Bielen & Kozma
[2022] FedCFamC1A 221
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Bielen & Kozma [2022] FedCFamC1A 221
Appeal from: Kozma & Bielen [2022] FedCFamC2F 1003 Appeal number: NAA 184 of 2022 File number: BRC 10040 of 2020 Judgment of: MCCLELLAND DCJ, HENDERSON & HARPER JJ Date of judgment: 20 December 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal against final parenting orders changing the children’s residence from mother to father following a finding that the mother posed an unacceptable risk of harm to the children due to her belief that the children had been subjected to sexual abuse by the father – Where the children are currently aged 4 and 6 – Where the primary judge ordered no time with the mother – Where the primary judge failed to give consideration of methods of risk amelioration before considering no time as a last resort – Error established – Appeal allowed – Matter remitted for re-hearing on discrete issue – Costs certificates granted for the appeal. Legislation: Family Law Act 1975 (Cth) Part VII, ss 43(1)(c), 60B, 60CA, 60CC, 65DAA
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9
United Nations Convention on the Rights of the Child
Cases cited: A v A (1998) FLC 92-800; [1998] FamCA 25
B and B: Family Law Reform Act 1995 (1997) FLC 92-755; [1997] FamCA 33
Bant & Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222
Blinko & Blinko [2015] FamCAFC 146
Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Director-General, Department of Community Services; Re Thomas (2009) 41 Fam LR 220; [2009] NSWSC 217
Fairfield & Hoffman (2021) FLC 94-045; [2021] FamCAFC 151
Helbig & Rowe [2016] FamCAFC 117
House v The King (1936) 55 CLR 499; [1936] HCA 40
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Keane & Keane (2021) 62 Fam LR 190; [2021] FamCAFC 1
Lovett & McGregor (2019) FLC 93-935; [2019] FamCAFC 253
Maldera & Orbel (2014) FLC 93-602; [2014] FamCAFC 135
Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21
Moose & Moose (2008) FLC 93-375; [2008] FamCAFC 108
Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96
R & C [1993] FamCA 62
Slater v Light (2013) 48 Fam LR 573; [2013] FamCAFC 4
Summerby & Cadogen [2011] FamCAFC 205
Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
Willmore & Menendez [2022] FedCFamC1A 73
O v S (Palmerston North, FAM 2003-054-000859, 21 January 2005)
Number of paragraphs: 76 Date of hearing: 5 December 2022 Place: Heard in Brisbane, delivered in Sydney Counsel for the Appellant: Mr Williams KC with Ms Horsley Solicitor for the Appellant: KLM Solicitors Counsel for the Respondent: Mr Alexander with Mr Thwaites Solicitor for the Respondent: O’Reilly & Sochacki Lawyers Counsel for the Independent Children's Lawyer: Mr Priestley Solicitor for the Independent Children's Lawyer: McVittie Legal ORDERS
NAA 184 of 2022
BRC 10040 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BIELEN
Appellant
AND: MR KOZMA
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCCLELLAND DCJ, HENDERSON & HARPER JJ
DATE OF ORDER:
20 december 2022
THE COURT ORDERS THAT:
1.The Appeal be allowed in part.
2.Orders 4, 7 and 8 made by the primary judge on 1 August 2022 be set aside.
3.The matter be remitted for rehearing in relation to the issue of whether and how the children will spend time and communicate with the appellant mother.
4.Pending further hearing, the children are to spend time with and or communicate with the mother as agreed between the parties.
5.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.
6.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.
7.The Independent Children’s Lawyer is granted 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 him in respect of the costs incurred by him in relation to the appeal.
IT IS NOTED:
A.That the Orders insofar as they relate to the children living with the father and the father having sole parental responsibility for the children are not being challenged by the mother in the context of the rehearing.
B.That the findings as to the mother posing an unacceptable risk to the children are not challenged by the mother in the context of the rehearing.
C.That the mother is not constrained from leading evidence as to the findings which were challenged by Ground 8 of the Amended Notice of Appeal.
D.The Court strongly encourages the parties to attend upon a mutually agreed family dispute resolution provider with a view to trying to resolve the remaining items in dispute.
