Winship and Wrays
[2019] FamCAFC 225
•27 November 2019
FAMILY COURT OF AUSTRALIA
| WINSHIP & WRAYS | [2019] FamCAFC 225 |
| FAMILY LAW – APPEAL – PARENTING – Where the trial judge ordered that the child live with the maternal aunt who is to have sole parental responsibility for the child – Where the father appeals against those orders – Where the mother is deceased – Whether the trial judge should have recused herself as a result of comments made by the trial judge during cross-examination of the father – Consideration of the test espoused in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Where the comments made by the trial judge must be considered in their factual matrix – Where the trial judge did not err in failing to recuse herself from the proceedings – Where the trial judge’s reasons for not recusing herself are clear and adequate – Where there was no error by the trial judge in not granting an adjournment for the father to seek a writ of prohibition – Where the father was not prevented from seeking such a writ during the remaining days of the hearing or before judgment was delivered – Where the issue of family violence was one of many issues taken into account – Appeal dismissed – Father to pay the maternal aunt’s costs of the appeal in a fixed sum. |
| Family Law Act 1975 (Cth) ss 60B, 60CC |
| Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Blaze v Grady (2015) 54 Fam LR 172; [2015] FamCA 1064 Burton & Churchin (2013) FLC 93-561; [2013] FamCAFC 180 Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Lane & Nichols (2016) FLC 93-750; [2016] FamCAFC 234 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Oram & Lambert (2019) FLC 93-886; [2019] FamCAFC 4 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 |
| APPELLANT: | Mr Winship |
| RESPONDENT: | Ms Wrays |
| FILE NUMBER: | BRC | 7700 | of | 2017 |
| APPEAL NUMBER: | NOA | 94 | of | 2018 |
| DATE DELIVERED: | 27 November 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Aldridge, Kent & Austin JJ |
| HEARING DATE: | 31 July 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 September 2018 |
| LOWER COURT MNC: | [2018] FCCA 2632 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Senior Legal Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr Selfridge with Mr Hartnett |
| SOLICITOR FOR THE RESPONDENT: | Merthyr Law |
Orders
The appeal be dismissed.
The appellant pay the respondent’s costs fixed in the sum of $22,373.45.
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 Winship & Wrays 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 BRISBANE |
Appeal Number: NOA 94 of 2018
File Number: BRC 7700 of 2017
| Mr Winship |
Appellant
And
| Ms Wrays |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal against parenting orders made by a judge of the Federal Circuit Court of Australia on 21 September 2018. The orders provided for X (“the child”), born in 2012, to live with his maternal aunt, Ms Wrays (“the maternal aunt”), who was to have sole parental responsibility for him. The child was to spend time with his father, Mr Winship (“the father”), each alternate weekend and for half of the school holidays. The father was also ordered to complete his current sessions with his psychiatrist, follow his psychiatrist’s directions as to any future treatment for his mental health and complete an anger management course.
The father appeals against those orders.
The child has been diagnosed with Autism Spectrum Disorder (“ASD”) and has special needs. His care is not easy.
The father and the child’s deceased mother, Ms N (“the mother”), met in 2012 and started living together shortly thereafter. In mid-2013, the mother returned to work after maternity leave and the father became a “stay at home” father.
In mid-2015, the mother was diagnosed with breast cancer and ceased work. Her condition worsened and in mid-2016 the maternal aunt moved into the property where the mother, father and child were living to help care for the mother and the family.
At about the same time, the paternal grandmother and step-grandfather moved from another state to Queensland to provide assistance. The father returned to work.
In early 2017, the mother and father separated, which left the child in predominantly the care of the mother and the maternal aunt.
The mother died in mid-2017. The child remained living with the maternal aunt.
The father commenced parenting proceedings on 27 July 2017 in the Federal Circuit Court of Australia.
The Appeal
The father filed a Notice of Appeal on 19 October 2018 and a Summary of Argument on 18 March 2019. This was followed by an Amended Notice of Appeal and an Amended Summary of Argument both filed on 23 April 2019.
