Baukham & Pitresso (No 2)
[2020] FamCAFC 188
•6 August 2020
FAMILY COURT OF AUSTRALIA
| BAUKHAM & PITRESSO (NO. 2) | [2020] FamCAFC 188 |
| FAMILY LAW – APPEAL – PARENTING – Procedural fairness – Where school holiday orders departed significantly from the parties’ proposals and not reasonably within their contemplation – Appellant denied opportunity to address school holiday orders made – No error as to assessment of risk – Challenge to reasons of narrow compass – Path of reasoning identifiable – Challenge to reasons not made out – Appellant bound by the conduct of case at trial – Appeal allowed in part – Holiday orders set aside and matter partially remitted for rehearing – Costs certificates granted to both parties for the appeal and rehearing. |
| Family Law Act 1975 (Cth) Pt VII, ss 60CC(2)(b), 60CG(l)(b) Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9 Mental Health (Forensic Provisions) Act 1990 (NSW) s 32 |
| Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 |
| APPELLANT: | Ms Baukham |
| RESPONDENT: | Mr Pitresso |
| FILE NUMBER: | PAC | 3597 | of | 2016 |
| APPEAL NUMBER: | EAA | 100 | of | 2019 |
| DATE DELIVERED: | 6 August 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Aldridge JJ |
| HEARING DATE: | 12 February 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 September 2019 |
| LOWER COURT MNC: | [2019] FCCA 2529 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Rebehy |
| SOLICITOR FOR THE APPELLANT: | Johnson Horsley Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Givney |
| SOLICITOR FOR THE RESPONDENT: | Lama Family Lawyers |
Orders
The appeal be allowed in part.
Orders 4(b) and (c) dated 13 September 2019 be set aside.
That the question of the child’s time with the father during school holidays be remitted to the Federal Circuit Court of Australia for rehearing.
The appeal otherwise be dismissed.
There be no order as to costs.
The Court grants to the appellant 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 in respect of the costs incurred by her in relation to this appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of 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 him in relation to this appeal.
The Court grants to the appellant and the respondent 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 each party in respect of the costs incurred in relation to the rehearing of these proceedings.
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 Baukham & Pitresso (No. 2) 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: EAA 100 of 2019
File Number: PAC 3597 of 2016
| Ms Baukham |
Appellant
And
| Mr Pitresso |
Respondent
REASONS FOR JUDGMENT
Introduction
On 13 September 2019, parenting orders were made pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) in relation to the parties’ daughter (“the child”). The effect of those orders was to confer sole parental responsibility for the child on the child’s mother, Ms Baukham (“the mother”), for the child to live with her and to spend time with the child’s father, Mr Pitresso (“the father”). Stated broadly, the child is to spend time with the father during the school term, from after school Friday until the commencement of school Monday each alternate weekend, for half the school holidays and on Father’s Day. The order conferring sole parental responsibility on the mother was not unconditional and an additional order permits either party to enrol the child in sporting or extracurricular activity without needing the other party’s consent. By her Notice of Appeal filed on 2 October 2019, the mother appeals from the orders as to time (Orders 4 and 5) and the child’s participation in activities without the other party’s consent (Order 18). Her challenge to another of the orders was abandoned.
Although the mother sought that the orders under appeal be discharged, it was accepted that in the event the appeal was allowed, the proceedings should be remitted for rehearing. The father sought to uphold the decision. Counsel for the father acknowledged that the orders as to school holiday time exceeded both parties’ proposals and the reasoning on some points was somewhat opaque. However, it was submitted that these difficulties were not sufficiently serious that they justified overturning the primary judge’s exercise of discretion.
The child was 16 months of age when the parties separated. It would seem that the parties easily agreed that the child should live with the mother, which is what occurred. Following this, the mother and the child moved to the mother’s parent’s home, which is where the father then spent time with the child. After a period, tensions developed about the amount of time the child would have with the father and whether it should be supervised. Unsupervised time commenced in late 2015 and overnight time began in February 2016. An impasse was reached as to further increases and, in August 2016, the father commenced proceedings for parenting orders in the Federal Circuit Court of Australia.
A Family Report was obtained and the proceedings went to trial in September– October 2018. At that point, the parties agreed that the child should have regular unsupervised and overnight time with the father, with the critical point of difference being the father’s desire to spend longer periods with the child than the mother considered was in the child’s best interests.
