WOLLEMAN & WOLLEMAN

[2019] FamCAFC 107

FAMILY COURT OF AUSTRALIA

WOLLEMAN & WOLLEMAN [2019] FamCAFC 107

FAMILY LAW – APPEAL – PROCEDURAL – Where the Notice of Appeal failed to disclose any proper grounds of appeal – Where the mother failed to file a summary of argument in time pursuant to procedural orders made by the Regional Appeal Registrar and r 22.21 of the Family Law Rules 2004 (Cth) – Where the mother attempted to file her summary of argument the day before the appeal hearing – Where the father and the Independent Children’s Lawyer reasonably objected to the Full Court receiving the mother’s summary of argument – Where the Full Court determined it was inappropriate to accept the mother’s summary of argument – Where the mother did not provide a transcript of proceedings – Where the appeal could have been deemed as abandoned – Where leave was granted allowing the mother to reinstate the appeal absence of a transcript – Where leave granted for the mother to prosecute her grounds of appeal orally in the absence of a summary of argument.

FAMILY LAW – APPEAL – PARENTING – Where there are two children of the relationship – Where the appellant mother’s main contention on appeal was that the primary judge failed to consider the appellant’s fixed belief that the respondent father had sexually abused the eldest child – Where the primary judge considered allegations of family violence and sexual abuse – Where the appellant failed to establish that the primary judge was in error – Where the findings made by the primary judge were open on the evidence – Where the primary judge had conducted the proceedings appropriately – Where no merit to certain grounds of appeal – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the respondent father did not seek costs – Where the Independent Children’s Lawyer sought a cost order against the mother in the event the appeal was unsuccessful – Where s 117(4) of the Family Law Act 1975 (Cth) operates as a legislative hurdle – Where the mother has been in receipt of Legal Aid during the proceedings – Where the mother would face substantial hardship if ordered to pay the Independent Children’s Lawyer’s costs – Where no order as to costs.

Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3), 60I, 69ZN(4), 69ZN(7), 69ZP, 69ZX(1), 69ZX(2), 93A(2), 117(4)

Family Law Rules 2004 (Cth) r 22.21

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Cooke & Morton (2018) FLC 93-820; [2018] FamCAFC 9
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
M v M (1988) 166 CLR 69; [1988] HCA 68
National Companies and Securities Commission v News Corp Ltd (1984) 156 CLR 296; [1984] HCA 29
SS Hontestroom v SS Sagaporack [1927] AC 37
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

APPELLANT: Ms Wolleman

RESPONDENT: Mr Wolleman

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW, Sydney Central

FILE NUMBER: NCC 3375 of 2014

APPEAL NUMBER: EA 58 of 2018

DATE DELIVERED: 21 June 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Sydney

JUDGMENT OF: Alstergren CJ, Ryan & Austin JJ

HEARING DATE: 6 March 2019

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 21 March 2018

LOWER COURT MNC: [2018] FCCA 1000

REPRESENTATION

THE APPELLANT: In person

COUNSEL FOR THE RESPONDENT: Mr Gray

SOLICITOR FOR THE RESPONDENT: CDG Law

COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER: Mr Harris

SOLICITOR FOR THE

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW, Sydney Central

Orders

1. The appeal against the orders of Judge Terry made on 21 March 2018 be dismissed.

2. There be no order as to costs.

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 Wolleman & Wolleman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 58 of 2018
File Number: NCC 3375 of 2014

Ms Wolleman

Appellant

and

Mr Wolleman

Respondent

and

The Independent Children’s Lawyer

REASONS FOR JUDGMENT

Alstergren CJ and Austin J

Introduction

1. On 21 March 2018, the primary judge made final parenting orders pursuant to the Family Law Act 1975 (Cth) (“the Act”) in proceedings between Ms Wolleman (“the mother”) and Mr Wolleman (“the father”) and delivered ex tempore reasons for judgment. The orders concerned parenting arrangements for the parties’ two children, X (“the eldest child”), who was ten years old at the time of trial, and Y (“the youngest child”), who was six years old at the time of trial (together “the children”).

2. The primary judge ordered that the father have sole parental responsibility for the children, the children live with him and the mother spend supervised time with the youngest child for two hours four times per year.  There were also orders made restricting the mother from approaching or communicating with the children.

3. By Notice of Appeal filed 18 April 2018, the mother appeals those orders. The Independent Children’s Lawyer opposed the appeal. The father was represented and appeared at the appeal. The father did not file or make submissions at the appeal but by implication, sought that the orders made by the primary judge remain enforceable.  

4. For the reasons set out below, the appeal is dismissed.

BACKGROUND

1. The following brief history of the matter was taken from her Honour’s reasons for judgment. These facts are not contentious.

2. The father is from Australia and was 67 years of age at the time of trial. The mother is from Country C and was 37 years of age at the time of trial.

3. The mother has a son from a previous relationship, A, who was 16 years of age at the time of trial. The parties met in Country C in 2006, married in 2007 and relocated with A and the eldest child to Australia in 2010.

4. Upon the parties’ separation in June 2014, the eldest child remained with the father, and the youngest child and A remained in the mother’s care.

