Barrett & Barrett and Anor  FamCAFC 4 (3 February 2017)
Matters addressed include: Cannabis / Marijuana Use ; Evidence of the Family Consultant; Evidence of the Family Report ; Delay in Judgment of itself is not basis for appeal; not incumbent on a trial judge to address every argument or refer to every matter raised by the parties in their respective cases.
FAMILY LAW – APPEAL – CHILDREN – Appellant challenged the alleged restriction on his relationship with the children and the orders for time spent – Appeal is opposed by the respondent and the Independent Children’s Lawyer – Appellant’s grounds of appeal lack particulars and the asserted errors cannot be discerned – Where the appellant was unable to demonstrate that the trial judge erred in the exercise of her discretion – No merit in any of the grounds of the appeal – Appeal is dismissed.
FAMILY LAW – COSTS – Where no order is made as to costs.
Bennett and Bennett (1991) FLC 92-191
CDJ v VAJ (1998) 197 CLR 172
Hall and Hall (1979) FLC 90-713
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378
Krivoshev v Royal Society for the Prevention of Cruelty to Animals Inc  NSWCA 76
Simmons and Anor & Kingsley (2014) FLC 93-581
Appeal Hearing Date: 2 August 2016 in Brisbane
Appeal Judgment Delivered: 3 February 2017 in Adelaide
Judgment of Full Court of the Family Court: May, Strickland & Kent JJ
Lower Court: Federal Circuit Court of Australia, Judge Willis
Lower Court Judgment: 25 September 2015
(1) The appeal be dismissed.
(2) No order as to costs.
- The father appealed against parenting orders made by Judge Willis.
- The orders appealed provide for:
- Equal shared parental responsibility;
- Children to live with the mother;
- Children to spend time with the father from the conclusion of school on Wednesday to the commencement of school the following Monday in alternative weeks and for half the school holidays and special occasions.
- The appeal was opposed by the mother and the Independent Children’s Lawyer (“ICL”).
- The mother was born in 1973 and was aged 44 years.
- The father was born in 1968 and was aged 48 years.
- The parties commenced cohabitation in 2004.
- They married in 2006.
- The father is a medical professional and the mother is a health care professional.
- There are three children of the marriage; A born in 2006, B born in 2008 and C born in 2010 (“the children”).
- The parties separated in September 2011 while living under the one roof. The mother moved out of the home with the children in November 2011.
Summary of Trial Judge’s Reasons for Judgment
- The Full Court considered that the grounds of appeal relied upon by the father were so broad conclusions and lacking in particulars that the actual error or errors asserted could not be discerned. The Court considered that they were not proper grounds of appeal. Notwithstanding this, the Court went through a detailed summary of the reasons of the trial judge to emphasise the extent to which the trial judge addressed all of the issues raised by the parties, and particularly the father.
- Her Honour found that the “father lives in a degree of domestic chaos”, especially “compared to the mother who has a much more ordered existence for herself and the children” (at ). Her Honour then accepted that the children “have responded well to an order which provides for them to live in two block periods rather than changing every two or three days” as was previously the case (nine days with the mother and five days with the father). Her Honour found that in “terms of their respective capacity it is not difficult to conclude that the mother has the superior ability to raise three children in a stable, safe and ordered living arrangement” (at ). However, her Honour noted that there was “no suggestion that either party has caused physical harm to the children, or that the children have been exposed to domestic violence” (at ).
- Her Honour then turned to the witnesses in the matter. In relation to the mother, her Honour explained that the mother was “sensible, pragmatic, child focused, calm and measured” and was “always willing to acknowledge the father’s contributions or correct a statement to make sure that acknowledgement was made of the father’s efforts”. Her Honour explained the distress the mother suffered throughout the trial and found that she was “satisfied that the mother has complied with her parental obligations to support and maintain the children”, often without financial assistance from the father. Her Honour also considered that the mother’s complaints about the father and his home were “validated by the facts” (at  – ).
- Her Honour rejected the father’s claims that he was unable to afford suitable accommodation and found that his behaviour in relation to this issue “reflects poorly on the maturity and responsibility of the father as a parent” (at  – ).
- As to child support, her Honour found that the father was “content to leave the financial support to the mother when making his lifestyle decisions about how much physical work he will do each week”. Her Honour explained that the father at one stage “had significant [child support] arrears of $10,000” and that he was “failing his children in this respect” (at ).
- Her Honour then explained that the father had been “telling the children long before Court commenced, back at least four years ago, that he thinks a 50:50 time split with the mother is fair”. This occurred at a time when the children were approximately aged four, three and six months. In this regard, her Honour noted that the father did not acknowledge the damage which could be caused to the children by this behaviour until trial when it was explained that they could “feel wedged between the two people they love the most” (at ).
- Similarly, her Honour explained that the father had engaged the children in conversations about the government and the child support system and found that “[I]t [was] a tragedy that these three children have been subjected to the issues which the father feels strongly about and which have played out with the children being critical of the mother”. Her Honour was critical of the father’s ability to parent in this regard, particularly as this behaviour had the effect of “undermining the children’s relationship with the mother” (at ).
