WILLS and SMITH

[2017] FCWA 74

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: WILLS and SMITH [2017] FCWA 74

CORAM: O'BRIEN J

HEARD: 12 MAY 2017

DELIVERED : 12 JUNE 2017

FILE NO/S: PTW 7011 of 2012

BETWEEN: MR WILLS

Applicant

AND

MS SMITH
Respondent

Catchwords:

APPEAL FROM DECISION OF FAMILY LAW MAGISTRATE - where Appellant contends that trial Magistrate erred by failing to appoint an Independent Children's Lawyer on his own initiative when neither party sought such an appointment - where Appellant contends that trial Magistrate erred by failing to appoint a Single Expert Witness when no application for such an appointment was made until after evidence had closed at trial - where Appellant contends that trial Magistrate erred by failing to request a family report when no such report was sought by either party - where other grounds of appeal challenge findings as to credibility and weight given to various considerations - appeal dismissed.

Legislation:

Family Court Act 1997 (WA) s 66C, s 73, s 211(2)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 1.04, r 15.42, r 15.45

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr H Rigby

Respondent: Mr D Klicker

Solicitors:

Applicant: Haydn Rigby Lawyers

Respondent: Beacon Family Law

Case(s) referred to in judgment(s):

Bondelmonte v Bondelmonte (2016) 91 ALJR 402

CDW v LVE [2015] WASCA 247

Devries v Australian National Railways Commission (1993) 177 CLR 472

Fox v Percy (2003) 214 CLR 118

Hoult & Hoult (2013) FLC 93-546

House v The King (1936) 55 CLR 499

Norbis v Norbis (1986) 161 CLR 513

Re K (1994) FLC 92-461

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Introduction

1[Mr Wills] (“the appellant”) seeks to appeal against parenting orders made by a Family Law Magistrate on 27 October 2016 after a two day trial. The appeal is opposed by [Ms Smith] (“the respondent”).

2The orders subject of the appeal provide for the parties to have equal shared parental responsibility for their children [Child A], born [in] 2008, and [Child B], born [in] 2010 [(“the children”)]. The orders further provide for the children to live with the respondent and spend time with the appellant on alternate weekends during school terms, for specified portions of school holiday periods, and on particular special occasions.

3Those orders were made in circumstances where the children had, since the parties separated in July 2012, lived primarily with the appellant and spent time with the respondent.

4The learned trial Magistrate made various findings regarding the appellant’s criminal record, including his conviction and imprisonment for assault causing grievous bodily harm and convictions for criminal damage and other offences. His Honour made findings as to specific incidents of family violence, including one in which the appellant head-butted the respondent. He had before him evidence of abusive communications from the appellant to the respondent and made further findings as to incidents in which the appellant interfered inappropriately with the children’s time with their mother.

5His Honour was satisfied that the children had a “close bond” and a “close and loving relationship” with the respondent and a “very good relationship and bond” with the appellant. He expressed confidence in the respondent’s willingness to encourage an ongoing meaningful relationship between the children and the appellant and pessimism as to the prospects of the appellant encouraging the children’s relationship with the respondent.

6His Honour gave significant weight to his finding that in the respondent’s care the children would be able to enjoy their aboriginal culture and heritage, while in the appellant’s care they would not. He described the appellant’s attitude to parenting as “immature and un-thinking” and the respondent as demonstrating a “balanced and thoughtful approach to parenting issues”.

Relief sought by the appellant

7At the hearing on 12 May 2017 counsel for the appellant clarified the relief sought in the event that the appeal was successful. In that event, the appellant sought that the orders of 27 October 2016 be set aside in their entirety, that an Independent Children’s Lawyer (“ICL”) be appointed, and that the matter be remitted for rehearing before a different Family Law Magistrate. He acknowledged that it was likely to be appropriate for interim orders to be made to maintain the current living arrangements for the children pending the appointment of an ICL and any further interim argument.

The statutory framework

8The parties were not married. The proceedings were determined by a Family Law Magistrate. The only orders made were parenting orders. Accordingly, an appeal lies to this Court, but leave to appeal is required: s 211 Family Court Act 1997 (WA) (“the Act”); CDW v LVE [2015] WASCA 247.

