Amador & Amador - [2009] FamCAFC 196

FAMILY COURT OF AUSTRALIA

AMADOR & AMADOR

[2009] FamCAFC 196

FAMILY LAW - APPEAL – PARENTING – INTERNATIONAL RELOCATION – appeal against Orders of Federal Magistrate permitting the mother to relocate with the parties’ 4 year old son to Serbia – Child diagnosed with autism spectrum disorder – whether Federal Magistrate erred in finding it in child’s best interests to relocate and not finding the child’s autism to be a mitigating factor against relocation – whether Federal Magistrate erred in not addressing likely effect of disruption to child’s treatment – evidence of the availability of facilities and services in Serbia for treating and assisting the child – held that Federal Magistrate was in error in relying upon the contents of a document which her Honour stated to be unreliable and which evidence objected to at the hearing – whether that error was crucial to Federal Magistrate’s determination allowing the relocation – consideration of the mother’s illness with thyroid cancer – Federal Magistrate’s understanding of the importance of the father and child’s relationship – allegations of family violence by the father against the mother – determining allegations in relation to violence – appeal allowed and the matter remitted for hearing.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

A v A (1998) FLC 92-800
Briginshaw v Briginshaw (1938) 60 CLR 336
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition & Consumer Commission [2007] FCAFC 132
M and M (1988) 166 CLR 69
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Oakley & Cooper [2009] FamCAFC 133
Re W (Sex abuse: standard of proof) (2004) FLC 93-192

APPELLANT:

Mr Amador

RESPONDENT:

Ms Amador

FILE NUMBER:

PAC

3619

2007

APPEAL NUMBER:

2009

DATE DELIVERED:

3 November 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

May, Coleman and Le Poer Trench JJ

HEARING DATE:

17 August 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

23 December 2008

LOWER COURT MNC:

[2008] FMCfam 1407

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Snelling

SOLICITOR FOR THE APPELLANT:

Macarthur Law Group

COUNSEL FOR THE RESPONDENT:

Mr Harper

SOLICITOR FOR THE RESPONDENT:

Jennifer Weate & Associates

Orders

The appeal is allowed.
The orders made by Federal Magistrate Henderson on 23 December 2008 are set aside.
The parties’ applications be remitted for rehearing in the Federal Magistrates Court of Australia before a magistrate other than Federal Magistrate Henderson.
The Court notes that the parties have signed consent orders which they may register in the Federal Magistrates Court.
The Court grants to the appellant father a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father in respect of the costs incurred by the appellant father in relation to the appeal against the orders of Federal Magistrate Henderson made 23 December 2008.
The Court grants to the respondent mother a costs certificate pursuant to the provisions of section 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent mother in respect of the costs incurred by the respondent mother in relation to the appeal against the orders of Federal Magistrate Henderson made 23 December 2008.
The Court grants to each party a costs certificate pursuant to the provisions of section 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new hearing granted by these orders.

IT IS NOTED that publication of this judgment under the pseudonym Amador and Amador is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 8 of 2009
File Number: PAC 3619 of 2007

Mr Amador

Appellant

And

Ms Amador

Respondent

REASONS FOR JUDGMENT

This is an appeal against the orders of Federal Magistrate Henderson made in the Federal Magistrates Court at Parramatta on 23 December 2008. By those orders the mother, Ms Amador (now known as Ms Amador…), was permitted to relocate the parties’ son, [X] born in 2005, to Serbia. The child has been diagnosed as autistic. Other orders were made at that time.
The relocation order permitting the mother to take the child to live with her in Serbia had the effect of reducing the time which the child could spend with his father, Mr Amador, from regular weekly occasions to possibly once per year.

Relevant Background Facts

The father was born in 1970 and the mother in 1971. The parties were married in Belgrade in 2004 following an “internet relationship”. The father returned to Australia within a week of the marriage to the mother.
The subject child, [X], was born in Belgrade in 2005. He did not enter Australia until he was 20 months of age.
The cohabitation between the parents lasted for about five months in Australia. Since the separation in 2007 the mother has remained in Australia.
At the time of the parties’ separation the mother alleged domestic violence, including sexual assault, perpetrated upon her by the father. Those allegations were substantially denied by the father.
On 1 November 2007 interim orders were made for the child to spend time with his father. The interim orders provided for that time to be initially two hours each Wednesday and then increasing to 10.00am to 4.00pm each Saturday and 10.00am to 4.00pm each alternate Sunday.
At the time of the hearing before the learned Federal Magistrate, the child had been diagnosed with “mild to moderate global development delay and autism spectrum disorder”.
The orders made by her Honour on 23 December 2008 granted the mother sole parental responsibility for the child and ordered that the child live with her. The mother was permitted to relocate the residence of the child to Serbia. She was to give the father 28 days written notice prior to leaving Australia. The orders provided for the mother to return the child to Australia during January or February each year commencing in 2010 for a period of not less than four weeks for the purpose of the child spending time with his father. Orders were made to facilitate webcam or Skype communication between the child and his father. An order was made to facilitate the child spending time with his father in Serbia should the father be able to travel to Serbia.
At the time of the orders her Honour accepted that each of the parties’ financial circumstances was limited.