At the commencement of the hearing of the appeal, the father was, by consent, granted leave to file a Further Amended Notice of Appeal. This has some significance because two grounds which had previously stood alone (which were complaints against the trial judge having regard to material that was not before the Court and failing to grant an adjournment) were combined with grounds in relation to a recusal application and became aspects of those challenges, thereby limiting their scope.
Notwithstanding the thirteen grounds of appeal, when opening the appeal, the solicitor for the father said that there were but three issues to be determined, which were:
·Should the trial judge have recused herself when asked to do so?
·Did the trial judge excessively intervene in the examination of the witnesses and, especially, during cross-examination of the father?
·Were the findings of family violence given too much weight?
It quickly became apparent that the point of the oral submissions made by the solicitor for the father on the first two points was not to establish that an innocent bystander would have had a reasonable apprehension of bias on the part of the trial judge, but to demonstrate that her Honour was actually biased. However, actual bias was not alleged in any iteration of the Notice of Appeal.
That is, of course, a most serious allegation as it asserts that a judge has entirely abrogated their judicial oath. It strikes at the core of the integrity of the proceedings.
We took the view that because of the seriousness of such a complaint against a judge it should be clearly set out in the grounds of appeal and that, as it had not, we were not inclined to receive submissions on it. This led to an oral application by the solicitor for the father to amend the Further Amended Notice of Appeal to add a ground asserting actual bias. After some discussion and reflection on the part of the solicitor for the father, the application to amend the Further Amended Notice of Appeal was withdrawn.
The solicitor for the father indicated that the allegations of excessive intervention (point two) were relied upon only to establish actual bias. He conceded that, in the absence of a ground that directly raised the issue, that allegation could not be pressed.
It remains, therefore, to consider the grounds dealing with the recusal application and family violence. In doing so, we shall follow the approach taken in oral submissions and shall not address the grounds seriatim.
Should the trial judge have recused herself? (Ground 5)
This ground is based on two matters.
The first matter is in relation to the following question asked of the father by the trial judge during the course of the father’s cross-examination:
[HER HONOUR]: What do you – why do you think that any issues leading up to anything gives you a right to act like an absolute pig? What gives you that right?
(Transcript 20 April 2018, p.97 lines 31–32)
The father submitted that this comment was personally based, animalistic and demeaning. It was said to indicate that the trial judge had become “involved” in the proceedings and had not remained “detached”.
We observe that this submission is tantamount to a submission of actual bias and ought not to have been made. We shall proceed, however, on the basis that the submission was intended to assert a reasonable apprehension of bias or prejudgement on the part of the trial judge.
The relevant principle to be applied is that “a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) at [6]).
Firstly, this involves the identification of what is said that might lead a judge to decide the case other than on its merits. Secondly, there must be a “logical connection between the matter and the feared deviation from the course of deciding” the matter according to the facts and the law (Ebner at [8]).
As to comments made by a judge during the course of a hearing, the majority in Johnson v Johnson (2000) 201 CLR 488 at [13] said:
… Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not, on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented.
It is necessary to set the submissions in the proper factual context, first by reference to the relevant facts and then by reference to the transcript.
On 10 February 2017, there was a verbal disagreement between the father and the mother which resulted in the police attending the former family home. The father had arrived unannounced at the home, where the mother and the child were living. The father let himself in with his keys and entered the mother’s bedroom, waking her in the process. The father said that he had hoped that the mother, who was then terminally ill, would not be scared by his presence. However, she was.
Later that day, the father withdrew $31,000 from the parties’ joint bank account, leaving it in debit.
The maternal aunt and the mother then had the locks on the house changed.
On the evening of 13 February 2017, the mother telephoned the father so that the child could say goodnight to him and the father told the mother that he was coming to the former family home. She told him not to come.
