Walworth & Gammill
[2023] FedCFamC1A 218
•1 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Walworth & Gammill [2023] FedCFamC1A 218
Appeal from: Gammill & Walworth [2023] FedCFamC2F 936 Appeal number(s): NAA 224 of 2023 File number(s): BRC 14825 of 2019 Judgment of: ALDRIDGE J Date of judgment: 1 December 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Final parenting orders for the children to live with the maternal grandmother – Mother enjoined from communicating with the children – Grounds of appeal difficult to understand – Mother failed to comply with order to file Amended Notice of Appeal – No merit in grounds of appeal – No discernible error in the primary judge’s reasons – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) s 68B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.09, 13.31, 13.45
Cases cited: Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
House v The King (1936) 55 CLR 499; [1936] HCA 40
Number of paragraphs: 46 Date of hearing: 1 December 2023 Place: Sydney The Appellant: Self-represented litigant The First Respondent: Self-represented litigant The Second Respondent: Did not participate Counsel for the Independent Children's Lawyer: Mr Hughes Solicitor for the Independent Children's Lawyer: Swanwick Murray Roche Lawyers ORDERS
NAA 224 of 2023
BRC 14825 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS WALWORTH
Appellant
AND: MS GAMMILL
First Respondent
MR O’HARE
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
1 DECEMBER 2023
THE COURT ORDERS THAT:
1.The appeal is 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Walworth & Gammill has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
This is an appeal from parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 2 August 2023 concerning X, who was born in 2012, and Y, born in 2014. The primary judge ordered that the children live with the maternal grandmother, who is the first respondent and who is to have sole parental responsibility for them.
The children’s mother, the appellant, was enjoined from communicating with the children in any way, directly or through third parties, and from removing the children from the grandmother. A further suite of orders pursuant to s 68B of the Family Law Act 1975 (Cth), which were expressed to be for the protection of the grandmother and the children, repeated the earlier orders and also restrained the mother from approaching the grandmother or the children or the children’s school.
The grandmother was restrained from being adversely under the effect of alcohol or illicit substances while the children were in her care.
Orders were also made for the children to spend time with the father for up to four hours per fortnight at a supervised contact centre.
The mother has appealed and is acting for herself. She has not appeared at the hearing this morning. Attempts by the Court’s staff to contact her were unsuccessful, with the phone calls being unanswered. The appeals registrar wrote to the parties on 6 September 2023 advising them of the date and time of the hearing, which is proceeding by Microsoft Teams. There has been no attempt by the mother to join the link of the hearing.
I am informed by the grandmother and the Independent Children’s Lawyer that there is no reason to think that the email address to which the notification was sent is not that of the mother and that is the email address she uses. I am satisfied that she has been notified appropriately of the time and date of the hearing of the appeal. Her non-attendance either personally or by a lawyer is a sufficient basis for the Court to dismiss the appeal (r 13.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) (“the Rules”)).
The second respondent, the children’s father, has not appeared. He has not taken part in the proceedings and there is no reason to think that he was likely to do so.
Notwithstanding the non-appearance, it seems to me preferable to deal with the appeal, as far as can be done, on its merits. The grounds of appeal are:
1. Orders causing harm and potential fatalities
2. Lawyer had two conflicting cases at time of representation
3.ICL and court disregarding best interests of children and ignoring their wishes and their child rights
4. Failure to relinquish from cross examination inline with court rules
5.Court relied upon contradicting family reports by bias psychologist recommending orders which have caused significant harm
6.Judge withdrew respondent 2 from the matters and against law made orders in his absence after being withdrawn from the matter at previous trial
(Notice of Appeal filed 22 August 2023)
Save for Ground 3, none is a valid ground of appeal and most are difficult to understand. This led to a direction by the appeals registrar requiring the mother to file an Amended Notice of Appeal by 4.00 pm on 29 September 2023, which details in succinct numbered grounds of appeal the errors of law or principle relied upon. That order has not been complied with and, again, failure to comply with that order is a sufficient basis for dismissing the appeal (r 13.45 of the Rules). The Summary of Argument prepared and filed by the mother does not assist because it merely repeats the grounds with a few extra words and some very general references to the appeal book or transcript or earlier reasons.
BACKGROUND
The mother and the father finally separated in October 2018 and the children remained in the care of the mother. By this time, the mother had stopped the children from spending time with the grandmother.
The relationship between the mother and the grandmother was highly conflictual and whilst strained for 20 years, it had been bad for the five years prior to the hearing.