The Judgment of Federal Magistrate Henderson

We here set out those parts of her Honour’s judgment which are necessary to address the grounds of the appeal under consideration.
Having provided a general introduction, her Honour then identified the orders being sought by each of the parents. It is to be noted that there was no Independent Children's Lawyer appointed to the case. Her Honour identified the evidence being relied upon by each party to the proceedings. She identified the family report which was marked as Court Exhibit 1.
Having referred to the decision of A v A: Relocation Approach (2000) FLC 93-035 the learned Federal Magistrate identified the competing proposals of the parties. There was a statement of short chronology which largely contained non-contentious facts. The mother’s evidence was examined in detail together with the evidence relating to the mother’s health. In paragraph 62 of the judgment her Honour noted that in November 2007 the mother was diagnosed with thyroid cancer. She received treatment. At paragraph 63 the learned Federal Magistrate said, “The mother seems to have recovered from this cancer and her health is good.” It was noted that the mother was proposing to have “carpal tunnel” surgery on her left hand. Clearly, that surgery was to take place in Australia.
The learned Federal Magistrate then turned to consider “[X]’s Autism”. The evidence referred to recites that the mother had become concerned about the child’s development whilst she was living with the father in Australia.
Details of the interventions arranged by the mother for the child in Australia are set out in the judgment. At paragraph 74 the following appears:
The mother asserts there are facilities available for [X] in Serbia of a comparable if not, as she asserts, better standard than is available here in Australia. It is clear that [X] has benefited from the therapies and interventions the mother has obtained for him in Australia.
Information about the availability of services in Serbia is further referred to at paragraph 75 of the judgement. At that paragraph the following appears:
In paragraph 30 of her affidavit the mother says she has contacted Vesna Trovic who is the President of the Autism Society of Serbia which Society is a member of the European Autism Association. Annexure H to the mother’s affidavit is a letter she received from this organisation. The letter says:
In Belgrade, there are three institutions- clinics for early diagnostic for children, families can get all kinds of consultations with experts in this field. Few institutions of this kind are found in Serbia out of Belgrade.
Her Honour noted that the mother proposed to live in Belgrade with her parents. She then went on to quote further from the letter, at paragraph 76:
Capacity to those institutions is satisfactory, so there are no waiting lists of any kind.
When the diagnosis is made, children (age 2 to 8) with autism have a right to haunt nursing and preschool institutions.
After pre-school institutions, children have right on primary education. There are four special schools, with classes for pupils with Autism in Belgrade. Team of experts, give their recommendations if child should go to mainstream education or to these special schools. By the Law, one class consists of not more than 4-6 pupils with autism spectre disorder.
During education child has speech and psychological therapy free of charge during their education…
There are also secondary schools for people with autism.
In Belgrade, there are four daily centres for people with Autism, which also function as work centres for people with severe autism. Individual transport to and from those centres is provided.
…all above-mentioned institutions, programs are based on TEEACH and/or the ABBA methods which are recognized across the world.
Her Honour recited that the mother was born in Serbia and had always lived in Belgrade prior to coming to Australia. The learned Federal Magistrate was satisfied that if the mother returned to Serbia her old job would still be available to her.
It was noted that the child’s speech therapist had recommended the child learn one language and that the mother proposed such language would be Serbian. Her Honour noted further that the father does not speak Serbian and so the capacity for him to communicate with the child would be limited.
Her Honour set out the father’s evidence and detailed, in particular, what he had to say in answer to the mother’s allegations of family violence. She noted the father’s description of the child’s behaviour whilst in his care. She noted the father’s involvement in the services being provided to the child and his obvious interest in the information provided from those services.
At paragraph 108 her Honour found:
The father has been closely involved with his son’s professionals and has shown a commitment to his son’s treatment. The mother was derelict in not telling the father of the important assessment at Westmead.
At paragraph 111 her Honour noted:
I am satisfied the father is switched into his child’s autism and provides a good regime of care for him. I am satisfied that he would continue to seek and maintain specialist care for his son.
Her Honour was clearly alive to the obvious and probable loss of relationship between the child and his father if the child was to be removed to Serbia by his mother.
At paragraph 113 the learned Federal Magistrate noted the contents of the Australian Department of Foreign Affairs and Trade document provided by the father (Husband’s Exhibit 1). She noted under “Health Issues” the document stated: “Medical facilities in Serbia are below Australian standards.” She noted that the mother had agreed she had been critical of the medical treatment provided to her when she gave birth to the child. Her Honour noted the material produced by the father from UNICEF being publications concerning children’s rights in Serbia. She noted this talked of discrimination against disabled people in Serbia. She noted the father’s own evidence of having been in Serbia in 2004 and having seen children begging on the streets.
Her Honour set out the relevant evidence of Dr S, the Clinical and Developmental Psychologist who the mother had been referred to by Victims Services for counselling. Her Honour particularly noted Dr S’s opinion: “It is my opinion that [X]s long term welfare is critically interlinked with his mother’s welfare.”
