BLINKO & BLINKO
[2018] FamCAFC 104
•4 June 2018
FAMILY COURT OF AUSTRALIA
| BLINKO & BLINKO | [2018] FamCAFC 104 |
| FAMILY LAW – APPEAL – CHILDREN – Family Violence – Where father has previously engaged in family violence – Determined that father does not now pose risk to the child but mother believes he does – Expert evidence that contact between child and father would have serious adverse effect on mother’s parenting ability – Expert evidence that child would ultimately grieve loss of relationship with father – Whether the primary judge failed consider a risk of psychological harm to the child when refusing father’s application to spend time and communicate with the child – Failure to make injunction to mitigate a known risk to the child – Whether the primary judge failed to balance of number of risks to the child – Best interests of the child – Whether the primary judge considered the entirety of the evidence – Appeal against failure to make injunction allowed and injunction made - Appeal otherwise dismissed. FAMILY LAW – APPEAL – COSTS – Where both parties partly successful – Where the appeal raised matter of substance – Mother’s application for costs dismissed. |
| Family Law Act 1975 (Cth) s 68B |
| A v A (1998) FLC 92-800; [1998] FamCA 25 House v The King (1936) 55 CLR 499; [1936] HCA 40 Russell & Close [1993] FamCA 62 |
| APPELLANT: | Mr Blinko |
| RESPONDENT: | Ms Blinko |
| INDEPENDENT CHILDREN’S LAWYER: | Jennifer Boulton Solicitor |
| FILE NUMBER: | BRC | 6136 | of | 2010 |
| APPEAL NUMBER: | NA | 30 | of | 2017 |
| DATE DELIVERED: | 4 June 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Strickland, Ryan & Aldridge JJ |
| HEARING DATE: | 6 February 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 June 2017 |
| LOWER COURT MNC: | [2017] FCCA 1362 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Bunning |
| SOLICITOR FOR THE RESPONDENT: | Cherry Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Cameron |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Jennifer Boulton Solicitor |
Orders
The appeal be allowed in part.
The mother be restrained from denigrating the father or discussing the court proceedings with child.
Otherwise the appeal be dismissed.
The mother’s application for costs be dismissed.
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 Blinko & Blinko 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 BRISBANE |
Appeal Number: NA 30 of 2017
File Number: BRC 6136 of 2010
| Mr Blinko |
Appellant
And
| Ms Blinko |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed 26 July 2017, Mr Blinko (“the father”) appeals parenting orders made by Judge Dunkley on 30 June 2017. Ms Blinko (“the mother”) resists the appeal. The orders relate to the parties’ daughter (“the child”) who was born in 2008.
The parties separated when the child was approximately 10 months old. Save for a few brief instances shortly after separation, the father has not seen or communicated with the child since. Indeed the child has not had any form of contact with the father since she was 11 months of age. The primary judge was satisfied that the child now “has no relationship with her father” [191].
The parenting orders provide for the mother to have sole parental responsibility for the child (Order 1), for the child to live with the mother (Order 2) and spend no time the father (Order 3). Further, the father is not to initiate any contact with the child (Order 4). The mother must provide written reports about the child’s progress and any serious health issues twice a year (Order 5). The father is restrained from responding to the mother’s communication (Order 6). The order that the child lives with the mother was agreed and although the orders issued do not say so, it was made by consent [176].
These extreme orders reflect the sad reality that notwithstanding the primary judge was satisfied that the father does not pose any risk to the child, he also accepted that the mother genuinely believes that he does. As a result, any form of contact between the father and the child would see the mother unable to function as a parent. Therefore, nothing other than a complete embargo on contact between the child and her father was in the best interests of the child [204].
In his Notice of Appeal the father indicates that he appeals against all the orders. However none of the grounds of appeal challenge orders 1, 2 and 5, and before us it was made clear that the gravamen of the appeal was the failure to make orders which would enable the child to establish a relationship the father, hence against orders 3 and 4. Thus, in the absence of any attempt to establish error in relation to orders 1, 2 and 5 we need not consider these matters further and can focus on the issues of real significance to the father.
Litigation between the parties has been ongoing since September 2010; a key feature of which has been the father’s desire to have a relationship with the child which the mother opposed. The orders under appeal are substantially similar to orders made by Judge Coates on 30 May 2014, which the father successfully appealed (Blinko & Blinko [2015] FamCAFC 146). The case was remitted for rehearing and it is the remitted hearing that came before the primary judge.
It is instructive to understand that at trial the father presented a carefully calibrated and sequential suite of orders which, in essence, sought to stop the mother saying unpleasant things to the child about him, require the parties to engage in therapy designed to help the mother desist and to be able to cope with the child and father being reintroduced to each other, and a gradual and supported arrangement for supervised time which would be further reviewed.
On 26 October 2010 an Independent Children’s Lawyer (“ICL”) was appointed to represent the child’s interests. Like the mother, the ICL seeks that the appeal be dismissed.
