Alberson & Elzares
[2021] FamCAFC 125
•23 July 2021
FAMILY COURT OF AUSTRALIA
Alberson & Elzares [2021] FamCAFC 125
Appeal from: Alberson & Elzares [2020] FCCA 2286 Appeal number(s): NOA 61 of 2020 File number(s): BRC 8291 of 2019 Judgment of: STRICKLAND, AINSLIE-WALLACE & AUSTIN JJ Date of judgment: 23 July 2021 Catchwords: FAMILY LAW – APPEAL – Parenting – Where the father appeals orders vesting the mother with sole parental responsibility for the child and mandating that the child spend no time with the father – Where the father was convicted of knowingly possessing child exploitation material – Where the father is a registered offender under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) – Where the father advances grounds of appeal alleging judicial bias, denial of procedural fairness, that the findings of the primary judge were not open on the available evidence and erred in the exercise of discretion – Where no error was identified – Where it was open for the primary judge to find the father posed an unacceptable risk of harm to the child.
FAMILY LAW – APPLICATION IN AN APPEAL – ADJOURNMENT – Where the application was made the day before the appeal – Where the application is refused as the father did not adequately explain its lateness – Appeal dismissed.
Legislation: Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld)
Evidence Act 1995 (Cth) ss 55, 56
Family Law Act 1975 (Cth) Pt VII, ss 11F, 60CC, 62G, 68P, 68Q, 69ZT, 69ZV
Federal Circuit Court Rules 2001 (Cth) Div 15.2
Cases cited: Assistant Commissioner Condon v Pompano Pty Ltd (2012) 252 CLR 38; [2013] HCA 7
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
M v M (1988) 166 CLR 69; [1988] HCA 68
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296; [1984] HCA 29
RCB v The Honourable Justice Forrest (2012) 247 CLR 304; [2012] HCA 47
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Division: Appeal Division Number of paragraphs: 87 Date of hearing: 14 July 2021 Place: Heard in Brisbane (via video-link), delivered in Newcastle The Appellant: Litigant in person Counsel for the Respondent: Ms Frizelle Solicitor for the Respondent: Sempre Vero Lawyers Counsel for the Independent Children's Lawyer: Mr Ashcroft Solicitor for the Independent Children's Lawyer: Dooley Solicitors ORDERS
NOA 61 of 2020
BRC 8291 of 2019APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR ALBERSON
Appellant
AND: MS ELZARES
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
STRICKLAND, AINSLIE-WALLACE & AUSTIN JJ
DATE OF ORDER:
23 JULY 2021
ORDERS MADE ON 14 JULY 2021:
1.The appellant father’s Application in an Appeal filed on 13 July 2021 be dismissed.
2.Judgment be reserved.
ORDERS MADE ON 23 JULY 2021:
1.The appeal be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Alberson & Elzares has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRICKLAND, AINSLIE-WALLACE & AUSTIN JJ:
On 26 August 2020, a judge of the Federal Circuit Court of Australia made orders between the parents in respect of their daughter under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) and which are the subject of this appeal by the father.
At trial, the child’s residence with the mother was not controversial. The essential contests were over the allocation of parental responsibility for the child and the extent of her interaction with the father.
The appealed orders vest the mother with sole parental responsibility for the child and mandate that she spend no time at all with the father, consistently with the applications made by the mother and the Independent Children’s Lawyer (“the ICL”). The father had sought equal shared parental responsibility for the child and orders for her to live with the parties for equal time, or alternatively, for her to at least spend substantial amounts of unsupervised time with him.
The father appealed on the grounds set out within his Amended Notice of Appeal filed on 19 February 2021. The mother and the ICL both resisted the appeal and, for the reasons which follow, it should be dismissed.
BACKGROUND
The parties began cohabitation in late 2009. The mother’s older child, who was born to a former relationship and was then aged 10 years, formed part of the family but she left the household following an incident between her and the father in late 2014.
The child who is the subject of the appealed orders was born in 2011. She is now 10 years of age. After the parties separated in October 2016, she lived with the mother and regularly spent time with the father, though her contact with him ceased upon later developments.
Nearly a year after separation, in September 2017, the mother reported the father to the police. She alleged that, some years before, she found some compact discs among his belongings containing pornographic imagery involving children, which she then confiscated and had kept hidden. In October 2017, the police executed a search warrant at the father’s home but found no other similar form of pornographic material. Nonetheless, acting upon the information provided by the mother, the father was charged and later indicted for “knowingly possessing child exploitation material”. Ultimately, the father pleaded guilty to the offence and was sentenced to imprisonment for nine months, which sentence was wholly suspended for a period of two years on condition of his good behaviour. The father’s appeal against his conviction was dismissed.
While the father’s criminal appeal was pending, he commenced proceedings before the Federal Circuit Court of Australia in July 2019 seeking parenting orders under Pt VII of the Act because, by that time, the mother was withholding the child from him in accordance with the terms of a family violence order made by the Queensland Magistrate’s Court protecting both her and the child. The terms of the family violence order prohibited any contact between the child and the father, save in accordance with an operational parenting order, of which there was none.
