BANGI & BELOV
[2017] FamCAFC 5
•3 February 2017
FAMILY COURT OF AUSTRALIA
| BANGI & BELOV | [2017] FamCAFC 5 |
| FAMILY LAW – APPEAL – CHILDREN – Where the father appealed final parenting orders that the child live with the mother – Where the father alleged the orders were based on inconsistent findings and findings not supported by the evidence – Whether the trial judge failed to give adequate weight to the family consultant’s view about the mother’s parenting capacity – Whether the trial judge erred in the weight she gave to the family consultant’s evidence – Where the mother did not respond to evidence as to risk in the child’s living circumstances and this evidence was accepted by the trial judge – Where the family consultant was not aware of this evidence when he made his recommendations – Where the trial judge erred in the weight she gave to the family consultant’s evidence in these circumstances – Appeal allowed. FAMILY LAW – COSTS – COSTS CERTIFICATES – Where there was no order as to costs made – Where the appeal succeeded on errors of law – Costs certificates ordered for the appellant for the appeal and rehearing. | |
| Family Law Act 1975 (Cth) s 60CC |
Federal Proceedings (Costs) Act 1981 (Cth)
| APPELLANT: | Mr Bangi |
| RESPONDENT: | Ms Belov |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 850 | of | 2012 |
| APPEAL NUMBER: | EA | 56 | of | 2015 |
| DATE DELIVERED: | 3 February 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Murphy and Cronin JJ |
| HEARING DATE: | 13 September 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 March 2015 |
| LOWER COURT MNC: | [2015] FamCA 206 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Givney |
| SOLICITOR FOR THE APPELLANT: | Adams & Partners Lawyers |
| THE RESPONDENT: | No appearance by or on behalf of the respondent | |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Berry | |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Bankstown Family Law |
Orders
The appeal be allowed.
Paragraphs 3 and 4 of the orders made on 27 March 2015 are set aside.
The parenting proceedings under the Family Law Act 1975 (Cth) be remitted for rehearing by a judge other than the Honourable Justice Hannam.
There be no order as to the costs of the appeal pursuant to s 117 of the Family Law Act 1975 (Cth).
The Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (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 to the costs incurred by him in relation to the appeal.
The Court grants to the appellant father a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (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 such part as the Attorney-General considers appropriate of any costs incurred by the appellant father in relation to the rehearing.
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 Bangi & Belov 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 56 of 2015
File Number: SYC 850 of 2012
| Mr Bangi |
Appellant
And
| Ms Belov |
Respondent
REASONS FOR JUDGMENT
On 27 March 2015, Hannam J made final orders in parenting proceedings between Mr Bangi (“the father”) and Ms Belov (“the mother”). The proceedings concerned their only child C, born in 2006.
The father appeals against those orders which provide for the child to live with the mother (order 3) and spend time with the father in a fortnightly cycle from after school on Thursdays to before school on Mondays during one week and from after school on Thursdays to before school on Fridays in the alternate week (that is, five out of 14 nights) and for half of school holiday periods. The father had sought orders that the child live with him and that the mother have weekend time but this time build up over a period of weeks. His case was that the child was at risk of harm in the mother’s care, principally because when she had been drinking, she was violent.
The mother represented herself at the trial but her participation was limited to the first five of a total of nine days after which, and without explanation, she did not return. She did not participate in this appeal at all.
The father also sought orders for “joint parental responsibility” while the mother sought sole parental responsibility. The trial judge ordered equal shared parental responsibility.
The mother’s case was that the child was at risk of harm in the father’s care. She filed a response in May 2012 which sought sole parental responsibility, that the child live with her and, that “no time be allowed” with the father. That position altered variously during the trial. Her formal position as indicated by her affidavit filed on 26 May 2014 was:
114. After successful sessions with [Dr V] I will let [the father] to spend with [the child] every second Sunday.
…
116. Maximum, I am agree to give [the child] and [the father] to spend time together unsupervised every Sunday.
(As per original)
Subsequent to the parties’ separation in August 2011, the father had been excluded from the child’s life for two years. The trial judge found that the mother orchestrated that exclusion. In 2012, after proceedings had been commenced in the Federal Magistrates Court, and in an effort to resurrect the relationship of father and son, an order was made for the mother to take the child to a psychologist, Dr V, for therapy. The mother was not cooperative in that process and at times did not comply at all.
On the first day of the trial which began in July 2014, the mother’s position about what time the child should spend with the father changed again when she told the trial judge that she would agree to the father spending time with the child “every second Sunday”. However, it would seem that she intended any time to be under supervision (transcript of proceedings, 14 July 2014, p 6). Three days later, her position again altered and she told the trial judge that if the Court accepted the evidence of the court-appointed therapist, Dr V (who by that time had recommended unsupervised time), she would accept that. By the fifth day of the trial (the last day of the mother’s attendance), she still maintained the father’s time should be restricted.
The grounds and arguments
The father was given leave to rely upon an amended Notice of Appeal, an unsealed copy of which had been provided to the mother. He sought the discharge of the orders of Hannam J and now seeks in lieu orders that:
·the father and the mother have equal shared parental responsibility for the child;
·the child live with the father;
·the child spend time with the mother from after school on Friday until before school on the following Tuesday in each alternate week and for one half of all school holiday periods; and
·the mother be restrained from bringing the child into contact with her partner, Mr GG (an order the trial judge declined to make and which is not the subject of any specific ground of appeal).
However, it was conceded that if the father succeeded on the appeal, there would have to be a retrial because of the time that has elapsed and the need for current evidence about the child’s circumstances.
The father’s Notice of Appeal contains three “grounds” with various sub‑grounds which are of little assistance. Having regard to the way the appeal was argued, we understand the father’s argument can be summarised as follows:
a)The orders were not in the child’s best interests because they were based on inconsistent findings or findings not supported by the evidence including in particular, a positive finding in favour of the mother about her parenting capacity which was contrary to other findings;
b)In finding that, as the mother was the child’s primary attachment figure, he should not be placed with the father, her Honour failed to give adequate weight to the family consultant’s (unflattering) view about the mother’s parenting capacity and personality issues; and
c)As the family consultant’s evidence about the child’s attachment was given without the benefit of all of the evidence as to the mother’s conduct and the consequential risks of harm to the child, her Honour erred in elevating that factor above all other matters favourable to the father and critical of the mother and made orders which were not in the child’s best interests.