Her Honour made further findings and statements about the facilities for treating and assisting the child in relation to autism in Serbia at paragraphs 202 and 204 of the judgment:
202. The mother’s annexure to her affidavit is the only evidence I have of the availability of autism services in Serbia. It is a compelling document none the less. That document satisfied me that there are appropriate day care centres and pre schools for the child, and mainstream and specials [sic] schools for the child. It satisfies me that there are sufficient facilities such as counselling, speech and other therapies available for the child. As [X] was born in Serbia, he will have no problem accessing those resources.
…
204. Ms Gillies submitted the mother’s evidence regarding the services available in Belgrade for autistic children was not first hand. However, the mother is unable to take [X] out of the country and she cannot leave him for any lengthy period in anyone else’s care at this time and thus I am at a loss as to how she could return to Serbia and obtain this information first hand.
The first instance judgment then detailed matters and conclusions flowing from the cross-examination of the father, the cross-examination of the mother, the evidence of the family consultant (Mr Norman Goodsell), the cross-examination of the maternal grandfather, and the observations of the child by the family consultant. At paragraph 244, under the heading “The observations of the child by Mr Goodsell” her Honour found:
I cannot make a positive finding that the Serbian services are comparable or superior to those available in Australia. However, I do not say I need to make such a finding.
This followed immediately upon her Honour stating:
243.Of major concern to Mr Goodsell was the lack of purported professional service in Serbia to deal with autism. I am satisfied by the enquiries the mother has been able to make and the letter from the Autism Society of Serbia attached to the mother’s affidavit that there are services available in Serbia for [X].
One aspect of the mother’s conduct which particularly impressed her Honour was the fact of the mother remaining in Australia following the separation from the father. Her Honour pointed out that the mother could have removed the child from Australia at the point of separation in which case the necessity for the hearing being conducted by her Honour would probably not have existed.
Her Honour said at paragraph 247:
I have no doubt the mother will continue to put the child’s interests before her own whether she lives in Australia or Serbia and would not propose to take him to Serbia unless she was satisfied his needs would be met as they have been met in Australia. To find otherwise would be inconsistent with her hitherto exemplary parenting role with this difficult child.
Her Honour noted that in the evidence of Mr Goodsell: “He agreed that the mother’s proposal for [X] was not ideal because she wanted to change his routine, his professional carers and remove him to Serbia.” She further noted he had said, “I agree with you in so far as [X] remaining with his mother that she will be a better mother in Serbia.”
At paragraph 258 her Honour stated: “I have found there are appropriate services available in Serbia for [X].”
Between paragraph 265 and 269 her Honour made findings in relation to violence. At paragraphs 265 and 266 her Honour said:
265.I am unable to make a finding that the father perpetrated the specific acts of violence alleged by the mother upon her, particularly the two incidents that she said were rapes.
266.What I do find is that the mother believes this is what the father has perpetrated upon her by his actions and conduct and she has told this story consistently to her psychologist, the police, other health professionals, her family and in her affidavit.
Her Honour concluded at paragraph 269: “There was clearly physical violence in the relationship and it was at times perpetrated by the father against the mother.”
Her Honour moved then to consider what she described as “The first option”; that is, the mother’s primary proposal that she and the child relocate themselves to Serbia. In so doing, her Honour addressed the requirements of section 60CC of the Family Law Act 1975 (Cth) (“the Act”). She then considered the second option, being a proposal of “the mother and [X] returning to Serbia and the father following.” She did not explore this option as the father had effectively ruled it out. She then looked to the third option, “the mother returning to Serbia without the child”. Again, this was not explored because the mother had ruled out that possibility. Her Honour then looked at the final option being, “the mother and child remaining in Australia”. In considering this last option the learned Federal Magistrate did not assess that specific proposal against the provisions of section 60CC of the Act.
In assessing the final proposal that the mother and the child remain in Australia, her Honour concluded the following:
340.I am satisfied that the services available for autistic children in Belgrade are commensurate with those in Australia.
341.The real competing issues are the ability of the mother to continue to maintain her high standard of parenting which she must do at a minimum for the next 10 years if not longer and the child’s right to the benefit of a meaningful relationship with his father.
342.On balance it is [X]’s mother’s health, her emotional wellbeing and her capacity to parent this child in the future to at least the same level she has in the past that I find is the most significant and overwhelming consideration in this matter.
343.From my findings and analysis of the evidence in this matter, I find to make an order in the child’s best interest, [X]’s right to the benefit of a meaningful relationship with his father is secondary to the need for [X]’s mother to maximise her parenting capacity, although the balance is always a fine one.
344.On the basis of that finding the mother’s application that she remove the child to Serbia permanently is an application that I find is in the child’s best interest and I will order accordingly.

