ATKINSON & ATKINSON
[2017] FamCAFC 266
•13 December 2017
FAMILY COURT OF AUSTRALIA
| ATKINSON & ATKINSON | [2017] FamCAFC 266 |
| FAMILY LAW – APPEAL – INTERIM PARENTING ORDERS – Whether assessment of risk available – Challenges of weight given by the primary judge to the evidence – Whether the primary judge followed the legislative pathway set out in Part VII of the Family Law Act 1975 (Cth) – Whether the primary judge should have appointed a single expert – Whether findings available given the evidence was untested – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Application for order for costs made by the mother and the Independent Children’s Lawyer – Where the appellant has been wholly unsuccessful – Impecuniosity not a bar to an order for costs – Application for costs by the respondent mother granted – Application for costs by the Independent Children’s Lawyer granted. |
| Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3), 117 |
| AMS v AIF (1999) 199 CLR 160 |
| APPELLANT: | Mr Atkinson |
| RESPONDENT: | Ms Atkinson |
| INDEPENDENT CHILDREN’S LAWYER: | Mark Whelan Lawyer |
| FILE NUMBER: | PAC | 4343 | of | 2013 |
| APPEAL NUMBER: | EA | 57 | of | 2017 |
| DATE DELIVERED: | 13 December 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
JUDGMENT OF: | Thackray, Ryan & Johnston JJ |
| HEARING DATE: | 13 December 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 May 2017 |
| LOWER COURT MNC: | [2017] FamCA 274 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Johnston |
| SOLICITOR FOR THE APPELLANT: | Kheir Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Hill |
| SOLICITOR FOR THE RESPONDENT: | Fay Rose Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Stolier |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mark Whelan Lawyer |
Orders
That the appeal be dismissed.
That the appellant father pay the respondent mother’s costs of and incidental to the appeal, fixed in the amount of $4,246.
That the appellant father pay the Independent Children’s Lawyer’s costs of and incidental to the appeal, fixed in the amount of $4,466.
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 Atkinson & Atkinson 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 57 of 2017
File Number: PAC 4343 of 2013
| Mr Atkinson |
Appellant
And
| Ms Atkinson |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Ryan J
Introduction
Mr Atkinson (“the father”) appeals against all interim parenting orders made by Foster J on 3 May 2017 pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”). The orders relate to the parties son X (“the child”) who was born in July 2013.
The child’s mother, Ms Atkinson (“the mother”) seeks to uphold the orders.
The interim orders provide for the child to live with the mother (order 2) and that she have sole parental responsibility for him (order 1). After a period of one month, the child will commence spending two hours per week with the father, supervised by a contact centre (order 5). A number of ancillary orders were also made to facilitate the father’s time with the child.
The parties have been engaged in parenting litigation since the child was eleven months old. The catalyst for the interim proceedings was the failure by the father to return the child to the mother’s care on 21 April 2017 after a fortnightly weekend visit.
On 24 April 2017 the mother filed an Application in a Case seeking a recovery order and parenting orders along the lines of those made. The father sought orders for the child to live with him and for the mother to spend time with the child supervised at a contact centre. As will probably be apparent from the nature of the orders sought and made, the parties made serious allegations about the other, said to constitute an unacceptable risk of harm to the child which could only be addressed by an order for supervised time. In broad terms the mother alleged the father engaged in a pattern of fallacious allegations of physical abuse by her of the child such as to constitute emotional abuse and that he posed an unacceptable risk of exposure to family violence. The father denied having been violent to the mother and said she engaged in ongoing physical abuse of the child. The one thing upon which the parties were agreed is that an order for sole parental responsibility was appropriate, the only question being in whose favour it should operate.
On 27 April 2017 the proceedings were transferred from the Federal Circuit Court of Australia to the Family Court of Australia. The matter was heard by Foster J on 2 May 2017 with judgment delivered the following day. At this hearing an Independent Children’s Lawyer (“ICL”) was appointed to represent the child’s interests. Although the ICL did not participate in the interim hearing, the ICL participated in the appeal and seeks that the appeal be dismissed.
The appeal will be dismissed.
Background
So as to provide context to the appeal, it is necessary to record some brief background facts.
The parties married in April 2012 and separated in September 2013 when the child was less than three months old. Following separation, the child lived with the mother. Parenting proceedings were commenced by the mother in May 2014 after the father retained their then 11 month old child.