After judgment was reserved, the father subjected the mother to a barrage of abusive messages as a consequence of which, on 6 March 2019, she applied to reopen the proceedings. While that application was pending, the father wrote to the mother and, with photographs attached, said he would remove his fingers with an axe in the manner depicted before he wrote to her again in an abusive manner. The mother, who is a victim of family violence perpetrated by the father, interpreted the message as threatening of her and the child and at her behest, on 25 June 2019, a provisional apprehended violence order (“AVO”) was made in her favour against the father.
The parenting proceedings were reopened. The hearing was resumed and completed on 5 August 2019. In the meantime, the mother refused to comply with the interim orders and the child stopped spending time with the father. On the reopened hearing, the mother proposed that the father have time with the child as the parties agreed. The implication being that the mother would not agree.
The primary judge accepted evidence given by the Family Report writer that the child was primarily attached to the mother and that a substantial change in parenting arrangements or the withdrawal of her primary attachment figure was contraindicated. Similarly, that the child loved both her parents and the mutual affection was obvious [40]. Evidence from the Family Report writer that the father was a significant figure for the child was also accepted. Although the Family Report writer’s observations of the family were undertaken some time prior to the trial, his evidence was nonetheless reliable and worthy of weight [64]. No doubt, this evidence dovetailed with the mother’s evidence that the child enjoyed her interactions with the father [50] and the findings that the reasonable period during which the child had overnight time with the father had been beneficial to the child [60] and their relationship is strong [39], [50]. These matters obviously weighed in favour of the child continuing to spend time with the father.
However, there was a history of family violence inflicted by the father on the mother and although there had been no physical violence for some years, there was an ongoing risk that the father would send the mother abusive and intimidating emails which made her anxious and adversely affected her “very capable” parenting [67], [74]. The father has a generalised anxiety disorder [66], which diminished his capacity to co-parent but did not diminish his capacity to care for the child [66]. These matters and the long history of parental conflict made joint decision making impossible [46] and meant that the longer periods that the father sought to have with the child during school term were not in the best interests of the child [72], [75].
But it was in the best interests of the child to maintain “her important relationship with her father” [71]. Thus, the primary judge constructed a suite of orders that would achieve a form of “parallel parenting” [80] and which are plainly designed to moderate the risk of parental conflict and abusive emails and thus alleviate the effect of that behaviour on the mother and her parenting capacity [74].
The grounds of appeal
Before considering the grounds in detail, it needs to be understood that this is an appeal against the exercise of discretion to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. A different view by an appellate court only on matters of weight by no means justifies a reversal of a decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519).
The mother presented six grounds of appeal, the particulars of which were refined in her Summary of Argument filed on 28 January 2020. This distilled the challenges raised against the orders to four propositions. Namely, that the primary judge erred:
·by denying the mother procedural fairness in relation to the school holiday orders (Ground 6);
·by misapplying the ‘unacceptable risk’ test (Grounds 3, 4 and 5);
·giving reasons as to time which are inadequate (Ground 2); and
·in proceeding to make final orders when the evidence as to risk was manifestly inadequate (Ground 1).
It needs to be understood that the mother does not challenge the findings of facts and that the reasons challenge is of narrow compass. Stated broadly, the mother makes no challenge to the adequacy of the reasons given for the findings, rather, this challenge goes to the conclusions based on those findings. Speaking of the obligation to give adequate reasons, Aldridge J recently said in Rice & Rice [2020] FamCAFC 174:
9.… [I]t is well established that they need not be lengthy or elaborate to be adequate and their content depends on the circumstances of the matter being considered (Thorne v Kennedy (2017) 263 CLR 85 per Kiefel CJ, Bell, Gageler, Keane and Edelman JJ at [61])…
The trial reasons are not lengthy but the question to be answered is whether, on the points raised in the appeal, the court is able to ascertain the reasoning upon which the particular decision is based (Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267 citing Sun Alliance Insurance Ltd v Massoud [1989] VR 8). The approach adopted in the trial reasons was unquestionably influenced by the volume of evidence filed in the case and some observations on this topic are required. The mother’s own affidavit evidence spanned some 400 pages. The primary judge was rightly critical of the material presented in the case, a great deal of which was irrelevant [11]–[13], manifestly so. Prolix affidavits, which recite every parental disagreement, no matter how trivial, are self-indulgent and obfuscate rather than illuminate the issues. They complicate and prolong the trial and there is an obvious risk that potentially relevant evidence is lost amongst the irrelevant. Both parties ran this risk and made the primary judge’s task much more difficult than was necessary. This explains why the primary judge avoided the “obsessional nature” of the evidence [13] and chose to deal with the evidence in a general rather than detailed fashion. There really was no other option and we suspect that had his Honour opted for detail, the trial reasons would still be a work in progress.
However, because the trial reasons did not descend into the facts in significant detail, it is appropriate to observe that the trial record has been closely examined to ensure that we had a good understanding of the evidence.
Procedural fairness
The gravamen of this challenge is that the primary judge made orders as to the child’s time with the father during school holidays, which were not within the contemplation of either party and without giving the mother an opportunity to be heard.
The orders provide for the child to spend one week of the terms 1, 2 and 3 school holidays with the father and half the term 4 holidays. The father acknowledges these are longer periods than either party said were appropriate. He proposed that the arrangements during the school term would continue during school holidays with an adjustment as to the changeover arrangements. The effect of this was that during school holidays, the child would be with him for five nights in total but no more than three consecutive nights. In addition, he proposed an annual holiday of no more than 15 days.
It seems that the primary judge took into account the mother’s proposal in her Case Outline document filed on 30 July 2018 for the father to take the child on holidays within Australia for increasingly lengthy periods in time, culminating from 2020 for periods up to 15 days. However, the mother withdrew from this position and the parameters of the dispute as to school holiday time were in reality between no time and the arrangements sought by the father.
It is uncontroversial that a judge is not confined to a choice between the parties’ proposals and is obliged to determine the issue with the best interests of the child as the paramount consideration (U v U (2002) 211 CLR 238). In making that determination, if an outcome substantially different to that proposed by either party is in contemplation, natural justice considerations requires that the parties be given notice of the proposal and afforded the opportunity to address it. The proper approach is as explained in Bolitho and Cohen (2005) FLC 93-224, at [85]:
The requirement to look beyond the proposals of the parties highlights the fundamental difference in litigation involving the welfare of a child, and ordinary inter partes litigation. This unique requirement may necessitate a trial Judge crafting orders which are outside the proposals presented by either party, subject to the caveats expressed by Hayne J set out above. This task requires a trial Judge to afford the parties procedural fairness by indicating and inviting comment on changes to the parties’ own proposals, for example, by way of additional or different contact to that proposed by the relocating party, or a limitation to a period of restraint in removing a child from its present geographical location.
We emphasise that the requirement of notice relates to a significant departure from the parties’ proposals. It is commonplace for possibilities to emerge during a trial and in the quiet contemplation of formulating a judgment beyond those advanced by the parties. Where the emerging arrangements are within contemplation of the matters and evidence raised during the trial, the judge may proceed. However, where the outcome is not within reasonable contemplation of the scope of the trial, the judge must pause and ensure that the parties are given an opportunity to address the point. Even when minor variations have not been specifically raised, they can be within contemplation. Whether or not larger variations are within contemplation requires a nuanced response to the individual case. There is no hard and fast rule. However, if it could be anticipated that a party might wish to call evidence and advance specific argument on the point, forewarning by the judge is required.
Logically, the father’s approach to school holiday time was influenced by his ability to take time from work to care for the child. The practical constraints of his employment meant that he was not able to commit to half school holidays and the primary judge could not proceed on the assumption that the father could make different arrangements to those disclosed at trial. No less importantly, the mother was entitled to address the effect on the child, as she saw it, of regular longer periods away from her and with the father than either proposed. This was not a difference of one or two additional nights, but of three compared to seven consecutive nights and 15 nights compared to 21 nights. These differences are beyond the scope of what was within reasonable contemplation during the trial and in making orders to that effect, the mother was denied procedural fairness.
The remedy for this denial of procedural fairness is that the school holiday orders should be set aside and the issue re-determined.
The assessment of risk and the adequacy of the reasons
The mother’s Summary of Argument suggests that the challenge to the adequacy of the trial reasons contained in Ground 2 is focussed on the “process of reasoning which led to his [Honour’s] finding that ‘spending three night[s] per fortnight during the school terms’… [was]… in the child’s best interest[s]” (mother’s Summary of Argument filed 28 January 2020, paragraph 78). When counsel for the mother was asked to address the reasons which the primary judge gave for determining three nights, this challenge morphed into an assertion that evidence given by the Family Report writer that the child should not have more than two nights with the father was overlooked and the process of reasoning was therefore flawed.
As the exchange recorded below demonstrates, an examination of the trial transcript reveals that the Family Report writer did not give evidence that the child should not have more than two nights with father or anything to that effect.