Shortly after, the father arrived at the home and found that the doors and windows had been locked. He then took a screwdriver and forced a window open, despite repeatedly being told not to do so. He entered the home and tried to grab the child from the mother’s arms, which caused her bruising. He was later charged with assault of the mother and pleaded guilty.
The paternal grandmother and step-grandfather then arrived and eventually there was a scuffle between the father and the step-grandfather which knocked furniture over. It ended with the step-grandfather being pinned to the floor by the father and the father repeatedly asking the step-grandfather if he “had enough” (at [98]).
The child was present through much of the incident just described.
Three aspects of the incident had been recorded. The recordings became evidence and were viewed by her Honour in Chambers, with the consent of the parties.
When cross-examined about the incident the father again denied that the mother was scared of him.
Turning then to the transcript, at the conclusion of the father’s cross-examination by counsel for the maternal aunt, the trial judge asked the father a number of questions. Early in those questions, the following exchange took place:
[HER HONOUR]: I had the opportunity over the lunch break to look at exhibit A, which was the USB stick. I found your behaviour frightening, disturbing, disrespectful. The way that you spoke to your stepfather, the way that you spoke to the mother, the way that you spoke to your mother illustrated to me a person who had menace, temper, anger. Just tell me how you can justify my observations of you from those three very small snippets of what occurred during that event, considering that you hadn’t consumed alcohol?
[THE FATHER]: I say that I was attacked by my stepfather at that stage.
[HER HONOUR]: Well, what I saw was you lying on top of your stepfather, holding him down and taunting and teasing him at a time where [the child] had to be removed from the room. So he would have seen the beginning of it. I didn’t see where you were taunted or aggravated. I could see where you were doing the aggravation. So you’re saying that what it was – what, self-defence?
[THE FATHER]: I was trying to stop a physical altercation.
[HER HONOUR]: How old is your stepfather?
[THE FATHER]: He would be nearing 60.
[HER HONOUR]: And during that footage he wasn’t doing anything but laying there with your mother – your mother crying, asking you, begging you to stop, and you didn’t. So just justify to me why that type of behaviour is acceptable in front of a young child and his dying mother?
[THE FATHER]: It’s not acceptable.
(Transcript 20 April 2018, p.94 lines 19–38)
The father then sought to justify his behaviour by saying that he had been struck by the step-grandfather. The questions then continued:
[HER HONOUR]: Well, you weren’t struck when you were breaking into the house?
[THE FATHER]: No, I wasn’t.
[HER HONOUR]: You weren’t struck when you were demanding a cuddle from a child who was obviously distressed and a mother who was even more distressed. You weren’t struck when you were holding [the grand-stepfather] down?
[THE FATHER]: Not at that point, no, your Honour.
[HER HONOUR]: No. So just because you were struck once during that whole incident, that justified your appalling behaviour throughout?
[THE FATHER]: Nothing justifies.
[HER HONOUR]: Right. So what did you do about it? So this horrible incident occurs. I take it the incident stopped because the police were called? That brought about the end of the incident?
[THE FATHER]: No, it stopped because [the step-grandfather] – I felt that [the step-grandfather] wasn’t going to retaliate.
[HER HONOUR]: How could he? You had him pinned on the floor?
[THE FATHER]: Yes. So it was – it had stopped.
[HER HONOUR]: So it stopped and then what did you think about it afterwards?
[THE FATHER]: It’s a horrible situation that I wish had - - -
[HER HONOUR]: What did you think about it afterwards?
[THE FATHER]: Ashamed.
[HER HONOUR]: Right. So what did you do about that – about that “ashamed”?
[THE FATHER]: Removed – gave everyone space, I guess.
[HER HONOUR]: Right. And what did you do about addressing your part of that whole incident, if anything?
[THE FATHER]: Probably not enough, your Honour.
[HER HONOUR]: What did you do about it? I don’t know what “not enough” means, because I don’t know what you did. So what did you do, after that incident, to address your part in that incident?
