Wheedon and Gomer
[2014] FamCAFC 141
FAMILY COURT OF AUSTRALIA
| WHEEDON & GOMER | [2014] FamCAFC 141 |
| FAMILY LAW – APPEAL – CHILDREN – where the trial judge made orders the effect of which was that the mother would have sole parental responsibility for the children and the mother be permitted to relocate with the children – where the father has a history of alcohol dependence – where the father represented himself on the appeal – where the majority of the father’s grounds of appeal were premised upon the contention that the trial judge erred in making findings that were not based on the evidence – no error demonstrated – appeal dismissed and no order as to costs. |
| Family Law Act 1975 (Cth) |
| AMS v AIF (1999) 199 CLR 160 Jarvis & Pike [2013] FamCAFC 196 |
| APPELLANT: | Mr Wheedon |
| RESPONDENT: | Ms Gomer |
| INDEPENDENT CHILDREN’S LAWYER: | Barbara Fox |
| FILE NUMBER: | BRC | 8388 | of | 2008 |
| APPEAL NUMBER: | NA | 50 | of | 2013 |
| DATE DELIVERED: | 8 August 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Thackray, Murphy and Kent JJ |
| HEARING DATE: | 4 August 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 August 2013 |
| LOWER COURT MNC: | [2013] FCCA 1703 |
REPRESENTATION
| FOR THE APPELLANT: | In person |
| FOR THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr George |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Barbara Fox Solicitor |
Orders
IT IS ORDERED ON 4 AUGUST 2014 THAT
The Appellant Father’s Application in an Appeal filed 29 May 2014 be dismissed.
IT IS FURTHER ORDERED ON 8 AUGUST 2014 THAT
Pursuant to the slip rule, the orders made in the Federal Circuit Court on 16 August 2013 be varied by adding the words “or psychologist” after the word “psychiatrist” where that word appears in paragraph 9(a)(i).
The appeal be dismissed.
There be no order as to costs of the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wheedon & Gomer has been approved by the Chief Justice 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 50 of 2013
File Number: BRC 8388 of 2008
| Mr Wheedon |
Appellant
And
| Ms Gomer |
Respondent
REASONS FOR JUDGMENT
Mr Wheedon (“the father”) appeals against final orders made by Judge Coates in the Federal Circuit Court on 16 August 2013 after a trial of parenting proceedings concerning the children D born March 2005 and N born May 2007. The other parties to those proceedings, Ms Gomer (“the mother”) and the Independent Children’s Lawyer (“the ICL”) appointed to independently represent the children’s interests in the proceedings, oppose the appeal.
By an application in an appeal filed 29 May 2014 the father sought an order that this Court provide a transcript of the trial proceedings. An order sought in the alternative was that the Court provide a transcript “…of His Honour’s Orders made 16 August 2013.” In advance of the hearing of the appeal we determined that a portion of the transcript on 16 August 2013, containing the submissions and discussions when the orders were made, be provided to the parties. At the outset of the hearing of the appeal the father expressed his satisfaction that this provision was adequate for his purposes on the hearing of the appeal. On that basis he consented to his application being dismissed.
Without traversing in detail each and every one of the issues between the parties agitated in the trial below – and thus each of the issues dealt with and the findings made by the trial judge with respect to each – it emerges from the trial judge’s Reasons that the central issues at trial may be summarised as:
a)The parents’ inability to negotiate and reach agreement upon issues in the exercise of their equal shared parental responsibility;
b)The father’s alcohol dependency and its impact upon a number of inter-related issues, including:
i)The father’s parenting capacity;
ii)The breakdown of, and the father’s inability to consistently maintain, visits with the children, and the impact of that upon the children;
iii)The deterioration in the father’s life circumstances including his loss of, or inability to maintain, employment or a fixed place of abode; or the financial means to support his relationship with the children;
iv)The father’s relocation from the Northern New South Wales area (where the children had been residing with the mother) to reside with, and between the various residences of, relatives and friends in Brisbane;
v)Any risks unsupervised time with the father posed to the welfare of the children in terms of their physical, emotional and psychological wellbeing;
vi)The father’s propensity for abuse of the mother;
c)The capacity of the father to address his alcohol dependence;
d)The Mother’s proposed relocation with the children from Northern New South Wales to the Hunter Valley region and the impact of that upon the children’s relationship with the father.
