WINTER & FRENCH
[2013] FamCAFC 75
•9 May 2013
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 | of | 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 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Winter & French has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Numbers: NA 48 of 2012
NA 80 of 2012
File Number: BRC 7013 of 2010
| MS WINTER |
Appellant
And
| MR FRENCH |
Respondent
REASONS FOR JUDGMENT
There are two appeals before the Court. The first (NA 48 of 2012) is against final parenting orders made by Demack FM (as her Honour then was) on 26 April 2012 concerning the parties’ two children – X (aged almost 11 years at the date of the orders) and Y (aged 9 at that date) (“the parenting appeal”). The second appeal (NA 80 of 2012) is against a subsequent order of her Honour made on 30 August 2012 requiring the appellant (“the mother”) pay the costs of the respondent (“the father”) in relation to the mother’s application for a stay of the parenting orders pending the parenting appeal (“the costs appeal”). The mother’s application for a stay was earlier dismissed by her Honour on 5 July 2012.
At the commencement of the appeals, counsel for the mother sought leave to file an application to adduce further evidence. The mother had sought to file that application on 19 April 2013, however, it was refused by the Registry who advised the mother she would need to seek leave at the hearing. The mother nonetheless served the father with the material sought to be filed. Ultimately, leave was granted to the mother to file the application and whilst the application was refused, we allowed the parties to tender three agreed Statements of Facts (Exhibits 1-3) about which more will be said later. As a result of the tender of those agreed Statements of Facts, the application to adduce further evidence was rendered nugatory and was dismissed.
The mother was represented at the hearing of the appeals, however, different legal representatives had prepared the Notices of Appeal and the mother herself had subsequently filed Summaries of Argument which included further grounds of appeal. As a result, we sought to clarify with counsel for the mother those grounds which were being pursued on the appeals. Counsel subsequently indicated that all of the existing grounds in respect of the parenting appeal were abandoned save only for a substantially revised form of Ground 3 which will be discussed and, as became clear during submissions, the existing grounds in respect of the costs appeal were also not pursued.
As a result of the manner in which argument proceeded and, in particular, the contention that her Honour placed too little weight on certain evidence in arriving at the final parenting orders, it is necessary to set out at some length the background and context to the final parenting orders and to the earlier order of 15 December 2011 requiring the mother to “file and serve a fifteen hundred (1500) word essay on what the mother learnt at the Parenting Orders Program and how the mother is incorporating such information into everyday life …”
Similarly, as a result of the argument in respect of the costs appeal, it is necessary to set out the relevant events surrounding and subsequent to the order for costs now appealed.
Background
When the father commenced proceedings for parenting orders in 2010, he had not seen Y since 2007. X, in contrast, had continued to spend time with his father since the parties’ separation in 2003. From the outset, the father sought an order that the children live with him and spend time with the mother.
The matter proceeded to final hearing before her Honour on 12 August 2011 however, the trial did not conclude that day. Her Honour “invited the parties to reflect on the evidence, particularly [the family report writer’s] …” and “adjourned the matter over the weekend to give them a little time [and] advised the parties that [she] would make interim orders if requested” (reasons for judgment at [19]).
The parties subsequently sought interim orders by consent, which were made by her Honour on 18 August 2011. Those orders provided for time between both children and their father, with such time increasing to, inter alia, the whole of the September/October 2011 school holidays.
The matter was mentioned before her Honour on 24 November 2011 at which time the father contended that whilst time had occurred between him and both children pursuant to the 18 August 2011 consent orders, the mother’s negative attitude towards him and his role in the children’s lives continued much the same as it had prior to the first day of hearing. The matter was set down for interim hearing on 15 December 2011 at which time further interim orders were made by her Honour for time between the father and children in the impending Christmas/New Year school holidays. Relevantly, for the purposes of the parenting appeal, the orders made that day also included the following:
4.That the mother is to file and serve a fifteen hundred (1500) word essay on what the mother learnt at the Parenting Orders Program and how the mother is incorporating such information into everyday life ...
