WHITBY & ZELLER - [2016] FamCAFC 140

FAMILY COURT OF AUSTRALIA

WHITBY & ZELLER

[2016] FamCAFC 140

FAMILY LAW – APPEAL – Where the trial judge made orders in 2014 for the re-introduction of the father to the child – Where these orders were affirmed by the Full Court decision in Whitby & Zeller (No 2) [2014] FamCAFC 239 – Where the orders under appeal were made to facilitate these 2014 orders – Where no appealable error was demonstrated – Appeal dismissed.

FAMILY LAW – COSTS – Where the appeal was wholly unsuccessful – Costs orders made.

Family Law Act 1975 (Cth) s 117

Metwally v University of Wollongong (1985) 60 ALR 68
Whitby & Zeller [2014] FamCAFC 199
Whitby & Zeller (No 2) [2014] FamCAFC 239

APPELLANT:

Ms Whitby

RESPONDENT:

Mr Zeller

INDEPENDENT CHILDREN’S LAWYER:

Adams & Partners Lawyers

FILE NUMBER:

SYC

2228

2011

APPEAL NUMBER:

107

2016

DATE DELIVERED:

3 August 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

28 July 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

NA
Orders made on 18 July 2016

LOWER COURT MNC:

REPRESENTATION

THE APPELLANT:	In person
SOLICITOR FOR THE RESPONDENT:	Rafton Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Druitt

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Adams & Partners Lawyers

Orders made on 28 July 2016

The appeal EA 107 of 2016 against the orders of Judge Monahan made on 18 July 2016 is dismissed.
The appellant to pay the Independent Children’s Lawyer’s costs of the appeal in the sum of $2,000 within forty-two (42) days of these orders.
The appellant to pay the respondent father’s costs of and incidental to the appeal, such costs to be agreed or assessed and paid within forty-two (42) days of agreement or assessment.

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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 107 of 2016
File Number: SYC 2228 of 2011

Ms Whitby

Appellant

and

Mr Zeller

Respondent

and

Independent Children’s Lawyer

REASONS FOR JUDGMENT

By Notice of Appeal filed on 20 July 2016, Ms Whitby (“the mother”) appeals against orders made by Judge Monahan on 18 July 2016. The orders concern the parties’ son C (“the child”) who was born in 2008. Mr Zeller (“the father”) resists the appeal as does the Independent Children's Lawyer.
Further, by Application in an Appeal filed on 20 July 2016, the mother sought that the hearing of the appeal be expedited. The application for expedition was heard and expedition was granted on 26 July 2016, the appeal being set down for hearing on Thursday 28 July 2016.
A degree of urgency attended the appeal because the challenged orders were to be given effect on 29 July 2016. The mother sought a stay of those orders from the trial judge. The hearing of the stay was set for 1 August 2016 by which time a significant aspect of the orders would have taken effect. Thus the matter was expedited.
On 28 July 2016 orders were made dismissing the appeal and providing that the mother pay the costs of the father and Independent Children’s Lawyer. Reasons for that decision were reserved. These are the reasons.
In order to give context to the appeal, it is useful to set out some background to the parties’ dispute taken from earlier decisions (see Whitby & Zeller [2014] FamCAFC 199 and Whitby & Zeller (No 2) [2014] FamCAFC 239).