MS REBEHY: So page 183 of the transcript, your Honours. The consultant was asked about whether it would be appropriate to – by counsel for the father whether it would be in the child’s interest an increase of time so that she’s ultimately spending five nights. And he says:
I don’t think, in the current circumstances, I would suggest she would. She may in two or three years’ time. But it’s hard to say.
And ..... goes on to ask him about - - -
ALDRIDGE J: All right. Just before you do that - - -
MS REBEHY: Yes.
ALDRIDGE J: - - - what was the current position at the time? How many nights?
MS REBEHY: Mother’s position was - - -
ALDRIDGE J: No. No. How many nights was the child - - -
MS REBEHY: Two nights a fortnight.
ALDRIDGE J: Two nights a fortnight.
MS REBEHY: And alternate weekends and three – two or three afternoons after school for a couple of hours.
ALDRIDGE J: So what [the Family Report writer] there was saying, he wouldn’t move it up at this stage to four or five nights.
MS REBEHY: Yes, your Honour. He wouldn’t change the current arrangement.
ALDRIDGE J: Yes. Okay. Well - - -
AINSLIE-WALLACE J: Where does he say that?
ALDRIDGE J: No. No. That’s not quite what he said. He was asked:
What do you think about four moving up to five?
He said:
I don’t think the current circumstances would suggest that, maybe in two or three years.
So he’s not expressly in view of that two or three. He’s expressing a view of that four or five.
MS REBEHY: Pardon me. I know his Honour has accepted the family consultant’s – he says in his judgment. So I’m just trying to find it, that it’s not in the child’s interest to change the current situation. But, your Honours, when I get to the grounds about the lack of evidence, one of the issues is that [the Family Report writer] - - -
AINSLIE-WALLACE J: Lack of evidence [or] lack of reasons?
MS REBEHY: Sorry. [W]hen I get to the other ground around the difficulty for the court in making final orders in the absence of evidence is my ground.
(Transcript 12 February 2020, p.18 line 16 to p.19 line 25)
Counsel for the mother went on to agree that the Family Report writer did not give the evidence that the primary judge was said to have overlooked (Transcript 12 February 2020, p.31).
We were then able to clarify that the challenges to the assessment of the risk of harm to the child and the mother of exposure to family violence includes a challenge to the adequacy of the reasons given for the conclusion on the point. In considering that point, it needs to be understood that the primary judge made the findings in respect of the father that the mother asked him to make (Transcript 12 February 2020, p.20). The deficiency in the trial reasons was said to be that having made those findings, particularly as to ongoing family violence, there was no clear line of reasoning for the conclusion that it is in the best interests of the child to spend time with the father (Transcript 12 February 2020, p.20). It is thus convenient that the balance of the reasons challenge is considered in conjunction with Grounds 3, 4 and 5, which focus on the assessment of risk.
By these grounds the mother contends that the primary judge failed to explain the process of reasoning:
·for finding that the father loves the child dearly and would not intentionally harm her [62];
·for finding there is no risk of emotional or psychological harm for the child in spending time with the father. Transient harm is possible arising from conflicted behaviours between the parties at changeovers [63]; and
·which reconciles the Court’s acceptance of the mother’s fears of the father and the potential compromise of her parenting capacity ([44], [74]) with orders that the child spend any time with the father.
Dealing with these matters seriatim, the mother acknowledged to the Family Report writer and during cross‑examination, that the father loves the child. The father’s affection for the child was thus uncontroversial and the primary judge could acknowledge this fact without needing to reference the point.
There is a nexus between the assessment of risk and the finding that the father would not intentionally harm the child and it is instructive to first identify what the mother said that risk comprised. In the “brief” supplementary submissions dated 19 August 2019, counsel for the mother provided a “summary” of the asserted risks to the child. The summary spanned some five pages and categorised the risks as being:
·the adverse impact of the father’s behaviour on the emotional and psychological well-being of the mother;
·exposure to psychological or emotional harm to the child; and
·the father acting in an irrational or dangerous manner towards the child and causing her actual harm.
It is inferred that the summary was intended to direct attention to the most egregious examples of the father’s conduct sufficient to establish the asserted risks.
As to the first category, the mother emphasised the father’s “numerous, irrational, demeaning or threatening messages and emails”, his refusal to cooperate in relation to simple things such as the child’s sports and social activities and his obsession with the child’s health. The effect of these matters was that the mother “is on edge all the time having to deal with [the father]” and “genuinely fearful and apprehensive for [the child’s] safety” (mother’s supplementary submissions dated 19 August 2019, p.1 to p.2).