9The requirement for leave to appeal was overlooked by the lawyers for both parties. At the hearing on 12 May 2017, having had that oversight drawn to his attention, counsel for the appellant made an oral application for leave; that application was not opposed by the respondent. In circumstances where, notwithstanding the characterisation of the orders as interlocutory, the making of those orders brought the proceedings then before the court to a final conclusion, I considered it appropriate to grant leave. I note further that, had these parties been married, no leave to appeal against parenting orders would be required, whether the orders were made at the conclusion of a trial or at an interim hearing.

10The appeal is by way of re-hearing, but the court may receive as evidence any record of evidence given, including any affidavit filed or exhibit received, in the primary proceedings. The court may make such decree as it thinks fit, including a decree affirming, reversing or varying the decree the subject of the appeal: s 211(2) of the Act.

The relevant principles

11The appeal seeks to overturn a discretionary judgment. As the High Court recently observed in Bondelmonte v Bondelmonte (2016) 91 ALJR 402 at [31]:

It is only an error of… [the kind referred to in House v The King] which will permit an appellate court to interfere with parenting orders made by a primary judge under s 65D of the Family Law Act. It is well recognised that orders made in the exercise of a judicial discretion under the Family Law Act, including orders as to the alteration of property interests, orders as to custody and parenting orders, can be set aside only on a strictly limited basis, in accordance with House v The King.

12The orders in the present proceedings were made under s 89 of the Act, which is in identical terms to s 65D of the Family Law Act 1975 (Cth) (“the Family Law Act”).

13The relevant passage from House v The King (1936) 55 CLR 499 at p 504 to 505 says this:

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 grounds of appeal

14The trial proceeded without the learned trial Magistrate having either the assistance of an ICL or the benefit of expert evidence. The memorandum prepared by a Family Consultant at the conclusion of the case assessment conference on 24 July 2015 was in evidence; neither party sought to cross-examine the Family Consultant. The court did not have the benefit of a family report, nor was the preparation of any such report sought by either party.

15Central to a number of the grounds of appeal advanced by the appellant are the propositions that:

1.the learned trial Magistrate should not have proceeded to hear and determine the case, nor make the orders which he made, without the benefit of expert evidence or the assistance of an ICL; and

2.neither party having sought the appointment of an ICL or single expert witness (“SEW”), nor the preparation of a family report, His Honour was in error in not taking steps of his own initiative to arrange them.

16Division 11A of Pt 5 of the Act sets out the principles by which child-related proceedings are to be conducted. The court is to “actively direct, control and manage the conduct of the proceedings” and may exercise power under the division on its own initiative. The court must “decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily”. In giving effect to the principles by which child-related proceedings are to be conducted, the court may give directions or make orders about evidence, including who is to give evidence, and the matters in relation to which evidence is to be given.

17The provisions of Div 11A must not, however, be misunderstood. They do not in any sense shift the primary responsibility for the conduct of the proceedings away from the parties and onto the court, nor impose a purely inquisitorial model of proceedings. Rather, they ensure that the court manages the conduct of the proceedings by the parties, in accordance with the principles espoused in s 202B.

18It is against that background that the grounds of appeal directed to the absence of an ICL, SEW or family report must, if they are to succeed, identify error by the learned trial Magistrate of the nature described in House v the King.

19A ground of appeal asserting that the learned trial Magistrate was biased against the appellant due to the appellant’s criminal history, or otherwise inappropriately took that history into account, was abandoned at the hearing before me.

20Embedded in one of the remaining grounds of appeal was a challenge to the findings of the learned trial Magistrate as to the credibility of the parties. Further grounds asserted that His Honour had failed to properly take into account or give due weight to the fact that the children had lived since separation with the appellant (who provided a “good level of care”) and that His Honour had failed to properly take into account or give due weight to certain negative aspects of the respondent’s personal and parenting history.