The Grounds of Appeal

Grounds 1, 3 and 5

Grounds 1, 3 and 5 were effectively argued together and can be dealt with collectively. Those grounds are:
·Ground 1: That the learned Federal Magistrate erred in finding it in the best interest of the child to relocate to Serbia with the mother;
·Ground 3: That the learned Federal Magistrate erred in not finding the child’s Autism to be a factor mitigating against the child relocating to Serbia;
·Ground 5: That the learned Federal Magistrate erred in not addressing the likely effect of disruption to the child’s current treatment for autism including a change in therapists should he relocate to Serbia.

The principal basis upon which these grounds rely is a complaint that her Honour relied upon evidence contained in a document which had been objected to in the initial stages of the hearing. At that time her Honour made it clear she could not, and would not, rely on the contents of the document as evidence of the truth of its contents.
During the hearing before her Honour on 22 September 2008, counsel for the father raised objection to her Honour accepting into evidence a letter from the European Autism Association which had been annexed to the mother’s affidavit. The objection was raised on grounds which included the author’s unavailability for cross-examination. Her Honour’s response to the objection is recorded as:
“Well, I’ve read it. I’ll have to be honest with you, I take your point and I don’t know how it helped me. I didn’t really understand a lot of it.”
The objection by the father’s counsel also included an objection to the wording of the document and said:
“…the translation led [sic] a bit to be desired”.
Her Honour then called on the mother’s counsel to respond. The mother’s counsel asserted that the document showed that the mother had used her best endeavours to ascertain what she could about the services available in Serbia. He said, “It doesn’t go much beyond that. It’s the best evidence that’s available”. Her Honour then responded:
“All that can really go to is that she’s made inquiries and she’s received a letter but I can’t accept that what’s in that letter is factually accurate or true and correct. That’s about the best I can make it.”
Further submissions were then made by the mother’s counsel to her Honour that she could accept into evidence the letter from the European Autism Association, and accept that it was factually accurate in circumstances where the rules of evidence did not apply. This was clearly a reference to the application of the provisions of section 69ZT of the Act.
The transcript then records the following exchange:
FEDERAL MAGISTRATE: Well, it’s not that the rules of evidence don’t apply. The rules of evidence do apply. Some don’t. It’s a question of weight I attach to it. It’s admissible. Ms Gillies is contending it’s not admissible. If it was – if I didn’t uphold that objection and said it is admissible, all I would take from that is your client has done this and received this letter but I have to say Mr Harper it doesn’t convince me that is what – if I could even understand all of the letter – that is the availability of services in Serbia, but I accept your client’s written to an organisation called The Autism Society of Serbia. I accept that, and received a letter. It doesn’t satisfy me that that’s what it is, because anybody could have written it, I don’t know. Therein lies your dilemma, and that’s the problem with letting everything in. How do I attach weight to it when really it is just a letter?
MR HARPER: Well, in the absence of any challenge to say that no, this is not from the Serbian Society of Autism we’re entitled to say to your Honour that yes, it does come from those people. Your Honour might say the English is not terrific and a little bit unclear in some patches and because of that - - -
FEDERAL MAGISTRATE: Well, I imagine there would have been another way of doing it wouldn’t there? Wouldn’t you have gone on the internet?
MR HARPER: A lot of the material on the internet from Serbia is in Serbian.
FEDERAL MAGISTRATE: I accept that but I am happy to accept that your client made inquiries and she got a letter back from the Autism Society of Serbia but I cannot accept that that is what the level of services are. I just can’t because it’s completely uncorroborated and it is an important issue.
MR HARPER: I can’t take that any further.
FEDERAL MAGISTRATE: I’ll allow it in, Ms Gillies. It’s admissible but the weight I attach to it is as I’ve said, unless something else comes up. That’s the weight, that your client made her inquiries and got a letter back from those people. [Emphasis added]
In this appeal the father asserts that her Honour fell into error by in fact relying on the contents of the letter from the Serbian Society of Autism (referred to by her Honour as the “Autism Society of Serbia”) without giving the father the opportunity to be heard.
It was conceded by the respondent mother in this appeal that there was nothing else which occurred following the interaction between the father’s counsel and her Honour, as set out above, which might have alerted the father to the possibility that her Honour had changed her mind as to the status of the subject document in the hearing. That is, her Honour relying on the contents of the letter to establish the truth of some or all of the facts asserted therein.
As stated earlier the learned Federal Magistrate found at paragraph 202 of the judgment:
The mother’s annexure to her affidavit is the only evidence I have of the availability of autism services in Serbia. It is a compelling document none the less. That document satisfies me that there are appropriate day care centres and pre schools for the child, and mainstream and specials [sic] schools for the child. It satisfies me that there are sufficient facilities such as counselling, speech and other therapies available for the child. As [X] was born in Serbia, he will have no problem accessing those resources.
At paragraph 204 her Honour stated:
Ms Gillies submitted the mother’s evidence regarding the services available in Belgrade for autistic children was not first hand. However, the mother is unable to take [X] out of the country and she cannot leave him for any lengthy period in anyone else’s care at this time and thus I am at a loss as to how she could return to Serbia and obtain this information first hand.
It appears that her Honour may have misunderstood what was being put to her by the father’s counsel. What was clearly intended by the submission was not that the mother should personally return to Serbia for the purposes of obtaining information first hand. That would have been of no benefit at all, as her recitation of the information obtained would be purely hearsay and again, be subject to a determination of the weight, if any, which might be given to such hearsay evidence. What was clearly being alluded to was that an appropriately qualified expert could or should give evidence as to the availability of services in Belgrade, Serbia for the child were he and his mother to reside in that city.
We have previously in these reasons set out passages from her Honour’s judgment which illustrate the way in which her Honour took into account the contents of the document from the Serbian Society of Autism. We conclude that her Honour fell into error by relying upon (giving real weight to) the contents of a document which she had stated was unreliable and which should, in the circumstances of the case, have been given no weight. The learned Federal Magistrate clearly understood the importance of making a finding as to the facilities available to the child in Serbia to accommodate his autistic condition.
Having determined that there was an error it falls for consideration as to whether the particular error was crucial to the determination by her Honour that the mother be permitted to relocate the child and herself to Serbia.
Considering the importance of paragraphs 338 to 344 of her Honour’s judgment we conclude that her Honour’s finding at paragraph 340, that “I am satisfied that the services available for autistic children in Belgrade are commensurate with those in Australia”, was pivotal to her Honour’s determination. We are further satisfied that the only material available to the learned Federal Magistrate which could have led to that conclusion was the contents of the letter from the Serbian Society of Autism which was Annexure H to the affidavit of the mother sworn 4 September 2008. That annexure could not properly have provided an evidentiary foundation for so concluding.
In reaching our conclusion, we have not overlooked the contents of paragraph 244 of the learned Federal Magistrate’s reasons which recorded: “I cannot make a positive finding that the Serbian services are comparable or superior to those available in Australia. However, I do not say I need to make such a finding.”
What then follows in paragraph 245 needs to be considered. There her Honour said:
What has most satisfied me on this issue is the mother’s parenting capacity. The mother has parented this child to a high level despite considerable obstacles being her isolation in living in Australia, her cancer and her child’s significant disabilities. This mother will never place her own interests above what is in her son’s best interests. The mother has displayed this attitude and conduct time and time again whilst living in Australia. [X] has and will always come first in her priorities.
Although not clearly stated, we take her Honour to be suggesting that the mother’s parenting of the child has been of very high quality and consequently, her Honour can rely on the mother to seek out the best available services in Serbia to assist the child with his autism when she returns. It cannot be assumed that such seeking out would necessarily result in those services being found. Their existence was a live issue in the proceedings before the learned Federal Magistrate. It is possible that, despite the mother’s best endeavours, and good intentions, the services available for autistic children in Belgrade are not commensurate with those available in Sydney. With respect to her Honour, the matters recorded in paragraph 245 could not properly constitute findings of fact with respect to such services.
In any event, assuming that we are correct in interpreting what her Honour was stating in paragraph 245, it can be seen by the contents of paragraph 340 (as set out earlier herein) that her Honour did in fact proceed to determine that the services available for autistic children in Belgrade are commensurate with those in Australia. In the circumstances of this case, it appears her Honour used the word “commensurate” to mean “of a similar standard and of a similar availability to the child and the mother”.
Although we make no criticism of the learned Federal Magistrate, we note with regret that there was no Independent Children's Lawyer appointed for the child. We have not been provided with transcript from earlier mentions of the case in the Federal Magistrates Court. We thus have no understanding of whether the subject of the appointment of an Independent Children's Lawyer was ever raised by the parties before the Court or by her Honour with the parties.
In relation to ground 5, the appellant’s case is that there was no admissible expert evidence in relation to the effect of changes to [X]’s therapy or day care from [H], the pre-school in [A].
Each of the parties could have obtained the evidence. Alternatively, and preferably, the evidence could have been obtained through a Court appointed single expert.
Clearly the parties individually did not obtain evidence which was important, if not crucial, to the decision to be made by the learned Federal Magistrate. Again, this aspect of the conduct of the case raises the advisability of proceeding to trial in a case of this nature without the assistance of an Independent Children's Lawyer.
In the submissions made on behalf of the mother it was suggested that the father could have called expert evidence in relation to the child’s autism, treatment and prognosis. If it is thus asserted that the father should have called evidence from an expert in relation to the services available to autistic children in Serbia, we would reject that submission. It was the mother’s proposal that she and the child live in Serbia, and it was thus her primary obligation to provide evidence which would support her case.

