Bower & Marshall (No 2)
[2022] FedCFamC1A 159
•11 October 2022
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Bower & Marshall (No 2) [2022] FedCFamC1A 159
Appeal from: Bower & Marshall [2022] FedCFamC2F 349 Appeal number(s): NAA 52 of 2022 File number(s): PAC 5345 of 2020 Judgment of: MCCLELLAND DCJ Date of judgment: 11 October 2022 Catchwords: FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Appeal from the dismissal of interim parenting orders regarding the appellant’s application for supervised time with the child and interim property orders concerning an application for partial property distribution to provide the appellant with funds to meet his legal costs – Whether the primary judge displayed an apprehension of bias – Whether the primary judge erred in setting down the matter for final hearing and pre-judging the appellant’s interim application – Adequacy of reasons – Whether the orders prevented the child from having a meaningful relationship with both parents – Leave to appeal required for interim property orders – Application for leave to appeal refused – Appeal dismissed – Appellant to pay costs of respondent in fixed sum amount. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 43, 60B(1)(a), 60CC, 69ZN, 79(4), 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28(1)(b)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.17, 13.03(1), 15.06
Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth) reg 4.02(1)(a)
Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005
Cases cited: A v A (1998) FLC 92-800; [1998] FamCA 25
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Australian Competition and Consumer Commissioner v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25; [2016] FCAFC 181
Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; [1995] FCA 350
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
BKL15 v Minister for Immigration and Border Protection (2016) 241 FCR 450; [2016] FCA 802
Black & Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623
Blinko & Blinko [2015] FamCAFC 146
British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Cotton & Cotton (1983) FLC 91-330
de Winter v de Winter (1979) FLC 90-605
Deiter & Deiter [2011] FamCAFC 82
Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Edhouse & Edhouse [2022] FedCFamC1A 84
Fitzgerald v Fish (2005) 33 Fam LR 123; [2005] FamCA 158
Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Graham & Squibb (2019) FLC 93-892; [2019] FamCAFC 33
Greedy and Greedy (1982) FLC 91-250; [1982] FamCA 41
Harford & Spalding [2022] FedCFamC1A 78
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235
Jurchenko & Foster (2014) FLC 93-598; [2014] FamCAFC 127
Loddington & Derringford (No 2) [2008] FamCA 925
Luadaka v Luadaka (1998) FLC 92-830; [1998] FamCA 1520
M v M (1988) 166 CLR 69; [1988] HCA 68
Marvel & Marvel (No 2) (2010) 43 Fam LR 348; [2010] FamCAFC 101
Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255
McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Minister for Immigration and Multicultural Affairs v Jia Legeng, (2001) 205 CLR 507; [2001] HCA 17
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 388 ALR 257; [2021] HCA 6
N v S (1996) FLC 92-655; [1995] FamCA 139
Napier & Hepburn (2006) FLC 93-303; [2006] FamCA 1316
Nikolakis & Nikolakis [2010] FamCAFC 52
R & C [1993] FamCA 62
Sheerin v Director of Public Prosecutions (Vic) (2021) 288 A Crim R 162; [2021] VSCA 48
SS & AH [2010] FamCAFC 13
Strahan & Strahan (Interim Property Orders) (2011) FLC 93‑466; [2011] FamCAFC 126
Tamaya Resources Limited (in Liquidation) v Deloitte Touche Tohmatsu (A Firm) (2016) 332 ALR 199; [2016] FCAFC 2
Vakuata v Kelly (1989) 167 CLR 568; [1989] HCA 44
Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission (2021) 284 FCR 24; [2021] FCAFC 49
Whisprun Pty Ltd formerly Northeast Exports Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Chisholm, Richard “Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions” (Paper presented at the Children’s Court Conference, Parramatta, 1 September 2010)
Fogarty, John “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249
Number of paragraphs: 126 Date of hearing: 29 August 2022 Place: Sydney Counsel for the Appellant: Mr Flaherty with Ms Flaherty Solicitor for the Appellant: Markham Geikie Farrugia Counsel for the Respondent: Ms Cantrall Solicitor for the Respondent: Legal Aid NSW Sydney Central Family Law Counsel for the Independent Children's Lawyer: Mr Antill Solicitor for the Appellant: Ark Law Lawyers ORDERS
NAA 52 of 2022
PAC 5345 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR BOWER
Appellant
AND: MS MARSHALL
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCCLELLAND DCJ
DATE OF ORDER:
11 october 2022
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.Within 28 days of the date of these orders, the appellant pay the costs of the respondent in the sum of $4,356.
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 Bower & Marshall has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
Introduction
This is an appeal from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) (“the primary judge”) on 23 February 2022, dismissing an Application in a Proceeding filed 25 November 2021 in which Mr Bower (“the appellant”) sought an interim order for the child, X (“the child”), to spend supervised time with him pending the final hearing of the matter. Additionally, the appellant sought an order for partial property distribution to provide him with funds to meet his legal costs in respect to a criminal prosecution and also in respect to these proceedings.
Background
The appellant was born in 1986 and the mother, Ms Marshall (“the respondent”), was born in 1991.
The respondent also has a child from a previous relationship, B who was born in 2012.
The parties commenced their relationship in 2014.
The child was born in 2016 and is now 6 years old.
It was not disputed that the respondent has been the primary carer of the child since she was born. The appellant contends, however, that he also assisted the respondent in caring for both the child and B.
The respondent contends that during the course of the parties’ relationship and subsequent to its termination, she has been subjected to a pattern of coercive and controlling conduct including serious acts of violence perpetrated by the appellant, the most serious of which involved allegations that the appellant had engaged in acts of non-fatal strangulation.
In early 2021, the appellant was charged with criminal offences in relation to an alleged incident of assault that the respondent contends occurred in January 2020. When the matter was listed before the primary judge, it was accepted that those criminal proceedings were listed for hearing mid 2022. It was further accepted during the course of the appeal that those criminal proceedings are now listed for hearing late 2022.
On 30 November 2020, the parties entered into consent orders for the child to spend supervised time with the appellant every second weekend in the presence of the child’s paternal grandparents.
The parties experienced ongoing difficulties in respect to their relationship and, as and from February 2021, the child has not spent time with the appellant.