In October 2019 and April 2020, the father made oral applications for interim parenting orders to re-introduce some form of contact between him and the child, but the applications were refused. The trial was then listed for August 2020.
The father contended the child enjoyed a loving relationship with him, which the mother was intent on destroying. He asserted the child would be deleteriously affected by the loss of their relationship and the only way to avert that detriment was to make orders for the child to regularly spend substantial amounts of time with him.
The mother and the ICL contended the child did not have a particularly meaningful relationship with the father and she would not derive any benefit from an attempt at its rejuvenation. On the contrary, they alleged the father posed an unacceptable risk of harm to the child and, as the Act required (s 60CC(2A)), greater weight had to be accorded to the need for the child’s protection from harm than to the benefit she could prospectively derive from having a meaningful relationship with the father.
The primary judge accepted the case promulgated by the mother and the ICL and rejected the case advanced by the father. The appealed orders reflected those findings.
APPLICATION IN THE APPEAL
The day before the appeal hearing on 14 July 2021, the father filed an Application in an Appeal in which he sought orders to this effect:
1. I would like to extend the date of notice of appeal amendment to 12th July 2021
2.I would like to extend the date of appeal from 14th July 2021 to the 4th August 2021
(As per the original)
In the affidavit which accompanied the application, the father deposed:
I would like to apply for an adjournment of the hearing that is due next Wednesday, 14th July, 2021. Unfortunately, I have had a late rejection for support from QLD Legal Aid (see Appendix A). This had left me with not enough time to try to organise finance and representation from alternative sources (see Appendix B).
As can be seen, the father’s evidence addressed only the application to adjourn the appeal hearing (Order 2), but not the application to extend the time within which to amend the grounds of appeal (Order 1), and at the appeal hearing he did not press that application.
The application to adjourn the hearing was refused because its lateness was not adequately explained. The appeal was filed many months ago in September 2020 and the duration of its pendency required reasonably cogent reasons to vacate the hearing. None was given. The father was not legally represented when he appealed, nor has he been ever since. He prepared the Notice of Appeal, the Amended Notice of Appeal and the Summary of Argument himself. His application for legal aid was refused long ago. He sought the review of that decision in April 2021 and must have been aware, if the review application was unsuccessful, he would have to privately secure legal representation or represent himself. He had plenty of time within which to make fall-back arrangements, even though he was only notified two weeks ago of the dismissal of the review application. He has known since procedural orders were made by the registrar on 17 May 2021 that the appeal was listed for hearing in the week of 12 July 2021.
THE APPEAL
Grounds 4, 5, 6, 8, 11 and 13 – judicial bias and procedural unfairness
Collectively, these grounds all contend for how certain aspects of the primary judge’s conduct of the trial engendered an apprehension of bias and deprived the father of procedural fairness. Taking into account the more expansive submissions made in the Summary of Argument, the catalogue of the father’s complaints specifically comprise these:
(a)an apprehension of judicial bias against him arose from:
(i)the primary judge’s admission of “irrelevant evidence” (Ground 5);
(ii)the mother being permitted to adduce evidence from her witness, Ms FF (Ground 6);
(iii)the primary judge shouting at him, not reading his affidavit thoroughly, not taking into account “much of the information” from his affidavit, and by assessing his credit adversely (Grounds 8 and 11); and
(b)he was deprived of procedural fairness by:
(i)being forbidden from relying upon one of his affidavits (Ground 13);
(ii)being forbidden from relying upon either the affidavit or “verbal testimony” of his psychologist, Mr HH (Ground 4); and
(iii)the mother being permitted to adduce evidence from her witness, Ms FF (Ground 6).
Ground 8 even went so far as to allege actual “physical” bias on the part of the primary judge. It is not apparent what is meant by describing the alleged bias as “physical” and, thus, proceeding on the basis that the complaint concerns actual bias, as this Court would understand that phrase, none of the submissions made by the father could possibly satisfy the stringent test requiring proof that, during the trial, his Honour’s mind was committed to a conclusion already formed and incapable of alteration (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72], [127], [176]). The father’s mere allegation of actual bias, even if he truly believes it, is not evidence of the fact.
As is well known, contentions of bias and procedural unfairness must be addressed first in any appeal before an intermediate appellate court (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 611–612; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10] (“Royal Guardian”)).
Apprehended bias
The principles governing apprehended bias are not in doubt. A judge will be disqualified if a fair-minded lay observer might reasonably apprehend that he or she might not bring an impartial mind to the resolution of the question the judge is required to decide (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344–345 (“Ebner”); Johnson v Johnson (2000) 201 CLR 488 at 492). The bare assertion that the judge appeared to be biased through prejudgment would not be enough without an articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of the judge’s departure from impartiality (Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [63]).