Ground 2

Ground 2 is:
That the learned Federal Magistrate erred in not finding that the mother’s illness with thyroid cancer is a factor that mitigates against the child relocating to Serbia.
This ground relates to a finding by her Honour at paragraph 63 of the judgment as follows: “The mother seems to have recovered from this cancer and her health is good.”
The evidence before the Court as to the mother’s health was contained in a letter and report attached to the mother’s affidavit as Annexure F. The annexure is referred to in paragraph 28 of the mother’s affidavit. The whole of paragraph 28 and/or the annexure was the subject of objection raised by the father. The father also objected to the words in paragraph 26 of the mother’s affidavit, being “I understand that my prognosis is good…” Counsel for the father made it clear that she objected to the medical report (Annexure F) and to the words above referred to. Her Honour’s determination of the objection was, “I know, but that’s the basis of her understanding of her own health. People are entitled to give their own opinion of their own state of health.” (Transcript, 22/09/08, p.4)
Ultimately this appeal does not turn on this ground. However, we would not wish it to be thought that we agree with her Honour’s determination of the objection. The subject proceedings were children’s proceedings commenced after the commencement of Division 12A of the Act. Sections 69ZT(1) and 69ZT(2) have the effect, as applied to this case, of allowing the learned Federal Magistrate to accept into evidence the letter dated 2008 addressed to Ms Jennifer Weate (the solicitor for the mother) from Dr C. It then fell to the learned Federal Magistrate to determine the weight, if any, to be given to the contents of the letter thus admitted.
If it were not for the provisions of sections 69ZT(1) and 69ZT(2) the document under discussion would not be admitted into evidence without the learned Federal Magistrate exercising a discretion based on other considerations. One of those considerations could have been the availability of Dr C for cross-examination on the contents of the letter.
It seems to us to follow from the provisions of sections 69ZT(1) and 69ZT(2) that if a document is admitted to evidence which would otherwise not have been admitted, had all of the parts and divisions of the Evidence Act 1995 (Cth) (“the Evidence Act”) been applicable to the case, it is incumbent on the trial judge to specify what weight, if any, has been given to the subject document and why.
This case does not require the Court to consider at large the operation of Division 12A of the Act.
Considering the letter of 2008 from Dr C, we are satisfied that, in the circumstances of this case, her Honour was entitled to give considerable weight to the contents of the letter. The author’s credentials are clearly stated on the letter. The information in the letter is very specific and related to the mother only. The opinion of Dr C is concise and readily understandable. The words “However, her over-all prognosis remains very good” convey a message which to any reasonable lay person would lead them to conclude that the illness suffered by the mother and reported on by Dr C is in remission and/or contained and is unlikely to impact upon the mother’s general health in the future. We have not been referred to any other evidence which militates against the acceptance of Dr [C]’s prognosis.
In determining the weight to be given to the evidence in the letter from Dr C, the Court would take into account that whilst she was not made available for cross-examination, the father did not seek that Dr C be made available for cross-examination.
Having considered the contents of the subject letter from Dr C of 2008 we are of the opinion that the learned Federal Magistrate has not erred in the manner complained of in ground 2. Whereas we understand the submission on the part of the father that her Honour was not entitled to conclude that the mother’s health “is good” she was entitled to conclude that the mother’s “overall prognosis remains good” in relation to the diagnosis of thyroid carcinoma.