The second and third of the arguments just outlined might be seen to confront the appellant with a difficulty emerging from principles expounded by familiar High Court authorities governing appeals from discretionary decisions. The appellant’s counsel frankly acknowledges those difficulties, the appeal will not succeed if the challenges amount to nothing more than an assertion that this Court would or would not attach weight to evidence different to that attached by her Honour. However, the arguments are not so confined.
The challenge to the weight given to the family consultant’s evidence proceeds from an assertion that the opinions at the centre of his evidence were not based on the totality of evidence accepted by her Honour and, in the absence of the availability of that evidence to him, it was not open to her Honour to give his evidence the weight which she did.
As a specific instance of that, the family consultant’s opinions about the child’s attachment to his mother and the asserted trauma to the child if he was removed from her care (which lie at the heart of determinative findings made by her Honour) were not balanced by the family consultant against evidence accepted by her Honour as to the child’s current environment and the lack of exercise of parental responsibility and risk to the child evident within it. As a consequence it is again said that it was not open to her Honour to give the family consultant’s evidence the weight which she plainly did.
In a similar vein, the arguments as to inconsistent findings are not challenges to the weight which her Honour attached to those findings per se but, rather, an assertion that her Honour’s ultimate conclusions were not open to her given the findings upon which they were based, including asserted contradictory findings. As the argument progressed that argument focussed on her Honour’s finding that the mother would not in the future thwart the child’s time and relationship with his father. It is contended that this conclusion by her Honour was not open to her by reason of the findings which her Honour had otherwise made.
Each and all of those arguments render it necessary to place her Honour’s findings in the context in which they were made. That context included not only allegations of sexual abuse by the father which her Honour found had no foundation but also allegations of him assaulting both her and the child. Again, her Honour found that neither had any foundation. In that respect, her Honour’s findings were consistent with the findings of state courts which found no substance in charges of assault and domestic violence brought by the police upon the complaint of the mother.
It is necessary to look at the allegations and counter-allegations of the parties before her Honour in some detail.
The allegations in overview
As can be seen, each party asserted that the child was at risk in the care of the other. The trial judge rejected the mother’s assertions about the father which included that he had been violent to her and the child, but also that the child was at risk of sexual abuse by the father.
Contrary to those assertions which were found to be without foundation, her Honour found the father to be a competent parent. Significantly, her Honour found that the mother lacked credibility and that she had been violent to both the father and the child. It was the father’s case that when the mother had consumed alcohol, she was aggressive. The mother denied the allegation but her Honour accepted that there was evidence of both aggression and assaults by the mother during the parties’ relationship.
The father also produced cogent and accepted evidence concerning the period after separation, to the effect that the mother had begun a new relationship within which the child was living, where he was exposed to incidents of drunkenness on the part of the mother’s partner, lack of parental responsibility by the mother, and also violence between the mother and her partner.
Based on the mother’s allegations of violence against the father, charges were laid against him accompanied by applications for state family violence orders. In all cases, the charges and the applications for family violence orders were dismissed by the state courts. Her Honour heard the same allegations again, and with the same effective outcomes. The circumstances giving rise to the mother’s allegations, which her Honour found had been orchestrated by her, became pivotal to how the father lost contact with the child for two years.
The mother had also been uncooperative about family therapy despite a court order to participate and had actively sought to keep the child away from the father including refusing a request by a family consultant to bring the child along to assess him in the presence of the father during the preparation of a family report.
Against the background of those important findings, her Honour accepted that removal of the child from the mother would be traumatic for him and that in any event, in her Honour’s view, the proceedings and orders had given rise to a change of attitude by the mother such that the mother would permit (or perhaps would no longer thwart) the father having a relationship with the child.
The father attacks the consistency of the findings of the trial judge in deciding the central issues. He points to all of the findings which were in his favour as against most of, if not all, the findings which were against the mother. The father asserts that her Honour’s inconsistent findings lead to a conclusion that there was not a proper evidentiary foundation for the orders and accordingly, they were not in the child’s best interests. For the reasons that follow, we agree with the father.
The child’s interests were represented by an Independent Children’s Lawyer. At trial, her Honour rejected that lawyer’s proposal that the child should move to a shared cared or week-about arrangement once school began in 2016. On appeal, the Independent Children’s Lawyer did not support the father’s appeal nor seek any alteration to the determination of the trial judge, maintaining that the father’s challenges were matters of the weight to be applied to various findings. For the reasons that follow, we disagree with that view.
The nature and extent of the mother’s allegations
This was a difficult trial in which there were not only serious allegations of family violence but also serious (and her Honour accepted, unfounded) allegations of sexual abuse against the father made by the mother.
The mother’s allegations against the father were twofold. First, she alleged, he was physically violent and abusive to her in that he had:
·pushed and hit her “on a regular basis” including hitting her on the side of the head, grabbing her by the hair, and striking her such as to cause bruising;
·kicked over a bucket of water in anger and threatened her with a knife saying he was going to kill her;
·yelled at, and insulted her, including calling her a “slut”; and
·accused her of infidelity and taken her mobile phone in an endeavour to see to whom she had spoken.
Secondly, her allegations relating to the child were that the father had:
·struck him with a belt and an open hand;
·punched him;
·yelled abuse at him including calling him “stupid”; and importantly,
·sexually abused him.
The mother asserted that the father’s violence towards the child caused difficulties in the child’s development when he was three years of age, relevantly that the child did not speak and was underweight. Her Honour at [141] found there was no evidence to support those allegations.