[THE FATHER]: I didn’t do anything, your Honour.
(Transcript 20 April 2018, p.95 lines 3–31)
The trial judge then asked the father a number of questions about his compliance with an undertaking that he had given to seek assistance from a psychologist in dealing with his temper. It emerged that the father had not continued to see the psychologist and when he had seen the psychologist, he had not raised any of the issues required to be raised by that undertaking which included anger management. He also stopped the medication prescribed by his doctor, saying that he did not feel depressed and anxious anymore, so he did not take it. The questioning continued:
[HER HONOUR]: And you still don’t think you’ve got a temper, do you?
[THE FATHER]: No, your Honour.
[HER HONOUR]: And you don’t think you’ve got an anger issue, do you?
[THE FATHER]: No, your Honour.
[HER HONOUR]: And you don’t think that what happened that night where [the child] saw you acting inappropriately to a number of very important adults in his life, that that’s had any long-term impact on [the child], do you?
[THE FATHER]: I hope it hasn’t.
[HER HONOUR]: What do you think?
[THE FATHER]: It’s possible.
[HER HONOUR]: So you’re conceding that now, because that certainly wasn’t a concession you made to [counsel for the maternal aunt]?
[THE FATHER]: No, it’s not.
[HER HONOUR]: Because this [child] has got lots of special needs, hasn’t he?
[THE FATHER]: He has, your Honour.
[HER HONOUR]: And his reaction, response and coping with something like that, given he has already lost his mother, may take a lot longer?
[THE FATHER]: Yes, your Honour.
[HER HONOUR]: Mightn’t it?
[THE FATHER]: Yes, your Honour.
[HER HONOUR]: But you’ve not done anything proactive so that you’ve put yourself in a position where you won’t – or you ensure that that sort of behaviour by you isn’t going to happen again with someone else in front of him?
[THE FATHER]: I don’t believe it will ever happen again, your Honour.
[HER HONOUR]: Why? It’s happened in 2012. It happened in – and that was before – with other children, or child, present. It happened in 2017?
[THE FATHER]: I can identify the issues leading up to things – incidents of that nature now.
[HER HONOUR]: What do you – why do you think that any issues leading up to anything gives you a right to act like an absolute pig? What gives you that right?
[THE FATHER]: There’s no right.
[HER HONOUR]: What gives you that right over anyone else in this room?
[THE FATHER]: There’s no right.
[HER HONOUR]: What gives you that right?
[THE FATHER]: There’s no right to - - -
[HER HONOUR]: So – but you’re not doing anything so that you don’t think that you have that right again. You’re not being proactive in doing anything about the issues, even though it’s been identified that you should do something, and even though you’ve conceded to it, way after the… incident?
[THE FATHER]: Because I have – I have intention of seeing [B Group] psychologists for many years to come, like I have done for a long period of time.
[HER HONOUR]: But you haven’t told them the full story yet, have you? Let’s be honest?
[THE FATHER]: What - - -
[HER HONOUR]: They don’t know all the different aspects?
[THE FATHER]: No, they don’t.
(Transcript 20 April 2018, p.97 lines 1–47)
The father conceded that his behaviour was not acceptable (Transcript 20 April 2018, p.94 line 38), that nothing justified his appalling behaviour throughout the incident (Transcript 20 April 2018, p.95 lines 9–10), that it was a horrible situation and that afterwards he felt ashamed (Transcript 20 April 2018, p.95 lines 18–21).
Clearly, the father’s conduct was simply appalling, which was a description readily accepted by the solicitor for the father. It involved an assault on a terminally ill person in the presence of the child.
When seen in that context, whilst her Honour’s comment, “[w]hat … gives you a right to act like an absolute pig” (Transcript 20 April 2018, p.97 lines 31–32) could perhaps be described as a little too colourful or colloquial, the point of it, is in reality, no different to the other epithets used to describe the father’s behaviour and accepted by him or his solicitor. Indeed, on a fair reading of his evidence, the father accepted the description of his behaviour and agreed that he had no right to behave like that.