Ground 4

Ground 4 of the appeal is:
That the learned Federal Magistrate erred in placing little weight on the importance of the child’s ongoing relationship with his father and extended paternal family given his autism and the problematic health of his mother.
In the submissions supporting this ground the father indicated that the evidence before the Court established he was involved in the child’s life on a weekly basis. Further, the child had involvement with the extended paternal family.
It is clear from the judgment in a number of different paragraphs that the learned Federal Magistrate was very much alive to the prospect that the relationship between the child and his father would probably be substantially lost if the child returned to live in Serbia with the mother. Her Honour made it clear that she understood it was unlikely the father would be able to reside in Serbia and further, that his financial circumstances were such that it would be unlikely he could visit Serbia more frequently than every second or third year.
The mother’s proposal was that she would return the child to Australia on one occasion each year for four weeks. The father submits that her Honour did not scrutinise that proposal and consider how realistic it was. The evidence from the mother was that she would use the child support payments to pay for the travel to and from Australia on each occasion. The evidence further established that the amount of child support being paid by the father was not a large sum of money but rather $2,400 per annum. Her Honour had evidence as to the cost of airfares to Australia. The mother said that $3,000 would be sufficient to cover the airfares to and from Australia. In addition, she would need $250 to $300 per week for accommodation and she would need money to otherwise support herself and the child while they were in Australia.
The mother’s evidence was that she would contribute towards the cost of the travel expenses from her income in addition to the savings which she could make in relation to the child support.
We conclude that her Honour was entitled to reach a conclusion that on the balance of probabilities, the mother would be able to travel to Australia with the child on a yearly basis.
Given the totality of the reasons provided by her Honour we are not convinced that the learned Federal Magistrate placed little weight on the importance of the child’s ongoing relationship with his father. On the contrary, we are satisfied that her Honour clearly understood the importance of that relationship.

Ground 7

Ground 7 is:
That the learned Federal Magistrate erred in accepting the mother’s uncorroborated evidence that domestic violence and sexual assault was perpetrated by the father on the mother.
With respect to the appellant, we consider the submissions supporting this ground are misdirected. To the extent that it is submitted that the mother’s allegations of “horrific domestic violence” could only be accepted if objectively corroborated, we do not find that any such requirement exists. Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission. We have not been referred to any authority in support of such a proposition.
In the subject case there is an underlying unstated submission by the appellant that in relation to the alleged rapes by the father of the mother she had available to her the avenue to complain to the police and/or subject herself to medical examination. That clearly did not take place at the time of the alleged incidents.
The victims of domestic violence do not have to complain to the authorities or subject themselves to medical examinations, which may provide corroborative evidence of some fact, to have their evidence of assault accepted. Clearly if they do so it is evidence which may assist the court in determining an allegation.