Central to the complaints agitated by the father in this appeal, the trial judge made orders:
a)For the mother to have sole parental responsibility for decisions regarding the long-term care, welfare and development of the children (Order 2);
b)Permitting the mother to relocate with the children to the Hunter Valley in New South Wales (Order 3);
c)Providing for the father’s time with the children to progress from more limited and supervised time to more expansive and unsupervised time on conditions as to treatment by a psychiatrist and provision of “clean” urinalysis testing, each over a six month period (Order 9).
The mother was self-represented on the appeal and appeared by telephone. In circumstances where the mother and the ICL were united in their opposition to the appeal, the mother confirmed that she was content with counsel for the ICL addressing submissions in response to the father’s oral argument before the mother made any submissions, and that was the process adopted on the hearing of the appeal.
The father, who has no legal qualifications or training, represented himself on this appeal, as he did in the proceedings below. As the father’s written summary of argument for the appeal filed on 17 June 2014 did not appear to discriminate between, or address discretely, each of the six grounds of appeal in the Notice of Appeal we sought to have the father structure his oral argument by addressing each of those grounds in turn. We will adopt the same approach in these Reasons in dealing with the father’s grounds and arguments.
Grounds of appeal
Ground 1 – I was self represented and unable to adequately present my case and suffered severve [sic] disadvantage.
The father emphasised that he had represented himself in the trial below. As initially articulated, the argument in support of this ground was to the effect that the father did not fully appreciate or understand that he had an opportunity to advance further oral evidence from himself during the proceedings below.
However, at [28] of the Reasons the trial judge recorded:
The father was represented at some stage in proceedings in the past, but appeared self-represented at trial. That is important to note, because I am to accord him that procedural fairness, so that I understand his case, and so that he is not unfairly placed in relation to perhaps technical legal issues. That does not mean I run his case, nor could it mean that, because that would mean that some prejudice would be afforded to the mother’s case as well as to the case of the Independent Children’s Lawyer. On many occasions in this matter, I stated to the father what he must do. I could not be more specific in bringing those matters to his attention.
This was against the background that the father had not filed any affidavit prior to the trial below, which commenced on 15 August 2013, since his affidavit filed more than 12 months earlier, on 31 July 2012. At [55] of the Reasons the trial judge also recorded in relation to the father:
He has not filed any new material for a very long time. I did take pains, even to the point of rejecting objections to hearing him, so that I could understand the case, so that I could arrive at a best interest decision.
In her family report dated 8 August 2013, compiled from interviews which took place on 2 August 2013, the Family Consultant Ms B recorded, at [66] of her report “…[the father] said that he had not put an affidavit into court this time. He said that he had no legal funding…”
The father confirmed during oral argument of the appeal that when he was giving oral evidence below, he thought during his cross-examination, that the trial judge had asked him whether there was any “further oral testimony” the father wished to provide.
The father was afforded several opportunities during his oral argument of the appeal to provide particulars of any manner or respect in which he was not given sufficient opportunity to advance further oral evidence below; or particulars as to any way in which what the trial judge recorded at [28] and [55] of the Reasons was wrong or inaccurate.
The father was unable to provide any such particulars. Absent the father articulating any particulars at all as to any loss or denial of an opportunity to provide oral evidence below that he otherwise would have provided, it can be concluded that there is no merit in this ground.
Ground 2 – The Judge refused my application to have the Independent Childrens [sic] lawyer discharged for consistent bias against me since 2008
In support of this ground the father directed our attention to the interim order made by then Federal Magistrate Coates on 21 September 2011. The father directed our attention to the feature that, as is recorded in that order, there was no appearance on behalf of the ICL on the hearing of the application when that order was made. The order also records, as was the fact, that there was also no appearance by or on behalf of the father on that occasion.
Under the terms of that order the children’s time with the father was suspended “until further order.” The order further provided for the matter to be adjourned for further mention on 8 December 2011.
In circumstances where the ICL did not appear on that occasion, it could not be contended that the interim order suspending the children’s time with the father was made upon the application of the ICL. We have noted that the order was made until further order with a further date for mention being set.
We fail to see how, then, the ICL’s non-appearance could be characterised as even evidencing actual or apprehended bias against the father on the part of the ICL, let alone being sufficient in and of itself to demonstrate actual or apprehended bias against the father on her part.
