Albert & Plowman - [2020] FamCAFC 23

FAMILY COURT OF AUSTRALIA

ALBERT & PLOWMAN

[2020] FamCAFC 23

FAMILY LAW – APPEAL – PARENTING – Where the appellant mother appeals from final orders providing that the child live with the respondent father, spend time with the mother and restraining contact between the child and the mother’s partner’s son – Where the mother contended that the trial judge failed to give adequate weight to the opinion evidence of the single expert – Where the mother attacked the integrity of the trial judge’s findings – Where the mother argued the orders made by the trial judge were impracticable – Where the mother contended the trial judge placed excessive weight on the child’s allegation of sexual abuse – Where the trial judge did not fail to give adequate weight to the single expert’s evidence in regards to the risk of harm posed to the child by the mother’s partner’s son – Where the findings made were within the trial judge’s regular exercise of discretion – Where the order made by the trial judge was practicable while the mother lived in the area near the child’s residence and where she indicated at trial she would remain living – Where the mother had since chosen to relocate and her remedy is not an appeal against orders properly made by the trial judge – Where the trial judge’s reasons are satisfactory and adequate – Where the injunction precluding the child’s interactions with the mother’s partner’s son was pertinent to the trial judge’s findings about the protective capacity of the mother – Appeal dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – Application to adduce further evidence –Where the father and the Independent Children’s Lawyer opposed the mother’s application – Where the parties agreed for the application to be determined contemporaneously with the appeal – Where the mother’s application was directed, in part, at rectification of an order made by the trial judge which was now suspended due to the mother’s relocation from near the area which the child resides – Where principles of CDJ v VAJ (1998) 197 CLR 172 are applied – Where the proposed additional evidence would not demonstrate error by the trial judge – Application dismissed.

FAMILY LAW – COSTS – Where the appeal is wholly unsuccessful – Where the respondent and the Independent Children’s Lawyer sought costs orders – Where the appellant did not submit her financial circumstances militated against the costs orders sought – Appellant ordered to pay party/party costs to the respondent and the Independent Children’s Lawyer in fixed sums.

Evidence Act 1995 (Cth) s 60
Family Law Act 1975 (Cth) ss 60CC, 65DAA(3), 69ZT, 93A(2), 117(2A)

Bostoi & Bostoi [2011] FamCAFC 132
Browne v Dunn (1893) 6 ER 67
Carpenter & Lunn (2008) FLC 93-377; [2008] FamCAFC 128
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Friscioni & Friscioni [2010] FamCAFC 108
Hall and Hall (1979) FLC 90-713; [1979] FamCA 73
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
Pollitt v The Queen (1992) 174 CLR 558; [1992] HCA 35
Subramaniam v Public Prosecutor (1956) 1 WLR 695
U v U (2002) 211 CLR 238; [2002] HCA 36
Whipp & Richards (2012) 257 FLR 395; [2012] FamCAFC 11

APPELLANT:

Ms Albert

RESPONDENT:

Mr Plowman

INDEPENDENT CHILDREN’S LAWYER:

Helen Volk Lawyers

FILE NUMBER:

SYC

5837

2013

APPEAL NUMBER:

2019

DATE DELIVERED:

5 February 2020

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge, Watts & Austin JJ

HEARING DATE:

14 November 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

14 December 2018

LOWER COURT MNC:

[2018] FCCA 3579

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Dr McConaghy

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Tabbernor

SOLICITOR FOR THE RESPONDENT:

Croydon Legal & Conveyancing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Helen Volk Lawyers

Orders

The Application in an Appeal filed on 28 October 2019 is dismissed.
The appeal is dismissed.
The appellant pay the party/party costs of the respondent and the Independent Children’s Lawyer incurred in relation to the appeal, respectively fixed in the sums of $17,431 and $12,489.

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 Albert & Plowman 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 Number: EA 8 of 2019
File Number: SYC 5837 of 2013

Ms Albert

Appellant

And

Mr Plowman

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

By an Amended Notice of Appeal filed on 28 August 2019, the appellant mother appeals against final parenting orders made in proceedings between her and the respondent father under Part VII of the Family Law Act 1975 (Cth) (“the Act”) on 14 December 2018 by a judge of the Federal Circuit Court of Australia (“Federal Circuit Court”).
Essentially, the orders provide for the father to have sole parental responsibility for the child and for the child to live with him. Provision was made for the child to spend time with the mother for five nights (in two tranches) each fortnight during school terms, for one half of all school holidays, and on other special occasions.
Before the orders were made, the child had been living with the parties in what the trial judge described as “a shared-care arrangement” (at [1]). At trial, the parties and the Independent Children’s Lawyer all applied for the existing arrangement to be varied. It was common ground the child should live predominantly with one parent, who would also exercise sole parental responsibility for the child, and for him to spend substantial time with the other parent. Each parent wanted to be the residential carer but the Independent Children’s Lawyer supported the father’s proposal, to which joint proposal the trial judge ultimately acceded.
Although the mother’s appeal was directed to all orders made by the trial judge, of which there were 30, in truth, the appeal was focussed entirely upon the orders which required the child to live with the father, to spend time with the mother, and to be kept from having any contact with the adolescent son of the mother’s new partner.
For the reasons which follow, the appeal should be dismissed with costs, consistently with the submissions of both the father and the Independent Children’s Lawyer.