5. After the mother filed an Initiating Application seeking parenting orders in December 2014, Ms S prepared a Family Report, which was released to the parties on 13 November 2015. Ms S’s report recommended that the father have sole parental responsibility, and that the children live with the father and spend time with the mother. Ms S took into account a number of matters in reaching these recommendations, including the mother’s sustained and unsupported assertions that the father may rape the eldest child, the mother’s interactions with the children and the eldest child’s clear wish to live with the father.

6. The matter settled on 22 June 2016, the first day of trial, and consent orders were made that there be equal shared parental responsibility and that the children remain living separately and spend time with the parent with whom they are not living.

7. The mother continued to allege that the father may have sexually abused the eldest child after these consent orders were made.

8. On 8 October 2016, the mother attended a doctor’s appointment at L Medical Centre with the eldest child.

9. The mother expressed concern that the eldest child had slept in the same bed as the father. The mother also expressed a concern that the father had held the eldest child up close to his body (see: Affidavit of Ms Wolleman sworn 6 June 2017, paragraph 54). The doctor noted that the eldest child denied any sexual assault by the father, and that there was no evidence of any physical abuse (at [31]).

10. On 1 November 2016, Dr Z of L Medical Practice wrote the following to Dr J of D Medical Centre (at [32]):

    Thank you for seeing [the eldest child], aged eight years, for assessment. As you are aware during our phone discussion today, [the eldest child’s] mother … is concerned of sexual abuse.

    (Emphasis in original)

11. The father repeatedly informed the mother in late 2016 and early 2017 of the eldest child’s distress caused by attending a doctor regarding this issue.

12. In March 2017, the school counsellor reported that the eldest child was worried that the mother would again take her to the doctor. After being informed of this, the father again conveyed his concerns to the mother. On 24 March 2017, the mother confirmed via email that she would not discuss her concerns with the eldest child or take the eldest child to a doctor unless she was ill.

13. On 5 April 2017, the mother met with the eldest child’s counsellor, Ms O, and Ms O’s practice manager, Ms T. The mother expressed her concerns regarding the father and her fear that the eldest child may commit suicide.

14. On 6 April 2017, the school counsellor noted that the eldest child was worried that the mother may take her to the doctor again (at [39]). 

15. On 10 April 2017, the mother withheld the children from the father and thereafter prevented them from seeing the father and attending school for nearly two months.

16. The father filed an application for recovery order shortly thereafter, and on 7 June 2017, the primary judge ordered the mother to deliver both children to the father and suspended the mother’s time with the children.

17. Following her return to the father, the father claimed that the eldest child refused to see the mother at all. The mother subsequently refused to spend time with the youngest child as she could not see both children. The mother has not spent time with the eldest child since June 2017, and has only briefly seen the youngest child during the interviews for the second Family Report.

18. Ms K prepared the second Family Report on 5 September 2017. Its scope was limited to what orders should be made concerning the children spending time with their mother. Ms K noted that the youngest child appeared apprehensive and uncomfortable during his time with the mother. The eldest child refused to see the mother on the day of the interviews and expressed a desire not to see her in the future. Ms K also noted that the children appeared happy in the father’s care and that no information supported the mother’s claims of sexual abuse (at [46]). Ms K recommended that the children live with the father and that a more comprehensive Chapter 15 expert report be prepared.

19. The primary judge listed the matter for trial without ordering this report as the issues in dispute were very similar to those in the previous two family reports (at [50]), and her Honour was still unable to arrange supervised time with the children because the mother’s continued refusal to agree to it (at [51]).

20. The mother sought orders for sole parental responsibility, that the children live with her and spend supervised time with the father and permission to relocate with the children.

21. The husband sought orders for sole parental responsibility and that the children live with him and have no time, or communication, with the mother.

22. The Independent Children’s Lawyer sought the same orders as the father, except for the proposal that the children spend supervised time with the mother four times per year.

The mother’s appeal documents

1. The Notice of Appeal contained six grounds of appeal, each in narrative form and each of which were pressed by the mother at the appeal. The mother also attached an additional three pages that recounted the parties’ various separations and other events. These additional pages did not contain any recognisable grounds of appeal.

2. We were significantly assisted by the Independent Children’s Lawyer’s Summary of Argument. Consequently, we were able to discern some asserted errors alleged to have been made by the primary judge, which we shall address below.

3. Pursuant to Procedural Orders made by Registrar Cameron on 7 August 2018 (“the Procedural Orders”), the mother was required to file and serve her Summary of Argument with a list of authorities on or before 16 October 2018. The mother failed to do this, and instead, the day before the appeal was to be heard, attempted to file her Summary of Argument, which was in the form of a 194 page unsigned affidavit.

4. The mother admitted that the contents of her Summary of Argument was evidence she would have liked the primary judge to have considered and taken into account in reaching her Honour’s findings.

5. The difficulty with the mother’s request to adduce fresh evidence at appeal is that there are stringent requirements for the calling of further evidence (CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”)). For example, further evidence is more likely to be admitted when it relates to events that have occurred after the trial (CDJ v VAJ at [114]). Notably, the discretion under s 93A(2) of the Act must be exercised judicially, and the evidence must be relevant and admissible according to the usual rules of evidence (CDJ v VAJ at [115]). The Court may be disinclined to allow a party to adduce evidence on appeal that they could have, but did not, put before the trial judge (CDJ v VAJ at [116]). As such, we fail to see how the mother’s Summary of Argument is admissible as evidence under these principles.

