COLEMAN & HAMILTON

[2016] FamCAFC 164

FAMILY COURT OF AUSTRALIA

COLEMAN & HAMILTON [2016] FamCAFC 164

FAMILY LAW – APPEAL – CHILDREN – Where the mother appeals against parenting orders that the children live with the father and the father have sole parental responsibility – Where the grounds of appeal challenged the weight the trial judge gave to evidence – Where the totality of the evidence provided an ample basis for the challenged findings – Where the trial judge made adverse credit findings against the mother – Where it was asserted these findings should not have been made but the findings themselves were not challenged – Where the resolution of issues before her Honour required a determination of the credibility of the mother – No error demonstrated – Appeal dismissed – No order as to costs.

Family Law Act 1975 (Cth)

CDJ v VAJ (1998) 197 CLR 172
Coulton v Holcombe (1986) 162 CLR 1
Gronow v Gronow (1979) 144 CLR 513
Vakauta v Kelly (1989) 167 CLR 568

APPELLANT: Ms Coleman

RESPONDENT: Mr Hamilton

INDEPENDENT CHILDREN’S LAWYER: Krstina Wooi

FILE NUMBER: NCC 496 of 2013

APPEAL NUMBERS: EA
EA 83
95 of
of 2016
2016

DATE DELIVERED: 19 August 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace, Ryan & Cronin JJ

HEARING DATE: 19 August 2016

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATES:

22 April 2016

22 June 2016

LOWER COURT MNC: [2016] FCCA 901
[2016] FCCA 1678

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Levick

SOLICITOR FOR THE APPELLANT: Attwaters Solicitors

COUNSEL FOR THE RESPONDENT: Mr Boyd

SOLICITOR FOR THE RESPONDENT: Lyons Barnett Kennedy

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Rugendyke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Krstina Wooi

Orders

1. The appeal against the orders made on 22 April 2016 is dismissed.

2. There is no order as to costs.

IT IS NOTED:

A.That the appeal against the orders made on 22 June 2016 was withdrawn.

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 Coleman & Hamilton 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 Numbers: EA 83 of 2016; EA 95 of 2016
File Number:   NCC 496 of 2013

Ms Coleman  

Appellant

and

Mr Hamilton

Respondent

and

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Ainslie-Wallace J

1. Ms Coleman, to whom I will refer for convenience as the mother, appeals against parenting orders made by Judge Terry on 22 April 2016 concerning the children X who was born in 2011 and Y who was born in 2013, the daughters of the mother’s relationship with Mr Hamilton, to whom I shall refer as the father.

2. Her Honour ordered that the father have sole parental responsibility for the children and that they live with him. Her Honour provided for the children to spend time with the mother.  Up until the date of her Honour’s orders, the children had been living with the mother and spending time with the father.

3. On 22 June 2016 her Honour refused the mother’s application to stay the operation of her earlier parenting orders and the mother appealed against this refusal. 

4. Given that the substantive appeal was expeditiously heard, it was unnecessary to consider the appeal against her Honour’s refusal to stay her orders and that appeal was withdrawn.

5. The parties commenced a relationship in June 2010 and they began living together in April or May 2011.  They separated in July 2012.

6. At the commencement of the hearing before her Honour, X was nearly four and Y nearly two.

7. It was uncontentious that following their separation the arrangements for the children to see and spend time with the father were attended by difficulty and dispute.  Although from time to time, commencing in October 2012, orders were made that the children spend time with the father, it seems that very frequently they did not attend.  The father responded by bringing contravention applications.  It appears from her Honour’s reasons that the first contravention application supported a claimed 39 occasions on which the children were not presented to see the father and the second application asserted a further seven such contraventions (at [52]).  Finally, at [63] her Honour finds that these problems are ongoing.  At the conclusion of submissions, counsel for the father tendered a list of occasions on which the father said the children had not been made available to spend time with him.  Although a few of those occasions were apparently contentious, counsel for the mother conceded on appeal that if those occasions were removed, there were still many times on which the children did not spend time with the father in accordance with existing orders.

