Whitby and Zeller
[2018] FamCAFC 64
•6 April 2018
FAMILY COURT OF AUSTRALIA
| WHITBY & ZELLER | [2018] FamCAFC 64 |
| FAMILY LAW − APPEAL – PARENTING – Where the mother appeals interim orders requiring her to facilitate the child being informed of his father’s identity – Where the mother has brought appeals from similar orders before – Where the primary judge’s findings were open on the evidence – No appealable error demonstrated – Appeal dismissed. |
| Family Law Act 1975 (Cth) s 94AAA(3) |
| Bahonko v Sterjov (2008) 166 FCR 415 House v The King (1936) 55 CLR 499 Whitby & Zeller (No. 2) [2014] FamCAFC 239 Whitby v Zeller [2015] HCASL 87 Whitby & Zeller [2016] FamCAFC 140 Whitby & Zeller and Anor [2017] FamCAFC 101 |
| APPELLANT: | Ms Whitby |
| RESPONDENT: | Mr Zeller |
| INDEPENDENT CHILDREN’S LAWYER: | Adams & Partners Lawyers |
| FILE NUMBER: | SYC | 2228 | of | 2011 |
| APPEAL NUMBER: | EA | 19 | of | 2018 |
| DATE DELIVERED: | 6 April 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 6 April 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 December 2017 |
| LOWER COURT MNC: | [2017] FCCA 3314 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Rebehy |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Adams & Partners Lawyers |
Orders
The appeal is dismissed.
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 Whitby & Zeller 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 SYDNEY |
Appeal Number: EA 19 of 2018
File Number: SYC 2228 of 2011
| Ms Whitby |
Appellant
And
| Mr Zeller |
Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
Introduction
This is an appeal by Ms Whitby (“the mother”) against parenting orders made by Judge Monahan on 21 December 2017. The proceedings are between the mother and Mr Zeller (“the father”). They concern the parties’ child who was born on 5 November 2008 and is presently nine years old.
The appeal is opposed by the father and the Independent Children’s Lawyer (“ICL”).
This appeal is being heard by a single judge pursuant to a direction under s 94AAA(3) of the Family Law Act 1975 (Cth) made on 19 February 2018.
Background
The parties met in China in 2008 and commenced a relationship.
On 18 August 2009 the mother and child arrived in Australia to join the father who has lived here since 2001. On 13 October 2010 the mother and child returned to China and stayed there until August 2013.
It is evident that the parties had separated by that time. On 12 December 2013 the father commenced the present proceedings.
The mother’s position is that she and the child should be free to return to China when and if she wishes to do so. She has opposed the child spending any time with the father at all. Indeed, the evidence reveals that the child is of the view that the mother’s second husband, who she married in January 2012, is his father.
A number of interim orders have been made for the child to be informed of his paternity and to spend time with the father. None has been complied with.
The appeal
The primary judge conducted a final hearing over four days in December 2017. However, his Honour was of the opinion that final orders should not yet be made. On 21 December 2017 he made interim orders to the following effect:
·On or before 5.00 pm on 25 January 2018 the parties are to do all things necessary to have the child informed of his paternity by a psychologist;
·The parties are to cause the child to be psychologically assessed and to comply with any recommendations of the psychologist;
·All previous parenting orders are discharged (the effect of this order is that there are no extant orders as to parental responsibility or as to with whom the child is to live or spend time);
·The parties are restrained from removing the child from Australia and the child’s name is placed on the Watch List;
·The parties are to take steps to have the child obtain Australian citizenship;
·The mother is to ensure that the child remains at his present school and is to advise the ICL of his residence and of any person who lives there;
·The Department of Family and Community Services (“FACS”) is requested to intervene in the proceedings; and
·In the event that FACS does not intervene and the child has not been informed of his paternity the ICL is to cause it to occur with the mother being obliged to cooperate.
The mother appeals against all of the orders made on 21 December 2017. Her grounds of appeal are:
1.The whole litigation is the extension of domestic violence to the child and the mother from the other party.
2.Because of the endless litigation, the child’s living condition is getting worse and worse, not to mention he lost his own choice to be Australian citizen or not, which school he’d like to go, if he’d like to be told his miserable and sad background now, etc.
3.The mother is the only child to her parents. The mother lost freedom to travel overseas to visit or even look after her aged parents who are both over 65 years old.
4.Grant what the mother wants (sole parenting and no contact) is the only way to stop domestic violence continuing at this stage as otherwise the child’s good life which the mother strive for would be ruined forever by this litigation.