The orders sought at trial by the father
So as to provide context to the trial reasons and the appeal, it is appropriate that we set out the orders sought by the father at trial which of themselves bespeak the dilemma which his Honour faced, and indicate that the father well understood that re-establishing contact with his daughter would be fraught with difficulty. The orders sought were presented in two parts and should be read as a whole. The complexities of the proposed orders were such that they were set out in full in the trial reasons as follows:
20. The father in his written submissions sought the following orders:
1. That the mother be restrained from discussing the Court matters with [the child] and restrained from discussing or denigrating [the child]’s father to her at any time.
2. That the father receives all historic day care reports (the reports subpoenaed for this Trial that are typically given to parents of children at the Day care Centre) and historic and future school reports, to help facilitate a close and continuing relationship with [the child].
3. That psychologist [Ms N] of [Town C] undertake a series of family therapy sessions with the father and [the child] and with the mother, as outlined below.
4. As directed by the Court at Trial, [Ms N]’s qualifications and her professional fees are described in her attached curriculum vitae.
5. That prior to [the child] being re-introduced to her father, [the child] undergo six fortnightly Family Therapy sessions with psychologist [Ms N] during which [the child] is told about her father so she knows who he is, consistent with her wishes and with S60B(2)(a) of the Act and to seek out [the child]’s views and wishes on a future reintroduction with her father.
6. That any of [the child]’s questions about the father are answered - if necessary by way of [Ms N] requesting the information from the father after each session, and [the child]’s questions answered at her next session - subject to [Ms N]’s professional discretion.
7. That upon completion of the above family therapy sessions with [the child], she be introduced to her father under supervision of psychologist [Ms N] by way of thirteen fortnightly Family Therapy sessions and have the opportunity to form a positive view of him, consistent with her wishes and with S60B(2)(b) of the Act.
8. That the father pays [Ms N] directly for the separate and combined Family Therapy sessions with himself and [the child], noting that the sessions are eligible for a Medicare rebate and [the child] has always been a supplementary family member on the father’s Medicare card.
9. That the father reimburse the mother for each of her net family therapy costs (after the Medicare rebate), within three weeks of receipt of the invoice from the mother – the invoice to be sent to the father’s address by express post.
10. The mother receive counselling by way of family therapy by [Ms N] so that she may be further habituated to the concept of the father fostering a caring parental relationship with [the child]; this strategy having been successfully demonstrated by [the family report writer] in his interview with the mother and described in his testimony at trial.
11. That during the course of the father’s and [the child]’s separate and combined Family Therapy sessions with [Ms N], the mother receive a copy of [Ms N]’s notes for each session with the father.
This order would be consistent with [Dr F]’s recommendation that the mother’s anxiety might be alleviated if the father “proved” himself to the mother, and [Ms N]’s notes would be the next best thing to [Dr F]’s theory that the mother’s anxiety might theoretically be alleviated if she spent time with the father.
12. That after the completion of six months of thirteen family therapy sessions with [the child] and the father, psychologist [Ms N] writes a report with the results of the family therapy sessions and any recommendations by [Ms N].
12. [sic] That after the completion of six months of thirteen family therapy sessions with [the child] and the father, psychologist [Ms N] writes a report with the results of the family therapy sessions and any recommendations by [Ms N].
13. That in the event of a favourable recommendation by [Ms N], the father and [the child] continue to have fortnightly supervised sessions at a contact centre such as the family contact Centre at […] or [G Centre] at […].
21. At the final hearing the father had sought orders as follows:
1. That the mother be restrained from discussing the Court matters with [the child] and restrained from discussing or denigrating [the child]’s father to her.
2. That the father receives all historic day care reports (the reports subpoenaed for this Trial) and historic and future school reports, to help facilitate a close and continuing relationship with [the child].
3. That [the child] be told about her father so she knows who he is, consistent with her wishes and with S60B(2)(a) of the Act.
4. That [the child] be introduced to her father under supervision of a 65L consultant and have the opportunity to form a positive view of him, consistent with her wishes and with S60B(2)(b) of the Act.
5. That [the child] receives ongoing family therapy to help her adjust to the new situation.
6. That after six months, the Family Report be updated with the observations and recommendations of the S65 consultant.
7. That this order provides authority for [Dr F] and [Dr K] to consult with each other regarding their respective recommendations in order that they might make joint recommendation for [the child]’s well being and that they may co-ordinate further therapeutic interventions for the child [the child], if necessary, (if such consultation is permitted by law or within the ethical considerations of their professional associations).
8. That this order provides authority for [Dr F] and [Dr K] to continue to consult with each other, for the duration of this case, regarding their respective therapy with the parents in order that, if recommended or required, they may co-ordinate further therapeutic interventions for their respective patients, (if such consultation is permitted by law or within the ethical considerations of their professional associations).
* Order 8 is based on and consistent with the principles of the order of Coates FM in Slater and Slater, 2012.
