Walker and Sampson
[2011] FamCAFC 225
•1 December 2011
FAMILY COURT OF AUSTRALIA
| WALKER & SAMPSON | [2011] FamCAFC 225 |
| FAMILY LAW ─ APPEAL ─ CHILDREN ─ Parenting arrangements ─ Relocation ─ Best interests of child ─ Appeal against interlocutory orders of a Federal Magistrate ─ Not established that the appellant mother’s relocation was “urgent”, or in the nature of an “emergency” in any relevant sense ─ Where within the constraints which the evidence imposed upon the learned Federal Magistrate, of which her Honour was acutely aware, the “best interests” of the parties’ three children were considered and the findings of fact as were able to inform that consideration, have not been shown to have been other than reasonably open to the learned Federal Magistrate ─ Not established that the learned Federal Magistrate erred in accepting the expert opinion evidence of the family consultant or that her Honour placed “inappropriate” or excessive weight on that evidence ─ Where given the distance between the parents’ places of residence, the likelihood of a final hearing in January 2012, and the absence of any application by the mother for orders that she do so, that the learned Federal Magistrate’s failure to make any orders that the child spend time with the mother on an interim basis does not enliven appellate intervention ─ Not established that the learned Federal Magistrate erred in declining to defer determination of interlocutory proceedings until after the appointment of the Independent Children’s Lawyer ─ Appeal dismissed FAMILY LAW ─ COSTS ─ Where the appeal was wholly unsuccessful ─ Where the Court was not persuaded that the appellant mother’s financial circumstances militate against making an order for costs of the appeal ─ Where the Court had raised the utility of the appeal with Counsel for the appellant mother, notwithstanding which the appellant mother persisted with the appeal ─ Where the appellant mother’s appeal was an exercise in futility bordering on an abuse of the Court’s processes ─The appellant mother to pay the respondent father’s costs of and incidental to the appeal as agreed or assessed on a party and party basis |
| Family Law Act 1975 (Cth) Part VII |
| Allesch v Maunz (2000) 203 CLR 172 Bennett & Bennett (1991) FLC 92-191 Iris & Cohen (No 2) [2011] FamCAFC 120 |
| APPELLANT: | Ms Walker |
| RESPONDENT: | Mr Sampson |
| INDEPENDENT CHILDREN’S LAWYER: | Jennifer Boulton Solicitor |
| FILE NUMBER: | BRC | 8581 | of | 2009 |
| APPEAL NUMBER: | NA | 68 | of | 2011 |
| DATE DELIVERED: | 1 December 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Coleman, Strickland & Murphy JJ |
| HEARING DATE: | 31 October 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 26 July 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 819 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Wilson |
| SOLICITOR FOR THE APPELLANT: | Kathleen Dare & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Bunning |
| SOLICITOR FOR THE RESPONDENT: | Richardson McGhie |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Cameron |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Jennifer Boulton Solicitor |
Orders
That the appeal be dismissed.
That the mother pay the father’s costs of and incidental to the appeal as agreed or assessed on a party and party basis.
IT IS NOTED that publication of this judgment under the pseudonym Walker & Sampson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 68 of 2011
File Number: BRC 8581 of 2009
| Ms Walker |
Appellant
And
| Mr Sampson |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
introduction
By Notice of Appeal filed 23 August 2011 Ms Walker (“the mother”) appealed against interlocutory orders made by Federal Magistrate Cassidy on 26 July 2011 in parenting proceedings between the mother and Mr Sampson (“the father”).
The effect of the orders against which the mother has appealed was that, until the final hearing of the parenting proceedings, the child of the parties, Z, who was born in 2004, reside within 50 kilometres of the address at which the parties previously lived, and at which the father continued to live, near Brisbane in the State of Queensland. In lieu of that order, the mother sought to be permitted to relocate the residence of the child to the Blue Mountains in the State of New South Wales.
The father resisted the mother’s appeal and sought to maintain the orders of the Federal Magistrate. So did the Independent Children’s Lawyer (“the ICL”).
The proceedings will again be before the Federal Magistrates Court on 6 December 2011, at which time it is expected that dates will be allocated for the final hearing of the parenting proceedings.
material facts
The following matters emerge, uncontroversially for present purposes, from the Reasons for Judgment of the learned Federal Magistrate.
The dates when the parties commenced living together and married do not emerge clearly or consistently from the documentation. However, that in no way impacts upon this judgment.