In July 2014 interim orders were made which provided for the child to live with the father for four nights a week and with the mother for three nights per week.
After a defended hearing, final orders were made by Judge Harman on 2 September 2016. The orders provided for the mother to have sole parental responsibility for all major issues concerning the child, that the child live with her and spend time with the father on two consecutive nights per fortnight, moving to alternate weekends (three nights) when the child commenced school. Further, order 5 restrained the father from “presenting [the child] to any counsellor, psychologist or medical practitioner” except in an emergency. The context for making order 5 will become apparent later in these reasons.
The father appealed these orders. In March 2017 and by consent the Full Court allowed the father’s appeal, and discharged orders 2, 3 and 4; namely, the live with and spend time orders. All other orders, including order 5, were undisturbed.
Following the appeal the child remained in the mother’s primary care and spent alternate fortnights with the father, with changeover supervised at the B Contact Centre. As was mentioned after the father failed to return the child on 21 April 2017, the mother filed the application which resulted in the interim orders under appeal.
It is uncontroversial that in breach of order 5, the father has taken the child to various doctors alleging mistreatment by the mother. He has also made allegations to Police that the mother mistreated and abused the child. Notwithstanding more than 110 attendances on doctors, the “father adduced[d] no objective evidence of any concerns as to the child arising from such attendances [29].
It is helpful to point out at this stage that the only challenge made to his Honour’s findings concerning the results of the extraordinary number of medical examinations and Police attendances is that the report of Dr D of the attendance on 20 April 2017 showed “resolving bruises over the right forehead” and the child said “mummy hit me”. Although the counsel of perfection would justify a minor qualification to [29] it needs to be understood that this evidence sits in stark contrast to the father’s claims about this injury recorded at [45].
The primary judge was satisfied that the ongoing presentation of the child to doctors and the police amounted to child abuse [83].
While noting that issues such as allegations of family violence and parental capacity would need to be determined at the final hearing, the ratio of his Honour’s decision can be found in the application of s 60CC(2)(b) of the Act at [94]:
“the child (and indeed the mother) needs to be protected from the father’s conduct that continues to expose the child to conflict between the parents by reason of the father’s lack of insight into the damage being done by his ongoing conduct in investigation and complaint on baseless grounds”.
The Grounds of Appeal
At the outset, it is worth emphasising that these are interim orders made without the benefit of the evidence having been tested. This much was acknowledged by the primary judge, who at [71] cited Marvel & Marvel(No 2) (2010) 43 Fam LR 348:
120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing…
Further, this is an appeal against a discretionary judgment, which is to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. It is well settled by authority that an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds involving conflicting assessment of matters of weight (Gronow v Gronow (1979) 144 CLR 513 at 520).
The father raised nine grounds of appeal. They can be conceptualised as asserting error by the primary judge in that he:
·Failed to apply the legislative pathway outlined in Part VII, including s 60CC and the requirement to make orders in the child’s best interests, which resulted in a substantial injustice to the father (grounds 2 and 5);
·Made findings not supported by the evidence, took into account irrelevant evidence and/or failed to take into account or give appropriate weight to relevant evidence (grounds 1, 3, 4, and 8);
·Focused on the erroneous findings in respect of the father’s conduct rather than the child’s best interests (ground 6);
·Made findings of abuse which should not have been made in an interim hearing and/or without a report from an expert (ground 7); and
·Made orders that destroy any chance of the child having a meaningful relationship with the father, and negate any chance of the father’s application for final orders succeeding (ground 9).
No submissions were made in support of ground 6 and it need not be considered further.
Before I discuss the grounds of appeal it is necessary to point out that the primary judge was in the unusual (and fortunate) position of having a significant body of evidence produced by credible agencies, such as police and the contact centre, which contained contemporaneous observations of the child, relevantly when it was claimed the child showed injuries that the father attributed to the mother. Further, there was a large body of medical evidence which was relevant to the assessment of the reliability of the allegations made by the father.
Did the primary judge apply the statute correctly?
The gravamen of grounds 2 and 5 is that the primary judge failed to give any or adequate consideration to the provisions of s 60CC(3) of the Act and the legislative requirement that orders be in the best interests of the child, which in turn led to substantial injustice against the father. There is no challenge to his Honour’s statement of applicable law, it is its application that it said to be erroneous.
The primary judge discussed the law applicable to interim parenting orders and made findings in relation to it from [71] – [108].
Critically, when discussing s 60CC(2)(a), the benefit of the child having a meaningful relationship with both of his parents, the primary judge said of the impact of the father’s actions on the child’s relationship with the mother:
92.For the child to have an ongoing meaningful relationship with the mother it is apparent from the father’s conduct that the child needs significant relief from the father’s ongoing engagement of the child in what the father perceives to be forensic complaint and investigation. There is a grave suspicion that should the child continue to have unsupervised time with the father that he will continue as he has done before, in breach of ongoing court orders, to engage the child in medical examination and intervention and ongoing complaint about the mother.
93.This consideration is overwhelmingly indicative of the child being restored to the mother’s primary care and for the child to have a significantly limited relationship with the father so as to protect the child from ongoing abuse by the father.
As has already been mentioned it was the application of s 60CC(2)(b), protection from harm, which was pivotal to the decision and which is set out earlier in these reasons.
As to the s 60CC(3) sub-sections, these were canvassed at [96] – [107]. While each sub-section was not explicitly canvassed, those that were relevant were. His Honour did not need to consider those that were irrelevant (Banks & Banks (2015) FLC 93-637; SCVG & KLD (2014) FLC 93-582). In the context of this case, the approach of the primary judge is sufficient where he said:
98.Many of the [s 60CC(3)] considerations await a fuller investigation in the context of a final hearing. Some relevant observations are set out below.
Otherwise, the father’s submission that the primary judge failed to consider s 60CC(3)(f), the parenting capacity of the parties, in light of [103] cannot be sustained. The primary judge said at [103]:
As to parental capacity, a determination ultimately will depend upon the final hearing, the opinions provided to the Court by an agreed Chapter 15 expert and the Court’s ultimate determinations at trial. At present the father presents with a significantly diminished capacity and insight particularly as to the child’s emotional needs.
No doubt his Honour also had in mind the observations of the family report writer, of which at [66] the primary judge said:
As a result of observations of the father and the child the family reporter expressed concerns about the father’s presentation. She expressed the view that if the father is controlling of the child and/or prioritises his needs above the child’s a particular concern would be the lack of opportunity for the child to achieve differentiation of self, which is significant in identity development. A failure to achieve differentiation of self can have a detrimental impact on self-esteem, independence decision-making capacity, reality testing, emotional and/or psychological well-being and their capacity to form healthy adult relationships.
And also [67] where in relation to the mother his Honour summarised the effect of the family report writer’s evidence as follows:
…Yet on the other hand the observations of the mother with the child were generally positive.
I find no fault in the approach of the primary judge. These grounds fail.
Challenges against the primary judge’s finding and weight given to the evidence
The primary issues in this matter were the nature of the risks each party alleged the other posed to the child and the effect on the child of changing his circumstances yet again. There is no doubt that the primary judge placed real weight on observations and reports produced by third parties. The question posed before us was whether the primary judge went too far in using these records to justify various findings that the father’s accusations of mistreatment of the child by the mother were “false” and other findings of that ilk. In this regard counsel for the father focused on the findings of falsehood made at [45] – [47], [49] and [61].
In coming to the view that there was an unacceptable risk that the child (and the mother) needed to be protected from, the primary judge considered (in addition to the parties evidence) the following exhibits:
· Documents from the B Contact Service;
· Documents from the NSW Police Force;
· Documents from Dr C and the Suburb E Medical Centre, regarding the child’s visits from May 2014 to July 2016;
· Medical records from Dr D from April 2017;
· Reports from Dr D and Ms G from April 2017; and
· Family Report dated 23 February 2015.
Evidence from Dr C and the Suburb E Medical Centre established that between May 2014 and July 2016 the father took the child to a doctor more than 110 times, which the primary judge noted was during a period in which the child was spending four nights a week with the father [26].
Evidence from NSW Police and referred to by the primary judge from [33] – [36] and [43] – [50] established that the father made complaints to Police about the mother on 26 September 2016, 23 October 2016, 25 October 2016 and 20 April 2017 alleging that purported injuries on the child were caused by the her. The complaints were investigated and led to a number of welfare checks at the mother’s home and the child’s day care centre. The gravamen of his Honour’s findings is that NSW Police consistently concluded that there was no veracity to the father’s claims, and that “this matter appears to be a family law court battle the father constantly making claims that the child is being supervised by an irresponsible mother”. On one occasion, NSW Police examined the child’s body, and recorded that the child was in “fine condition and good health. No signs of bruising or abuse were evident”. None of these matters is challenged.
The primary judge gave some weight to the Family Report, which was considered at [62] – [70], in particular that the observations of the child with the mother were generally positive. The report writer also noted the close relationship between the child and the mother’s children from another relationship, who were 15, 12 and 8 at the time. There is no doubt his Honour was entitled to have regard to those observations.
As has already been noted, the father was restrained from taking the child to medical professionals other than in an emergency. His Honour was clearly concerned that the father took the child to a new doctor, Dr D on 19, 20, 21 and 27 April and 1 May 2017 and that he showed Dr D footage of the child being distressed when the father told him he had to return to the mother’s home. Dr D referred the child to a child psychologist and the father and child attended on Ms G on 29 April 2017.
The father made a further report to NSW Police on 20 April 2017, the day before he failed to return the child to the contact centre. Police records showed that the father told the child to say “mummy hit you”, however the child did not do so and appeared to play happily with his toys. His Honour recorded that in deciding to take no further action, police noted that it “seems highly likely that the father is attempting to coach the child into saying the mother harmed him”.
As to the events of 21 April 2017, the primary judge considered the evidence of contact centre staff and records of NSW Police and found that the father made false reports about injuries purportedly sustained by the child, that NSW Police had advised him to retain the child if he had concerns about the child’s safety, and that Police were investigating the child’s injuries and looking to lay charges against the mother [45] – [47].
In regards to the evidence of Dr D, the primary judge found this to be of “little utility” as the child had only just begun seeing him, was reliant on the father for the child’s history and sought no input from the mother [51] – [52]. Similarly, the primary judge found that the evidence of Ms G that the child may have a fear of the mother’s home to be of “little utility in the context of the background circumstances” [56], referring to the other evidence of the father’s conduct.
It is clear that there was ample evidence by reference to which the primary judge could find it necessary for the child to be protected from the father’s relentless presentation of the child for examination and of complaints to police.
Error as alleged by the father is not made out.
Did the primary judge’s erroneous findings infect the reasoning process?
I agree with the submission by counsel for the father that the findings of falsity against the father were ill-advised and ought not to have been made in this interim hearing (see SS & AH [2010] FamCAFC 13 at [88] (“SS & AH”)). But that is not the end of the matter, for just as the similarly ill-advised remarks did not result in a successful appeal in SS & AH, I am satisfied that these findings do not undermine the essential integrity of the decision. This is because the reasons demonstrate that the primary judge carefully analysed the large volume of evidence before him which provided ample justification for the findings as to the risks the father posed to the child and the child’s relationship with the mother. It is those findings that provide the ratio for the decision and not the findings as to falsity.
I think it appropriate to approach these impugned findings in the same fashion as ultimately prevailed in SS & AH. That is to recognise that this judgment was given in a busy court, in response to an urgent application and within 24 hours of the hearing. As was said in SS & AH at [98]:
Had His Honour the luxury of reflecting on his remarks it would be reasonable to expect that he would have expressed himself with greater circumspection on the controversial matter.
To overturn the decision on the basis of the falsity and abuse findings would, in this unusual case, be to take the “pernickety” approach cautioned against by Kirby J in AMS v AIF (1999) 199 CLR 160 at 211.
Should the primary judge have appointed a single expert before the making of interim orders?
It is the father’s case that the lack of contemporaneous, independent evidence assessing the child’s physical and emotional wellbeing by a court appointed expert led to the primary judge making orders that were unsafe.
This ground can be dealt with swiftly. First, as has been well canvassed, the orders were made after careful consideration of evidence such as police reports, medical evidence and evidence from the contact centre. The primary judge also had the advantage of, and considered, the Family Report prepared for the previous parenting proceedings.
Secondly, there was no requirement for the primary judge to appoint a single expert and further delay the proceedings, especially when the father did not make such an application. His Honour can hardly be said to have erred by failing to do something he was not asked to do (Metwally v University of Wollongong (No 2) (1985) 158 CLR 447).
