
This ground provides:
2.FINAL COURT ORDERS On the ground of NOT the Best interest of the children. I appeal to the majority of the orders the Judge made as listed.
N.1,2, 5,6, 7,,10,11,12,15,18 , 24,25,26,27,29,30,(As per the original)
As argued, this ground was simply an invitation for us to reach a different conclusion as to what orders were in the best interests of the children. Such a challenge is not a proper basis to seek to impugn a discretionary judgment (House).
This ground fails.
Ground 3
This ground provides:
3.On the ground of substantial injustice: HEALH RISK OF THE CHILDREN.
(As per the original)
The challenges advanced under this ground focus upon the primary judge’s refusal to restrain the father from taking X to see a specialist, Dr L.
Again a little more background is needed to understand why this is a focus of the mother’s concerns, conveniently found at [28]–[30] of the primary judge’s reasons as follows:
28.It is common ground X has special needs. The mother says, and the father agrees, “[X] suffers from [developmental delays], and [a medical condition], and has been on medication for this condition since 2016. Following an autism assessment [in] September 2019, [X] has been diagnosed with intellectual disability he is required to attend a specialist developmental school”. The father adds “[X] was diagnosed with an intellectual disability in the mild range, as per a ‘Cognitive and Adaptive Behaviour Assessment Report’ dated […] September 2019 by psychologist [Ms Q]. After this diagnosis, he underwent, at [the mother’s] insistence, a ‘Multidisciplinary Developmental Assessment’ at the [R Hospital] [in] September 2019 that confirmed this diagnosis”. The mother disputes having received a copy of Ms Q’s Assessment until she saw it annexed to the father’s Affidavit filed in the Children’s Court in November 2019. It was the father’s evidence that the mother attended the appointment for the assessment and was aware of the report, however he could not specifically recall providing the report to the mother but believed he had done so. The Mother seeks to restrain the father from continuing to engage Ms Q as X’s psychologist.
29.A copy of the R Hospital Report is in evidence and the conclusions and recommendations are set out at page 12 of the report as follows:
1. [X] needs a specialist educational setting and should start school in 2020. The specialist school closest to his home address is [S School].
2.In light of [X's] history of [a medical condition] and his intellectual disability further genetic investigations may identify an underlying genetic disorder to account for his presentation. We do not have access to test results from investigations done by [Dr T] privately. Any test results would be important to have on the [R Hospital] medical file especially as [X] often presents to the emergency department here.
3. Occupational therapy and speech therapy is valuable. More frequent therapy sessions than what is currently occurring are not required.
4. No other therapies are indicated. Each parent suggested a number of other therapies on top of the current input […]. None is appropriate or necessary at this time.
5. Parenting support for each parent should focus on uniting them in providing consistent and predictable interactions with [X]. The conditions of the Order made in May stipulated that both parents must receive all reports and session notes from each therapist and from medical practitioners so both are informed and can cooperate in implementing professional recommendations. This is vital for [X]. Consistency across all environments is most important for helping [X] to develop to his potential.
6. Long term supervision by a paediatrician and a paediatric [specialist] is recommended.
30.X sees numerous health professionals. They are described by the father as:
1. The [U Medical Centre], GP clinic, although [the mother] has been taking the children to another GP clinic (the [V Medical Centre]), despite my objections;
2. His [specialist], [Dr L], although [the mother] has sought an Order that I be restrained from facilitating the children’s attendance on him (her Order 17);
3. His speech and occupational therapists;
4. [Specialist, Dr T]; and
5. Child Psychologist, [Ms Q].
(Emphasis in original)
Later, at [240]–[246] the primary judge said:
240.The mother seeks injunctions against the father from continuing to engage Dr L and Ms Q to treat X. They are two of the five health professionals who treat X. Dr L was on affidavit in support of the father’s case and Ms Q was appropriately identified although no evidence was called from her by either parent or the independent children’s lawyer, most likely due to her therapeutic role in treating X. I referred to Ms Q report earlier in these reasons at [29].
241.If the mother seriously challenged these practitioners, it was incumbent on her counsel at trial to require Dr L for cross-examination and Ms Q to give evidence and to squarely put to each why he/she should not continue to treat X. That was not done.