None of these is a proper ground of appeal. It is, however, possible to distil a ground from them, which is that the orders made by the primary judge were not in the best interests of the child and that, in some way, his Honour’s discretion must have miscarried. That, of course, simply begs the question as it does not identify how it is said that the discretion miscarried.
The mother failed to comply with an earlier direction for the supply of the relevant parts of the transcript. While she filed a Summary of Argument on 21 March 2018, it is discursive and provides no assistance in understanding the grounds on which the mother brings her appeal.
The mother’s oral submissions do not add anything to her Summary of Argument. She said that she does not agree with the orders and therefore has no option but to appeal. She said that “the whole case is on the wrong track”. I take this to mean that she considers that her view should have prevailed.
There were three main issues dealt with by the primary judge: whether the child should be told about his parentage, whether there was any family violence involving the child and whether the child was at risk of psychological harm.
Parentage
Before turning to the primary judge’s reasons it is useful to note the history of this matter insofar as it concerns this issue.
On 11 July 2014 a family consultant recommended that there may be some benefit in the child being re-introduced to the father.
An order to that effect was made on 12 September 2014. The mother appealed and a stay of the order was granted. The appeal was dismissed on 15 December 2014 (Whitby & Zeller (No. 2) [2014] FamCAFC 239). The mother then sought special leave to appeal to the High Court. The stay continued. Leave to appeal was refused on 13 May 2015 (Whitby v Zeller [2015] HCASL 87).
On 6 April 2016 a family report by a different family consultant was prepared. It recommended that it was in the best interests of the child for him to be informed about his paternity.
On 15 April 2016 the mother was ordered to bring the child to Child Dispute Services at the Sydney Registry so that the child could be so informed. The mother complied with the order in that she brought the child to the Court but would not assist the family consultant (who was a consultant who had not previously seen the parties or the child) to tell the child the identity of his father. The family consultant formed the view that in that case it would not be in the child’s best interests for her to do so alone. She prepared a report for the Court to that effect.
On 15 June 2016 the Court made orders for the parties to attend upon a named psychologist for therapy and for the child to be told who his father was. On 18 July 2016, a different psychologist was appointed. The mother’s appeal from this decision was dismissed on 28 July 2016 (Whitby & Zeller [2016] FamCAFC 140).
On 1 August 2016 an order was made requiring the mother to attend on this psychologist on named dates and to facilitate the child’s attendance.
The mother did not take the child to the psychologist. Instead, she travelled to China on her own.
On 8 December 2016 the Court made orders restraining the mother from leaving Australia and made further orders for the parties to attend upon the psychologist. The mother’s appeal against these orders was dismissed on 1 June 2017 (Whitby & Zeller and Anor [2017] FamCAFC 101).
Orders were made on 15 February 2017 for the parties to attend upon a third psychologist.
On 18 October 2017 Judge Sexton found the mother to be in contempt of the order made on 1 August 2016. The penalty hearing was adjourned.
In dealing with the issue of parentage the primary judge had regard to an extensive chronology which included the above and the reports of the three family consultants which he quoted. The conclusion was:
65.It is noteworthy at this stage that all three consultants Ms [H], Ms [A] and Ms [B], were in agreement that [the child] should be informed about his biological heritage, indeed, Ms [B], who ultimately chose not to inform [the child] at that time because of the mother’s “evident incapacity or total resistance (or both)” to support [the child] through the process, agreed that the child should be told sooner rather than later.
66.By the time of the final hearing, Ms [A] was of the view that any further delay could be catastrophic for [the child], particularly if he found out without appropriate support.
His Honour then set out the clear recommendations of the family consultant who had most recently provided a report as follows:
68.Ms [A] gave evidence that there were, in her words, “gaps” in the report and that further assessment should occur that included interviews and assessments of all the people immediately relevant to [the child], that is, his mother, his stepfather, his sister and the maternal grandmother. Moreover, such assessment needed to include [the child] and ascertain his views about spending time with the father. In other words, the full assessment needed to occur following [the child] being informed as to the father’s identity and following the psychological intervention that Ms [A] recommended.
69.Ms [A] identified that the ideal scenario, in her words, for [the child] is that the mother, the stepfather and the maternal grandmother would support the child to be psychologically assessed at the earliest opportunity and for the child to be supported throughout that process, but Ms [A] also acknowledged that the mother’s clear opposition and lack of apparent support and the lack of apparent support from the stepfather and the maternal grandmother meant that the ideal scenario was simply unachievable.