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 the pseudonym Bielen & Kozma has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ, HENDERSON & HARPER JJ:
Introduction
This appeal concerns the parenting arrangements for the two children of the relationship. They are aged 4 and 6. Orders have made by a judge of Division 2 of the Federal Circuit and Family Court of Australia to remove them from the care of their mother, the appellant in this appeal, as a result of findings that they had been subject to emotional and psychological abuse arising from the mother’s ongoing false narrative that they had been the subject of sexual abuse perpetrated by the respondent father and other associates of the father.
In light of finding that the mother’s views and manner of engagement with the children was unlikely to change through a programme of therapy, the primary judge determined that the children would be exposed to an unacceptable risk of ongoing emotional harm such that, other than the provision of cards on special occasions, the mother should spend no time and have no communication with the children. That restraint was expressed to apply indefinitely until such time as the mother could satisfy the Court or the father that she had abandoned her false narrative of the alleged abuse.
We have upheld the appeal primarily on the basis that, in circumstances where the primary judge had identified an unacceptable risk of the children suffering psychological harm in the care of the mother, the primary judge failed to consider whether steps could reasonably be taken to allow the children to retain their meaningful relationship with their mother, to the maximum extent possible, consistent with protecting them from that identified risk. The indefinite severance of the children’s relationship with their mother was, in those circumstances, disproportionate to the identified risk.
Background
It is useful to set out the background to this appeal which has been helpfully detailed in the parties’ respective Summaries of Argument.
The parties married in 2015 and separated in May 2019.
There are two children of the parties’ relationship, X, born in 2016 who is six years of age, and Y, born in 2018 who is four years of age (“the children”).
Following the parties’ separation in 2019, the children lived primarily with the mother and spent limited time with the father (on a supervised and, at times, unsupervised basis). Time ceased and recommenced at various points in time and can be broadly summarised as follows:
·Between May 2019 and July 2019, the mother withheld the children.
·Between July 2019 and December 2019, the mother allowed daytime contact two days per week.
·Between January and March 2020, the mother increased contact to 3–4 hours during the day, 3–4 days per week.
·In May 2020, the mother ceased unsupervised time.
·In June 2020, the mother ceased all time.
·In January 2021, orders provided for supervised contact to commence for 2 hours, twice per week.
·On 19 March 2021, orders were made for unsupervised time to commence twice per week.
·In late July 2021, the mother breached orders and ceased all time. This remained until the commencement of the hearing.
Following separation, there were some 26 reports made to the NSW Department of Communities and Justice as well as numerous calls to NSW Police as to risk of sexual harm to children. Most were made by the mother.
The father commenced proceedings on 29 July 2020 in the Federal Circuit Court of Australia (as it was then known).
A Family Report was released in December 2020 and an updated Family Report was subsequently released in February 2022.
As at the commencement of the final hearing in May 2022, the children were living with the mother and had not spent time with the father in the preceding 10 months.
The final hearing proceeded before the primary judge over five days in two parts, being from 23–25 May 2022 and 1–2 June 2022.
At the conclusion of the last day of hearing, interim orders were made for the children to spend time with the father to the exclusion of the mother until the return of the proceedings on 1 August 2022.
On the return date, the primary judge delivered her reasons for judgment and made final orders which inter alia provided for:
(a)the children to live with the father;
(b)the children to spend no time with, and have no communication with the mother “unless otherwise agreed to in writing between the parties”; and
(c)a restraint against the mother from attempting to spend time with or communicate with the children.
As an exemption to the restraint on the mother communicating with the children, the orders permitted the mother to “send a card only to the children on their birthdays and at Christmas with the father to provide the cards to the children in a timely manner”.
Relevantly, as noted by the Independent Children’s Lawyer (“ICL”) and the father in his Summary of Argument filed 18 November 2022, there has been no challenge to the following findings made by the primary judge:[1]
[1] Father’s Summary of Argument filed 18 November 2022, paragraph 4.
(a) the respondent (father) did not pose a risk of harm to the children;
(b)the allegations made by the appellant (mother) were disingenuous and malicious;
(c) the allegations made by the appellant were embellished and / or fabricated;
(d)the children had been exposed to an unacceptable risk of emotional and psychological harm in the mother’s care;
(e)it was possible, and highly probable that heading into the future this unacceptable risk of harm will continue for the children by the mother;
(f)the findings made against the appellant support that the children are at an unacceptable risk of harm from the mother; and
(g)the appellant holds a ‘rigid maintained view that the father is a sexual predator’ and that she ‘does not have an ability or insight in the future to protect the children from her views or her family’s views about the father’.