* Consistent with the principle of Family Court Expert Conferences.
* Promotes a consultative and collaborative approach to assisting the child and the parents, consistent with best medical practice/procedures, which is in the best interests of the child.
* Addresses the father’s concern that [Dr F] has no information about the father and addresses the ICL’s concern that [Dr K] has no information about the mother.
* Consistent with psychiatrist [Dr K]’s recommendation of time with the father and counselling for both parents (to alleviate any co-parenting anxiety felt by the parents).
9. That due to the father having a declared hearing disability, a transcript of each hearing, including the trial dates, be supplied to the parties after each day of the hearing.
Background facts
The parties commenced living together in Town A, Queensland in late 2004 and married in 2005. At the time both parties were police officers.
The father left the police force in 2007, saying that the work was “emotionally and physically debilitating” [54]. He now undertakes building and renovation jobs. In 2007, when the mother was pregnant with the child, she went to live in Town B. According to the mother, she moved in order to “escape the father” and his aggressive and violent behaviour [112] – [114]. The primary judge did not determine that the father had been violent during this period “given there was little testing of either parents evidence” [181].
After the child was born in 2008 the mother and child remained in Town B for about four months during which the father visited regularly [52], [114]. When the child was four months old the parties reconciled and the mother and child returned to Town A and lived with the father.
In January 2009 an incident occurred involving the parties and a knife. Police attended the home and the father was admitted to Town A Hospital’s mental health ward. He was released after being assessed and the parties separated.
A Domestic and Family Protection Order was made in January 2009 naming the mother as a protected person. Shortly after this the parties entered into a written agreement for the father to spend time with the child.
The primary judge was satisfied the father was violent to the mother in the period leading up to and during separation [187].
The child saw the father for the last time on 1 March 2009.
In January 2010 the mother and child moved to Town C. The father was, and continues to be, unaware of their address. She left her job and is not in paid employment.
The expert evidence
Both parties have suffered mental health issues and since separation each has received assistance from a mental health professional. In respect of the father, in 2015 he attended upon psychologist Dr K for anxiety and dysphoria (sadness) symptoms. His last appointment was in July 2016 where no symptoms were observed [89], [90].
For the mother’s part, since 2010 she has attended upon Dr F, a psychiatrist, for treatment for depression and anxiety. Dr F gave evidence that, in his opinion, the main cause of the mother’s anxiety is “the thought or notion that [the child] will spend time with the father” [147], and did not think medication “was the answer for [the mother]’s symptoms” [143].
A Family Report was prepared for the trial by psychologist Mr S (“the family report writer”), dated 5 August 2016. The family report writer interviewed the father on four occasions in late 2015, and concluded that there were no indications that the father suffers from a diagnosable condition [159] or that the father “has any intention of harming the child directly or personally” [166]. These conclusions accord with the findings of the primary judge that “any psychological impairment experienced by [the father] is now well past” [189].
The family report writer interviewed the mother in late 2015. As the primary judge recorded at [167] the family report writer gave evidence that the mother is:
…undeniably, extremely anxious about him and fearful of him and seems to be convinced that he will harm her or [the child] … Her thinking style is one of a highly anxious person: she catastrophizes and makes many assumptions and acts on them; she thinks in black and white ways and dismisses any positive or neutral information she might have which does not support her long held and highly evolved and complex narrative regarding [the father], his behaviour and the risk he presents to her and to [the child]…. She does not appear to be out of touch with reality (sic) generally, or suffer from a psychotic or delusional condition. She is simply highly anxious in relation to her formulation of [the father]. Her formulation has not changed over time; it seems it has become more entrenched in her as time and her family law matter has progressed.
(Family Report dated 5 August 2016, paragraph 87)
Like the mother’s psychiatrist, the family report writer’s view, as set out at paragraph 88 of the Family Report, is that there is no effective treatment for the mother’s anxiety about the father. The family report writer explained the position as follows:
… I am of the opinion that nothing (such as psychological or psychiatric or allied treatment) will alter or modify [the mother]’s beliefs and associated behaviours regarding the risks the [the child] might be exposed to, should she spend any time with her father, in any form. [The mother] is beyond reassurance – by mental health professionals or by any individuals, by objectively derived determinations, by higher authorities, or by events or demonstrations of behaviour that might occur in the future.
The primary judge accepted the evidence of both the family report writer and the mother’s psychiatrist that the mother’s mental health symptoms were “real and unresolved” [183] and that she “genuinely holds her view about [the father], albeit is [sic] a mistaken view” [195]. Importantly, his Honour also accepted that there was no effective treatment for the mother’s condition:
210. … There is no recommended treatment. The only abatement of [the mother]’s symptoms occur when she believes there is no change of [the child] coming into contact with or communicating with [the father] as occurred in the period after the orders were made in 2014 and before the appeal was allowed.
The family report writer also interviewed the child. The primary judge accepted his opinion that the child was curious about her father and wanted to know information about him now rather than wait until later to know about him [164].