The father’s submissions of apprehended bias faced an almost insuperable impediment because, in the reasons for judgment, the primary judge described initial scepticism about the mother’s evidence (at [109]–[114]). The mother was the respondent and so the primary judge must have been impartially prepared to initially accept the father’s evidence which, being the applicant, he led first in the trial. The eventual preference for the mother’s evidence was a process of gradual evolution, making it very difficult for the father to establish that his Honour appeared to pre-judge the dispute against him in the mother’s favour.
By advertence to the father’s Summary of Argument, his first complaint about the admission of “irrelevant evidence” concerned the evidence adduced regarding his conviction and sentence for possession of child exploitation material. While Ground 5 is confined to a complaint about the improper admission of such evidence, the submissions made in the father’s Summary of Argument are instead directed to the primary judge’s alleged misuse of such evidence, but that quite different contention is addressed below in the discussion of Grounds 2 and 12.
Obviously enough, the admission of such evidence was justified because it could rationally affect, and was therefore relevant to, the assessment of whether or not the father posed a material risk of harm to the child (ss 55 and 56 of the Evidence Act 1995 (Cth)), which was a pre-eminent issue at trial. Having been convicted of the offence, the father is a registered offender under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), which requires him to report to authorities any contact he has with children until April 2024 (at [76]). Ground 5 fails.
Ms FF was called as a witness by the mother. Her evidence tended to corroborate the mother’s alleged concerns about the father’s proclivity for unusually keen and tactile interest in children (at [94]–[99]). The father’s complaint about the evidence given by Ms FF was expressed in these terms in his Summary of Argument:
Mother’s witness [Ms FF] was given free rein to introduce hearsay testimony not submitted. She stated in affidavit that the father was taking pictures of children in the park and when questioned during trial, she added that a parent came up to the father and he was told to delete the photo from his mobile phone. This detail was not in her affidavit which would have been by far the most important issue to include, which leads to an obviously fabricated story.
On 3 April 2020, the primary judge made directions about the evidence which could be adduced at trial. The mother filed and served the affidavit of Ms FF well within the terms of those procedural orders. In her Case Outline document, the mother foreshadowed her reliance upon the evidence of Ms FF, who was then produced and cross-examined by the counsel appearing for both the father and the ICL. There was no objection taken by the father to the admissibility of her evidence at trial.
Contrary to the father’s submission in the appeal, the provision of supplementary oral evidence by Ms FF during her cross-examination does not lead “obviously” or inexorably to a conclusion either that such evidence was fabricated or that its omission from her original evidence-in-chief proved her dishonesty or unreliability. It would be a rare case in which cross-examination did not elicit extra detail from a witness, for that is the intended purpose. Indeed, any cross-examination which fails to do so is ordinarily useless. The evidence of Ms FF was elicited in an entirely orthodox way. Ground 6 fails, at least in so far as it asserts the primary judge’s bias can be apprehended from the way in which such evidence was adduced. His Honour was not required to determine the admissibility of the evidence and, once admitted, was entitled to accept it.
The father’s last complaint of apprehended judicial bias concerns aspects of the primary judge’s conduct in not knowing the father’s evidence thoroughly, in judging the father’s unreliability unfairly, and by shouting at him.
The father could not possibly know how thoroughly his affidavit evidence was read. That the primary judge may not have demonstrated an encyclopaedic memory of its contents during the trial does not mean it was not carefully absorbed during his Honour’s deliberations after judgment was reserved. Once the trial was concluded, having seen and heard the parties and witnesses tested in cross-examination, the primary judge was duty bound to sift through the evidence, decide which aspects of it deserved most weight, synthesise the evidence with legal principles, and exercise discretion to determine the outcome. In that process, it is often necessary to accept some parts of the evidence and to reject other parts, sometimes by expressing a preference for the evidence of one witness over another, as occurred in this instance. Far from demonstrating grounds for the reasonable apprehension of bias, it will usually demonstrate a completely conventional exercise of judicial duty.
Much of the evidence given by the parties in relation to the critical issues was irreconcilable, so the primary judge understandably pondered the respective reliability of their evidence. His Honour eventually found the mother truthful and sincere (at [109]–[114]) but, by comparison, found the father to be unreliable for a number of reasons (at [100]–[108]). They included his inconsistent explanation of peripheral details concerning his criminal conviction for possession of child exploitation material, his demeanour during cross-examination, an unpersuasive reason he gave for why he had the child sleep with him, an unpersuasive explanation he gave for his close physical contact with two other young girls, and his obfuscation over non-compliance with the interim regime forbidding his interaction with the child.
The father’s claim of the primary judge shouting at him does not form any part of either Ground 8 or Ground 11, as they are pleaded. That allegation is only made in the father’s Summary of Argument in support of Ground 8, where this following portion of the transcript is cited as the solitary example of it:
HIS HONOUR: Sorry. What did you say, [father]?
[THE FATHER]: That it was –
HIS HONOUR: Did you? … What did you say? This is a court. I do not … want any gratuitous comments being made. This is a conversation at this point in time between the counsel. No one asked for your gratuitous little comment. I don’t appreciate this.
[THE FATHER]: I apologise, your Honour.
HIS HONOUR: This is not Rafferty’s Rules, [father]. You understand me?