242. The mother has not met Dr L.
243.The mother states that she has drafted a Notice of Risk to be filed in the event the court does not enjoin the father from continuing to use Dr L as X’s specialist. Likewise for Ms Q. The difficulty is that these proceedings will be over and there will be no matter in which to file a Notice of Risk. If the mother brings a further application in relation to Dr L, it will need to rely on grounds other than those mentioned in her current suite of submissions. I have not mentioned all of the mother’s objections but I have had regard to them.
244.The mother’s explanation for her counsel not requiring Dr L for cross-examination was there was insufficient time. The mother states, incorrectly (“W14”):-
Unfortunately, the limited allocated time for each barrister of 45mins did not make possible to crossexamine all the subpoenas materials related to [Dr L] which I am going to comments below; within the severity that [Dr L] has not been called eventually as the witness by the father for cross-examination despite his role in since 2019 up to know and despite the father is seeking order to the appoint [Dr L] as the specialist of our children. Of course, it would have been very embarrassing confrontation in Court due his medical conduct as a doctor with specific involvement which is nothing to do with health management of children to come in Court for the cross-examination.
The risk of wellbeing of of my children under a possible health management of [Dr L] is due to the manipulative behaviour of the father and the decision of [Dr L] to be accountable of the father's allegations and using his "power abuse" as doctor to make recommendations of custody since CP legal proceeding in the favour of the father. Both behaviour of the father and [Dr L] are not child focus but medical legal focus.
…
246.The height of the mother’s criticisms is that what Dr L says in certain correspondence is wrong. She does not admit of the possibility that negative descriptions of her parenting capacity and behaviour by Dr L in correspondence and notes may be justified. Those opinions of Dr L were not tested…
(Emphasis added)
It can therefore be seen that, far from the primary judge “refus[ing] to make [Dr L] appear in court for cross examination” (mother’s Notice of Appeal filed 13 July 2023, p.2), the mother’s counsel did not seek to cross-examine him. In any event, apart from the injunction sought in relation to him, Dr L’s evidence was not of any materiality to the proceedings.
Perhaps under this ground, but even if not advanced nonetheless, is a complaint that the grant of sole parental responsibility to the father for medical issues relating to the children was not in their best interests, as he had a history of manipulating medical practitioners who engaged with the children for forensic purposes, and not genuine health reasons.
There are certainly examples in the material of the father seemingly trying to, and perhaps succeeding in, suborning the children’s therapists to his cause. However not only did the primary judge not make any finding of improper involvement of health practitioners by the father, but it is plain beyond argument that it would simply be impossible for these two parents to engage in any joint decision making in relation to the children’s health. It would be a recipe for endless, bitter and intractable conflict, and could never be in the best interests of these children.
No error of the kind identified by House is discernible in relation to the failure to relevantly restrain the father, and this ground necessarily therefore fails.
Ground 4
This ground provides:
4. On the ground of substantial injustice due to a lack of diagnosis
(As per the original)
As argued, this ground was a challenge to the primary judge’s acceptance of the evidence of the single expert psychiatrist, Dr C, to the effect that the mother had a particular psychiatric diagnosis.
At [169]–[170] the primary judge said:
169.Dr C diagnosed the mother as presenting with symptoms of an Adjustment Disorder with Anxious Mood in the context of a vulnerable personality style with Borderline Features. He opined:
1. Despite the passage of time and ongoing treatment, [the mother] continues to exhibit at a deep level a sense of loss in regard to the relationship with [the father] and hope for a family life with him and the children here in Australia.
2. It is obvious that [the mother] cannot rest until such time as the children are returned to her, and as she has indicated, she looks forward to the forthcoming proceedings which from her perspective she believes her case will be proven, that is, that [the father] is not a good father, has been unfaithful to her, and does not have the ability to care for the boys as only she does as their mother.
3. Whilst to her credit [the mother] has continued her attendance upon her Psychologist, that treatment has not achieved the goal of assisting her to resolve the issues between [the father] and herself, develop true insight, and to move forward emotionally.
4. The Psychologist’s depiction of [the mother] as resilient is not in keeping with my two assessments of her and I consider little has really changed in her deeper unresolved issues with [the father], evidenced by the litany of correspondence to him of a highly obsessive, unrelenting quality involving emotions of hurt, anger and jealousy.
5. [The mother’s] quest to have residence of the children represents at some level her unresolved and desperate attempt to restore a sense of control in her life. The fact that the children continue to live with their father obviously eats away at her inner being, causing her much angst, distress and emotional pain.