Background

The parties met in the People’s Republic of China. In 2001 the father came to live in Australia and has lived in Sydney ever since. In January 2008 the father returned to China on business and while there commenced a relationship with the mother. The child was born in China in 2008 and in 2009 travelled to Australia with the mother. The parties were married in Australia in 2009 and lived together until March 2010.
In October 2010, the parties separated and, without the father knowing, the mother and child left Australia for China and remained there until November 2013.
The father has had no contact with the child since October 2010.
During the mother’s absence, in April 2011, the father commenced parenting proceedings in the then Federal Magistrate’s Court (now Federal Circuit Court) which were later transferred to the Family Court. On 14 September 2012 that application was dismissed because the Court found that without knowing where the child was then living or in what circumstances, it could not be confident that the orders the father sought were in the child’s best interests.
The mother re-partnered in China and had a child with her new partner. They returned to live in Australia.
The father became aware that the mother and child had returned to Australia and in November 2013 he commenced parenting proceedings in the Federal Circuit Court and sought an order that the child spend time with him.
On 24 March 2014 orders were made in the Federal Circuit Court that the child be placed on the Airport Watch List and the mother was restrained from removing him from Australia.
On 22 July 2014 an Independent Children's Lawyer was appointed. The mother sought leave to appeal against the appointment of the Independent Children's Lawyer. Leave was not granted and the appeal was dismissed.
An interim hearing of the father’s application for parenting orders was conducted by the trial judge on 3 September 2014. The mother opposed there being any order for time between the child and the father because she said the child did not know the father was his father and instead believed that the mother’s new partner was his father. Further, the mother argued that it was too soon to introduce the father to the child.
On 12 September 2014 the trial judge made interim parenting orders which included an order that the father spend time with the child, the time to be supervised at a contact service.
On 16 September 2014 the mother filed an appeal against those orders. On the same date she filed an application that the order for supervised time with the father be stayed pending the outcome of the appeal. That application was heard on 9 October 2014 and the trial judge stayed the orders made on 12 September 2014.
The appeal was heard by the Full Court on 28 November 2014 and dismissed on 15 December 2014.
On 7 January 2015 the mother filed an application for special leave to appeal to the High Court.
The matter was again before the trial judge on 2 December 2014 when it was adjourned to 28 January 2015. On 28 January 2015 his Honour ordered that the stay continue pending the outcome of the application for special leave and that it “be lifted in the event that the High Court of Australia (“the High Court”) makes an Order either withdrawing and/or dismissing the Mother’s application for special leave to appeal or in the event it is clear that the High Court considers that the Mother has abandoned the Appeal.” The proceedings were adjourned to 24 April 2015 and again adjourned to 7 August 2015, pending the outcome of the application to the High Court.
Special leave to appeal to the High Court was refused on 13 May 2015 and the matter was listed before the trial judge on 18 May 2015 at the request of the Independent Children’s Lawyer. His Honour listed the matter for directions on 9 June 2015.
On 9 June 2015 the trial judge ordered the preparation of a Family Report and adjourned the proceedings to 15 April 2016.
On 11 April 2016 the report by the Family Consultant, Ms A, dated