In not accepting that the father had sexually abused the child, her Honour described the mother’s allegations in the following terms:
123.The mother also alleges that the father has improperly sexually interfered with [the child]. In her affidavit she says that from the time the family moved to [Suburb S] (agreed as 2010) the father insisted on having [the child] sleep in his bed every night even though [the child] had his own bedroom and bed. She says that she was very worried about [the child’s] wellbeing and safety while he was sleeping with the father. She also says that when she began living at the refuge in [Suburb BB] from 7 February 2012 she received a number of “warnings” from the school about [the child’s] behaviour which she also observed at the refuge. The mother describes [the child] as constantly going to people and hugging them and whilst hugging them he would “feel all over their bodies and he would touch their private areas”. She says the school was worried about this and spoke to her about counselling for [the child]. She says that she then came to realise that “maybe” the father had been abusing [the child] when they slept in the same bed. Under cross-examination as to this issue the mother confirmed she is of the view that the father molested [the child] when he was asleep and said that the father should not have overnight time with [the child] as she is worried the father would molest him again.
Her Honour found that school records did not address the child’s asserted misbehaviour and there was no evidence produced by the mother from the refuge where the sexualised behaviour was said to have been seen. At [179] and [181], her Honour found that she was not satisfied the father posed any risk of harm to the child either physically or psychologically.
Even after the trial began, the foundation for the mother’s opposition to overnight time was said to be her belief that the father had sexually abused the child and that he might do so in the future. Her Honour’s findings were unequivocal; there was no evidence of a risk to the child in the father’s care.
Findings about credibility
Her Honour expressed concern about the mother’s credibility “generally” at [126], then went on to say:
127.There is an internal inconsistency in the mother’s evidence as to a critical issue. In the email to the father on 16 December 2013 the mother said she would allow [the child] to spend time with the father “every weekenz [sic] and soon” and she told the Family Consultant in May 2014 that she would be willing for [the child] to begin immediately spending time with his father which could build up over time. At the hearing, however, she maintained that she currently had a fear that the father would molest [the child] if [the child] spent time with him overnight.
Indeed, a careful reading of the judgment shows that most of the very many findings made by her Honour were made contrary to the assertions and allegations made by the mother.
By way of contrast, her Honour went on to find that the father “in general” was a more credible witness (at [146]) and that there was no suggestion that the child had been neglected by the father (at [181]). Indeed, her Honour found the father was a capable parent as follows:
205.Although there may have been some concerns about the father’s parenting some time ago, there is no evidence to suggest that he is not a capable parent. [Dr V], who has spent significant time facilitating the relationship between [the child] and his father, is of the opinion that there are no concerns about the father’s capacity to parent [the child]. The Independent Children’s Lawyer also does not raise any concerns about the father’s capacity and proposes an equal shared arrangement.
Her Honour found that before separation and whilst in the father’s care, the child had participated in cultural festivals and other activities related to his heritage. The child had also travelled to Country X on at least one occasion with his father without the mother. The mother had also travelled overseas, leaving the child in the care of the father after the time when the various violent incidents were said to have occurred. She gave no explanation as to why, if she was so concerned, she would have left the child with the father.
Also inconsistent with the mother’s allegations of fear of the father was the fact that when she was having difficulty with a new partner (Mr GG), she sought assistance from the father and apologised for her past behaviour. As her Honour noted at [144], the mother wrote “[b]e human and remember we were family. I am sorry, I hurt you, not going to repeat again…”. Her Honour considered that particular conduct to be inconsistent with any fear of violence.
Even the subject of the mother’s use of an interpreter during the trial caused her Honour to doubt her credibility. Although English is not the mother’s first language, the trial judge found her dishonest on the subject of her lack of proficiency in the language. It was her Honour’s view that the mother’s insistence on using an interpreter was designed to convey that she was in some way disadvantaged in the proceedings, a concept her Honour rejected.
the criminal proceedings brought against the father
Although the mother did not expressly say so, it was uncontroversial that the parties’ relationship came to an end in August 2011. At separation, she and the father agreed that he would care for the child every week from Sunday night until the following Friday afternoon and that the child was only to spend weekends with her. All of that changed in February 2012, when, after five months of those agreed arrangements, the mother unilaterally took the child from his school and disappeared. On the day before doing so, she went to a police station and reported the child as missing. That complaint was entirely mischievous; she knew at all times where the child was.
The mother went into refuge accommodation claiming that she was frightened of the father. He remained unaware of the child’s whereabouts until the then Federal Magistrates Court made a location order. In that court in May 2012, the father sought time with the child and the mother opposed it. In responding to the father’s application, the mother, who had legal representation, argued there should be no time with the child relying on her allegations of violence.
Prior to that May 2012 hearing, and notwithstanding that the parties had been separated since the previous August, the mother made a complaint to police resulting in assault charges being laid against the father. The police also sought a domestic violence order on her behalf.
In July 2012, the assault charges were heard in the Local Court but judgment was reserved until November 2012. In the intervening period, on 22 August 2012, the father’s parenting application came on before the Federal Magistrates Court.
Against the background of the unresolved criminal charges, an order was then made by a federal magistrate for the father to spend time with the child under supervision at a contact centre. That order would have enabled the child to resume a relationship with his father. However, in September 2012, police charged the father with further offences but this time, they related to assaults on the child, all of which were said to have occurred prior to separation. On an interim basis, the police obtained a family violence order for the protection of the child which had the effect of excluding contact by the father.
As the trial judge observed at [129], the laying of the charges accompanied by the interim family violence order stifled the August 2012 order not only in respect of the father having time with the child under supervision at a contact centre but also his participation in therapy organised with Dr V. As we have earlier observed each and all charges against the father were dismissed as were the domestic violence orders. Her Honour found that the mother’s actions and “timing” were strategically designed to thwart the father’s relationship with the child. As would seem obvious, her Honour found that her actions in this respect reflected badly on the mother’s credibility.
We observe that those same actions, and the resolution of the proceedings in the state courts are directly relevant to the primary considerations found in s 60CC of the Family Law Act 1975 (Cth) (“the Act”), but also, significant additional considerations including, for example, “the attitude to the child” (s 60CC(3)(i)) and the mother’s “capacity to provide for the … needs of the child, including emotional … needs” (s 60CC(3)(f)). We also observe that the s 60CC considerations should be applied with the Act’s objects which prioritise both “the benefit of both … parents having a meaningful involvement” with the child consistent with their best interests and also “ensuring that parents fulfil their duties, and meet their responsibilities” towards the child.