6. Having assessed [the mother] on this occasion, it appears there has not been any real progress in developing true insight.
7. In that respect as noted by [Ms B], whilst [the mother] displayed a warm, responsive and energised style of engagement with the boys, such a view was a ‘snapshot’ and not the full picture. Noting that [the mother] presented as lacking the necessary insight into the impact of her mental health on the children, [Ms B] expressed concern about her ability to sustain a long term nurturing relationship with the children or support [the father] in his role as the primary caregiver without significant therapeutic input.
8. [Ms B] further commented that if the diagnosis made by myself is accurate, ‘a prominent symptom associated with such a diagnosis for [the mother] is volatility and instability in the relationship coupled with poor emotional regulation, often triggered with a fear of rejection and abandonment with deeply ingrained enduring behaviours manifesting as inflexible responses to a broad range of interpersonal and social situations’, noting further that [the mother] presented as lacking the necessary insight into the impact of her mental health on the children.
9. [Ms B’s] comments as to treatment are particularly relevant and pressing, ‘Treatments for [the mother’s] diagnosis are specific and require a considerable effort and commitment to change.’
10. As such I consider the treatment [the mother] has undergone, whilst supportive, has not brought about the change required and would suggest that [the mother] be referred to a Therapist and/or program specifically designed to assist individual with Borderline Personality Disorders, that being Dialectical Behavioural Therapy.
11. On this occasion I have not assessed [the father] nor the children, and the report needs to be read accordingly.
170.I accept the further evidence of Dr C which, I note, is particularly relevant to deficiencies in the mother’s parenting capacity and I give it weight.
Dr C was not cross-examined by counsel for the mother, or indeed at all. It was therefore well open to the primary judge to accept his evidence, and otherwise no error of the kind required by House is established by her doing so.
This ground fails.
Ground 5
This ground provides:
5.On the ground of substantial injustice due to the version of the facts on Her judgment not corresponding to facts and contents as for subpoenas materials of Child Protection and Police and my Affidavit narrative.
(As per the original)
The arguments pressed under this ground focussed upon contended errors as to the date and circumstances surrounding the mother leaving the former matrimonial home, and a further contended error in the primary judge describing the mother as a permanent resident of Australia, when she says she is an Australian citizen.
Neither error – if they be errors – could possibly be viewed as having any materiality to the outcome (De Winter v De Winter (1979) 23 ALR 211 at 217 (“De Winter”)).
This ground fails.
Grounds 6 and 7
These grounds provide:
6.[FF CHILDCARE] NARRATIVE On the ground of substantial injustice due to the version of the judgment not corresponding to facts as contents of my Affidavit and Child protection.
7.On the ground of substantial injustice: False testimony [Ms M]
(As per the original)
The mother argued these grounds together, and it is convenient for us to likewise deal with them.
Relevantly, the primary judge’s reasons state:
80.In late 2018 child protection received an afterhours report alleging that the mother had dragged X down the stairs at childcare. The report was made by Ms M, the then current manager of FF Childcare.
81.Ms M swore a witness statement as to the incident involving X and the stairs dated 4 August 2022 which was marked exhibit “H19”. She deposes:-
[In late] 2018, I was sitting at my desk which is directly in front of the staircase. As I turned around, I saw [X] running up the stairs. I went to get him as it led to the staffroom. His mother […] said she would get him. As she ran after him, I then witnessed her pull his arm. As she pulled his arm, he fell forward hitting his head and landing on his back upside down (legs in the air). She then dragged him down the stairs until reaching the bottom. She pulled him by the arm to get him up on his feet. At this point she was still holding his arm tightly so he was not able to move (he tried to run off again). I reported this to child protection after I had seen this incident happen. [The mother] left the building. At approximately 5:45pm she called and emailed the centre with a photo of her son’s back with scratches and bruises. Attached is a copy of the photo. She asked me how this happened. I said words to the effect “that occurred when I saw her drag the child down the stairs”, to which she replied with words to the effect “okay, don’t worry’.
My colleague [Ms HH] who was sitting next to me also witnessed the incident. She made a statement to DHHS. I sent both my statement and [Ms HH’s] statement to DHHS with the photograph of [X]’s back.