The trial judge, in using that phrase, was not demonstrating any bias or prejudgment of the matter because at that stage of the hearing it was beyond doubt that the father’s behaviour throughout the incident was appalling and something of which he should be ashamed. A fair-minded but informed observer would not come to a contrary view. Further, the question, asked late in the father’s evidence, does not suggest that the trial judge would not bring an impartial mind to bear on the matter.
The father submitted that whilst his behaviour throughout the incident might have been appalling, the question as to him behaving like an absolute pig was directed solely to his behaviour towards the step-grandfather, which he again sought to justify as him being the aggrieved party. We do not see how that construction can be placed upon her Honour’s questioning which was clearly directed to the incident as a whole.
As to the second aspect of this ground, it is submitted that because her Honour had regard to material that was not part of the evidence, a reasonable bystander would apprehend a risk of bias. This was based on the premise that it was not possible to exclude any of this material as being a catalyst for a particular finding.
It was accepted that her Honour had regard to annexures to affidavits in the Court file which were not in evidence. These consisted largely of four posts made by the mother on a Facebook page and an email sent to the mother by a former partner of the father. In addition, the father asserted that the trial judge could not have found that the locks on the house had been changed because paragraph 53 of the maternal aunt’s affidavit filed 30 August 2017 which said this was the case, was not pressed. That is so, but the father accepted in cross-examination that the locks had been changed (Transcript 20 April 2018, p.38 lines 3–25) so any error is not material. Whilst the trial judge did refer to other matters that were not in evidence, they are of no significance for the disposition of the appeal.
It is important to record, at this stage, that no submission was made that by having regard to that material, the trial judge acted in a way that was procedurally unfair. Further, the father did not seek to impugn any finding of fact made by the trial judge on the ground that it was based on material that was not in evidence.
The father’s submissions were limited to the proposition that because the trial judge had regard to this material, a fair-minded bystander would have a concern as to why the trial judge had taken them into account and hence might apprehend that the judge might not bring an impartial mind to the issues. This submission verges dangerously close, again, to an allegation of actual bias, if it is to be suggested that her Honour deliberately searched for further material. There is no basis, however, to think that she did so. That view is reinforced by the apparent lack of materiality of the additional material.
If the reference to the material was accidental, as to our minds it obviously was, we fail to see how this could lead to any apprehension on the part of a fair-minded observer of bias or prejudgment as opposed to an apprehension of an innocent error. The latter does not lead to the former at all.
It follows that her Honour did not err in failing to recuse herself from the proceedings.
This ground of appeal does not succeed.
Did her Honour fail to give sufficient reasons for not recusing herself? (Ground 6)
At the commencement of the second day of the hearing before the trial judge, the father sought to file in Court an Application in a Case seeking recusal of the trial judge on the basis of the comment outlined above at [19] as to the father acting like an “absolute pig” (Transcript 20 April 2018, p.97 lines 31–32). Both the father and the maternal aunt had provided written submissions to the Court in relation to this application. Her Honour then said:
Yes, I’ve read through the submissions and the application to recuse myself is denied. Let’s proceed.
(Transcript 23 April 2018, p.117 lines 37–38)
The solicitor for the father then made an oral application for an adjournment to make an application seeking a writ of prohibition. After some discussion, the matter proceeded in the following way:
[HER HONOUR]: All right. [Solicitor for the father], I’ve yet to hear the remainder of this matter. I’ve yet to make a decision in this matter. I’m not allowing the adjournment. All those aspects can be appellable points, but the trial will be proceeding today. If you wish to issue a writ against me or whatever, do so, but I don’t quite understand the application in this court.
[SOLICITOR FOR THE FATHER]: Well, your Honour, it arises from the words which were used by your Honour in the proceeding where you referred to my client as an “absolute pig.”