Again, given several opportunities to do so, the father was unable to articulate or particularise any other fact or circumstance in support of the contention that the ICL had demonstrated bias against him, consistently or otherwise, and at any time “since 2008”.
There is thus no merit in this ground.
Ground 3 – The Judge refused my request to file affidavits by [Mr P Wheedon] and [Mr M Wheedon] which were part of my evidence
Commencing at [53] of his affidavit filed 11 April 2011 the father deposed to an event occurring in December 2010 at a Christmas party at the children’s day-care centre. In summary, the father deposed to waiting in a queue with his son D for “…a photograph … with Santa” when the mother “…deliberately grabbed [D] whilst I was holding his hand.” The father deposed to a statement then made to him by the mother. Annexed to that affidavit is an affidavit of Mr P Wheedon corroborating the father’s version of this incident. However there is no affidavit of Mr M Wheedon annexed, which the father contended before us also supported his version.
The subject incident was thus an incident which the father alleged had taken place in December 2010, some two years and eight months prior to the trial below. As noted, the father himself advanced direct evidence as to what had occurred. In the scheme of things, having regard to the central and serious issues addressed by the trial judge in his Reasons as summarised earlier, this incident, even if accepted as occurring in the manner described by the father, could be of no real significance given the nature of the incident described and its historical context.
Unsurprisingly, no finding at all was made about the incident by the trial judge. The father’s version was certainly not rejected as the incident does not feature at all in the Reasons. In that context we gave the father an opportunity to advance a basis upon which it could be contended that receipt of an affidavit or affidavits from other witnesses, giving a version similar to the father’s version of this particular incident, would have made any difference at all to the outcome below. Again, unsurprisingly, the father was unable to so do.
We find no merit in this ground.
Ground 4 – The Judge allowed the mother to relocate without any real reason other than to prevent me from contact with my children and in circumstances that will make it almost impossible to have any or any meaningful contact with my children
As we highlighted to the father at the outset of argument of this ground, it is not the law that the mother had to establish “real reason” for her proposed relocation. Indeed it would be an error of law for a trial judge to require a party seeking to relocate to give “real” or “compelling” reasons for the relocation. (See, for example, AMS v AIF (1999) 199 CLR 160).
The trial judge was obliged to assess the mother’s proposed relocation to the Hunter Valley region in the context of the requirements of Part VII of the Family Law Act 1975 (Cth) (“the Act”) including the best interests considerations in s 60CC.
The father’s argument of this ground proceeded on the assumption that the only positive evidence in the mother’s case concerning her proposed relocation was the opportunity it would afford the mother to involve her own mother living in that area with the children. The father was thus at some pains to point out that, according to him, there was a poor relationship between the mother and her own mother.
However, the evidence before the trial judge concerning the mother’s proposed relocation was far more expansive than that suggested by the father.
For example, as is recorded by the Family Consultant Ms B commencing at [32] of her report:
32.[The mother] has stated that she wishes to move to the [Hunter Valley] area. She originally came from his [sic] area and she has longstanding friends and/or family in the area. She stated that she has cousins who the children cannot get to know and/or play with and she has friends she has known over a lifetime there as well as family members who could offer her help and support.
33.[The mother] has experienced that she has not been able to rely on [the father] for support i.e. [the father’s] behaviour has resulted in him not being able to spend any substantial time with the children because it has not been safe for the children to do this. [The mother] has experienced that when she is sick she is totally alone. She has difficulty getting ahead financially in the North Coast area of NSW as there are not a lot of jobs; as she has no access to affordable child care and because the price of rentals and/or properties to purchase are high i.e. she has to rent a 2 bedroom home with both children utilizing the bedrooms in this area as this is all she can afford. [The mother] stated that she has a record in … Sales in the [Hunter Valley] area. She believes that she will be able to get work in this area as the area is a wine area. She stated that she has friends and/or relatives who could help with the children. She believes that over time she may be able to purchase a house in this area whereas in the North Coast area of NSW she will be unlikely to ever purchase a home.
