WINTER & FRENCH - [2013] FamCAFC 75

FAMILY COURT OF AUSTRALIA

WINTER & FRENCH

[2013] FamCAFC 75

FAMILY LAW – APPEAL – CHILDREN – where the appellant mother contends the trial Judge failed to place any or sufficient weight upon an “essay” filed by the appellant in accordance with an order of the trial Judge – where the central issue before the trial Judge was the appellant’s attitude towards the respondent father – where the trial Judge found that the appellant’s attitude was unshakeable and had not changed despite attempts at modification by the appellant – where the appellant contends that finding is inconsistent with the contents of the “essay” and other evidence before her Honour – whether the trial Judge failed to place sufficient weight on that evidence – where no error demonstrated – appeal dismissed.

FAMILY LAW – APPEAL – COSTS – where the appellant’s application for a stay of the parenting orders pending the appeal was dismissed – where the appellant was subsequently ordered to pay the respondent’s costs of the application for a stay – where further evidence tendered at the hearing of the appeal pursuant to s 93A of the Family Law Act 1975 (Cth) – where that evidence reveals the respondent has since been charged with “giving false evidence” – where that charge stems from evidence given in the stay application proceedings – consideration of CDJ v VAJ (1998) 197 CLR 172 – whether the trial Judge’s order for costs is erroneous in light of the further evidence – where costs order set aside and the issue of costs remitted for rehearing upon the conclusion of the criminal proceedings involving the respondent.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

CDJ v VAJ (1998) 197 CLR 172
Gronow & Gronow (1979) 144 CLR 513

APPELLANT:

Ms Winter

RESPONDENT:

Mr French

FILE NUMBER:

BRC

7013

2010

APPEAL NUMBERS:	NA	48	of	2012
NA	80	of	2012

DATE DELIVERED:

9 May 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Finn, May and Kent JJ

HEARING DATE:

29 April 2013

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

26 April 2012 and
30 August 2012

LOWER COURT MNC:

[2012] FMCAfam 386
[2012] FMCAfam 1019

REPRESENTATION

COUNSEL FOR THE APPELLANT:	Mr Hodgson
SOLICITOR FOR THE APPELLANT:	Julie Singleton Solicitors

THE RESPONDENT:

In person

Orders

Save and except for the admission of Exhibits 1, 2 and 3, the appellant’s application to adduce further evidence filed by leave on 29 April 2013, is dismissed.
The appeal (NA 48 of 2012) against the parenting orders made by Demack FM (as she then was) on 26 April 2012 be dismissed.
The appeal (NA 80 of 2012) against the costs order made by Demack FM (as she then was) on 30 August 2012 be allowed and that order set aside.
The application for costs of the appellant’s application for a stay be remitted for re-hearing by Demack FM (as she then was) at a date and time to be fixed by her…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: WINTER & FRENCH [2013] FamCAFC 75
Case: [2013] FamCAFC 75
Decision Date: 9 May 2013

CaseChat Overview and Summary

In the case of Winter & French, the appellant mother appealed against the parenting orders made by the Family Court and the subsequent order for costs, both made by Demack FM. The central issue in the appeal was whether the trial Judge had failed to appropriately weigh an "essay" filed by the appellant in accordance with the Judge's order. The mother argued that her attitude towards the respondent father had changed, a contention supported by the essay and other evidence. However, the trial Judge found that the mother's attitude remained unsatisfactory and had not improved despite her attempts to modify her behaviour.

The court examined the trial Judge's reasoning and found no error in her Honour's assessment. The trial Judge had acknowledged the mother's efforts to change but ultimately attributed more weight to the incidents occurring after the mother had undertaken the Parenting Course and the mother's performance as a witness. The court held that the trial Judge's finding that the mother's efforts to modify her behaviour had been unsuccessful did not demonstrate a failure to appropriately weigh the essay's contents. Instead, it reflected that the trial Judge had given more credence to the evidence of the mother's actions following the Parenting Course than to her contentions in the essay.