There are three children of the parties’ relationship, X born in 1999, Y born in 2000 and Z born in 2004. The child Y has special needs. They remained living with the mother after separation.
In August 2009 the mother formed a relationship with Mr F who was then employed in central Queensland on a fly-in/fly-out basis. Mr F originally lived in the Blue Mountains, owned a home there and had previously worked in the Blue Mountains area.
In September 2009 the mother made an application to relocate to the Blue Mountains which the father opposed. The mother discontinued that application on 26 March 2010.
On 26 March 2010, at a time where both parties were legally represented, consent orders were made with respect to parenting and financial issues. At that time, and as at the date of the hearing before the learned Federal Magistrate, the father was living in the parties’ former matrimonial home near Brisbane. The mother was at the date of the consent orders, and for a period thereafter, living about 12 kilometres from the former matrimonial home.
Subsequent to the making of the orders on 26 March 2010, the child Y primarily lived with the father but spent time in the household of the mother. The children X and Z primarily lived with the mother but spent time in the father’s household. That arrangement continued until the end of 2010 at which time the mother unilaterally relocated the residence of herself and her children X and Z to the Blue Mountains in the State of New South Wales. The mother, Mr F, X and Z commenced to live in Mr F’s house. Mr F obtained employment in the Blue Mountains. The relocation of the children’s residence to the Blue Mountains was without the father’s consent.
The learned Federal Magistrate concluded that the best interests of all three children would be served by the child Z returning to live in the Brisbane area pending the final hearing of the parenting proceedings between the parties, which her Honour clearly intended would occur in early 2012.
In March 2011 the mother gave birth to W, the child of her relationship with Mr F.
the grounds of appeal
Ground 1
Ground 1 of the mother’s Notice of Appeal provided:
1.The learned Federal Magistrate erred in disregarding that the mother’s relocation was urgent, in the nature of an emergency, that it had been previously contemplated and considered by the parties, and that it was not a unilateral relocation.
Nothing to which we have been referred establishes that the mother’s relocation was “urgent”, or in the nature of an “emergency” in any relevant sense. At best, the evidence before the learned Federal Magistrate established that it was more convenient and financially advantageous to the mother to relocate to the Blue Mountains than to remain in Queensland. The complaint is somewhat disingenuous given that, rather than apply to the Court for orders permitting the child Z’s residence to be relocated away from the Brisbane region, on the asserted basis that the mother had an “urgent” need to relocate her residence, the application which gave rise to the proceedings before the learned Federal Magistrate was that of the father filed on 23 February 2011, which resulted from the mother relocating to the Blue Mountains.
The mother’s failure to make an application for permission to relocate Z’s residence away from the Brisbane region is more significant having regard to the fact that she had applied in 2009 to do so but, by the terms of the consent orders of 26 March 2010, abandoned that application.
In the circumstances, the learned Federal Magistrate’s exercise of discretion was not vitiated by any failure to have regard to the asserted “urgency” or “emergency” of the mother’s relocation. Her Honour was required to and did, assess the competing proposals by reference to such evidence as there was before her, and the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The complaint is also disingenuous in seeking to rely upon the relocation having “been previously contemplated and considered by the parties” in circumstances where, as is not in doubt, by the orders of 26 March 2010, the mother abandoned her application to relocate, which the father had opposed. This Court has not been referred to any evidence which establishes that the mother’s relocation of Z’s residence away from the Brisbane region was other than “unilateral”.
On behalf of the father, and inferentially the ICL, it was submitted that the learned Federal Magistrate had not erred in principle, or in the exercise of her discretion in relation to any of these issues.
Counsel for the mother also submitted in support of this ground:-
3.7In this case there was no consideration of whether it was reasonably practical for the mother to return to live in [the Brisbane area], her circumstances were not given adequate consideration. The best interest[s] of the child were not considered in terms of the practical consequences of what was now presented to her as a permanent relocation. Such considerations should have included factors such as the financial circumstances of the mother and her partner and the hardship on the mother if she were to return to Queensland. No evidence of any such practical considerations are evident in the Reasons. Further there is no consideration of the competing proposals as presented by the parents in light of what is in the best interest[s] of [Z] and yet a relocation order has been made.