Of those same allegations of violence against the father both in relation to the mother and as to the child, her Honour found:
133.The mother’s allegations are generally extremely broad and non‑specific and in most cases it is not clear exactly what she alleges. Although she describes the father being “physically violent … pushing and hitting on a regular basis” and describes him as “attacking” or “abusing” her, at times she uses these words interchangeably with the father “insulting” or “upsetting” her.
134.It is clear from the mother’s evidence that she did not contact police in relation to any of the incidents in which she says she was harmed. While the failure to make a complaint to police does not of itself indicate that the assaults did not occur, in this case the mother on her own version of events was aware of an ability to make complaints to the police about family violence and on occasions she did so. For example, she says that on 14 December 2006 when the husband became upset at her and yelled and insulted her she telephoned the police and police later attended the parties’ home.
Her Honour also found the mother’s allegations of assaults inconsistent with hospital records because the mother reported minor issues such as insults but not “more serious physical assaults”.
As for the allegations that the father had struck the child, her Honour observed that medical records indicated the child had not been taken to a doctor other than by the father during the relevant time and no observations about injuries or violence were noted.
Thus, of the allegations against the father, consistent with the findings of two state magistrates, her Honour said this:
145.In summary, the mother makes particularly serious allegations of violence said to have been perpetrated by the father against herself and [the child]. In my view, having regard to the matters relating to the mother’s credibility set out above, the timing of the complaints, the absence of corroboration where it may be expected and the mother’s behaviour which is inconsistent with genuine concerns that would arise if the complaints were true, I am not satisfied to the requisite standard that the father assaulted the mother or [the child] as alleged.
Allegations against the mother
Whilst much of the focus of the trial was on the allegations made by the mother against the father, her Honour also had to deal with allegations of violence made by the father against the mother both in respect of himself and the child. Her Honour made the following findings:
146.So far as the father’s allegations against the mother are concerned, I am satisfied that the mother was aggressive towards him as alleged and assaulted him on two occasions, in August 2007 and in November 2009. On both occasions the father sought medical advice and in general he was in my view a more credible witness. Further, there is some corroboration from other witnesses […] concerning the mother’s aggressive behaviour. I am also satisfied that there was one occasion where the mother inappropriately physically punished [the child] by hitting him with a belt as alleged by the father in December 2011.
The family consultant’s evidence
In addition to the evidence of the court-ordered therapist Dr V, her Honour also had the benefit of the opinion of a child and family consultant Mr II. On two occasions, orders were made for reports to be undertaken by Mr II.
The first interview was in October 2013 at which the mother said that the father had no parenting skills and no emotional attachment to the child. She alleged the father had been violent and accordingly did not want him to have a relationship with the child. When the child was interviewed, he said he did not want to see his father. After interviewing the father, Mr II wanted to interview the child for a second time to assess whether it was appropriate to observe the child in the company of the father but the mother refused to co-operate. The family consultant reported that the mother had her solicitor contact him. The solicitor gave a variety of explanations for the mother not producing the child including the child’s tiredness and even inclement weather suggesting that the child would be brought in when another interview could be arranged some months later.
At that time, despite the court order, the mother had not been attending Dr V and the family consultant recommended that the therapy should resume. In his October 2013 report, the family consultant also said that if the mother was wilfully alienating the child from the father, the court might consider placing him with the father.
In January 2014, when the parenting dispute was set down for trial, Watts J ordered that stalled therapy resume with Dr V as the mother had not been complying. Watts J also ordered an update of the family report of Mr II. The interviews for this updated report were undertaken in May 2014 and the report was dated June 2014.
Of the mother’s later position as expressed to the report writer in May 2014, her Honour noted that the child had been attending the therapeutic sessions with Dr V as had the father on a number of occasions; that is, the mother had been compliant with the order of Watts J.
The mother told the Family Consultant in May 2014 that she was happy and quite impressed with the father and said that the child “leaves quite happily to attend the sessions with Dr [V] and returned quite happy from them” (at [69]). Having regard to the 2013 report of the family consultant in which he said that evidence of alienation might justify a change of residence, the evidence of this intervening period is important. The evidence of what happened between October 2013 and May 2014 was a foundation for her Honour’s view that the mother had had a change of attitude about the involvement of the father in the child’s life.
The 2014 family report also addressed what the family consultant saw as the positive changes to the relationship between the child and the father. Ultimately, the family consultant recommended that the child “primarily live with the mother” and spend “substantial and significant” time with the father.
The family consultant was required for cross-examination. He was challenged about whether he felt that if the child remained living with the mother, she would have “the ability” to encourage a relationship with the father. The family consultant’s response was that he was “uncertain” (transcript of proceedings, 15 July 2014, page 5 lines 30-34).
The family consultant was also asked about the impact on the child if he went to live with his father. The response was that he could only see potential disadvantages because of the closeness of the relationship with the mother. The family consultant thought the child would experience a sense of loss and feel unsettled. He went further and said it would be a “traumatic” move for the child and had to be “considered really, very carefully” (transcript of proceedings, 15 July 2014, page 6 lines 11-12, 32-33).
With that expressed cautionary position in evidence, the family consultant was asked by counsel for the father about his 2013 position of the removal of the child from the mother if she maintained her position of excluding the father. The family consultant said that what had been said in October 2013 had been “an option” rather than a recommendation. He opined that even if the mother was obstructive, there would have to be “other factors” to justify such a change. Those, he described as follows:
… a parent who had deficits in their direct parenting often based on something of the order of a personality disorder which is likely to have a very long term impact on that child, on that child’s mental health. And I mention that because those are the factors that in the literature and elsewhere one would need to take into account because they would suggest abusive relationships, emotionally abusive relationships and other serious deficits in parenting. So it’s that order of deficit that I’m talking about, not moving from home to home.