21Four of the seven grounds of appeal contain references to sections of the Family Law Act. Of course the proceedings were not brought, nor were the orders appealed against made, pursuant to that Act. Sensibly, counsel for the respondent agreed that references in the grounds of appeal and written submissions filed on behalf of the appellant to the wrong legislation could be read as if they referred to the identical sections in the Act and that the grounds of appeal could be taken to be amended accordingly.

22It is convenient to set out each of the grounds of appeal in full. In each case, the errors are as they appear in the original.

Ground one

23The first ground of appeal asserts that:

The learned Magistrate failed to take into account the best interests of the children which were paramount in failing to exercise his discretion to appoint an independent children’s lawyer under s.68L(2) of the Family Law Act 1975 which he should have done under his own initiative under s.68L(4) of that Act given there were numerous allegations of spousal and child abuse and neglect and serious intra-parental conflict apparent on the face of the parties’ trial affidavits and interim affidavits.

24While the ground of appeal as drafted asserts that the learned trial Magistrate “failed to take into account the best interests of the children”, it was clear from the submissions of counsel that the argument pressed is that His Honour erred in failing to appoint an ICL of his own initiative.

25The primary proceedings were commenced by the filing of the respondent’s Form 1 application on 22 April 2015. While the procedural orders sought in that application included a proposal that the parties jointly appoint a SEW, no order was sought for the appointment of an ICL.

26The case assessment conference held on 24 July 2015 did not result in any recommendation by the Family Consultant for the appointment of an ICL.

27The respondent filed an amended Form 1 application on 18 September 2015. In that document, she withdrew that part of her application which proposed the joint appointment of a SEW and sought, at paragraphs 18 to 22 of the interim and procedural orders sought, orders directed towards the appointment of an ICL.

28The appellant did not file a Form 1A response and supporting documents until 8 February 2016, by which time he was represented by the lawyers who represented him both at trial and on appeal. In that document, he indicated his agreement to some of the interim and procedural orders sought by the respondent; relevantly for the purposes of this appeal, he did not agree to the orders proposed for the appointment of an ICL.

29In the meantime, at a hearing before the learned trial Magistrate on 18 January 2016, orders had been made by consent to list the matter for trial to commence on 30 June 2016. The appointment of an ICL was not pursued by the respondent at either the hearing on 18 January 2016 or the subsequent monitoring hearing on 8 February 2016, at which the appellant was given a still further extension of time within which to file his documents.

30The parties were next before the court on 29 February 2016, when orders were made setting the timetable for the filing of their trial affidavits and other materials for the purposes of the listed trial. Again, the question of the appointment of an ICL was not pursued by either party.

31The trial commenced as scheduled on 30 June 2016. The respondent’s case was opened and completed. After the lunch adjournment, the appellant’s case opened. While counsel made certain observations in opening about the possibility of expert evidence being sought (a topic to which I will return in dealing with the relevant ground of appeal) no mention was made of an ICL.

32It was not until the appellant’s case had closed, and in the course of his closing submissions, that counsel raised for the first time at trial the possibility of the appointment of an ICL, and even then tangentially.

33The following exchange appears from the transcript on page 67:

[MR RIGBY]: But I do repeat the point I made the other day – or yesterday, rather that if your Honour is minded to reverse care or grant shared care to the applicant, since the main ground for that is the unfit parent ground, as far as the respondent is concerned, a lot of that evidence is largely – those allegations are fairly open. A lot of it relies on what the children have reported and that – a decision along those lines to reverse care or share care would be unsound without the benefit of a professional opinion.

Now, I note that the applicant earlier on had sought the appointment of an Independent children’s lawyer, maybe in hindsight that might have been a good way to go. So it’s not procedurally ideal now to say that that should be the case but I guess, considering ultimately interests of the children I would have thought that a decision reversing care based on shared care should be informed by such an opinion. So I make that application now, your Honour, and no doubt my learned friend will have something to say about that in his submissions. I did canvass it with him briefly this morning, I understand that they’re not too keen on that and we will – he will address you on it accordingly.

[HIS HONOUR]: So your application – your client’s application now is to adjourn the proceedings part heard and to be given some time to file and serve an application to appoint a single expert?

[MR RIGBY]: That would be our application, your Honour, yes.