The submission conveniently overlooks a number of matters of significance. Before the learned Federal Magistrate, the mother’s position was that she would remain in the Blue Mountains. The position of the father was that he would remain in the Brisbane area. The “practical consequences” of the parties’ positions were clearly understood by the learned Federal Magistrate. In the context of the interlocutory proceedings before her, there was no more that her Honour could have considered, or referred to, in relation to this topic.
The complaint in relation to the “hardship” on the mother if she were to return to Queensland overlooks the fact that the mother did not indicate to the learned Federal Magistrate that she would return to Queensland if, as transpired, orders were made that Z’s residence be returned to the Brisbane region.
Unsurprisingly, in the context of the competing interlocutory applications which were before the learned Federal Magistrate, there was no evidence in relation to the longer term implications of Z residing with his father in the Brisbane region or with his mother at the Blue Mountains, or any of the matters referred to in this submission. Those, and any “practical considerations” in relation to future arrangements for the parties’ children to spend time with each other, and with each parent, were simply not revealed by the evidence in sufficient detail to enable the learned Federal Magistrate to engage meaningfully with them.
The submission that there was “no consideration” of “best interests” is demonstrably unsustainable. Within the constraints which the evidence imposed upon her, of which her Honour was acutely aware, the “best interests” of the parties’ three children were considered. Such findings of fact as were able to inform that consideration, have not been shown to have been other than reasonably open to the learned Federal Magistrate. No error of principle contaminated that consideration. Neither reference to extraneous matters, nor failure to refer to relevant matters vitiated the exercise of discretion in relation to the consideration of the children’s best interests.
Her Honour was clearly aware of all of the limitations the evidence before her created in relation to each of the matters referred to in this complaint, as her Reasons for Judgment, and intention to provide a final hearing of the proceedings in early 2012 made clear.
This challenge lacks merit.
Ground 2
Ground 2 of the Notice of Appeal contains some eight separate complaints, the first five of which can for convenience be considered together. Those complaints provided:
2.The learned Federal Magistrate failed to consider the paramount principal [sic] of considering the best interests and welfare of the child [Z]:
(a)in making the decision to order that the child [Z] live with the father by placing inappropriate weight to the family report writer’s opinion that ruptured sibling relationships are generally thought to be repairable
(b)in failing to consider how the differences between the education system in New South Wales and Queensland and whether [Z]’s learning disability can be adequately addressed at the school in Queensland
(c)disruption to the child [Z]’s educational and social attachments
(d)the effect on the child [Z] of living with the father’s intended wife when this relationship is as yet untested and which suffered from uncertainly [sic] when the mother’s proposal is tried, tested and certain
(e)in failing to consider the effect of separating him from his position with his mother as full time primary carer, his older and younger siblings and the stepfather, which has been current for two years
The crux of these complaints is articulated in the following submission of the mother:
4.7There were no Reasons provided by the Federal Magistrate for justifying why the father should be preferred over the mother as the primary carer when the child had been in the primary care of the mother all of his life. The Magistrate [sic] stated she was unable to make findings on these matters until the trial. In the circumstances she should have preserved the status quo at least until the Independent Children’s Lawyer had been appointed and recommendations had been made as to the best interests of the child. This view is supported in Iris v Cohen (supra) at para 29
The better course would have been after ordering an independent children’s lawyer be appointed, to wait for the expert report and the first appearance of the independent children’s lawyer, prior to making interim orders.
Under the heading “The Relationship of the Children with Significant Persons” the learned Federal Magistrate relevantly recorded:
33.I certainly have to take into account that the siblings, [X] and [Z], have a relationship with each other that is relevant. I note that [Z] and [X] have always primarily lived with their mother. [Y], of course, is not in dispute in this matter. The mother accepts that she is to continue living with the father.
Nothing to which we have been referred demonstrates that any finding of fact there recorded was not reasonably open to the learned Federal Magistrate. Importantly, the learned Federal Magistrate clearly recognised that Z and X have always “primarily” lived with the mother and, have not been separated from each other for any lengthy or enduring period.
Under the heading “Effect of Any Change in the Children’s Circumstances” her Honour also recorded:
38.I have to take into account the effect of any change in the children’s circumstances. In this case I am satisfied that if I am to move any of the children back to the father, it could only be [Z]. [X] simply could not manage that sort of a change.
The learned Federal Magistrate then said:
39.So I am faced, then, with a situation where I may have to look at the effect of the sibling relationship. If I were to move [Z] to the father, what would that do and what concerns might that create?...