82.Ms M’s evidence was that it was approximately 5:15 or 5:30pm that she contacted DHHS to report the incident, prior to having received the email from the mother. Attached to her witness statement provided to DHHS were two file notes dated late 2018. One being a file note prepared by Ms M and the other prepared by her second in charge, Ms HH.
83.According to Ms M the photo of X attached to the statement provided to DHHS shows three vertical lines on the child’s back, thought to be caused by his back coming into contact with the safety treading on the stairs of the childcare centre. Ms M provided detail under cross-examination. She observed that X was dragged on his back during which his head was upside down and facing the stairs and that his body twisted. According to Ms M, X was dressed in a t-shirt and jeans at the time. The witness could not recall how long the incident took or whether the child’s t-shirt was pulled up during the incident.
84.A close up image of the childcare centre stairs was taken during the hearing and tendered into evidence and marked exhibit “ICL18”. I find that the photograph of the edge of the stair is consistent with the injury being inflicted by the mother in the manner alleged by Ms M. The mother maintained the bruise to X’s back was sustained before she picked him up from childcare. Child protection closed the case at intake.
85.Ms M was required for cross-examination by counsel for the mother and was cross-examined on the ninth day of the trial. Under cross-examination Ms M maintained that her personal views of the mother had not clouded her account of the stair incident or her reports to child protection. Indeed, her evidence was that she “remained professional” despite being fearful of the mother.
Her Honour then chronologically reviewed a number of other child protection notifications before returning to Ms M at [94]–[96] as follows:
94.Ms M was cross-examined about her relationship with the paternal family. In particular, with the paternal grandfather, Mr KK. Ms M’s evidence was that she had a “professional relationship” with the paternal family. Counsel for the mother and Ms M shared the following exchange:-
Well, you became friendly in the sense that you would email Mr – or certainly the grandfather, [Mr KK], at times, wouldn’t you?---No.
So there’s no emails between – is it your evidence that there’s no emails between you and [Mr KK]?---Maybe there was one but there wasn’t numerous ones, like - - -
And is that – maybe one. Did you ever chat with him about [Region LL] or something like that or holidays in [Region LL]?---I don’t think so.
Did you ever express very warm feelings towards that family, that they were a lovely family or some sort of congratulatory words?---No.
95.An email trail showing emails between Ms M and the paternal grandfather was tendered and marked exhibit “M14” by the consent of all parties notwithstanding they were not put to the witness. The email trail which spanned four pages was friendly. However, it ultimately concluded with a sign off by Ms M of “Sending you all lots of love and well wishes”. I find that last sign off to indicate more than a strictly professional regard by Ms M for the father’s family members. I accept that Ms M understated the warmth of her regard for the father’s father but I find that her evidence about X’s injury on the stairs to be accurate.
96.I accept Ms M’s evidence of the mother’s behaviour. Specifically, I do not accept the submission by counsel for the mother that Ms M was motivated to portray the mother in an unfavourable light because she does not like the mother or is aligned with the father’s side of the family. Ms M impressed me as professional and conscientious.
It is difficult to ascertain quite what the contended error of the primary judge advanced by these grounds comprises. Ultimately it appears to be simply a contention that Ms M’s evidence should have been rejected. However it was not glaringly improbable or contrary to incontrovertible evidence (Fox v Percy (2003) 214 CLR 118) and thus the challenge must fail, as do these grounds.
Ground 9
This ground provides:
9.N.1: On the ground of substantial injustice: discrimination, restriction based on biases and not the objectivity of the fact.
N.2 On the ground of substantial injustice: depravation to my children’s right to have a relationship with their grandparents, aunty, relative, their [European] background.
N.3 On the ground of substantial injustice: lack of cultural competence and cultural safety.
(As per the original)
The challenge at the heart of this ground relates to the primary judge’s refusal to let the mother travel with the children to Country D. At [268]–[272], her Honour said:
268. The mother’s submissions contain the following;
Reply to the opposition of Travel to [Country D] by the father with my children versus the travel order I seek to go to [Country D].
First of my travel to [Country D] is not intend to be a simply a concession of 14 days to go to [Country D] on holiday with my children but most important what is behind the travel to [Country D] is deep meaning: the judge recognizes the right of the children to maintain mindful relationship with the their grandparents which play an important role in the children live and development and education. The children's right to maintain and have relationship with their grandchildren is safeguard by the Art. N.8 of the European Court of the Human Right.