(Citations omitted)
Grounds of appeal
By her Amended Notice of Appeal filed on 28 October 2022, the mother appeals on the following grounds:
1. The primary judge erred in law in failing to consider the “primary consideration” of the benefit to the children of having a meaningful relationship with both of their parents pursuant to subsections 60CC (1) and (2).
2.The primary judge erred in law in failing to consider any of the “additional considerations” pursuant to subsections 60CC (1) and (3), and specifically.
…
2.2the likely effect, if any, of the changes in the children’s circumstances, including the likely effect on the children of any separation from a parent;
…
2.4whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.
…
4.The primary judge erred in law, in that the exercise of discretion resulted in an outcome that was plainly wrong or unjust, having regard to:
4.1 the failure to consider the impact of the parenting orders on the children;
4.2the young ages of the children;
4.3 the complete severance of the children's relationship with a parent with whom they had lived after separation;
4.4 the failure to consider or give adequate weight to the mitigation of risk.
…
6. The primary judge’s reasons are inadequate in that:
6.1 it is not possible to discern the path of reasoning; and
6.2it is not possible to discern with clarity the legal principles her Honour applied in determining what orders are in the children’s best interests.
7.The primary judge erred by failing to consider, or failing to give adequate consideration to,
7.1whether any condition would sufficiently ameliorate the risk as identified by her Honour; and
7.2whether any other order was available to enable the children to have the benefit of a meaningful relationship with their mother.
8. The findings made the primary judge that:
8.1effective therapeutic assistance is required for the mother before any time can be spent by the mother with the children and any communication occur between mother and the children;
8.2until there is a significant shift in the mother’s view, ordering therapy to take place in any moratorium period imposed by the court will be ineffective, and will not address the unacceptable risk that the mother poses for the children;
8.3therapy will be ineffective as the mother does not consider her views and beliefs as being wrongly held. Leading to an outcome that after any moratorium period expires, the children will again be exposed to an unacceptable risk in the care of the mother;
8.4therapy alone without the involvement and support of the family, is unlikely to be affected (sic); and
8.5in order for any type of therapy to be effective for the mother it would be necessary not only for the mother but for the maternal grandmother, maternal grandfather and maternal aunt to be involved in the therapy, be supportive of the therapy and of the outcome of the therapy;
were either not open on the evidence or against the weight of the evidence.
(As per the original)
For reasons which we subsequently explain, we are satisfied that there is merit to Grounds 1, 2 and 7. It is necessary for the matter be remitted for re-hearing and, in those circumstances, it is unnecessary to consider the remaining grounds.
In circumstances where it was confirmed by the appellant during the course of the appeal that there was no challenge to the findings of the primary judge that the children are at an unacceptable risk of harm in the care of the mother, such that an order for change of residence is justified, all parties agreed that it is appropriate that the remittal of the matter for re-hearing be confined to the issue of whether and how the children will spend time and communicate with the mother.
Statutory framework
The applicable law and procedures for determining disputes concerning parenting arrangements for children is set out Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Relevantly, in the context of this appeal, an important object of Part VII is set out in s 60B(1)(a) of the Act, namely, to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child
(Emphasis added)
Section 60B(2) sets out the principles underlying the objects of the Act and relevantly includes that, except when it would be contrary to the child’s best interests:
(a) children have the right to know and be cared for by both their parents …
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)
Section 60B(4) of the Act provides that an additional object of Part VII is to give effect to the United Nations Convention on the Rights of the Child (“the Convention”).