At the hearing, the mother’s position was that she would prefer the children to go into care than live with the grandmother. The primary judge found that there was no prospect that this relationship could be repaired.
His Honour found that despite a history of illicit substance and alcohol abuse by both the mother and the grandmother, it was not a current concern and that neither posed a risk of harm to the children in that regard.
It is necessary to look briefly at the procedural history of the matter. The proceedings were commenced by the grandmother on 5 December 2019, seeking orders that the children spend time with her. The father made a similar application on 15 April 2020.
The hearing commenced on 3 May 2022 and ran over 10 days, until 16 March 2023, although on some of these days little happened.
The father played little part in the hearing. The primary judge noted (at [2]):
2.The father did not attend at any stage of the final hearing and the trial proceeded in his absence. The father was briefly represented by solicitor and counsel on 13 March 2023 however his representatives were granted leave to withdraw before the hearing recommenced.
During the hearing, it emerged that the children were in fact not living with the mother. On 18 July 2022, the primary judge made an interim order for the children to live with the grandmother. At the time of the hearing, the children were not spending any time with the mother.
The mother commenced a particularly violent relationship with Mr J in May 2020.
Despite the extensive violence and Mr J’s drug use, the mother at times left the children in his care. Much of the violence seems to have occurred when they were present or nearby.
As examples only of Mr J’s behaviour:
·he pinned the mother on a bed and, using a meat cleaver, cut a 1.5 metre long slash in the bed, just 15 centimetres from her;
·placed the mother in a stranglehold and held her against a fence;
·whilst under the influence of drugs, repeatedly punched himself in the head, first with a fist, and then with a nail grooming tool, saying, “stop hitting me” and, “stop stabbing me”;
·stole the mother’s dog;
·strangled the mother while spitting on her and slapping her face. He punched her in the head when she managed to escape;
·threatened to kill the mother; and
·drove erratically with the mother in the car, threatening to run into power poles.
In 2021, a Child Harm Referral Report noted:
Police have done all they can to prevent further violence perpetrated by Mr [J] but have [had] no cooperation from [the mother]. … It is feared that future domestic violence at an extreme level including strangulation is likely to result in a domestic homicide.
This led the presiding judge to find:
[148]A pivotal and significant part of these proceeding was the way in which the evidence regarding the mother’s relationship with [Mr J] unfolded. Regrettably the mother deliberately lied, withheld evidence and told partial truths in order to shield Mr [J] and herself from the scrutiny of not only this Court but also law enforcement, and child safety officers.
…
[150]… The importance of Mr [J’s] involvement with the mother goes to family violence in the mother’s home and her attempts to hide same from relevant authorities as well as the mother placing the children at risk of physical and psychological harm.
The mother lied to the experts preparing reports for the Court on more than one occasion, falsely asserting that she was no longer in a relationship with Mr J. That lie was repeated in an affidavit filed in the proceedings on 31 March 2022.
In April 2022, when heavily intoxicated and with the children in the car, the mother drove around looking to find Mr J, so that she could run him over. He had formed the view that he was cheating on her or at least “sleeping with the hooker” (at [211]). The mother drove into a number of driveways, mounted a number of gutters and roundabouts. She continued, although a rear tyre had burst. When she arrived home, she drove through a side gate and into another vehicle, damaging it. The mother admitted to the police that she had slashed the tyres of Mr J’s car and smashed all the panels.
Of this, his Honour said “[a]t no stage did the mother accept any responsibility for her actions, recognise the impact this would have on the children or show remorse.” (at [215]).
As late as mid 2022, a neighbour called 000 as Mr J was cutting himself on the face and being loudly abusive. Police attended twice on that day.
It emerged in cross-examination in July 2022 that the mother was still in contact with Mr J. The primary judge found that the children loved their mother dearly but (at [390]):
390.… their relationship with her has been compromised by their lived experience. They have been fearful in her home as a consequence of violence, not only from their father but also Mr [J] and their mother. They fear for their mother’s safety. They have also come to doubt their mother’s truthfulness to the point of challenging her not to lie to them.
His Honour dealt in detail with video calls between the mother and the children between 25 December 2022 and 24 February 2023. The “tenor” of the communication was found to be inappropriate, leading to concerns as to the mother’s capacity to communicate to the children in a child-focussed way (at [339]). This led to further findings that the calls caused psychological harm to the children and that the mother was psychologically abusive to them and lacked any insight into the harm that she was causing (at [353] and [400]).