6. In light of the abovementioned factors together with the father and the Independent Children’s Lawyer’s reasonable objections to the Full Court receiving the mother’s Summary of Argument, given the lateness of its service, we determined that it was not appropriate to accept this material (Transcript 6 March 2019, p.9 line 41 to p.10 line 7).

7. The Full Court was not provided with a transcript of the proceedings before the primary judge. The mother faced significant difficulty in proving any of the alleged errors, given that most of the asserted errors concerned the primary judge’s acceptance or rejection of evidence, or the weight attributed to evidence. Further, the failure to provide a transcript of the hearing before the primary judge was in contravention of Order 5 of the Procedural Orders and r 22.21 of the Family Law Rules 2004 (Cth) (“the Family Law Rules”).

8. While the appeal could have been deemed abandoned given the mother’s failure to provide a transcript, however, for the avoidance of any doubt, the Court granted leave to the mother to reinstate her appeal in the absence of the transcript and leave to prosecute the grounds of appeal orally in the absence of a summary of argument (see Transcript 6 March 2019, p.3 line 45 to p.4 line 10).

Ground 1 and Ground 5

1. The crux of Ground 1, and the mother’s central allegation on appeal, was that the primary judge erred by failing to take into account the risk of harm to the children posed by the father. The mother’s claim concerned two issues: firstly, that the father had allegedly sexually abused the eldest child; and secondly, that the father had allegedly perpetrated family violence against the mother and the children.

2. Ground 5 essentially repeated the grievances outlined in Ground 1, as this ground stated, inter alia, that:

   My daughter [X] had disclosed to me about being touched by her father whilst in his care. She wanted to know how the health professionals would be able to know that her father had touched her…

3. Ground 1 referred to various documents that purported to support the appellant’s claim that the primary judge “made a mistake in not taking into account the risk of harm to children”. These supporting documents were annexed to the Notice of Appeal. For the reasons outlined above at [31] of these reasons, these documents were not accepted into evidence, and we had no regard to any of the documents attached to the Notice of Appeal.

4. As articulated in the Notice of Appeal, Ground 1 failed to identify a specific erroneous finding by her Honour and did not contain any valid argument in support of the mother’s central challenge. The mother’s argument was essentially a complaint that the primary judge did not prefer her evidence to that of the father’s evidence. This is not an appealable error.  

5. Ground 5 was similarly narrative in form, and the mother referred the Court to two attachments that supposedly supported her claim. Essentially, the mother asserted that the primary judge did not take into consideration the eldest child’s disclosures to the mother that she was sexually abused by her father.

6. Given the similarity between Grounds 1 and 5, these complaints are considered together.

7. Having carefully considered the evidence, the primary judge found:

   135. There is no evidence that [the eldest child] is or has ever been at any risk of sexual harm from the father. The mother’s own evidence does not remotely suggest that. None of the people who have had any contact with [the eldest child] have the slightest concern about it...

8. Furthermore, there was an abundance of evidence to suggest that the eldest child had repeatedly denied that it was true. Her Honour placed significant weight on the evidence of the second family report:

   124. The best summary of what has followed from this obsession by the mother that [the eldest child] has been sexually harmed by the father or is at risk of sexual harm is contained in the second family report. The family consultant summarised in great detail everything in the subpoena records from 2016 onwards about the mother telling people she feared for [the eldest child’s] safety, insisting [the eldest child] was frightened of the father and insisting that [the eldest child] might be at risk of sexual harm from the father.

   125. The doctors the mother took the child to see in 2016 did not share that concern. Dr [Z] saw [the eldest child] and the mother on 31 October 2016.  She said she had no intention of making a report to [Family and Community Services] given there was no evidence.

   126. It goes on and on and on, page after page of examples of the mother insisting that things are happening and everybody else saying, “No, there is just no sign of this at all.”

   127. The mother just will not listen to [the eldest child]. There is this report from 16 November 2016:

   [The eldest child] told her counsellor the mother took her to doctors and then in front of the doctor the mother started to ask [the eldest child] is she being touched on her private parts by her father. [The eldest child] reported feeling embarrassed and didn’t say anything. She said the mother had told her she was going to be medically examined but she didn’t want to be.

   128. The evidence the mother puts up as foundation for a belief that [the eldest child] is being sexually abused is so slight that it cannot support a finding that there is any reason to be concerned or suspicious.

   (Footnotes omitted) (Emphasis in original)

9. It was clear that the primary judge considered the mother’s evidence.

10. Moreover, we also found no error in her Honour’s finding regarding alleged family violence.

11. At the appeal, the mother recounted the first occasion when the father was allegedly violent towards the eldest child, namely that he hit her across the face which caused bruising on her face and neck. The mother argued that the primary judge failed to consider the fact that the children had been victims of domestic violence from a young age.

12. It was pointed out to the mother that this allegation was recounted by her Honour in the reasons, which indicated that her Honour did read and listen to the evidence of the mother as to the allegation of domestic violence:

    160. The mother alleged that when [the eldest child] was eight months old the father hit her across her face with his hand resulting in bruising to her face and neck…

13. Further to this, the primary judge correctly identified that both parties were making serious accusations of family violence against the other (at [165]) and in such circumstances, it called for a determination as to whose evidence should be preferred.