[HER HONOUR]: Yes. I’m aware of the words that I used against the father. But that doesn’t impact on what I have to do in this matter. I was raising with him about his actions at that particular point in time. I even have acknowledged that it is only snippets of the video and, as you would be aware, [solicitor for the father], domestic violence, family violence, the impact on the child is only one aspect of many, many aspects this court has to take into account.
(Transcript 23 April 2018, p.118 lines 32–46)
This passage encapsulates her Honour’s reasons for refusing to recuse herself. In a succinct way, her Honour indicated that a fair-minded but reasonable observer would not apprehend bias or prejudgment because her Honour’s comments involved one aspect of the issue of family violence which, of itself, was only one of many aspects to be taken into account by her Honour. In other words, the trial judge found that her words did not indicate bias or prejudgment on the issue of family violence or the matter overall.
As we have already found above, her Honour did not err by not recusing herself.
Reasons need not be lengthy to be adequate. All that is required is for the trial judge’s path of reasoning to be made clear. Her Honour’s path of reasoning, succinct as it is, is clear, and as such the reasons are adequate (Bennett and Bennett (1991) FLC 92-191; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 (“Pollard”)). The reasons are adequate enough to enable the exercise of the appellate function (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 260, 268–269).
As McColl JA said in Pollard at [58], “[t]he extent and content of reasons will depend upon the particular case under consideration and the matters in issue”. As we have explained, the basis for the application for an adjournment was not at all substantial and her Honour’s reasons were sufficient to deal with it.
This ground of appeal does not succeed.
Should an adjournment have been granted to enable the father to seek a writ of prohibition? (Ground 6(i))
The father submitted that the trial judge refused to grant him an adjournment after the recusal application was refused so as to permit him to seek a writ of prohibition, presumably from the High Court of Australia. We have already set out the relevant portion of the transcript where the application for an adjournment was sought.
A decision whether or not to grant an adjournment is the exercise of a very wide discretion. The father did not point to any error by the trial judge in the exercise of that discretion other than to criticise the result and to assert a lack of reasons. There is no merit in either point.
The father did not identify any authority that suggested it was at all likely that the High Court of Australia would issue a writ of prohibition restraining the trial judge from further acting in the matter on the basis that she ought to have recused herself when the father had a clear right of appeal. To our minds, it is an extraordinary proposition.
Further, the lack of an adjournment did not prevent the father from seeking such a writ during the hearing before the trial judge, which concluded on 23 April 2018 or whilst the judgment was reserved (it was not delivered until 21 September 2018).
As the application was entirely without merit, the trial judge did not err by dismissing it with scant reasons.
There is no merit whatsoever in this ground of appeal.
Did the trial judge’s weighing of the various considerations, including family violence, lack proportionality?
In his oral submissions, the solicitor for the father sought to deal with all of the remaining grounds of appeal under this heading (Grounds 1–4 and 7–12 and 16). The point of the submissions was that the order that the child live with the maternal aunt was out of all proportion to the father’s conduct. The submissions were therefore directed primarily to whether the trial judge considered all relevant matters and the weight that was given to them.
It can readily be seen that these submissions can fall under Grounds 7 to 12 when read broadly.
Grounds 1 to 4, however, on their face, raise a different issue, which is whether the trial judge ought to have considered the benefit to the child of having a meaningful relationship with the father under s 60CC(2)(a) of the Family Law Act 1975 (Cth) (“the Act”) or, as her Honour did under s 60CC(3)(m) of the Act. As to the nature of the debate, see Burton & Churchin (2013) FLC 93-561 at [43]–[49]; Oram & Lambert (2019) FLC 93-886 at [122]–[147]; Blaze v Grady (2015) 54 Fam LR 172 at [73]–[124].
The issue is a moot point in this case because regardless of the correct provision, the trial judge considered the benefit to the child of having a meaningful relationship with both the father and the maternal aunt and concluded that the child had a strong and loving relationship with each (at [222] and [225]).