In relation to the ultimate issue, the family report writer recommended that the child should not establish contact with the father, because:
Based on the information available to me… I cannot suggest that [the child] be granted the opportunity to spend time with her father, in any form. I do not state this easily and have done so only after careful and extensive consideration of all that is available to me. If she were to spend time with her father, her mother would experience such a heightened state of anxiety and autonomic arousal, along with general distress, that it would impair dramatically and very significantly her capacity to provide adequate care for [the child] – for her to make everyday decisions regarding her care and to represent herself, as a parent, in the way that [the child] requires her to as her primary attachment figure and care giver. I also believe that [the mother] will simply not facilitate a relationship between [the child] and her father, even if she is compelled by the Court to do so. For [the mother] to do such a thing would require her to undo so very much of what she believes, what she has constructed and reported, what she considers as real, and is so attached to and she could not undo such things, I believe, even with the aid of a skilled and experienced therapist.
(Family Report dated 5 August 2016, paragraph 90)
The primary judge accepted this evidence and it can be seen to provide the basis for the ratio of his Honour’s decision.
The Appeal
The father raises four grounds of appeal which in essence assert that the primary judge erred as follows:
·By failing to make orders in the best interests of the child, and instead giving paramount consideration to the mother’s interests (Ground 1);
·By failing to consider the unacceptable risk of psychological harm posed by the mother, amounting to family violence, and any safeguards to mitigate that risk (Ground 2);
·By failing to balance the risks of the child having a relationship with the father against the harm caused by the child never having a relationship with the father (Ground 3); and
·By failing to consider the evidence in its entirety (Ground 4).
While the grounds differ slightly in their emphasis, the gravamen of the appeal is that the primary judge failed to consider the evidence of the risk of harm the mother posed to the child in telling her untrue things about the father and ways to mitigate that risk, and the risk of psychological harm to the child of never knowing her father. Rather, it is said that the primary judge exclusively and wrongly focussed on the mother and the risk to her parenting capacity should the father-child relationship be re-established. In doing so, the primary judge failed to meet his obligation under the Family Law Act 1975 (Cth) (“the Act”) to make parenting orders in the best interests of the child.
Before considering the grounds in detail, we note that this is an appeal against an exercise of discretion which is 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).
Grounds 1 and 2: Failure to make injunction and an order for therapy
The essence of Grounds 1 and 2 is that the primary judge erred in failing to make orders which would restrain the mother from denigrating the father to the child and see the mother engage in therapy to assist her to comply with the non-denigration order and contact by the child with the father.
As we said earlier, the father proposed a multifaceted suite of orders that sought an injunction to protect the child from misinformation about him, which in turn dovetailed with the provision of information (therapy) which would lay the groundwork for the child to be able to receive positive information about him and to allay her fears. Following this, the child would be reintroduced to the father. Although the father accepted that reintroduction could not occur without the first two components of the suite of orders being in place, the injunctions against denigration and, according to him, also the orders concerning therapy, were standalone orders which the father said his Honour ought to have considered but failed to do so.
Turning then to the non-denigration order, the father sought an order that the mother “be restrained from discussing the court matters with [the child] and restrained from discussing or denigrating [the child]’s father to her”. This issue arose on a number of occasions during the trial and has its genesis in what the child told the family report writer the mother said about the father. In relation to these matters, his Honour found:
162. [The child] in responding to [the family report writer]’s question said she was seeing him “because of dad … He’s not safe. He’s always angry”.
163. [The child] told [the family report writer] she knew this because:
My mum told me and she tells me he’s not safe and she makes sure I’m away from him and sometimes she makes me stay inside at home because she doesn’t want anyone coming and taking me and I think it’s also because she doesn’t want me being bitten by mosquitoes.
Under cross-examination by the father, the family report writer spoke about the potential effect on the child if she continued to be exposed to this type of information and the benefits for the child of her mother desisting. The following exchanges illustrate the point:
[THE FATHER]: Are you able to tell the court, in your role as an expert witness, whether the mother’s reported disclosures to [the child] are likely to transfer the mother’s fears to [the child]?
[THE FAMILY REPORT WRITER]: [The child] is likely to become afraid, yes.
[THE FATHER]: Would it be an appropriate strategy to somehow ensure that [the child] isn’t subject to those disclosures from the mother?
[THE FAMILY REPORT WRITER]: I believe that would be better for [the child], yes.
[THE FATHER]: Do you have enough information to formulate any suggestions or strategies that might – I’m going to say prevent the mother from telling these things to [the child], but what I really mean is that, ideally, she would voluntarily refrain from telling [the child] these things. Is there a strategy or some form of counselling - - -
HIS HONOUR: I think I will just check before you ask that question. Any difficulty if I make an order that restrains [the mother] from discussing [the father] with [the child] other than in response to a question raised by [the child]?
[COUNSEL FOR THE MOTHER]: No, your Honour.