Even without that specific reference, authorities establish the interconnectedness between the rights of children, as referred to in s 43 of the Act, and the Convention. In Director-General, Department of Community Services; Re Thomas (2009) 41 Fam LR 220, Brereton J, in that respect stated (at [37]):
… it is material that Family Law Act, s 43(c), provides that the court, in the exercise of its jurisdiction, must have regard to the need to protect the rights of children and to promote their welfare: B & B at Fam LR 739; FLC 84,226 [10.7]. In B & B, the court rejected the Attorney-General’s submission that s 43 could not be interpreted as applying to CROC, and thought it difficult to see how CROC could be considered not to be relevant: B & B at Fam LR 739; at 84,226 [10.9]–[10.13]. Indeed, CROC is entitled to special significance because it is almost an universally accepted human rights instrument, and is a declared instrument appearing in the schedule to the Human Rights and Equal Opportunity Commission Act 1986 (Cth), and thus has much greater weight than an ordinary bi-lateral or multi-lateral treaty not directed at such ends: B & B at Fam LR 739; FLC 84, 227 [10.14]–[10.19].
Article 9 of the Convention requires State Parties to the Convention to
ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.
(Emphasis added)
In O v S (Palmerston North, FAM 2003-054-000859, 21 January 2005) at [38], it was noted that:
38. …
…
8.… cases have generally referred to Article 9.3 of the Convention which provides “states parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests”. Article 9 cannot however, be looked at in isolation by reason of interactions with Articles 7 & 18 of the Convention. The UNICEF "Implementation Handbook for the Convention on the Rights of the Child" 2002 Edition states at page 250 that “This [Article 9.3] together with Article 7 (Child's Right to Know and be Cared for by Parents) and Article 18, implies that the law should presume that, unless it is proved to the contrary, the continued involvement of both parents in the child's life is in his or her best interests”.
(Emphasis in original)
In Masson v Parsons (2019) 266 CLR 554 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child” (Bold emphasis added).
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act. This means that the focus of parenting proceedings should be on “the effect on the child” of the parties’ respective proposals (Fairfield & Hoffman (2021) FLC 94-045 at [71]).
That approach is also mandated by s 43(1)(c) of the Act, which provides that in exercising jurisdiction under the Act, the Court “must” have regard to “the need to protect the rights of children and to promote their welfare.”
While used on several occasions in the Act, there is no definition of the “welfare” of the child. We are of the view, however, that consideration of matters impacting upon the welfare of the child necessarily involves focusing upon the immediate, medium and long-term impact of proposed orders upon the child’s physical, emotional and psychological safety, security and well-being.
In undertaking that important task, s 60CC of the Act sets out the list of matters that the Court “must consider” in determining what is in the children’s best interests. We note that in Maldera & Orbel (2014) FLC 93-602 (“Maldera”) at [74]–[75], an earlier Full Court, after discussing B and B: Family Law Reform Act 1995 (1997) FLC 92-755, confirmed the facultative provisions are s 60CA, s 60CC and (where it applies) s 65AA, and explained s 60B (after amendments in 2006) provides “context, indicate[s] the legislative intention or purpose of the part and otherwise operate as an aid to construction of the part and the Act”. So while the s 60B objects cannot be used “to change the ordinary and clear meaning of s 60CC” (Maldera at [75]), the High Court has made clear the matters set out in subsections 60CC(2) and (3) are to be considered in a manner that is “consistent with the objects of Pt VII” to which we have earlier referred (Bondelmonte v Bondelmonte (2017) 259 CLR 662 (“Bondelmonte”) at [32]). Consequently, the s 60B objects must inform the Court’s process of consideration required by s 60CC.[2]
[2] The Full Court in Maldera at [75] also rejected the argument “that where the s 60CC deliberations do not enable the court to determine whether or not a parenting order is in a child’s best interests, s 60B may be decisive.” It is not necessary to adopt or express a view here as to the correctness of this conclusion.
Specifically, s 60CC(1) provides that “… in determining what is in the child’s best interests the Court must consider the matters set out in subsections (2) and (3).” This is a mandatory obligation on a judge.
Section 60CC(2) sets out the primary consideration as follows:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: s 60CC(2)(b) of the Act. The application of this subparagraph appears to have been determinative in the mind of the primary judge. For reasons which we explain, the trial judge was nonetheless required to give some consideration to the prospective benefit of the children’s relationship with their mother (s 60CC(2)(a)) and the additional considerations in s 60CC(3) to the extent that they were relevant to the disposition to this matter.
Section 60CC(3) of the Act sets out additional considerations which can conveniently be grouped as follows:
·Issues relating to the children – their views, level of maturity, culture and relationships: ss 60CC(3)(a), (b), (g) and (h).
·Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility: ss 60CC(3)(c), (ca), (f) and (i).
·Issues of family violence: ss 60CC(3)(j) and (k).
·Effect of change: s 60CC(3)(d) (which will be expanded upon below).
·Practical difficulty of implementation: s 60CC(3)(e).
·Avoiding further proceedings: s 60CC(3)(l) (which will be expanded below).
·Other relevant matters: s 60CC(3)(m).
Relevantly, for the purpose of these proceedings, s 60CC(3)(d) requires the Court to consider,
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
For reasons which we subsequently explain, we are of the opinion that the primary judge was in error in failing to consider s 60CC(2)(a) and any factor contained within s 60CC(3), particularly s 60CC(3)(d).
Consideration
Grounds 1 and 2
Mere failure to refer to a relevant statutory provision does not establish an appellable error (Willmore & Menendez [2022] FedCFamC1A 73 at [93] (“Willmore”) and the cases cited therein). However, the mandatory legislative direction set out in s 60CC(1) of the Act that, in determining what is in the child’s best interests, “the court must consider the matters set out in subsections (2) and (3)” requires the Court to give “proper, genuine and realistic consideration” to those matters that are relevant to the circumstances of the case (Lovett & McGregor (2019) FLC 93-935 at [72]). The failure to take into account a relevant material consideration set out in s 60CC(2) and/or s 60CC(3) amounts to a failure to exercise the discretion entrusted to the Court and constitutes an appellable error within the principles adumbrated in House v The King (1936) 55 CLR 499 at 504–505 and Bondelmonte at [32]–[33].
It is often the case that a trial judge will specifically note, in the body of the judgment, that they have considered relevant statutory provisions but have not specifically referred to them because they have not regarded the consideration or considerations as being relevant or, more accurately, sufficiently relevant to the issues to be determined in the proceedings. Such an approach is entirely appropriate. It is not necessary for a judge, who is exercising a discretionary judgment, to detail each factor which they have found to be relevant or irrelevant to the decision that he or she has made, providing that the reasoning for arriving at their decision is sufficiently clear (Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386). Equally, it may be apparent from the reasons for judgment of a trial judge, that they have considered a relevant statutory criteria even though they have not made specific reference to it. As noted, such an approach does not give rise to appellable error (Willmore).
However, neither of those scenarios occurred in this case. At [136] of her reasons for judgment, the primary judge specifically stated:
As findings have been made as to the mother posing an unacceptable risk to the children and that time and communication between the mother and the children must cease then it is unnecessary to explore the remaining primary consideration and additional considerations contained in section 60CC.
(Emphasis added)
Ground 1
As there are only two primary considerations set out in s 60CC(2), it must necessarily be the case that the primary judge’s reference to the “remaining primary consideration” is a reference to s 60CC(2)(a), that is, the potential benefit to the children of continuing to enjoy the benefit of having a meaningful relationship with their mother who, at the time of the orders, was the primary attachment figure of these young children.
In Tibb v Sheean (2018) 58 Fam LR 351 (“Tibb”) at [83]–[87], the Full Court made clear that while the Court must “consider” each of the primary and additional considerations in s 60CC, express discussion is not necessary. The question whether a judge has engaged in the internal mental process of consideration will be answered by the “overt” and “objective” manifestations emerging from the judgment, “the proposals of the parties; their evidence; the manner in which they have run their case and, for example, matters canvassed during the trial” (Tibb at [87]). Counsel for the respondent contended that the stated failure of the primary judge to “explore” the consideration set out in s 60CC(2)(a) or the other consideration set out in s 60CC(3) should not be construed as a statement that she failed to “consider” those matters. We disagree. While it is true “explore” could refer to an internal mental process of consideration, in the context of the issues at trial and the parties’ proposals, which plainly raised a prospective relationship with the mother for consideration, the judgment is bereft of any overt or objective manifestation that the primary judge undertook this essential task. The fact that she failed to give “proper, genuine and realistic consideration” in a manner that was consistent with the objects of Part VII of the Act, to which we have referred, is apparent from the judgment. Nowhere in the body of the judgment does the primary judge set out her assessment of the consequences for these young children of losing the benefit of a meaningful relationship with their mother. In our view, [136] can only sensibly be construed as a statement by the primary judge that she consciously failed to consider s 60CC(2)(a) and s 60CC(3) because she viewed her conclusions regarding s 60CC(2)(b) as determinative. This constitutes appellable error.