8. The father contended that the mother set out to frustrate the orders and the children spending time with him, while the mother contended that the children were ill and thus had been unable to attend.  This prompted the father to become concerned that the mother was taking the children to doctors unnecessarily.  The mother made complaints to the police about the father, on two occasions complaining that he had kidnapped the children.  The police made three unsuccessful applications on her behalf for an apprehended domestic violence order (“ADVO”) and the mother made a fourth, unsuccessful application brought in her own right (at [61]).

9. By way of illustration, I refer to her Honour’s findings at [156] to [159]:

   156.On 19 June 2014 when the mother’s solicitors wrote to the father’s solicitor to say that as [X] now attended day care on Mondays and Thursdays the father was to collect her from day care at 3.00pm on Thursday rather than from McDonalds at 4.30pm.

   157. On Thursday 31 July 2014 the father arrived at day care at 2.45pm instead of 3.00pm. He said and I accept that [X] showed him her drawings and asked him to play with her in the sandpit. The father did not leave the day care centre until 3.00pm but he started receiving messages from the mother stating:

   What part of picking [X] up after 3.00pm from daycare do you not understand. U can leave her at daycare today. If u take her now ill have u for kidnapping

   I’ll call the police. Kidnapping and stalking.

   158. The father left the day care centre with [X] at 3.00pm and at about 3.20pm received a telephone call from the police advising that the mother was at the police station complaining that he had kidnapped  [X] as he was only supposed to have her from 4.30pm with changeover at McDonalds.

   159. At about 4.00pm the father went to the police station and showed them the letter dated 19 June 2014. The police took no further action.

   (Footnote omitted) (As per original)

10. At the commencement of the hearing on 2 February 2015, the father contended that the mother had not complied fully with the most recently made orders, those of 6 February 2014.  The hearing was adjourned part heard on 4 February 2015 and when it resumed on 7 May 2015, the father complained that the mother had, again, not provided the children at times specified in the orders of

    
    

    6 February 2014.

11. Her Honour considered the father’s contention that the mother was unnecessarily taking the children to doctors and concluded that while the father had genuine concerns about the children’s medical treatment it was not possible to find that the mother’s actions in accessing particular medical treatment for the children was unjustified (at [100] and [101]). However her Honour said:

    108. Another reason why disputes about medical issues are likely to continue unless the father has sole parental responsibility for medical issues and the mother is restrained from taking the children to the doctor except in the event of an emergency is that the mother’s most common excuse for not sending the children to spend time with the father is that they (or one of them but she always withholds both) are too ill to spend time with the father and she has repeatedly sought medical certificates to justify this.

12. As to the issue of family violence, her Honour did not accept the mother’s assertions of significant family violence (at [123] and [139]).

13. Her Honour moved to consider the children’s best interests and observed that the benefit to the children of having a meaningful relationship with their parents was significant.  Her Honour accepted the father’s evidence that he would promote the children’s relationship with the mother if they lived with him (at [142]).  She found that if the children lived with him, he would not denigrate the mother to them and would comply with orders providing for time between the children and the mother (at [145]). 

14. Although the mother said that she did not intend to deny the children the opportunity to enjoy a meaningful relationship with the father, her Honour did not accept her evidence and concluded that she had acted in ways which demonstrated that she did not wish the children to have a relationship with the father (at [150]).  After reviewing the evidence, her Honour expressed considerable reservations about whether the children could maintain a meaningful relationship with the father if they remained living primarily with the mother, even if orders were made that they spend more time with him (at [179]).  Ultimately, she concluded that the mother had no capacity to facilitate the relationship between the children and the father (at [283]). Notwithstanding that the children presently had a good relationship with the father she further concluded that the likelihood of there being further dispute was “extremely high” and the possibility of the father’s relationship with the children being undermined if they remained living with the mother was “unacceptably high” (at [286]).

15. Thus her Honour ordered the children to live with the father and spend time with the mother.

The appeal

1. Although nine grounds of challenge were asserted in the Notice of Appeal, the grounds were argued under issues and it is convenient if I consider them in the same way.

2. The issues agitated on appeal concern the adequacy of her Honour’s reasons and fact finding and the apportionment of weight given to the evidence. 