Background

The parties’ child was born in 2013. He was only about four months old when the parties separated in September 2013.
Proceedings between the parties in respect of the child under Part VII of the Act were first concluded in March 2016, when the Federal Circuit Court made consent orders for the child to live with the mother, for him to spend substantial time with the father, and for the parties to have equal shared parental responsibility for him.
Fresh proceedings were commenced by the mother in October 2017 because, as the trial judge noted (at [13], [19], [20]), the parties and the Independent Children’s Lawyer accepted the existing orders were not working and no longer served the child’s best interests. The mother was then proposing to relocate with the child from Suburb E to Town 2, where her new partner resides, while the father intended to remain living in the Suburb C area.
Interim parenting orders were made in March 2018 which restrained the mother from moving the child’s residence to Town 2 and compelled her to ensure his continued attendance at the pre-school where he was then enrolled.
The following month, in April 2018, the child (then nearly five years of age) disclosed to the father’s new partner that the mother’s new partner’s teenage son (“A”) had sexually assaulted him. In response to the child’s disclosure, the father petitioned the Court for fresh interim parenting orders to reverse the child’s residence and restrain the child’s contact with A. In addition to the child’s recent disclosure about A, the father relied upon evidence given by a staff member of the child’s pre-school (“Ms B”) about how she informed the mother long before, in April 2017, that the child made a similar disclosure implicating A. Judgment in respect of the father’s interim application was reserved, but the parties agreed to implement what the trial judge described as “a shared-care arrangement” in the interregnum (at [24]).
The parties were notified by police in June 2018 that no prosecution would result from the investigation of the sexual abuse allegations made against A, due to the insufficiency of evidence. As a consequence, in July 2018, the trial judge formally dismissed the father’s pending application for revised interim parenting orders and left in place the existing consent orders, made in April 2018, for the parties to have “shared care” of the child.
The trial ensued in October 2018 and the appealed orders were pronounced in December 2018, by which time the child was five years old.

The appeal

Shortly in advance of the appeal, the mother sought to file an Amended Summary of Argument, but it was rejected by the Appeals Registry. She then sought leave to rely upon it when the appeal commenced, which was granted with the consent of the father and the Independent Children’s Lawyer. The grant of leave was conditional, so that no submission falling outside the terms of the grounds of appeal (and many fell within that category) would be permitted to expand the ambit of the appeal.
The mother also filed an Application in an Appeal on 28 October 2019, seeking leave to rely upon additional evidence in the appeal under s 93A(2) of the Act. The Application was opposed by both the father and the Independent Children’s Lawyer, but all agreed the Application should be determined contemporaneously with the appeal.

Ground 1

This ground of appeal contended the trial judge failed to give adequate weight to the opinion evidence of the single expert psychologist.
The single expert was identified and appointed by procedural orders made with the parties’ consent in August 2018. The single expert’s report was compiled in September 2018 and was tendered as an exhibit at the trial (at [34(bb)], [43]), upon which the single expert was cross-examined.
As is usual in proceedings under Part VII of the Act, the single expert expressed professional opinions about numerous topics which were relevant to the child’s best interests, including those considerations mandated by s 60CC of the Act. Despite the breadth of the single expert’s evidence, the ground of appeal did not identify the aspects of such evidence which were allegedly not given sufficient weight by the trial judge. The particulars were found in the mother’s Amended Summary of Argument. Although expressed in different terms, in an attempt to fairly characterise the mother’s complaints, she contended the trial judge failed to give sufficient weight to the single expert’s opinions concerning:
a)The child’s alleged sexual abuse by A; and
b)Whether the father is a “controlling person”.
Evidently, the mother placed great store in the single expert’s evidence so, before turning to examine the trial judge’s treatment of his evidence, it is worthwhile making some preliminary observations to allay any misconception.
Single experts, either by court appointment or consensual engagement by the parties, are called as witnesses because their qualifications and experience equip them to provide opinion evidence to the court which is relevant to the determination of the issues in dispute. But they are just witnesses. Their expert opinion evidence is not necessarily decisive of the dispute. Judicial power to decide the legal dispute rests in the hands of the trial judge, not the expert witness.
Additionally, expert witnesses are not witnesses of fact, except as to matters that they directly saw or heard, including for example, that which occurs during interviews they conduct. They express opinions by applying their qualifications and experience to certain factual assumptions. Their opinions can only ever be as reliable as the facts upon which they are premised. If, at trial, the facts assumed by the expert to be true are either not proven or are proven to be incorrect, then the opinion evidence will necessarily be compromised. Moreover, expert witnesses usually breach their remit if they are drawn into and express an opinion about the underlying factual conflict.
As was observed in this jurisdiction long ago (see Hall and Hall (1979) FLC 90-713 at 78,819):
… There is no magic in a [single expert report]. A Judge is not bound to accept it and there should never be any suggestion that the [expert] is usurping the role of the court or that the Judge is abdicating his responsibilities…
…
While the [single expert]’s views will normally have weight with the court because of his expertise and experience, the [expert] 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 [single expert]…
(References omitted)
Those observations have been successively endorsed by the Full Court (see Carpenter & Lunn (2008) FLC 93-377 at [226]-[227]; Friscioni & Friscioni [2010] FamCAFC 108 at [96]-[97]; Bostoi & Bostoi [2011] FamCAFC 132 at [40]-[44]; Whipp & Richards (2012) 257 FLR 395 at [101]), but more importantly by the High Court of Australia, which confirmed a court hearing a dispute under Part VII of the Act is not bound to accept or reject the whole or any part of the evidence given by an expert witness (U v U (2002) 211 CLR 238 at 261).
Here, the trial judge was well aware of the limitations to the single expert’s role. In the reasons for judgment, his Honour introduced the analysis of the single expert’s evidence in this way:
44.In discussing [the single expert]’s evidence below, the Court will make its own observations, based on having had the benefit of observing the totality of the evidence, and having had time to reflect on the same.
Thereafter, the trial judge summarised important aspects of the single expert’s evidence, much of which was accepted, but some of which was not for adequate reasons given by the trial judge.
It is clear the trial judge accepted and gave considerable weight to the single expert’s evidence in so far as it related to the parental conflict (at [43], [46], [48], [69], [77], [78], [79], [81], [82], [86], [89]), the cause of the child’s tendency to misbehave (at [47], [59], [84]), the maternal family’s motivation to minimise the significance of the child’s misbehaviour (at [72], [73]), the relative unimportance of the parties’ past consumption of alcohol and illicit drugs (at [57]), the child’s positive relationships with both parties’ new partners (at [58]), the positive presentation of the father’s partner (at [68]), the mother’s falsification of the child’s pre-school attendance records (at [62]), the different but loving nature of the child’s relationships with both parties (at [70], [71], [80], [83]), the mother’s presentation (at [74], [76]), and the caution which must be exercised when relying upon statements by the child (at [90]).
The trial judge did not unconditionally accept the single expert’s opinions in so far as they related to the father’s engagement with the child’s pre-school (at [50]-[54], [85]), whether the father was a controlling person (at [55], [56], [74], [75]), and the risk of harm to which the child is exposed by A (at [64], [65], [88], [177]). It is those issues to which this ground of appeal was directed.