Accordingly Ground 1 of the appeal has merit and is upheld.
Ground 2
Ground 2 of the appeal is related to Ground 1 in that both grounds arise from the statement of the primary judge, set out at [136], that the primary judge failed to “explore” the relevant considerations set out in s 60CC(3) of the Act. In that respect, Ground 2 of the appeal refers to the considerations set out in s 60CC(3)(d), which required the primary judge, in the circumstances of this case, to consider the impact of change on the children.
We have rejected the respondent’s contention that the statement by the primary judge that she failed to “explore” the other considerations set out in s 60CC(3) did not amount to a statement that she had failed to give “proper, genuine and realistic consideration” to those matters, and specifically the impact of change upon the children.
The fact that she so failed to do so is apparent from the judgment. Despite several requests, counsel for the respondent was unable to refer us to where the primary judge referred to the impact upon the children of the orders that she made. Those orders had the effect of removing them indefinitely from their primary attachment figure. The reference made to [113] of the reasons did not, with respect, assist the respondent. That paragraph refers to the finding of the primary judge that a moratorium on the children spending time with the mother was necessary to allow time “for the children to adapt to living in the father’s household and being free of any risk of further allegations against the father.” No reference was made to the impact upon the children of the orders that required them to adapt to that change.
In that respect, in circumstances where the first time that the prospect of the father seeking orders for the children to spend no time with the mother was raised by counsel for the father only after the close of the mother’s evidence, the mother was not availed of the opportunity of presenting evidence of the impact of such an order upon the children. There is no consideration in the judgment of the immediate and longer term impact on the children’s emotional and psychological safety, security and well-being in being removed immediately from their mother’s care and spending no time with her. As acknowledged by the Full Court in Bant & Clayton (2015) 53 Fam LR 621 at [55] and [88], which upheld the findings of the trial judge, on the facts of the case considered by the Full Court, such an outcome had the potential to be “profoundly damaging for [the child’s] future development.”
This is a difficult case and the primary judge was tasked with considering the potential impact of removing the children from their primary carer and indefinitely severing the children’s relationship with her, as against the risks to the children of communicating and/or spending time with her. The primary judge failed to undertake that holistic exercise which was crucial to the proper consideration of the relevant statutory criteria. It is apparent that the primary judge did not follow the statutory pathway and consider the relevant factors under s 60CC(3) of the Act. Had she done so, there may well have been a different outcome than the indefinite suspension of the children’s time and communication with their mother.
Such a failure to do so constitutes appellable error. We therefore uphold Ground 2.
Ground 7
Ground 7 essentially raises the issue of proportionality. That is, it is contended that, while it was appropriate for the primary judge to make an order for a change of residence in circumstances where she found the children were exposed to an unacceptable risk of emotional and psychological harm in the mother’s care, the primary judge failed to consider alternatives to an order for indefinite suspension of the children’s right to communicate with and/or spend time with their mother.
In Helbig & Rowe [2016] FamCAFC 117, the Full Court explained at [214] (citing A v A (1998) FLC 92-800), that where a case is conducted on the basis of it being contended that there is an unacceptable risk of harm to a child in the care of one parent, “[t]he first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk” (Emphasis added).
After referring to and applying that decision, the Full Court in Keane & Keane (2021) 62 Fam LR 190 at [84] stated:
In undertaking the task of considering what steps are “proportionate to the degree of risk”, the decision of Blinko makes it clear that the mere finding that a child may be at an unacceptable risk as a result of spending time in the care of another parent does not conclude the task before the primary judge. A necessary consequence of that finding, having regard to the totality of matters that the court is required to consider pursuant to s 60CC of the Act, is for the court to contemplate whether steps can be taken to ameliorate or mitigate against that risk such that the child can maintain a meaningful relationship with the other parent.
