· 2021-10-18T05:09:04+0000 · 783 posts

Mother Appeals Orders for the Father's Sole Parental Responsibility

Sattler & Furnie [2021] FedCFamC1A 20 (24 September 2021)

The mother interposed an appeal against orders by the Court adjudicating sole parental responsibility in favor of the father. The mother asserts that she was denied procedural fairness and that the reasons were inadequate. The father and the Independent Children's lawyer oppose the appeal as well as seek costs. The Court, in ruling upon this dispute, assessed the merits of the grounds interposed in the appeal.

Facts:

The parties commenced their relationship in 2006, with separation occurring in mid-2015. Since separation the father has re-partnered. The primary judge described that relationship as appearing to be “stable and long term”. On the other hand, the mother has not re-partnered since separation. Their two children, X and Y, have lived with the mother since separation.

There was general agreement on the evidence that “X is a troubled child, and that he needs stability in relation to assessments and treatment and living arrangements promoting attendance at school”. The primary judge described Y as being “as troublesome and uncontrollable” as X. On 21 January 2016, the father commenced the parenting proceedings through an Initiating Application for final and interim orders.

The orders provide for the father to have sole parental responsibility for the two children of the parties, for the children to live with the father, and for there to be a moratorium of up to six months on the children’s time with the mother, following which the children are to spend gradually increasing time with her. The children began to show resistance to seeing the father, and saw him only twice during 2019. As such, his Honour found that the mother had not been capable of getting the children to their father’s care.

On 29 March 2021, the mother filed an Amended Notice of Appeal appealing against a final parenting order made by a judge of the Federal Circuit Court of Australia (as it then was) on 9 March 2020. The mother asserts that in making such orders, there was denial of procedural fairness (Grounds 1 and 2) and that the reasons were inadequate (Ground 3). The father failed to comply with the order for filing a Schedule of Costs.

However, the ICL did seek an order for costs of the appeal, and for the costs thrown away in relation to the previous adjournment. The total amount sought was $5,879.20.

Issue:

Whether or not there were merits on the grounds of appeal.

Applicable law:

Family Law Act 1975 (Cth) Pt VII, s 61DA(2) - where a finding not challenged in the appeal and it must follow that the presumption of equal shared parental responsibility did not apply.

F amily Law Act 1975 (Cth) Pt VII, s 61DA(4) - provides that evidence of their inability to co-operate over the children’s management meant the presumption of equal shared parental responsibility would be rebutted.

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 - where it was stated that no judicial reasons can ever state all of the pertinent factors, nor can they express every feature of the evidence which causes a judge to prefer one factual conclusion over another.

Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 - provided that before an appeal can succeed by challenge to an interlocutory ruling, aside from the ruling having been wrongly made, it must be shown to have actually affected the final result.

OP v TP (Conduct of Counsel)(2003) 30 FamLR 281; [2002] FamCA 1155 - emphasizes the principle that parties are normally bound by the conduct of their counsel.

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasinghan (2000) 168 ALR 407; [2000] HCA 1 - where the primary judge was required by law to give sufficient reasons for the result embodied in the appealed orders, but not to give sub-sets of reasons for why individual pieces of evidence were accepted or rejected in the course of making findings.

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 - recognised that because a claim of a failure to afford procedural fairness, just as a claim of apprehended bias, strikes at the heart of the trial process and its outcome, that claim should be addressed first, given that the establishment of a lack of procedural fairness must result in a re-trial regardless of possible findings on the other issues.

Analysis:

The mother asserts that she was denied procedural fairness in the conduct of her case in that she was not able to call evidence from health practitioners about the [father’s] interference with psychological treatment processes for the parties' children. It is the mother's case that the father frustrated her ability to obtain a proper diagnosis for X and access appropriate treatment for him. However, there is no reference in any oral submission made by the mother’s counsel to seeking to call oral evidence from the medical professionals in relation to any alleged interference by the father. The counsel for the ICL does not object to evidence of medical practitioners coming in as it may be of assistance to the Court. The father's counsel also stated that the father does not oppose witnesses being called.

The father opposes further evidence-in-chief being led from them because the reports are quite clear with respect to their findings with respect to their diagnoses or non-diagnoses of, in particular, the concerns around autism. Even if his Honour had made a specific ruling that the witnesses could not be called to lead further evidence, no error would have been committed by his Honour. No basis was established supporting a submission that the decisions of counsel were either wrong or incompetent. Nor was any basis established for this Court to find that the effect of the decision was to materially alter the result of the trial, or put another way, that a different result would have followed if that decision had not been made.

It is plain from his Honour’s reasons read as a whole, how the “risk” was “multi-faceted”. Indeed, it is even explained in the very sentence where his Honour made that finding. As to costs, the appellant would not suffer financial hardship if an order for costs was made in favour of the ICL and in any event such an order was not opposed.

Conclusion:

The Court concluded that the appellant was not denied procedural fairness in the conduct of her case in relation to the calling of witnesses. There is plainly no prejudgment in relation to the issue of parental responsibility. The Court dismissed the appeal. The appellant mother is to pay the costs of the Independent Children’s Lawyer fixed in the sum of $5,879.20.

Comments (0)