(Transcript of proceedings, 15 July 2014, page 17 lines 17-23)
The family consultant was then asked about conduct of the nature that the father alleged as against the mother. That was suggested to include drunkenness, cruelty to the child, hitting him with a belt and making unreasonable demands on him. As is apparent from the transcript, the family consultant hesitantly said that if that was found, the option of a change of “custody” could be considered. Only some of those factual matters were found by her Honour, but at that time, the only evidence of what was happening in the mother’s life was from the mother and her partner Mr GG. The later, unchallenged evidence of Mr JJ, which, crucially, her Honour accepted, was to the effect that at that very time of the trial violence was occurring in the mother’s home and there was poor supervision of the child. Alcohol was present even if, as her Honour found, the mother was not intoxicated.
By reference to all of the then known evidence, the family consultant maintained that the child was primarily attached to his mother and his recommendation about any change remained the same.
When her Honour came to deal with the issue of the child’s attachment and whether there were circumstances justifying him living with the father, she said:
189.Although it is some time since the Family Consultant made his assessment, he was not shaken in his opinion that [the child’s] primary attachment is with his mother. The Family Consultant described the relationship between [the child] and his mother as close and said that it would be traumatic and confusing for him if there were a change in living arrangements and he were to primarily live with his father. The Family Consultant was of the view given this relationship, that there would be no advantages to [the child] under this arrangement and that he could only see potential disadvantages.
…
193.The Family Consultant’s evidence, to which I attach significant weight having regard to his expertise and consistency with Dr [V’s] evidence, favours final orders along similar lines to the current interim orders, that is, [the child] living with his mother and spending substantial and significant time with his father.
The father attacks those findings on the basis that there was a “void” in the evidence not so much because of the time gap between the observations of the child and when her Honour delivered judgment in March 2015 but because of the evidence he produced from Mr JJ highlighting the risks to the child in the mother’s care to which there was no response by her.
The relevance of the alcohol and violence findings
Central to the father’s case at trial was his allegation that when the mother consumed alcohol, she became violent. The trial judge accepted the father’s evidence that he and the child had been the subject of the mother’s aggression and it was the father’s evidence that alcohol was involved in those cases.
Her Honour made two findings about the father’s allegations relating to the time that the parties were together. They were:
95.I am not satisfied on the balance of probabilities that the mother misuses alcohol to a significant degree or that her alcohol use has a negative impact upon her parenting. Whilst it may have been the case that the mother was drinking excessively in the early years of the parents’ relationship, there is no dispute that the mother was diagnosed with Hepatitis B from about early 2009 and reduced her alcohol consumption from this time. There is no evidence other than the father’s assertion that throughout 2009 to the date of separation in February 2012 the mother was regularly intoxicated. In my view, it is of significance that the father’s brother who stayed with the family for three months during this period and generally gives very negative evidence about the mother does not refer to her alcohol use.
But later:
97.I am satisfied that there was significant conflict between the parents when they were living together and some of the incidents between them […] may have involved the mother being intoxicated. However, I am not satisfied that she has been regularly intoxicated since her diagnosis of Hepatitis B or that her parenting of [the child] has been adversely affected by her alcohol misuse.
Of the “incidents” her Honour found that the mother was aggressive towards the father and on two occasions assaulted him. Her Honour also found on one occasion the mother inappropriately physically disciplined the child with a belt (at [146] as quoted in these reasons at [47]).
Thus, there was an evidentiary foundation for the father’s claim that the child was at risk in the mother’s care.
As for the period after separation, it will be remembered that the father was excluded from the child’s life so he knew little about the mother’s personal and environmental circumstances. Not long before the trial commenced, the mother began living with Mr GG.
In the first five days of the trial, the mother and Mr GG gave evidence that they were sharing the responsibilities of the daily care of the child and in particular, getting him to school. In July 2014, they described coordinating the child’s early mornings including arranging his breakfast and getting him to school which Mr GG described as being only two minutes away. Mr GG described taking the child to school at “5 to 9” because the mother had left for work at 7.30 am. He said “and if I’m not present, one of our friends very, very rarely would do so” (transcript of proceedings, 18 July 2014, page 15 lines 29-30).
The mother had begun to live with Mr GG in June 2013 and she said that the child was very happy around him. The family consultant had no opportunity to make any observations that addressed that assertion.
In giving her evidence, contrary to the father’s asserted concern about the mother’s consumption of alcohol and consequent violence, she portrayed a picture of domestic bliss with Mr GG as mentioned below. During cross‑examination of the mother, the father’s accusations of alcohol abuse were put to her. One such incident concerned her being affected by alcohol in December 2011:
[THE MOTHER]: No. It’s never happened, that – this.
MR GIVNEY: That you were drunk?
[THE MOTHER]: Never.
MR GIVNEY: Never?
[THE MOTHER]: Never
MR GIVNEY: Never drunk, is that your evidence, Madam?
[THE MOTHER]: Yes, yes, I never – I don’t drink.
MR GIVNEY: Right. You don’t drink.
[THE MOTHER]: No.
(Transcript of proceedings 17 July 2014, page 117, lines 3-19)
To the extent that it might be thought that, as English is not the mother’s first language (she having been born in Country D), she may not have understood what was being suggested, we consider that the finding of the trial judge about her credibility unequivocally answers that. The mother’s denial about consuming alcohol was made on 17 July 2014. On the following day, the trial adjourned part-heard for several weeks.
In the absence of the mother’s return in September 2014, the trial judge was told that the mother had requested an adjournment by email but no reason was given for its basis. Her Honour rejected the adjournment but gave the mother an opportunity to attend by further adjourning the hearing indicating that if she did not come on the next occasion, the hearing would resume in her absence. The transcript shows the father indicating to her Honour that he wanted to re‑open his case and introduce some new evidence (of Mr JJ) arising out of what the mother had said in evidence on 17 July 2014. He was to be called not to corroborate the father’s evidence about the mother’s abuse of alcohol but rather to rebut what she had said in evidence in July.
In October 2014, despite having been served with Mr JJ’s evidence, the mother again failed to appear. Her Honour permitted the father to re‑open his case and call the new evidence. The evidence was plainly important and all the more so in light of the mother’s failure to attend the resumption of the trial.