34It will be seen that even at that late stage, while he foreshadowed an application for the trial to be adjourned part heard to enable the appointment of an ICL, no such application was made. Rather, counsel sought an adjournment so as to file an application for the appointment of a SEW.

35The oral application for an adjournment for that purpose was dismissed. The dismissal of that application is not itself appealed, nor is it suggested by any of the grounds of appeal that his Honour was in error in that regard. Rather, the grounds of appeal that criticise His Honour’s failure to appoint an ICL or a SEW are founded on the proposition that His Honour should have done so of his own volition, at some unspecified point in the proceedings.

36It is against that background that the first ground of appeal falls to be considered.

37Counsel for the appellant referred to Re K (1994) FLC 92-461, in which the Full Court canvassed the role and functions of a separate representative (as ICL’s were then described). The Full Court said at p 80,773 that in the absence of statutory guidelines it was thought “appropriate [to] endeavour to give some assistance and guidance to judges, judicial registrars and registrars as to when such an appointment should be made”.

38Consistent with the observations of the High Court in Norbis v Norbis (1986) 161 CLR 513 at [519] to [520] as to the role of intermediate courts of appeal in providing “guidance which falls short of constituting a binding rule as to the manner in which discretion should be exercised…”, the Full Court in Re K suggested a series of guidelines as to circumstances in which an appointment “should normally be made”, subject to the broad general rule that the court “will make such appointments when it considers that the child’s interests require independent representation”.

39Counsel for the appellant identified a number of the circumstances so suggested as being present in this case. Counsel for the respondent did not dispute that identification.

40The presence of those circumstances however does not of itself mean that the learned trial Magistrate could be said to have made an error of the nature contemplated in House v The King in failing to appoint an ICL, even had the parties actively sought that he do so.

41As the Full Court said in Re K at p 80,773:

The guidelines that we propose are simply guidelines; they are not rigid rules of law and it does not follow that a departure from them will necessarily vitiate a judgment, although judges, judicial registrars and registrars should, we think, give sufficient reasons for departing when they consider a departure is appropriate. Similarly the guidelines do not propose to lay down a comprehensive code and there will be a number of occasions when separate representatives will be appointed in circumstances where the guidelines are silent.

42Counsel for the appellant sought to criticise the learned trial Magistrate by reference to that passage, asserting that His Honour was in error by failing to give “sufficient reasons for departing” from the relevant guideline. Quite how His Honour could be criticised for failing to give reasons for not acceding to an application that was never agitated by the parties is not clear.

43Counsel argued that, regardless of the failure of the parties to agitate the question, His Honour fell into error by not appointing an ICL of his own initiative. It is true, as counsel pointed out, that the court has the power to appoint an ICL of its own initiative. That does not, of course, mean that the court has a duty to do so in any given case; rather, the power may be exercised as a matter of discretion in an appropriate case.

44In the exercise of that discretion, the court would be entitled to take into account not only the guidelines set out in Re K, and the evidence available to the court, but also factors relating to the likely availability of Legal Aid funding for the provision of an ICL and the desirability for both the parties and the children of a timely resolution of the proceedings.

45Many of the parenting cases that come before the court present circumstances which meet one or more of the guidelines set out in Re K. Only a small number of those cases proceed with the benefit of an ICL. There was nothing in the factual matrix of this case to distinguish it from many others, nor to support a suggestion that the failure to appoint an ICL evidenced a failure to take into account relevant considerations, or was unreasonable or plainly wrong.

46The proposition that the case could not properly be determined without the assistance of an ICL in any event misapprehends the role and function of an ICL. It also overlooks the primary responsibility of the parties to put relevant evidence before the court. It should not be forgotten that one of the circumstances expressly identified by the Full Court in Re K as indicating that the appointment of an ICL would be appropriate is a “custody case where none of the parties are legally represented”. In the present case both parties were represented at trial by their present solicitors and counsel.

47The appellant has failed to show that the learned trial Magistrate made an error of the nature described in House v The King, or any error at all, in failing to appoint an ICL on his own initiative.

48Ground one is without merit.