Further, at [107] of her report Ms B recorded:
107.In relation to [the mother’s] request to relocate to the area where she grew up, it appeared to the report writer that [the mother] had experienced extremely limited support from [the father] over subsequent years i.e. [the father] had not been able to physically care for the children and/or contribute to the children’s welfare in any significant way due to his the [sic] myriad of problems he has been experiencing for some time. It appeared to the report writer that [the mother] did not have the benefit of relatives and/or close friends in the area she currently resides in. It appeared to the report writer that [the mother] does not have the depth of friendships with people in the area she now lives in that she has had where she grew up. It is the view of the report writer that [the mother] is currently financially disadvantaged at this point in time i.e. she is not able to afford child care because she receives minimal child support and minimal income from Centre link [sic] and she is not able to afford more suitable housing for her and the children in this area. … It is the view of the report writer that [the mother] may experience that she has more support in the area that she grew up in and that this may therefore have a positive effect on the children i.e. if [the mother] does experience more support in the area she grew up in and if she is happier living in this area then the children may experience positive benefits from this. If [the mother] is able to get more support she may be able to take advantage of work and/or other opportunities which could assist her to improve her financial situation and therefore benefit the children.
Commencing at [19] of the Reasons the trial judge outlined the law he was bound to apply. At [173] and [174] the trial judge made specific references to authority concerning parenting applications where a party proposed to relocate. We discern no error in the trial judge’s discussion of the law he was to apply and indeed no such error was articulated by the father on this appeal.
It is clear that the trial judge accepted, as he was entitled to do, the opinions of the Family Consultant. In dealing specifically with the mother’s proposed relocation the trial judge recorded in his Reasons, commencing at [193]:
193.It is not a question now of whether she has family and friend support in the [Hunter Valley] area. I would conclude on the evidence I heard that that may not be the case. But clearly, that was not the question. The question was identified by Ms [B] in her report, and the question raised was whether the mother can look after herself and the children. The answer is yes.
194.Ms [B] went further and said if the mother is more comfortable in moving to [the Hunter Valley region], she would be a better mother, because really, that is the outcome of what Ms [B] said in her material. This is how she put it at paragraph 107.
195.“It is the view of the report writer that [the mother] may experience that she has more support in the area that she grew up in and that this may therefore have a positive effect on the children.”
Later at [200] of his Reasons, the trial judge considered and made findings about the impact on the children of such a relocation as follows:
200.The impact on the children, this is the important issue, because it is one I have been struggling with - what is the impact on the children? The father actually has not seen these children a great deal over the last year. The children would want to see the father, but it is his choice or his inability to escape from his own problems which is impacting on these children. It is nothing the mother is doing.
201.The impact on the children of a move will, in fact, result in not much of a difference in my view. The father really has to take the steps to see these children, but he is not doing it. When I assess all of that, I could not come to the conclusion on the present evidence that the children can spend any time, but supervised time, with the father. It is not a position the court would want to be in, but it is a position the court is in on the evidence.
202.I understand the father has got some money issues. If his evidence is correct, that he is applying for up to six months leave without pay and awaiting the outcome of this decision, he can now go and attend to addressing those issues, because he is getting the decision now. I thought it important that this decision be made now, because a decision finally has to be made to end all of this for the children.
203.If his evidence is correct, he can go and tell the [father’s employer] that he is ready for work. He can then start earning a living. He can then await the period of his licence suspension, get his licence back, start earning a decent income and start making arrangements on days off to begin visiting the children [in the Hunter Valley region], because I am going to make the order that the mother be allowed to relocate them.
Given the evidence to which we have referred we can identify no error in the trial judge’s approach or conclusions either as to the law to be applied or the facts. We therefore find no merit in this ground.
Ground 5 - The Judge ordered sole parental responsibility to the mother without any proper evidence
There was ample evidence before the trial judge of the inability of the parents even to communicate about, let alone resolve, issues concerning the long-term care, welfare and development of the children. Those issues included the school or schools the children should attend; and whether the child D has developmental or learning delays and how they might be properly addressed.
The evidence included the opinion of the expert Family Consultant Ms B that the mother ought assume sole parental responsibility for the children.
The trial judge dealt with this issue as follows commencing at [156] of his Reasons:
156.The presumption of the law is that parents have equal share [sic] parental responsibility.
157.It does not operate where there is family violence. I can cease the operation of such, if I find the evidence says such would be in the best interests of the children.