3. Ground 8, which challenged her Honour’s refusal to admit a medical report, was abandoned.

4. Ground 9, which as filed contends that by reason of the delay between the conclusion of the hearing and the delivery of judgment her Honour was obliged, of her own motion, to seek an updated report, was recast during the appeal and I will consider the revised ground later in these reasons.

The trial judge’s reasoning, fact finding and apportionment of weight

Grounds 1, 6 and 7

1. These challenges as articulated in the written summary of argument contend that her Honour’s conclusion that the best interests of the children would be best met by a change in their residence was unsupported by adequate reasons.  However, in truth, the major thrust of these challenges was to her Honour’s evaluation of the evidence rather than an assertion of inadequate reasons.

2. In short, it was argued that her Honour failed to give proper consideration to the evidence that the children’s primary attachment was to the mother and the evidence of the effect on them if they were to be removed from her care. Counsel for the mother submitted that her Honour failed to properly consider that evidence against what was said to be nothing more than “speculation” about the damage to the children’s relationship with the father if they remained living with the mother.

3. Further, it was contended that her Honour did not take into account relevant evidence, being the evidence of the consultant and, further, her Honour did not give adequate reasons as to why, notwithstanding that evidence, it was in the children’s best interests that they live with the father.

4. It bears noting from the outset that, to the extent that this challenge devolves to a challenge to the weight or importance that her Honour placed on the evidence before her, the bar to appellate intervention in such cases is set high indeed.  It is not sufficient that judicial minds might differ as to the weight that might otherwise have been accorded the evidence, rather the appellant must demonstrate that the decision is “plainly wrong” (see Gronow v Gronow (1979) 144 CLR 513 at 519).

5. There was no dispute in the matter, and, indeed, her Honour found at [202] that the children’s primary attachment figure was the mother and, further that to remove the children from her could have adverse consequences for the children.  This finding was identified by her Honour as a central issue in the case before her.  Nor was it disputed that the father, in interview with the family consultant and in his evidence in the first tranche of hearing, conceded that the children should remain living with the mother but sought orders that increased his time with them. 

6. Although the father’s application before her Honour was for residence but in the alternative for an increase in time, in the opening of the case his counsel indicated that residence would not be pursued.  It was after the adjournment of the hearing and in light of the events which occurred during that period that the father changed his stance and reverted to his position of wanting to have the children live with him.

7. It was argued that there was clear evidence before her Honour that to interrupt the children’s attachment to their mother would have serious consequences. 

8. Particular reliance was placed on the family consultant’s evidence both in her report and in her subsequent oral evidence.

9. In her report, the consultant noted that the father accepted that the children should live with the mother but wanted the time they spent with him to be increased. 

10. She said:

    114. [The children] have lived with their mother since birth and she is their significant attachment figure. Any disruption to this would be difficult for both girls, however their relationship with their father and his extended family is critical to their growth and development.…

    (Family Report dated 28 July 2014 page 31)

11. When the consultant commenced her oral evidence, the trial judge provided an “update” to the consultant of events that had been the subject of evidence in the hearing but which had occurred since the writing of the report. No issue was taken by counsel then appearing as to the correctness of the matters raised by her Honour.

12. Those events were in summary:

    ·The mother had continued to take the children to see the doctor, on average once each fortnight;

    ·Despite there being agreement between the parties that the children should be assessed by a paediatrician, and an appointment made, the children did not attend and there was evidence to suggest that the mother cancelled the appointment without reference to the father;

    ·There had been ongoing difficulties in the children spending time with the father and in particular the mother did not comply with the order that the father spend time with the children on a child’s birthday in March or during the Easter period;

    ·The mother had also unsuccessfully sought to persuade the police to apply for apprehended violence orders on her behalf and had unsuccessfully applied on her own behalf at the local court for an ADVO; and

    ·Despite the consultant’s recommendation that the mother attend for counselling, she had not done so.

13. As to the first two issues, the children’s attendances on medical practitioners, on a number of occasions in her oral evidence, the consultant expressed concern at the mother’s actions in presenting the children for medical attention because it might lead the children to be “encouraged to be sick”, and expressed the need for children to have a consistent medical practitioner. Indeed, in answer to a question about the frequency and nature of the medical appointments made for the children by the mother, the consultant said that she was very concerned that the mother sought sole parental responsibility for the children’s medical care.