His Honour found that the mother posed a risk of harm to the children, saying (at [400]):
400.The need to protect children from any risk of harm is also a primary consideration. It has played a significant role in these proceedings. The children have been exposed to violence in the mother’s home both with the father and Mr [J]. Whilst the mother has wanted to protect the children she has been unable to do so. It is not necessary for me to repeat the evidence set out earlier in this judgment. The mother’s inability to be truthful to different authorities and this court means I can have no confidence that she will be able to protect the children from further exposure in the future. The mother has herself placed the children at risk by her own conduct such as driving recklessly around town of an evening with the children in the car searching for Mr [J]. The children have witnessed the mother burn Mr [J’s] possessions and damage vehicles. The mother has been psychologically abusive to the children in communications with them both at the contact centre and on the video calls. I find that the children are at an unacceptable risk of harm in the mother’s care. That harm being primarily of a psychological nature but also of a physical nature.
The primary judge found that the only way to ameliorate this risk of harm was to remove the mother from the children’s lives. This led to the orders that were made.
THE APPEAL
As this is an appeal from the exercise of discretion, the following principles as set out in House v The King (1936) 55 CLR 499 apply (at 504–505):
… 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. …
The first ground is that the orders will cause harm and potential fatality. No risk of particular harm has been identified. No evidence of any such harm that was before the primary judge has been identified. There is no reason to suspect that in such a careful judgment any such evidence was overlooked by his Honour.
It is difficult to understand what is meant by the second ground. If there was indeed a conflict of interest, that conflict had to be dealt with on evidence that was placed before the Court. As I understand it, there was none.
Contrary to Ground 3, the primary judge focussed extensively and comprehensively on the best interests, safety and welfare of the children. That is apparent from even a cursory reading of the reasons. The rights of the children are to have parenting orders made that are in their best interests, no more, no less.
Again contrary to this ground, the children’s views were discussed by his Honour at [405]–[410], with his Honour concluding:
410.The children’s desire to live with their mother have weighed heavily on my mind however I am satisfied that this consideration needs to give way to the two primary considerations discussed above given the nature of their relationships and the serious of the risk of harm issues.
The children’s views were therefore not disregarded. In any event, such views are not determinative. However, in this matter, they were given significant weight, but that weight was not sufficient to carry the day.
As to Ground 4, r 7.09 of the Rules provides that the Court may limit the nature and extent of the cross-examination of a single expert witness. In the absence of any elaboration as to what this ground means, I am unable to take it further.
As to the “contradictory” and “discredited” family reports, it is sufficient that they were found to be neither and the assertions of the mother that they were so does not make it so. More importantly, after referring to the single expert opinion of the mother, which was (at [382] quoting from the Family Report dated 17 February 2023):
382.…
[81][The mother] demonstrates a narcissistic belief in her own superiority as a person and in her knowledge as a parent despite significant evidence that [X] and [Y] have been harmed and continue to be harmed in her care. She lacks empathy for their position and is unwilling to consider their emotional world. [The mother] appears to have a sense of ownership of [X] and [Y]. Their value to her appears to be as her possessions rather than for who they are or what they need.
his Honour added (at [383]):
383.Unfortunately when I take into account all of the evidence and the mother’s presentation and responses in court I come to the same conclusion. …
Thus, the primary judge did not simply accept and act on the opinion of the single expert or experts, but rather his Honour formed his own independent view.
I do not understand the last ground. The father simply did not appear. There is no restriction on a judge making orders just because a party chooses not to take a role in the proceedings.
It is, however, important to add that the orders made for the father to spend supervised time were made to protect the children from a different arrangement which might be made by the grandmother and the father if no orders were in place and which his Honour regarded as likely to be less satisfactory than the orders he made.
There is therefore no merit in the grounds of appeal.
It is for an appellant to identify and demonstrate error, not the Court. In Bahonko v Sterjov (2008) 166 FCR 415, the Full Court of the Federal Court said:
3.Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error (see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [22]-[30]; Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [45]). This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.
However, having recorded that, I have carefully perused his Honour’s reasons and can find nothing that suggests an error let alone a reasonable suspicion that one has occurred.
The appeal is dismissed.
COSTS
In the circumstances, neither the grandmother nor the Independent Children’s Lawyer sought an order for costs.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Aldridge.
Associate:
Dated: 5 December 2023
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