158.That the parents, after final orders were made, could not come to a conclusion on schooling and that this matter has exploded into a case which needed an Independent Children’s Lawyer confirms, in my mind, that equal shared parental responsibility cannot work.
159.There is no way these parents can agree.
160.No evidence was offered by the father of what he would do to resolve the issues. No evidence could be offered, because he cannot resolve the issues with the mother. The mother cannot resolve the issues with the father.
161.I am going to make an order for sole parental responsibility for the mother.
We are comfortably satisfied that there was ample evidence to support the trial judge’s conclusions on the issue of parental responsibility. There is no merit in this ground.
Ground 6 – The Judge ordered the father indergo [sic] medical tests without any relevant medical evidence
Before dealing specifically with this ground we record that Order 9 of the orders made by the trial judge on 16 August 2013 is in these terms:
9.That the father only commence spending unsupervised time with the children pursuant to Order 6:
a.After providing sufficient evidence by way of medical reports that:
i.He has undertaken at least six (6) months of continuous treatment for alcohol abuse with a psychiatrist and that psychiatrist supports the position that the children would be safe to spend unsupervised time with their father; and
ii.He has provided successive clean urine tests for a period of six (6) months. within [sic] twenty four (24) hours of a request by the mother (such requests to be not more frequent that [sic] once every month), such request to be in writing or by SMS text message, the father shall attend upon a general practitioner to obtain a referral to a reputable pathologist for the purpose of undertaking supervised urinalysis testing and is to undergo such testing. Such tests are to be verified by a certificate to include a temperature endorsement thereon and the father shall thereafter forward to the mother by post or email the results within twenty four (24) hours of their receipt;
It emerges from the portion of the transcript of the proceedings below that we have earlier referred to, being that portion when there was discussion and submissions as to the form of orders to be made, that the trial judge clearly intended to order that the relevant treatment be undertaken with a psychiatrist or psychologist (transcript of proceeding, 16 August 2013, p 4, lines 31-35 & p 5, lines 21-28).
In that circumstance we sought the attitude of each party to this Court ordering a variation of Order 9 to reflect that intention, rather than the parties having to incur the delay and inconvenience involved in a further application to the trial judge to correct the order under the applicable slip rule. (See Jarvis & Pike [2013] FamCAFC 196 at [52]-[56]).
Each of the parties confirmed their consent to a variation of Order 9 to add the words “or psychologist” after the word “psychiatrist” where that word twice appears in Order 9(a)(i) and we propose to make that correction.
Turning specifically then to this ground, it may immediately be observed that the way in which this ground is formulated assumes the necessity for “medical” evidence rather than evidence generally. Clearly, there is no substance in that assumption.
There was a significant body of evidence below as to the father’s ongoing difficulties with his alcohol dependence and with its consequences relevant to best interests and the issue of parental responsibility.
That evidence was sourced not only from, for example, the mother and the expert Family Consultant Ms B but from the father himself in terms of admissions he made in his interviews as recorded in Ms B’s family report.
Reference can also be made to the letter dated 31 July 2012 from the the father’s employer to the father which records admissions being made by the father as to his “alcohol problem”.
That letter makes it clear that “alcohol problem” and conduct of the father related to his “alcohol problems” formed the basis of the employer’s disciplinary action in suspending the father and foreshadowing the termination of his employment if it was not addressed. There was no evidence below that the father had addressed this problem, either to the satisfaction of his employer, or at all.
There was clear evidence below of the potential adverse consequences for the physical, emotional and psychological welfare of the children if exposed to the father when adversely affected by alcohol.
Having regard to all this evidence, there was no need for “medical” evidence for Order 9 to legitimately be made. We note that under the terms of that Order the father is not obliged to undergo any testing. The Order provides a condition to be fulfilled which the father may choose, or not choose, to satisfy. If he wishes to expand upon the time and communication he can have with the children that condition provides the means for that to occur.
We find no merit in this ground.
Conclusion
Given that we have found no merit in any of the grounds, the appeal must be dismissed.
As is usual we sought on the hearing of the appeal each party’s attitude to costs. No party sought costs in the event that the appeal was to be dismissed. There will therefore be no order as to costs of the appeal.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Murphy and Kent JJ) delivered on 8 August 2014.
Associate:
Date: 8 August 2014
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