In the proceedings before the primary judge, the respondent contended that the child would be subjected to psychological harm if the child spent time with the appellant, including if that time was to be supervised. The respondent further contended that as result of being subject to a pattern of coercive and controlling conduct by the appellant, including acts of significant family violence, she suffers from post-traumatic stress disorder (“PTSD”). The respondent argues that the prospect of her engaging in communication with the appellant and/or the prospect of the child spending time with the appellant would cause an exacerbation of her condition such that it would adversely impact upon her parenting capacity and thereby vicariously adversely impact upon the child.
Comparatively, the appellant contended that the respondent may not have the parental capacity to properly take care of the child as a result of what he contended was the respondent’s inability to maintain a clean and hygienic house, the child not being properly toilet trained and not being fed with nutritious food.
Grounds of appeal
The grounds of appeal are set out in the appellant’s Amended Notice of Appeal filed on 7 July 2022 as follows:
[1] The Primary erred in failing to provide adequate reasons and/or reasons at all.
[2]The Primary Judge erred in failing to take into consideration, the absence of evidence of any harm to the child.
[3]The Primary Judge erred in proceeding to seek to set the matter down for hearing in the absence of any independent evidence of the relationship between the child and the Father.
[4]The Primary Judge failed to take into account the relevant consideration, being the views of the ICL in support of the supervised visits.
[5]The Primary Judge erred in considering on the limited evidence, firstly, the proposed supervised visits would adversely effect the mother, and secondly to such an extent which would somehow impact on her ability to parent the child.
[6]The Primary Judge erred in setting the matter down for hearing, on dates the ICL was unavailable.
[7]The Primary Judge erred in failing to provide orders directing an updated family report, including interviews with the child.
[8]The Primary Judge in dismissing the application in a case has prejudged the final hearing.
[9]The Primary Judge has denied the father, procedural fairness, in preventing the father to rely upon independent evidence of the observations of a third party of the relationship with the child at a final hearing.
[10]The Primary Judge displayed an apprehension of bias, in predetermining the application, prior to the submissions of the ICL, being considered.
[11]The Primary Judge erred in failing to take into consideration the paramount under S60CC(2)(a) of the FLA of the child having a meaningful relationship with both parents.
(As per the original)
It is noted that numerical indicators are absent in the appellant’s grounds of appeal. For ease of reference, I have numbered each ground of appeal in order as they appear in the Amended Notice of Appeal.
The appellant did not press Grounds 6 and 7.
Orders sought at first instance
The appellant’s Amended Notice of Appeal seeks to appeal the orders of the primary judge dated 23 February 2022. Those orders dismissed the appellant’s Application in a Proceeding filed on 25 November 2021. That Application in a Proceeding included an application for the following orders;:
1.That Order 1 of the Orders dated 16 April 2021 be amended as follows:
1.1Order 1 (b) - That the test be undertaken within 72 hours of the Father's receipt of a request in writing from the Independent Children's Lawyer.
1.2Order 1 (c) - That there be no more than one (1) written request per calendar month.
2.That Order 2 of the Orders dated 16 April 2021 be amended as follows:
The Father undergo Liver Function and Carbohydrate Transferrin (CDT) testing at least every third month upon request being made by the independent Children's Lawyers. Such test should be taken five (5) days from request.
3.That the child spends supervised time with the Applicant Father using the services of Bridging Families Australia or another approved supervision service as follows:
3.1Supervised visits shall take place at the home of the Father on:
3.1.1each alternate Sunday commencing 5 December 2021 from 10am to 2pm.
3.1.2for 4 hours on the fathers birthday being […] each year from 10am to 2pm;
4.That for the purpose of Order 3 the father shall request the supervisor to provide a report of the visits to him each month and he shall provide such report to his Solicitor and those reports shall then be provided to the Respondent Solicitor and the Independent Children's Lawyer immediately.
5.That the Court grants the release of $40,000.00 from the funds held in accordance with Order 2 of the Orders of 26 March 2021 to the Applicant Father for the purpose of paying additional legal fees in this Court and the Local Court and the supervisor fees for the purpose of Order 3.
6.That the Respondent Mother attends and completes the Parenting after separation course and provides the certificate of completion to the Applicant Solicitor within 7 days of completion.
7.That the Mother undertakes safe chain of custody drug and alcohol testing each month as and when requested by the Solicitor for the Applicant or the ICL.
(As per the original)
leave to appeal required in respect to dismissal of interim property order
As this aspect of the appeal concerns the dismissal of the appellant’s application for proposed Order 5, it is an appeal against the dismissal of an application for interim property orders. As such, leave to appeal is required. In that respect, s 28(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides that an appeal from a ‘prescribed judgment’ of this Court requires leave of the Full Court. That section is in the following terms:
(1)Leave of the Federal Circuit and Family Court of Australia (Division 1) is required to appeal to the Court from:
…
(b)a prescribed judgment of the Federal Circuit and Family Court of Australia (Division 2) or the Magistrates Court of Western Australia…
A ‘prescribed judgment’ is defined in reg 4.02(1)(a) of the Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth) as follows:
(1)For the purposes of paragraphs 28(1)(b) and (3)(e) of the Federal Circuit and Family Court Act, the following judgments are prescribed:
(a)an interlocutory decree (other than a decree in relation to a child welfare matter)
Rule 13.03(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Family Law Rules 2021”) provides that:
A Notice of Appeal, including a Notice of Appeal in which leave to appeal is sought, must be filed within 28 days after the date the order appealed from was made.
As noted by the full Court in Harford & Spalding [2022] FedCFamC1A 78 at [16]:
…The test adopted in this Court provides that leave to appeal will only be granted where the decision of the primary judge was attended by sufficient doubt to warrant its reconsideration and a substantial injustice would ensue if leave were refused (Medlow & Medlow (2016) FLC 93-692).
When advised that the Court was of the opinion that leave to appeal was required in order for the appellant to appeal against the dismissal of his proposed Order 5, counsel for the appellant sought such leave to appeal. Whilst not formally stated, I have regarded the appellant’s application as being one for an extension of time to make an application for leave to appeal pursuant to r 15.06 of the Family Law Rules 2021.
Counsel for the respondent opposed the appellant being granted any such extension of time and, if such extension of time were granted, they opposed leave to appeal being granted.