Ground two

49The second ground of appeal asserts that:

The learned Magistrate failed to take into account the best interests of the children which were paramount in failing to exercise his discretion under s.62G(2) of the Family Law Act 1975 to direct a family consultant to give a report to the court on such matters as the court would properly considered desirable, namely investigating and reporting on the numerous allegations of spousal and child abuse and neglect and serious intra-parental conflict apparent on the face of the parties’ trial affidavits and interim affidavits and adjourning the proceedings under s.62G(3) pending the provision of such a report.

50At no point in the proceedings did either party apply for any order under s 73 of the Act, which is in identical terms to s 62G of the Family Law Act.

51Again, while the ground of appeal as drafted asserts that the learned trial Magistrate “failed to take into account the best interests of the children”, it is clear from the arguments advanced by counsel that the criticism raised is that His Honour failed to take steps of his own initiative to direct the preparation of a report by a Family Consultant.

52The appellant appears to have overlooked the fact that the learned trial Magistrate, at an early stage in the proceedings and of his own initiative, ordered the parties to attend a case assessment conference with a Family Consultant. That conference took place on 24 July 2015 and the memorandum reporting on it was in evidence. It is unnecessary for the purpose of these reasons to canvass the content of that memorandum in detail; it is sufficient to observe that the Family Consultant specifically addressed the proposals of the parties, issues raised regarding drug and alcohol abuse, family violence and harm to the children, the parenting capacity of each of the parties and their willingness to promote the relationship of the children with the other parent, the dynamic between the parents, and other issues.

53The Family Consultant was not required by either party to attend trial for the purposes of cross-examination.

54Neither party sought the preparation of any further report, let alone an adjournment of the proceedings for that purpose. Even in the belated submissions made by counsel for the appellant at trial in the course of his closing address, no reference to a Family Consultant was made.

55No error on the part of the learned trial Magistrate has been established. Ground two is without merit.

Ground three

56The third ground of appeal asserts that:

The learned Magistrate failed to take into account the best interests of the children which were paramount in failing to properly exercise his discretion under Rule 15.45(1) of the Family Law Rules 2004 to appoint a single expert on his own initiative to investigate and report on the numerous allegations of spousal and child abuse and neglect and serious intra-parental conflict apparent on the face of the parties’ trial affidavits and interim affidavits.

57Again, while the ground of appeal as drafted asserts that the learned trial Magistrate “failed to take into account the best interests of the children”, it is clear from the arguments advanced by counsel that the criticism raised is that His Honour failed to take steps of his own initiative to appoint a SEW. Counsel submitted that “no sensible decision [could] be made without the benefit of expert opinion”.

58Rule 15.45 is in the following terms:

Order for single expert witness

(1)The court may, on application or on its own initiative, order that expert evidence be given by a single expert witness.

(2)When considering whether to make an order under subrule (1), the court may take into account factors relevant to making the order, including:

(a)the main purpose of these Rules (see rule 1.04) and the purpose of this Part (see rule 15.42);

(b)whether expert evidence on a particular issue is necessary;

(c)the nature of the issue in dispute;

(d)whether the issue falls within a substantially established area of knowledge; and

(e)whether it is necessary for the court to have a range of opinion.

(3)The court may appoint a person as a single expert witness only if the person consents to the appointment.

(4)A party does not need the court's permission to tender a report or adduce evidence from a single expert witness appointed under subrule (1).

59In considering whether to make an order for the appointment of a SEW, whether on application of the parties or on its own initiative, the court may take into account the main purpose of the Rules as set out in r 1.04 and the purpose of Pt 15.5 of the Rules as set out in r 15.42.

60Rule 1.04 is in the following terms:

The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.

61Rule 15.42 is in the following terms:

Purpose of Part 15.5

The purpose of this Part is:

(a)to ensure that parties obtain expert evidence only in relation to a significant issue in dispute;

(b)to restrict expert evidence to that which is necessary to resolve or determine a case;

(c)to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness;

(d)to avoid unnecessary costs arising from the appointment of more than one expert witness; and

(e)to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if necessary in the interests of justice.

62Both rules are self-explanatory.