14. She said:

    I’m actually very concerned when this issue was raised that she hadn’t gone to them – hadn’t gone to the independent paediatric assessment, because that would have given everyone a very clear view if they had medical issues or whether they didn’t.  Now, I would suspect that – and I’m not – I’m not the doctor and I can’t make any diagnosis that these two girls are probably relatively healthy, and that’s what I think everyone needed to hear.  

    (Transcript of proceedings, 8 May 2015, page 341 lines 20 - 25)

15. In relation to the recommended counselling for the mother, the consultant said “I believe she needs to engage with a … mental health counsellor as a matter of urgency”. When asked whether such counselling would assist the mother in dealing with some difficulties, she added “I think some specialist psychiatric help might be appropriate in this case as well.”  She added that in her opinion the mother’s difficulties were of long standing.

16. Further, when she was asked about the fact that the mother continued to take the children frequently to medical practitioners, she said:

    I am concerned about the medical involvement with these children. I guess I – I will say something that’s like, slightly related to this. I have a belief that the mother does not want the children to have any contact with the father at all, and this is her way of controlling it or one of the ways.

    (Transcript of proceedings, 8 May 2015, page 335 lines 25-28)

17. As to the impact on the children if they were removed from the mother’s care, the consultant said in her oral evidence that it would be traumatic for the children to be removed from their mother’s care and explained that with older children it can result in emotional disorder and behavioural problems.

18. The following exchange took place:

    [COUNSEL:] Can you give us some expansion on what the attachment phase is?‑‑‑The critical attachment phase for a young child is usually within the first 24 months of the child’s life, but it can – it’s also – can be extended into the first – the first three years of a child’s life.  It’s – it’s an issue that’s raised a lot in the Children’s Court, and also in this – in this jurisdiction as well, and the – it’s not ideal to move younger children away from their critical attachment figure unless there are extenuating circumstances.

    (Transcript of proceedings, 8 May 2015, page 346 lines 7 – 13)

19. Her Honour then said:

    HER HONOUR:  Well, perhaps we could just follow on from that.  I mean, what happens if they are removed from a primary attachment figure?  Can it mean that they have – they then lose trust in adults or become wary about other change, or what can happen?‑‑‑They can – they can lose trust.  It can be particularly difficult when an older child – with a – with a younger – if a child is removed when they’re relatively young and, say, in the first three or four months of their life, they often adjust fairly well.  The older they are, the more difficult it becomes, and they can get this sort of emotional disorder called a disorganised attachment which can create all sorts of behaviour problems, and they can lose trust in significant adults, and they can be – and also have significant behavioural problems.  It happens a lot with children in care, and the long term education is often quite difficult.  The younger they’re removed, the – from their critical attachment figure, the more – the more easier they will adjust.

    (Transcript of proceedings, 8 May 2015, page 346 lines 22 – 35)

1. During the oral evidence of the consultant, her Honour said:  

   HER HONOUR:   The tragedy in the case, Ms [K], is that I’ve got two very little girls.  I mean, neither of them have even started school.  They must be attached to their mother.  They have a sibling in their mother’s household and, yet, if I leave them with the mother it may be open to me to be concerned, as you have highlighted, about whether they will ever have a relationship with their father or whether these horrific difficulties of – and conflict which is arising from non-compliance with the orders is going to continue indefinitely, so, I mean, it’s tragic.  The idea of disrupting children’s attachments to one parent is tragic, but it may be a situation where I’m forced to seriously consider that…

   Not to do it is to either condemn them to this continual over-medication and also to condemn them to not having a relationship with their father?‑‑‑I am fairly concerned about this situation and normally I – with very young children, as you’re probably aware, we usually try and put attachment over the other issues.  This case really tests that – that sort of well-held view that – and they’re very young, they’ve been with their mother all the time, but there are aspects of this case where I think, looking at it from a different perspective, might not be a bad idea.