Therefore, any error as to the application of the section of the Act was not material and there has been no miscarriage of justice (see Conway v The Queen (2002) 209 CLR 203 at [36] and the discussion of the authorities in Lane & Nichols [2016] FLC 93-750 at [72]–[81]).
In any event, when this apparent difficulty was raised with the solicitor for the father, he pressed ahead with his foreshadowed course and insisted that Grounds 1 to 3 remained matters of weight. For the reasons given above, this did not cause the father any disadvantage.
Finally, Ground 16, which asserts an inadequacy of the trial judge’s reasons, was not the subject of any submissions other than those already dealt with earlier. For that reason and, as her Honour’s reasons clearly explain why the orders were made, we shall say no more about it.
Returning then to the submissions that focussed largely on the findings of family violence. The following challenges were made:
·The trial judge placed disproportionate weight on the need to protect the child and gave insufficient weight to the object of the Act and the additional matters in s 60CC(3) of the Act;
·It was erroneous of the trial judge to make a finding that “family violence has been a feature in at least one previous relationship for the father” (at [60]); and
·The trial judge clouded her assessment of the risk of harm to the child with her personal opinion of the father and her Honour failed to give proper consideration to s 60B(1)(a) of the Act to ensure that the child would have a meaningful relationship with his father to the maximum extent consistent with the child’s best interests.
The first and third points are a challenge to the weight given to the issue of family violence and, in effect, assert that insufficient weight was given to the benefit to the child of having a meaningful relationship with the father. So understood, it is therefore convenient to deal with all of the remaining grounds under this heading.
We do not fully comprehend what is meant by the submission that the result of the case was not proportionate. We take this to mean that excessive weight was given to the issue of family violence by the trial judge and insufficient weight was given to other matters which the father submitted supported the orders for which he contended.
We do not accept that to be so.
Her Honour’s conclusions as to family violence were:
211.I do not know whether the father will expose the child to family violence in the future.
212.But the indicators are that is it [sic] a possibility and that possibility amounts to a risk.
213.As to the extent of that risk, that is an unknown but it certainly does not amount to an unacceptable risk.
214.The issue of risk to exposure of the child to family violence is therefore one of many considerations that must be taken into account when determining the future parenting arrangements for the child and pursuant to section 60CC(2A) must be given greater weight than all other considerations.
215.As such, this considerations [sic] supports an order for the child to remain living with the [maternal] aunt.
216.It is necessary however to look to all of the applicable additional considerations to determine what orders will reflect what is in the best interests of the child.
As can be seen from those paragraphs, her Honour found that there remained a possibility that the father would expose the child to family violence in the future and that there was a risk to that extent. That falls well short of a damning finding of family violence that was, of itself, determinative of the proceedings.
Her Honour also took into account the following:
·The father was not a credible witness (at [10]–[16]);
·Family violence was a feature of the relationship between the mother and the father and at least one other relationship involving the father, and family violence had occurred in the presence of the child and another child in a previous relationship (at [60], [115], [124]);
·The father’s lack of remorse, failure to be proactive with obtaining effective therapeutic assistance and inadequate acknowledgement of his behaviour raised a future concern of risk for the child being exposed to family violence in the father’s care (at [164]–[165]);
·There was a real possibility that the father would restrict the child’s relationship with the paternal and maternal extended family if the child lived with him (at [240]–[243]);
·The father lacked the ability to provide a routine for the child which is essential for a child with a diagnosis of ASD (at [268]–[275], [325]–[326], [338]–[341], [352]–[354]);
·The maternal aunt has been responsible for meeting the child’s health, education, financial and housing needs with no support from the father (at [355]-[382], [386]–[389], [394]–[397], [405]–[407]); and
·The father and maternal aunt do not have the ability to co-parent and that the more suitable party to be responsible for parenting the child is the maternal aunt (at [337], [473]).
This led her Honour to conclude as follows:
496.I find that overall, the findings made in the applicable primary and additional considerations support an order that it is in the child’s best interests for [the child] to remain living with the [maternal] aunt.
497.In essence the findings support that:-
a)The father poses a risk as the child may be exposed to family violence in the future.
b)The child may lose his relationship with extended family members if living with the father.
c)The [maternal] aunt is better equipped to meet the child’s counselling, medical and educational needs.
d)The [maternal] aunt is better able to provide the child with stability, structure and routine to meet the child’s needs; especially given [the child’s] medical issues.
e)The [maternal] aunt’s lifestyle is more suited to care for the child and the [maternal] aunt has the financial resources necessary to support the child.
f)The [maternal] aunt shows the level of maturity and commitment needed to provide for a child with high needs.
g)The father has not adequately addressed his anger and mental health issues.
It can readily be seen that the issue of family violence was but one of many matters taken into account by the trial judge which her Honour considered overall favoured the child living with the maternal aunt. Indeed, if the consideration of family violence were to be entirely removed from the list of considerations, it would be difficult to see how the outcome would be any different. We cannot see how any disproportionate weight was given to the issue of family violence.
Challenges to the issue of weight face a notoriously high bar (Gronow v Gronow (1979) 144 CLR 513 (“Gronow”); Norbis v Norbis (1986) 161 CLR 513 (“Norbis”)).
In Gronow, Stephen J said at 519–520:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.
In Norbis, Brennan J said at 539–540:
The difficulties in the way of developing guidelines beset an appellate review of the exercise of a discretion under s.79. Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made is not just and equitable. How does the Full Court arrive at that conclusion? In Bellenden (formerly Satterthwaite) v. Satterthwaite, Asquith L.J. stated the rationale of an appellate court's approach:
“It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
It follows from what we have written, that the father’s challenge to her Honour’s considerations falls well short of meeting that standard. There is, therefore, no merit in either challenge to the first or third points.
As to the second point, that the trial judge found that “family violence has been a feature in at least one previous relationship for the father” (at [60]).
That conclusion was largely based on the following:
57.However, the father did, after many questions and after delays occurred in revisiting the transcript, admitted to the existence of a [Domestic Violence Order] by a previous partner … in 2012 regarding incidents; one of which occurred in front of [his previous partner]’s children.
58.The police notes of the 3 February 2012 incident record “the [father] started yelling at her about the text message. The aggrieved asked the [father] to stop yelling and to talk calmly but he continued to yell…the [father] kept poking the aggrieved in the arm and told her that he would annoy her by arguing with her all night unless she got out of bed and went upstairs. The [father] also grabbed the aggrieved phone from her and removed the sim card, refusing to give it back. The [father] and aggrieved then began to talk and the [father] threw the TV remote which hit the wall causing a dint in the plaster….the [father] continued to yell at the aggrieved and she became frightened and intimidated by the [father] because he was so angry and would not stop yelling. During the argument the [father] called the aggrieved names like ‘whore’. The [father] then got out of bed and pushed a wooden room divider causing part of it to break. The aggrieved became more frightened and went upstairs. One of the aggrieved daughters has 000 dialled into her mobile phone and told her to call the police….the [father] admitted causing the damage to the wooden room divider and damage to the wall however stated that the damage to the wall was accidental…there are previous [Domestic Violence] incidents….infrequent…the child…was in another room”.
(As per the original)
There was, therefore, ample evidence on which the finding could be made and thus no error has been demonstrated.
The appeal will be dismissed.
Costs
The solicitor for the father properly accepted that in the event that the appeal was dismissed, the appropriate order for costs was that the father pay the maternal aunt’s costs of the appeal. We agree.
As no issue was taken with the maternal aunt’s schedule of costs, there will be an order that the father pay the maternal aunt’s costs fixed in the sum of $22,373.45.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Aldridge, Kent & Austin JJ) delivered on 27 November 2019.
Associate:
Date: 27 November 2019
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