Risk of sexual abuse posed by A

In relation to the child’s disclosure in April 2018 concerning A, the single expert reported:
10.Matters finally came to a head in April 2018 when allegedly [the child] made a disclosure of sexual abuse by A, who is the 15-year-old son of [the mother’s new partner]. A JIRT investigation was inconclusive although my reading of the JIRT investigation indicates that it is likely that the alleged event could not be substantiated. It is probable that the alleged event, if it had occurred in some form, did not occur in the form that has been disclosed. Indeed somewhat concerningly the police material, and indeed the preschool material from the pre school … indicates that [the child] is the kind of child who makes stories up and is deceitful and deceptive. He has been problematic in his behaviour over a significant period of time and considerable suspicion needs to be held about any disclosures that he might have made. It is [the mother]’s contention that [the father] has in fact coached the disclosure although [the father] absolutely denies that. He notes that the disclosure was originally made to his [new partner], and this was confirmed on my interview with [the father’s new partner].
…
47.The allegation in regards to April 2018 is much the same as apparently the 2017 one, in that A was asking [the child] to “suck his doodle”. However I note the police investigation established that [the child] was an unreliable witness. He provided an account that did not appear to be consistent with the time lines and locations that described the opportunity A would have had to have undertaken the behaviour as stated.
Based on what he then knew, the single expert concluded in his report:
48.…It is unlikely on the basis of the information that I have that there is any risk of harm to [the child] from A. However despite that the family responded appropriately…
…
113.…I do not think that much weight can be given to the allegation of sexual harm [to the child by A]…
…
152.…I do not believe that [the child] is at likely risk of harm from A…
…
154.…I do not believe that there is any likely risk of harm to [the child] in regards to A…
(Emphasis added)
As can be seen, the single expert expressed his opinions concerning the allegations made against A and the risk of harm he allegedly posed to the child in terms of probability and improbability. The mother’s written submission in support of this ground misquoted the single expert by contending he made it “very clear” in his report that “he does not believe the abuse could have taken place”. That was not the tenor of the opinion the single expert expressed.
During cross-examination at trial, the single expert maintained his opinion it was unlikely that A posed a risk of harm to the child. Again, the mother’s written submission in support of this ground misquoted the single expert by contending he maintained the child was not at risk of harm from A. The single expert did not express his opinion in such absolute or definitive terms.
At this point, it might be wondered why the single expert ventured any opinions at all on such questions of fact, which were exclusively the dominion of the trial judge. He did so because the parties and the Independent Children’s Lawyer expressly asked him to offer an opinion. Aside from addressing the considerations stipulated by s 60CC of the Act, the single expert was instructed to report on his “evaluation of the sexual abuse allegations and any risks” and then, at trial, he was cross-examined on that evaluation.
Nevertheless, the upshot of the single expert’s written and oral evidence is he considered it was unlikely the child had been sexually abused by A, and further, it was unlikely that A posed any risk of harm to the child. Obviously enough, such evidence falls short of ruling out the possibilities. The trial judge agreed. Rather than contradict the single expert, as the mother implied happened, his Honour “readily underst[ood]” how the single expert concluded it was unlikely A posed a risk of harm to the child (at [65]) and found it was “simply not possible to be dogmatic” about whether or not the alleged sexualised misconduct occurred between the child and A (at [177], [201]).

It should not be overlooked that the mother agreed with that proposition at trial. She conceded in cross-examination she did not, and never would, know whether A had sexually abused the child, even though she doubted it. The inconsistency between that concession and her submission in the appeal was obvious. She could hardly now contend the sexual abuse certainly did not occur, nor could she validly criticise the trial judge for failing to rule out the possibility of its occurrence. The single expert’s evidence and the trial judge’s findings were both entirely consistent with the mother’s concession at trial.
The question for the trial judge was how to deal with any residual risk of harm posed by A to the child. The parties had different solutions. The father contended for an injunction to positively preclude the child’s interaction with A, the Independent Children’s Lawyer initially proposed an order for the child to be supervised when with A, but then later adopted the father’s proposal for an injunction, and the mother contended no order of any sort was required.
While the single expert was against the imposition of an injunction which would preclude any interaction at all between the child and A (at [88]), he accepted in cross-examination that an injunction of that type offered some utility because it would certainly eradicate any risk of future abuse and, if the child again made an allegation implicating A, it could then be rejected as certainly false (at [91]). The views of the single expert were, therefore, balanced and, albeit he may have remained generally inclined against an injunction being made, he clearly did not have an unconditionally fixed view which the trial judge ignored or rejected.
His Honour then explained the competing considerations bearing upon the question of whether such an injunction should be imposed (at [176]-[180]) and considered the nature of the orders proposed by the parties and the Independent Children’s Lawyer (at [200]), before reluctantly finding an injunction was required in the child’s best interests (at [180], [201]-[202]). Essentially, the trial judge concluded the possibility the sexual abuse had occurred and the risk it might re-occur could only be adequately managed by an injunction because the mother’s dismissive attitude to the allegations meant her capacity to protect the child was diminished.
The trial judge only departed from the single expert’s fixed opinion in one respect on the topic of the sexual abuse allegations against A. His Honour was disinclined to accept the single expert’s opinion that the allegations were driving the father’s proposal to be the residential parent. The trial judge found, having heard all of the evidence to which the single expert was not privy, it was the profoundly dysfunctional parental relationship which was the father’s primary motivation (at [64]). Such finding flowed, in part, from the trial judge’s acceptance of other evidence given by the single expert about the unrelenting conflict between the parties.
So analysed, the trial judge did not fail to give adequate weight to the single expert’s evidence in so far as it touched upon the topic of the risk of harm posed to the child by A.

