Walsh and Maher
[2020] FamCAFC 7
•16 January 2020
FAMILY COURT OF AUSTRALIA
| WALSH & MAHER | [2020] FamCAFC 7 |
| FAMILY LAW – APPEAL – PARENTING – Where the trial judge made orders that the children’s time with the father be reduced from five nights per fortnight to three – Where the trial judge made findings that the children are at a risk of psychological harm by reason of exposure to the father’s views of the mother and his inclusion of the children in the parental conflict – Where the trial judge made an order that the father pay the mother’s costs of the proceedings – Where the father’s contentions on appeal include complaints as to the inadequacy of reasons, errors of discretion and inappropriate weight – Where the father’s grounds of appeal are without merit, save for the challenge to the costs order – Where the trial judge gave no reasons for making a costs order – Where the appeal succeeds only in respect of the costs order made – Where only that issue is remitted – Where the father’s application for a costs certificate is denied – Where the mother is granted a costs certificate for the appeal and the rehearing on the issue of costs of the proceedings. |
| Family Law Act 1975 (Cth) ss 60CC, 94AAA(3), 117 Family Law Rules 2004 (Cth) rr 22.45(2), 24.05(2) |
| Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 R and R: Children’s Wishes (2000) FLC 93-000; [2000] FamCA 43 Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 Simmons & Kingley [2014] FamCAFC 47 Sun Alliance Insurance Ltd v Massoud (1989) VR 8 |
| APPELLANT: | Mr Walsh |
| RESPONDENT: | Ms Maher |
| FILE NUMBER: | BRC | 9510 | of | 2012 |
| APPEAL NUMBER: | NOA | 75 | of | 2019 |
| DATE DELIVERED: | 16 January 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 16 January 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 June 2019 |
| LOWER COURT MNC: | [2019] FCCA 1940 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Cameron |
| SOLICITOR FOR THE APPELLANT: | MCH Family Law |
| THE RESPONDENT: | In person |
Orders
IT IS ORDERED:
The Appellant Father have leave to file and rely upon his Summary of Argument for the appeal.
The appeal from Order (41) of the orders made on 11 June 2019 in the Federal Circuit Court of Australia be allowed and that order be set aside.
The issue as to costs of the proceedings, the subject of Order (41), be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the trial judge.
The appeal be otherwise dismissed.
The Court grants to the Respondent Mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Respondent Mother in respect of the costs incurred by the Respondent Mother in relation to the appeal.
The Court grants to the Respondent Mother a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Respondent Mother in respect of the costs incurred by her in relation to the rehearing ordered.
IT IS FURTHER ORDERED BY CONSENT:
By close of business on Friday 17 January 2020, the amount of $3,273.93 be paid by the Appellant Father to the Respondent Mother, if such payment has not already been attended to.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Walsh & Maher has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 75 of 2019
File Number: BRC 9510 of 2012
| Mr Walsh |
Appellant
And
| Ms Maher |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
These appeal proceedings arise out of parenting proceedings between Ms Maher (“the mother”) and Mr Walsh (“the father”) concerning their two children, X born in 2006 and who will soon turn 14 years of age, and Y born in 2007 and who will soon turn 13 years of age.
The jurisdiction in relation to this appeal is exercised pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
On 11 June 2019, final parenting orders were made by a judge in the Federal Circuit Court of Australia (“the FCC”) which provided for, in summary:
a)The mother to have sole parental responsibility for the children;
b)The children to live with the mother and spend alternate weekends from Friday after school to before school Monday with the father as well as school holiday time;
c)The parents to be at liberty to communicate with the children at all reasonable times when not in their care; and
d)The father to pay the mother’s costs of the proceedings.
Property settlement orders were also made by the trial judge but none of those orders are the subject of this appeal.
Application in an Appeal
As noted, the final orders were made on 11 June 2019. The reasons for those orders were not provided within the appeal period. They were provided on 15 July 2019.
By an Application in an Appeal filed on 20 August 2019, the father sought an extension of time for filing an appeal. That application was heard on 17 September 2019 by Ainslie-Wallace J and, on 25 September 2019, her Honour made orders extending the time, but included an order that the father, within 28 days, pay the mother’s costs in the amount prescribed in the order. Notably, the father failed to pay the costs as provided by her Honour’s orders.
The Notice of Appeal was filed on 14 October 2019.
On 20 November 2019, an Appeals Registrar made procedural orders with respect to the appeal. Those orders included an order that the father file and serve his Summary of Argument for the appeal and his List of Authorities by 4:00 pm on 11 December 2019.
The father failed to file the Summary of Argument on time and a notice of
non-compliance was issued on 19 December 2019 informing the father that the appeal may be dismissed pursuant to r 22.45(2)(a)(i) of the Family Law Rules 2004 (Cth) (“the Rules”).