There is no appeal from this order. Despite that order providing for the mother to file the material identified in “essay” form, the mother subsequently filed an affidavit on 9 January 2012 containing in sworn form evidence meeting the requirements of the order.
The matter was again mentioned before her Honour on 3 February 2012 at which time further consent orders were made, inter alia, for time between the father and the children in the Easter school holidays; regarding the provision of information by the mother to the father about the children’s schooling; and listing the “part heard final hearing of this matter” for 20 April 2012.
Pursuant to the orders of 3 February 2012, the part-heard trial resumed and was completed on 20 April 2012, and on 26 April 2012 her Honour made the final parenting orders now appealed from and delivered her reasons for making those orders.
The effect of the parenting orders which, it ought to be noted, have been in place now for just over a year, was to remove the children from the mother’s primary care (being the care arrangement since the parties’ separation some eight years earlier) and place them in the father’s primary care, with the children to spend each alternate weekend and half of the school holidays with the mother.
The mother subsequently sought a stay of the final parenting orders pending the parenting appeal. That application was dismissed by her Honour on 5 July 2012. The mother has not appealed that order.
On 30 August 2012, upon application by the father, her Honour ordered that the mother pay, within six months, the father’s costs of the application for a stay, fixed in the sum of $4,693.50. It is that order, and the attendant reasons for judgment, that are the subject of the mother’s second appeal (NA80/2012). It ought to be noted that the mother has not complied with the costs order and the father has not sought to enforce it.
The Parenting Appeal (NA 48 of 2012)
As stated earlier, at the hearing before us the mother abandoned the existing grounds of appeal. As initially formulated, the grounds contended that the ordering of the “essay” on 15 December 2011 demonstrated an apprehension of bias and/or amounted to a denial of procedural fairness. The mother had also initially formulated a ground of appeal contending, in summary, that her Honour had erred in placing too much weight upon the contents of the “essay” in her final determination of orders.
As ultimately argued, however, the appeal against the parenting orders was based upon the central contention that her Honour erred in failing to place any or sufficient weight upon the “essay”.
Counsel for the mother submitted that her Honour’s failure to place sufficient weight upon the “essay” is evidenced by the asserted absence of any reference to the contents of the “essay” in her Honour’s reasons and her Honour’s finding that the mother’s “attitude [towards the father] has continued unabated” which, it is submitted, is inconsistent with the “essay”.
It will be useful to begin our discussion of these contentions by explaining the context in which the order for the “essay” was made on 15 December 2011. That hearing had been listed as a result of concerns raised by the father at the earlier hearing on 24 November 2011 that the mother’s attitude towards him continued unchanged, notwithstanding the family report and cross-examination of Mr M at the first hearing on 12 August 2011 (reasons for judgment at [22]).
Mr M, who had prepared a family report in July 2011 in which he observed that the mother “has been intently opposed to the children having an evenly balanced relationship with each [of their parents]” and that “there appears to be a very strong theme in the children’s comments and perceptions that their mother is opposed to them forming a sound bond with their father and that her views about him are available to them” (Family Report of Mr M, 5 July 2011, at [67] and [69]), gave oral evidence and was
cross-examined at the hearing on 12 August 2011. Her Honour makes specific reference in the reasons to Mr M having “reinforced” in his oral evidence at that hearing “his opinion that [Y] was ‘easily aware of the mother’s feelings’” (reasons for judgment at [18]).
Important to the overall context, we note that in her reasons for judgment delivered on 26 April 2012, her Honour recorded in relation to the first hearing on 12 August 2011 (at [16]):
The mother was a dreadful witness. Her contempt of the father was obvious. Her inability to reflect on her own attitudes and behaviours was obvious. She struggled to demonstrate any interest in [Y] spending any time of substance with her father”
(Emphasis added).
In the context of her Honour’s observations of her as a witness, and in light of Mr M’s observations and oral evidence, the mother filed an affidavit on 2 December 2011 in which she deposed that “notwithstanding the previous issues, I have moved a long way since the 18th August, 2011 in encouraging and facilitating the relationship with the Father … I have completed a parenting course …” (affidavit of mother filed 2 December 2011 at [5] and [8]). There was competing affidavit evidence from the father (filed 12 December 2011) claiming that the mother’s attitude towards him had not, in fact, changed.