[COUNSEL FOR THE ICL]: No, not at all, and that was going to be our position at the end of the trial.
HIS HONOUR: Okay. There you go.
[THE FATHER]: So an order would be - - -
HIS HONOUR: No need to push against an open door, in the vernacular.
[THE FATHER]: No.
(Transcript, 2 September 2016, p 193, lines 44 – 46, p 194, lines 1 – 24)
As it transpired, the injunction to which the mother and ICL gave their consent was not made. There is no mention of it in the trial reasons and it is tolerably clear that it was overlooked. Although it is accepted that an injunction along the lines revealed in the trial transcript might have been dealt with by an application to the primary judge under the slip rule, that injunction did not go as far as the injunction sought by the father. It was his case that the order needed to protect the child from being exposed to the mother’s statements about the father which, based on his Honour’s assessment of risk, were unjustified. It is accepted that the injunction was important to the child’s wellbeing, irrespective of whether or not it was part of a platform to reintroduce the father to the child.
His Honour’s failure to give reasons for not making the order is an error of law (Bennett and Bennett (1991) FLC 92-191). In the event that error was established it was agreed that it was appropriate that we should reconsider the issue. The order sought may be made pursuant to s 68B(1) of the Act on the basis that it is “appropriate for the welfare of the child” and where it is “just or convenient” (s 68B(2)).
No challenge was made to the findings of the primary judge that the father does not pose a risk of harm to the child and, on the basis of the evidence given by the family report writer outlined in the trial transcript above, the preconditions for an injunction as sought by the father have been established and an order to that effect will be made.
The next matter that requires consideration is his Honour’s failure to make an order to the effect that the mother receive counselling by way of family therapy by Ms N so that she receive information about the effect on the child of being told negative things about her father that cause her to be afraid.
The father’s proposals at trial for therapeutic intervention were more extensive than an order that the mother alone attends therapy or that she be merely provided with information. His Honour dealt with the father’s proposals for family therapy together. In rejecting those proposals, his Honour said:
213. [The father]’s proposal for family therapy for him and [the child] are for the above reasons also not in [the child]’s best interest. Even if such therapy did not involve the mother, the fact that it would involve [the child] would create the above referred to psychological and psychiatric responses for [the mother] and would diminish her parental capacity so as to have very negative consequences for [the child] of the type referred to earlier in this judgment.
214. I accept that [Ms N] is a highly qualified and capable therapist, however, she has no real appreciation of [the mother]’s condition and symptoms.
215. [The mother] could not cope with [the child] engaging in family therapy, or being given information about her father by the therapist or ultimately spend time with her father in the presence of the therapist.
216. The prospect of any intervention of the kind sought by [the father] would cause [the mother] to “catastrophize”. She would be unable to parent [the child].
Ms N did not give evidence and was only identified in the father’s written submissions which were provided after the evidence was closed [29]. It can be seen that, insofar as the father proposed individual therapy for the mother, his Honour was satisfied that therapy for the mother with a therapist who “has no real appreciation” of the mother’s condition and symptoms would be pointless. He was entitled to reach this conclusion.
Furthermore, the order sought by the father for the mother to engage in therapy to assist in facilitating a relationship between the father and the child is different to an order that the mother attends upon a therapist to receive information about how she might stop making statements to the child which have the effect of frightening the child and damaging her opinion of him.
Once again the genesis for this challenge lies in evidence given by the family report writer during cross-examination by the father. In particular:
[THE FATHER]: All right. And I just want to go back to the orders that might be applied so that the mother wouldn’t disclose to [the child] these things. Would it be helpful to the mother for that to be accompanied by some kind of counselling in order for her to accept the order and perhaps gain some insight, further insight, into why the orders had been made?
[THE FAMILY REPORT WRITER]: Two – there’s lots of information available in – on the internet, in written form, to inform parents about such things, about why it’s harmful to tell a child bad things about the other parent, for example. That’s – so there’s information available to the mother. There are also professional people in the community who are – who are very well versed with that information, who would be able to distil it and put it to [the mother] in a – you know, in an interactive manner that would enable her to understand really what she needs to understand in it, rather than trawling through books or – or research papers. It – I believe it would be helpful. If she was asked not to communicate these things to [the child], which we’ve talked about, if she was to go and see such an expert – and I know a few of them in town. If that expert could be, potentially, briefed as – as to why the mother was there, that expert could then help the mother understand what she has to do, how to do it and why it would be helpful and why not doing it or doing something else would be harmful.
[THE FATHER]: And that counselling in the order, and particularly if she was willing to seek out that knowledge: would you say that would be absolutely consistent with the view that I hold and nobody else disputes, that in every other respect, the mother is an excellent parent to [the child]? In layman’s terms, would it be the final piece in the puzzle, to the mother being a good parent to [the child] in every respect?
[THE FAMILY REPORT WRITER]: There’s nothing else that I understand has been raised which suggests or indicates, or indicates or suggests, that the mother is doing anything that’s harmful to [the child] that she could change.
