Parties Dispute Trial Court Orders for Husband's Supervised Time with Children
Betros & Betros [2017] FamCAFC 90; (12 May 2017)
Final parenting orders provided that the husband spend supervised time with the children. The orders provided that a fresh application to lift the supervision order could be made upon the fulfilment of certain conditions. The Court assessed whether the trial judge gave adequate reasons for concluding that it was in the children’s best interests to have limited time with their father.
Facts:
The parties married in 2004, separated in March 2011, and divorced in July 2012. Their three children were born in 2005, 2006, and 2008 and were aged between ten and seven years at the time the orders were made. Parenting orders were first made in February 2013. With the parties’ consent, the Court ordered that they have equal shared parental responsibility for the children, for the children to live with the mother, and for them to spend time with the father.
The children's visits with the father included four nights each fortnight during school terms and half of school holiday periods. Unfortunately, those orders did not resolve the parties’ conflict. The father commenced fresh proceedings in December 2013, which were determined by the orders made on 6 April 2016. The orders made in April 2016 represented a significant shift from those made in February 2013. The father was deprived of any parental responsibility for the children, the time they were to spend with him was both drastically reduced and subjected to professional supervision, and their communication with him was tightly constricted.
Central to the appeal were the father’s contentions that the trial judge made erroneous findings about the nature of his coercive and controlling conduct, that the orders unfairly impinged the children’s loving relationships with him, and that such findings and orders were not satisfactorily explained by the trial judge’s reasons.
Issue:
Whether or not the trial court in making parenting orders.
Applicable law:
Family Law Act 1975 (Cth) s 61DA(2)(b) - pursuant to which findings about the commission of family violence were also integral to the application of the presumption of equal shared parental responsibility.
Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 - provides that an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.
Slater & Light [2013] FamCAFC 4; (2013) 48 Fam LR 573 - recognised that the permanent imposition of supervision upon the interaction between children and a parent is undesirable, though sometimes warranted.
Analysis:
The trial judge made unchallenged findings about his lack of insight because he accepted the truth of all critical reports made by the children about the mother, he could not countenance why their reports might be false, he attributed the children’s misbehaviour to the inadequacy of the mother’s parenting capacity, and he showed no insight into the role his conduct played in influencing the children’s attitudes towards the mother or the harm thereby caused to them. The trial judge concluded the father would continue to treat the children in the same way “without some form of intervention”. There was no contest at trial about the quality of the children’s relationships with the father.
The trial judge recorded there was no doubt the father played an “important role in the children’s lives” and the children held him “in high esteem”. The Family Consultant recommended the children should only spend supervised time with the father on no more than six occasions each year if his conduct was found to be “emotionally abusive” to the children. The trial judge accepted and relied upon the evidence given by the mother and the Family Consultants, the latter of which was not controverted. Such evidence included representations made to each of them by the children. Conversely, the trial judge attributed little or no weight to representations made by the children to the father that were critical of the mother, which he considered was unfair, but her Honour adequately explained that was because the children were most probably unduly influenced by him.
Otherwise, any asserted error manifest in the trial judge’s acceptance or rejection of, or attribution of weight to, certain evidence could not be vindicated on appeal in the absence of a transcript. Due to the father’s modest financial circumstances, his application to conduct the appeal without providing the trial transcript was granted after he was informed and he said he understood that, to the extent such a deficiency impeded proper consideration of his grounds of appeal, the responsibility rested with him.
Conclusion:
The appeal is dismissed. No order is made as to costs.
Case: BETROS & BETROS [2017] FamCAFC 90
Judgment of: Thackray, Murphy & Austin JJ
Counsels:
COUNSEL FOR THE RESPONDENT: Ms McMahon
SOLICITOR FOR THE RESPONDENT: Women's Legal Service
NSW COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Shearman
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW
