Basford & Basford
[2021] FedCFamC1A 105
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Basford & Basford [2021] FedCFamC1A 105
Appeal from: Basford & Basford [2021] FedCFamC2F 19 Appeal number(s): NAA 21 of 2021 File number(s): BRC 11111 of 2021 Judgment of: MCCLELLAND DCJ Date of judgment: 6 December 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Adequate reasons – Where risk was in issue – Where the respondent alleged that the appellant presented a risk of harm to the children – Where the primary judge failed to consider evidence concerning the appellant’s state of mental health from the appellant’s treating psychologist and general practitioner – Appeal allowed – costs certificates granted. Legislation: Family Law Act 1975 (Cth) s 60CC
Federal Proceedings (Costs) Act 1981
Cases cited: Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
House v The King (1936) 55 CLR 499; [1936] HCA 40
Pettitt v Dunkley [1971] 1 NSWLR 376
TechnologyOne Limited v Roohizadegan [2021] FCAFC 137
Number of paragraphs: 33 Date of hearing: 6 December 2021 Place: Sydney (via videolink) Counsel for the Appellant: Ms Gajic-Pavlica Solicitor for the Appellant: KLM Solicitors The Respondent: Self-represented litigant Solicitor for the Independent Children's Lawyer: Carter Farquar Mediation and Family Law Friend of the Court: Dodd Bedford & Associates ORDERS
NAA 21 of 2021
BRC 11111 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BASFORD
Appellant
AND: MR BASFORD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
6 DECEMBER 2021
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.Orders 1, 2 and 3 of the orders made on 7 September 2021 be set aside.
3.The appellant’s recovery application filed 20 August 2021 and the issue of the amount of time that Child Z spends with the appellant over and above the time which his siblings will spend is to be remitted back for an interim hearing and to be listed on a date to be fixed on the first reasonably available date.
5.The matter is referred to Deputy Chief Judge McClelland in his capacity as a judge of the Federal Circuit Court and Family Court of Australia (Division 2) for consideration of consent orders agreed to by the parties on 6 December 2021.
6.The Court grants to the appellant a costs certificate pursuant to 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 in respect of the costs incurred by the appellant in relation to the appeal.
7.The Court grants to the respondent a costs certificate pursuant to s 6 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 respondent in respect of the costs incurred by the respondent in relation to the appeal.
8.The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to s 6 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 Independent Children’s Lawyer in respect of the costs incurred by the respondent in relation to the appeal.
9.The Court grants to the parties and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred in relation to the re-hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Basford & Basford has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:
This decision concerns an appeal against interim parenting orders made by a judge of Division 2 of the Federal Circuit and Family Court of Australia on 7 September 2021 in respect to five children. In summary, those orders made by the primary judge were that, pending the further listing of the matter on 8 November 2021, the children live with the respondent and spend two hours each week with the appellant, supervised by the B contact centre in Town C.
The primary judge made further orders that, pending the further listing of the matter, an Independent Children’s Lawyer be appointed. The primary judge further requested that the Director-General of the Department of Children, Youth Justice and Multicultural Affairs intervene in the proceedings.
The grounds of appeal are as follows;
1.The primary judge erred by failing to give adequate reasons to allow an understanding of how the Court reached its conclusion at [49] of the Reasons for judgment as:
a.It was not revealed how the Court reconciled its conclusions with the Court’s earlier finding at [34] that the Respondent’s submissions were not plausible; and
b.It was not revealed how the Court reconciled its conclusions with the evidence of the Appellant that she was the primary caregiver of the children.
2.The primary judge erred by failing to give adequate reasons to allow an understanding of how the Court reached its conclusion at [50] and [51] of the Reasons for judgment as it was not revealed how the Court reconciled its conclusions with the evidence of the Appellant that she has engaged with mental health supports and is actively managing her mental health.
3.The primary judge erred in placing weight on the oral submissions made by the Respondent, in circumstances where the Respondent had not provided any evidence to the Court in support of his contentions.
4.The primary judge erred in concluding at [53] that the risks associated with the Respondent’s mental health are ameliorated by the assistance of the paternal grandmother and a visit by child safety.
5.If there is no error with respect to ground 4, the primary judge erred in accepting the submissions made by the Respondent, with respect to the paternal grandmother and child safety without there being any material before the Court to support the oral submissions made by the Respondent.
6.The primary judge failed to give adequate consideration or provide sufficient weigh to the Respondent’s admission that he had failed to take the children to their allied health appointments since he had been withholding them from the Appellant.
7.The primary judge erred in finding that the [Appellant] poses an unacceptable risk of harm to the children in circumstances where:
a.The Respondent had not filed any evidence in support of his allegations that the [Appellant] was domestically violent; and
b.The primary judge failed to consider any of the Appellant’s evidence in relation to her denial of these allegations.
(As per the original)
For reasons which I will explain, I am satisfied that Ground 2 of the appeal should be upheld on the basis that the learned primary judge failed, in his decision, to refer to reports of the wife’s treating general practitioner and, most relevantly, the wife’s treating psychologist.
Consideration
Generally speaking, to succeed in an appeal against a discretionary judgment, an appellant must establish that the primary judge acted upon a wrong principle, allowed extraneous or irrelevant matters to affect his or her decision, mistook the facts, failed to take into account a material consideration, or reached a result that is unreasonable, unjust or plainly wrong: House v The King (1936) 55 CLR 499.
Additionally, an appeal may succeed as a result of the failure of a trial judge to provide adequate reasons, which makes it impossible for the party aggrieved by the ruling or for an appellate court to determine whether the ruling was based on an error of law. In those circumstances, a failure to give reasons will itself constitute an error of law: Fleming v The Queen (1998) 197 CLR 250 at [22] citing Pettitt v Dunkley [1971] 1 NSWLR 376 at [381]–[382], [385] and [388].
At [1] of his decision, the primary judge stated in unequivocal terms that he considered this case to be a risk case. He was, in my view, right to do so.
After adequately setting out the relevant legislative criteria, the primary judge proceeded to summarise the relevant history, to the extent that information concerning that history was available in the context of interim proceedings.
He noted that the appellant was 34 years of age and the respondent was 41 years of age. He noted the respondent’s evidence that the parties’ relationship had been strained in recent years, the respondent stating that he had slept on a couch for a period of approximately two years and that the parties had been living under the one roof until 2021, at which time the respondent took the children to school and day care but did not return them to the appellant or the family home (at [18]–[19]).
The primary judge noted the tension in the parties’ relationship and the distrust between them as set out in the appellant’s evidence that, in May 2021, she found out through an examination of the respondent’s Facebook account that he had been having affairs with other men (at [20]).
Comparatively, the primary judge noted the evidence of the respondent, provided from the bar table but without objection on the day, that the appellant has alcohol problems, mental health problems and has threatened to harm the children and himself (at [21]).
Specifically, the primary judge noted the respondent’s evidence that the appellant has threatened to put the children into a vehicle and drive the vehicle into a tree (at [22]). As was subsequently made clear in his Honour’s reasons for judgment, this evidence was particularly significant in the primary judge’s assessment of risk.
The respondent attested that he had only recently ascertained that the children were scared of the appellant.
The primary judge noted the absence of evidence about the concerns expressed by the respondent, other than the respondent’s own evidence. This was noted to the extent that his Honour accepted that, based on similar assertions, the respondent had sought and recently been granted a domestic violence order against the appellant, naming himself and the children as respondents (at [24]).
The primary judge noted the appellant’s evidence that, upon becoming aware that the children had not been returned, she became emotional and distraught, recognised she needed assistance, called an ambulance and was admitted to the mental health ward of Hospital D in 2021 (at [26]).
The primary judge noted the appellant’s evidence in respect of the circumstances of the admission and, in particular, her evidence that, prior to being admitted, she had not slept for a period of 26 hours (at [27]).
The primary judge noted that the admission was for a period of just one day, with the appellant being admitted on a day in 2021 and being discharged the following day. The primary judge had regard to the discharge summary provided by the hospital and, in the body of his reasons for judgment specifically, summarised relevant parts of that discharge summary in the following terms at [29]–[32]:
The [appellant] provided a discharge summary from [Hospital D] where it is recorded that she as experiencing low mood levels and poor sleep and strong suicidal ideation without a specific plan, and that she had started consuming alcohol since the relationship broke down.
The discharge summary states that the [appellant] requested to be discharged after a safety plan was discussed and denied any urgent thoughts or plans to suicide upon discharge from hospital.
The [appellant] does state in her material that she was diagnosed with depression approximately 20 years ago but managed that with medication and self-care.
She states that the [respondent] has mental health conditions and he has been managing such poorly in the past few months, and admitted such in a recent letter he wrote to her which is attached to her material, which says he has been feeling low for some time.
The primary judge noted both the appellant’s assertions that the respondent himself suffered from mental health problems and the respondent’s response which only acknowledged that he had been under stress because of the parties’ situation.
The primary judge specifically stated that the Court needed to understand the mental health issues impacting upon both of the parents (at [25]).
After broadly outlining the evidence presented to the Court, the primary judge appropriately, in his assessment of the relevant statutory considerations set out in section 60CC of the Family Law Act 1975 (Cth) (‘the Act’), returned to the crucial issue in the matter before him; that being the issue of risk.
As is commonly the case in interim proceedings, the primary judge noted at [44] that:
There are obviously risks in this family although the extent of risk cannot be determined at this stage.
At [45], the primary judge also noted that, most significantly, the respondent alleged that:
…the [appellant] has threatened suicide, threatened to harm the children and threatened to harm him.
The primary judge explained at [49] that he prioritised that issue of risk and, in the context of the absence of evidence, he was:
…not satisfied that the [appellant] is in a position to properly care for the children…
And that he was:
…not prepared to make a decision which would see the children go back to her at this stage.
At [49]–[51] of his decision, the primary judge held that:
On the information available to the court, I am not satisfied that the [appellant] is in a position to properly care for the children, especially since the [respondent] said he cared for the children when he was not working with the [appellant] apparently drinking in her room, and I am not prepared to make a decision which would see the children go back to her at this stage.
Such would be an unacceptable risk if what the [respondent] states is true. Further, the [appellant’s] rapid admittance to hospital with suicidal ideation, soon after the children were not returned home, is of great concern.
There needs to be investigation as to the [appellant’s] state of mind in presenting to [Hospital D] with suicidal ideation within such a short period of the children being taken from the house.
Significantly, however, in giving weight to the respondent’s evidence as to the potential risk presented by the appellant, the learned primary judge did not refer to reports from the appellant’s general practitioner and her treating psychologist, which were attached to the affidavit of the appellant filed on 3 September 2021. The primary judge’s failure to do so is understandable in the context of a busy duty list and in circumstances where he was not taken to those reports by the legal representative for the appellant. Those reports, relevantly, are as follows:
Report of the appellant’s general practitioner, dated 11 August 2021:
I have been [Ms Basford’s] long term GP since February 2016. During that time I have got to know [Ms Basford] very well and she is an excellent mother who puts the well being of her children as her first priority. [Ms Basford] did become depressed in June of his year due to the relationship breakdown with her husband. During that time I saw her regularly and she at no time posed a risk to the care to the care [sic] of her children.
[Ms Basford] was admitted voluntarily to hospital when she felt unsafe at home, because she had very limited social supports at that time. She was assessed by the mental health team and was considered not at risk and was discharged the following day, after she got community supports in place.
[Ms Basford] came in to our practise [sic] after her hospital admission and got referred to a psychologist and has developed an excellent relationship with them and sees them regularly. [Ms Basford] has also been prescribed a valdoxan 50mg at night that has stabilised her mood, which she is compliant in taking daily. She is now back to being functional and has even completed her [tertiary] degree. [Ms Basford] has worked very hard on her own mental health in the last two months and is very capable in looking after her children.
(As per the original)
Report of the appellant’s treating psychologist, dated 1 September 2021:
I have seen [Ms Basford] for 6 psychological consultations; the first consultation was on 5/07/2021 and the last consultations [sic] was on 20/08/2020.
[Ms Basford] has been under significant stress with the sudden considerable change in her custody arrangements with her children and the ending of her marriage. She has been open to therapeutic support and all strategies that have been discussed in regard to the resulting mood fluctuations following these significant events. [Ms Basford] has stated that she has found the sessions beneficial and that they have assisted her in coping with recent family stressors.
Based on the information gained in our psychological sessions and assessments that have been administered [Ms Basford] presents as having no self-harm or suicidal intentions, ideations, or plans. Also based on this evidence, [Ms Basford] is very much looking forward to being reunited with her children and recommencing all the necessary requirements of their care. [Ms Basford] displays the organisation, emotional, social and intellectual capabilities to do this effectively.
(As per the original)
Whilst entirely understandable in the context of a busy duty list and in circumstances where, as I have mentioned, the primary judge was not taken to those reports and, in particular, the report of the appellant’s treating psychologist, I am nonetheless, despite those challenges, satisfied that the failure of the primary judge to refer to the contents of the appellant’s psychologist’s report in particular constituted an appealable error. In that respect, at [111]–[112] in TechnologyOne Limited v Roohizadegan [2021] FCAFC 137, the Full Court of the Federal Court observed:
As Samuels JA said in Mifsud v Campbell (1991) 21 NSWLR 725 at 728, “... failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge ... may promote a sense of grievance in the adversary and create a litigant who is not only disappointed but disturbed” (internal quotations omitted). And as Basten JA said in Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165; 243 LGERA 102 at 111 [7]:Because there is no means of interrogating a judge as to his or her intellectual processes, evidence that issues were not addressed can usually only be demonstrated by reference to the reasons. Thus, on the assumption that the judge addressed in the reasons all material matters, the absence of reference to a particular matter may allow the inference that it was not addressed and determined (citing Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at [129]-[130] (Hayne J).
Further, “[w]here conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.” See Beale at 443 (per Meagher JA).
In this matter, the evidence of the appellant’s treating psychologist, in particular, was clearly inconsistent with the evidence of the respondent regarding the extent to which the appellant presented, as at the date of the interim hearing, as a risk of harm to the children. The evidence, being from the appellant’s treating psychologist, was evidence of a significant and critical nature within the terms of those authorities to which I have referred.
The failure on the part of the learned primary judge to refer to that evidence was understandable given the context however, nonetheless in my view, constitutes an appealable error.
In those circumstances, it is unnecessary to consider the further grounds of appeal.
In conclusion, I therefore make orders as set out in the reasons of this decision. It is noted that, in circumstances where the error on the part of the primary judge constitutes an error of law, it is appropriate that the parties be granted appropriate costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 in relation to the appeal and also in respect to the rehearing.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 19 January 2022
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