[THE FATHER]: All right. And?
[THE FAMILY REPORT WRITER]: And that’s something she could change, and I don’t think it would be that difficult. I wouldn’t even suggest she have counselling per se. It would be one or two sessions to get some information to help her understand. So I’m not – I just want to make that clear. I’m not suggesting she have counselling for anything in particular, but I’m suggesting she go and get some advice, some information.
(Transcript, 2 September 2016, p 194, lines 45 – 47 to 195, lines 1 – 29)
As it transpired the father did not seek an order that the mother attend a therapist for the provision of advice along the lines suggested by the family report writer. Rather he seems to have assumed that if an order was made for the mother to attend upon Ms N in accordance with his proposed order 10, information about why she should stop denigrating the father to the child would inevitably have been provided. Although the assumption is reasonable, the primary judge gave sufficient and cogent reasons as to why the order for the mother to receive therapeutic intervention designed to lead to the child spending supervised time with the father would not be made. Thus, absent an application for what might be seen as a more targeted order going to the provision of particular information, the primary judge could not have erred in failing to make an order he was not asked to make.
The challenge against his Honour’s failure to make an order for the mother to receive counselling or therapy has not been established.
Ground 3: Were the comparative risks balanced against each other?
Ground 3 is a complaint that the primary judge failed to assess the comparative risks that would arise if orders were made for the child to spend time with the father compared to the consequences of her not having a relationship with him.
In relation to the risk to the child if an order was made in favour of her being reintroduced to the father, the focus of the hearing and the trial reasons was overwhelmingly on the impact this would have on the mother’s parenting capacity. This was an obviously relevant consideration and consistent with authority: A v A (1998) FLC 92-800; Russell & Close [1993] FamCA 62. In understanding and evaluating that risk, the primary judge accepted evidence given by the mother’s treating psychiatrist and the family report writer and took into account evidence given by the mother. He analysed the risk thus:
204. There is no doubt considering the totality of the evidence that [the mother] would not and could not function as a parent if there is an order for [the child] to spend time with supervised or unsupervised as for the purpose of family therapy to occur with [the father]. She would panic, be highly anxious and hypervigilant. She would suffer psychologically to such an extent that her capacity to undertake the most basic daily tasks of parenting [the child], necessitated by the live with order, would be so compromised as to negatively impact [the child].
205. Her hyper arousal or hypervigilance would cause her to keep [the child] inside much of the time. [The child]’s ability to move around her neighbourhood would be curtailed. The mother would likely move residence regularly with resultant school changes for [the child] or she may keep [the child] home from school. Such would be the material restrictions on [the child] there would be no chance of a “normal” childhood. [The child] would likely become psychologically “damaged”.
206. There is no doubt that [the mother]’s perception or feelings about [the father] are genuine and not contrived. Her presentation in court, her presentation to her psychiatrist [Dr F], her presentation to the Family Report writer… are confirmatory of this fact.
207. She is not responsive to Cognitive Behaviour Therapy in the holistic sense of overcoming her fears of [the father] or her fears for [the child] and to attempt such therapy would on the evidence be abusive of [the mother] and is not medically recommended.
The primary judge was satisfied that any form of contact between the father and child would result in the mother being unable “to function at the level necessary to parent [the child]” [209]. Findings to similar effect were made at [213] and [216] and culminated in his conclusion at [220] that:
During the time it would take to establish his relationship with [the child], if it is even possible, would be long. During the process [the mother]’s parenting capacity would crash. [The child] would be thereby placed at risk in many aspects including emotionally possibly psychologically and maybe by practical neglect. This is not in [the child]’s best interest.
These strong findings were given substantial, indeed determinative weight, evaluated as they had to be against the other pivotal (and unchallenged) finding that “[the father] and [the child]’s non-existent relationship rules him out from consideration as a parental alternative for [the child]” [217]. The point being, the mother was the only person able to meet the child’s needs and steps which would see the mother’s parenting capacity “crash” could not be contemplated; the risks to the child of her mother’s collapse could not be more serious.
The error, according to the father, is that the primary judge failed to consider evidence given by the family report writer to the effect that if the child was denied a relationship with her father she would certainly suffer emotional harm in her teenage years and would feel emotionally bereaved (Summary of Argument filed 17 November 2017, paragraph 74).
The father’s argument is a precis of two tranches of evidence given by the family report writer as set out below:
[THE FAMILY REPORT WRITER]: Clearly – and almost without saying, but I’m going to say it – if she’s to be without a father in her life until she’s, let’s say, 18 years of age - - -
[COUNSEL FOR THE ICL]: Yes?
[THE FAMILY REPORT WRITER]: She will always understand her life to be different. That will be something – that will have to be something she will have to cope with.
[COUNSEL FOR THE ICL]: Yes?