Thirdly, the mother’s application was for a recovery order after the father retained the child. The application demanded a prompt response and in my view an adjournment for in all probability many months would not have been in the best interests of the child. Indeed the approach for which the father contends may itself have constituted error (see Ghorbani v Saeed [2013] FamCAFC 167)
There is no merit in this ground of appeal.
The father’s ongoing relationship with the child
It is the father’s contention that the orders destroy any chance of the child having a meaningful relationship with his father, who has been his primary carer for most of his life.
The father’s claim that he has been the child’s primary carer for most of his life was not established to my satisfaction. In any event, the interim orders enable the father to continue to spend time with the child, albeit in a supervised setting until the evidence can be tested at the final hearing. As the primary judge made clear, given the father’s disregard for orders, supervised time was the only way in which the child’s relationship with the father could be protected while simultaneously ensuring the child was protected from the father’s behaviour.
His Honour did not err in the manner alleged.
The father has not established error and I would dismiss the appeal.
Johnston J
I agree with the reasons and proposed order of Ryan J.
Thackray J
I too agree with the reasons and order of Ryan J. The order therefore will be that the appeal be dismissed.
Costs
The applications before the Court now are those of the mother and the ICL seeking costs in relation to the father’s appeal which has just been dismissed. The ICL seeks $4,466 and the mother seeks $4,246. We are informed that both the mother and the ICL are legally aided and they make this application in accordance with an obligation imposed upon them by the Legal Aid authority to seek to recover the very modest amount of costs that they are seeking today.
The basis upon which the applications are made is that the appeal has been wholly unsuccessful, having been dismissed, as it lacked merit.
Section 117(1) of the Act provides that each party to proceedings under the Act “shall bear his or her own costs”, but this is subject to subsection 2 which provides that if, in proceedings under the Act, the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to various subsections but particularly here subsection 2A, make such order as to costs as the Court considers just. Section 117(2A) goes on to provide that in considering what order if any should be made under s 117(2), the Court shall have regard to a variety of factors. The most significant of those factors that is relied upon here, as I have already said, is the fact that the father has been wholly unsuccessful.
In seeking to meet the applications for costs counsel for the father asserts, on the basis of his instructions, that the father is impecunious. He tells us that the father’s own costs of the appeal are in the region of $30,000, of which the father, notwithstanding his impecuniosity, has been able to find the funds to put around $14,000 into trust to cover counsel’s fees, but we are told that the solicitor will have to wait for the balance of his payment.
It is well accepted in this Court that impecuniosity is no bar to an order for costs, perhaps especially in appellate proceedings where a party seeks to challenge, as in this case, an order of the primary judge which has been found to be an order made appropriately and without appealable error.
Another relevant statutory provision to which I referred in the course of argument, is s 117(4) which provides that in proceedings in which an ICL has been appointed, if the court considers that a party to proceedings would suffer a financial hardship if the party had to bear a proportion of the costs of the ICL, the court must not make an order under subsection 2 in relation to those costs.
In this case, in my view, it is appropriate that the father meet the costs of the mother. The father’s appeal, as we have found, was entirely without merit, notwithstanding one reasonable argument mounted on his behalf by counsel. In these circumstances, I would place greater weight on the lack of success than on the alleged impecuniosity of the father.
The issue relating to the ICL is more difficult as there is a higher bar to meet, but it is for the father to satisfy us that he would suffer financial hardship in circumstances where he has been prepared to promote the appeal, knowing that it was going to cost him $30,000 and having come up already with $14,000. In these circumstances, I am not persuaded that the father would suffer financial hardship by being required to meet the ICL’s costs. Just as terms might be reached with his own lawyer to pay off the balance of his legal costs, terms might be reached in relation to the payment, perhaps by instalments, of the amount that would be owing to the ICL.
For those reasons, I would order that the father pay the costs sought by the ICL in the sum of $4,466 and by the mother in the sum of $4,246.
Ryan J
I agree with the presiding judge and have nothing to add.
Johnston J
I agree with the reasons for judgment of the Honourable Justice Thackray and the orders his Honour proposes
Thackray J
There will be orders accordingly.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Ryan & Johnston JJ) delivered on 13 December 2017.
Associate:
Date: 13 December 2017
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