63Again it must be noted that counsel for the appellant, in the course of his closing submissions at trial, made for the first time an application for the proceedings to be adjourned part-heard to permit time for him to file and pursue an application for the appointment of a SEW. That application was dismissed, and the decision of the learned trial Magistrate in that regard is not the subject of appeal; rather, it is contended that at some unspecified (and presumably significantly earlier) point in the proceedings, in the absence of any application by either party, His Honour should have appointed of his own volition an unnamed SEW, holding qualifications which the appellant has not seen fit to specify, to provide expert opinion on the matters broadly identified in the grounds of appeal.

64Even had the decision of the learned trial Magistrate to dismiss the application to adjourn the trial part heard itself been the subject of appeal, no error has been demonstrated. By the time that application was brought, His Honour had heard the evidence presented by the parties, which had been tested by cross-examination. Having heard the evidence, His Honour concluded that it was sufficient to enable him to properly determine the matter; that was a conclusion clearly open to him and entirely within his discretion. His Honour was also entitled, in considering the application for an adjournment, to have regard to the matters set out in rr 1.04 and 15.42.

65For the sake of completeness, I note the emphasis placed by counsel for the appellant on the proposition that “a decision reversing care” could not safely be made without the input of a SEW. In his oral submissions at the hearing of the appeal, counsel placed similar emphasis on the “reversal of care” in support of his arguments in relation to grounds one and two.

66Those arguments are consistent with the remarks of counsel in his opening address at the trial before the learned trial Magistrate, when the following exchange took place:

[MR RIGBY]: And ultimately I would submit that if your Honour is minded to order a reversal of care then it would obviously be a matter where perhaps your Honour should be informed by an expert. Our client would certainly be amenable to that and under cross-examination I think the applicant agreed that a counsellor’s views would certainly be invaluable.

[HIS HONOUR]: Just address that issue and how would that work in practical terms because the trial has commenced. It seems to me that the only way that could work is if there was a submission that the trial should be adjourned part-heard to enable that to occur.

[MR RIGBY]: That may have to be the options (sic) because the affidavits are full of conflicting evidence and I think there is very much evidence of conflict between the parties and a lot of material being put forward about what the girls want, but I suppose the elephant in the room is that there hasn’t been the opportunity for an expert to actually ask them what they want – to have that sort of third party professional opinion.

[HIS HONOUR]: Does your client say the children’s views about their living arrangements should carry some weight with the court given their ages?

[MR RIGBY]: I think they should, your Honour, yes. Yes, even though they are rather young. The evidence, I think, shows that they – well, through the applicant’s own evidence. You know, she is saying various things about what they want and, of course, the respondent’s position is exactly the opposite so it may be (indistinct) to have a third party assess that. (Indistinct) realise we are well and truly underway with the trial, but I think the trial itself with the evidence that has been given on oath perhaps emphasises that sort of point of difference even more.

[HIS HONOUR]: So is your client’s position then that this trial should proceed or is there an application, an oral application, to adjourn in order to gather a single expert witness report? If you don’t have those instructions I’m not pressing… At the moment I’m just hearing submissions. I haven’t heard a request to do anything about them.

[MR RIGBY]: No. Well, I think at this stage perhaps the matter should proceed, the [appellant] gives his evidence, but my point being that if your Honour is minded to do a reversal of care or even shared care as far as the parties are concerned they be instructed to have that third party opinion I suppose the trial would have to be adjourned in order to effect that.

[HIS HONOUR]: And the suggestion seems to be that that opinion should be gathered before the court makes any determination that might change the existing arrangements.

[MR RIGBY]: Yes, that would be my submission, your Honour.

[HIS HONOUR]: All right. Well, I will leave that to you to make that application if it’s required at the appropriate time.

67While it might be suggested, with due respect to learned trial Magistrate, that the “appropriate time” had almost certainly already passed by the time of that exchange, nevertheless it is clear that His Honour gave counsel for the appellant every opportunity to make whatever application he considered appropriate. That opportunity was not taken up until closing submissions, when it was addressed in the manner already set out in these reasons.