The second category encompassed the effect on the child (who was in kindergarten) of not being permitted to complete her homework while with the father, his bullying behaviour towards her school and dance teachers and having the child’s hair cut when he knew she liked it long.
The third category highlights evidence, which it was submitted, established that the father acted in a sexually inappropriate manner towards the child and violently towards others. None of the matters relied on involve the father having acted in an irrational or dangerous manner towards the child and causing her actual harm. The salient details comprised:
· physical violence towards the mother, which is not particularised, but we infer constitutes two incidents in 2012 when the father kicked her, (mother’s affidavit affirmed 28 March 2018, paragraph 25 and paragraph 31) and, in February 2015, when after the mother swore at him, he poured a bottle of water over her (mother’s affidavit affirmed 28 March 2018, paragraph 92);
· the father’s aggressive behaviour towards others, including in December 2017, him “deliberately” damaging a neighbour’s car for which he was charged with aggravated damage. The father was sentenced under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) and it was recommended that he undertake a mental health assessment and a course of treatment;
· in June 2019, the father sent the mother text messages with pictures of axes and threats to sever his fingers if he sent her any more offensive or threatening messages, which was “deliberate and frightening”; and
· the father’s “‘boundary issues’ as they relate to sexual matters” which is a reference to the father having twice played a game while showering with the child in which she pulled his underpants down. This conduct was said to demonstrate that the father lacks protective capacity or adequate parenting skills.
The primary judge accepted that the mother genuinely believed that the child is at risk with the father [34] and the point that the mother sought to establish by the first category of risks was made out. His Honour discussed the emails and messages at [11]–[12], [22], [44]–[45], [56], [69] and [74]. This conduct was rightly categorised as family violence and variously “denigrative, abusive and intimidatory” of the mother [74]. Furthermore, it was concluded that once the existing AVO expired there was a risk that the father would resume this type of communication. Although it was not directly harmful to the child [63], it adversely affected the mother’s parenting capacity [45] and created tension around contact changeovers [74]. As these paragraphs demonstrate, these matters weighed heavily in favour of the mother being awarded sole parental responsibility, shorter rather than longer periods as sought by the father and affected the location and frequency with which the child would move between her parents.
The father’s inability to co‑operate with the mother about the child’s sports and social activities was not discussed in any detail but we infer that these matters influenced his Honour’s conclusion that the father is self‑absorbed and has a tendency towards “frustration motivated behaviour” [49]. It plainly adversely influenced the father’s application to spend time with the child [75]. The trial reasons are replete with references to the lack of parental co-operation and, that fact having been established, the primary judge did not need to discuss every aspect of how this was manifested. Of course, co‑operation is a two way street and it is apparent that the primary judge was satisfied that in this respect the mother too was lacking. She had a “propensity to act unilaterally, and not seek input from the father” [56]. So much so that the mother was reminded, that in future, she needed “to guard against being dismissive of the importance of [the child’s] relationship with her father” [67] and to act accordingly [68].
The father’s fixation with the child’s health was noted [21] and the parties’ different approaches to this issue again counted against the father in relation to time with the child [75].
Consideration of the second category shows that the primary judge did not discuss the hair issue. Far too much was written about the parties’ disagreement about the child’s hair and it is a measure of their inability to agree on matters related to the child that this disagreement resulted in a consent order, which gave the mother control of the child’s hairdressing needs in the future. This arose because the father twice had the child’s hair cut without discussing it with the mother beforehand, which he should have. The mother’s evidence set out below tidily encapsulates the gravamen of her concerns.
At changeover on 27 October 2016, I noticed that [the father] had caused [the child’s] hair to be cut with approximately 5-10cm in length taken off. I was incredibly upset that he had done this without consulting with me, particularly given it was her first real haircut, and I didn't even get the opportunity to keep a lock of her hair. The cut had removed all her baby curls, and she looked very different. I did not like the hair cut at all. At the time [the child] was too young to realise the significance of [the father’s] actions and appeared unperturbed. [The father] again caused [the child’s] hair to be cut 5-10 cm around June 2017 without consulting me prior.