(Emphasis added)
In Summerby & Cadogen [2011] FamCAFC 205 at [95], the Full Court also noted the potential adverse impact upon a child of permanent separation from their parent and, in the context of that case, agreed with and applied the analysis of the trial judge in those proceedings to conclude that “the termination of a child’s relationship with one of her parents is a course of last resort.”
Given the potential consequences for a child of such a separation, careful consideration is required on the part of a trial judge before reaching a conclusion of no time and no communication. This is made clear in Blinko & Blinko [2015] FamCAFC 146 (“Blinko”) where the Full Court said at [28]:
The authorities dealing with cases of unacceptable risk are replete with exhortations to trial judges to “consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard”: see for example N and S and the Separate Representative (1996) FLC 92-655 at 82,714. That extends not merely to the identification and analysis of the risk itself, but also to the imposition of conditions or other safeguards in relation to the non-resident parent.
Having determined that the children were at an unacceptable risk of harm in remaining in the primary care of the mother, it was incumbent upon the primary judge to consider whether that risk could be mitigated in a manner that was consistent with the objects to Part VII to which we have referred. Relevantly, in this case, that included the possibility of the children spending supervised time with their mother (see Blinko at [83] referring to R & C [1993] FamCA 62).
This is made clear at [103(b)(iv)] where the primary judge noted that an issue requiring determination in the proceedings was whether the unacceptable risk posed to the children of spending time in the care of the mother could be “minimised by supervised time for the mother with the children if the mother took positive steps to address her negative views of the father.”
That was an entirely appropriate and indeed, on the authorities, necessary question for the primary judge to address. Regrettably, however, the primary judge failed to adequately do so, having found at [116] “that effective therapeutic assistance is required for the mother before any time can be spent by the mother with the children and any communication occur between the mother and the children” (Emphasis in original).
Further, the primary judge doubted that any therapy would be effective because the likelihood that the mother would be “able to shift these entrenched wrongly held views of the father are minimal” (at [103(b)(v)]). As a prelude to reaching that conclusion, the primary judge found at [119] that:
(d) The mother’s offer in her proposed order to undergo therapy in the moratorium period was lip service only as the mother does not consider her views and beliefs as being wrongly held and therefore therapy will be ineffective …
…
(i) In order for any type of therapy to be effective for the mother it would be necessary not only for the mother but for the maternal grandmother, maternal grandfather and maternal aunt to be involved in the therapy, be supportive of the therapy and of the outcome of the therapy.
The primary judge doubted such support from family members would be forthcoming because “[t]he evidence given by the family members does not acknowledge the need for therapy for the mother or that they would participate in such therapy” (at [119(j)]).
Accordingly, the primary judge determined that, other than by way of receipt of cards on special occasions, the children should spend no time and have no communication with the mother “until such time as the mother can convince either the court or the father that the mother and her family no longer pose an unacceptable risk to the children” (at [131]).
The primary judge arrived at that conclusion despite stating she accepted the opinions and recommendations of the Family Report writer. This must necessarily have included the opinion of the Family Report writer in oral evidence that, in the absence of it being established that the mother’s allegations against the father were made maliciously, he would support the children spending time with the mother on a supervised and even unsupervised basis. In that respect, the evidence was:
… if there was going to be a change of residence, it would be important that the father had time to settle the children into his care and get into the normal routines of the children doing child care, school, whatever they might be doing, allow the children to bed down in his home, and then I would think it would be appropriate for them to have contact with their mother. I don’t necessarily think it should be supervised. I would – you would trust or hope that the mother would not raise any sexual matters with the children if she is spending time with them, and I think that would be one of the conditions that would be attached to her spending time with the children, rather than it being supervised.
(Transcript 2 June 2022, p.356 lines 27–35)
In response to a question from counsel for the father, the Family Report writer conceded that his view on the appropriateness of the children spending time with the mother would be different if the Court found that the mother’s allegations against the father were malicious. Significantly, the primary judge found that the mother’s allegations were malicious. Even so, there was no articulation by the Family Report writer or the primary judge as to why, as a matter of logic, supervision of the children’s time with the mother would be effective to mitigate against risk in the event of the mother’s allegations against the father being misguided, but the same supervision would be ineffective in circumstances where it was found that the mother’s allegations were made with malicious intent.