In regard to the opposition of [the father] do not travel to [Country D] and give him some reassuring below:. however I totally horrified about the ICL written submission that is not in the best interest of the chidlren go to [Country D] based on evidence. Which evidence she were referring too? Are my parents toxic toward [the father] and the children? are my parents rang the children health professional smearing [the father] that he has been changed for FV against [X]? This is not my case Dear [Ms AK] and I am sure she agrees with me . Also my children have grown up to be well entertain on the plane with movie, drawing, music including a break which is stop over.
Therefore, I am express my disappoint that the ICL of my children [...] have the courage to submit to the judge that it's not in the best interest of my children to [Country D] to see their grandparents and family.Reassurin9...filmlanations for Sh.J_art:
1. based statements are past statements what its matter are facts no word, I did return to Melbourne. I said "I did not return to Melbourne" due to an argument between husband and wife and its common knowledge that something we say something that we don't want to say/do.
2.I am aware of the consequence if I don't return to Melbourne: imprisonment for 3 years or more. I definitely want to go back to Melbourne as I definitely I want to go to [Country D] as the for holiday with my family [X] and [Y].
3.In regard to the concern that I don't cope with the children "for the extended period of time. " I Have plenty of support in [Country D] from my parents and my sister's family, relatives for the extended period of time as [the father] knows. Its hypocrite have this fake concern when I stayed in [Country D] for three months when we lived together, and back then [the father] were ok: now make excuses.
[As per the original]
269.I have not heard any adverse evidence in relation to the maternal grandparents or maternal family members. The fact that the father required the maternal grandmother to supervise the mother’s time with the children after separation indicates that the father has confidence in the maternal grandparents.
270.The difficulty with the children travelling solely to Country D with the mother (without the father) is that I assess that the mother does not have the requisite capacity to care for the boys emotionally or physically. Whilst her family in Country D may assist her with the physical care of the children in Country D, there will be no check and balance against her consistently negative view of the father, as she’s likely to impart that view to her family and to the children. Ms B has assessed the exposure of the children to the mother’s behaviour in this regard as very harmful.
271.The mother’s family have no authority over the children. Even if they perceived the mother to be acting inappropriately, they cannot step in and relieve her from her day to day care of the children. The mother’s family cannot protect the children from the mother’s harmful behaviour. Ms B opines that the mother’s time with the children in Australia should be restricted because of the mother’s behaviour. It follows that 14 or so uninterrupted days in the care of the mother, without any input or counter balance provided by the father, is not tenable.
272.Whilst the father and the independent children’s lawyer did not put into contention the possibility of the mother failing to return the children to Australia, I do harbour concerns that the children could be over held as a consequence of the mother’s perception that this decision is unduly adverse to her and that an outcome that accords with her perception of what is appropriate is not going to be available from this Court or in this jurisdiction.
(Emphasis added)
At [273]–[281] her Honour then addressed the Convention on the Rights of the Child, before concluding at [282] as follows:
282.The mother’s case falls outside the European Convention of Human Rights. It is probably assisted by the Convention and the right to life, survival and the child’s full development — physically, spiritually, morally and socially which, in my view, could incorporate a right for the child to enjoy his cultural identity at close quarters. However, the paramountcy of the child’s best interests, as provided in the Act, means that the right to access cultural identity must be consistent with the child’s best interests. In this case it is not. To put it bluntly, the children’s inability to go to Country D at this time is a direct consequence of the mother’s lack of capacity to parent the children in a way that is psychologically safe.
(Emphasis added)
The mother challenges the finding that she does not have the requisite capacity to parent the children whilst on holiday in Country D, but whilst that is a conclusion which we might not have reached if we were deciding the matter afresh, it does not speak of error of the kind identified in House and is thus not a proper basis for appellate intervention (Gronow v Gronow (1979) 144 CLR 513). The consequences of the children not being able to travel to Country D with the mother are indeed unfortunate (including but not limited to the children’s relationship with the maternal family and immersion in the mother’s European culture), but does not establish error. However, as the primary judge identified at [282] by her use of the words “at this time”, the concerns present at the time of hearing may be ameliorated with the effluxion of time.
This ground fails.