[THE FATHER]: I understand; I apologise.
HIS HONOUR: You are showing scant regard for the authority of this Court; I am not happy.
(Transcript 10 August 2020, p. 40, lines 29–42)
At that point, the father was being cross-examined by the mother’s counsel, the father’s counsel had interjected with an objection, and the father made some comment which was overheard by the primary judge but not transcribed. His Honour was irritated by the father’s gratuitous comment and reprimanded him, for which he apologised. The evidentiary objection was then resolved and the cross-examination resumed.
Even if it be accepted that the primary judge raised his voice when expressing his umbrage, the incident hardly created an apprehension of judicial bias, as the primary judge was ensuring the orderly conduct of the proceedings. The father’s counsel neither took issue with his treatment by the primary judge nor applied for the primary judge’s disqualification, which strongly implies any complaint of bias was waived even if momentarily considered (Vakauta v Kelly (1989) 167 CLR 568 at 577–579 and 586–588; Ebner at 344, 357 and 360). This aspect of the primary judge’s conduct was not separately alleged to have created procedural unfairness, any complaint of which in the appeal would not ordinarily have been waived by the failure to raise it at first instance (Royal Guardian at [30]–[33] and [255]), though that is not to suggest such an argument would have succeeded if made.
The father’s submission in the appeal, to the effect that he was so unnerved by the experience of the primary judge’s chastisement that the remainder of his oral evidence was compromised, is no more than a self-serving assertion not objectively borne out by any fair reading of the rest of the transcript. Grounds 8 and 11 also fail.
Denial of procedural fairness
Procedural fairness is an essential characteristic of any judicial proceeding (see RCB v The Honourable Justice Forrest (2012) 247 CLR 304 at 309 and 321), though the rules of procedural fairness do not have immutably fixed content. As a general principle, the parties need to know what case the opposing party seeks to make, how the opposing party seeks to make it, and be given the opportunity of meeting it (Assistant Commissioner Condon v Pompano Pty Ltd (2012) 252 CLR 38 at 99–100; National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 312; Kioa v West (1985) 159 CLR 550 at 582).
Here, however, the assertion of the father’s denial of procedural fairness by reference to those general principles was quite unspecific.
The father’s first complaint is that he was precluded from reliance upon his affidavit sworn on 12 August 2020. He did not condescend to explain how that unfairly deprived him of the opportunity to make good on his own case or meet the mother’s case.
By reference to the trial directions made by the primary judge in April 2020, the father was obliged to file and serve any affidavit upon which he relied by 10 July 2020. When the father filed his Case Outline document on 3 August 2020, as required by the procedural directions, he asserted reliance upon only his affidavits filed in September 2019 and July 2020. It was the third day of trial by the time the father swore his affidavit on 12 August 2020. He had already given evidence, his cross-examination being completed on the second day of the trial, and his case was closed. We have not been furnished with the portion of the transcript when the father sought leave to adduce the additional evidence contained within his new affidavit but, on the material known to us, the decision to refuse him leave to re-open his evidence on the third and last day of trial was entirely unsurprising.
As it transpired, a portion of the father’s affidavit sworn on 12 August 2020 found its way into evidence anyway. The father annexed to the affidavit a letter written by his treating oncologist outlining the current status of his treatment. During the mother’s cross-examination, she was asked about how she perceived the father’s medical condition and treatment might hinder the child’s supervised visits with him. When counsel said he did not have the oncologist’s letter to allow for more specificity in the question, his Honour read the contents of the letter onto the record and the cross-examination continued. The remainder of the affidavit merely verified the father’s completion of a parenting course. Ground 13 fails.
The father’s second complaint is that he was precluded from reliance upon the evidence of his psychologist, Mr HH, being that contained within his affidavit sworn on 11 August 2020 and any further evidence he could give orally.
Similarly, Mr HH’s affidavit was not sworn, filed or served until the second day of trial. But that was not the only obstacle to leave being granted to the father to rely upon evidence from Mr HH. The father’s intention in leading evidence from him was to present an expert opinion to the effect that he did not pose any risk of harm to the child. The trouble is:
(a)the father had already been given leave under Division 15.2 of the Federal Circuit Court Rules 2001 (Cth) to adduce expert opinion evidence on that very same issue from a psychologist appointed as the Court expert (Mr AA), who opined the father did indeed pose a “moderate” risk of harm to children;
(b)Mr HH was apparently consulted by the father shortly before the trial only for the purpose of procuring his forensic opinion to contradict Mr AA, despite Mr AA not being directly challenged in cross-examination about the reliability of his expert opinion (at [124]);
(c)Mr HH said in the first of his two reports that he was not intending to “provide a full assessment and review of risk”, which concession tended to undermine the probative value of the opinion he expressed in his second “brief report” to the effect that the father “should be perceived as a very low risk of non-contact or contact sexual offending against his daughter” (whatever that might actually mean); and
(d)in any event, the father conceded the mother’s submission in the appeal that the father’s counsel sought and was permitted to rely upon only the first paragraph of Mr HH’s second report at the trial, which paragraph merely confirmed his five consultations with the father and his review of some written material, and was therefore so lacking in probative value that Mr HH was not needed for cross-examination.