- On the other hand, her Honour explained that the mother “has always encouraged the children’s relationship with the father, at times almost to her detriment”. This has included the father coming to visit the children during her time with them. Further, her Honour noted that the father rings the mother frequently asking to visit or speak to the children and that sometimes he “has also taken to asking the children if they would like him to come over directly either on the phone or when they are with him” without informing the mother about the arrangements. Her Honour found that in the father “fails to show any insight into the ramifications of his conduct, which is self centred” and which places the mother in a compromising position (at  – ). The mother sought orders somewhat restricting the father’s behaviour in this regard.
- Her Honour noted that the parents have different parenting styles and considered – Overall the mother has in my view shown an abundance of patience in dealing with the father’s immaturity whilst at the same time ensuring that the children have the opportunity to have a loving relationship with the father. Her requests for the father to place as much importance on the children’s safety in and around the shed, as he does on having fun with the children, are entirely reasonable.
- Her Honour then turned to the evidence of the father – he does not “have the same parenting skills as the mother nor does he have the same organisational skills”. Further, her Honour considered that he “does not show sufficient responsibility when it comes to his capacity to parent” and that he wants to “be one of the children or their best friend, rather than be an authority figure” (at  – ).
- Her Honour was satisfied that the father can be vindictive at times and that this “behaviour in my view reflects very poorly on his capacity to parent and his attitude towards parenting.” Also, the father has a sense of entitlement that every time he has an opportunity to see
- Her Honour then turned to the evidence of the father’s drug use and his inability to abstain from use in “the shadow of the litigation and the impending trial”. Her Honour found that the “father chooses to diminish and ignore the risks associated with his regular illegal drug consumption” (at  – ).
…A parent who consumes cannabis and has the responsibility of looking after children, whether or not the children are asleep when the cannabis is consumed, is placing children at risk given the parents diminished ability to respond to medical or other emergencies, such as a fire, that could arise with their children. The father accepts that he would not even drive in that state. This is about the only sensible thing he had to say about his own consumption of drugs. What the father fails to realise is that there are children of a very young age who engage in smoking cannabis because of the role modelling of their parents. The role modelling of the father in terms of his willingness to engage in an illegal activity, to acquire an illegal substance and then consume it contrary to the law, is, in my view, a very poor and irresponsible decision on his part.
…In my view it is simply a matter of time, before these very inquisitive, intelligent children become aware of the father’s cannabis consumption.
Grounds of Appeal
- The father relied on the following grounds of appeal:
1The trial Judge erred by failing to give adequate reasons for Judgement [sic]
2The trial Judge failed to provide procedural fairness
3The trial Judge made incorrect findings of fact and findings contrary to or against the weight of the evidence
4The trial Judge wrongly exercised her discretion
5The trial Judge violated the children’s & the father’s Human Rights (s [unknown] FLA)
6The trial Judge favoured “what the mother was entitled to”, rather than “the views of the children”.
Ground 1 – The trial Judge erred by failing to give adequate reasons for Judgement [sic]
- The full court was satisfied that her Honour gave adequate reasons for those orders and for the findings that she made.
- The principles applicable to a challenge to the adequacy of reasons for a discretionary judgment are well established and often repeated by this court (e.g. see Bennett and Bennett (1991) FLC 92-191). In short, the path that the trial judge took to arrive at his or her conclusion must be apparent from the reasons. As can be seen from the extensive review of her Honour’s reasons set out above, her Honour left no stone unturned in not only providing her reasons for making Order 13, but also for making all other orders.
- The Full Court said some time ago in Hall and Hall (1979) FLC 90-713, and which still holds true today (see Simmons and Anor & Kingsley (2014) FLC 93-581, at ). Their Honours made the following observations about the evidence of a family consultant who provided a report to the court (at page 78,819):
(a) There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. In Wood (1976) FLC 90-098 at p. 75,447; Harris and Harris (1977) FLC 90-276; (1977) 29 F.L.R. 285.
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor’s views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor’s assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
Ground 2 – The trial Judge failed to provide procedural fairness
- The three issues raised by the father here:
aHer Honour made the restraint orders of her own motion without seeking submissions from the parties or the ICL;
bHer Honour took seven months to deliver her judgment;
c Her Honour failed to address the father’s concerns about the interim orders made on 18 October 2013.
- As to the first issue, the father is quite incorrect in suggesting that no application was made for any of the restraint orders. During the final address of the counsel for the mother, she handed up a set of orders sought by the mother which included some of the restraint orders ultimately made by her Honour (transcript 26.02.15 p 324). Further, during his address the father made submissions in relation to those orders sought (transcript 26.02.15 p 329 – 330), and he thus had that opportunity to put his position in relation to them.