1. The primary judge had the advantage that we do not have as an appellant court in determining credibility of witness: see Lord Sumner in SS Hontestroom v SS Sagaporack [1927] AC 37 at 47. The primary judge turned her mind to the mother’s credibility and determined that the mother was a “very unreliable witness” (at [169]). Coupled with circumstances where none of the allegations made by the mother were supported by corroborating evidence (at [170]), the primary judge correctly determined that she could not accept the mother’s assertion that the father had been violent to the mother or their children (at [172]).

2. The issue that the primary judge faced regarding the mother’s credibility was also evident at the appeal hearing. For example, the mother was asked whether she signed her affidavit sworn 6 June 2017. Initially, the mother asserted that her affidavit was “signed by someone else that [she didn’t] even know”, despite it being included in the appeal books prepared by her (Transcript 6 March 2019, p.23 line 44). When it was then pointed out to the mother that the signature on her Notice of Appeal matched the signature on the affidavit, she conceded that her lawyers at the time prepared the document and she had signed it, but she said that “this [was] not [her] story” (Transcript 6 March 2019, p.25 line 22).

3. It cannot be rationally suggested that the primary judge’s finding as to the perpetration of family violence or her Honour’s rejection of the mother’s claim that the eldest child was sexually abused was not open to her Honour on the evidence. These findings were well open to her Honour and the force of the evidence drove such a finding.

Ground 2

1. As we understand it, the mother appeared to argue that the primary judge failed to take into account the father’s medical issues.

2. This ground can be disposed of quickly. At [148]–[150], the primary judge acknowledged that the mother was concerned as to the father’s health, given that he had recurring malaria, previously had prostate cancer and was diagnosed with post-traumatic stress due to his service in Country D. The primary judge found that these health issues did not limit the father’s capacity to provide for the children’s needs, both emotionally and intellectually (at [151]).   

3. It was clear that the father’s health problems were explicitly considered by the primary judge. Accordingly, this ground was not made out.

Ground 3

1. This ground centred on the primary judge’s refusal to allow the mother’s application to adjourn and the failure to allow the mother to file evidence at the final hearing. 

2. Given that we were not afforded a transcript of proceedings, we are limited to the material before us to determine the correctness of the primary judge’s determination.

3. What is clear from the judgment is that the mother sought an adjournment at the beginning of the final hearing, which was opposed by the father’s solicitor

   
   

   (at [54]). The primary judge considered the mother’s request but denied this for the following reason:

   55. The mother had had months to prepare for the trial and had been warned of the consequences of not being ready.  She was represented in the earlier proceedings. She provided no explanation for why she did not have a lawyer at present. She was not spending any time with the children and there had been an incident at the school at the end of December 2017. 

4. As a result, the primary judge relied on the mother’s affidavit sworn and filed on 6 June 2017, other documents which she tendered and evidence that emerged from her cross-examination of the father.

5. Furthermore, the primary judge determined that it was not appropriate for the mother to rely on the affidavits of Ms H and Ms B as these people were not available for cross examination and, in the event that they were, the primary judge indicated that these affidavits would not have assisted her Honour in reaching the decision (at [60]).

6. The best interests of the child, and not the entitlements of the parents, are the focus of these proceedings (see Cooke & Morton (2018) FLC 93-820 at [39];

   
   M v M

   (1988) 166 CLR 69 at 76). This is reflected in Division 12A of Part VII of the Act, which contains the principles that govern the conduct of child related proceedings.

7. The primary judge’s decision to restrict the evidence of Ms H and Ms B, and limit the mother’s affidavit material was empowered by

   
   

   ss 69ZX(1) and 69ZX(2) of the Act. Her Honour could exercise this power of her own volition under ss 69ZN(4) and 69ZP of the Act. Additionally, during the hearing of the appeal, the mother admitted that, in any event, she did not want to call either Ms H or Ms B to give evidence as they did not tell “the right story of [her] family” (Transcript 6 March 2019, p.13 line 25).

8. In considering the adjournment, the primary judge was obligated to consider that the court is to conduct proceedings without undue delay and with as little formality, and legal technicality and form as possible, pursuant to s 69ZN(7) of the Act. The primary judge was acutely aware that it was necessary to hear this matter “sooner rather than later” (at [56]) especially in circumstances where the mother had not seen the children since June 2017 (albeit the mother had spent very limited time with the youngest at the second family report). The way in which her Honour controlled the proceedings was appropriate and was available to her Honour under s 69ZP of the Act.

9. There was no merit in Ground 3.

Ground 4

1. Ground 4, as asserted by the mother, was that the father’s failure to attend mediation amounted to a ground of appeal.

2. As it was explained to the mother on appeal, either electing to participate or not in a mediation is not relevant to the final hearing itself, as mediation is a confidential process where any negotiations cannot be used in a final hearing. Despite this explanation, the mother still pressed this as a ground of appeal.

3. Further to this, a ground of appeal must demonstrate that the primary judge made an error, either in fact or law, that renders the overall conclusion or determination incorrect.

4. A failure to attend mediation is not a ground of appeal. It does not identify a basis that suggests the primary judge’s reasons were in error.

5. This ground was not made out.

Ground 6

1. The essence of Ground 6 was that the primary judge did not take into account the fact that the father breached spend time orders in 2014, 2015 and 2016.