Finally, the father’s abandonment of any application at trial to rely upon the remainder of Mr HH’s affidavit (which annexed his two reports) foreclosed any prospect of his entitlement to rely upon any unheralded oral evidence-in-chief from Mr HH. Ground 4 fails.
The father’s third complaint about the admission of Ms FF’s evidence in support of the mother’s case has already been addressed and rejected under the rubric of apprehended bias. The admission of her evidence did not manifest any denial of procedural fairness either and so Ground 6 must also fail in that alternate respect.
Ground 7 – biased expert evidence
This ground of appeal was pleaded in this way:
The [Family Report] was biased in balance of assumption by the Judge.
Without intending disrespect, the ground is meaningless. We assume it alleges the contents of the Family Report exhibited bias against the father.
Neither the father’s Summary of Argument nor his oral submissions offered any help in unravelling the meaning of this ground. The Summary of Argument appeared to complain only of the asserted inconsistency between two paragraphs within the Family Report, prepared by a psychologist (Dr CC).
The two paragraphs in the Family Report to which the father drew attention in his Summary of Argument were in these terms:
7.29It was the writer’s opinion that [the child] was authentic and spontaneous in her responses. She demonstrated an innocence in regard to her parents and family members that was childlike and age-appropriate and most interesting, uncontaminated by her parent’s conflict, the events surrounding their separation, and her father’s recent criminal convictions.
…
11.08There may be various reasons for this ambivalence by [the child] toward her father. One reason for such might be that her life is rich and full with significant people and activities, keeping her mind and body occupied and distracted from thoughts concerning her father. Another is that if she has been protected from negative talk or opinion about her father, she may have been able to accept this lack of contact without judgment. Finally it is possible that she has deduced from the little information she has been able to retrieve, that talk about her father is a subject associated with her mother’s mood becoming serious, and that while she may not know anything of substance, the least said about her father, the better mood her mother maintains.
The father’s submissions about those two paragraphs in his Summary of Argument are just as opaque as the ground of appeal, so there is no utility in repeating them here.
If the ground really complains of some deficiency or lack of impartiality in the expert evidence of the psychologist, then those were matters which had to be taken up with the psychologist in cross-examination and with the primary judge in final submissions.
Neither bias nor the content of those two paragraphs, let alone any asserted inconsistency between them, was raised by the father’s counsel in cross-examination of the psychologist. That is clear from the partial transcript filed in the appeal. We have not been furnished with a complete transcript, as the father successfully applied for relief from that obligation, so we cannot say whether some final submission was made on the topic, but no submission could sensibly have been made to the primary judge about limitations to the probative value attached to the Family Report unless those alleged limitations were put to the psychologist in cross-examination for her comment. Without that groundwork, the primary judge was perfectly entitled to accept and rely upon the expert opinion evidence of the psychologist, as occurred (at [126]–[134]).
Grounds 2 and 12 – unacceptable risk of harm
These two grounds deal with the finding made against the father to the effect that he poses an unacceptable risk of harm to the child. Albeit expressed in different terms, they assert that the finding was not open on the available evidence (Ground 2) and the primary judge erred by failing to note alleged contradictions in the evidence relied upon by the mother (Ground 12). In addressing the grounds it is helpful to first explain why the primary judge concluded the father poses an unacceptable risk of harm to the child.
As already noted, following his plea of guilty, the father was convicted and sentenced for the criminal offence of possessing child exploitation material. In summary, the material comprised photographs and videos depicting children engaged in sexualised acts and poses.
The mother described what she saw on one of the discs she confiscated in this way:
37.On this disc I found videos and pictures of naked children. One of the videos was of a female child no older than 1 years old and a male trying to penetrate her vagina with his penis …
The facts upon which the father was sentenced by the State court included this descriptive narrative:
15.The majority of the images and movies are ‘date modified’ between the years of 2002 and 2009. The discs contain a range of photographs and videos of children, male and female, aged approximately six years to 14 years. They included naked children and suggestive posing, non-penetrative sexual activity between children, masturbation between children and adults, penetrative sexual activity between children and between children and adults including intercourse, cunnilingus and fellatio, involving children as young as six years old, and a video of urination between children.
16.Some of the titles of images and videos included ‘8yo little girl gives blowjob’, ‘children fuckin & sucking’, ’10 yr porn kiddy’, ’14 yr in pantys’, 7 yrs sex with dad’, ‘2 preteens hand job, ‘pedokiddy-9 yo’, ‘Pedo-Missy 6’, ‘Annie 11yo sweet shower’, ‘Missy sex quality’.
The facts before the sentencing court also included this:
18.The defendant is to be sentenced on the basis that he knew there was [child exploitation material] on the discs but that he never looked at the discs and was holding them for someone else. It is accepted that he did not create or download the material onto the discs.