6 April 2016, was released to the parties pursuant to an order made by his Honour in chambers.
The Family Consultant addressed the issue of informing the child of his paternity and how that could be effected. She said:
31.To address the first issue, being that of whether [the child] should be told about his biological father. The short answer to this is that he should. Furthermore, it may be more in his interests to tell him sooner rather than later, whilst he is still at an age to be amenable to listening to his parents (being at this stage his mother and stepfather), being reassured by them and to accepting their explanations. It is of concern, however, that [the mother] appears to see the only explanation that she could give to [the child] is “the truth” about his father, which, she is right in thinking has the potential of damaging him. There are other explanations that can be given, which would not be lies but would also not be so traumatic as [the mother’s] account of what happened in her marriage to [the father] and why [the father] has not had contact with [the child]. These are things that he has no need to be confronted with at his age when his ability to process them is still limited. The reasons that [the child] should be told about his paternity are: genetics, that is, so that he can have access to his full genetic history, which could be helpful in relation to things such as genetic vulnerability to certain illnesses; identity, that is, to reduce the risk that, at some point, he finds out that one of his parents is not who he thought him to be and his mother did not tell him, thus possibly catapulting him into a state of uncertainty about himself and people he had trusted; and, finally, at some point, [the child] is sure to ask the question as to why he carries a different surname from his mother, stepfather (apparently known to him as his father) and sibling.
32.The next question to be addressed is that of whether [the child] should be reintroduced to his father, and if so, how to do this in a way that is least disruptive to him and holds the best chance not to cause him excessive anxiety. The benefit to [the child] of a reintroduction, done in the right way, would be that there would be no mystery to be solved about who his biological father might be and what he might be like. That is, it would satisfy any curiosity [the child] might feel about his biological father from time to time when he comes to know of his existence. If the reintroduction were able to be effected without too much drama but rather in as natural and stress-free way as can possibly be managed then this would be the best way for it to occur. If other paternal family members were to be able and willing to act as a gateway to such a reintroduction and [the mother] finds it acceptable for them to do so, which, as she suggested it, she would appear to, then ways might be found of setting something up for this to occur through Skype and/or telephone. There would appear to have been some contact at various times between [the father’s] sister and the maternal family. Perhaps the question could be asked as to whether she would be able or willing to facilitate something of this sort between her parents and [the child] (facilitated from her end by [the mother]).
…
34.The disadvantages associated with reintroduction depend on how it is done, how the information regarding the biological father is communicated to the child and how [the father] behaves after he has been reintroduced, if indeed he is. It does carry the potential to disrupt [the child’s] life and, in this way, his further emotional and psychological development, as well as other aspects of his life, if it were to be done in a way that caused unnecessary fear or if it were to threaten, or be perceived to threaten, the stability of his current family or if [the father] were to attempt to explain to [the child] his side of the story as to why he has not seen him for so long.
35.Finally, there is the question of whether it would be of benefit to [the child] to spend regular time with his biological father. To some degree the answer to this questions [sic] is to be found in a testing of the evidence in relation to the allegations of family violence and the different accounts given by each parent in relation to [the father’s] attempts to see [the child] after October 2010. If the allegations of the extent of family violence during the marriage are found to be based in fact, then one of the risks of [the child] having regular, frequent contact with [the father] would be that it might disrupt [the mother’s] parental functioning in that it would bring her back into the orbit of someone who she has experienced as having behaved in frightening ways both towards her and, according to her allegations, towards [the child].
(Family Report dated 6 April 2016, page 15-18)
She thus recommended that the child be told of his paternity by his mother and, if her suggested means of achieving that through the assistance of relatives is unworkable that:
41.… after having told the boy of his paternity, the mother prepare [the child] to receive cards from time to time from his biological father and that arrangement be made for the reintroduction to occur with the assistance of contact centre staff.
(Family Report dated 6 April 2016, page 19)
On 15 April 2016 Judge Monahan ordered the mother to bring the child to the Child Dispute Services and that a Family Consultant advise the child of his paternity.
On 23 May 2016 a Family Consultant, Ms B, provided a memorandum to the court in which she referred to his Honour’s order of 15 April 2016 and noted that the mother attended an appointment pursuant to his Honour’s direction. She concluded her memorandum by agreeing with the recommendations in the earlier report but said:
Ms [A] did, however, recommend that [the child] be “told about his paternity by his mother…”. [The mother’s] evident incapacity or total resistance (or both) to doing this could have been worked around if she could have accepted that someone else would tell [the child], albeit a stranger to him, if this could occur within a context of a therapeutic process and/or if [the mother] could support [the child] through what would inevitably be an emotionally confusing and difficult period for him at the time and subsequently. Neither of these scenarios appears possible.
In my opinion it would be detrimental for [the child] to receive puzzling and perhaps frightening information of huge significance about his life from someone he has never met and who he will likely not have any further dealings with.
…
I am aware that not proceeding with the order could appear to endorse [the mother’s] unfortunate stance and at the same time deprive [the father] of what might be seen to be his right to have his son know about him but I respectfully recommend to the Court that so proceeding would be against [the child’s] best interests at this stage.
(Memorandum dated 23 May 2016, page 2-3)
On 15 June 2016 the matter returned to court and his Honour made the following orders:
1.All extant applications be adjourned to this Court on 23 August 2016 at 9:30am for directions (“the directions hearing”).
2.Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the date of the directions hearing will not be heard on that date without the express leave of Judge Monahan, however directions in respect of that Application or Objection may be given.
3.The Independent Children’s Lawyer be granted liberty to apply in the event that these orders are not complied with.
AND THE COURT ORDERS, PENDING FURTHER ORDER, THAT:
4.Within seven (7) days each party do all acts and things necessary to arrange an appointment with Dr [D] for the purpose of
re-introduction and ongoing support between the father and the child.
5.Following the initial appointment with Dr [D], each party must comply with and attend any further appointment made by
Dr [D].
6.Leave be granted to the Independent Children’s Lawyer to provide a copy of the Family Report, any court memorandums, any court orders and any other document consented to by the parties to
Dr [D].
7.Each party bear their own costs associated with Dr [D’s] services and half of the costs associated with the cost of the child.
AND THE COURT NOTES THAT:
A.The parties are at liberty to obtain a referral for a mental health plan in order to reduce the costs associated with Dr [D].
B.The purpose of the directions hearing is to:
a.receive an update in respect of the re-introduction process with Dr [D], and ascertain whether that process has concluded or is continuing;
b.receive an updated in respect of the ongoing availability of the Contact Centre; and
c.make further directions in the matter which may include consideration of listing this matter for final hearing.
C.A Mandarin interpreter will be arranged for the mother for the first ninety (90) minutes of the directions hearing.
D.Paragraphs 4 to 7 and Notation A herein were opposed by the mother.
E.It is expected that an application will be made at some point in relation to Legal Aid’s costs.
F.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
It seems that because the nominated psychologist was unavailable, application was made to his Honour to substitute Ms F in the orders as the person who would effect the introduction of the child to the father. On 8 July 2016 by order made in chambers, the matter was listed before his Honour on 18 July and the mother was directed to attend personally.
On 18 July 2016 his Honour ordered:
1.That the orders made on 15 June 2016 be amended to replace all references to “Dr [D]” to “Ms [F]”.
2.That each party shall attend all appointments nominated by
Ms [F] and facilitate the child attending any such appointments including but not limited to:
a.Friday 22 July 2016 at 3:30pm for the mother and child;
b.Friday 29 July 2016 at 3:30pm for the father and child (with the mother to bring the child to the appointment); and
c.Friday 5 August 2016 at 3:30pm for the child (with the mother to bring the child to the appointment)
AND THE COURT NOTES THAT:
A.Paragraphs 1 and 2 herein reflect a proposed minute of order handed up by the Independent Children's Lawyer, and were made with the consent of the father and were not formally opposed by the mother.
B.The matter remains listed for a directions hearing on 23 August 2016 at 9:30am.
C.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