(Mother’s affidavit affirmed 28 March 2018, paragraph 135)
The mother’s emotional response at being denied the opportunity for involvement in the child’s first real haircut is understood. However, we infer that the primary judge decided that the hair dispute was irrelevant to the assessment of risk to the child and it need not be discussed. We agree. Even if it was overlooked, as it could not possibly affect the question of whether the child should spend time with the father, it is an oversight without consequence. Otherwise, the matters raised are further manifestations of behaviour of the type discussed under the rubric of category one.
How the issues around homework and extracurricular activities sounded in risk to the child is unclear and it did not require specific consideration. Nevertheless, it is worth pausing to consider the evidence, which supposedly justifies the contention that the father would not permit the child to complete her homework. Counsel for the mother pointed to text exchanges between the parties in early March 2019, which record an argument arising from the mother’s decision to stop taking the child to Language D lessons. Language D is the father’s first language and he rightly views it as important that the child is familiar with this aspect of her cultural identity. In any event, the messages commenced with the father’s request to the mother that she ensures the homework is sent in the child’s bag “at the beginning of every contact” (mother’s affidavit affirmed 5 March 2019, paragraph 8(o)). As the argument escalates, the father said that he would not use his time to read to the child in English (or any related activity). The father distinguished between homework and other activities and it is beyond dispute that he made it clear that he wished to be involved in the child’s homework. The contention that he said he would refuse to allow the child to do her homework is simply wrong. The error probably results from those who appeared needing to come to terms with far too much (irrelevant) evidence and it is not surprising that this happened. Unfortunately, it is one example of many where misstatements of the trial record occurred.
However, this is something of an arid argument. It is clear that the primary judge was mindful of these tensions and the orders as to the child’s time were structured so that in the future the child is able to complete her homework while she is with the mother and the father is able to make arrangements independent of the mother for the child’s extracurricular activities. The point being that the structure of the orders neutralised any risk of these issues becoming an arena for future parental disputation and ensured there was no ongoing risk to the child from emotional or psychological harm arising therefrom.
Each of the matters highlighted in category three were taken into account, albeit the underlying facts were not discussed in detail. His Honour’s findings at [25] and [59] specifically record that the father physically assaulted the mother during their relationship. As has already been said, this can only be a reference to the mother’s evidence of the two incidents in 2012 and another in 2015. As the primary judge correctly noted, there has been no “physical family violence between the parents” in recent times [69].
The incident involving the neighbour’s car was discussed at [23] and informed his Honour’s conclusion that the father is “prone to stressful and anxious reactions”.
As to the recommendation for a mental health assessment and treatment, it was uncontroversial that on 18 July 2018, the parties agreed that, in accordance with the recommendation, the father would continue therapy with Dr A, who is a psychologist, which he did. At [24] the primary judge noted that the father had attended Dr Q, who made those recommendations. Her opinion that the father has a generalised anxiety disorder was accepted. Reference is then made to the father undergoing treatment, which we infer is a reference to his attendance on Dr A, which his Honour observed seemed not to have resulted in “any positive improvement for him especially in relation to his interactions with the mother” [24].
The primary judge did not specifically mention the father’s threat to sever his fingers with an axe if he ever wrote again to the mother in offensive terms but on a fair reading of the trial reasons, it seems that this is incorporated into his Honour’s frequent and critical references to the father’s email messages sent to the mother. The point being that the primary judge focussed on the fact of the communication and not the medium. Reference was made to the father’s post October 2018 communications and to the interim AVO made against the father on a number of occasions. There is no doubt that of these communications, the father’s threat to sever his fingers is the most troubling. It is this incident which prompted the mother to take her concerns to the Police and which resulted in the AVO to which the primary judge referred. There were simply too many emails and messages presented in the case to expect the primary judge to discuss them in detail and we understand why his Honour chose to describe their tone and effect rather than descend into the minutiae. However, the particular attention given to those sent post October 2018 and the AVO, which is based on the axe messages, persuades us that the axe messages were not overlooked. As the discussion at [74] demonstrates, these matters influenced the decision against the child having the longer and more frequent periods with the father during the school term that he wanted.