Indeed, it appears from the transcript of proceedings before her Honour on 15 December 2011 that it was the mother’s claim that she had “moved a long way” that prompted the order for the “essay”:
HER HONOUR: …Your client [the mother] concluded a Parenting Orders Program in September.
I see little evidence of any good reflection on what she had learnt, and one of the things I will be having her do … is writing me a 1500-word essay on what she learned. Not from her solicitor, not with anybody helping her but in her own words what she had learnt. It’s not a sworn document; just a what [sic] she learnt at her Parenting Orders Program, and I look forward to finding out if the father has done a Parenting Orders Program, and when he has completed it, he might well end up with the same task.
…
Mother to do a 1500-word essay on what she learned from her Parenting Orders Program, to be attached merely to an affidavit and filed by 13 January. Has the father finished a Parenting Orders Program?
MR HAMWOOD: He’s in the process of it, your Honour. He hasn’t finished it yet.
HER HONOUR: All right. Well, I won’t make that order for him yet, but he now knows that it’s the distinct possibility so I hope he’s focusing.
(Transcript of proceedings, 15 December 2011, p 2, lines 38-57; p 10, lines 6-14).
As the portion of the transcript just extracted plainly reveals, her Honour, in ordering the “essay” was affording the mother the opportunity to particularise how she had “moved a long way” in terms of her attitude towards the father. Indeed, so much is plain from the mother’s complaint on appeal, namely that her Honour placed too little weight on the contents of the “essay”.
As ultimately argued, the making of the order for the “essay” was not challenged on appeal. Nonetheless, we consider it appropriate to make the following observations.
In the result, the order as pronounced did not preclude the mother from obtaining legal or other assistance in compiling the “essay”; nor did it prevent the content being in the form of a sworn affidavit, as occurred.
However, taken with the exchange contained in the transcript extracted above, the order for the mother to file and serve “a fifteen hundred (1500) word essay” was, with respect to her Honour, undesirable and had the potential to create difficulties. The prescriptions as to the form “essay” and specifying its length, having regard to its prescribed topic, might lead to misapprehension that the Court was prescribing some form of therapy or educational task for the mother or, worse, something of a punitive measure, rather than the forensic purpose actually intended. The potential for that misapprehension was heightened against the background of her Honour’s comments in the transcript about the mother compiling the “essay” without legal assistance and without the document being sworn.
We reiterate that there is no appeal from the order. In any event, whilst the use of the term “essay” renders the order unorthodox, the order was made in proceedings to which the provisions of Division 12A of Part VII and of particular relevance here, ss 69ZN(4), 69ZN(6), 69ZN(7) and 69ZX(1)(a)-(e) of the Family Law Act 1975 (Cth) (“the Act”), applied. Her Honour plainly had the power to make an order requiring the mother to provide evidence of “what [she had] learnt at the Parenting Orders Program and how [she was] incorporating such information into everyday life.”
The question, then, is whether her Honour failed to place any or sufficient weight upon the contents of the “essay” as alleged on appeal. It is to be noted that the only reference made by her Honour to the “essay” in her reasons for judgment in relation to her final orders was at [23]. There, when outlining the history of the proceedings, she referred to her order for the “essay” and to the mother’s having filed it.
Her Honour identified, at [37] of her reasons, that “the real issue in this matter … is the harm to which the children will be exposed in not having a true relationship with their father into the future if they remain living with their mother and her prevailing attitude continues” (emphasis added). Having identified that as the “real issue” her Honour went on to find that “[t]he mother has attempted to modify her behaviour but her efforts have been unsuccessful. This may be because her beliefs are so strongly felt and held, they are unshakeable” (reasons for judgment at [37]).
It is submitted on behalf of the mother that her Honour’s finding that the mother’s “efforts” to “modify her behaviour” had “been unsuccessful” is not consistent with the “essay” or the second family report of Mr M, which was prepared in January 2012.