70.Ms [A] was very clear in her evidence that in explaining about his paternity to the child, the mother should not paint the father in a negative light, the reason being not to protect the father, but to protect the child because the child is biologically connected to the father.
71.The alternate path or the less ideal scenario was to request the assistance of the New South Wales Department of Family and Community Services to assist in facilitating [the child] receiving the necessary psychological intervention. If the Department refuses, then Ms [A] suggested that a friend or trusted person of the mother (although no such person was ever identified) or other professional assist in having [the child] taken to a psychologist for help. Ms [A] agreed that Dr [K], as proposed by the ICL, was one suitable child psychologist who could assist [the child] in the event that the Department of Family Community Services declines to assist.
His Honour noted the oral evidence of the family consultant that some thought should be given to the child transitioning to the father’s care (at [72]).
The primary judge expressed the view that these opinions should be given considerable evidentiary weight (at [75]). That was a finding that was clearly open on the evidence.
Family violence
There is no doubt that the father assaulted the mother in October 2009 and did so in the face of an Apprehended Violence Order. He was convicted of the assault and breach of the order, and placed on a good behaviour bond for two years.
The mother asserted that the family violence was much more extensive than the events of 2009 and gave evidence to that effect. The father denied that this was the case.
The primary judge noted this at [114] and continued:
115.And I also note my earlier comments that the mother gave evidence that she has been a victim of family violence in 2010 and I earlier stated that the evidence does not support that assertion. The ICL made the following submission at the conclusion of the hearing:
I submit to your Honour that when one looks at the matters that come before your Honour, the apprehended violence order and the events surrounding it were at the lower end of what we would normally see. And apart from that one breach on that same day when the father went home and threw his laptop on the floor, there has not been any further breaches, despite another two years and the parties continuing to have some sort of relationship. And that’s evident in the photos and the evidence of both of the parties. So they continue to go out, including with the mother-in-law. So that – family violence, as is claimed by the mother, does not appear on the evidence before your Honour to be a significant feature in this case.
I understand that is the mother’s submission, I understand that is the mother’s perception, but that is not the evidence before your Honour at all. And even if your Honour found that there was some family violence, it is not significant overall.
Evidently, his Honour accepted this submission and preferred the father’s evidence.
There is no apparent error in taking that course.
Risk to the child
His Honour was rightly concerned about the welfare of the child and returned to this issue a number of times as follows:
46.The mother’s failure to acknowledge [the child]’s present difficulties and his right to know his biological heritage is extremely concerning.
47.The mother’s current circumstances are also extremely concerning. If her evidence is to be believed, she is living in a refuge for reasons that seem rather strange. She has a lease of property in [Suburb M] and her evidence is that she contributes to the costs of that lease with her own mother, the maternal grandmother, who lives there with [the child].
48.The mother denies that Mr [Whitby], her second husband, and [G, the child’s sister], also live at that [Suburb M] address. The evidence from the school suggests otherwise. The mother’s failure to have Mr [Whitby] give evidence raises suspicion about her evidence. Indeed, the ICL asked the Court to draw adverse inferences to such of the mother’s evidence pursuant to the rule in Jones & Dunkel (1959) 101 CLR 298.
…
50.In addition, the mother’s failure to provide the Court with details of Mr [Whitby] and [G]’s location, apart from her evidence that they also live somewhere in [Suburb M], is equally worrying. The evidence leads the Court to the conclusion that the mother has most likely, with Mr [Whitby]’s involvement, attempted to create a set of circumstances that may garner sympathy.
…
52.The mother has no real plan for the child’s residence. She says that [the child] will live with her in the refuge, yet gave evidence that she would not apply for public housing. The mother currently appears to rely on the maternal grandmother, and possibly Mr [Whitby], to assist her with the parenting of [the child] and [G].
53.While [the child]’s school performance in terms of his academic achievement is a credit to the mother, her absolute rejection of having [the child] assisted with his current psychological difficulties is extremely concerning. The mother has specifically deceived the Court and the ICL by failing to give evidence that [the child] had a serious swimming accident early last year and in failing to inform the Court that she had attended with the school at least twice in the six or so weeks prior to the final hearing given [the child]’s significant misbehaviour at school.
…
98.Although [the child] was seen by the family consultant Ms [A] (see paragraphs 26 and 28 of the family report) he remains unaware of his true biological heritage, despite interim orders being made by this Court over three years ago that survived challenge in both the Full Court and the High Court of Australia. Ms [A]’s evidence, as I have stated, was extremely clear: [the child] needs to have urgent psychological intervention to deal with his current behavioural issues and now needs to be informed about the father’s identity and he needs to be counselled through that process.