Reference was then made by her Honour to evidence given by the Family Consultant Mr P on 15 July 2011 in which Mr P said:
HER HONOUR: Yes. I will be struggling to leave them there, but, I mean, mum might decide that she doesn’t want to come back to Queensland, and I can’t make her, in which case I would probably, and I would ask you to comment on this, I would think very seriously about putting the little boy with dad straightaway. I understand that’s separating siblings, and that’s a bad thing to do usually, but if [X] has had this profound response, the little boy’s risk - family – relationship with the father might be at risk. I know separating siblings isn’t ideal but ‑ ‑ ‑
THE WITNESS: Yes, I – well, your Honour, if I – if I can say something. I – if you look at the evidence on sibling relationships, yes, it is – it’s thought to be a major protective factor in change, but there’s also good evidence to say that if you rupture or – or if you disturb a sibling relationship, providing that – again, a lot of it comes down to the capacity of each parent and to foster that, but sibling relationships are generally thought to be repairable, if you like, and they’re robust across time. Particularly in young – you know, younger children, preadolescent children. Now, I know [X] is 12. She’s - I – like you, I would be reluctant ordinarily to recommend siblings split, but in the overall goal or objective of the court, I would probably rate that as a lower concern ‑ ‑ ‑
HER HONOUR: Okay.
THE WITNESS: ‑ ‑ ‑ than what the – what the court’s objective is, and that is to try and repair the - the parent-child relationship. I – I don’t know whether her Honour wants me to comment on this, but I – I would hope, if the court did make those orders, that the mother would come back to Brisbane…
Her Honour thus concluded:
41.Having considered those factors, I have to consider whether I should make an order for equal shared parental responsibility. That order is presently in place, so I do not intend to discharge that order today given that the parties consented to it so recently. I will be doing a trial in the matter. At the final hearing of the matter I understand the mother’s application is for sole parental responsibility for [X] and [Z]. It will be when that issue is tested. Having left that presumption in place, as I have indicated, the substantial and significant time that had been put in place in the orders of 2010 is the appropriate order for these children if the parents lived near each other.
Nothing to which we have been referred establishes that her Honour erred in fact in relation to the import of Mr P’s expert opinion evidence. Nor does anything to which we have been referred establish that her Honour erred in accepting that evidence. Nothing to which we have been referred establishes that the learned Federal Magistrate placed “inappropriate” or excessive weight on the evidence of Mr P to which she referred.
Earlier in his evidence, Mr P said:
THE WITNESS: …So, your Honour, I briefly met with the children in the matter. [Z] was very appropriate in all aspects of his presentation. He went quite effortlessly and smoothly between both parents, happy to – his reunion and separation behaviour was very appropriate, I thought. No anxiety was observed. In an interview, a very brief interview with him and his sister, I thought [Z] organised his expression very well. He – typical of a child his age, he does have a fantasy of his mum and dad reuniting, and a wish - he doesn’t quite understand why they don’t live together. But he expressed a wish to see both his parents, and clearly did so in a – as I say, in a very well-organised manner.
HER HONOUR: Did he say anything about [Y] at all?
THE WITNESS: I asked both children about [Y]. He – [X] says she doesn’t miss [Y], and the reason why she doesn’t miss [Y] is because of her disability, and she doesn’t think [Y] – because she doesn’t – because she thinks [Y] wouldn’t miss her.
We have not been referred to, or discovered for ourselves, any evidence from Mr P establishing the prospect of X being adversely impacted on a short-term basis by being separated from Z. Nor did the evidence establish the possibility of Z being adversely impacted by a short-term separation from X. Curiously, the submissions on behalf of the mother were silent in relation to the impact on Y of being separated from both Z and X, but sought to rely upon Z’s separation from W, who is eight months old.
Her Honour also recorded:
43.I am satisfied in the present circumstances that the proposal that the child [Z] be returned to the father is appropriate and in the child’s best interests for the following reasons. He will be returning to the area where he grew up and attended school. He will be returning to his father and his sister. I am not persuaded that a relationship between his father and himself would be encouraged if the mother continues to have him reside in [the Blue Mountains area].
Nothing to which we have been referred establishes that any finding of fact there recorded was other than reasonably open to her Honour.
In summary, nothing to which we have been referred establishes that the learned Federal Magistrate either failed to have regard to any relevant fact or circumstance revealed by the evidence, or afforded excessive or inadequate weight to any such fact or circumstance. Nor did her Honour have regard to any irrelevant fact or circumstance, or otherwise err in principle.