The father sought to assert in the appeal that, having regard to the agreed facts presented to the State court, the primary judge was bound to find that he had never looked at the child exploitation material, he had no interest in that form of sexual deviance, and he did not pose any risk of harm to any child. He was mistaken.
While the State court was required to impose sentence upon the father according to the facts he agreed with the prosecution, which were only the facts the prosecution felt able to prove beyond reasonable doubt, the primary judge was undertaking a quite different task. His Honour was deciding what orders should govern the child’s care, which decision was liable to be influenced by whether or not the father posed any risk of harm to the child. The State court’s adherence to the criminal standard of proof in determining the father’s criminal sentence could not circumscribe the primary judge’s broad ranging civil enquiry about the existence and quantification of risk to the child in accordance with law (M v M (1988) 166 CLR 69).
Quite correctly, the primary judge observed this in the reasons for judgment:
89.Whilst it would be understandable for the mother to feel this way, it is the duty of this Court to decide whether the father is an unacceptable risk to [the child]. The fact of the conviction, and subsequent dismissal of an appeal, does not mean that this Court is relieved of the duty to look at all of the circumstances surrounding the allegation of the father possessing [child exploitation material]. This is especially so when the father has denied before this Court that he ever was in possession of [child exploitation material].
…
153.Notwithstanding that there has been a great deal of concentration on the factual circumstances that surround the conviction of the father for possession of [child exploitation material], this trial is not a rehash of those matters. The focus of this Court is solely upon the best interests of [the child].
The finding that the father does pose an unacceptable risk of harm to the child was expressed by the primary judge in these terms:
146. My conclusion as to these primary considerations are in summary …
b)There is a need to protect [the child] from being exposed to the risk of family violence, harm or abuse.
That ultimate finding of unacceptable risk flowed logically from these antecedent findings:
(a)the father voluntarily pleaded guilty to possessing the child exploitation material (at [73] and [82]);
(b)he admitted he was “aware of what was on the discs” (at [69]);
(c)he was a registered offender under Queensland legislation (at [76]);
(d)he gave inconsistent accounts about the criminal offence (at [101]–[102]);
(e)he falsely denied his guilt to the Family Consultant, the psychologist, and the primary judge (at [83]–[85]);
(f)he instructed his counsel to falsely accuse the mother of “planting” the evidence to set him up for the offence (at [87] and [159]–[160]);
(g)other evidence was given by the mother and her witness to suggest the father had “groomed” the child and other children (at [90]–[92], [94]–[99] and [104]);
(h)before the child was withheld from the father by the mother, the child slept with him during her overnight stays (at [93] and [103]);
(i)the Court expert (Mr AA) confirmed the father posed a moderate risk of harm to children (at [115]–[124] and [162]);
(j)the father had not taken the steps recommended by Mr AA to enable any revision of the risk assessment (at [125]);
(k)the psychologist (Dr CC) opined the child should not spend any time with the father until he had taken the remedial steps recommended by Mr AA (at [133]–[134]);
(l)the father perpetrated family violence upon the mother (at [5]–[20] and [147(b)]); and
(m)the father lacked insight about the effects of his conduct (at [147(b)] and [165]).
It could not be reasonably contended it was not open to find the father poses an unacceptable risk of harm to the child on those established facts.
The father submitted that:
Judge accepted the hearsay evidence of sexual abuse from the mother without any corroborating evidence.
But the mother did not give evidence of any “sexual abuse”. Rather, she gave evidence of the father’s possession of child exploitation material and of his conduct which she feared amounted to him grooming the child. She was corroborated by the records produced by the police and the Queensland State courts and, to a limited extent, by the evidence of Ms FF. That some of her evidence may have been hearsay did not deprive it of admissibility, as the hearsay prohibition rules did not apply at the trial (ss 69ZT(1) and 69ZV).
The father submitted there were some important discrepancies between the mother’s evidence and statements made by the child to the police when she was formally interviewed. Presumably, his point was the mother’s evidence had to consequently be rejected as being unreliable and there was then insufficient residual evidence to find he posed an unacceptable risk of harm to the child. However, in so contending, the father confused inconsistency with contradiction, wrongly assumed that even some small anomaly in the mother’s evidence would be enough to render the entirety of her evidence worthless, and failed to appreciate that the finding of unacceptable harm hinged on much more evidence than that given by just the mother.
In summary, the father emphasised these discrepancies in the evidence:
(a)the mother alleged the child reported to her, in November 2018, that the father’s adult niece allowed her to walk alone with the father when the niece was supposed to be supervising them. However, when the child was formally interviewed by police and asked whether she could remember having said that to the mother, she said “No”. That literally meant she could not remember and was not a positive denial of the mother’s evidence. The child added she had never spent time alone with the father, but that inconsistency did not reflect adversely upon the mother’s evidence because the child’s statement was untrue. It was common ground between the parties that, at times after their separation in late 2016, the father and the child had spent time alone.
(b)the mother alleged that, in early January 2019, the child touched her on the genitals while in the swimming pool and, when admonished, she replied girls can touch other girls. However, when the child was formally interviewed and asked whether she had touched the mother on the genitals in a pool, she denied having done so. That created a direct contradiction with the mother’s evidence, but the child may have been untruthful or mistaken. It did not prove the mother’s evidence was false.