An extension of time to undertake a step in the proceedings outside the time prescribed in an order or the rules of Court should only be granted “if the failure to meet the existing timetable is the result of excusable non-compliance” (Black & Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623 at [5]). The explanation required is that of the moving party, not merely their solicitor or counsel (per Gilmour, Perram and Beach JJ in Tamaya Resources Limited (in Liquidation) v Deloitte Touche Tohmatsu (A Firm) (2016) 332 ALR 199 at [154]–[156]).
In this matter, I reject the appellant’s oral application for an extension of time for the following reasons:
(1)There was no explanation provided to the Court as to the reason for the appellant’s failure to apply for leave to appeal against the dismissal of his proposed Order 5 within the required 28 day time limit.
(2)Insofar as it could be inferred from the nature of the submissions of the appellant’s counsel that the omission occurred as a result of the appellant failing to appreciate that leave to appeal was required, it is to be noted that the appellant has, at all times, been represented by legal advisers, including those who appeared in the appeal.
(3)The extension of time for the appellant to seek leave to appeal in respect to the dismissal of proposed Order 5 would be a futility because, even if he succeeded in establishing error in dismissing the appellant’s application for proposed Order 5, the appellant would fail to establish the second requirement for leave, being that he would suffer a substantial injustice. This is in circumstances where his application was fated to fail because of:
(a)the failure of the appellant to present evidence to discharge the onus of proof that rested upon him to establish that the property pool of the parties was such that, at the final hearing, there could be an accounting for and, if necessary, adjustment back in respect to the partial property distribution (Medlow & Medlow (2016) FLC 93-692 at [86]); and
(b)the appellant failed to present evidence that would have enabled the Court to make an assessment of the considerations in s 79(4) of the Family Law Act 1975 (Cth) (“The Act”) that the trial judge was required to address, consistent with the second leg of the test adumbrated by the Full Court in Strahan & Strahan (Interim Property Orders) (2011) FLC 93‑466 at [135].
Accordingly, the appellant’s application for an extension of time to amend his Amended Notice of Appeal to include an application seeking leave to appeal is dismissed.
Legal principles
The onus is held by the appellant to show that there is some error in the decision under appeal: Allesch v Maunz (2000) 203 CLR 172 at [23]; McDonald v Queensland Police Service [2018] 2 Qd R 612 at [47]). In that context, there is a strong presumption in favour of the primary judgment, and an appellate court must be satisfied it is “clearly wrong” before there is any appellate interference: Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627.
As noted by the Full Court in Edhouse & Edhouse [2022] FedCFamC1A 84 at [13]–[14]:
13.The orders which are the subject of appeal were the result of the exercise of a discretion. In those circumstances, it is necessary for an appellant to establish grounds that fall within the principles identified by the High Court in House v The King (1936) 55 CLR 499 at 505 and Norbis v Norbis (1986) 161 CLR 513 at 539–540, that is, appellate intervention may be required where the primary judge:
(a) Acts upon a wrong principle; or
(b)Allows extraneous or irrelevant matters to guide or affect the decision; or
(c) Mistakes the facts; or
(d) Fails to take into account some material consideration; or
(e)Makes a decision that, upon the particular facts, is unreasonable or plainly unjust.
14An appeal may also succeed on the basis of an inadequacy of reasons. In that respect, in Rigby & Olsen [2021] FedCFamC1A 46, the Full Court recently stated at [38] that:
The requirement for the giving of reasons is a fundamental requirement of the exercise of the judicial function, as it both demonstrates that justice has been done, and enables the proper challenge of a decision. The content required varies depending upon the circumstances of the case, but is that which makes apparent how the decision was arrived at (see Bennett and Bennett (1991) FLC 92-191 at 78,266). It is not required to give reasons regarding every argument, nor to perform a microscopic analysis "if, in all the circumstances, it is clear that the trial judge has considered and evaluated the relevant evidence, taken into account all relevant factors… (A v J (1995) FLC 92-619 at 82,230).
Consideration
Identification of the judgment
In this matter, it was contended that the primary judge had impermissibly modified his ex tempore reasons for judgment by making alterations and additions to that which had been transcribed and, consequently, changed the substance of the judgment contrary to the principles adumbrated by the High Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 388 ALR 257 at [34].
Specifically, it was contended by counsel for the appellant that the primary judge modified those paragraphs which are now included the published version of his judgment at [17], [33]–[35].
The corresponding paragraphs were originally recorded in the transcription of the ex tempore reasons for judgment as [14], [30] and [31].
For reasons which I explain, even when the originally transcribed paragraphs of the judgment are considered, the appeal must be dismissed and, accordingly, it is unnecessary for me to determine whether the judge has impermissibly altered the substance of the relevant paragraphs to which I have referred. Instead, I will not read [17], [33]–[35] of the primary judge’s published reasons for judgment but rather, will read [14], [30] and [31] of the transcription of the ex tempore reasons for judgment, which are as follows:
14.The [appellant] has, however, obtained the benefit of the ongoing psychologist’s support that he has identified in his evidence. The Court is of the view that the concerns identified in the [respondent’s] evidence outweigh the arguments advanced by [the appellant’s counsel] in respect of his own client’s mental health, and, that is, the child is in the care of the mother in the circumstances where there has been identified serious allegations of domestic violence which are due to be tried in July.
…
30.Insofar as the approach in relation to part 7, the Court is required to follow the statutory pathway identified in Goode & Goode. There is no issue in the present case other than the limited issue in respect of supervised access. And in that regard it is the best interests of the child that is the paramount consideration and this was advanced by the counsel for the respondent mother. The Court must take into account the obligations under section 60CC(2) to prevent the child suffering harm. In the context of this case the Court is satisfied that it would not be in the best interests of the child at this stage for the [appellant] to commence contact time, albeit, supervised.
31.The Court has already identified that it is not satisfied that it is proper to make an order in relation to the proceeds of the matrimonial home.
Ground 10:
10.The Primary Judge displayed an apprehension of bias, in predetermining the application, prior to the submissions of the ICL, being considered.
As the High Court explained in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 (“Concrete”), appellate courts should consider issues of bias first. That is because, if bias is established, the necessary result is a retrial: Concrete at [2]–[3] (Gummow ACJ), [117] (Kirby and Crennan JJ) and [172] (Callinan J).