   (Transcript of proceedings, 8 May 2015, pages 340 – 341 lines 35 – 7)

2. The consultant was asked further questions by counsel for the father in light of the events that occurred between the writing of the report and the consultant’s evidence:

   Well, Ms [K], your initial suggestion at paragraph 122 was that [X] and [Y] live with the mother, [Ms Coleman].  Is it fair to say that in the light of the information you’ve gleaned today thus far, you are now of the view that that might not be the appropriate recommendation?‑‑‑It’s – it’s a very tricky one because you’ve got to measure the issue of attachment versus safety.  I am of the view that the father should have as much involvement with the children as is possible and perhaps more time than he’s already having.  I think it would be traumatic for the girls to be removed from their mother, but I think the father needs to have a much more predominant role than I’ve perhaps recommended here.  I was hoping there might have been some change after this report but obviously there hasn’t been, and I think perhaps that is something that could be reviewed.

   HER HONOUR:   The difficulty for me, Ms [K], is that it’s all very well – and don’t take this the wrong way, I’m not criticising you, it’s just the way I’m putting it.  It’s all very well to talk about the father having more time with the children and perhaps giving him sole parental responsibility for medical issues, we can talk about that but there’s this history of non-compliance with the orders – serious non-compliance.  Now, the mother has stood up there in the witness box today this morning because I put to her yesterday that she was possibly at risk of losing the care of the children, and said that things would be different in the future.  But it might be that I can’t place any weight, I will give much credence to that, so I’ve got a situation where, yes, I can make an order giving the father more time, but it may still not be complied with.  I suppose the only way through it might be a sort of ….. type of order that if there is non-compliance, then either the matter comes back or something happens with that, but that’s the difficult position I’m in.  I mean, it’s awful to think of disrupting these children’s attachments but if I can have no faith the mother is going to comply with orders either for a little bit of time or more time, what am I going to do?---I – I share your concerns and I am – I’m really very concerned that nothing has changed since this report came out.  I am really concerned about the medical aspects of it.  As I said to you I cannot make a diagnosis, but I think these girls are going to end up with either emotional or sick role problems unless this situation changes.  And also I don’t think the mother is – has demonstrated, since I wrote this report, that she’s emotionally stable, and that also concerns me.

   (Transcript of proceedings, 8 May 2015, pages 342 – 343 lines 29 – 15)

3. It is clear that her Honour was well aware of the potential risks inherent in a move of the children from the care of their mother, especially in light of the mother being their primary attachment figure, as her exchanges with the consultant reveal, and at a number of points in her reasons her Honour identifies the issue (at [201] to [205]).

4. So much of this ground that contends that her Honour failed to take into account the risks of moving the children rests in acceptance that the risks to which the consultant referred would materialise.  It is clear from her evidence that she was discussing the whole range of outcomes that could attend such a break from the primary attachment figure and much was directed to children in the most vulnerable age, which was younger than these children.

5. Overarching it all, however, was her comment that “it’s not ideal to move younger children away from their critical attachment figure unless there are extenuating circumstances.”  By younger children, the consultant was referring to a child younger than 24 months old.  It is clear that her Honour regarded the circumstances as she found them to be extenuating.

6. Nothing in the consultant’s evidence leads to the conclusion that any of these risks would occur, but rather that there was a risk.

7. Looked at in this light, her Honour was not in error and she did not fail to take into account relevant evidence.

8. The contention that her Honour failed properly to evaluate the potential risks in her proposed course of action is rejected and her interchange with the expert, if nothing else, makes that entirely clear.

9. Turning then to the balance of these grounds, which are that her Honour gave too much weight to what was termed “speculation”.

10. The so-called speculative findings of her Honour were identified as being:

    148. There is reason to be concerned that if the children live with the mother their relationship with their father might be undermined.

    …

    176. If the children live primarily with [the] mother there is a high risk that their relationship with their father may be harmed over time either as a result of exposure to conflict created by the mother, being withheld from spending time with the father by the mother and hearing the mother denigrating the father or becoming aware of the nature of the text messages she sends him or being exposed to conflict at changeover.