The father attempted to file his Summary of Argument after 4:00 pm on Friday 10 January 2020, which, according to the Rules, is effectively on Monday 13 January 2020 (see r 24.05(2)). This was not accepted by the Registry due to its lateness. The significance of these dates is that, as was known to the father, the mother was overseas until 13 January 2020, which was the day her Summary of Argument was due, meaning that the mother had no reasonable opportunity to address the Summary of Argument provided by the father.
I should also note that this comes against the background of the late filing of the transcript, but at least that is adequately explained and ultimately was filed.
By his Application in an Appeal, the father seeks that his Summary of Argument be received to enable the appeal to proceed. The mother opposes that application pointing out persistent and consistent failures by the father to comply with requirements.
One might have thought in a case where it was necessary to bring an application to extend the time to file the Notice of Appeal, there would be keen observance thereafter of the requirements of the Rules and orders of the Court.
The father’s affidavit effectively places the blame, if I can use that term, for the delay upon his counsel’s non-availability to attend to the Summary of Argument.
I should observe that in the usual course that is not a sufficient reason not to comply with orders and directions of the Court. It is wholly unsatisfactory that counsel did not attend to the matter, but that is a separate issue from the obligation cast upon the father to comply with formal orders made by the Court. As his counsel points out, these are orders of the Court, they are not aspirations, they are orders to be observed by the parties to whom they are directed.
In the result though, by reference to authorities such as Jackamarra v Krakouer (1998) 195 CLR 516 and the High Court’s observations about dismissing an appeal for want of compliance with a procedural rule, there is to be balanced, on the other hand, potential merit in the appeal.
As it seems to me, the costs order made by the trial judge, being unsupported by the giving of any reasons means that inevitably it must be said that the father’s appeal has some merit, at least so far as that costs order is concerned. So much was also found by Ainslie-Wallace J in the determination her Honour made to extend the time for filing the appeal.
To address the issue, it was pointed out to the mother that the Court could receive submissions in support of the appeal and in the event that the Court considered there was any merit in any of those submissions, the mother could have the opportunity, if she sought it, for an adjournment and an opportunity to address the submissions more fully.
In the result, it is determined for the reasons which follow that the only matter upon which the appeal enjoys any success is with respect to the costs order, and it was explained to the mother that that was because of the lack of any reasons provided by the trial judge for that order. The same observations were made by Ainslie-Wallace J in her reasons for extending the time for the appeal.
It was explained to the mother that if the appeal against that order is allowed, that order would be set aside and only the question of costs of the proceedings relevant to that order would be remitted for rehearing in the FCC.
Factual background
The mother was born in 1971 and is 48 years old. The father was born in 1968 and will soon turn 52 years old. Their relationship commenced in 2003/2004 and ended finally on 19 April 2012. As noted they have two children, X born 2006 who will soon be 14 and Y born in 2007 who will soon turn 13.
The parties had final parenting orders made on 8 September 2015, which were subsequently amended. Those orders relevantly provided for:
a)Equal shared parental responsibility (excluding X’s dental needs for which the mother had sole parental responsibility);
b)The children to live with the mother and spend five days a fortnight with the father; and
c)The children to attend F school.
The mother filed an Initiating Application on 31 January 2018. By a Further Amended Initiating Application filed on 15 April 2019, the mother sought the discharge of the September 2015 orders and in their place the mother sought, inter alia:
a)Sole parental responsibility;
b)The children to live with the mother and spend time with the father on alternate weekends from after school Friday until 5:00 pm Sunday as well as school holiday time;
c)Specified times for the father to communicate with the children, outside of which times, the father to be prohibited from contacting the children;
d)Orders that the children’s time with the father be conditional upon him completing, and providing proof to the mother of such completion, of “emotional regulation training” with a clinical psychologist; and
e)The father to pay the mother’s costs.
The father opposed that application. His Response filed on 9 February 2018 sought a continuation of equal shared parental responsibility and that the children live with him and spend time with the mother.
However, that seems not to have been pursued as the father’s Amended Response filed on 24 July 2018 effectively sought a continuation of the September 2015 orders, with some amendments to ensure that the children were with him every year between certain dates, for which dates the father held a camping spot booking in Region K. The trial judge noted some confusion about the final orders the father sought at [18] of the reasons.
Approach of the trial judge
It is clear from a reading of the trial judge’s reasons that the parties have, since separation as long ago as 2012, been involved in intractable conflict permeated by their inability to communicate or compromise. This is, as the trial judge observed, largely attributable to the father’s behaviour and how he handles communication with the mother.
Quoting from the expert family report of Mr D, the trial judge sets out the cyclical nature of the parties’ communication (at [31]). In summary, this cycle is thus:
1.The father attempts to make a change to arrangements which the mother refuses;
2.The father becomes irate and responds in an overly emotional, manipulative manner;
3.The mother perceives that as harassment and does what she can to limit her and the children’s exposure to it;
4.Then, either or both parents include the children in the conflict by expressing their dissatisfaction at how the other has handled the particular issue. The children are distressed by this;
5.The mother interprets that distress as potential for emotional or psychological harm suffered at the hands of the father, and the father interprets it as the mother attempting to hurt him and attack him through the children. Both parents blame the other.