In considering this ground, it is important to focus upon its wording. The concern of the appellant raised in this ground is in respect to displays said to be made by the primary judge “prior to the submissions of the ICL, being considered.” It is not focusing upon or considering any statement or action on the part of the primary judge in the period subsequent to the submissions of the Independent Children’s Lawyer (“ICL”). Nevertheless, as will be explained, the comments made by the primary judge prior to the ICL making submissions cannot be seen in proper light without having regard to the conduct of the primary judge once it was pointed out to him that his Honour had made an error in his understanding of the nature of the submissions put forward by the ICL.
The appellant’s Summary of Argument identifies the argument in respect to apprehension of bias as relating to appeal Ground 9. The error in that respect occurred as a result of the appellant failing to number his grounds of appeal. It was accepted during the course of the appeal that the father’s submissions set out at paragraphs 40–47 of his Summary of Argument relate to Ground 10 of the appellant’s grounds of appeal.
The relevant test for apprehended bias is as to whether a fair-minded lay observer might reasonably apprehend that the presiding judge might not bring an impartial and unprejudiced mind to the resolution of the question before the Court. There are two aspects to the test. First, the party alleging apprehended bias must identify the statement and/or conduct that it is said might lead the decision-maker to decide a question other than on its merits. The second requires the party complaining of the existence of apprehended bias to articulate the logical connection between the matter identified and the apprehended fear or concern that the judicial officer deviated from the course of deciding the question other than on its merits (see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [16] per Gleeson CJ, McHugh, Gummow and Hayne JJ and Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [31] per Gummow ACJ, Hayne, Crennan and Bell JJ).
The conduct of the primary judge which it is contended displayed an apprehension of bias is stated to be contained in paragraph 43 of the appellant’s Summary of Argument. The appellant argues in that paragraph that a cumulative effect of several comments and actions by the primary judge resulted in a situation where “justice was not seen to be done”. At paragraph 42 of the appellant’s Summary of Argument it is contended that;:
42.The Primary Judge failed to offer the parties a reasonable opportunity to present their case, in circumstances where the parties were dissuaded from providing substantive submissions on the application and His Honour expressed a view as to the outcome of the application prior to all parties being heard.
a.The Primary Judge, after hearing submissions from the Appellant Father, stated the Court “doesn’t need to hear from” the [respondent] (TP 16 at [35]);
b.After the [respondent] nonetheless requested to make submissions on the substantive issues, the Primary Judge stated as follows:
“[The respondent’s solicitor], just in case I didn’t make myself clear, when I say I don’t need to hear from you – because, at the moment, I’m against [the appellant’s counsel]” (TP 17 at [10]).
c.The Primary Judge stated further at TP 17 at [25], “What I was conveying when I said, “I don’t need to hear from you,” is I propose to dismiss the application by [the appellant’s counsel]”
d. The Primary Judge then addressed Counsel for the ICL, asking whether she wishes to provide any submissions in support of her case outline “having heard what the Court said.” (TP 17 at [35]). Presumably, the Primary Judge was referring to his proposal to dismiss the application, implying the ICL was not required or encouraged to advance its case.
(As per the original)
Additionally, during the course of the appeal hearing, counsel for the appellant contended that the Court should consider, as part of that cumulative effect, the statement made by the primary judge when deliberating as to whether to set the matter down for hearing on 4–5 August 2022:
…I’m just trying to decide what timeframe I fix the matter for hearing, and I'm just conscious of the fact that the current regime may well be one that continues until that hearing date. I could give you a hearing date. I was going to give you one earlier because I thought it was almost ready for hearing. But could you do 4 and 5 August, [the appellant’s counsel]?
(Transcript 23 February 2022, p.8 lines 4–8.)
During the course of the appeal, counsel for the appellant indicated that he was not instructed to contend that the primary judge was biased either in favour of or in opposition to either of the litigants individually. It was contended, rather, that in anticipating the allocation of an expeditious hearing, the primary judge had predetermined that he would not be making an order for the child to spend time with the appellant.
Considered in that light, the appellant’s contention appears to be that there is an apprehension of bias as a result of indications of pre-judgment, rather than any suggestion of conflict of interest. That contention is without merit because it ignores the fact that, during an exchange between the primary judge and the parties that occurred at the commencement of proceedings from 9.39 am to 9.48 am, the primary judge, appropriately, in my view, encouraged the parties to have discussions as to whether they were able to resolve the issues in dispute, including potentially by reaching agreement in respect to the child spending time with the appellant in the presence of a professional supervisor at a contact centre.
The reality is that exchanges between counsel and the bench regarding issues in the proceedings are commonplace. It does not indicate pre-judgment. It is recognised that judges will seldom remain entirely passive and silent throughout proceedings; indeed, it may be poor judicial conduct to do so (Vakuata v Kelly (1989) 167 CLR 568 at 571). Certainly, it is not uncommon and often regarded as helpful by the parties for a judge to express preliminary or tentative views, including expressing doubts or seeking clarification of the issues in contention. If conducted appropriately, such conduct cannot reasonably be regarded as indicating an apprehension of bias by way of pre-judgment (Concrete at [112] (Kirby and Crennan JJ)).
It can be plainly seen that, after reading the material filed by the parties and hearing the submissions made by counsel for the appellant during the course of the interim hearing, the primary judge arrived at the conclusion that the appellant’s Application in a Proceeding should be dismissed. His Honour arrived at that conclusion on the misunderstanding that the submission of the ICL was supportive of the respondent’s resistance of the orders sought by the appellant, rather than the fact that the submissions of the ICL were actually supportive of the appellant’s position in seeking orders for the child to spend supervised time with the appellant.
While that misunderstanding was regrettable, it was quickly acknowledged by the primary judge who then provided every opportunity for the ICL to make such submissions as she saw fit and, having heard those submissions, provided the respondent with the opportunity of reply before then inviting the appellant to reply to the submissions of the respondent.
In Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [71]–[72], Gleeson CJ and Gummow J said that the state of mind described as bias in the form of pre-judgment “is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.” There is, in my view, no reasonable basis for the assertion that a reasonable bystander would have that apprehension on the facts of this case. In effectively correcting course after realising the error, the primary judge specifically rejected the proposition that he had made his decision before hearing from the ICL. The transcript in that regard records the following exchange:
HIS HONOUR: Thank you. [The ICL], I do have the benefit of your case outline. Is there anything other you wish to add, having heard what the court said?
[THE ICL]:Well, your Honour, since you have already made the decision, I don't see any utility of me addressing you on the issues.