- In any event, these were orders that related to issues the subject of extensive evidence during the course of the trial, namely the effect on the children of the illegal drug taking by the father, the father discussing with the children his child support obligations and their living arrangements, the father attending at the mother’s home and other places where the mother and the children are during the mother’s time with the children without the mother’s consent, the father communicating with the children when he is not entitled to under the orders of the court, the father requesting extra time with the children during the time they are with the mother, inviting the children to activities without the consent of the mother to speak to them (see for example her Honour’s reasons for judgment at ,  and ). Thus, again, the father had ample opportunity to address these issues and there can be no lack of procedural fairness as a result.
- With the second issue, that is a complaint that also cannot succeed. It is well settled by authority that delay itself is not a basis for appellate intervention. Error must still be established, but delay can assist in establishing error. For example, in Krivoshev v Royal Society for the Prevention of Cruelty to Animals Inc  NSWCA 76, Giles JA, with the concurrence of Hodgson JA and Young CJ in Equity said this:
 …Delay is of course undesirable, and is contrary to the public interest in the prompt resolution of disputes. But delay, however undesirable, does not itself mean that on appeal a different result is substituted or a new trial ordered … What must be considered is the effect of the passage of time on the quality of the decision-making, including the perception of an effect. The label of delay adds little.
(Also see Monie & Ors v Commonwealth of Australia  NSWCA 25; (2005) 63 NSWLR 729, McCrossen and McCrossen  FamCA 868; (2006) FLC 93-283, and Expectation Pty Ltd v PRD Realty Pty Ltd  FCAFC 189; (2004) 140 FCR 17)
- Here, the delay was seven months. The appellate Court were not taken to anything in the record by the father which demonstrated the alleged effects of the delay, and that is why there was no merit in this complaint.
- In relation to the third issue, the orders of 18 October 2013 are not, and cannot be, the subject of this appeal, but the complaint appears to be that the trial judge did not “consider or address the father’s concerns” about those orders. That of course does not raise any issue of procedural fairness, but the father attempts to bring that in on the basis that there was a lack of procedural fairness (as well as incorrect findings), by the trial judge in relation to those orders.
- The answer to that complaint is that her Honour was then hearing the trial itself and determining the issues in dispute on the basis of the evidence presented at that time, and the submissions of the parties and the ICL. In that context her Honour did not need to “consider and address the father’s concerns” about the interim orders. Further, it is not incumbent on a trial judge to address every argument or refer to every matter raised by the parties in their respective cases (Whisprun Pty Ltd v Dixon  HCA 48; (2003) 200 ALR 447, ). A trial judge needs only to address matters that are relevant and necessary for him or her to address in order to provide adequate reasons for the decision (Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378). Any concern the father had about interim orders plainly are not in that category.
Ground 3 – The trial Judge made incorrect findings of fact and findings contrary to or against the weight of the evidence
- There are a number of findings challenged here, non of which were upheld. For example:
The evidence that the children have been having litigation based conversations with the children for years now, is compelling. The father has been using his position of influence as the children’s father to sway the children to feel sorry for him having to pay child support and he has been instilling in them the fairness and his strong desire for equal time for about four years. The views of the children, aged 8, 7 and 5 would need to accommodate their young ages. In this matter, added to that, the children have been groomed for years to be supportive of the father’s position. Overall, allowing for these contingencies limited weight is placed on their views.
Ground 4 – The trial Judge wrongly exercised her discretion
- This ground was not upheld.
Ground 5 – The trial Judge violated the children’s & the father’s Human Rights (s [unknown] FLA)
- This is an unsustainable ground of appeal. The Act sets out how a court exercising jurisdiction under the Act determines the parenting dispute, not the United Nations Convention on the Rights of the Child.
- Although Australia is a signatory to that Convention, it is not yet part of the domestic law of Australia. Certainly, one of the objects of the Act is to give effect to the Convention, but that is done through the application of the Act itself. It follows from what was said by Mason CJ and Deane J in Minister of State for Immigration and Ethnic Affairs v Teoh  HCA 20; (1995) 183 CLR 273 at  –  that unless there is a re-enactment of the term in domestic law, international treaty obligations can only give assistance in the interpretation of existing domestic law and in determining its proper application so as to avoid where possible conflict with treaty and international obligations.
- The Court found that there was no violation of the human rights of the father and the children by her Honour’s application of the Act to the evidence before the court.
Ground 6 – The trial Judge favoured “what the mother was entitled to”, rather than “the views of the children”
- The father says that this ground raises the same issue as the first complaint in Ground 4 above. The Court found no merit in that complaint, and thus no merit in this ground either.
- Having found no merit in any of the grounds of appeal, the appeal was dismissed.
- At the conclusion of the hearing of the appeal we sought submissions from the parties as to costs depending on the result of the appeal. In the event that the appeal was unsuccessful no order for costs was sought against the father by either the mother or the ICL.
This article does not represent the views of the firm. It a case note based on a decision made by the Full Court of the Family Court in relation to family law property case appeal involving issues of parenting and custody matters including drug use of a parent (marijuana / cannabis use), delay in judgment, views of the children and weight given to the family report and evidence of the family consultant.
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