The trial judge sets out, in detail in the reasons, various examples of how the father’s attitudes to the children and any conflict which is connected to them sees him act unacceptably and often involve the children in whatever conflict that is. As an example, the trial judge explains the father’s fraught relationship with the children’s school from [45]–[71] of the reasons. In summary, the father demanded the school keep him informed of issues which were not relevant to him, he often turned up to the school on days he did not have the care of the children, he wrote offensive and aggressive emails involving the school and teachers in his conflicts with the mother. It escalated to the point where the school’s solicitors contacted the father and informed him that all correspondence to the school was to be sent via their office.
Another example of the father’s inappropriate conduct is a series of emails sent to the mother on different occasions. Often, they followed enforcement orders which enforced previously made orders requiring the father to do something he did not wish to do. As an example, in November 2016 following orders enforcing the father’s payment of child support pursuant to a binding child support agreement, the father sent the mother an email which stated:
…
It is now 99% likely that I will be subjected to a forced redundancy from work on Monday, to come into effect mid-December: I know you don’t care about the effect of all of this on the kids, but I do. All of this has now officially and totally ruined me. And you know I can’t afford private school fees. And you know there is no equity in the house. And I have no money to give you. And the stress of your bitterness towards me has rendered me hopeless.
So you win, whatever you think that is.
…
(As per the original)
The father went on to suggest both parents and the children attend a joint therapy session wherein the parents could tell the children that “the Court has agreed for the house to be sold to pay for school fees” and that the father could “explain that I’ve lost my job … that you can provide for the kids in the future” and so the father could “talk to [the children] about the future without their dad”. The father then signed off the email with “[l]et’s please make the termination of my ability to function as their provider and dad as easy as possible”.
Then, after the mother replies, the father’s next email includes statements such as “there is nothing more I can do to help you or the kids save for killing myself, and I am not going to do that”.
This emotional manipulation is repeated in various other correspondences set out in the trial judge’s reasons. Indeed, it was one of these similar emails received by the mother which caused her to fear for the father’s mental state such that she withheld the children ([95]).
It is also important to note that this emotional manipulation and the conflict between the parents is not lost on the children. In expressing their views to the family report writer, both children noted that it was their father who spoke badly of their mother more than their mother speaking badly of their father. X, the older child, spoke of hating being put in the middle of her parents’ conflict by the father. For example, the father had both children ring their mother to beg her to change their school holiday time with the father to permit them to spend the entire two week block camping with the father rather than just a portion of it.
Y, the younger child, expressed similar views and recounted some comments the father had made to the children such as “I’m not going to come back until you’re eighteen because I can’t deal with this drama with your mum”.
It is this behaviour of the father which forms the basis for the orders made by the trial judge as is apparent from her Honour’s reasons. Her Honour’s findings as to the rebuttal of the presumption in s 65DAA of the Act were founded upon the parties’ complete lack of ability to communicate the blame for which, the trial judge found, rests largely upon the father ([128]).
Moreover, in reducing the father’s time from the five nights per fortnight under the previous orders to three nights per fortnight, the trial judge found that it is in the best interests of the children not to be exposed to the father’s demonstrated manipulative behaviour and his involvement of the children in the parental conflict ([159], [161], [162] and [163]).
The trial judge specifically extracts from the family report writer’s report, at [162] of the reasons, setting out the long term possibility of harm to the children of being exposed to the father’s behaviour.
When the reasons for judgment are read as a whole, it is tolerably clear that it was her Honour’s focus upon addressing the children’s exposure, and addressing the potential harm to them of that exposure to the conflict, to which reference has been made, that drove the orders the trial judge made.
Grounds of appeal
The father’s Notice of Appeal contains nine grounds of appeal. They are:
1.That Her Honour erred in failing to give proper and sufficient weight to the wishes of the Children;
2.That Her Honour erred in failing to give proper and sufficient weight to the recommendations of the Family Report Writer, [Mr D];
3.That Her Honour erred in giving too much weight to historical issues with the children’s school, [F school];
4.That Her Honour erred in failing to provide proper weight to the consideration of the appointment of a parenting co-ordinator to assist the parties in reducing conflict in their relationship as sought by the Appellant Father and as recommended by the Family Report Writer [Mr D];
5.That Her Honour erred in her determination that reducing the number of nights that the children spend with the Father will reduce the conflict between the parties;
6.That Her Honour erred failed to provide reasons that reducing the number of nights that the children spend with the Father will reduce the conflict between the parties;
7.That Her Honour erred in failing to give reasons that reducing the number of nights that the children spend with the Father is in the best interests of the Children.