HIS HONOUR: No, [the ICL], that’s not quite correct to say that. I didn't say I had made my decision. I said, “I don't need to hear from you.” I haven't made a decision just yet. What I've indicated is, at the moment, I'm minded to dismiss the application and that I've read your submissions. That doesn't give rise to you saying something that the court has made a decision. That’s not an appropriate submission. Is there anything you wish to add to your case outline?
[THE ICL]: Yes, considering that I haven't really made any submissions in my case outline. Your Honour, I adopt the submissions made by my colleague regarding the issues of risk to the child. I say there is no independent evidence regarding that there’s any psychological or physical risk of harm to the child…
(Transcript 23 February 2022, p.17 line 36 to p.18 line 4.)
The ICL subsequently expanded upon her submissions. As I have indicated, the respondent was then invited to reply to the submissions of both the ICL and the appellant. That course would not have occurred if the primary judge had, in fact, predetermined the matter prior to hearing from the ICL.
I now return again to the lens of the reasonable bystander. On the facts of this case, it could not, in my view, be said that, having regard to the totality of what transpired during the course of the proceedings, including after the primary judge appreciated the error he had made regarding his understanding of the ICL’s position, “an independent observer might reasonably apprehend that the decision-maker might not be open to persuasion”: McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504 at [23] (Spigelman CJ); British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at [104].
In so finding, I have considered but rejected the argument of counsel for the appellant as to the significance of the desire on the part of the primary judge for this matter to be granted expedition in the allocation of a hearing date. Firstly, it is desirable for matters to be heard and determined as quickly as is reasonably practicable, including in circumstances where children are adversely impacted by ongoing highly conflictual litigation. Secondly, expedition could have been considered to be in the interests of both parties irrespective of the outcome of the proceedings. That is, in the context of the respondent’s concerns, an order for expedition would reduce the period of potential anxiety which she contended she would suffer in the event of orders being made for the child to spend supervised time with the appellant. From the appellant’s perspective, it was desirable to minimise the prospect of the hiatus in the spend time arrangements that would occur in the event of his application for supervised spend time orders being dismissed.
That is, the indication by the primary judge of his desire to expedite the hearing of the matter was, in my view, entirely appropriate and consistent with the responsible discharge of his judicial office and could not reasonably be seen by an independent observer to be an indication of bias.
Accordingly, for all those reasons I find the tenth ground of appeal to be without merit and is dismissed.
Ground 1:
The Primary [judge] erred in failing to provide adequate reasons and/or reasons at all.
The adequacy of the reasons will depend upon the circumstances of the case (Bennett and Bennett (1991) FLC 92-191 at 78,266). This includes circumstances where, as in this case, the primary judge delivered ex tempore reasons in the context of an application for interim orders that was heard in the course of the primary judge presiding over a busy list. As relevantly noted by Flick J in BKL15 v Minister for Immigration and Border Protection (2016) 241 FCR 450 at [16]:
… The judicial context in which decisions are made must necessarily be recognised – including (for example) a recognition whether a decision is of an interlocutory or final character and whether ex tempore reasons have been provided. … When an ex tempore judgment is delivered, however, it “should not be picked over” and “appropriate allowance should be given for the pressures under which judges … are placed by the volume of cases coming before them”…
In exercising a discretionary judgment, the primary judge was not required to detail each factor which he found to be relevant or irrelevant: Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 (“Housing Commission v Tatmar Pastoral”) at 386. Further, the primary judge was not required to “mention every fact or argument relied on by the losing party as relevant to an issue”: Whisprun Pty Ltd formerly Northeast Exports Pty Ltd v Dixon (2003) 200 ALR 447 at [62]. Nor was the trial judge required “to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear”: Housing Commission v Tatmar Pastoral at 386.
In considering the adequacy of the primary judge’s reasons, I note that the primary judge appropriately acknowledged the guidance provided by the Full Court in Goode & Goode (2006) FLC 93-286 (“Goode”) at [81]–[82] (contained at [12] and [33] in the published judgment and at [30] in the transcription of the ex tempore reasons). In Goode, the Full Court provides the appropriate pathway to follow in considering an application for interim parenting orders. In applying that authority, the primary judge noted at [12] of the published judgment that he was unable to make findings of fact in respect to contested issues in the context of interim proceedings.
In accordance with that authority, the primary judge identified the competing proposals of the parties in the following paragraphs of his published decision:
(a)The appellant’s submissions at [5]–[11];
(b)The respondent’s submissions at [12]–[30]; and
(c)The ICL’s submissions at [31]–[32].
The agreed or uncontested relevant facts and the parties’ respective factual contentions as contained in the primary judge’s published reasons for judgment are as follows:
·The proceedings were commenced on 8 October 2020 (at [1]);
·The appellant has undertaken drug tests and carbohydrate deficient transferrin (CDT) testing in accordance with the orders made by the Court on 16 April 2021 and has achieved positive results (at [5]);
·The appellant has also undertaken certain courses in respect to parenting (at [5]);
·The appellant has not spoken to the child since February 2021 (at [6]);
·The appellant has been engaging in psychological therapy as evidenced by a report from his psychologist dated 10 July 2021. The report provides that the appellant has reported no symptoms of depression, anxiety or difficulties with anger which the primary judge accepted to be a positive sign in relation to the appellant’s mental health (at [7]);
·The appellant wanted to start seeing the child as soon as possible and was of the belief that contact could be facilitated without the child being placed at risk if the child spent time with the father in the presence of a supervisor (at [8]);
·The appellant also wanted the child to be able to spend time with his extended paternal family (at [8]);
·Clinical notes provided in the respondent’s tender bundle and marked as exhibit “F” in the proceedings record the respondent as having attended at a hospital for outpatient treatment in respect to injuries which she contended she sustained as result of domestic violence (at [12]);
·The report from the respondent’s treating psychologist dated 21 March 2021 identifies the mother as suffering PTSD and anxiety (at [13]);
·The appellant is facing criminal prosecution in respect to allegations made by the respondent that he has perpetrated acts of physical violence upon her, with those charges scheduled, as at the date of the trial, to be heard in July 2022 (at [17]);
·The respondent alleges that the appellant made threats in respect to her life in 2017 (at [19]);
·The respondent alleges an incident of family violence occurred in November 2018 where she alleges she could not breathe (at [19]);
·The respondent alleges that the child has been present at times during instances of family violence, including an incident in mid 2019 in respect to which the respondent alleged that the child said words to the effect of “upsetting mummy” and “making mummy sad” in the context of an alleged physical encounter (at [20]);
·The respondent further alleges that an incident occurred in January 2020 that resulted in the child crying and screaming (at [20]);
·The respondent contends that a further incident of violence occurred in March 2020 in which she alleges a threat was made by the appellant in relation to her life and further alleges that a threat was made by the appellant to physically damage property. The primary judge noted that the respondent attended E Hospital on that date (at [21]);
·There was a final Apprehended Domestic Violence Order made in August 2020 against the appellant naming the respondent as a protected person (at [22]);
·The evidence presented by the respondent “also identified alleged evidence of reports of adverse behaviour from others” (at [22]);
·In early 2021, criminal charges were laid against the appellant in respect of the alleged assault in January 2020 (at [25]);
·On 3 March 2021, the respondent made an urgent application for orders suspending the child spending time with the appellant (at [25]);
·On 16 April 2021, orders were made by consent suspending the appellant’s time with the child and establishing an injunction restraining the appellant from coming within 100 metres of where the child and the mother were living (at [25]);
·The respondent has enrolled the child in a pre-school and has not disclosed the location to the appellant which she contends is due to her concerns for their safety (at [26]);
·The respondent is also concerned about disclosing her address to the appellant (at [27]); and
·The respondent is continuing to seek psychological support in respect to her PTSD (at [27]–[28]) but is continuing to experience difficulties, including suffering a panic attack on 8 December 2021 (at [28]).