The mother’s summary reveals that she did not suggest that the child had been sexually abused by the father or that he posed an unacceptable risk of sexual abuse. Counsel for the mother helpfully summarised the evidence about the shower game thus:
MS REBEHY: Accepted that he said that to them. But then, in the witness box, he conceded that he had asked her to undress him. One occasion, his underwear, his evidence was, was slipping. And she started pulling it down. And he played again with her when she continued to pull it off. And then, next time, he invited her to undress him. And he did that. And then his evidence was, I didn’t realise it wasn’t appropriate. But they were playing a game, singing a song. And he invited her to remove his underwear. Now, when it says “[the father] denies asking [the child] to undress him”, that’s not correct that he has not told Family And Community Services the truth. He did not explain to Family And Community Services, this is what happened. His evidence in the box was different to what he has told them…
(Transcript 12 February 2020, p.8 line 45 to p.9 line 7)
The child’s version of the events and the father’s account given in evidence are the same and justify the finding that they were “‘playful interactions’ in which [the child] undressed [the father] preparatory to their showering and in one of the incidents [the child] touched [the father’s] penis” [14] and “were not intentionally sinister” [15]. It is noteworthy that there is no challenge to these findings.
The mother’s argument on appeal seemed to devolve into the submission, that because the father told the Department of Family and Community Services he did not ask the child to pull his underpants down, but admitted in cross‑examination he did, it followed that had the father given the Department the same version he gave in evidence, “the child’s disclosures would likely have been substantiated” (mother’s Summary of Argument filed 28 January 2020, paragraph 73). Counsel for the mother did not explain the significance of whether or not the complaint was substantiated. But more to the point, the father’s unequivocal evidence, was to the effect that once he was told the game was inappropriate, it stopped. His evidence was accepted [15] and informed his Honour’s conclusion that there was no unacceptable risk of sexual abuse [62].
A similar complaint was made about the primary judge proceeding to judgment when the final AVO hearing was pending. Counsel for the mother was invited to address why, if the primary judge was given the same firsthand account that was given to the agencies and was thus in a position to determine the matters in issue, that going on to decide the question sounded in error.
The following exchanges illuminate the point:
MS REBEHY: Because of a number of things. Because of the court’s findings about the ongoing family violence. And because of the AVO proceedings which are fresh and recent and had occurred during that reserved period. Because there are continuing concerns being raised about how the child is presenting. There’s ‑ ‑ ‑
RYAN J: The point you’re missing in all of this is his Honour had that evidence. He didn’t need to know whether the AVO was going to be made on a final basis because the facts were the facts presented in the – the facts presented in the AVO were the facts presented to his Honour. It’s exactly the same in relation to the further disclosure to the Department of Family and Community Services. His Honour had the underlying facts.
MS REBEHY: Well, and his Honour made ‑ ‑ ‑
RYAN J: That’s right, isn’t it?
MS REBEHY: It’s still your Honour doesn’t address ‑ ‑ ‑
RYAN J: Answer my question. That’s right, isn’t it?
MS REBEHY: Yes. Of course his Honour had the apprehended violence order. The interim ‑ ‑ ‑
RYAN J: All right. He had the underlying facts, Ms Rebehy.
MS REBEHY: Yes. Yes. Of course, your Honour…
(Transcript 12 February 2020, p.13 lines 19–44)
It is thus apparent that the matters, which could permissibly influence the assessment of the father’s parenting capacity, were taken into account. The question, which then arises, is whether the reasons explain his Honour’s conclusion that the child was not exposed to an unacceptable risk in her father’s care. As the mother did not suggest, and the evidence (including her evidence that in July 2019 the child lay on her tummy in the mother’s bed and made “sexualized movements”) could not establish, that the sexual matters supported a finding of unacceptable risk, this issue need not be considered further (mother’s supplementary written submissions dated 19 August 2019, paragraph 3(c)(v)).
In relation to the risk of exposure to family violence, as we have already explained, the primary judge was satisfied that the father had been physically violent towards the mother. However, weight was placed on the fact that there had been no physical violence in recent times. This is consistent with the mother’s evidence that the last incident, when a bottle of water was poured over her, occurred in 2015 and the ongoing risk was found to be the father’s “tendency to email the mother in a denigrative, abusive and intimidatory fashion” [74]. The adverse effects of this behaviour on the mother was recognised and thus the orders were framed to minimise contact between the parties and the need for them to discuss matters about their daughter. His Honour aimed to achieve “a form of parallel parenting intended to limit the need for parental consensus” and communication [80]. Thus, although the risk of further abusive email communication was accepted, it is apparent that the primary judge designed the child’s future arrangements to reduce the magnitude of the risk to acceptable levels, including as to the effect on the mother. The effect of this is the contention that the primary judge failed to have adequate regard to the father’s “denigratory, abusive and intimidatory conduct” should be rejected (Grounds 3 and 5).