In the affidavit containing the “essay”, the mother describes several “things which [she had] done to encourage and facilitate the relationship [between the children and] their Father.” Examples include purchasing a card and present for the children to give to the father on Father’s Day, providing the father with information regarding the children’s schooling and extracurricular activities and placing the father “on the schools [sic] enrolment form.” The mother also deposed to having “encouraged the children to spend time with their dad” and to having “complied fully with the orders of the 18th August [providing for time between the children and the father] …”
The mother completed the relevant Parenting Course in September 2011. Her Honour refers to several incidents occurring after September 2011 which, contrary to the contents of the “essay”, point against a “willingness and ability” on the part of the mother to “facilitate and encourage a close and continuing relationship between the children and the [father].” By way of example:
52.In October 2011, the mother failed to advise the father that dancing fees were due and payable on a day when he was taking [Y] to dance class. The mother turned up at the dance class when the father arrived with the child. The mother told the father that he would have to pay for the dance class. This was the first notice that the father had had that the fee [sic] were due that day and he had not brought his wallet with him. He and the mother had exchanged a number of emails during the day about the dance class and the mother had failed to mention the requirement for payment. The mother chose not to pay on that day although she could have. As payment was not made on that day, the child was unable to participate in the class. The mother made it plain to the child that her inability to dance that day was as a result of the father’s failure to pay.
…
56.The mother has asked [Y] directly whether she has said words to her father attributed to her by her father in his affidavits. She has reported [in an affidavit filed 5 April 2012] [Y]’s denials.
The incident described in [52] assumes particular significance not only because it occurred after the mother had completed the parenting program but, also, because the mother specifically referred to the importance of dancing in Y’s life in her “essay” and sought to criticise the father for not facilitating her attendance at dance lessons when Y was in his care:
The children love [their respective extra-curricular activities] and it is with great sadness that the ones hurting the most out of this litigation are the kids. This was apparent at [Y]’s dance concert as now she only attends dancing on my week when I take her. She was on stage and she didn’t know her dance moves and had to keep watching the other kids as she had missed out on so many lessons prior to her concert. This is a girl who loves to dance and sing … Kids love to see you watching them … dance.
(Affidavit of the mother filed 9 January 2012 at [6]).
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”.
Counsel for the mother also submitted that her Honour’s finding that the mother’s attitude towards the father remained unchanged was inconsistent with the second family report of Mr M. We reject that submission.
The context in which the second family report was obtained is encapsulated in the following extract of the proceedings before her Honour on 15 December 2011:
MR HAMWOOD: … In terms of an updated assessment, your Honour, I don’t know whether Mr – would your Honour be looking for that on 3 February?
HER HONOUR: Look, I don’t have a fixed view about that.
MR HAMWOOD: Yes. I think Mr [M] might be able to do that in January, your Honour.
HER HONOUR: For example, I would be interested for Mr [M] to be seeing the father and [Y]. I wouldn’t need him to be troubling anybody else, but in particular, [Y] when she has been having the most exclusive – well, time away from her mother in her father’s care and getting from her where she’s at now, which is, of course, what’s going to be defining for me in the future as deposed [sic] to where is the mother is [sic] at with [Y] being away from her.
…
MR COOPER: Well, I’ve just been asked that – with [Mr M], I want to make that clear. The father and [Y] are to see [Mr M].
HER HONOUR: Yes.
MR COOPER: And you were not interested at all.
HER HONOUR: No. Not interested at all – well, I’m very interested in the mother, but I’m not interested in Mr [M] having to speak again with the mother and I’m not very interested in Mr [M] speaking much with the father, but somebody needs to be taking the child along. So it’s mainly with respect to where [Y] is at.
MR COOPER: Okay. And no instructions required, simply - - -
HER HONOUR: You could call it a wishes report for the child.
MR COOPER: A wishes report.
MR HAMWOOD: We will arrange that, your Honour.
HER HONOUR: I think the shorthand term that the court often uses is a short wishes report. Mr [M] might understand that and no doubt, understanding the background, he would.