Whether the father is a “controlling person”

In respect of the father, the single expert reported:
18.…There is no doubt that [the father] is a controlling man despite the fact that he denies this, but clearly the way in which he went about trying to influence the preschool against the mother demonstrates that he was prepared to manipulate the external environment in order to achieve his goal of isolating the mother.
…
111.Formulation. This is a most complex matter that has now been going on in the Family Court for some five years. [The father] presents as a mild man on interview attuned to his child and caring about him…
(As per the original)
In cross-examination, the single expert conceded nothing about the father’s presentation suggested he was controlling and it was only the content of some emails and documents which led to his formation of that opinion. The single expert was unspecific about the emails and documents to which he was then referring but, inferentially, it included the documents the father furnished to the child’s pre-school about the ongoing litigation between the parties. The single expert’s reference to those documents in his report was incorporated in the reasons for judgment by the trial judge (at [50]).
When considering the weight which could or should have been reposed in the single expert’s opinion of the father being a controlling person, three qualifying features must be borne in mind.
First, since the single expert’s opinion of the father was formed entirely on the basis of documents he read and those documents were adduced in evidence, the trial judge was as well placed to draw his own inferences about the father’s personal characteristics.
Secondly, the single expert’s opinion arose only from the way in which the father communicated with the child’s pre-school and, while critical of what he imputed to be the father’s attempt to “cultivate the preschool in his favour” and to isolate the mother, he was also critical of the mother’s behaviour, which he concluded contributed to her strained relationship with the pre-school staff.
Thirdly, the single expert’s opinion about the father’s tendency to be controlling was raised in his report within the context of a wider discussion about family violence. As the trial judge correctly observed, during the trial, the issue of family violence dissipated as a “determinative factor” in relation to the orders respectively proposed for the child (at [55]-[56]). That must be correct since, although the parties contested the child’s primary residence, they each contended the child should spend substantial amounts of time with the other (at [28]-[30]), which must imply their admission that the child was not at unacceptable risk of harm by exposure to family violence. The issue which rose to pre-eminence at trial was the unremitting conflict between the parties over the child. The trial judge found that whatever family violence had occurred in the past had ceased, but “morphed” into an insidious form of intractable conflict, which was the principal obstacle to formulating orders in the child’s best interests (at [173], [175]).
The trial judge’s finding of the parties’ mutual responsibility for the parental conflict arose out of his Honour’s acceptance of the single expert’s broader evidence that their dispute was “bitter” and they each harboured a “deep-seated hatred” of one another (at [46]), neither “lose[s] any opportunity to denigrate the other” (at [69]), each party “seeks to undermine the quality of the other’s relationship” with the child (at [77]), neither party has the capacity to be more communicative and cooperative (at [77]-[78]), and neither party can recognise the child’s needs because each is “so self-absorbed” (at [79]). Critically, as the single expert said and as was accepted by the trial judge, such mutual parental conduct was the direct cause of the child’s emotional disturbance which reflects in his behaviour as “trauma responses” (at [59], [69], [79], [81], [82], [84], [86]). Both parties must have been aware from reading the single expert’s report that he considered their conflict was largely responsible for the child’s emotional distress.
Returning to the findings that the mother sought to impugn, the trial judge found the father’s communication with the pre-school was “not nearly as straightforward” as the single expert believed, the evidence did not permit any inference that the father tried to cultivate the pre-school in his favour and there was insufficient evidence to substantiate the single expert’s view that the father was a “controlling man” (at [51], [52], [56], [134], [135]). Instead, the trial judge found the evidence demonstrated both parties sought to “manipulate the external environment” and to “undermine the reputation and parenting of the other” at every opportunity (at [56], [75]). The trial judge, like the single expert, was critical of both parties’ conduct. Both bore responsibility for perpetuating their conflict.
The abstention of the trial judge from specifically finding the father was controlling, in reliance upon the single expert’s opinion, did not amount to an erroneous failure to repose sufficient weight in the single expert’s evidence. Based on the preponderance of the single expert’s evidence, which was accepted, it was open for the trial judge to make the findings about both parties seeking to undermine the other. Contextually, the findings were within the trial judge’s regular exercise of discretion and are not open to attack on the basis that the rejection of the single piece of evidence emphasised by the mother effectively amounted to the failure to exercise the discretion entrusted to the Court (see Lovell v Lovell (1950) 81 CLR 513 at 519).

Ground 2

This ground of appeal contended the trial judge failed to give “all due consideration” to any other fact or circumstance relevant to s 60CC(3)(e) of the Act.
So stated, the ground was not a competent ground of appeal (see House v The King (1936) 55 CLR 499 at 504-505). However, it emerged from the mother’s Amended Summary of Argument that her attack was upon the integrity of the trial judge’s finding (at [189]), in so far as it sought to address s 60CC(3)(e) of the Act as a relevant consideration.
Relevantly, the trial judge found:
189.If the Mother lives in Suburb E as she now contends, and the Father remains living [near Suburb C], there will be no issues of practical difficulty and expense associated with either parent spending time and communicating with each other.
While the trial judge there referred to the practical difficulty and expense of the parties spending time and communicating “with each other”, it was plainly an intended reference to them each spending time and communicating “with the child”. The error was typographical. Neither party contemplated spending time with the other, nor that the prospect of them doing so was a consideration which affected the child’s best interests under s 60CC(3)(e) of the Act.
The mother conceded in the appeal that the paragraph could not literally mean what it says. Once impelled to the admission that typographical error was the only rational explanation for the terminology employed, the ground of appeal dissolved. While the mother maintained evidence of “practical difficulty” still engaged s 60CC(3)(e) of the Act, it was an argument that addressed Ground 3.