Ground 10
This ground provides:
10. On the ground of substantial injustice: inequality between parties
(As per the original)
On no view is this a proper ground of appeal, and we do not need to consider it further.
Ground 11
This ground provides:
11.On the ground of substantial injustice: lack of cultural competence and cultural safety.
(As per the original)
As argued, this complaint appears to really be that the primary judge did not require or permit X to attend Country D lessons. At [263]–[265] the primary judge said:
Country D Lessons
263.Another issue about which the parents cannot agree is whether X can commence Country D language lessons. Although not specifically seeking an order permitting the same, the mother deposed in her trial and during cross-examination that she wants to enrol X in Country D classes at the AJ Language School on Saturday mornings from 9:00 am until midday (with a break). Whilst the father maintains that he is supportive of X (indeed both children) learning about “the [Country D] language and culture”, the father and the independent children’s lawyer oppose X’s enrolment in Country D language classes as proposed by the mother. The independent children’s lawyer is concerned X’s enrolment in Country D language classes at this juncture would not be in his best interests (or in the interests of fellow participants) taking into account the evidence of the cognitive assessment of X prepared by Ms AH dated 12 January 2022 (and referred to above).
264.It was the mother’s evidence during cross-examination that she believes X can cope with attending the classes. The mother says that she has investigated the classes, however she is not sure how many children are in each class or how long the recess is during the class, and she “thinks” the classes cost $80 per term. The mother would like to ensure equal educational opportunities for both children.
265.Country D language tuition would be excellent if X could cope with the program. However, his teacher’s assessment set out above applies as much to Country D lessons as to mainstream school and [an extra curricular activity]. I am satisfied that the mother is well intentioned but that she is unrealistic about X’s ability to participate adequately in Country D language lessons at this time. This ruling does not preclude X from learning the Country D language or being immersed in Country D culture. It is open to the mother and her family to introduce, educate and foster his interest in all things Country D.
(Emphasis added)
The relevant assessment her Honour refers to in that extract appears to be that which she discussed at [258] as follows:
258.The mother was taken to a cognitive assessment of X titled, “Assessment for the Program of Students with Disabilities Report for Parents and Schools” prepared by Ms AH dated 12 January 2022. Of note, under the heading “School History and Current Presentation”, and relevantly to X’s proposed participation in overnight Scout camps, the Assessment states:
“[X’s] teacher stated he withdraws from class and social interactions when not interested or does not understand what is happening. He has temper tantrums and will kick and punch objects around him and will throw objects. [X] gets upset and cannot move on from the event that upset him. He will hide in spaces, rip branches, kick objects if he is upset and cannot have his way. He hits himself on the face when distraught.
He is easily distracted and has poor concentration skills….He will display his private parts in public e.g. urinating in public, showcasing his buttocks and thinking it is humorous…
…He can’t be let out of sight when on excursions and will need to be looked at when out on the yard in specialist classes. He will climb furniture, touch and kick objects insistently. He will run off on purpose…[X] needs to be supervised with knives, electrical items, and hot/cold taps in the presence of an adult. He engages in risky behaviou[r]s such as walking over other sitting on mat, doesn’t return to class after breaks, climbing onto high structures. He absconds from the classroom and doesn’t respond to being told to stop. He requires supervision to ensure his safety.
[X’s] teacher reported he requires assistance with wiping his bottom after toileting…He needs supervision when washing and reminders to wash with soap…
[X’s] teacher stated he requires modification of learning tasks by breaking tasks down into one step instructions and using visual aids…[X] has an Individual Education Plan where he requires frequent assistance and modifications…He needs one on one support within the classroom”.
The mother appears to contend that not permitting X to attend Country D lessons, because he could not cope with them, is discriminatory, as his inability to cope is derived from his disability. We do not need to consider that further, as plainly the primary judge’s focus was on X’s best interests, and it is clear that the primary judge was not satisfied that, at least presently (again a circumstance which may change with the effluxion of time), Country D lessons were so. That we might have reached the contrary conclusion is not a proper basis for appellate intervention.
No error in that regard is established, and this ground fails.
Ground 12
This ground provides:
12. Others Reason for appealing catchwords:
(As per the original)
It is very difficult to understand what this ground is focussed upon, and indeed, insofar as it relates to the parenting orders, despite our best endeavours, we have not been able to discern the errors seemingly contended for, save for the one matter as follows.