MR COOPER: As he has previously been – yes, advised of that, no further material needing to be provided, just simply the child.
HER HONOUR: Look, I am happy – I do not wish to limit the material which is provided. Clearly, that will increase the cost and time that Mr [M] has to put into it, but there can easily be a joint letter of instruction by the solicitors bringing him up to speed with where things are at in the same manner that you often see Legal Aid ICLs providing a letter of instruction bringing somebody up to speed, setting out what the issues are and the like. So if a joint letter wants to be provided, I have no objection to that.
…
HER HONOUR: Yes. I think that you would be better off with a letter of instruction jointly provided by the solicitors.
MR HAMWOOD: And your Honour, if Mr [M] was to send [X] then I would assume I wouldn’t have a difficulty. I don’t ‑ ‑ ‑
HER HONOUR: No. I’m happy for [X] to be taken.
…
(Transcript of proceedings, 15 December 2011, p 8, lines 10-23; p 10, lines 21-47; and, p 11, lines 1-24. Emphasis added)
As that extract makes plain, the purpose of the second report was to ascertain Y’s position in circumstances where she had been spending time with the father after having had no contact with him for approximately four years, and where the first family report had been prepared in the context of Y having spent no time with her father for a number of years. Her Honour clearly was not interested in Mr M speaking with either of the parents nor was she particularly concerned with Mr M speaking with X. The purpose of the second report was to ascertain how Y was coping with time with her father; it was not to consider whether the mother’s attitude had changed.
Unsurprisingly, Mr M did not interview either of the parents for the purpose of the second report. It is, then, somewhat disingenuous for counsel for the mother to contend that the contents of Mr M’s report support the mother’s claim that her attitude towards the father had changed. Such an inference attributes Mr M’s observations of the change in Y’s demeanour and attitude towards time with her father solely to the conduct of the mother, in circumstances where Mr M drew no such association and was not asked any questions regarding any such correlation during cross-examination by the mother’s solicitor. Further, such a submission overlooks the (not insignificant) fact that at the time of the first family report, Y had spent no time with her father for a number of years and at the time of the second report, Y had been spending time, including overnight time, with her father which could account for the change in Y’s demeanour. It also ignores Mr M’s oral evidence, and in particular his reference during cross-examination by the mother’s solicitor to Y’s ongoing anxiety and the potential that that anxiety might be a result of a “continuation of her mother’s views [regarding her father]” (Transcript of proceedings, 20 April 2012, p 70, line 44-p71, line 3). Plainly, Mr M had not formed a view that the mother’s “views” or attitude towards the father had, in fact, changed and attempting to attribute his observations of Y in the second family report to an alleged change in the mother’s attitude is to draw an association which the expert neither drew himself, nor was one he was asked to draw during oral evidence.
The limitations on appellate interference with discretionary judgments on the basis only of matters of weight were explained by Stephen J in Gronow in the following way (at 519–20):
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.
For the preceding reasons, we are satisfied that her Honour did not fail to place any or sufficient weight on the contents of the mother’s “essay”; her Honour’s finding that the mother’s attitude towards the father had not changed was reasonably open on the evidence before her, including the “essay”.
The appeal against the parenting orders is dismissed.
The Costs Appeal (NA 80 of 2012)
The mother’s second appeal is against an order of her Honour awarding costs to the father. That order was made on 30 August 2012 and provided that the mother pay the father’s costs of the application for a stay filed by the mother on 31 May 2012, fixed in the sum of $4693.50. Her Honour dismissed the mother’s application for a stay on 5 July 2012. The mother does not appeal the order dismissing her application for a stay.
As with the parenting appeal, the grounds of appeal stated in the Notice of Appeal in respect of the costs order were abandoned at the hearing before us. Ultimately, the issue argued in respect of the costs appeal distilled to whether, in light of events which have occurred subsequent to its making (and thus, in light of facts not known by her Honour at the time the order was made), the costs order is erroneous and should be set aside and the father’s application for costs be remitted to her Honour for rehearing at a date and time subsequent to the conclusion of criminal proceedings involving the father.