11. Further, it was contended that her Honour’s “speculation” needed to be seen in the light of her finding at [177]:

    The family report writer expressed concern that the mother could influence a small child with negative comments or excessive questioning about the other parent and I agree that this is of concern. There is no sign that it is happening at present and [Y] and [X] have a good relationship with the father but as they become older this could easily change.

12. I pause to point out that these conclusions were the result of her Honour’s careful analysis and fact finding and reject the use of the word “speculative”.  And, further, I note that the underlying factual matrix of her Honour’s findings was not challenged on appeal. 

13. It is to be borne in mind too that having been given an opportunity to reflect overnight on the difficulties in the children seeing the father and what would happen in the future, the mother said:

    [COUNSEL:] And you tell her Honour – I’m sorry.  Have you thought about what her Honour said to you overnight?‑‑‑Yes, I have.

    And, in particular, her Honour said it was suspicious?‑‑‑Yes.  I understand that it looks really bad.  I’ve tried my utmost.  I’ve given 90 per cent of the time the father the opportunity to be at an appointment or something that’s gone on, hearing tests and – and everything else.  And it’s only been, basically, since February that I’ve stopped giving the father an opportunity to be there, because I, personally, just can’t deal with being accused and argued in front of the girls.

    (Transcript of proceedings, 8 May 2015, page 303 lines 13 – 20)

14. This evidence was clearly relevant to her Honour’s consideration of whether the future conduct of the mother in complying with the orders for time would be different.

15. Decisions in children’s matters will inevitably involve a measure of prediction about the future.  It is, however, incorrect to describe her Honour’s considerations as speculation.  As the plurality of the High Court in CDJ v VAJ (1998) 197 CLR 172 said of applications for parenting orders at [151]:

    …Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. 

16. And, further at [152] the plurality said “[b]est interests are values, not facts.”

17. It is also to be understood that, as the High Court in CDJ v VAJ said, the predictive nature of these orders must per force be guided by the past.  It is also to be observed that her Honour had before her a rich factual history, much of which was uncontentious, which informed her conclusions about the children’s best interests.  While it is true that there was no present evidence that the children’s relationship with the father had been damaged, the totality of the evidence provided an ample basis for the challenged findings.

18. In my opinion there is no substance to these grounds.

Ground 3

1. Under the rubric of these challenges, it was argued that her Honour’s finding at [205], at which her Honour commented on the children’s capacity to settle with their father on a move from their mother, was unsupported by evidence.  It is important to consider her Honour’s conclusion in its context.  Her Honour said:

   202. The mother is the children’s primary attachment figure. The family consultant said in cross-examination said [sic] that this was a matter of great importance and that removing children of the age of these children from their primary attachment figure can have adverse consequences for them.

   203. If I order such change it will be because I consider from an adult perspective that living with their father represents the best long term outcome for them, but the children will not understand why the change has been made even if some attempt is made to explain it to them. From their perspective they are being adequately looked after on a day to day basis by their mother.

   204. The family report writer stressed that the children might become distrustful of adults if required to change residence in those circumstances and that it might take time for them to settle into a change of residence.

   205. However the children may settle reasonably well. The father has been a constant presence in their lives for all of their lives and they go willingly to spend time with him. They are familiar with his home and familiar with his wife and since 8 May 2015 they have been spending every weekend at his home. The father is a calm organised person not prone to outbursts of impatience, the children will continue to attend the same day care centre and see the same friends and they have a good relationship with their paternal grandmother.

2. Coupled with her Honour’s finding about the present good relationship of the children with the father at [177], her Honour’s conclusion was reflective of the matters to which she referred and was one well open to her on the evidence.

3. I reject the contention that this conclusion was the province of expert evidence.

Ground 4

1. Next it was argued that her Honour made an error of fact in concluding at [139] that there was no evidence that the father had committed any acts of violence. 

2. In support of this asserted error, the Court was taken to the evidence of the mother’s father who said that in 2012, the mother told him that the father had hit her and her other daughter. The mother’s father also gave evidence that when he assisted the mother to move he noticed damage to the walls of the mother’s house.  He asked the mother how the damage occurred and she said it had been caused by the father who damaged the walls when he “came home from work cranky”.  It was argued that this was evidence of family violence, and it was further noted that counsel for the father did not cross examine the mother’s father on this evidence.