Ground 3

This ground of appeal contended the trial judge failed to consider the effect of Order 5(c)(i)(B), should the mother wish to move her place of residence further away from the child but still spend time with the child in the area where he lived with the father.
At the time of trial, the mother lived with the child at Suburb E and the father lived in the Suburb C district. It was common ground that their homes were about 45 kilometres apart, with the driving time between them measured at between 45 to 60 minutes duration. During the trial, the mother abandoned her intention to move with the child to live in Town 2 and, in final submissions, informed the trial judge she would continue to live in Suburb E, which the trial judge noted in the reasons for judgment (at [187]). Although the parties contested the child’s residence, they each ran a case that the child should spend substantial and significant time (defined in s 65DAA(3) of the Act) with the non-residential parent, which would incorporate time on weekends and on school day evenings during school terms.
The trial judge determined the child should live with the father (Order 4) and spend substantial and significant time with the mother (Order 5). Upon the child’s commencement of school in early 2019, during school terms, the orders require the child to spend time with the mother on alternate weekends for three nights (Order 5(c)(i)(A)) and for two nights during the alternate week (Order 5(c)(i)(B)).
The trial judge found such arrangements were reasonably practicable to implement whilst the mother lived in Suburb E, but, by implication, considered the arrangements would not necessarily be practicable if the mother later moved her residence further away from the child’s residence with the father, as she originally intended. Consequently, another order was made to suspend the child’s contact with the mother on the two mid-week nights (Order 5(c)(i)(B)) if she moved her residence outside the shire council area encompassing Suburb E (Order 7). An order to that effect was expressly proposed by the Independent Children’s Lawyer. So, contrary to the fundamental proposition advanced by this ground of appeal, the trial judge did expressly consider the curtailment of the child’s time with the mother if the mother chose to move further away.
The mother submitted in the appeal that Order 7 constricted her right and ability to move outside the Suburb E district, but the order plainly does not. She can live wherever she pleases but, if it is outside that district, Order 7 operates to cut back the time the child will spend with her during school terms to only alternate weekends. The mother has since proved Order 7 does not restrict her freedom of movement because she moved away from Suburb E.
The mother submitted in the appeal she has moved her residence to Town 2, in which district she works, and so, because of Order 7 thereby operating to suspend Order 5(c)(i)(B), the child no longer sees her on Wednesday and Thursday nights each alternate week in school terms. The mother’s Application in an Appeal was directed, in part, to the proposed rectification of that situation. She wanted to adduce additional evidence about how it would still be feasible for the child to spend time with her on those two nights each fortnight at the home of the maternal grandparents in the Suburb C area, however her application to adduce that evidence is dismissed.
Orders 5(c)(i)(B) and 14 require the mother, for those two nights, to collect the child from school on Wednesday afternoon and return him to school on Friday morning. On her own admission, she could not fulfil that obligation due to her work commitments in the Town 2 district on those days. She envisaged having the help of the maternal grandparents, who apparently live in the Suburb C area near the father and the child. That may be so, but the mother’s evidence about how she foresees the arrangement would work could be controversial. Its reception was opposed by the father. Given the parties’ conflict, the father may not concede the maternal grandparents will always be willing or able to help to the extent the mother expects, nor even concede the child will be able to regularly see the mother on those nights, given the distances she would then necessarily have to travel between the Suburb C area and Town 2 over those days. An appellate court is not geared to receive and then evaluate controversial additional evidence (see CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 203, 213).
In any event, the proposed additional evidence would not demonstrate error by the trial judge and the discretion to admit fresh evidence should not be exercised so as to obliterate the distinction between appellate and original jurisdiction (see CDJ v VAJ at 202). His Honour made orders which were consistent with those expressly proposed by the Independent Children’s Lawyer, about which the mother was on notice and which relied upon uncontroversial evidence. The parties and the Independent Children’s Lawyer uniformly proposed that changeovers should occur at the child’s school whenever possible and the mother told the trial judge she would remain living in Suburb E. Had the mother done as she said she would at trial, Order 5(c)(i)(B) would still be operating.
Now the mother has chosen to live somewhere else, as is her prerogative, her remedy is not an appeal against orders properly made (see CDJv VAJ at 186, 204, 218). Rather, subject to her demonstrating a material change in circumstances, she is free to bring fresh proceedings at first-instance seeking to amend the orders commensurately with the change. Any controversy over the evidence about the nature of the change or how the orders should be amended to accommodate the change can then be tested at trial.

Ground 4

This ground of appeal contended the trial judge did not give adequate reasons for finding (at [73]) the totality of the evidence bore out the single expert’s opinion that the maternal family has been motivated to minimise the significance of the child’s “behavioural issues”.
The trial judge’s finding, which the mother sought to indirectly impugn, was expressed thus:
73.The Court will conclude, from the totality of the evidence, that [the single expert]’s opinion that the maternal family has been motivated to minimise the significance of [the child]’s behavioural issues, for strategic reasons, is in fact borne out.
That finding represented adoption of the single expert’s original and unmodified opinion evidence, quoted by the trial judge in the preceding paragraph (at [72]). The single expert reported:
110.[The mother] by contrast also provided a valid response but other than some mild issues with attention did not rate [the child] as having any significant problems. It is clear there is a large disconnect between the parents in how they describe [the child] with the father seemingly reporting major problems, which may reflect some exaggeration and the mother minimal problems, which may reflect some minimisation motivated by her desire to prevent any negative opinions being formed [a]bout what has been alleged to have occurred to [the child] in her home. However, as I have reviewed this material it is open to conclude that, in part, [the child] responds quite differently in different environments and thus the parent’s self report reflect specific dynamics in [the child]’s response to these varying home environments. However, on balance I think [the child] does genuinely have behaviours that are of concern and the maternal family is motivated to minimise these for strategic reasons.
(As per the original)
At the commencement of the single expert’s cross-examination, aside from the correction of an introductory comment which is presently irrelevant and the mother’s belated abandonment of her planned move to Town 2, the single expert said there was nothing he needed to correct in the report following his consideration of the updated material provided to him. He was not challenged by the mother about the validity of his opinion that the maternal family was motivated to minimise the child’s “behaviours” for strategic reasons but, when invited by the father to endorse the opinion, the single expert modified his original opinion by saying both parties were strategic in their descriptions of the child’s “behaviours”. The single expert agreed the imputation of the mother’s motivation to minimise the child’s problematic behaviour would hinge upon the frequency and extent to which she did so.
It will be recalled the trial judge found the single expert’s original opinion about the maternal family’s motivation to minimise the significance of the child’s “behavioural issues” was borne out on “the totality of the evidence”. Although this ground of appeal was directed only to the sufficiency of reasons for the finding, the mother’s challenge to the validity of the finding was integral to her complaint about the insufficiency of reasons. To comprehensively answer the mother’s complaint it is necessary to evaluate the “totality of the evidence” on the issue and the reasons given by the trial judge.
The mother deposed at trial how she ensured the child’s infant milestones were checked and confirmed. In late 2016, on the recommendation of the pre-school staff, she consulted a paediatrician with the child, but the consultation was unremarkable. In September 2017, the father unilaterally made an appointment for the child to consult a psychologist, which the mother conceded she obstructed. However, once she was privy to further information from the pre-school about the child’s behaviour, she agreed to the child being professionally reviewed, but only by a professional she had already engaged in the past. In November 2017, the medical professional to whom the mother took the child for assessment reported to her with numerous recommendations about the child’s management. The mother then deposed to the steps she took throughout 2018 to try and implement such recommendations. In relation to the issue of addressing the child’s behavioural needs, the mother submitted to the trial judge she had done all that could be reasonably expected.