We have outlined numerous findings as to the valuable, affectionate and strong relationship between the child and the father, which the child enjoys and is important to her. It is these findings which the primary judge “balance[d]” ([72], [75]) against what might be termed the findings as to “risk” discussed above and which resulted in the decision that the child should have an ongoing relationship with the father along the lines ordered. The contention raised by Ground 2 that the primary judge failed to expose his reasons for orders in favour of time should be rejected.
Although it is beyond the scope of the grounds of appeal and strictly need not be addressed, we have considered and reject the submission that the primary judge failed to have regard to and made orders inconsistent with s 60CG(l)(b) of the Act. The submission asserts that because of the “finding that the father was a perpetrator of family violence, then orders requiring the child to spend time with the [f]ather expose the [m]other to ongoing unacceptable risk of family violence” (mother’s Summary of Argument filed 28 January 2020, paragraph 75). The submission conflates the finding of family violence with the assessment of the risk of future family violence. However, s 60CG(1)(b) charges the court to make orders “to the extent that it is possible to do so consistently with the child’s best interests” and that “[do] not expose a person to an unacceptable risk of family violence”. This is precisely what occurred.
It is uncontroversial that faced with the same facts, judges may permissibly reach different conclusions (CDJ v VAJ (1998) 197 CLR 172 at [152]). This is the essence of judicial discretion and acknowledges that the weight given to individual matters is primarily the preserve of the trier of fact. Considered in this light, we do not accept that the primary judge erred in the assessment of risk. The preceding discussion is also sufficient to reject the contention that the primary judge “failed to give proper, genuine and realistic consideration to… s 60CC(2)(b)” of the Act which relevantly required the Court to consider “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, family violence” (mother’s Summary of Argument filed 28 January 2020, paragraph 77). This issue was identified in the opening paragraphs of the trial reasons and more or less everything that followed engaged the point (Ground 4).
Was the evidence manifestly inadequate?
The gravamen of this challenge is tidily summarised in the mother’s Summary of Argument as follows:
83.By Ground 1, the Mother contends that the primary judge erred in principle by declining to order that an updated family report be prepared, or to provide adequate or any reasons for such refusal in circumstances where:
a.the family report available to the Court was based on interviews and assessments made more than two years prior to the hearing of the proceedings;
b.subsequent to the interviews and assessment which informed the welfare report, there had been developments which were material to the issues before the Court with respect to which an up to date family report would have been capable of providing expert opinion evidence to assist the Court, and;
c.the [father’s] contact with the child the subject of the proceedings had been suspended, and then resumed on a supervised basis before being suspended again.
(Mother’s Summary of Argument filed 28 January 2020) (As per the original)
Thereafter, at paragraphs 84–96, counsel for the mother set out the “uncontested facts” and submissions as to why the primary judge erred in twice refusing the mother’s application for a new or updated family report. At paragraphs 88 and 89 of that summary, the uncontroverted facts include that the primary judge dismissed those applications. Unfortunately, this is a selective account of the indisputable facts and creates a false impression of what occurred. By reference to the trial transcript, counsel for the father established that the mother did not proceed with either application. We were surprised when counsel for the mother, who also appeared at trial, was unwilling to concede the point and that it was only after being repeatedly taken to the trial transcript that counsel agreed the applications had been withdrawn (Transcript 12 February 2020, p.47 lines 13–16). No other interpretation of what occurred below is available and we are troubled that this challenge was presented as it was; indeed that it was presented at all.
It is trite that a party is bound by the conduct of their case. The applications for further reports having been withdrawn, it is not open for the mother to complain on appeal that they were not granted.
This ground has not been made out.
Conclusion and Costs
The mother has established error in relation to the school holiday orders but no more. That error has its genesis in the primary judge’s mistake as to the orders sought by the mother. Given that neither party challenged his Honour’s finding of fact, we see no reason why the primary judge could not deal with the remitted hearing on the point. However, the conduct of the remitted hearing will be a matter for the Federal Circuit Court. Thus, Orders 4(b) and (c) will be set aside and an order for a remitted hearing will be made.
This is not a case where an order for costs would be appropriate. Each of the parties secured a measure of success and there is no other factor which would justify an order for costs.
In the event the appeal was allowed in whole or in part, both parties sought costs certificates pursuant to the Federal Proceedings (Costs) Act1981 (Cth). The conditions for costs certificates are met and, given that the appeal will be allowed due to an error by the Court, to which neither party contributed, it is appropriate that they have costs certificates for the appeal and remitted hearing.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) delivered on 6 August 2020.
Associate:
Date: 6 August 2020
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