2. Her Honour’s reasons made a finding that the father had failed to provide the eldest child to the mother at least on a couple of occasions:

   86.There were a couple of brief occasions in late 2016 and early 2017 when the father did not send [the eldest child] to spend time with the mother because of a concern about a doctor’s appointment but by and large he complied with the orders. It is only very recently and in the face of what I consider to be [the eldest child’s] own strongly held view that she does not want to see her mother that the father has been saying, “She doesn’t want to see her mother; I’m not going to make her.”

   (Emphasis in original)

3. In terms of the breach of the spend time orders in 2014 and 2015, we were unable to find any reference to such allegations in the mother or the father’s affidavit material. In any event, we consider that the mother failed to identify an error. The primary judge clearly considered the father’s breach of spend time orders in late 2016 and early 2017. No error has been made out.

Other issues raised by the mother

1. On appeal, the mother wished to agitate a further complaint against the primary judge’s decision, namely that her Honour took into account an Apprehended Domestic Violence Order (“ADVO”) issued against the mother by the father on behalf of himself and the children in 2014, because the mother had hit the father with a computer cable (Transcript 6 March 2019, p.38 lines 28-29).

2. While this was not contained in her Notice of Appeal, it was explained to the mother that the primary judge was aware of the incidents that gave rise to the ADVO; however, her Honour did not consider this incident to be serious:

   163.What the mother failed to mention in her affidavit was that in June 2014 the police applied for an ADVO for the protection of the father, [the eldest child], [the youngest child] and [A] from the mother after the father alleged the mother became angry with him and picked up a computer cord and swung it causing small bruises on his arm and threw clothes and items around the room.

   …

   173. The father was a credible witness. I have no reason to believe that he made up the evidence about being struck by the computer cord but I am not minded to treat that as a particularly serious incident. Sometimes people swing something around and strike other people with it without actually intending to hit the other person. I believe that the father is being generally truthful about the incident but I don't know if it takes me anywhere. 

3. Accordingly, this complaint does not assist the mother in her appeal.

Conclusion and Costs

1. The mother failed to establish error and her appeal will be dismissed

2. The father did not file submissions in preparation for the appeal; however, he was represented by his solicitor at the appeal. The father did not seek an order for costs if the appeal were dismissed.

3. In the event the appeal were dismissed, counsel for the Independent Children’s Lawyer sought that the mother pay their costs. It was pointed out to counsel that the Independent Children’s Lawyer had a significant legislative hurdle by operation of s 117(4) of the Act.

4. The mother indicated that she would face substantial hardship if ordered to pay the Independent Children’s Lawyer’s costs. Given that she was unrepresented and had previously been represented by virtue of a grant of legal aid, we accept this submission.

5. Following this exchange, counsel for the Independent Children’s Lawyer indicated that he would not seek an order of costs against the mother.

6. No order for costs is made.

Ryan J

1. I have the advantage of reading the judgment of Alstergren CJ and Austin J with which I generally agree.  However, I wish to make some comments of my own. 

2. The father and mother are the parents of two children, X (“the eldest child”) and Y (“the youngest child”).  When the parties separated for the final time in June 2014, the eldest child was six and a half years of age and the youngest child had just celebrated his third birthday.  Although the mother says she wishes the children had not been separated, the parties took one child each.  Thus, the eldest child continued to live with the father and the youngest child continued to live with the mother.  The mother’s eldest son, A, remained with her.  There seems to have been an agreement for the children to spend time with the other parent every second weekend but the arrangements as to time were in fact quite ad hoc.

3. In December 2014, the mother commenced parenting proceedings in the Federal Circuit Court of Australia.  The father resisted the mother’s application and the proceedings went to trial on the basis that each party sought sole parental responsibility for both children, for the children to live with him or her and spend alternate weekends with the other party (along with other nominated times).  Although the parties made a raft of allegations about the parenting capacity and risks to the children in the care of their other parent, it is instructive that neither party argued that those risks were sufficiently serious to warrant supervision of the children’s time with the other parent, or, indeed, that it be curtailed altogether.

4. In preparation for the trial, Ms S, who is a family consultant, prepared a family report which was released to the parties on 13 November 2015 (at [18]). The family consultant recommended that the father have sole parental responsibility for the children, that the children live with him and maintain regular contact with the mother (at [19]). The primary judge summarised the rationale for the family consultant’s recommendations thus:

   20.Matters which appear to have influenced [Ms S] were her view that the mother had impaired insight into [the eldest child] witnessing the mother’s then partner [Mr R] assaulting the father, the mother’s discussion with [the eldest child] that she might be raped by the father unless she slept in her own bed, [the eldest child’s] reaction to the mother at the observation session and the mother’s favouring of [the youngest child] over [the eldest child]  during that session and the way the mother interacted with both children during the session contrasted with the father’s ability to respond appropriately to both children. 

   21.Another issue which influenced the family consultant was [the eldest child] clearly expressed wish to live with the father. 

5. On 22 June 2016, which was the first day of a scheduled three day trial, the parties entered into consent orders which provided that they have equal shared parental responsibility for the children and for the eldest child to live with the father and the youngest child to live with the mother.  It was agreed that the children would spend each weekend together alternating between their parents and for block periods during school holidays (at [23]).  By then, an Independent Children’s Lawyer (“ICL”) had been appointed to represent the children’s interests.  The ICL supported the agreement.