In Banks & Banks (2015) FLC 93-637 (“Banks”), the Full Court made it clear that the principles adumbrated in Goode did not require a trial judge to engage in a ritualistic incantation of noting and addressing each and every consideration set out in s 60CC of the Act. Instead, a common sense approach should be taken, having regard to the issues raised by the parties in the proceedings. In that context, at [48]–[50] of Banks, the Full Court stated:
It should also be said that in parenting proceedings as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at trial.
…there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
(Emphasis added)
In the context of this ground of appeal, at paragraph 15 of the appellant’s Summary of Argument, it was contended that the primary judge failed to give proper reasons in relation to the following issues:
a. The existence of an unacceptable risk of supervised contact;
b.The potential risk of harm to the Respondent mother’s parenting capacity and concomitant risk of harm to the child due to supervised contact; and
c. The best interests of the child.
For reasons which I explain, that contention is without merit. Relevantly, for the purpose of this appeal, the primary judge identified that the central issue was whether “the [appellant] should have supervised access pending a final hearing and where that access should be taken” (at [2]).
Central to the determination of that issue was whether the child would be exposed to a potential risk of harm in spending time with the appellant and whether that risk could be adequately mitigated by the presence of a professional supervisor.
During the course of the proceedings, it was contended, by counsel for the appellant that the primary judge failed to identify, in his original ex tempore reasons for judgment that the focus of his decision was on “unacceptable risk” as opposed to mere risk. That submission is, with respect, without merit. The transcript of his Honour’s unaltered ex tempore reasons for judgment record that the primary judge focused upon and responded to the submission by the ICL that the child would not face an unacceptable risk of harm in spending supervised time with the appellant (contained in the published judgment at [31] and at [28] in the transcription of the ex tempore reasons for judgment).
In terms of the challenge to the adequacy of the primary judge’s reasons, provided a trial judge applies proper principle, there is no necessity for the primary judge to refer, by name, to relevant authorities from which those principles are derived (Sheerin v Director of Public Prosecutions (Vic) (2021) 288 A Crim R 162). It is evident from the reasons that the primary judge did apply proper principle.
The relevant principles in assessing whether a child would be exposed to an unacceptable risk of psychological and/or physical harm were recently considered by the Full Court in Isles & Nelissen (2022) FLC 94-092. The Full Court agreed with and adopted Austin J’s dissenting judgment in Fitzwater & Fitzwater (2019) 60 Fam LR 212 as being the correct statement of the law. Justice Austin’s judgment includes the following:
138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter v Potter (2007) 37 Fam LR 208; (2007) FLC 93-326; [2007] FamCA 350 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
…
142.As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (children) (care order: future harm) [2001] 1 Fam Law R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
(Emphasis in original)
Thus, it can be seen that determining the issue of risk essentially involves applying a risk matrix, whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence. That is, there is an obligation on a trial judge to evaluate not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: see N v S (1996) FLC 92-655 at 82,713 (Fogarty J) cited with approval in Napier & Hepburn (2006) FLC 93-303, Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]–[96] and Deiter & Deiter [2011] FamCAFC 82 at [61].
Additionally and relevantly for the purpose of this appeal, I would expand upon that insightful analysis by Austin J with the following guidance that emerges from authorities:
(1)It is now well established that “unacceptable risk” includes not merely physical harm but also includes an assessment of the risk of emotional harm: see A v A (1998) FLC 92-800 at 84,996; M v M (1988) 166 CLR 69 at 77.
(2)Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]–[148].
(3)The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or only some of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 at [68], endorsing and applying the principles set out in a paper prepared by the Hon. John Fogarty AM titled “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249.
(4)While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act 1995 (Cth), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact; “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”.[1]
[1] See the Hon. Richard Chisholm “Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions” (Paper presented at the Children’s Court Conference, Parramatta, 1 September 2010) 15.
The primary judge clearly explained that his concern about the potential emotional risk faced by the child in spending time with the appellant (whether supervised or unsupervised) was the real possibility that the child had been exposed to family violence perpetrated by the appellant upon the respondent, including incidents as set out in the respondent’s affidavit and referred to by the primary judge which the respondent contended occurred in mid-2019, on 19 January 2020 and on 30 March 2020. There was no need for the primary judge, in the context of the interim hearing, to detail that evidence which was contained in filed and served documentation in respect to which all parties were familiar.
That evidence contained in the respondent’s affidavit filed 17 December 2021 was as follows:
43.In around mid 2019, I was in the lounge room with [the child] and [the appellant]. I was crying. I got up to go out the back door. [The child] said to [the appellant] “don’t upset mummy, you made mummy sad”. Then I saw [the appellant] push [the child] in her chest. [The child] fell back, almost off the lounge. [The child] started screaming and crying “mummy, mummy”. I grabbed [the child] and took her with me.