We have not been referred to any evidence before the learned Federal Magistrate in relation to any asserted “…differences between the education system in New South Wales and Queensland and whether [Z’s] learning disability can be adequately addressed at the school in Queensland”.
This complaint is somewhat disingenuous. The school from which the mother chose to remove Z at the end of the 2010 school year was the school which she had placed him in, or agreed that he attend.
We have not been referred to any evidence before the learned Federal Magistrate establishing that Z’s return to the school he had previously attended was likely to entail any, or greater “disruption” than his removal from that school at the end of the 2010 school year may have.
The learned Federal Magistrate was clearly aware of the circumstances in which Z would be living with the father. The matters complained of in support of ground 2(d) did not sufficiently concern the mother in relation to Y’s wellbeing as to cause her to oppose Y’s continued residence there. Nor were such concerns sufficient to dissuade the mother from moving as far away from Y as she did. The submission that the mother’s proposal was “tried, tested and certain” is ill founded. The proposals of both parents were untried, untested and uncertain in various obvious ways which are likely to be agitated at the final hearing of the proceedings.
Ground 2 (f) provided:
(f)in failing to make orders for contact with the mother
As was fairly conceded by her Counsel during the course of the hearing of the appeal, the mother made no application for any orders of that kind.
The learned Federal Magistrate indicated her intention to afford the parties a final hearing of the parenting issues in early 2012. The orders made by her Honour facilitated the fulfilment of that intention.
Given the distance between the parents’ places of residence, the likelihood of a final hearing in January 2012, and the absence of any application by the mother for orders that she do so, the learned Federal Magistrate’s failure to make any orders that Z spend time with the mother on an interim basis could not enliven appellate intervention.
Ground 2(g) provided:
(g)the possibility of causing a real risk to his emotional needs
Neither in her written nor her oral submissions did Counsel for the mother refer the Court to any evidence before the learned Federal Magistrate which raised the prospect of risk to Z’s emotional needs, were he to reside with the father on an interim basis. That is perhaps, why the ground refers to “possibility” rather than “probability” or “likelihood”. Whatever its basis, the complaint lacks merit.
Ground 2 (h) provided:
(h)in failing to consider whether it was reasonably practicable for the child to spend substantial time with both parents
As is not in doubt, neither party put any proposals before the learned Federal Magistrate with respect to Z spending “substantial time” or any other time with the parents on an interim basis.
The learned Federal Magistrate could not meaningfully engage with that issue in the absence of either party raising it. Even if her Honour had attempted to do so, the evidence before her would only have supported a conclusion that, on an interim basis, it was impracticable for Z to spend substantial and significant time with both parents.
This complaint accordingly lacks substance.
Ground 3
Ground 3 provided:
3.The learned Federal Magistrate failed to consider the paramount principal [sic] of considering the best interests and welfare of the child, [X]
(a)in the evidence of the fearful nature of the relationship with the father, her attendance at a mental health unit and her fears that she also may next be forced to relocate
(b)and by rupturing the sibling relationship with [Z]
It was submitted by Counsel for the mother that:
5.1The orders separating [Z] from [X] did not adequately consider the effect such separation may have on [X]’s welfare, particularly in view of Mr [P]’s evidence that because of the distress she expressed at the thought of living with the father, his recommendation was that she not be placed in the father’s care.
5.2The importance of sibling relationships to a child is well recognised as set out in Bennett & Bennett (1991) FLC 92-191. The Federal Magistrate accepted the evidence of Mr [P] that a rupture of the sibling relationship could be repaired, however insufficient consideration in her Reasons was provided as to the effect of the potential for harm consequent upon [X] being separated from her brother [Z]. This was despite evidence previously submitted to the court of [X]’s vulnerable mental state.
The passages of the learned Federal Magistrate’s Reasons for Judgment to which we have referred in an earlier context are relevant to the complaints with respect to the separation of the siblings X and Z, and the consideration of the welfare of X.
We have some difficulty with the first of the complaints articulated in this ground given that, as is not in doubt, the orders of the learned Federal Magistrate provided that X continue to reside with the mother.
We have not been referred to any evidence establishing, or even suggesting, that Z had similar concerns to those which the learned Federal Magistrate accepted that X had.
The evidence of Mr P to which we have earlier referred permitted the learned Federal Magistrate to find that Z could cope with being separated from his sibling X, and could cope with living with the father, at least on an interim basis.