8.That Her Honour erred in failing to provide reasons at all for making a costs order against the Appellant Father;
9.That Her Honour erred in failing to consider S.117 of the Family Law Act 1975 properly or at all in determining whether the Appellant Father should be responsible for costs.
(As per the original)
Grounds 3 and 4 are not ultimately pressed by the father according to his Summary of Argument. Indeed it was submitted that the appeal proceeded only as “an attack” on the orders for time the trial judge made. That is, of course, apart from the order for costs.
Ground 1 – Wishes of the children
This ground and submissions in support of it were directed to the children’s “wishes”.
Prior to the amendments to the Act in 2006 it was “wishes” rather than “views” of the children that were the mandatory statutory consideration. I simply observe that the authorities seem to accept that “views” of children is a wider concept than “wishes”. Of course, stated wishes are included within the rubric of views expressed by children.
The father contends the trial judge failed to give proper and sufficient weight to the wishes of the children. Weight challenges are notoriously difficult to establish on appeal (Gronow & Gronow (1979) 144 CLR 513 at 519 per Stephen J).
It is well established that the obligation under the Act, as expressed in s 60CC(3)(a), is to consider the children’s views, affording them the appropriate weight as determined by the trial judge. There is, however, no obligation for a trial judge to give effect to a child or children’s expressed views.
In R and R: Children’s Wishes (2000) FLC 93-000, the Full Court said that children’s wishes should be “given appropriate and careful consideration and not simply treated as a factor in the determination of the child’s best interests without giving them further significance” ([44]). Their Honours went on to say this in response to a submission that the trial judge in that case failed to determine whether the children’s wishes were “unsound, founded on improper considerations or influenced by others”:
54.However, while those considerations will be relevant in many cases, they are by no means the only issues that a trial judge must consider when considering a child's wishes. There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.
(Emphasis added)
In the reasons for judgment of the trial judge, it is clear that her Honour has paid careful regard to the children’s views or wishes. Her Honour sets out those parts of the family report which canvass the children’s views at [107], [108],
and [114]–[119] before considering the impact of the trial judge’s proposed orders on the children given their expressed views. This appears at [134], [137], [138] concluding with [161] as follows:
161.I acknowledge that the children did not want the time to change. I acknowledge, though, it seems to be me, that this cyclical way of communicating between the parents and this difficult way that the father particularly has means that the children should be exposed to that less.
The trial judge then quotes paragraphs 8.7 and 8.8 from the family report at [162] as follows:
162. [Mr D] had said at paragraph 8.7 and 8.8:
The father’s rupture-repair behaviour pattern, and his undermining of the mother’s stability are probably, for the most part, unconscious processes driven by the father’s attachment-style. However, in concert and over time this behaviour poses risks to the children’s psychological functioning. For example, as the children become older and probably more oppositional, their mother will attempt to enforce boundaries. If primed with the notion that their mother is mentally unstable, the children might begin to accept this as an explanation for the conflict that typically occurs between adolescents and parents. The seeded notion that their mother’s mental health is the source of conflict would cause damage to their perceptions of and interactions with their mother, and in turn, erode their secure attachment to her: Ultimately, if the children lose a secure attachment to their mother and have rupture-repair interactions with their father only, this will cause long-term emotional and psychological harm.
The father views his desire for flexibility as child-focused, yet his willingness to employ the children for the purposes of carrying emotive messages to the mother (e.g. the phone call prior to the most recent summer school holiday break) is counter-intuitive to
child-focused parenting. He seems to have great difficulty refraining from involving the children in parenting disputes. This forced them into the position of taking sides with one parent.All of that is against the background of an earlier discussion by the trial judge, commencing at [24] of the reasons of the evidence of the expert, Mr D, as follows:
24.The only other witnesses in the case were [Mr D], the family report writer, and [Dr E], a psychiatrist who attended to the preparation of a psychiatric assessment. [Mr D] not only did this family report, but he did a family report for the family historically, dated 30 September 2014. His more recent one was done in the late first half of last year, 14 June 2018. [Dr E] did a report, which is annexed to an affidavit filed on 15 February 2019. [Dr E’s] report is dated 11 September 2018. [Dr E] was not required for cross-examination.
25.[Mr D] was and he appeared by telephone. He was very helpful to me insofar as he accepted the difficulties of the case before me. And the difficulty being, in essence, that this mother and this father are so incapable of climbing out of their entrenched conflict that I should have no expectation that their way of communicating with each other will ever be different and that that dreadful way they have of communicating with each other does, at times, overflow in such a way that [X] and [Y] are exposed to it and they are certainly well aware of it and that it would be consistent with their best interests for them to be not exposed to that and for that to be shielded from them, but there is no thought that things might be different in the future between the parents.