68I note also that the only reason advanced by counsel for the foreshadowed application for the appointment of a SEW was a perceived need for independent evidence as to the wishes of the children; the other matters raised in the ground of appeal were not then raised. As the High Court has recently pointed out in Bondelmonte, the legislation does not require that the court take active steps to ascertain the wishes or views of children the subject of parenting proceedings; rather, the legislation requires that the court consider any views expressed.

69The emphasis by counsel for the appellant, both at trial and in the appeal, on what he described as “reversal of care” seeks to elevate the significance of the additional consideration set out in s 66C(3)(d) of the Act beyond that attributed to it in either the legislation or the case law.

70The Act does not give priority to any of the additional considerations set out in s 66C(3) over any other. The court is required to consider all of the matters set out in sub-s 66C(2) and (3); that consideration will necessarily require the court to turn its mind to the relevance of each of those matters to the individual case and the weight to be attributed to them. That consideration of relevance and weight is at the heart of the exercise of discretion in determining what is in the best interests of the individual child.

71 It is to be expected that in a case such as this, where the children have been in the care of one parent for a significant period since separation, careful attention will be paid by the judicial officer to s 66C(3)(d). As appears below in the context of the consideration of ground six of the appeal, the learned trial Magistrate did just that.

72When considering the present ground, however, it is sufficient to observe that the fact that a “reversal of care” is sought by one party, and considered by the court, does not in turn lead to a presumption let alone a conclusion that the court has a duty to appoint on its own initiative a SEW to “investigate” the various allegations raised by the parties in their evidence, nor that a failure to do so constitutes any error.

73Ground three is without merit.

Ground four

74The fourth ground of appeal asserts that:

The Learned Magistrate, in finding that the Respondent was the chief perpetrator of family violence in the parties relationship when considering primary consideration under s.60CC(2)(b) of the Family Law Act 1975, failed to properly inform himself in any way by independent investigation such as by way of a Family Consultant report or single expert report or even by way of corroborative evidence but instead merely relied on evidence of the Applicant which the Learned Magistrate consistently said he ‘preferred’ without giving any adequate explanation therefor or properly canvassing matters affecting the Respondent’s credibility.

75It should first be observed that the learned trial Magistrate did not make the conclusive finding complained of. Rather, His Honour made specific findings about specific incidents about which both parties gave evidence. He was satisfied that the appellant had “committed acts of family violence towards the mother”, by specific reference to incidents in July 2012 and April 2015. On that basis, he was satisfied that the children had been exposed to family violence.

76Bearing in mind the definitions of “family violence” and “exposure to family violence” in the Act, that finding was clearly open to His Honour on the evidence.

77To the extent this ground complains that the learned trial Magistrate failed to appoint on his own initiative a SEW or seek a further report of a Family Consultant, those matters are already addressed above and need not be repeated.

78The ground otherwise can be taken to assert that His Honour fell into error either in his assessment of the credibility of the witnesses, or in failing to give adequate reasons for that assessment.

79The long-standing reluctance of appellate courts to interfere with credibility findings at trial are grounded in the inherent advantage held by the judicial officer at first instance. The relevant authorities were extensively canvassed by Thackray CJ sitting as a member of the Full Court in Hoult & Hoult (2013) FLC 93-546.

80As the High Court said in Devries v Australian National Railways Commission (1993) 177 CLR 472 at p 479;

More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against – that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable".

81In Fox v Percy (2003) 214 CLR 118 at [23] the High Court said this:

…[an appellate court] must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole. (footnotes omitted)

82As Thackray CJ pointed out in Hoult, their Honours went on to say at [30] to [31]:

It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (50). Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The ``Palitana'')…:

“. . . I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.”

Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances... Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.