6. In what proved to be a triumph of hope over experience, as part of the consent orders, the parties asked the court to record their agreement that each of them would “reassure the children that they are well cared for and loved by that parent” (Notation 21). However, both parties were unhappy with the outcome and they both said “they agreed to these orders as result of pressure by [their respective] lawyers and fear…of a worse outcome” (at [24]). 

7. In any event, within a reasonably short period, the parties were again in conflict in relation to “exactly the same issues that have existed before the orders were made” (at [26]).  In particular, “…the mother’s refusal to let go of the fact that the father may have sexually abused [the eldest child]” (at [27]). 

8. At the behest of the mother and contrary to the father’s demand that she desist, the mother took the eldest child for repeated medical assessments so as to gather evidence that the eldest child had been sexually abused by the father and there was an ongoing risk of it.  She made similar allegations to police and the eldest child’s counsellor. 

9. Notwithstanding that the eldest child denied that she had been sexually assaulted by the father (at [31]), on 10 April 2017, the mother collected both children from school and thereafter, in breach of the orders dated 22 June 2016, she refused to return the eldest child to the father or to allow the youngest child to see him for nearly two months.  The children were also kept away from school for the same period.  In cross-examination, the mother said she “withheld [the eldest child] because of the sexual abuse issue and [the youngest child] because he was frightened of his Dad” (at [41]). 

10. The father filed an application for a recovery order and on 7 June 2017 the mother was ordered to deliver both children to the father forthwith and the orders which enabled the children to spend time with her were suspended.  Other than when the youngest child saw the mother during the preparation of the second family report (the eldest child refused to see the mother), the children have not spent time with her since then (at [52]). 

11. This second family report was prepared by a different family consultant who also recommended that the children live with the father (at [49]).  It was also recommended that a Chapter 15 expert report be obtained.  However, given that “the issues were exactly the same as they had been when the previous full family report was prepared” (at [50]), the mother’s refusal to consent to orders for supervised time (at [51]) and thus, the lack of contact between the mother and children, the primary judge decided that a further report was unnecessary and it was in the interests of the children for the proceedings to come to trial as soon as possible. 

The Grounds of Appeal

1. It needs to be understood that this is an appeal against the exercise of discretion to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499 (“House”).  A different view by an appellate court only as to matters of weight by no means justifies a reversal of the decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513). Nonetheless, the grounds of appeal were not statements of asserted error which engaged with the principles set out in House and at the commencement of the hearing it was necessary to clarify the gravamen of each ground of appeal.

2. Ground 4 raises concerns about information contained in a certificate issued pursuant to s 60I of the Act and the father’s failure to participate in mediation. There is no assertion of error by the primary judge and this ground is incapable of establishing error.

3. On the application of the mother (who is impecunious), this appeal was undertaken without the trial transcript.  There is a strong presumption in favour of the correctness of the decision appealed from (see Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627) and the absence of a transcript could not be permitted to undermine the strength of that presumption. It necessarily adds a layer of complexity for an appellant who attempts to challenge the adequacy of the trial reasons and findings of fact.

4. It is helpful at this juncture to consider what is best described as the mother’s informal application to adduce further evidence in the appeal, in particular, her 194 page affidavit, presented under the guise that it could be filed as her Summary of Argument. The admission of further evidence on appeal is governed by s 93A(2) of the Act. In this appeal, the purpose of the evidence sought to be introduced was to provide an evidentiary foundation for setting aside the orders of the primary judge and either a remitter for a new hearing at first instance or by way of redetermination by the Full Court. The further evidence was voluminous and contentious and, if admitted, it could only have been dealt with at first instance.

5. In CDJ v VAJ at 149, McHugh, Gummow and Callinan JJ said the admission of this type of evidence required the Full Court to be affirmatively satisfied of two matters, namely:

   …The first was that, given the findings of the trial judge, the further evidence if tendered before him was likely to have produced a different result. It was not enough that the Full Court thought that, upon the whole of the evidence including the further evidence, another judge might make a different order. The second was that the best interests of the children required rehearing of the husband's application, notwithstanding that all members of the family would likely suffer stress, inconvenience and uncertainty as the result of a new hearing. In that context, the financial cost of a further hearing and its impact on the family could not be ignored.

6. The further evidence which the mother sought to introduce satisfied neither requirement, and thus it should not be received.  It is appropriate that the same approach be taken to the documents attached to the mother’s Notice of Appeal, other than those which provide further explanation for a specific ground, albeit doing so does not enable those documents to be regarded as further evidence.

7. Otherwise it should be noted that because the mother failed to file the trial transcript (as a component of the appeal books) as ordered, pursuant to r 22.21 of the Family Law Rules and Order 5 of the Procedural Orders dated 7 August 2018, the appeal was deemed abandoned. Without objection from the father or ICL, we agreed the appeal be reinstated.