Despite the absence of the mother, but knowing her position about wanting the father to have limited time with the child, her Honour made interim orders to enable the child to spend overnight time with his father for the first time. It was brought to the attention of her Honour that even at that point the mother was not being compliant with orders. In making submissions about what interim orders should be made, counsel for the Independent Children’s Lawyer told her Honour that the child had not been taken to Dr V and accordingly, requested an order that the mother recommence that therapy. Her Honour so ordered. Until the adjournment of the proceedings in July, the mother’s position had been that the child was happy going to, and coming from, the therapy.
In November 2014, when the trial resumed, the mother again failed to appear. Mr JJ gave evidence. He rebutted, if not debunked, the mother’s evidence about alcohol use and her claim of harmony in her household. When giving evidence in July, the mother had acknowledged there had been an “incident” with Mr GG but she dismissed it as a “slight argument”. Her Honour observed of that “slight argument”:
148.… the father relies upon the text messages sent by the mother in December 2013 […] the mother sent a text message on 22 December 2013 at 11.45 pm requesting the father’s help to find a place for her and [the child] to live as they could not stay at Mr [GG’s] home any more. It is also not in dispute that the mother’s lawyer advised the Independent Children’s Lawyer that the mother admitted to some “slight arguments with her present partner” but regrets sending the text message and is in a loving relationship with Mr [GG] and that they happily reconciled the same evening.
The evidence of Mr JJ showed a very different picture marked by arguments, drunkenness and lack of attention to the needs of the child. As the mother did not return to the court, the evidence of Mr JJ was not challenged by the mother but he was still required for, and was cross-examined by counsel for the Independent Children’s Lawyer.
Mr JJ had been a boarder in the mother’s home. He moved there in April 2014 and left on 29 July 2014. The mother’s trial affidavit was filed in May 2014 and she had been cross-examined in the middle of July 2014. Mr JJ was therefore living in the mother’s home when the trial was adjourned in July 2014. He moved out because of a violent incident between the mother and Mr GG which caused him to call the police.
In direct contradiction of the mother’s evidence that she did not drink alcohol, Mr JJ deposed to her regular consumption of alcohol and of her being involved in violent confrontations with Mr GG “arguing and fighting on numerous occasions” and describing two serious conflicts where he considered calling the police. He described Mr GG running behind the mother in May 2014 during a fight and the mother saying that she was too scared to go up to her own bedroom. She wanted to stay with Mr JJ for the night. He said that Mr GG had tried to “choke” the mother on an occasion in July and described colourful and violent language as well as damage being done to the house.
Thus, Mr JJ described more than just “slight arguments”. He spoke of Mr GG drinking alcohol every day and on one occasion having said “[C] is not my son, so I don’t care at all about him.”
The evidence of Mr JJ is entirely consistent with the allegations of the father about what had occurred in their relationship when alcohol was involved and the mother’s consequential violence. There was no suggestion that Mr JJ knew the father or had any prior relationship with him.
At [149], her Honour found the argument that the mother had with her partner Mr GG in December 2013 was not a “slight argument”. At [165], she found that Mr GG drank excessively on occasions and had caused the mother to feel frightened to the extent that she had called the police “from time to time”. The unchallenged evidence of Mr JJ was that the child was living in the household and that must be so because the father’s time with the child was then restricted.
Based on the evidence of Mr JJ, at the time when the mother was participating in the court hearing and swearing to a picture of harmony and an absence of violence in her household, a number of incidents of violence to which Mr JJ referred had occurred. According to Mr JJ, in one incident, the mother painted the word “Fuck” on a glass sliding door from a paint tin kicked over in a fracas with Mr GG. Mr JJ reported that he called police when the mother asked him to save her because Mr GG was trying to “kill” her.
At [192], her Honour dealt with Mr GG and his role in the child’s life by reference to evidence of the family consultant:
The Family Consultant did not assess the relationship between [Mr GG] and [the child]. I do not attach much weight to the mother’s assessment of their relationship but there is no particular evidence to suggest that it is poor.
Yet, crucially, not only had the family consultant not assessed the relationship between Mr GG and the child, he had not been made aware of Mr JJ’s evidence. The family consultant was not recalled so as to have put to him the impact of Mr JJ’s evidence if it was accepted in whole or part by the trial judge.
Contrary to the evidence of the mother and Mr GG, Mr JJ observed that Mr GG had little to do with the child. Conflicting with what the mother and Mr GG said, Mr JJ described the mother asking him to take the child to school and Mr GG not being available because he left for work at 6.00 am most days. Where Mr GG had given evidence of friends taking the child “rarely” to school, Mr JJ said that it was he who was taking the child but if he could not take him to school, the mother would ask “tradesmen” to do so. He observed the child making his own breakfast including climbing on a stool to use a microwave. He also recalled an occasion when he found Mr GG drinking alcohol in the morning.
In the context of Mr JJ’s evidence about the home environment, the mother’s absence from the final part of the trial was significant. Her Honour said:
128.The mother’s failure to participate in the proceedings on the four occasions on which the matter has been heard since July 2014 without explanation and, in particular, her failure to give any evidence about her current domestic circumstances does not reflect well upon her.
Her Honour expanded on that saying:
165.On the basis of the uncontradicted evidence of Mr [JJ] I am satisfied that from time to time Mr [JJ], a tenant in the mother’s house, provided some assistance to the mother, especially in taking [the child] to and from school at the mother’s request. I am satisfied that on occasions [the child] was not adequately supervised given his age and that strangers, such as tradesmen, also assisted in taking [the child] to school. I am also satisfied that Mr [GG] drinks excessively on occasions and has caused the mother to feel frightened and that she called the police from time to time.
The findings about the child being at risk
The father maintained throughout the trial that the child was at risk in the mother’s care. Of that, her Honour said:
206.The father has maintained at all times that there are concerns about the mother’s capacity to meet [the child’s] physical needs in the past and at present. So far as the circumstances during the relationship are concerned, I am not satisfied that the mother lacked capacity to meet [the child’s] needs except in relation to inappropriate and excessive physical discipline. So far as the current circumstances are concerned I have found that there are some concerns about inadequate supervision by the mother.