[THE FAMILY REPORT WRITER]: And also she will have to cope with not knowing the full story perhaps. She – she shouldn’t know what occurred, or what is reported to have occurred, or what is being said to have occurred in – in the relationship between her parents. And that will be something she will have to cope with over time. It’s not insurmountable, but, you know, I – I – I can’t help but think when I’m considering such a question, the other side of the coin because with – this is – this is the potential risk to her versus the potential risk to her – her spending time with her father as well. So there – certainly she will be harmed by not having a relationship with her father. I – I think it’s – she will be able to overcome that with some assistance, and it’s relative to the harm that she might – might otherwise have should the situation be different.
…
[THE FATHER]: The absence of a relationship between [the child] and her father, you said, could – what could the effect be in her teens?
[THE FAMILY REPORT WRITER]: She would – as she approaches her adolescent [sic], she will develop more of a sophisticated understanding of what such a relationship represents, what it is, what it isn’t, what it is to her peers, what it is, potentially, to other members of her family. She will notice its absence more, and that’s when she may experience a – she will feel bereaved. She has lost something, or she doesn’t have access to something that she could have otherwise had, and she will grieve.
(Transcript, 2 September 2016, page 189, lines 1 – 16 and page 198, lines 18 – 24)
However, although the family report writer agreed with the father that there was a possibility the child’s loss of a relationship with him might cause a range of emotional responses, he viewed the various negative emotional consequences as nothing more than speculative:
[THE FATHER]: And might she feel that a part of her is gone because their biological father is a part of who she is?
[THE FAMILY REPORT WRITER]: Potentially, again, that – that is something she may well consider as she grows older.
[THE FATHER]: Yes. Is there a chance this might result in behavioural changes, such as anger or aggression?
[THE FAMILY REPORT WRITER]: Look, I – I cannot speculate, but those – those types of – those – those ways that people might express emotion, they’re amongst the many that people who become distressed about things express. It could be any one of a range of things. I – I can’t comment on what’s possible and what’s probable, though.
(Transcript, 2 September 2016, page 199, lines 6 – 14)
In oral addresses in the appeal, the father acknowledged that the family report writer opined that there were no safeguards that could be put in place to protect the child from the risk that she would, in her teenage years, grieve the absence of a father. According to the father it followed that “time with the father would be the only safeguard”. This is an entirely circular argument, as it is the introduction of contact between the child and her father that would have the catastrophic effect on the mother’s parenting capacity and thus the child.
Be that as it may be, the father’s argument that the primary judge did not in terms balance the risk that in her teenage years the child may suffer grief and bereavement unless she was permitted to at least know him against the risks if time or contact was established is accepted. However, the magnitude of the comparative risks were well explored in the evidence and there can be no doubt the family report writer did not depart from his overarching opinion that:
If [the child] is to not spend any time wither [sic] father, as I have reluctantly proposed … I believe she will continue to thrive in the care of her mother, as she appears and reportedly to have been doing. There are no current indications that she is not a healthy, happy, cheerful, and intelligent child who is doing nothing less than achieving well socially and academically.
(Family Report dated 5 August 2016, paragraph 91)
That the primary judge did not specifically discuss one subset of the numerous factors that the family report writer took into account in coming to his overall opinion that even if the child was denied contact with her father she would thrive does not amount to appealable error. For that challenge to be made good, the father needed to persuade the primary judge that because the child would grieve the loss of a father, the opinion that she would thrive, in his absence could not be maintained. This was not done. We also do not consider that the fact that the primary judge did not specifically undertake a comparative analysis of a known and catastrophic risk which was certain against a known risk which the expert evidence established had far less serious consequences for the child, demonstrates appealable error in this case.
Finally, there can be no doubt that the primary judge well understood that the effect of his decision was that the child would not know her father during her childhood. It was a decision, which as [226] of the trial reasons makes clear, weighed heavily on his Honour and, as he explained, one which had not been easily arrived at.
Ground three has not been established.
Ground 4: Did the primary judge fail to consider the entirety of the evidence?
In the Notice of Appeal this ground was cast as essentially one of bias. At the beginning of the appeal hearing however, the father disavowed this notion and said that the essence of the challenge is that the primary judge determined the case without regard to the entirety of the evidence. This was shown by his Honour’s statement that “the mother’s case is insurmountable”. However reference to the trial transcript demonstrates this is only part of what was said.
On the final day of the trial the primary judge, addressing the father, commented that:
… it would seem from the answers that [the mother] has given, from the presentation that [the family report writer] has observed and from the presentation that you have now experienced, this is what would happen in [the mother]’s ability to function. So what you see is what [the child] would experience. That’s what the evidence is. It seems to me a potentially insurmountable problem for you in your case.
(Transcript, 2 September 2016, p 174 lines 30 – 36)
The word “potentially” refutes any notion that the primary judge may have pre-judged the matter, and we agree with the submissions of counsel for the mother and for the ICL that when the comments are considered in their proper context such a suggestion could not be maintained. It seems to us that the statement was clearly intended to do no more than to help the father understand the magnitude of the task he faced as the case moved towards closing addresses.