The reasons for judgment

1. The primary judge applied Part VII of the Act and in deciding what order would be in the best interests of the children, examined each of the ss 60CC(2) and (3) factors that were relevant. Pivotal to her Honour’s decision to make orders in favour of the father were the following findings:

   ·The eldest child strongly wished to live with the father, views which had been consistently held for several years (at [76]);

   ·The eldest child believed that the mother’s treatment of her was emotionally harmful (at [78]);

   ·The youngest child was happy about not spending time with the mother, but his views were not as strong as those held by his sister and he could accommodate supervised time (at [82], [83], [91] and [216]);

   ·The mother’s relationship with the eldest child was “in some ways non-existent and in other ways [is] very poor” (at [89]);

   ·The youngest child was at least willing to see the mother and it might be possible to re-establish his relationship with his mother (at [91]);

   ·The children have a good, close and warm relationship with the father (at [93] and [94]).  They are settled and happy in his care and are well looked after (at [202]);

   ·The children operate as a team and enjoy a close sibling relationship (at [95] and [97]). There would be considerable detriment to the children for them to be separated (at [204]);

   ·The mother’s refusal to accept that the children are not afraid of their father and her refusal to accept that the eldest child has not been sexually abused by him or is at risk of sexual abuse by him, suggests that the mother is incapable of providing for either child’s emotional needs (at [136]); and

   ·The mother’s fixed false belief that the eldest child is at risk of sexual harm from the father has the potential to cause the eldest child psychological harm and may have already done so (at [193]).

2. Finally, at [223] the primary judge was satisfied that the mother’s views about the father’s parenting capacity and his risk to the children were long standing and by inference, impervious to reason or change. 

3. In short, it can be seen that the strength of the children’s views that they continue to live with their father, where they were settled and happy and their needs capably met, were factors which weighed heavily in favour of the orders sought by the father and ICL.  Also weighing heavily in favour of the orders sought by the father were findings that the children should not be separated, the mother’s fixed false belief that the children were at risk with the father, that the mother had been psychologically abusive toward the eldest child, which in turn meant that the mother was unable to meet important aspects of the children’s needs.  Contrary to the position taken by the mother on appeal, these findings were available and there is no basis upon which this Court could properly interfere with her Honour’s exercise of discretion.

Procedural fairness – Ground 3

1. By this ground, the mother contends that the primary judge conducted the hearing in a procedurally unfair manner, in particular, by refusing the mother’s application for an adjournment (Ground 3).  In National Companies and Securities Commission v News Corp Ltd (1984) 156 CLR 296 at 312, Gibbs CJ explained that:

   …The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise…

2. Ultimately, questions of procedural fairness turn on their own facts. 

3. I agree with the majority that as these were parenting proceedings, the primary judge was entitled to take into account matters relevant to the welfare of the children in deciding whether or not the application for an adjournment should be granted (CDJ v VAJ at 195). The interests of the children were found to weigh against an adjournment, which was balanced against the reasons given by the mother for her lack of trial preparation and why she needed an adjournment. In this regard, it is uncontroversial that the mother’s grant of legal aid was terminated on 7 November 2017. This was approximately four months prior to the commencement of the trial and some three months before the trial affidavits were to be filed and served. The mother appealed against that termination and on 25 January 2018, she was advised that her application to the Legal Aid Review Committee had been refused. That is, approximately seven weeks prior to the commencement of the trial and one week before the trial affidavits were due.

4. It will be recalled that the parties had been in litigation about the children more or less consistently from December 2014 and for most of that period, the mother had legal representation.  She was, therefore, no novice to the court’s processes and, given that the primary judge had given her advance notice to the effect that even if the mother failed to comply with trial directions, the trial would proceed, the mother can have been in no doubt that in order to secure an adjournment she would need to provide strong evidence in support of it.  This she failed to do.  In these circumstances, the decision to refuse the adjournment was orthodox and did not occasion a denial of procedural fairness. 

Risk to the children – Grounds 1 and 5

1. Grounds 1 and 5 were argued together and allege that the primary judge failed to take into account that the father posed an unacceptable risk to the children, of sexual harm and/or physical abuse (Ground 1). Allied to this contention is the assertion that the primary judge erred by failing to accept evidence given by the mother of a statement attributed to the eldest child, to the effect that the eldest child had been sexually abused by him.  Furthermore, that evidence which she sought be admitted was wrongly excluded (Ground 5). 

2. The first challenge misstates the trial reasons.  As the majority has explained, the primary judge addressed the evidence concerning the mother’s allegations that the father posed an unacceptable risk to the children, at length.  These matters were not overlooked and, as the mother must have appreciated, the children’s repeated statements to people independent of the parties, for example, medical practitioners, school counsellors and the family consultant to the effect that they had not been mistreated by the father, posed a significant evidentiary barrier to her being able to establish the contrary proposition. Given the paucity of evidence called to establish that the father posed such a risk, it was necessary for the mother to be accepted as a reliable witness and for a greater weight to be given to her evidence than to the children’s statements for her assertion of risk to be made good.  This did not happen and in relation to the reliability of the mother’s evidence, the primary judge said:

   169.One of the problems is that the mother was a very unreliable witness. She insisted to me that the children feared their father and that is clearly not true. She insisted to me that there was evidence that [the eldest child] had been sexually abused and there is no evidence to support that. And then she insisted to me that the father had been violent to her and there is no corroboration of that and when I am faced with an unreliable witness the fact that there is no corroboration means that it is very difficult for me often to accept the evidence.