As noted at the outset of these reasons, three agreed Statements of Facts were received at the hearing of the appeal pursuant to s 93A(2) of the Act. Those Statements set out, inter alia, events in the intervening period between the dismissal of the mother’s application for a stay and the making of the costs order now appealed from, together with events which have arisen since the making of the costs order.
Put briefly, the father claimed, in an affidavit sworn on 29 June 2012 in the stay application proceedings, that the Queensland Police had made telephone contact with the mother on the day the final parenting orders were made as a result of concerns raised by the father regarding the mother’s emotional wellbeing and the wellbeing of the children. The father also attributes certain statements to an officer of the Queensland Police. The mother disputed those claims and, subsequent to her Honour’s dismissal of the application for a stay, made enquiries of the Queensland Police regarding the father’s allegations. It is uncontroversial that, as a result of a subsequent investigation by the Queensland Police, the father was charged on 14 March 2013 with “giving false evidence”. At the hearing of the appeal, the father informed the Court that the criminal proceedings had been adjourned to 9 May 2013 to allow the father time to obtain legal advice. At this stage, it seems, the criminal proceedings are at a preliminary stage and certainly, no findings have been made regarding the father’s culpability.
Whilst the mother outlined her claim that the father had given “false evidence” in two affidavits filed on 14 and 28 August 2012 in the costs proceedings, there was nothing in the evidence before her Honour at the time the costs order was made on 30 August 2012 to suggest that the Queensland Police were to commence an investigation leading to the father being charged. We consider, and it was not suggested otherwise, that her Honour’s order was not erroneous at the time it was made on the evidence then available.
However, bearing in mind the remedial nature of the discretion conferred upon this Court by s 93A(2) (see, CDJ v VAJ (1998) 197 CLR 172 at [109]), we consider that, as a result of the events which have transpired since the making of the costs order and, in particular, the charging of the father and the criminal proceedings currently on foot, her Honour’s order that the mother pay the father’s costs, in circumstances where the parties’ conduct is, a mandatory consideration under s 117(2A) in considering a costs order, is erroneous.
That is, it can readily be accepted that if her Honour had known, when determining costs, that there remained an open question as to whether the father had provided false evidence in respect of the substantive application in relation to which costs were being agitated, that would have been a significant consideration in the discretionary determination.
Of course, the father is entitled to be presumed innocent of the charge unless and until he is convicted of it, but we accept the submission of counsel for the mother that the gravity of the conduct the subject of the criminal proceeding should prevent the making of a costs order in favour of the father whilst that question goes unresolved.
We will, then, allow the appeal against the costs order made by her Honour on 30 August 2012 and remit the matter for rehearing by her Honour at a date and time to be fixed, following the conclusion of the criminal proceedings involving the father.
Costs
At the conclusion of the hearing, we invited the parties to make submissions in respect of costs. The father sought an order for costs in the event that either of the appeals were unsuccessful and both parties sought certificates pursuant to the relevant sections of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”) in the event of success of either appeal.
The mother has been unsuccessful in the appeal against the final parenting orders (NA 48/2012) and successful in the appeal against the costs order (NA 80/2012).
Notwithstanding that the parenting appeal has been unsuccessful, we are not persuaded, particularly having regard to the financial circumstances of the parties (as found by her Honour at [15] and [17] of her reasons for judgment of 30 August 2012), that the circumstances would justify any departure from the general rule in s 117(1) of the Act that each party should bear their own costs in relation to that appeal.
Similarly, we consider that each party should bear their own costs in relation to the costs appeal. Moreover, given the basis upon which the costs appeal succeeds we are not satisfied of the existence of a “question of law”, as is necessary to enliven the discretion under the Costs Act to grant costs certificates for the appeal. The appeal succeeds not because of a question of law but because the costs order is now demonstrated to be erroneous in the light of evidence of events occurring after its making.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, May and Kent JJ) delivered on 9 May 2013.
Associate:
Date: 9 May 2013.
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