In what way the learned Federal Magistrate could or should have given further consideration to the matters referred to in the submissions of Counsel for the mother (in paragraph 5.2) has not been articulated.
Implicit in Mr P’s expert opinion evidence, and the learned Federal Magistrate’s consideration of where Z would reside on an interim basis, were the interests of all three children of the marriage, one of whom, Y, would, uncontroversially, continue to reside with the father, one of whom, X, would, uncontroversially, continue to reside with the mother. No order made by the learned Federal Magistrate could, in the circumstances with which she was presented, have avoided separation of the siblings.
We have not been referred to any evidence, either by way of expert opinion evidence of Mr P, or otherwise, as to the “potential for harm” to X in the event of her being separated from Z.
These challenges lack merit.
Ground 4
Ground 4 provided:
a)While the learned Federal Magistrate made an order appointing an Independent Children’s Lawyer she erred in making interim orders prior to the first appearance of the Independent Children’s Lawyer and obtaining a report
b)Further the learned [F]ederal [M]agistrate failed to allow any cross examination of the family report writer, in particular to obtain evidence of the effect of separating the siblings particularly in the view of [X]’s fear of being relocated to her father and the impact the relocation of her brother would have on her mental health
The first of these complaints can be swiftly disposed of. Counsel for the mother did not ask the learned Federal Magistrate to decline to determine the interlocutory proceedings before her until after the appointment of the ICL. The circumstances of the case did not compel her Honour to do so of her own motion.
The evidence of the Family Consultant had been heard on 15 July 2011. Early on 25 July 2011, Counsel for the mother said to the learned Federal Magistrate:
MS WILSON: Thank you. The other one is in relation to the ICL, whether it might be better adjourning the matter until - - -
The learned Federal Magistrate responded:
HER HONOUR: No, because that was always the argument, that there was never going to be the ICL available for this interlocutory decision, about the return of the children. They were never going to be able to be there. And it’s not their job to assist on that point. Their job is to actually look at the children’s best interests and get me some evidence for the final hearing. So, what material do you want me to read, Ms Wilson?
Counsel for the mother then proceeded to identify the evidence upon which she relied. At no time did Counsel for the mother formally seek an adjournment of the hearing until after an ICL had been appointed.
Both parties were represented by Counsel on 15 and 25 July 2011. Neither party requested the appointment of an ICL on either occasion. It was in fact the learned Federal Magistrate who concluded that the appointment of an ICL was appropriate. Whilst an ICL could materially assist the Court at the final hearing of the parenting proceedings, it is difficult to see how adjourning the interim determination of where Z should reside until an ICL was appointed would have changed anything in terms of the evidence before the Court.
The learned Federal Magistrate had before her the evidence of the Family Consultant Mr P. Her Honour did not err, despite having not been requested to do so, in declining to defer determining the interlocutory proceedings before her until after the appointment of the ICL.
The complaint with respect to the absence of cross-examination of the Family Consultant Mr P can also be swiftly disposed of.
As is not in doubt, when Mr P concluded his oral evidence on 15 July 2011 at about 3.14pm, the learned Federal Magistrate said:
HER HONOUR: Yes. I’m not prepared to allow any questions. I don’t have any time for any questions this afternoon.
Neither then nor on 25 July 2011 was any request made by Counsel for the mother for leave to cross-examine Mr P.
It cannot be assumed, had there been such an application on 25 July 2011 that the learned Federal Magistrate would have refused it. As is not in doubt, Counsel for the mother sought, and was granted leave to cross-examine the father, and did cross-examine the father on 25 July 2011.
In what way, either on 15 or 25 July 2011, cross-examination of Mr P by Counsel for the mother would have been likely to have impacted upon the findings made by the learned Federal Magistrate with respect to the two matters articulated in Ground 4(b) has not been explained.
This challenge fails.
Ground 5
Ground 5 provided:
5.The learned Federal Magistrate was improperly critical of the mother’s decision in 2010 to consent to an order that the profoundly handicapped child [Y] live with the father and gave unnecessary weight to her perception of the mother which were not reasonably open to her on the evidence and which were wrong in fact and in law
In support of this complaint it was submitted by Counsel for the mother:
7.1The adverse inferences made by the [sic] Federal Magistrate Cassidy are clear from her statement at paragraph 30 of the transcript dated 15 July 2011 where she says:
She actually said to me that when I was ordering that she come back with the children or bring the children back for the holiday and I sort of brought up with her that I couldn’t believe that she would leave a disabled child with someone affected by marijuana with someone with the level of disability that little child has, I just struggled – I didn’t think that a caring parent would possibly be able to do that?