The appeal

The mother appeals against his Honour’s orders of 18 July 2016. It seems however, that the mother’s real contention concerns his Honour’s orders of

15 April 2016 as well as the machinery orders of 15 June 2016.
The grounds of challenge to his Honour’s orders are:
1. It’s not emergency. The order with such a short notice is unreasonable, maybe illegal.
2. There is no admission from Dr [D] as Judge asked
3. ICL’s words are full of lies, care nothing about children. He is irresponsible and unqualified for this case.
4. 3 organisations’ 5 consultants’ actions and reports have already proved reintroduction should stop and grant sole parenting order to the mother. One instance memorandum says clearly that so proceeding would be against the child’s best interests at this stage.
5. The whole case becomes ridiculous and against the spirit of the children’s law system. see “to everyone it may concern”
6. One reason for this order is “were not formally opposed by the mother”. I, the mother comes to appeal. How formally can she behave. Actually she objects this long time ago formally.

During the appeal hearing, the mother, who appeared for herself with the assistance of an interpreter, gave some clarification of the asserted grounds. It must however be said that at the heart of this appeal is the mother’s contention that the orders of 12 September 2014, the orders providing for the father and child to spend time together, should not have been made.

Ground 1

The mother contended that after having made orders for supervised contact between the father and child in September 2014, his Honour “suddenly” made orders which rushed the process by which the child would be introduced to the child. She contended that the process risked harming the child and the orders of 12 September 2014 were not in the child’s best interests.
The orders for supervised time were challenged by the mother both to the Full Court where the appeal was dismissed, and to the High Court, where her application for special leave was also dismissed. They remain on foot. After the bases on which the stay of those orders ended, the dismissal of the appeal and a refusal of special leave, the orders were no longer stayed and the trial judge ordered the preparation of a family report.
Despite the mother’s assertion that the reintroduction process has been rushed, the orders made on 15 June 2016 were machinery orders designed to implement the orders of September 2014, the operation of which was no longer stayed.
No error has been demonstrated.