(c)the mother told the police that the child once accused her of not protecting her. However, when the child was formally interviewed and asked whether she could remember having said that to the mother, she said “No”. That literally meant she could not remember. It was not a positive denial of having said it to the mother, in which event there was no contradiction at all.
As can be seen, the probative value of the mother’s evidence was not appreciably diminished by the child’s comments to the police. In any event, aside from the mother’s evidence, the primary judge still had to consider the facts and circumstances surrounding the father’s conviction for the possession of child exploitation material, the expert opinion evidence of both Mr AA and Dr CC, and the lay evidence of Ms FF, all of which formed the basis of a strong case against him.
Ground 3 – family violence
This ground of appeal, which implies a finding was mistakenly made against the father, states:
No evidence-based legal grounds were established that the father engaged in violence against the mother.
But the father made this submission in support of the ground within his Summary of Argument:
Factual evidence of violence against the father and daughter by the mother could have been established by the cctv video and images. These were not viewed and dismissed by the judge.
The submissions were not directed to any asserted error in the finding that the father perpetrated “family violence” upon the mother. The finding that he did so was well open on the available evidence (at [5]–[20]). As an aside, it should not escape attention that the father admitted his conviction for breach of the family violence order made for the mother’s protection.
Rather, the father only seemed to submit that the mother should have also been found to have perpetrated “family violence”. Perhaps that finding could have been made, but not for the reasons the father asserted. His reference to the availability of CCTV footage pertained to an incident between the parties in October 2017. The primary judge summarised their inconsistent versions of the event in the reasons for judgment (at [15]–[19]), which precipitated the mother summoning the police for help (at [17]) and her application for the family violence order made against the father for her protection (at [20]). At trial, the father claimed he had CCTV footage to corroborate his version, but it was never adduced in evidence. His counsel did not tender it and did not cross-examine the mother over its content. The primary judge did not “dismiss” or reject the tender of the CCTV footage, as the father wrongly submitted.
It follows that the findings of the primary judge about the commission of family violence were not made in error and this ground of appeal fails.
Grounds 1, 9 and 10 – discretionary errors
The remaining grounds of appeal all assert discretionary error in the manner the primary judge evaluated the evidence about the child’s best interests. The submissions contained in the father’s Summary of Argument make clear that these grounds are directed, principally if not exclusively, at two aspects of the evidence: first, the opportunity for the child to express her views and, to the extent she expressed them, the weight which was given to them (Ground 1); and secondly, the finding that the risk of harm posed to the child by the father could not be safely ameliorated by her supervision by a paternal family member when visiting him and so ordering she should spend no time at all with him (Grounds 9 and 10).
The father’s primary complaint under Ground 1 was that the primary judge ignored the child’s views. Although not expressed this way, he implied that had the primary judge taken the child’s views into account then it would not have been open to make orders prohibiting the child from spending any time with him. The contention should be rejected.
The primary judge accepted the psychologist’s expert opinion evidence that the child was “genuinely ambivalent” about her relationship with the father, she was content with the current arrangement under which she did not spend time with him, and she did not express any view about her future interaction with him. His Honour also accepted the psychologist’s opinion evidence that the mother had managed to insulate the child from the parental dispute (at [129]–[131] and [149(a)]). It therefore follows the child did not express any view which his Honour had to take into account under s 60CC(3)(a) of the Act and, moreover, her abstinence from the expression of any view was not caused by pressure exerted by the mother.
His Honour properly noted the child’s protection from harm was the priority (at [149(a)] and [149(d)]) so, given her young age and relative immaturity, even if the child had expressed a desire to spend time with the father, the finding that he posed an unacceptable risk of harm easily outweighed her views as a consideration.
The father was also aggrieved that the child was not observed in his company by either the Family Consultant in October 2019 or by the psychologist in May 2020. His point, presumably, was that the Family Consultant and psychologist would necessarily have been impressed by the quality of the child’s relationship with him if they had been observed together and it would not then have been open for the primary judge to order that the child spend no time with him.
The Family Consultant did not explain in her memorandum to the Court, which was prepared following the family’s referral to her pursuant to s 11F of the Act, why she did not observe the child in the father’s company. Contrary to the father’s assumption, it was neither obligatory nor is it necessarily common practice in such situations. At that point in the litigation, the Family Consultant’s role is not to garner evidence or recommend outcomes to the Court; but rather to enlighten the parties about the issues truly in dispute and assist them towards consensual resolution.
The psychologist, who prepared a much more comprehensive Family Report pursuant to s 62G of the Act expressly for use as evidence at trial, deliberately decided against observing the child in the father’s company, which decision she explained in this way:
There was no observation of the child with the father. Factors influencing this decision include that [the child] and her father had not spent time together for some months, the COVID restrictions were in place and [the father’s] health was uncertain.