The court also addressed the costs order, which the appellant mother challenged. The mother had applied for a stay of the parenting orders pending the appeal, which was dismissed. She was ordered to pay the respondent's costs of the stay application. New evidence was presented at the appeal hearing, indicating that the respondent had been charged with giving false evidence, which stemmed from the stay application proceedings. The court considered the case of CDJ v VAJ and determined that the trial Judge's costs order was erroneous in light of the new evidence. Consequently, the costs order was set aside, and the issue of costs was remitted for rehearing by the trial Judge following the conclusion of the criminal proceedings involving the respondent.

The court dismissed the appeal against the parenting orders, allowed the appeal against the costs order, set aside the costs order, and remitted the costs issue for rehearing. No costs were ordered for either appeal.

Orders

Orders of the court

Save and except for the admission of Exhibits 1, 2 and 3, the appellant’s application to adduce further evidence filed by leave on 29 April 2013, is dismissed.

The appeal (NA 48 of 2012) against the parenting orders made by Demack FM (as she then was) on 26 April 2012 be dismissed.

The appeal (NA 80 of 2012) against the costs order made by Demack FM (as she then was) on 30 August 2012 be allowed and that order set aside.

The application for costs of the appellant’s application for a stay be remitted for re-hearing by Demack FM (as she then was) at a date and time to be fixed by her Honour, following the conclusion of the criminal proceedings involving the respondent.

In respect of appeal NA 48 of 2012, there be no order for costs.

In respect of appeal NA 80 of 2012, there be no order for costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Her Honour’s reasons (at [23]) record the making of the order for the “essay” and the fact of its filing by the mother. Whilst her Honour’s reasons do not otherwise refer to the “essay” specifically, her Honour expressly acknowledged that the mother had attempted to “modify her behaviour” (at [37]). In recognising the mother’s attempts at modification, her Honour must necessarily have accepted that the mother had engaged in the conduct deposed to in the affidavit setting out the “essay”. Accepting such evidence, however, does not automatically require an acceptance that by engaging in the conduct deposed to, the mother’s beliefs and attitudes had, in fact, changed. Her Honour observed the mother’s cross-examination on what her Honour referred to as “Day Two” of the trial. Her Honour was required to balance the contentions contained in the mother’s “essay” and her subsequent oral evidence in cross-examination, with the incidents described in [52], [54], [56] and [57] which occurred after the mother had undertaken the Parenting Course. Her Honour’s finding that the mother’s efforts to modify her behaviour “have been unsuccessful” merely reflects that her Honour attributed greater weight to the incidents occurring after the Parenting Course, than to the contentions contained in the “essay” with the benefit of the mother’s further cross-examination and the father’s case as maintained. So much is plain from her Honour’s observation, at [76] of the reasons, that:[The mother’s] attitude towards the father on Day Two of the trial was not manifestly different to her attitude towards the father on Day One. This is despite her attendance at a post-separation parenting program, the trial process, the family report, my comments to her and her consent to an interim order … (Emphasis added). Further, the “assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do …” (Gronow & Gronow (1979) 144 CLR 513 at 519-20). In that respect, her Honour described the mother as “a dreadful witness” following the first hearing in August 2011 and was similarly unimpressed with the mother as a witness at the second hearing in April 2012: “[a]gain, the mother was a poor witness. She was frequently non-responsive and was, at times, wholly contradictory. She seemed surprised when her contradictions were pointed out to her and she was unable to explain them … ” It was in the context of those observations of the mother as a witness (which are not challenged on appeal) and the incidents occurring after the mother had undertaken the Parenting Course, that her Honour found that the mother’s “attitude to the father continued to be wholly unsatisfactory and was not an improvement on her attitude in August 2011.” Contrary to the submissions of counsel for the mother, such a finding is not inconsistent with the mother’s “essay” nor does it demonstrate a failure to place any or sufficient weight upon its contents; that finding, particularly in light of her Honour’s recognition that the mother had attempted to modify her behaviour, merely reflects more weight having been attributed by her Honour to the mother’s actions following the Parenting Course, than to the mother’s contentions as contained in the “essay”.