44.On or around 19 January 2020, B said “[the appellant] threw a shoe at me.” I said to [the appellant], “did you throw a show at B?” and [the appellant] replied, “It didn’t even hit her, it hit the pillow.” [The appellant] came up close to me and pushed his face into mine. I pushed [the appellant]. As we argued, [the appellant] grabbed me by the throat and squeezed my throat while pushing me backwards. [The child] came out of the bedroom. [The appellant] pushed me into her. [The child] fell over and started crying. [The appellant] threw mw [sic] onto the lounge. [The appellant] tried to pick [the child] up. [The child] was crying and screaming, “Mummy, mummy”, wriggling out of [the appellant’s] hands. I got up, picked up [the child], went to the bedroom and locked the door. The children were crying a lot.…
…
46.On 30 March 2020 I returned with [the child] to the Suburb C house to pick up some of my belongings. When [the appellant] arrived home, he screamed “shut the fuck up, shut the fuck up, shut the fuck up” and grabbed me by the throat with both hands, pulled me around him in a circular motion. [The appellant] then threw me face first into a wall. I hit the wall with the top of forehead and head. [The child] was standing next to us and started screaming. [The appellant] then got his large spanner from inside and came back out and said, “If you don’t get the fuck out, I’ll smash your car.”
The primary judge noted that while he was unable to make findings of fact, there was at least some corroboration of the respondent’s account of the events that occurred in March 2020 in the E Hospital records as contained in the respondent’s tender bundle and marked as exhibit “F” in the proceedings. The records provide a discharge summary stating that the respondent attended on that day with the child in respect to reported head trauma with remaining neck and spinal injury “due to a DV incident.”
The primary judge further noted that the appellant is the subject of criminal charges in respect to the allegations that the respondent made concerning the events referred to in paragraph 44 of her affidavit filed 17 December 2021. In that respect, it was not disputed, in the proceedings, that the appellant has been charged with various offences relating to serious assault. It was noted that at the time of the hearing before the primary judge, those criminal charges were listed to be heard in July 2022.
With respect to the submissions of counsel for the appellant, it would have been irresponsible for the primary judge to have ignored that evidence. Specifically, if at final hearing the Court accepted the evidence of the respondent in respect to being the subject of a pattern of coercive and controlling conduct including those alleged incidents of serious family violence, then it necessarily leads into consideration of the opinion of the court child expert as expressed in her Family Report dated 16 September 2021 and marked as exhibit “C” in the proceedings. Reference was made by the primary judge to the Family Report in circumstances where all parties were aware of the contents of that report. Specifically, at paragraph 119 of her report, the court child expert stated that in the event of the respondent’s evidence being accepted, the Court may find that the “detriments to [the child] of maintaining relationship with a parent who has perpetrated family violence, as discussed above, including the impacts of this on [the respondent], are likely to outweigh the benefits of this relationship for [the child].”
In that respect in SS & AH [2010] FamCAFC 13, the Full Court stated at [100]:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
(Emphasis added)
Additionally, the primary judge found that the child was at risk of emotional harm as a result of potentially being vicariously impacted by the respondent’s parenting capacity, as exacerbated by the respondent’s symptoms of PTSD as diagnosed by her treating psychologist.
While there is at least some ambiguity and possible error on the part of the primary judge in referring to “the psychologist’s evidence” as providing a basis upon which he concluded that there was “a real risk” that the respondent’s parenting capacity would be adversely impacted (at [15]), it is to be noted that the evidence regarding that potentiality was contained in the report of the court child expert, rather than the respondent’s treating psychologist. Nonetheless, the court child expert’s curriculum vitae as annexed to the Family Report makes clear that she is a qualified and highly experienced psychologist. Even if, however, [15] is construed as being a reference, by the primary judge, to the respondent’s treating psychologist, it is not a material error that impacts upon the conclusions of the primary judge (de Winter v de Winter (1979) FLC 90-605 and Australian Competition and Consumer Commissioner v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25 (“Reckitt”), applied with approval in Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission (2021) 284 FCR 24 at [138]). In Reckitt, it was stated by the Full Court of the Federal Court of Australia at [53]–[54] that:
53.In all cases of specific error, the error must have either caused or materially contributed to the result. An error which has not in some material way affected the outcome will ordinarily result in the appeal court declining to intervene, at least as to the result.
54.In this case, the ACCC advances eight grounds of appeal. The first seven grounds may be seen as within the first category of asserted specific error. Thus for each or any of those grounds to succeed in relation to the appeal, the ACCC must not only establish the asserted error, but also that the error was material to the penalty imposed. Any errors in reasoning or approach falling short of this are insufficient for such grounds to succeed.
In considering this issue, it is to be noted that the substance of the evidence referred to by the primary judge was provided by the court child expert at paragraph 117 of the Family Report, which reads:
[The respondent] stated that her anxiety has been severe enough that she has attended hospital on one occasion, and she acknowledged that her anxiety may impact on her ability to be emotionally present with the children at times, and may curtail some experiences she would otherwise share with them. She reported that she has participated in counselling, and it is recommended that she continue to access support in regards to managing her anxiety. If [the respondent’s] account, that her mental health difficulties have resulted from trauma perpetrated by [the appellant], is found to have veracity, it is likely that any ongoing contact between [the parties], or [the appellant] and [the child], would exacerbate these difficulties, and would be detrimental to [the respondent’s] ability to parent in a calm, child focused manner.
The primary judge appropriately noted at [31] that, consistent with authority, he was required to take a cautious approach to the assessment of risk in the context of an interim hearing. In that respect, it was stated in Marvel & Marvel (No 2) (2010) 43 Fam LR 348 (“Marvel”) at [120] that where risk is alleged in interim parenting proceedings, a conservative approach is warranted that is “likely to avoid harm to a child.”
Having adopted such an appropriately cautious approach, the primary judge determined that there was an unacceptable risk of the child being adversely impacted by orders requiring the child to spend time with the appellant in circumstances where the Court was not, in the context of an interim hearing, in a position to determine the veracity of the respondent’s allegations against the appellant.
Having determined that such an unacceptable risk existed, it was incumbent upon the primary judge to consider whether that risk could be mitigated, including by the possibility of the child spending supervised time with the appellant (see Blinko & Blinko [2015] FamCAFC 146 at [83] referring to R & C [1993] FamCA 62).