Ground 4

This thrust of this ground is that there is a body of evidence to the effect that there should be no reintroduction of the child to the father. The mother referred to Ms B’s memorandum of May 2016 as demonstrating that opposition.
True it is that Ms B recommended that Order 4 made on 15 April 2016 not be implemented, however, her recommendation was not determinative of the issue. Her recommendation too must be seen in the context of the orders of September 2014 and the mother’s persistent resistance to their being put into effect.
The weight or importance to be attributed to evidence such as Ms B’s recommendation is a matter exquisitely in the realm of the trial judge. To demonstrate appellate error, it must be shown that his Honour’s conclusion and consequent order to facilitate his earlier order was “plainly wrong”. The mother has not established that and this ground will fail.

Ground 2

By this challenge, the mother said that she was told that Dr D was a “great” person to assist the child to understand his paternity. However, she seemed to complain that she was not given a similar recommendation about

Ms F and appeared to challenge her capacity.
His Honour’s order adopts the recommendation of the Independent Children's Lawyer on whose draft minute of orders the orders of 15 June 2016 were based. His Honour was entitled to accept that recommendation. It is also important to observe that the mother did not raise this challenge to his Honour on the day on which the orders were made, although she said she did not agree that the orders should be made (transcript 15 June 2016, page 3 line 24).
Had she raised her concerns about Ms F’s capacity to effect the introduction with his Honour, perhaps evidence of further information could have been provided to his Honour on the matter. That she did not means that she cannot raise it on appeal (see Metwally v University of Wollongong (1985) 60 ALR 68).
In any event nothing put by the mother either orally or in her written documents demonstrates any error by his Honour.
This challenge is not made out.

Ground 3

This ground articulates complaints about the Independent Children’s Lawyer in a generalised way and in a way entirely unrelated to the orders under challenge. It is clear that the mother has been dissatisfied with the way in which the Independent Children's Lawyer has discharged his role and as I have indicated, unsuccessfully, sought to challenge his appointment. The mother made no complaint to his Honour about the conduct of the Independent Children's Lawyer during the hearings to which these orders relate.
For those reasons there can be no challenge to the continued appointment of the Independent Children’s Lawyer and this asserted ground will fail.

Ground 5

While not entirely clear, it seems that the mother contends that the orders made by the trial judge in 2014 and facilitated by his orders of 2016 are not in the child’s best interests. The mother argued that the reintroduction of him to the father would cause the child harm.
The correctness of his Honour’s order of 2014 was affirmed by the Full Court in 2014. The orders, the subject of challenge, are machinery orders designed to implement his Honour’s stated intention.
Nothing put on appeal supports the contention that the orders are not in the child’s best interests and this challenge, if it can indeed be mounted, is not made out.

Ground 6

This ground challenges the contents of Notation A to the order of 18 July 2016.
The notation to the order of 18 July 2016 says:
A.Paragraphs 1 and 2 herein reflect a proposed minute of order handed up by the Independent Children's Lawyer, and were made with the consent of the father and were not formally opposed by the mother.
A reading of transcript of that appearance makes it clear that the mother did oppose the making of the order. However, his Honour’s notation is a mere slip or if not, an error of no materiality.
This ground is not made out.
Thus the appeal fails.

Costs

At the conclusion of the hearing and on the orders dismissing the appeal being made, both the Independent Children's Lawyer and the father’s solicitor sought an order for costs of the appeal. The Independent Children's Lawyer sought its costs in a fixed sum being $2,000.
The awarding of costs on appeal is governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”) which provides that, generally parties to proceedings under the Act will each be responsible for his or her own costs. This general rule is however subject to s 117(2) which provides that if there are circumstances that justify it, the court may make an order for costs. In considering whether such an order is to be made, the court must have regard to the provisions of s 117(2A). Relevant to this matter is s 117(2A)(a), the financial circumstances of the parties; and (e) whether any party to the proceedings has been wholly unsuccessful.
The mother’s appeal has been wholly unsuccessful and had no demonstrable merit, being merely an attempt to go behind the decision of the Full Court upholding his Honour’s orders of 12 September 2014. For that reason alone, in my view, the mother should be ordered to pay the costs both of the Independent Children’s Lawyer and the father.
The mother says that she is in employment and earns $35,000 gross per annum.
I am satisfied that it is appropriate that the mother be ordered to pay the costs of the Independent Children’s Lawyer in the sum indicated and that the mother should pay the father’s costs of and incidental to the appeal as agreed or assessed.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on

3 August 2016.

Associate:

Date: 3 August 2016