In the context of this case, her Honour’s description at paragraph 30 of the allegations made by the mother as being “serious allegations of physical and sexual abuse perpetrated against her by the father” were available conclusions based on the evidence before her.
At paragraph 36 her Honour stated: “The mother describes quite horrific physical and sexual abuse by the father against her.” She thereafter set out details of the allegations made by the mother.
At paragraph 194 her Honour said, “Although I am not tasked with making positive findings whether or not the father behaved as asserted by the mother, I accept that the mother is fearful of the father and cannot communicate with him.”
At paragraphs 265 and 266 her Honour said:
265.I am unable to make a finding that the father perpetrated the specific acts of violence alleged by the mother upon her, particularly the two incidents that she said were rapes.
266.What I do find is that the mother believes this is what the father has perpetrated upon her by his actions and conduct and she has told this story consistently to her psychologist, the police, other health professionals, her family and in her affidavit.
If by the abovementioned determinations the learned Federal Magistrate meant that the evidence before her was insufficient to enable her to make a positive finding that the violence alleged by the mother occurred then we would find no error in such a statement. There is no ground of appeal or cross-appeal which seeks to challenge such a determination. We are concerned, however, about the suggestion in paragraphs 194, 265 and 266 of her Honour’s judgment that she might feel in some way constrained, by law, in being able to make a positive determination in relation to allegations of violence in parenting cases even where the evidence satisfied her, on the requisite standard, that the violence had occurred as alleged. In M and M (1988) 166 CLR 69 the High Court stated:
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters `reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
The above passage from the High Court is sometimes quoted to support an argument that it is unnecessary for a trial judge to make positive findings in relation to allegations, inter partes, of assault and other serious matters of domestic violence. Consequently the Court is urged not to allow any exploration of any such allegation. A close reading of the decision makes it apparent that is not what fell from the High Court.
It is clear from the decision of the Full Court in A v A (1998) FLC 92-800 that, in appropriate cases, it may be important to make findings of this nature if they are available and necessary to determine what is in the best interests of the child. It is important to note that A v A was not a case where allegations of abuse of children was made. The allegation was that the father had attempted to murder the mother. The Full Court said in A v A:
3.22 We consider that his Honour's approach was inappropriate. Whilst it is correct to say that the Family Court is not a criminal court, and that its primary task is not to determine guilt or innocence, that is entirely different from an approach which declines to examine that issue at all. The whole emphasis of the decision of the High Court in M and M is its identification of the essential issue in cases of this sort as being whether the evidence establishes “an unacceptable risk”.
It needs to be remembered that M and M (supra) was a case involving an allegation that the child had been sexually assaulted. The decision in A v A (supra) recognises that although the issue in that case was whether violence was perpetrated by the father on the mother, a finding confirming the violence does not preclude the Court concluding an “unacceptable risk” to the children in the family. Consequently the availability of a finding of “unacceptable risk” to a child is not restricted to cases where an allegation of sexual, physical or psychological abuse of children is established.
Clearly, the more serious the allegation the greater degree of certainty in relation to making the finding is required. As Dixon J set forth in Briginshaw v Briginshaw (1938) 60 CLR 336 at p.362:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequence flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
Again in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 the High Court said at 170: “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.”
In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition & Consumer Commission [2007] FCAFC 132 at 31 the Full Court of the Federal Court, when referring to the judgment of Dixon J in Briginshaw (supra), said the judgment of his Honour, as often quoted in relation to the standard of proof in civil cases, “appositely expresses the considerations which s 140 of the Evidence Act now requires a court to take into account.”
In the Full Court decision of Re W (Sex abuse: standard of proof) (2004) FLC 93-192 the Court stated:
15.In WK v SR(1997) FLC ¶92-787; 22 FLR 592 the Full Court (Baker, Kay and Morgan JJ) examined the application of the principles set out in M and M to a situation where the trial judge had found that the father had sexually molested both his step-daughter and his own daughter. The Full Court said at FLC at 84,691, 84,694-84,695; Fam LR at 599, 602-603:
“26. However, the evidence of ZH was in fact the core evidence relied upon by his Honour in order to substantiate the allegations of abuse against the father. Given the gravity of the allegations raised by the evidence, and the Court's duty to apply a rigorous civil standard of proof pursuant to the test enunciated by the High Court in Briginshaw (supra) and restated in s 140 of the Evidence Act 1995 (Cth), her evidence needed to be very carefully evaluated.
...
46. It is clear therefore, that a finding that abuse has occurred can only be reached by a strict application of the onus of proof as set out in Briginshaw. Section 140 of the Evidence Act 1995 (Cth) has adopted this test as follows:
‘140(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.’
47. In children's matters under Part VII of the Family Law Act, where the issue is a child's contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s 140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
48. This is a matter which must be specifically borne in mind by a Court which is exercising jurisdiction under Part VII of the Family Law Act. When exercising its jurisdiction under this Part, the Court's paramount consideration must be the best interests of the child, in accordance with s 65E. The application of this overriding factor often allows the admission into evidence of material which would otherwise be excluded if a rigid application of the rules of civil evidence were followed. Furthermore, when deciding what orders are in the best interests of a child, a trial Judge may often be confronted with a multiplicity of issues and facts. In these circumstances, evidence which, for example, is relevant and probative in relation to the question of an unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incident of abuse has in fact occurred.”
An allegation of rape is an allegation of a serious criminal offence. Trial judges will, in most circumstances where allegations of serious criminal offences are made, choose to have all the provisions of the Evidence Act apply to the determination of the issue, as provided for in section 69ZT(3). Her Honour was required to apply the civil standard of proof, as set out in section 140 of the Evidence Act, when making any finding.
A finding by a trial judge in a children’s case under the Act that a party has assaulted another party or a person can have significant impact on the findings made on the matters the Court is required to consider under section 60CC of the Act. The provisions of sections 60CC(2)(b), 60CC(3)(f),(i),(j) and (m) would require a consideration of the impact of any finding of fact as to violence perpetrated by a party seeking a children’s order.
The best interests of a child the subject of an application for a parenting order must require that the Court determine relevant allegations of violence where that can be done. The consequence of placing a child under the supervision and/or care of a person who has been violent may be far reaching and very detrimental to the child’s welfare. The more serious the allegation of violence the more important it will be to the child to investigate and determine the allegation. As stated earlier we regard an allegation of rape by the father of the mother to be a very serious allegation which should, if possible, be determined.
It is important, in our view, not to confuse what has been said by the High Court and the Full Court as to the obligations on a trial judge to make positive findings of fact in relation to allegations of abuse or sexual abuse against a child where parenting orders are sought and where the test to be applied is “unacceptable risk”, with the circumstance in a parenting case where allegations have been made of domestic violence and/or assault by one party upon another. In the latter case it will be necessary for the Court to make findings where the evidence enables that to be done.
Finally, in relation to this ground we note what fell from the Full Court in the decision of Oakley & Cooper [2009] FamCAFC 133 at 68:
We also think it important to record that while s 3 of the Federal Magistrates Act1999 (Cth) includes in the objects of that Act that the Court operate as informally as possible in the exercise of judicial power and use streamlined procedures, those objects must be carefully balanced against the need to ensure that children’s proceedings conducted under the Act where serious allegations of violence are raised are not unduly truncated, and opportunity is afforded, particularly to an ICL, to adduce evidence of appropriate protective or therapeutic programs or measures likely to avoid or minimise, as far as possible, the risk of harm to the children the subject of the proceedings where family violence affecting a child is identified. The allegations may be so serious that the proceedings should be transferred to the Magellan list in the Family Court of Australia. Also relevant in the context of this discussion are the provisions of Division 12A of Part VII of the Act. We draw attention to the principles to be applied in interpreting this Division including in particular s 69ZN(5), and certain provisions of the division which enable proceedings to be conducted in a manner appropriate to the matters in issue (see in particular s 69ZQ(1), and s 69ZX(1)).