26.One way of doing that would be to limit the children’s time with one of their parents. If one parent’s time was to be limited, the children’s time should be with their mother and their time with their father should be the one which is limited. The difficulty that [Mr D] has with that proposal is that both X and Y, who were 12 and 11 at the time of their interviews, were wanting to see the regime maintained as it is, the nine/five arrangement, that they like spending their time with their father, that they do not want to have less time with their father and that, for example, less time would make it even more of a nuisance for them because they have to take all of their stuff from one house to the other, and doing that for a period of three nights would be worse than having to do it for a period of five nights. So the children do not want the time changed.
At [26], her Honour specifically observed that the children did not want the prevailing regime at that stage changed.
In my judgment, when the reasons are read as a whole, the trial judge was under no misapprehension as to the views or wishes of the children in terms of the change that would be imposed by the orders, but nevertheless her Honour carefully balanced that feature with the other imperatives, namely reducing the exposure of the children to the conflict.
In my judgment, it is clear that the trial judge has undertaken the precise balancing and weighing of competing factors, one of which was the children’s views or wishes, that is required of her in applying Part VII of the Act and specifically the s 60CC considerations.
There is no merit in this ground that her Honour failed to give proper weight to the children’s views or wishes.
Grounds 2 and 4 – Recommendations of the family report writer
These grounds can conveniently be dealt with together.
They each contend that the trial judge failed to give proper weight to the recommendations of the family report writer and, more specifically, that the trial judge failed to give adequate weight to the recommendation regarding a “parenting co-ordinator”. The difficulty with establishing weight arguments has already been referred to.
So far as the recommendations of the family report writer are concerned, it is apt to first record that experts such as Mr D do not bind the trial judge in any way, as is acknowledged in the Summary of Argument filed by the father. There is ample authority for the proposition that a trial judge is not bound by any recommendation of the family report writer nor to follow the evidence of that report writer. Those authorities are conveniently collected together in the decision of Simmons and Anor & Kingley [2014] FamCAFC 47 at [42].
It is clear that Mr D’s recommendations included a recommendation that the present parenting structure or regime be maintained. However, whilst Mr D recommended a continuation of what can conveniently be described as the 9/5 arrangement that was prevailing, he also said this at paragraph 8.26 of his report:
8.26If in the alternative, the Court favours the mother’s proposal to the extent that the father’s time with the children be limited, I recommend that the children continue to spend alternate weekends with him (after school Friday to before school Monday). This will still provide for the children to have a meaningful relationship with their father, even though the change is contrary to their wishes. It could well serve to limit disputes between the parents over various issues. It will be unlikely to markedly impact the children’s attachment systems in a negative way. However, it may well cause resentments on the children’s parts that could be directed towards their mother and fuelled by their father. It will almost certainly cause resentment on the father’s part and thereby heighten the risk that he continues to behave as he seemingly has done to date in his communications to the mother and the children.
It is tolerably clear that the trial judge reached the decision that the “alternative” represents the orders to be made in the best interests of the children. It is also tolerably clear from the trial judge’s reasons that her Honour was alive to the issues foreshadowed in that extract from the family report writer. Her Honour said this:
133.If I was to reduce the children’s time between the parents so that their time with their father would be from school on Friday to school on Monday, it would, no doubt, make the father upset and angry and potentially irate. It would cause him to think that the mother had somehow won through her campaign of trying to eliminate him from the children’s lives. He has spoken of that for many years in his emails that the mother is just relentless in her campaign to have that happen. At no point in time does he stop and reflect upon his own behaviours and his way of interacting with the mother, which is itself relentless, that his way of behaving and interacting with her has been how she has formed her view about how difficult it is to communicate with the father. So the father would no doubt feel as though the mother has then somehow managed to achieve her aim. I have no view about whether that is what the mother would actually think. There is no evidence before me that that is what she would actually think.
…
138.Lesser time with their father will still allow them to have a meaningful relationship with their father, but a shorter time would lessen the exposure to their father’s way of talking about their mother. He may also talk negatively about the mother in a more intense way because the children are with him for a shorter time, but there is little I can do, really, about that save for ordering no time at all.
By Ground 4, the father contends that the trial judge failed to give appropriate weight to the appointment of a “parenting co-ordinator” which the father states was recommended by the family report writer. With respect, in my opinion it somewhat overstates the position to suggest that this was a recommendation of the family report writer. In the first place, it does not appear under the heading “[r]ecommendations” within the report. The trial judge’s discussion of that issue appears as follows:
152.The father suggested when he heard it from [Mr D] that perhaps they could use a parent consultant or whatever word it was that [Mr D] used, which was effectively that there would be a mediator who these parents turned to time and time again as required to assist them to work through issues. My difficulty with that is that the father’s way of working through issues is simply to assert his position time and time again and to assert why he is correct and to say that the mother’s decision is not correct. So I do not see any particular purpose in that opportunity being made available to the father.
153.And there is always, it seems to me, the capacity for these parents to have different views about things. And simply for the father to always assert that he is right is no better or worse than the mother asserting that she is right, but it is the father’s way of not letting it go and himself not choosing to agree with what the mother has said and how he allows that to just be kept alive by him is particularly difficult.