   170.Evidence about family violence does not have to be corroborated before it is believed.  Often there is no corroboration of allegations of family violence because it takes place behind closed doors and no one else is there and sometimes the Court accepts the evidence even though there is only one person saying something happened. However in this particular case I have a wholly unreliable witness making these allegations and no extrinsic evidence to suggest that the allegations might be true.

3. Compounding the mother’s difficulty in this regard is the finding that the father was a credible witness (at [173]). 

4. Her Honour’s findings as to the reliability of evidence given by the father and the mother was exquisitely a matter for her (Fox v Percy (2003) 214 CLR 118 at [23]-[29]) and have a devastating effect against the mother’s prospects of success of Grounds 1 and 5 (Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43]).

5. The first aspect to Ground 5, is that the primary judge erred by failing to accept that the eldest child disclosed to the mother she had been sexually abused by the father which prompted the mother to take the child to L Medical Centre on 8 October 2016.  It will be recalled, that a finding was made to the effect that at that consultation the eldest child denied sexual assault by her father (at [31]).  Before us, the mother explained that the evidence which should have been accepted, as at least establishing that the father posed an unacceptable risk of sexual abuse to the eldest child was:

   …I said I see that as a sexual abuse because my daughter, she’s uncomfortable to talk – talk about the father touching her to me as her mother. She’s fearful that her – her peers in school will find out. She break down, and she stated to her father, not to me, she yelled out to her father, “Mum’s going to tell all my friends, you know, you’re sleeping with me.” If my – to me if my daughter is uncomfortable to speak about the father touching her, you know, it’s against her will.

   It is against her will that she is placed and isolated with the father that she has no choice; she has no one to talk, you know, to tell but she just have to live with that, and it get to that point where she finally disclosed to me that he has touched her. I didn’t know what to say. I didn’t know what to ask her because as a mother my daughter is very young. I can’t speak to her about – I – I just can’t. I don’t have the confidence to talk to a little girl, a seven year old girl about what’s next, what happened. I don’t – I don’t have the confidence to do that. I just hope that if I take my daughter to the specialist the specialist will have the confidence to talk to my daughter about these things but then I was threatened by the father that I stop.

   (Transcript 6 March 2019, p.31 line 33 to p.32 line 2).

6. Apart from the ambiguity inherent in the word “touched” which invited the unanswered questions of where and in what circumstances, it is far from clear that the mother gave evidence that the eldest child told her that the father touched her, inferentially, in a sexually inappropriate fashion, prior to the attendance at the medical practice or at all.  In the mother’s affidavit sworn on 6 June 2017, under the heading ‘sexual assault’, the mother deposed to events spanning from 2014 up until the date she signed the affidavit. Taken at its highest, the mother’s affidavit recounts the eldest child agreeing with the mother that when the father delivered the eldest child to school, he touched the child when he picked her up (“he holds her up to his private parts and then kisses her”) and kissed her goodbye.  This is said to have occurred in the presence of teachers and it is noteworthy that there is no evidence that the school was concerned about the manner in which the father dealt with the child. 

7. Otherwise the mother deposes to a conversation with the father, and later with eldest child, in 2014, in which the father told her that the previous night the eldest child (who was nearly seven years of age) had been watching television in his bed.  The eldest child fell asleep and she spent the night in his bed, it is inferred, which she shared with him. 

8. If the eldest child made a disclosure of the type which the mother relayed to us in oral addresses, it should have been included in that affidavit. Although there is reference to the eldest child sleeping with the father on an occasion in 2014, this falls considerably short of evidence of inappropriate touching or sexual assault.  Nor, do the school gate departures support the mother’s contention of sexual assault.  It follows that in the absence of the trial transcript it has not been established to my satisfaction that the evidence which the mother says the primary judge failed to consider was in fact given. However, even if it was given, the lack of particularity in the account as relayed during oral addresses compared with the eldest child’s denial of inappropriate behaviour by her father to so many independent parties, gave an evidentiary foundation for the judge to determine the question of risk (or lack thereof) in the manner she did.

9. Turning then to the exclusion of affidavits upon which the mother sought to rely, it needs to be remembered that procedural fairness operates in favour of all parties, and often requires consideration of competing considerations and different adverse consequences.  It would have been manifestly unfair to the father to allow the mother to rely on affidavits adduced in earlier proceedings when the makers of those affidavits were not available.  There is no evidence that the mother had a reasonable explanation for why it was that those deponents were not available to give evidence.  Nor is there any evidence that the mother gave notice to the father and the ICL of her intention to adduce this evidence at trial, which should have been given.  Finally, in circumstances where the primary judge considered that the evidence, if admitted, was of little or no utility, there can be no doubt that it was properly within the exercise of her Honour’s discretion for it to be excluded. 

10. Grounds 1 and 5 are not made out.

Failure to consider relevant facts – Grounds 2 and 6

1. By these grounds it is argued that the primary judge failed to consider evidence as to the father’s health (Ground 2) and that the father failed to comply with orders as to the mother’s time with the children and to collect the children from school (Ground 6). Once again, these grounds misstate the trial reasons.  Reference to paragraphs [148]-[150] and [86] is sufficient to demonstrate that these matters were considered and for these challenges to be dismissed.

Conclusion

1. The appeal should be dismissed.

I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Alstergren CJ, Ryan and Austin JJ) delivered on 21 June 2019.

Associate:

Date: 21 June 2019