83In the present case, the learned trial Magistrate made it clear that where the evidence of the parties conflicted, and subject to any specific findings to the contrary on any particular topic, he preferred the evidence of the respondent. It is clear from His Honour’s reasons for judgment that his conclusion in that regard was not based merely on his observations of the demeanour or appearance of the parties. He noted the willingness of the respondent to admit evidence that was in his words “potentially contrary to her own interests”, while the appellant was “very guarded about admitting anything that did not fit with the picture he had created”. He referred also to the evidence of an independent witness (who appeared only under subpoena) as to the appellant’s behaviour during a telephone call, in circumstances where the appellant denied the evidence given. He referred to the evidence of the appellant’s mother, which was not entirely consistent with that of the appellant himself, and referred further to the reluctance of the appellant to give accurate evidence as to his criminal record. Abusive text messages from the appellant to the respondent were in evidence.

84The appellant has not demonstrated either that the learned trial Magistrate fell into error in his assessment of the credibility of the parties, or that his Honour gave inadequate reasons for that assessment.

85Ground four is without merit.

86As already noted, during the course of oral submissions counsel for the appellant abandoned ground five.

Ground six

87The sixth ground of appeal, as amended on the hearing of the appeal, asserts that:

The Learned Magistrate, when determining the likely effect of separation on the children from the Respondent under s.60CC(d) of the Family Law Act 1975, failed to take into account or alternatively failed to give due weight to the fact that the Respondent had been primary carer of the children for the past 4 years and had provided them, in his Honour’s words, with a ‘good level of care’.

88My observations above as to the apparent elevation by the appellant of the additional consideration set out in s 66C(3)(d) over other considerations do not require repetition.

89The learned trial Magistrate was required to consider the matters set out in that subsection. He expressly did so at paragraphs 80 to 87 inclusive of his reasons and again at paragraph 129. The complaint that he “failed to take into account” those matters is self-evidently wrong. Counsel for the appellant conceded as much at the hearing of the appeal.

90The alternative complaint, that His Honour failed to give those matters “due weight” is not borne out by a review of His Honour’s reasons for judgment. In any event, the appellant has not identified any asserted error of a type which would meet the principles laid down in House v The King, let alone established such an error.

91The learned trial Magistrate was required to, and did, take into account all the relevant primary and additional considerations mandated by the Act. It was open to him on the evidence to attribute to those considerations the weight that he did.

92Ground six is without merit.

Ground seven

93By the final ground of appeal the appellant asserts that:

The Learned Magistrate, in determining what was in the children’s best interests, failed to take into account or failed to give due weight to a number [of] facts admitted by the Applicant or through her counsel which were relevant to the Applicant’s unsuitability to parent the children including her history of self harm, her complete lack of contact with a child from another relationship, the fact that she precipitated the incidents in July 2012 and April 2015 and her failure to bring proceedings for full time care for over two years after the making of the previous final orders.

94Again, the assertion on the part of the appellant that the learned trial Magistrate “failed to take into account” certain admissions by the respondent is contradicted by His Honour’s express reference to those admissions in his reasons for judgment. Counsel for the appellant conceded as much in his oral submissions.

95The proposition that the respondent’s “failure to bring proceedings for full-time care for over two years” would support a finding of her “unsuitability to parent the children” is difficult to understand, was not promoted in submissions at trial and was not pursued in submissions on the appeal.

96The proposition that the learned trial Magistrate gave insufficient weight to the fact that the incident in July or August 2012 was precipitated by what His Honour described as her unwise decision to try and “get [the children] back” must be viewed in the context of the finding that the appellant’s response to that unwise decision was to head-butt the respondent.

97The proposition that His Honour gave insufficient weight to the fact that the incident in April 2015 was to an extent precipitated by the respondent’s actions in trying to take the appellant’s car keys from him must be viewed in the context of His Honour’s findings that she did so in circumstances where the appellant had pursued her vehicle in his own, blocked her at an intersection so she could not continue driving and with the assistance of his sister removed the children from her car and that in response to the respondent’s effort to take the car keys from him, the appellant grabbed her hand and broke it.

98His Honour’s findings were open to him on the evidence. The weight given by him to those findings was a matter properly within his discretion and the appellant has failed to identify or establish any error which would meet the principles set out in House v The King.

99Ground seven is without merit.

100Having concluded that each ground of appeal is without merit, the appeal must be dismissed.

Proposed order

1.The appeal be and is hereby dismissed.

I certify that the preceding [100] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate
12 June 2017