At [24] the primary judge said:
24.The parties separated in early 2019 when Victoria Police obtained an Intervention Order under state domestic violence laws against the mother and naming the father and the children as protected persons. The children have resided primarily with the father since separation and have spent regular and incrementally increased time with the mother. At the time of the trial, the operative order for the mother to spend time with the children was the Order made by Judge Riley on 10 June 2020. It provides for time during school terms and school holidays so that the mother spends time with both children from 12 noon to 8:00pm each Saturday and Sunday. Further, both boys spend time with the mother from the conclusion of school until 8:00pm each Tuesday and Thursday save that Y stays overnight with the mother on Tuesdays. The operative order provides for X and Y to spend time with the mother at Christmas time, on each of the boys’ birthdays, and at such further and other times as agreed between the parents in writing. It is common ground that, since Orders were made on 10 June 2022, the mother has not always availed herself of time consistently with the order in that she has chosen to for[e]go time so, she says, she can have some time for herself.
The mother appears to dispute that it was Victoria Police who obtained the Intervention Order, and indeed may dispute that there was an Intervention Order made at all. However, whatever the mechanism by which the mother was restrained from living in the family home, it is plain that in consequence the children have thereafter principally resided with the father. Any error as contended is therefore immaterial (De Winter).
As to the grounds challenging the property settlement orders, the only asset of value was the father’s superannuation. At [303] the primary judge noted:
303.The parties’ superannuation entitlements are set out in the father’s affidavit of 3 February 2022 at paragraph 106. He had a superannuation interest at the date of marriage about $58,815, at the date of separation about $122,600 and at the time of the hearing was about $201,770. The valuation of the father’s Superannuation Fund 1 is found at annexure “S29” of the father’s affidavit sworn 4 February 2022. There is a further interest, being a preserved Superannuation Fund 2 benefit of very little value. I was not addressed on the value of property under the catch all order. I regard it as being of some, but not much, value.
The mother contends that her contribution-based entitlement vastly exceeded 10 per cent. We are not satisfied that any error within the House prescription is established.
Lastly, the mother is critical of the terms of Order 29, which provided as follows:
29.That unless otherwise specified in these orders and save for family photographs including photos of or including the children and for the purpose of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of all other to all other property including motor vehicles (and including choses-in-action) in the possession of such party as the date of these orders unless otherwise specified in these Orders;
(b)monies standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is help and the proceeds of any joint bank accounts are to be divided equally;
(c)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(d)Insurance policies remain the sole property of the owner names therein;
(e)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(f)any joint tenancy of the parties in any personal estate is hereby expressly severed.
(Emphasis added)
Particularly she contends that in her evidence, she included a letter from her solicitors to the father’s solicitors dated 27 January 2021, which sought the return of items of personalty, including an iPad, hard drives and some clothing.
However the mother never sought any order to that effect (see, for example, the property orders sought by her at page 15 of her Case Outline filed 21 February 2022). As we have noted, parties are bound by the conduct of their case at trial (Metwally).
Of course, assuming the relevant items of property are in the father’s possession, basic human decency would require their return to the mother, but that does not establish error by the primary judge.
This ground fails.
Ground 13
This ground provides:
13. CONCERNS OF COURT EXPERTS’ REPORTS
(As per the original)
Under this ground, the mother argues seemingly two things. Firstly, she contends that necessary cross-examination of the two single expert witnesses was not undertaken by her counsel, such necessary questioning seemingly being to the effect that they were biased against the mother. We accept that there were likely sound reasons why no such cross-examination was undertaken, as the necessary foundation to allege bias is not evident on the material before us. This challenge is devoid of merit.
Secondly, the mother says that the primary judge erred by accepting the evidence of the Family Report Writer, Ms B, to the effect that the mother’s behaviour is harmful to the children.
At [174]–[175] the primary judge said:
174. In Ms B’s evaluation, she observed:
37. A relevant consideration at this point in time is determining how the time between the boys and their mother should proceed. The current schedule may have met the boys’ need to access a relationship with both parents post- separation whilst promoting their stability, however, a longer-term consideration is whether [the mother] can engage in an immersive parenting experience of [X] and [Y] that does not attract risk.