The father’s classification of a parenting co-ordinator as a “recommendation” by the family report writer is overstated. This can be seen from the relevant transcript of the evidence where it was raised and discussed with Mr D in the course of his giving evidence under cross-examination by the father (Transcript 21 May 2019, p.190 line 34 to p.191 line 24):
One of the orders I’ve sought, even if it’s whistling in the wind, is ongoing mediation with another third party, the suggestion being [Ms V], although I’m open to any professional mediator, where conflict arises between the mother and me that may not be catered for by the explicit court orders, simply because life has more grey in it. Are you of the view that there’s any worth at all in giving something like that a shot?---I think what you’re talking about is parent coordination, application of a parent coordinator, somebody like [Ms V], and that’s a process that’s used for the very highly conflicted matters that come before the court. In terms of the - - -
Have you seen examples where - - -?---In terms of - - -
I’m sorry?---Sorry. In terms of the issue about time arrangements, I’m not sure how much your question relates to that. When you say, “Is it worth a shot?” – “Is it worth a shot for what?”, I guess would be my question in my mind.
In relation to general co-parenting efforts, not so much court-ordered time sharing?---Yes, well, it probably is, if – if there were willingness on the part of the parties, yes.
Are you aware of examples where – and let’s call this a high-conflict relationship, regrettably – are you aware of examples where the services of an [Ms V] or someone like a [Ms V] for – I forget your expression – co-parenting has at least achieved some success?---I can’t – I can’t really comment. The notion of parent coordinators is a very new notion. In fact – I mean, I’m going to a presentation next week that’s virtually introducing the concept to professionals in Brisbane, and I’m not really familiar with how efficacious it is and what the success rates are with it, yes.
All right. Thank you very much. That is to say, that service, although maybe not perfectly tested yet, is available, and there is the possibility that it might help?---I believe it is available, and there is a possibility that it might help.
Thank you. Can I just ask one more question on that, please. In what format might that type of parent coordinator service best work? A regular periodic meeting, either through a Chinese wall or by telephone or something, or when a dispute arises that the parent coordinator who was informed of the situation and the relationship can then get involved?---I don’t think I’ve got enough expertise to answer that, because I’m not familiar with the way that whole system is operating. You’re asking – it’s a premature question for me, because I don’t know enough about it.
(Emphasis added)
I find no merit in these grounds.
Ground 3 – Weight given to the father’s relationship with the children’s school
It is said in the Summary of Argument that certain of the grounds were not pressed, and it may be superfluous to specifically deal with this ground. However I became a little concerned, during the course of the hearing, when there was a need for an adjournment for counsel for the father to clarify his instructions from the father as to the challenges to be pursued on appeal. It seems to me that for completeness I ought deal with Ground 3.
The father contends that the trial judge erred by giving too much weight to the historical issues he had with the children’s school.
The trial judge discusses the issue of schooling from [45] of the reasons onwards. Preceding that paragraph the trial judge said this:
44.It seems to me that there are sometimes different ways of communication, which are less helpful or more unhealthy, and regardless of the other person’s response, there is still no useful way forward when one party is insisting on unhealthy or dysfunctional communication. At the end of the day, though, [X] and [Y] are the ones who are exposed to this and who are living with it. There are so many examples of these parents’ inability to communicate. It is hard to know where to start.
That [44] follows on from the trial judge’s acceptance of the family report writer’s characterisation of the parties’ style of communication (as already discussed).
At [31] of the reasons, the trial judge also states:
31.… I accept what [Mr D] says and I accept [Mr D’s] take on this interaction. As I go through examples, hopefully, it will become clear to any other reader that this cycle that [Mr D] speaks of is made out on the evidence …
It is apparent that the trial judge explored the father’s interactions with the school and the schooling issue generally as an example of the kind of communicative issues plaguing the parties’ co-parenting relationship. It is in that light that the trial judge placed weight on the topic.
Relevant also is the fact that the trial judge also discusses other instances of poor communication between the parties, largely as a result of the father’s behaviour, such as the issues surrounding the child X’s school trip ([73]–[85]), the emails sent to the mother by the father ([87]–[97], [101]–[106]) and the camping holiday at the end of each year ([98]–[106]). These discussions, coupled with the views expressed by the children set out at [106]–[108], led the trial judge to the conclusion seen at [110]:
110.So I’m quite satisfied that there is a need to protect [Y] and [X] from the psychological harm from being exposed to, and subjected to, this abusive behaviour from the parents, but more so from the father, of the exposure to this conflict. [Mr D], I think, also found this a very concerning factor.