In the course of her determination of the proceedings before her, the learned Federal Magistrate did not rely upon the matter which gives rise to this complaint in the manner in which the complaint asserts that she did.
In the course of her Reasons however, her Honour did say:
13.The mother alleges incidents of domestic violence during the relationship leading to the separation and she raises concerns about the father’s marijuana use. I am not able to make any findings about those issues, although I note that the mother was content to allow a profoundly disabled little girl to remain living with the father, and I have difficulty understanding how she could do that if, in fact, the father was a person who demonstrated serious issues of anger management and drug abuse.
That was a logical inference which her Honour could, and did fairly draw from undisputed facts in response to an allegation which the mother had raised.
Her Honour later said:
26.I also have to consider the need to protect the children from physical or psychological harm or being subjected to or exposed to abuse, neglect or family violence. I cannot make any findings about that today and that will be a subject of evidence that may well be traversed at the trial. I note that the mother raises concerns about the father’s propensity to take drugs and be domestically violent and I see that the consent order required him to do an anger management course.
27.The only observation I will make today is to repeat the one I have already noted. I struggle with the concept of the mother leaving [Y], a profoundly handicapped child, in the father’s care if her concerns with respect to his drug abuse and family violence were as she states, because it just does not make sense given that [Y] is very dependent on the carer for her care. She has no capacity to feed herself; she is very restricted in what she can do. She is profoundly handicapped.
It is clear that the learned Federal Magistrate, not unreasonably, referred to the effect of the consent orders of 26 March 2010 and the mother’s continuing willingness for the child Y to remain in the father’s care, in assessing, in an interlocutory context, the probability of the mother’s allegations, which she identified accurately there is no doubt, having substance. The conclusions reached by her Honour were reasonably open to her on the undisputed facts to which she referred.
Nothing to which we have been referred establishes this complaint.
Conclusion
No ground of appeal having been established, the mother’s appeal will be dismissed.
We also feel compelled to record that in this case and, it would appear in an increasing number of appeals, the submissions made to the Court bear little if any resemblance to the grounds appearing in the Notice of Appeal.
The reason for having grounds of appeal is to enable the party/parties resisting the appeal, and the Court, to understand the challenges to the primary judgment which the appellant makes. It goes without saying that summaries of argument should be confined to addressing those matters, and only those matters, the subject of proper grounds of appeal.
These are matters of great concern to this Court. They were not, however, raised during argument before us in this appeal. In those circumstances, we have given full consideration to the “grounds” as they appear, and the arguments as raised and responded to.
Costs
Counsel for the father sought that the mother pay the father’s costs.
In resisting an order for costs, Counsel for the mother relied upon the mother’s financial circumstances.
The Court is of the opinion that the mother should pay the father’s costs of the appeal.
The Court is not persuaded that the mother’s financial circumstances militate against making an order for the costs of this appeal. The mother’s present partner earns $1200 - $1400 per week out of which he pays a mortgage of $330 per week.
As is not in doubt, and has not been in doubt since the hearing of the proceedings before the Federal Magistrate in July, the final hearing of these proceedings will occur in January 2012.
As should have been apparent to those advising the mother, if her appeal was successful, a rehearing of the interim proceedings in the Federal Magistrates Court was the inevitable consequence of such success, particularly having regard to the decision of the High Court in Allesch v Maunz (2000) 203 CLR 172. The probabilities are that any interim rehearing would take place well after a final hearing could take place.
At the commencement of the hearing of the appeal, the Court raised the utility of the appeal with Counsel for the mother, notwithstanding which the mother persisted with her appeal. Whilst the mother was entitled to maintain her appeal, the absence of any utility in doing so is a matter to which the Court can properly have regard in determining whether it is of the opinion that the circumstances justify a costs order.
With respect to her, regardless of its possible merit, the mother’s appeal was an exercise in futility bordering on an abuse of the Court’s processes. The Court is of the opinion that the mother should pay the father’s costs.
I certify that the preceding ninety six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Strickland and Murphy JJ) delivered on 1 December 2011.
Associate:
Date: 1.12.2011
1
1