That submission, however, was not necessarily reflective of the concessions she made in cross-examination, such as these: she did not tell the father about the first paediatric appointment she made for the child in late 2016; she started to see behavioural change in the child in late 2016, whereas she told the single expert it was not until 2017; she attributed the child’s problematic behaviour at that time to the father; she thought there was more to the child’s misbehaviour than the paediatrician benignly reported in 2016, but did nothing more about it at the time; she was aware the single expert considered the child was able to maintain better focus when with the father than when with her; there was nothing wrong with the father organising medical appointments for the child, even though she criticised him for it; she cancelled the appointment made by the father for the child in 2017, even though she was invited to attend; independent persons and medical professionals reported how the child’s misbehaviour escalated when in her care; she informed the pre-school that the child’s aggression, defiance and lack of attention, as reported by the pre-school, was “non-existent in his home life”; she found the dissonance between her perception and the perceptions of others about the child’s behaviour to be “unusual”; the assessment report compiled in relation to the child in November 2017 identified “significant areas of need” for the child; she reduced the child’s pre-school attendance because of her work commitments, knowing the medical assessment confirmed the child would benefit from pre-school instruction; the extra services about which she enquired for the child in 2018 were all centred around Town 1, Town 2 and Canberra, but not Suburb E or Sydney; and she did not inform the father about some of those services she investigated.
In the face of such evidence, the trial judge found:
113.The Mother was then extensively cross-examined about her response to [the child]’s behavioural problems. There was a disagreement between the parents about how, and where, [the child] should be treated. Thus, for example, the Father would arrange an appointment which the Mother would cancel (exhibit R3).
114.The clear theme emerging from the cross-examination is that the Mother had a different view about the nature and extent of [the child]’s behavioural issues. The difference, in this regard, was not just with the Father, but even with those treating [the child].
115.[The child] attended the Hospital Growth and Development Clinic for the purposes of assessments. An assessment was untaken on 4 October 2017. This resulted in an extensive report dated 29 November 2017. The report was an Annexure to the Mother’s Affidavit. There was an unfortunate incident that took place.
…
121.The Court notes that in its interim decision delivered on 16 March 2008, in these proceedings, and reported as [2018] FCCA 592, it discusses [the child]’s special needs at paragraphs 28-40. There is no benefit in reproducing these paragraphs here. Perhaps the one exception, however, is paragraph 40, which has an element of prescience to it:
From the Court’s perspective, what [the child] needs appears to have been subsumed to the needs of his parents, who seem to be engaged in a power struggle in relation to [the child].
122.The receipt of the assessment in question merely generated more opportunities for the parents to disagree about how to implement the recommendations that were made. For example, it is clear from the Mother’s evidence in cross-examination that she wanted [the child] taken out of [the pre-school]. Her proposal was that he attend preschool in Town 2, even though he was living in Suburb E. She proposed a range of services to support [the child], all geographically located in Town 1 or Town 2, but not in the Suburb E area. The Mother’s self-focus was plainly apparent.
123.The Mother was cross-examined about the engagement of [a psychology service] to assist [the child] psychologically, and with his learning and social development. She agreed that in her solicitor’s letter dated 20 June 2018 she had represented that she had made an appointment with them on 24 July 2018 as “this was the first available.”
124.The Mother was then taken to the business records of [a psychology service], including a record of her conversation on Monday 18 June 2018. The conversation was put to the Mother in cross-examination. At first she said she did not recall it, then she denied a specific comment, and then she said it was one of several conversations she had with [a psychologist], and then she said that she vaguely recalled the conversation. Once again, the Court prefers the independent business record created by [a psychology service].
125.A number of things emerged from this record. The Mother was offered two appointments, one in early July, and another in mid-July. The record states that the Mother told Ms J, the person who she spoke to and presumably created the record, that she could not do either as she works at Town 2. She was offered 24 July at 9:00am and is recorded as having said “I guess I will have to take it, I don’t seem to have a choice”.
126.The obvious issue here is, once again, that of priorities.
127.There are other aspects of the telephone conversation that are quite disturbing. Noting that the Court prefers the business record to the Mother’s account of the conversation, it portrays the Mother as being quite aggressive. She makes two comments of concern to the Court. At one point she is recorded as saying; “First of all, I don’t even agree or understand why [the child] needs to come there, what did the lawyer tell you?”
128.With great respect to the Mother, the assessment more than clearly spelled out why. Later, the Mother asks whether [the child] will be seen alone with a psychologist and then says; “How do I know she won’t coerce [the child]?”
129.All of this collectively conveys a lack of conviction on the Mother’s part as to [the child]’s need for this therapeutic intervention, despite the comprehensive assessment that she had received.
(Original emphasis)
Those reasons transparently and satisfactorily explain how the trial judge found the mother, as the most significant member of the maternal family, was “motivated to minimise the significance of [the child]’s behavioural issues, for strategic reasons” (at [73]), which finding was surely open on the evidence summarised. The expression “maternal family” (used at paragraph 110 of the single expert’s report) is adopted and used by the trial judge in the context of referring to the mother’s “home environment”. The mother’s complaint of inadequate reasons for the finding must be rejected.