99.I note the ICL’s submission about the possibility that [the child]’s current behaviour may be linked in some way to a sense that he no longer belongs. That submission draws upon Ms [A]’s comment that [the child] may feel abandoned because – if the mother’s evidence is to be believed – his mother has left him and moved into a refuge and his psychological father, his stepfather, has abandoned him by moving out of the former matrimonial home and taking the child’s sister [G] with him, and, moreover, whether the child is aware that the maternal grandmother has threatened to go back to China and walk away from both the child and mother if the mother does not get the final orders that she seeks.
100.It is also possible that [the child] may have already found out that Mr [Whitby], the stepfather is not his biological father, and if so, he is receiving no psychological assistance to deal with such dramatic news. I raise again, with some concern, as I did more than three years ago in the interim decision on this very issue, that [the child] carries the father’s family name. He needs to know why.
Again, these are findings which are open on the evidence.
These findings informed the primary judge’s conclusions, which were:
119.Firstly, [the child] should be informed as to the father’s identity without delay and the child should receive the appropriate psychological support throughout that process. A final order to that effect will be made in the orders arising from these reasons.
120.Secondly, I find that the presumption favouring equal shared parental responsibility is rebutted, but I do not find that the mother should have sole parental responsibility for [the child]. The consequence of the Court’s decision at this time is that both parents retain parental responsibility by operation of law. The Court acknowledges that it may be required to make important long-term decisions for [the child] in the short-term; that is appropriate, and the Court will do so when necessary. I find it also appropriate for the New South Wales Department of Family and Community Services to be asked to intervene in these proceedings.
121.Thirdly, I do not find that orders should be made at this time for [the child] to spend time with the father. In saying that, I do not find that the child should never spend time with the father, as the mother seeks. It is an issue that needs further consideration by the Court following the matters that I have referred to; that is, [the child] receiving the psychological intervention and support that he needs, a further full assessment to occur and a further final hearing to determine that issue.
122.Fourthly, I find it appropriate that certain interim orders should be made that includes the following:
·The parties causing [the child] to receive psychological intervention to deal with his current emotional problems;
·The mother advise the Independent Children’s Lawyer in writing of the child’s primary place of residence and any person living in same accommodation within 24 hours of any change; and
·In the event that FACS fail to intervene in these proceedings, and subject to the parties having already complied with this order, the Independent Children's Lawyer make arrangements for the child to be told of his biological heritage by [Dr K] and for the purposes of facilitating this order, the father and the mother are to do certain acts and things.
Conclusion
These reasons have been somewhat discursive because of the mother’s failure to provide meaningful submissions. I have considered that I should myself look to see if there is an apparent or obvious error on the part of the primary judge, but bearing in mind what was said by the Full Court of the Federal Court in Bahonko v Sterjov (2008) 166 FCR 415:
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. 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.
(Citations omitted)
The primary judge was faced with a particularly difficult set of circumstances and competing proposals for orders. The mother sought that the child spend no time with the father. The father sought an order for such time. It was implicit in the mother’s case and explicit in the father’s case, respectively, that the child not be told or be told who is his father.
Alternatively, the father sought an order that the child live with him if the mother continued to fail to comply with court orders.
The ICL proposed a middle course which was that the issue of the child spending time with the father be deferred until after the child had been informed of his paternity and after psychological intervention, support and assessment.
The evidence from the three family consultants was unanimous and clear. It was, in their view, very much in the child’s long term interests to be told about his father. His Honour observed that the child carries the father’s surname and should know why.
There was also evidence of the child having psychological difficulties which were manifesting themselves in his behaviour at school. This was compounded by what the primary judge clearly considered to be the entirely unsatisfactory evidence from the mother about her present circumstances and those of the child.
Thus, in short, there was abundant evidence to support an order that the child be informed about his paternity and for psychological intervention. It was a course that was clearly open on the evidence. So too was the request to FACS.
There is no reasonable basis for suspecting that an appealable error has been committed and I am not satisfied that there has been a miscarriage of the primary judge’s discretion: House v The King (1936) 55 CLR 499.
I note that there is considerable force in the submissions of the ICL that the repeated appeals of the mother, including appeals from interim orders and orders to the same effect as earlier orders, are an abuse of process. This is particularly so given the absence of any proper grounds of appeal. This not only frustrates the efforts of the ICL but cannot be in the best interests of the child.
The appeal will be dismissed.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 6 April 2018.
Legal associate:
Date: 9 April 2018
0
7
1