3. Thus, it was argued that this finding was an error.

4. To the extent that it needs to be said, the evidence of the mother’s father is not evidence of anything other than what the mother told him.  It is not evidence of the fact of family violence. 

5. It is important here to also note her Honour’s credibility findings in relation to the mother, and those particularly at [34] to [36] that:

   34.The evidence about what happened at a shopping centre in [Town T] was another example of the mother’s unreliability as a witness. It was common ground that the father and his partner were at the shopping centre and saw the mother and children and that the father waved to the children. The father said that he attempted no other interaction. The mother alleged that the father and his partner stalked and harassed her in the shopping centre and she made a complaint to police.

   35. The police investigated the complaint and their records state that the police viewed CCTV footage of the parties inside a jewellery store and also outside a supermarket and that the footage confirmed the father’s version of events. Police observed that the father made no attempt to interact with the mother in the jewellery store and appeared to be genuinely shopping and that the mother went into and out of the jewellery store several times while the father was there. They observed that the father made no approach to the mother near the supermarket and that the mother instead approached the father.

   36.The evidence in the police records is of course hearsay, but I consider it relevant in that it wholly and convincingly corroborated the father’s version of events and gave the lie to the mother’s version of events.

6. These findings and indeed all of her Honour’s findings about the mother’s credibility are unchallenged and reveal the fatal flaw in the logic of the argument, being that what the mother said could otherwise be relied on as evidence of family violence.

7. I note too that during the hearing, the father was not cross examined on this asserted incident.

8. In my view no error has been established.

Ground 5

1. By this ground the mother contended that her Honour made inconsistent findings which infected the reasoning process. Counsel pointed to her finding at [283] that the mother has no capacity to facilitate the children’s relationship with the father and said it was inconsistent with her findings at [177] and [285] where her Honour found that the children have a good relationship with the father and that no contravention applications had been filed between the conclusion of the hearing and the delivery of the judgment.

2. The clear evidence of the mother’s past conduct in refusing to comply with the orders, even while the proceedings were part heard, as well as the family consultant’s evidence that she felt the mother did not want the children to have a relationship with the father, was before her Honour.

3. It was thus open for her Honour to make the finding at [283] that, notwithstanding the fact that the children’s relationship had not yet been damaged, the mother lacked the capacity to facilitate it, and I reject the notion that this finding is inconsistent with her Honour’s reasoning process.

Credit findings and the effect on her Honour’s reasoning process

1. Before dealing with these grounds, I note that during argument on appeal counsel for the mother sought to assert that her Honour had in some way prejudged the issues to be decided and dealt unfairly with the mother during the hearing.  It was said that the information given to the consultant at the outset of her oral evidence was incorrect in as much as her Honour said that there were “many” occasions on which the mother had not made the children available to see the father.  No issue concerning unfairness was raised by counsel who appeared for the mother at trial and it cannot now be argued (see Vakauta v Kelly (1989) 167 CLR 568) nor can factual matters be put in issue here when they were not raised at trial. Lest it be thought that to prevent such an argument on appeal is an exercise in pedantry, in Coulton v Holcombe (1986) 162 CLR 1 Gibbs CJ, Wilson, Brennan and Dawson JJ said, at page 7:

   To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.…

2. It is however appropriate to record there was no basis on which an application of this type could properly have been made.  As to the forensic decision made during the trial, it must be acknowledged that counsel for the mother walked a tightrope.  This is because the uncontroverted facts as to her behaviour towards the father showed her attitude to his involvement as a parent to these children in such a poor light that one can easily understand how counsel would anticipate that things could only get worse.

3. In my view a proper and fair reading of the trial transcript shows that this was a fair hearing in which the relevant issues were properly explored.  There was no miscarriage of justice and indeed, other than flirting with that notion, the grounds of appeal do not suggest that there was, and in my view for good reason.

Ground 2

1. This ground asserts that her Honour’s credit findings ought not to have been made and in making them her Honour caused her reasoning process to miscarry.

2. There is no doubt that the trial judge made detailed findings concerning the credibility of the mother and concluded that the mother was not a witness on whose evidence her Honour could rely.