In my judgment, the claim that the trial judge placed too much weight on the father’s relationship with the children’s school fails when one considers the reasons read as a whole and sees that the trial judge’s consideration of that one issue is part of a far broader consideration of many instances of similar communication difficulties which ultimately led her Honour to a factual finding for which there appears to be ample evidence. The factual finding could not be described as demonstrated to be wrong by “incontrovertible facts or uncontested testimony” or “glaringly improbable” or “contrary to compelling inferences” within the formulation identified by the High Court in Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 (“Robinson Helicopter”).
Grounds 5 to 7 – Reducing the children’s time with the father to reduce the conflict
The father challenges her Honour’s finding that a reduction of the children’s time with the father would result in a reduction of the conflict. He also asserts that her Honour failed to give adequate reasons for this conclusion and for the conclusion that fewer nights is in the children’s best interests.
I repeat that it is well established that challenges to factual findings of a trial judge must be demonstrated to be wrong by “incontrovertible facts or uncontested testimony” or as “glaringly improbable” or as “contrary to compelling inferences” in order for an appellate court to legitimately intervene (Robinson Helicopter).
Moreover, as appears in the father’s Summary of Argument, as the plurality of the High Court explained in CDJ v VAJ (1998) 197 CLR 172 at [150], the determination of parenting orders necessarily involves predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Thus it is that “perceptions, predictions and even intuition and guesswork can all play a part in the making of an order”.
The question of reduction of the children’s time was specifically raised by the family report writer following on from the competing proposals of the parties and the analysis of the mother’s proposal. Plainly, the family report writer raised the issue in his report and gave consideration to it and addressed it. It is thus unsurprising that the trial judge gave careful consideration to that option as being a means by which the awful conflict between these parties, or at least some protection of the children from it, could be achieved.
No other meaningful means was identified for her Honour of addressing these matters. It was suggested in submissions for the appeal that her Honour might have looked at injunctive and other forms of relief in an attempt to address the issue.
However, it is clear from the earlier orders made in 2015 that a range of orders was directed to the parties designed to address the issue of the communication, yet there is a plethora of evidence in the case that the problems continued abated, or if not increased.
With respect to the challenge of the adequacy of reasons, it is well settled by the Full Court in Bennett and Bennett (1991) FLC 92-191, adopting the test set out by Gray J in Sun Alliance Insurance Ltd v Massoud (1989) VR 8 at 18, that:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:—
(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
When these reasons for judgment are read as a whole it is tolerably clear that her Honour focused upon the potential for harm to the children by their exposure, and ongoing exposure, to the levels of communication the children have had to endure now, for years.
It is equally clear that the trial judge based her decision to reduce the children’s time with the father, from five nights per fortnight to three, on the basis that such a reduction was one means of achieving some less exposure of the children to the father’s manipulative behaviours and involvement of the children in the parental conflict.
That ultimate conclusion can be seen from the reasons to rest largely on the finding that the father is the main instigator of the poor communication and, according to the children’s own views and what they told the family report writer, the parent who involves them in the conflict more so than the other ([109]–[110] and [128]).
Her Honour goes on in the reasons to conclude:
134.The change would be disappointing to the children because the children apparently like the current arrangement as it is, but they do not like being exposed to the way their parents speak about each other, and as I have earlier said, that is predominantly their father and less so their mother. So a reduction in time would allow them to be less exposed to that. .
…
137.And if I need to weigh up their wishes versus their wishes to keep seeing their father for a more comfortable length of time of five nights a fortnight and their wish for their parents to stop them being exposed to the conflict between the parents, it seems to me that that exposure to the conflict between the parents is the one which is potentially damaging.
138.Lesser time with their father will still allow them to have a meaningful relationship with their father, but a shorter time would lessen the exposure to their father’s way of talking about their mother …
The conclusions reached by her Honour are reached following direct consideration of the s 60CC(2)(b) consideration, which conclusions are also supported by reference to the evidence of the family report writer, albeit that it was not his primary recommendation (see paragraph 8.26 of his report).
However, further in his report, the family report writer stated:
8.14It is reasonable to consider that the co-parenting dynamic is so poor and that the resultant risks of emotional harm to the children is so significant that the solution should be to reduce the time that the children spend with their father to alternate weekends and award the mother sole parental responsibility; the justification being that it will limit the need for co-parenting, joint decision-making, and communication between the parents.
It can be seen that the family report writer maintained this position during his cross-examination (Transcript 21 May 2019, p.176 lines 4–13):
[COUNSEL FOR THE MOTHER]: If the children were to be exposed to someone who displayed such extreme reactions on a regular basis, that could be quite detrimental to them, couldn’t it?---Yes.
And hence, the opinions that you express towards the end of your report: if the court had a concern that that sort of emotional response was ongoing, it might need – the court might need to consider reducing the amount of time that the children spend with their father. Yes?---Yes. Yes.
And that’s for the express purpose of minimising their exposure to emotion – a risk of emotional harm, isn’t it?---Yes.