Ground 5

This ground of appeal contended the trial judge did not give adequate reasons for accepting the evidence of Ms B about the circumstances surrounding the child’s earliest complaint about A in April 2017.
The trial judge recited in the reasons for judgment the effect of Ms B’s evidence and confirmed acceptance of it as truthful and correct (at [151]-[156]).
Ms B gave evidence of being informed by another pre-school staff member about the child’s revelation concerning A when questioned about his sexualised behaviour with another student. Ms B then told the mother of the child’s disclosure and made a contemporaneous note of their conversation on her mobile telephone, the provenance of which the mother’s counsel admitted at trial. Ms B confirmed she only discussed the issue with the mother; not the father. Consistently with the father’s evidence, the trial judge found he did not learn of the incident until much later, in April 2018 (at [146]-[147]).
The content of the conversation between Ms B and the mother in April 2017 was referred to in an email sent to the mother by the pre-school director in another context one year later in April 2018, which email the trial judge mentioned tangentially in the reasons for judgment (at [23], [136]). The email comprised a broad ranging discussion about issues pertinent to the child. The mother submitted in the appeal that the pre-school director’s email in April 2018 was in “direct conflict” with Ms B’s evidence because the email asserted the child informed Ms B directly of A’s sexual misconduct, whereas Ms B gave evidence that the child’s disclosure was reported to her indirectly by another member of the pre-school staff. It is true the evidence is discrepant to that limited extent, but the discrepancy is liable to be explained as an error made by the director rather than by Ms B. The email was sent long after the incident and, in any event, referred to Ms B’s contemporaneous note as a source document. The error made by the director about whether the child’s disclosure was reported to Ms B directly, rather than indirectly, did not require the trial judge to find Ms B’s evidence on the issue was unreliable, as the mother’s submissions implied.
Ms B was challenged in cross-examination about the accuracy of her account of the conversation with the mother in April 2017, but she adhered to it. Her evidence was not inherently implausible and so the factual findings which represented acceptance of her evidence were open.
This ground of appeal only complained that inadequate reasons were given for acceptance of Ms B’s evidence, but that contention cannot succeed. As the trial judge recorded in the reasons for judgment, Ms B’s recollection of the conversation, which occurred about one year before her affidavit was sworn, was consistent with her contemporaneous note of it. The mother accepted Ms B’s note, endorsed with the date and time it was made, was made on that date and at that time. The mother’s assertion that A was not mentioned during their conversation was contrary to the contents of Ms B’s note. The fact no mandatory report of the child’s disclosure was made in a timely way to the child welfare authority was not the fault of Ms B. She was not the director of the pre-school, nor the staff member to whom the child made his disclosure. The reasons given by the trial judge for acceptance of Ms B’s evidence were perfectly satisfactory.
While the mother sought to challenge the authenticity of Ms B’s contemporaneous note in the appeal, it was not open for her to do so. The note’s authenticity was admitted at trial and Ms B was not challenged in cross-examination with the proposition she fabricated it. Had that been the mother’s contention, she was obliged to put the proposition to Ms B (see Browne v Dunn (1893) 6 ER 67; Kuhl v Zurich Financial ServicesAustralia Ltd (2011) 243 CLR 361 at 387-388).
The mother contended in the appeal that the absence of any other pre-school record to verify the content of Ms B’s conversation with the mother in April 2017 raised “questions as to the weight of the evidence of Ms B”. That submission is also rejected. The submission does not logically follow but, regardless, it strayed beyond the ambit of the ground of appeal.
The mother also contended in the appeal there were “clear problems with [Ms B’s evidence] under the Evidence Act” because it was “second hand hearsay”. Aside from the lack of correlation between the submission and the ground of appeal, the submission is rejected. Pursuant to s 69ZT of the Act, certain provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”), including the hearsay rule, did not apply to the evidence adduced at trial. Even if it had applied, the evidence of what the child told the other pre-school staff member and what she, in turn, told Ms B was not hearsay. That is because the statements were adduced in evidence, at least in part, to only prove the child alleged his sexual abuse by A; not that the allegation was true (see Subramaniam v Public Prosecutor (1956) 1 WLR 695 at 970; Pollitt v The Queen (1992) 174 CLR 558 at 571). In any event, pursuant to s 60 of the Evidence Act, the hearsay rule does not apply to exclude evidence of previous representations admitted for purposes other than proof of the asserted fact.
The content of those conversations was important because Ms B told the mother the child had implicated A in his sexual abuse. Even if the child’s report about A was wrong, the mother’s reaction to the revelation was integral to the decision required of the trial judge. Flowing from the factual findings, the implications for the mother’s parenting capacity were described by the trial judge thus:
51.…As it turns out, the Court will accept the evidence of [Ms] B to the effect that she reported to the Mother in or about April 2017 that [the child] had made a disclosure in relation to A. The Court will not accept the Mother’s denials about this. Even [the single expert] conceded in cross-examination that, if this were the case, it would reflect adversely on the Mother’s protective capacity for [the child], as well as reflect poorly on her priorities.
…
85.…the real focus for the Court is not on whether the events alleged to have occurred did in fact occur, but whether the Mother’s response to the disclosures was dismissive, or protective. The Court will find that it was dismissive, rather than protective. Even [the single expert] conceded that, if that were the case, the Mother was prioritising her relationship with her partner, rather than giving serious consideration to whether something occurred.
…
156.The implications of this evidence is self-evident. One year before [the child] made disclosures to his father and [the father’s new partner] about A, the Mother had been informed of a disclosure that [the child] had made in relation to A. The Court accepts that the Mother’s response is as depicted by Ms B. It was dismissive. She was accusatory towards the Father and his family. She was derogatory towards the Father and his family. Once again, it seems as if the Mother had prioritised her relationship with [her new partner], over that of her own son.
Given Ms B alerted the mother to the possibility of the child’s sexual abuse by A and the mother’s reaction to that information bore upon her protective capacity, the actual content of the preceding conversations between the child, the other pre-school staff member, and Ms B was not critical. The mother’s submission to the trial judge, based on Jones v Dunkel (1959) 101 CLR 298, that an inference should be drawn against the father by his failure to call evidence from the other pre-school staff member was mistaken.
As the father submitted, the findings about the mother’s protective capacity were pertinent to the question of the need for an injunction precluding the child’s interaction with A, which has already been addressed under Ground 1.