3. There was no challenge to her Honour’s findings, but it was contended that they ought not to have been made because of the nature of the matter, it being a parenting matter. 

4. Seminal to her Honour’s determination of this matter was the resolution of serious allegations made by the mother against the father; that he had exposed the mother and the children to significant family violence.  In particular, the mother asserted that the father had, every day, “both beaten and verbally abused” the mother’s child from an earlier relationship (at [32] and [120]); had stalked and harassed her in a shopping centre (at [34]); and that the father had kidnapped the children from day care (at [119]).

5. Further, the mother contended that the children had significant medical issues and were often ill on their return from spending time with the father.  On many occasions, the children did not spend time with the father because the mother said they were too ill.

6. In this case, the resolution of these issues required a determination of the credibility of the mother. 

7. The submission that it was unnecessary for her Honour to make the credit findings is rejected.

8. Next, it was contended that having made those findings “infected the judgment” to the effect that her Honour failed to properly evaluate the risks of moving the children from the mother’s care.  It was suggested that her Honour’s view about the mother’s credibility caused her to ask questions of the consultant which were, in effect, unfair, and which caused the consultant’s opinions to be skewed.

9. As I have said, this point cannot now be argued, not having been taken at trial, but in any event, a consideration of the consultant’s evidence makes it powerfully clear that while she considered the issues put to her, her opinion was not simply an adoption of her Honour’s questions.  Reference to the discussion at pages 340 to 341 of the transcript of 8 May 2015 makes this entirely clear.

1. In my view no error has been established.

Delay

Ground 9

1. Finally, it was argued that the delay between the conclusion of the evidence on 8 May 2015 and the delivery of judgment on 22 April 2016 was “highly relevant” given the relatively young age of the children.  It must be first observed that the asserted “delay” was not from May 2015 because on 27 August 2015 her Honour received further evidence in the matter before embarking on hearing oral submissions. 

2. It was said that, because in her reasons her Honour observed that since hearing submissions no further contravention applications had been filed and there had been no applications to re-open the evidence in the matter, this was suggestive of the orders then in place being complied with by the mother.

3. That contention is clearly accepted, and this evidence was clearly in favour of the mother and the trial judge treated it positively in the mother’s favour. It was then argued in the written submissions that:

   …before making such a significant decision her Honour should have considered relisting the matter for further submissions or the obtaining of updated evidence from the family consultant…

4. During oral argument on appeal counsel for the mother modified the submission and argued that given the delay, this Court should give greater scrutiny to her Honour’s reasoning process and her determination because of the young age of the children.  Further, it was argued that since there had apparently been compliance with the orders and the children had, it is assumed, been spending time with the father, this would have caused her Honour to not make the orders changing the children’s residence.

5. The evidence of apparent compliance is but one piece of evidence in a complex and difficult factual matrix, all of which had been carefully considered and analysed by her Honour.  Although positive for the mother, the evidence did not, in her Honour’s view, tip the balance of discretion against the orders her Honour ultimately made. 

6. No error has been established in her Honour’s consideration of the issue and in my view, this challenge has not been made out.

7. Thus, in my view, the appeal should be dismissed.  I would therefore make orders:

1.         The appeal against the orders of Judge Terry made on 22 April 2016 be dismissed.

Ryan J

1. I agree with the reasons of the primary judge and the orders proposed.

Cronin J

1. I too agree with the reasons of the primary judge and the proposed orders.

Ainslie-Wallace J

1. Therefore the orders of the Court will be:

1.         The appeal against the orders made on 22 April 2016 be dismissed.

1. The orders will also note that the appeal against the stay was withdrawn.

Costs

Ainslie-Wallace J

1. The judgment of the Court is that we will not make an order for costs inter partes or in respect of the Independent Children’s Lawyer.

2. Therefore, the orders of the Court will be:

1.         The appeal against the orders made on 22 April 2016 be dismissed.

2.There is no order as to costs.

1. We note that the appeal against the orders made on 22 June 2016 was withdrawn.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Cronin JJ) delivered on 19 August 2016.

Associate:     

Date:              24 August 2016