38. In support of a stepping up of time between the boys and [the mother], there is no information to suggest that increases in time between [Y] and his mother led to him being at great risk of direct harm. Overnight time was introduced approximately 12 months ago and this time period is a reasonable one in which to test arrangements. [Y] related warmly to his mother, letting her nurture him and guide his play. It may be that the developmental considerations for the boys are such that a differential approach to their parenting schedule is maintained. As was flagged in the earlier report by the writer, children with developmental delay are at much higher risk of being parented poorly and this is thought to arise in response to caregiver stress and fatigue.
39. It is also important to note that changeover on the days involving the childcare centre appears less eventful. The neutral, child-focussed territory may afford an emotionally safer space for the transition and opportunity for a higher level of independent oversight and an objective reporting mechanism. The difficulties reported in relation to changeover for [X] at 8:00 pm on a Tuesday evening (and both boys on Thursday) includes the disruptive effect on the boys’ need to settle for the evening as well as the increased likelihood of conflict between the parties at changeover. It is possible some of the noted distress can be attributed to foreseeable difficulties in the mechanics of the changeover. Fine-tuning those arrangements could decrease the likelihood of a disrupted experience and increase opportunity for time spent that involved nurturing tasks such as soothing at bedtime and routine tasks such as preparing for the school day. This normative experience could be of benefit to the children and if undertaken in small increments could become the basis upon which further increases in time occurred.
40. Support for a more cautious approach arises in relation to [the mother’s] lack of insight into the impact of her behaviour on the children’s wellbeing. Her unremitting critique of [the father’s] parenting and her competitive and combative approach to co-parenting is justified on “cherry picked” advice from protective authorities. On that unstable basis, [the mother] has set about demonstrating she is, as she says, the “superior” parent. This perception of superiority is not supported by information available at assessment and while [the mother] displays a remarkable energy and enthusiasm for [X] and [Y], her presentation is labile. As the observation revealed, her mood changes quickly when there is a loss of control over the setting and more so in [the father’s] presence. Using this example to extrapolate, [the father] observed concerns about the impact of [the mother’s] behaviour on the boys’ takes on greater significance.
41. The risk to the children in [the mother’s] care will be contextual; when able to focus on the task(s) at hand, attune herself to the boys’ needs and regulate emotionally, the risk will be mitigated, however, if she is overwhelmed by her parenting experience, pre-occupied with unresolved issues relating to [the father], or triggered by a threat to her mothering role, there is risk [the mother] will fixate on those issue to the detriment of the children. At this time [the mother] presents as fixated on the joint goals of demonstrating her bona fides as a better parent and [the father’s] flaws as the boys’ primary caregiver. In doing so she limits opportunity for change and for a less conflicted parenting experience for the boys. The writer indicated in her first report that [the mother] should access a specific type of treatment to gain greater self-awareness, insight and strategies to better manage her responses. Treatment options are contained in the recommendations. Substantial review of the parenting schedule should occur once [the mother] has fully engaged in the treatment specified and demonstrated a capacity for cooperative parenting.
42. The recommended schedule aims to provide continuity of care to [X] and [Y] in the care of their father and access to a relationship with their mother that promotes the more functional aspects of her parenting, whilst balancing the risks inherent in her parenting. The frequency of time spent occasions need to be reduced and changeover arrangements altered. Developmental changes for the boys are such that a reduction in frequency could be well-tolerated, and may in fact reduce the occasions of heightened stress arising from changeovers and the energy required to adapt to the contrasting styles of their parents.
175. I accept the further evidence of Ms B.
(Emphasis added)
It was well open to the primary judge to indeed accept Ms B’s evidence, and no error of a House kind is demonstrated by her doing so.
This ground fails.
OUTCOME
No ground of appeal succeeds. The appeal will be dismissed.
COSTS
In the event the appeal failed, the father sought his costs in the simply outrageous sum of $109,882.15. As but one example of why that sum is absurd, is the claim for $43,819.86 for reading the appeal book, all of which would have well been familiar to the father’s solicitors.
No cogent argument as to why costs should be ordered against the mother – whether in the sum claimed, or at all – was advanced by counsel for the father. His novel assertion that the mother’s conduct at trial somehow informs costs of the appeal needs only be stated to explain why it must be rejected.
We are not persuaded that the circumstances justify a departure from the usual position established by s 117(1) of the Act that each party ought bear their own costs.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Kari & Campton. Associate:
Dated: 23 October 2023
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