…
208.Despite the broad assertions about mother’s lack of capacity in this regard the evidence indicates that police have been called to the mother’s premises only on two occasions, and in my view neither of these incidents give rise to serious concerns. Although inadequate supervision and exposure to Mr [GG’s] behaviour are less than ideal, these factors alone would not be sufficient to justify a change in primary residence or to require the mother to completely change her living arrangements.
(Emphasis added)
It can therefore be seen that her Honour considered the attachment of the child to the mother an important, if not decisive, issue. As we have earlier pointed out, in doing so her Honour placed predominant weight on the evidence of the family consultant. Yet those opinions expressed by him were never tested by, or filtered through the prism of, the entirely troubling evidence of Mr JJ about issues of central importance to the s 60CC considerations and, thus, the child’s best interests.
As her Honour observed, the mother’s evidence about not consuming alcohol was, in July, plausible because of her diagnosis of Hepatitis B. Her Honour had said the mother’s failure to give any evidence about domestic circumstances did not reflect well upon her but she also found:
96.… currently Mr [JJ], who was concerned about various aspects of the mother’s care of [the child] when he was living at her home in the first half of 2014, does not refer to the mother ever being intoxicated.
Whilst there was no evidence that the mother was intoxicated, there was evidence inconsistent with her evidence in July and, that of Mr GG’s drunkenness and alcohol consumption being accompanied by violence at least from him. There was evidence of the child being unsupervised and her Honour expressed dissatisfaction with the mother’s parenting. That directly conflicted with the mother’s evidence as to her and Mr GG’s capacity to parent and, in her care, the responsibilities of parenthood – crucially relevant s 60CC considerations that were at the heart of the father’s case. That evidence must be seen to have corroborated the father’s position. If there was a plausible explanation for those inconsistencies, the mother did not attend to give it nor otherwise seek to meet them.
Of the risk to the child in that environment, as raised by the father, her Honour said
183. There is also some evidence concerning the mother’s current domestic circumstances which the father submits indicate that [the child] is being neglected and exposed to family violence. I do have some concern about the lack of supervision in the mother’s home given [the child’s] age and the arrangements made by the mother for a tenant or tradesman working at the house to take [the child] to school and for him to prepare his own breakfast. However, it is not contended by either the father or the Independent Children’s Lawyer that these circumstances amount to an unacceptable risk of harm as each proposes that the mother be responsible for a substantial share of [the child’s] care.
(Emphasis added)
That reasoning (as we have highlighted) could only have come from dialogue with counsel in final address where, the trial judge asked counsel for the Independent Children’s Lawyer whether there was “any unacceptable risk of harm, exposure to violence or matters of that sort to [the child] if he remains living with his mother in Mr [GG’s] home”. Counsel’s response was “[y]es. Probably minimum rather than none at all”. Her Honour quite properly asked whether “minimal” was unacceptable to which counsel responded: “Well, yes. I would say that it’s not unacceptable if…” (transcript of proceedings 9 December 2014, page 13 lines 9-24).
Whilst counsel for the Independent Children’s Lawyer did not finish the statement, it seems he was not advocating that the child was at risk in the mother’s care.
The position of the father was entirely different. His counsel said “with respect to my friend’s submissions, the father says that the submission – the risk in that household is nowhere near minimal. It’s extremely concerning, at best” (Transcript of proceedings, 9 December 2016, page 27 lines 38-40).
The father’s proposal for the mother’s time if the child lived with him was not just limited; he was also seeking an injunction precluding the mother bringing the child into contact with Mr GG. True it is that no submission was made by the father at that point that the child should be immediately removed from the mother’s care but the father’s position could not have been seen by her Honour as a deviation from the orders he was seeking.
Thus, we consider that contrary to what her Honour said at [183], the father had, in effect, contended there was an unacceptable risk, albeit that those words were not used. The trial judge dealt with that risk to the child in the mother’s care by saying at [185]:
I have some concerns on the basis of the limited evidence before me that the relationship between the mother and Mr [GG] is also volatile and there is some risk that [the child] may be exposed to this volatility. However, there is insufficient evidence for me to form the view that the level of risk is unacceptable and necessitates the order sought by the father that the mother be restrained from bringing [the child] into contact with [Mr GG].
The Independent Children’s Lawyer did not criticise the orders made by her Honour nor seek to support the father’s position. It was submitted that the father’s complaints were simply matters of weight and that the appeal should not succeed. At trial, the position of the Independent Children’s Lawyer had been that after a relatively short period of time, the child should commence living in an equal shared arrangement between the parents.
Her Honour rejected that at [227] to [228] on the basis that it would not be in the child’s best interests because the parents did not have the capacity to make an equal shared care regime work. Because of the instability the child had experienced in the previous three years, her Honour considered he needed one primary home rather than moving between two households.
Conclusions as to appealable error
The reasons of the trial judge reveal a careful analysis of considerations relevant to ascertaining the child’s best interests. Her Honour considered the effect of change for the child from what her Honour found to be his primary attachment to the mother and the potential trauma to him arising from any significant alteration to that arrangement.
In addition, her Honour attached significant optimism about the mother’s erstwhile attitude to the child’s relationship with his father and her attitude to the responsibilities of parenting. Indeed, contact between the father and the child was occurring and at a level which her Honour described as “substantial and significant” time.
Her Honour referred, at [183] and [185] to “some evidence” and “some concerns” based on “limited evidence” in respect of the child’s current living circumstances; the nature of the relationship between the mother and Mr GG, including violence within it to which the child was exposed; the responsibilities of parenthood exhibited by the mother (as a parent) and Mr GG (as a parental figure); and the mother’s parental capacity.
With all respect to her Honour, there was cogent evidence, accepted by her Honour, from a person unconnected with the proceedings (Mr JJ) of a significant lack of parental care and the exercise of parental responsibilities and risk from, at least, exposure to regular family violence between the mother and Mr GG. That evidence was entirely supportive of the father’s evidence of what had occurred during the relationship. That evidence was central to his case and was evidence which her Honour accepted – and accepted despite it being directly contrary to evidence of the mother which her Honour rejected. The mother was aware of the significant evidence from Mr JJ. She chose not to participate in the trial so as to answer it, nor did she make any other attempt to answer it in any form. The evidence which her Honour accepted starkly contradicted the sworn evidence given by the mother (and Mr GG) in July.