Ground 6

This ground of appeal contended the trial judge placed excessive weight on the child’s allegation of his sexual abuse by A.
As is evident from the discussion under Ground 1, the trial judge did not find the child had been sexually abused by A – only that it was “simply not possible to be dogmatic” about whether or not any sexual abuse occurred (at [177], [201]). The risk of harm, which could not be entirely eradicated and to which the child remained exposed, only then found expression in the discussion about the parties’ comparative protective capacity and the type of order which should be made to protect the child from that risk.
The trial judge found the father was more protective of the child than the mother (at [51], [85], [164], [165], [180]). That finding flowed from two considerations – the mother’s dismissive attitude to the sexual abuse allegation against A reported to her by Ms B in April 2017 and her subsequent willingness to have A attend a family party at which the child would also be in attendance in June 2018, even though an injunction was then in existence precluding the child’s contact with A.
In the appeal, the mother contended she took steps to ensure the child was protected from A “as soon as she was made aware of the allegation”, which was an allusion to only the later allegation in April 2018. The mother’s submission was a generous interpretation of the evidence because, apparently, the extent of her precautionary reaction was to have her partner re-calibrate the weekends on which A visited him so those weekends did not coincide with the time the child was in the mother’s care. The mother deposed she did not consider the child was in any “immediate danger” as, by then, A had returned to live with his own mother.
However, the mother’s stated disbelief in the child’s exposure to possible sexual abuse by A would hardly incline her to be sufficiently vigilant to prevent it. She did not believe A had abused the child and blamed the father for inciting the allegation. At or about that time, the mother only offered to ensure the child would “not be left with A unsupervised for any period of time”, which undertaking stopped short of guaranteeing the child would be kept away from A. It was not until the father’s interim application was entertained on 30 April 2018 that the mother consented to an injunction restraining her from allowing the child to have any contact with A. Despite the injunction, the mother still willingly contemplated having both the child and A attend her engagement party in June 2018 (at [161]-[165]).
The mother’s Application in an Appeal sought to address those findings. She sought leave to adduce in evidence more text messages which passed between her partner and his former partner concerning the prospect of A’s attendance at the party in June 2018. Her application to do so is dismissed for two reasons.
First, the extra text messages she wanted to tender were sent in June 2018 and she could not satisfactorily explain why she failed to tender them during the trial in October 2018 or why she failed to apply to the trial judge to re-open the evidence and admit them before final submissions were filed in November 2018 or before judgment was delivered in December 2018. The text messages were available to the mother at the time of trial (see CDJ v VAJ at 213).
Secondly, the text messages passing between the mother’s partner and his former partner in respect of the issue, which were already in evidence (Exhibit R16), enabled the trial judge to infer that the mother and her partner contemplated the possibility of both the child and A attending their engagement party. The mother denied in cross-examination that she discussed the matter with her partner, but her partner’s text messages said otherwise. In the appeal, the mother admitted the inference that she contemplated the attendance at the party of both the child and A was properly available from the exhibited text messages and, having made that concession, she then conceded the additional evidence, even if admitted in the appeal, would not have foreclosed the inference drawn by the trial judge. At most, it would only prove that, following further communication by text message, the mother’s partner eventually acquiesced to his former partner’s demand that A not attend the party. The fresh evidence would not, therefore, demonstrate any error by the trial judge (see CDJ v VAJ at 202).
In the reasons for judgment, the trial judge recited the father’s mistaken belief that A was living with the mother’s partner when the child’s allegations of his sexual abuse by A were made in April 2018 (at [146]), but the trial judge’s reference to the father’s mistake does not mean his Honour was mistaken. The trial judge correctly accepted the child last spent any time in A’s company a month before in March 2018 (at [22]).
The discussion above deals only with the mother’s reaction to the child’s allegation of his sexual abuse by A in April 2018. According to the evidence before the trial judge, the mother did nothing at all to protect the child from A after she learned of the initial sexual abuse allegation against A in April 2017. The mother could not argue that proposition because she alleged at trial she was not even informed of that allegation in April 2017 and, if that was true, she had no need to protect the child from A. At the time, A lived with the mother’s partner, with whom she and the child were liable to still associate on weekends. There was no evidence she did anything to monitor or regulate the child’s interaction with A until April 2018.

The mother’s inferior protective capacity was but one of the factors which inclined the trial judge to order that the child live with the father. The trial judge did not place excessive weight on the allegations of the child’s sexual abuse by A when making findings about the parties’ respective protective capacity and, although not part of this ground of appeal, nor did his Honour place excessive weight on the mother’s lesser protective capacity when determining the wider question of the child’s residence.

Conclusion and Costs

The appeal is dismissed.
In that event, both the father and the Independent Children’s Lawyer sought orders that their costs of and incidental to the appeal be paid by the mother.
The mother resisted the costs orders on only two bases: the result at trial was said to be finely-balanced and she was self-represented until the appeal hearing. While those contentions are correct, they are of little moment. The appeal was wholly unsuccessful (s 117(2A)(e)) and the mother did not submit her financial circumstances militated against the orders sought (s 117(2A)(a)).
The father asserted his schedule of costs, filed and served pursuant to the orders made by the Appeal Registrar, were calculated on the party/party scale. The mother did not submit otherwise. We therefore fix costs in the sum proposed by the father (rounded to the nearest dollar).
Similarly, the Independent Children’s Lawyer filed and served her schedule of costs as ordered by the Appeal Registrar, which she contended was calculated on the party/party scale. Again, the mother did not submit otherwise. However, while the Independent Children’s Lawyer sought an extra $1,000 to cover the cost of her additional consideration of the mother’s Amended Summary of Argument, we are not inclined to order her payment of that extra amount. We therefore fix the Independent Children’s Lawyer’s costs in the sum set out in her filed schedule (rounded to the nearest dollar).

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Aldridge, Watts & Austin JJ) delivered on 5 February 2020.

Associate:

Date: 5 February 2020