The psychologist was not challenged about the efficacy of that decision by the father’s counsel in cross-examination, so he can hardly be heard to complain now. The reasons given by the psychologist were not “irrelevant excuses”, as the father submitted in his Summary of Argument. Quite aside from those reasons, there was another valid reason which foreclosed the father’s complaint. The family interviews were conducted by the psychologist when the father was bound by the terms of a family violence order made by the Queensland court forbidding his contact with the child. At that time, there was no operable parenting order to override the effect of the family violence order (ss 68P and 68Q) and so the psychologist would arguably have been complicit in the breach of that order had she facilitated the father’s physical contact with the child.
There is no substance in the father’s complaints about the child not being observed in his company and her views not being given sufficient weight, so Ground 1 fails.
Grounds 9 and 10 collectively amount to an attack upon the decision to preclude the child’s personal interaction with the father because the risk of harm he poses to her cannot be satisfactorily contained by their supervision.
The primary judge’s findings and reasons for that outcome were expressed as follows:
23.After the domestic violence order was made, the time arrangements changed. The mother would not agree to any overnight time and insisted that any time that the father spent with [the child] would have to be supervised. The parents agreed on a parenting plan in January 2018. [The child] spent time with the father according to that plan, which meant that his time with [the child] was supervised by family members.
24.There is evidence before me that the supervision of [the child] during these times was less than optimal, and on a number of occasions, almost non-existent.
25.An event occurred in April 2019, which led to the suspension, by the mother, of the father’s time with [the child]. The mother justified this decision because of that particular event combined with the protection order and the lack of supervision.
…
88.As alluded to earlier in these reasons, the conviction for possession of [child exploitation material] was the reason that the mother stopped [the child] having contact with the father. The mother, in not so many words, reasoned that once there had been a conviction entered by the Court (and therefore the presumption of innocence was no longer applicable), [the child] was not safe with the father.
…
106.It turns out that, despite my declining to make any orders that the father have contact with [the child], the brother of the father was facilitating such contact. I do note that the evidence is that the brother was in Court when I declared that I would not be making any order. The mother allowed the brother to come to her residence on 13 May 2020 so that he could give the child birthday gifts, some of which were from the father.
107.Whilst the mother was not in the area, the brother phoned the father and then put the phone in [the child’s] hands so that she could speak to the father. I asked the father specifically about this, and why he would talk to [the child] knowing what I had said. He did not answer my question and instead attempted to minimise his conduct.
…
149.Going through the [s 60CC(3)] considerations seriatim, I find as follows:
(e)I have looked at this aspect and especially the fact that, if professional supervision were needed, such supervision is expensive. I have taken into account that the father is not “flush with funds”;
(f)This circumstance has been a major one for me at which to look, mainly because of the attitude of the father to the matters for which he was convicted. I have also looked at the manner in which the paternal family (particularly the brother of the father and the niece of the father) have approached their responsibilities to [the child];
…
165.The lack of insight of the father is such to justify the final recommendation of [the psychologist] when she said that there should not be any contact between the father and [the child] until there had been demonstrable progress on a change of attitude by the father. Given his evidence in these proceedings, and his attitude from the time that he was charged until the present time, it is very difficult to see that there will ever be any change in his attitude.
166.If there is no true change in the attitude of the father, I cannot see any benefit to [the child] in having contact with her father. Moreover, there is an unacceptable risk to [the child] of sexual harm and psychological or emotional harm if she does spend time with her father. I do not believe that long-term supervision mitigates this risk to the point where it is no longer unacceptable.
167.Whilst it may be that the lack of time that the father spends with [the child] will be seen by the father as “tragic”, the best interests of [the child] dictate that I order that she spend no time with the father.
The primary judge found the supervision formerly provided by paternal family members had been lax and could not be relied upon in the future, which finding was consistent with the evidence. Under cross-examination, the father admitted he was not properly supervised by his family members on at least two different occasions, which was confirmed by Ms FF in respect of one of those occasions.
The father was dissatisfied with the finding, but it was not said to be vitiated by mistake. While the father persisted with his submission that the supervision formerly provided by members of the paternal family had not been lax, he was unable to challenge the validity of the primary judge’s contrary finding.
The father professed his financial inability to indefinitely meet the cost of professional supervision. That being so, neither professional nor family member supervision could be relied upon to attenuate the risk of harm posed to the child, meaning there was no alternative but to prohibit any personal interaction between the child and the father for the foreseeable future.
That outcome was consistent with the psychologist’s opinion evidence. In the Family Report, she had recommended supervised contact between the child and the father but, when informed during cross-examination about other aspects of the evidence of which she had hitherto been unaware, her opinion altered and she recommended no personal contact between the child and the father – at least until the father fulfilled the remedial steps recommended by Mr AA (at [132]–[134]). Grounds 9 and 10 also fail.
CONCLUSION AND COSTS
The appeal is dismissed for lack of merit.
The mother and the ICL were both funded with grants of legal aid and neither made an application for costs, so no costs are ordered.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Strickland, Ainslie-Wallace & Austin. Associate:
Dated: 23 July 2021
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