There was no explanation by the primary judge as to why a professional supervisor would be able to effectively monitor and, if necessary, terminate inappropriate communication between the mother and the children in the first scenario but not in the second scenario. On several occasions during the course of the appeal, counsel for the respondent was invited to indicate where in the judgment such an explanation had been provided by the primary judge, but he was unable to do so. We have found no such explanation.
Given the potential impact upon the children of orders terminating their relationship with their mother for an indefinite period, it was incumbent upon the primary judge to explain why, as a matter of logic, there was such a difference in the prospective effectiveness of supervision in either of the scenarios to which we have referred. The primary judge’s failure to do so resulted in orders terminating the children’s relationship with their mother. That order was, in our view and in the circumstances of this case, disproportionate to the risk to be mitigated.
For completeness, we note that it was contended by the ICL that it can reasonably be inferred, from the evidence presented in the proceedings and the reference by the primary judge to authorities including Moose & Moose (2008) FLC 93-375, that the primary judge concluded that, in circumstances where she was unable to predict that the therapy proposed by the mother and the ICL would be effective, it was inappropriate to make orders for the children’s time with the mother to be supervised because that supervision could potentially be for an indefinite period, and the authorities support the undesirability of indefinite supervision. In the absence of adequate explanation by the primary judge, it is, however, not possible to conclude that was the basis of her reasoning.
Moreover, if it is the case that the primary judge adopted the reasoning described by the ICL, it would have been necessary for the primary judge to have considered, applied and explained the potential relevance of a broader spectrum of authorities than those referred to in her judgment, to the facts of this case.
In that respect, we recognise that there are a number of pronouncements by the Full Court expressing disapproval of parenting orders which see protracted or indefinite supervision of the child’s time with a parent: see for example Slater v Light (2013) 48 Fam LR 573 at [38]–[40]. However, as noted by Tree J in Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96 at [19], the views expressed in such cases are not legislative edicts and each case must be decided on its own facts, including whether, in the particular circumstances of this case, an order for supervision was justified even though it could potentially be for an indefinite period.
As we have earlier observed, the primary judge anticipated that the mother may become engaged in protracted therapy, given its purpose would be to address what the primary judge found to be unjustified concerns that the children had been sexually abused by their father. That finding did not, however, relieve the primary judge from the obligation to consider a range of potential orders that could mitigate against the children being subjected to a risk of psychological harm, in being separated from their primary carer by ensuring these young children retained a meaningful relationship with their mother “to the maximum extent possible”, having regard to the finding of unacceptable risk in living with their mother. Again, the prospect of supervision of the children’s time with the mother, pending completion of that therapy, stands out as a factor that should have been given proper consideration and, with the greatest of respect to the experienced primary judge, she failed to do so.
Accordingly, we are satisfied that this ground of appeal has merit and should be upheld.
Disposition
As a result of upholding Grounds 1, 2 and 7 of the Amended Notice of Appeal filed on 28 October 2022, the matter must be remitted for re-hearing at least in respect to the arrangements for the children to communicate and spend time with the their mother. In those circumstances, it is unnecessary to consider the remaining grounds of appeal (Boensch v Pascoe (2019) 268 CLR 593 at [8]).
As we have earlier noted, all parties agreed that in the event that we upheld the appeal, it is appropriate for the matter to be remitted for re-hearing on the limited issue of whether and how the children will spend time and communicate with the mother.
We propose to make orders to that effect as proposed by the appellant together with notations which were supported by the ICL.
Costs
As the appellant has succeeded on a question of law, and as the appellant and respondent have made the relevant applications, costs certificates are granted in respect of the appeal in accordance with s 6 and s 9 of the Federal Proceedings (Costs) Act 1981 (Cth).
We are not, however, minded to grant such certificates with respect to a re-hearing in circumstances where we strongly recommend that the parties confer with a view to resolving the remaining issues in dispute.
Orders pending further hearing
In circumstances where it will be some weeks before this matter comes before a judicial officer, we will make an additional order that the children are to spend time and/or communicate with the mother as agreed between the parties.
While it may be difficult to arrange at this time of the year, we strongly encourage the parties to attend upon a mutually agreed family dispute resolution provider with a view to trying to resolve the remaining items in dispute.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Henderson & Harper. Associate:
Dated: 20 December 2022
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