Ground 6

This ground is:
That the learned Federal Magistrate erred in accepting the evidence of Dr S which did not include any evidence or input from the father.
Her Honour set out the matters she drew from the evidence of Dr S in paragraphs 117 through to 125 of her reasons.
At paragraph 118 her Honour said:
Dr S’s evidence causes me difficulty in that she has only ever seen the mother and, consistent with established practices, has accepted the history as told by the mother. Thus forensically disputed issues cannot be determined on the basis of her one sided report.
Thereafter the learned Federal Magistrate set out what she felt she could accept from the evidence of Dr S bearing in mind the reservation stated at paragraph 118.
At paragraph 125 of the judgment her Honour found she could accept the following from the report of Dr S:
“It is my opinion that [X]’s long term welfare is critically interlinked with his mother’s welfare”.
No submission made by the appellant asserts that the admission into evidence of the affidavit of Dr S was opposed. It is to be remembered that the provisions of sections 69ZT(1) and (2) of the Act applied to this evidence. Considering those matters, the ground must be seen to attack the application of weight by the learned Federal Magistrate to that evidence. Her Honour clearly identified a matter which might impinge on the amount of weight she could give to the evidence. With that in mind we cannot see that her Honour has erred in application of weight to the evidence of this witness.
When the whole of her Honour’s reasons are considered it is clear that the evidence she referred to in paragraph 125 of the judgment was a very important ingredient in reaching her ultimate conclusions.
Although the learned Federal Magistrate clearly did rely upon the evidence of Dr S significantly, we are satisfied that there was a considerable quantity of other evidence upon which her Honour was clearly entitled to rely which could have brought her to the conclusion she ultimately reached in relation to the connection between the welfare of the child and the welfare of the mother. We are therefore not convinced that the learned Federal Magistrate fell into error as suggested by the ground.

Conclusion

In conclusion, having determined that her Honour was in error as detailed by us earlier, we are left to determine the orders to be made by this Court.
When submissions were invited from the parties as to the orders which should be made if the appeal was allowed, each submitted that a new trial was the appropriate order to make. We agree with that submission and in the circumstances will order a retrial. However, the question as to the orders to operate pending the conclusion of the retrial falls for consideration.
Subsequent to the conclusion of the hearing before us the parties were invited to consider if it was possible for them to agree upon orders which could operate as interim orders pending the retrial. Clearly, the parties have been able to make suitable arrangements for the child following the orders made by the learned Federal Magistrate on 23 December 2008 and the subsequent stay of Order 3 of those orders.
In response to our request, the parties provided a copy of a consent order which they intend should be filed in the Federal Magistrates Court. That order, when made by that Court, will provide as follows:
By consent pending further order the Court Orders:
1.That Order 2.6 of the Orders of the Federal Magistrates Court of Australia of 1 November, 2007 be and is hereby discharged.
2.That the child [X] born in 2005 spend time with the father each weekend from Saturday at 11 a.m. to Sunday at 4 p.m.

As the parties have agreed on interim orders to operate pending the retrial in this matter there is no need for us to require further submission from the parties or make any further order.

Costs

Each of the parties sought the issue of a cost certificate pursuant to sections 6, 8 and 9 of the Federal Proceedings (Costs) Act1981 (Cth) if the appeal was successful.
We have considered the financial circumstances of the parties as provided to us by the parties. The appellant was not in receipt of legal aid for the appeal; however, the mother was.

In the circumstances we conclude that the cost certificates sought by the parties should be granted.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 3 November 2009