The report writer also gave this evidence in the course of his cross-examination after counsel for the mother had taken him through the then recent issue of X’s school trip (Transcript 21 May 2019, p.189 lines 14–47):
That doesn’t give you much confidence about any improvement in communication, does it?---No. No. It doesn’t.
If the communication is still of that quality, it tends to realise some of the fears that you were concerned about when you were expressing your opinion in your report, doesn’t it, [Mr D]?---From the point that you’ve provided me, yes.
And all of these questions are premised on the notion that her Honour makes findings consistent with the propositions I’m putting to you, of course. If those fears are realised in that way, then it does tend to suggest that the better outcome for these children would be to minimise their exposure, effectively, to the father, doesn’t it?---If – well, the communication between the father and the mother sounds as though it’s still fraught.
Sure?---And it would appear that it’s always going to be fraught. The example of the – the [Country P] trip serves as an example of [X] being placed in the middle of an issue between the parents and being, perhaps, used in that way. I wonder – I wonder whether these examples are sufficient to extrapolate to the time arrangements. I would be particularly concerned if the court were concerned of the – about the – about there being ongoing emotional unpredictability on the father’s part, such as we saw towards the end of 2016 in particular. The examples given since that time have been concerning, but not as profound as that particular example. I would certainly be concerned if the court were to form a view that the father is likely to continue to raise issues with the father about it being mum’s fault.
HER HONOUR: Sorry, to raise issues with the children about it being mum’s fault; is that what - - -?---Yes, about things being mum’s fault, e.g., “I’m sorry your mum’s causing this”, that type of comment, or comments about mum being crazy or mentally ill. So if the court had a view that those sorts of – particularly the emotional unpredictability of the father were a continued problem, and I suppose I’m disappointed to hear that my recommendations around the father engaging with a practitioner have not been taken up until very recently, apparently. So if the court – if the court were still concerned about that, I think a reduction of the time with the father would be a reasonable consideration.
(Emphasis added)
In my judgment, when the reasons for judgment are read as a whole it is clear the path of her Honour’s reasoning for her conclusion is clear, and there is no substance in the complaint as to the adequacy as to the reasons the trial judge provided.
Grounds 8 and 9 – Costs
Grounds 8 and 9 of the appeal are directed to the order for costs her Honour made at Order (41).
As discussed in exchanges in the course of argument of the appeal there are simply no reasons given by her Honour for this order, and no mention made of costs or an application of s 117 of the Act.
It follows then that there is substance in the complaint that her Honour failed to provide adequate reasons for the making of the costs order made at Order (41).
On that basis the appeal succeeds only to the extent of that order.
Conclusion
For these reasons I make the following orders:
1. The Appellant Father have leave to file and rely upon his Summary of Argument for the appeal.
2. The appeal from Order (41) of the orders made on 11 June 2019 in the Federal Circuit Court of Australia be allowed and that order be set aside.
3.The issue as to costs of the proceedings, the subject of Order (41), be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the trial judge.
4.The appeal be otherwise dismissed.
I add that in the course of argument a question arose as to whether or not the father had met the obligation to pay the costs of enforcement proceedings in the amount of $3,273.93. That amount flows from child support orders made by the trial judge on 11 June 2019.
The father gave an undertaking to Ainslie-Wallace J during the 17 September 2019 hearing that he would pay those costs. Initially, in today’s hearing, it was suggested that he had done so but some confusion arose as to whether or not he had in fact paid that money.
I further order, with the consent of the father, that by close of business tomorrow, that this sum be paid to the mother if payment has not already been attended to.
Costs certificates
An application is made by the father that a costs certificate with respect to the appeal be granted to him pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) (“Federal Proceedings (Costs) Act”) on the basis that the appeal from the costs order has been successful by reason of an error of law.
However, as it seems to me far and away the majority of the costs of this appeal relate to the numerous other grounds of appeal that have not enjoyed success. The question of costs for the costs order was never really in contest and, moreover, the mother made the submission, not challenged, that she offered to abandon the costs order if otherwise this appeal did not proceed. Obviously, the father did not avail himself of that offer.
In these circumstances I decline the father’s application for a costs certificate pursuant to the Federal Proceedings (Costs) Act.
The mother applies for the issue of a costs certificate under the Federal Proceedings (Costs) Act with respect to the appeal against Order (41) being allowed by reason of an error of law.
She is in a different position, of course, than the father given that she made the offer to abandon the costs order if otherwise the appeal could be resolved. She has been put to some expense by way of legal costs, she submits, in that whilst she is not represented by lawyers in the appeal, she has taken some advice from lawyers for the purpose of dealing with the appeal. There will also be some costs involved for her in revisiting the application on the remitted proceedings.
For these reasons I will grant the mother a costs certificate under the Federal Proceedings (Costs) Act for the appeal and the rehearing ordered.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Kent delivered on 16 January 2020, edited to correct grammatical errors and some infelicity of expression.
Associate:
Date: 17 January 2020
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