Expressed in terms of weight, her Honour appears to have given very little weight to evidence which her Honour accepted and very significant weight to evidence from the mother who was a witness found by her Honour to be wanting in credibility and whose evidence about important s 60CC considerations must be seen, on her Honour’s own findings, as false.
Her Honour’s finding that there was a low risk of the mother thwarting the child’s time or relationship with the father was based on an assumption that the substantial and significant time ordered would be implemented. Her Honour’s optimism about the reluctance of the mother to thwart the father’s relationship because of orders being in place and because of an established relationship (about which the family consultant was uncertain) does not sit comfortably with other findings made by her Honour as to the mother’s behaviour during the trial.
We are unable to see how her Honour gave any weight at all to findings which she herself made that the mother made serious unfounded allegations against the father by the mother that led to him being labelled as a sexual abuser of his own child and led to him being exposed to criminal prosecution for assaults upon the mother and the child in which he was exonerated. It is difficult to imagine a greater abdication of the mother according to the child the benefit of a meaningful relationship with his father or of the responsibilities of parenthood.
Here, there were findings by her Honour of the wilful exclusion of the father by the mother from the child’s life based on her false allegations of serious misconduct which saw the father not participating in the life of his young child for about two years, including in the latter part of that time, despite court orders. It was, of course, open to her Honour to find that the mother had changed if there was a proper evidentiary basis for so finding. We are unable to see what that basis was in this case, either as her Honour explained it or by reference to the record.
As against the profoundly disturbing history of the mother’s behaviour as found by her Honour, the mother gave false evidence before the court in July; did not participate in the trial thereafter; and maintained even during the trial that the child remained at risk from his father. Perhaps most troubling of all, the mother herself told her Honour in July immediately prior to her further non‑participation that if the orders of the court did not accord with her wishes, she would not obey them:
HER HONOUR: All right. Ms [Belov], you do understand, don’t you, that we’ve been sitting here in court, and that the recommendation of Mr [II] and Dr [V] is that [the child] spends a lot more time with his father not supervised, and that it soon moves to overnight, including weekends. You understand that, don’t you?---I understand.
And your position is that you don’t think for all these reasons the father can look after him properly?---Yes.
All right. What are you going to do if the court makes that order?---Well, I have to appeal those orders.
…
Okay. And what if your appeal isn’t heard for quite some time, and the reality is that you’ve – that those are the orders of the court?---Well, I will think about it later.
Well, I’m asking you to think about it now?---I don’t know what I will do, but this is against the reality and what really is good for my son.
Okay. What are you going to do if the court makes orders that you don’t like?---First I will appeal and then I will see what I can do. I will appeal it first, and later - - -
And I’m saying to you what if your appeal doesn’t get on for a long period of time? I’m sorry?---I won’t follow the court orders then.
You won’t follow the court orders?---Unfortunately. Unfortunately.
(Transcript of proceedings, supplement, 18 July 2014, page 2 lines 13-43)
Although after a brief adjournment the mother later said “I understand the court will issue orders in best interest [sic] of my son and I have to comply with it”, the assertion, which we see as vitally important, sits with her Honour’s optimistic conclusion about future compliance with orders. The exchange was not at all mentioned by her Honour.
It will be recalled that the family consultant said removal of the child was an option if her Honour found the mother had significant deficits in her direct parenting including exposing the child to physically and emotionally abusive relationships. Her Honour made findings about the lengths to which the mother went to exclude the father. There was the evidence, accepted by her Honour, of what was happening in her home environment. That spoke ill of the mother’s parental capacity; her exposure of the child to family violence in her household; and the abdication of important aspects of the responsibilities of parenthood to strangers.
Conclusion
It cannot be reasonably contended that her Honour erred in finding that the mother was, and had been the child’s primary carer (noting of course that she had precluded the father from having any involvement in the child’s care for about two years). Equally, her Honour’s finding that the child’s primary attachment was to his mother and that it would be “traumatic” for him to be removed from his mother’s care was open to her Honour on the evidence. While the husband may not have been seen to concede as much, certainly he could not reasonably argue against such a proposition and does not appear to have done so.
The issue was the balancing of that fact against other s 60CC considerations in determining the orders that best met the child’s best interests. With respect, by reason of the matters we have just referred to, we do not see her Honour having done so.
More significantly however in terms of appealable error, her Honour’s findings in that respect are based upon the evidence of the family consultant. His (important) evidence was based on his observations and interviews. In respect of the latter, in the absence of other reliable evidence or indications he accepted, as he should have, what he had been told by the parties (and Mr GG). He was not made aware of the evidence of Mr JJ.
The parties before us were unable to explain why the family consultant was not recalled so as to put to him the evidence of Mr JJ. This is a significant omission. Again, it should be recalled that removal of the child from his mother’s care was flagged by the family consultant as potentially being in the child’s best interests if there were deficits in the mother’s care and, of course, if there was good reason to conclude that he might be at physical or emotional risk in her care. The evidence of Mr JJ (which, again, her Honour accepted and which in turn in effect corroborated much of what the father alleged) raised precisely issues of this type which, again, were exacerbated in our view by the mother’s failure to participate in the balance of the trial.
The failure to have the family consultant express opinions postulated upon the trial judge’s acceptance of Mr JJ’s evidence (and the father’s evidence seen in its light) is in our view a significant omission from the evidence. It was in our view not open to her Honour to give predominant weight to the family consultant’s evidence in light of the absence of opinions informed by what turned out to be her Honour’s acceptance of the additional evidence.
It was the father’s submission that there was a “void” in the evidence about the attachment issue when her Honour contemplated making the orders. For the reasons just mentioned, we consider there is substance to the father’s complaint.
The appeal should be allowed, the orders set aside and the matter remitted for rehearing.
Costs
The father’s position was that if he was successful, he should be granted certificates both for the appeal and for the retrial. As errors of law have been established and otherwise each party should bear their own costs, certificates should issue for both the appeal and the rehearing.
I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie‑Wallace, Murphy & Cronin JJ) delivered on 3 February 2017.
Associate:
Date: 3 February 2017
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