When this was raised with the father he clarified that he meant that, by the use of the word “insurmountable”, the primary judge had to have disregarded or overlooked evidence which demonstrated that the mother was an unreliable witness and therefore her stated beliefs and demonstrations of distress about her fear of the father and for the child could not be accepted. He explained this proposition to the primary judge thus: “the less credible the mother’s beliefs, the less “entrenched” they are and the more likely she will be responsive to counselling for her diagnosed depression and catastrophic thinking” [66].
According to the father, he established that in some respects the evidence given by the mother was unreliable and these inconsistencies received only “passing mention” in his Honour’s reasons. The first proposition is accepted but the second is not. Reference need only be made to [48], [66], [74], [77] and [206] to establish the point. In these paragraphs, the primary judge made clear that he understood the father’s argument about the unreliability of the mother’s evidence.
In mounting this argument however, the father fails to recognise the important fact that the mother is a victim of family violence which he admits he inflicted on her. Although the primary judge was not in a position to make findings about the full extent of family violence about which the mother gave evidence, he recorded the father’s admissions as follows:
56. In paragraphs 34-35 of his first affidavit he wrote:
It makes me very sad to remember that sometimes when [the mother] was upset or stressed or concerned about something, she would try and tell me about it and I would take it the wrong way, get frustrated and angry and go out to the garage or into my office and throw some small object against the wall or lob it across the room.
I would always just throw one thing, then I would calm down, but it was dreadful for [the mother] and I tried very hard to recover my health and my positive attitude for her sake.
57. In paragraph 39 he wrote:
After all I have learned in the last two years to become a calm and even-tempered man and the happy-go-lucky confident go-getter [the mother] fell in love with me, I wish with all my heart she and I could speak to each other again.
Furthermore, and notwithstanding the father’s minimising his threat to commit suicide in January 2009 as merely “black humour”, this is not how his treating practitioner viewed the situation [94], and which, the mother knew, resulted in his emergency admission to hospital.
In short, and as his Honour recognised in his overview of the evidence adduced by both parties, the mother was deeply affected by the family violence. In some respects the father’s submissions have the flavour that just as he has learned to moderate his aggression, the mother should accept that he has changed and give up her pretence she is still affected by it. His approach is entirely at odds with the expert evidence.
The mother’s psychiatrist had seen her for 82 consultations spread over 5 years and seen her collapse when having a panic attack. The psychiatrist did not accept that the mother’s symptoms were feigned. The fact that the psychiatrist had seen the mother in such a distressed state permitted the primary judge to reject the father’s argument that the psychiatrist’s opinion was entirely dependent on the mother’s supposedly unreliable self-reports [150]. The family report writer also rejected the father’s contention that the mother’s condition was feigned and, as we have already explained, at paragraph 87 of the family report (relied upon by his Honour at [167]) the family report writer gave a firsthand account of having witnessed the mother dissolve into a highly anxious state.
As the father himself said at paragraph 102 of his summary of argument, the primary judge took particular interest in the mother’s testimony, including under cross-examination. His Honour was entitled, as he did at [206], to take into account the mother’s presentation in court in coming to the view that he accepted her evidence about her fears of the father, particularly in circumstances where it was in full accord with the expert opinion given by her treating psychologist and the family report writer (Fox v Percy (2003) 214 CLR 118).
Ground 4 has not been established.
Conclusion and Costs
Save for part of Grounds 1 and 2, the father has failed to show error. The appeal will be allowed in part and we will make an order restraining the mother from denigrating the father to the child and discussing the court proceedings with her, in line with the order sought by the father at trial.
There is no merit in the remaining grounds and the balance of the appeal will be dismissed.
As is customary, following the hearing we sought submissions from the parties in relation to costs in the appeal.
In the event the appeal was dismissed, the mother sought an order for costs in the amount of $12,500. The ICL did not press an application for costs.
The father resisted the mother’s application on grounds of financial hardship. He stated that he earned under $20,000 per year, and his only assets were a work utility van and furniture. The father also cited a child support debt of $40,000 which he submits should be prioritised over a costs order in favour of the mother.
The issue of costs of an appeal is governed by s 117(1) of the Act which provides that each party to a proceeding under the Act bear his or her own costs, unless the court is of the opinion that the circumstances justify the making of a costs order (s 117(2)). In determining what order (if any) should be made under s 117(2), the court must have regard to the relevant factors in s 117(2A).
Although the father achieved only limited success in the appeal, our reasons demonstrate that the parenting appeal raised matters of real substance. The nature of the orders under challenge could not be of greater significance to the child’s relationship with her father and it is not difficult to understand why the father pursued the appeal. While we also accept he does not have the financial capacity to meet an order for costs, we give less weight to that factor than we do to the nature and substance of the appeal.
The mother’s application for costs will be dismissed.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ryan & Aldridge JJ) delivered on 4 June 2018.
Associate:
Date: 4 June 2018
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