In the exercise of his discretion, the primary judge specifically considered the submissions of both the appellant and the ICL that the potential risk to the child could be adequately mitigated by orders requiring the time that the child spent with the appellant be supervised.
Having considered that evidence, the primary judge indicated that pending the final hearing of the matter, he preferred the opinion of the court child expert in respect to that issue. Again, there was no need for the primary judge to state verbatim the evidence of the court child expert, who opined that in the event of the Court, at final hearing, accepting the evidence of the respondent that she had been subject to the family violence perpetrated by the appellant as alleged by her, then her recommendation was that the child should spend no time with the appellant.
The primary judge adequately explained his reasons for adopting a cautious approach in the interim proceedings in the context where his Honour was unable to make findings of fact. Such explanation is set out most relevantly in his published reasons for judgment at [15], [17], [30] and [31].
In summary, in the context of interim proceedings and in taking an appropriately cautious approach, the primary judge has adequately explained why, in the exercise of his discretion, he dismissed the appellant’s application for orders requiring the child to spend time with the appellant, including with provision for that time to be supervised.
Accordingly, Ground 1 must be dismissed.
Ground 2:
The Primary Judge erred in failing to take into consideration, the absence of evidence of any harm to the child.
This ground of appeal is, with respect, misconceived. The court child expert clearly stated that if, at final hearing, it is found that the child was exposed to the family violence alleged by the respondent, the Court may well find that it would be contrary to the emotional well-being of the child for orders to be made requiring the child to spend time with the appellant.
While, for reasons which he articulated, the primary judge was unable, in the context of the interim hearing, to make such findings, for reasons which I have explained, his Honour was nonetheless obliged to consider the potentiality for those findings to be made at final hearing. Having regard to that prospect and in the context of an interim hearing, his Honour determined that it was not in the best interests of the child for orders to be made requiring the respondent to facilitate the child spending time with the appellant until there had been a testing of evidence at final hearing.
Accordingly, this ground of appeal is without merit and must be dismissed.
Ground 3:
The Primary Judge erred in proceeding to seek to set the matter down for hearing in the absence of any independent evidence of the relationship between the child and the Father.
This ground of appeal is also without merit.
Firstly, paragraph 8 of the appellant’s Amended Notice of Appeal specifically states that the appellant is not appealing all of the orders of the primary judge, with the appeal being limited to Order 2: “[t]he application in a case filed 23 November 2021 by the Applicant Father is dismissed.” The order setting the matter down for hearing for four days commencing 2 August 2022 was Order 1.
Secondly, Order 1 of the orders made on 23 February 2022 was a procedural order and not an order in respect to the welfare of the child. Accordingly, for the reasons which I have earlier stated, it was necessary for the appellant to apply for leave to appeal in respect to such a procedural order. No such application has been made.
Further, even if such leave had been given, as noted by counsel for the respondent, there is nothing preventing the appellant from presenting evidence at the final hearing from the paternal grandparents or such other person as he considers to be appropriate to provide evidence of the nature of the child’s relationship with the appellant, based on the observations that they made during those times when the child was spending time with the appellant.
Additionally, Order 11 of the orders made by the primary judge granted the parties general liberty to apply. There was nothing preventing the parties, including the appellant, from applying for an order facilitating the obtaining of an updated Family Report and/or the appointment of a single expert to provide an opinion to the Court on the nature of the child’s relationship with the appellant.
Accordingly, for these reasons, Ground 3 is without merit and must be dismissed.
Ground 4:
The Primary Judge failed to take into account the relevant consideration, being the views of the ICL in support of the supervised visits.
This ground of appeal is also, with respect, misconceived. As I noted during the course of the appeal, the ICL in this matter is well known to the Court and is respected as a highly competent ICL. There is no evidence, however, that the ICL has training and/or experience in the area of social science psychology and/or psychiatry such that she was in a position to provide an opinion to the Court that had greater weight than any other advocate in the proceedings.
Moreover, it is quite clear that, despite an initial misapprehension as to the position adopted by the ICL, the primary judge gave the ICL an opportunity to make such submissions as she wished in support of her case and those submissions were clearly considered by the primary judge, including at [31]–[32] to which I have earlier referred.
Accordingly, this ground of appeal is also without merit and must be dismissed.
Ground 5:
The Primary Judge erred in considering on the limited evidence, firstly, the proposed supervised visits would adversely effect [sic] the mother, and secondly to such an extent which would somehow impact on her ability to parent the child.
The primary judge clearly acknowledged the limitations on a trial judge when considering an application for interim parenting orders. This is primarily due to the fact that there is, other than in exceptional circumstances, no facility for the testing of the parties’ respective factual contentions. In that respect in Marvel at [120], the Full Court noted that interim orders are: “…a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing.”
Nonetheless, despite those limitations arising from the inability to test evidence, as I have earlier explained in considering the appellant’s first ground of appeal, there was adequate evidence before the Court which justified his Honour’s finding as to the existence of an unacceptable risk to the child in spending time with the appellant until such time as the Court has the ability to properly consider, at final hearing, the substance and veracity of the respondent’s evidence relating to, in particular, her allegations that the appellant has perpetrated serious acts of family violence against her.
Accordingly, this ground of appeal is without merit and must be dismissed.
Grounds 6 and 7:
As noted above, the appellant’s counsel withdrew Grounds 6 and 7 upon the commencement of the appeal hearing.
Grounds 8 and 9:
8. The Primary Judge in dismissing the application in a case has prejudged the final hearing.
9. The Primary Judge has denied the father, procedural fairness, in preventing the father to rely upon independent evidence of the observations of a third party of the relationship with the child at a final hearing.
These two grounds are related and will be considered together. They are also related to Ground 3, which I have earlier considered.
The substance of the appellant’s concern, as articulated by his counsel at the hearing of the appeal, was that the appellant’s case at final hearing will be severely prejudiced by the absence of independent recorded observations provided by a professional supervision agency regarding interactions between the child and the appellant.
In considering that argument, I note the submissions by counsel for the respondent, to which I have earlier referred, that there is nothing preventing the appellant from presenting evidence from the paternal grandparents as to the observations they made of the child when the child was spending time with the appellant. Further, as noted above, the appellant has the ability to utilise the liberty to apply provisions to seek orders for the obtaining of an updated Family Report or for the appointment of a single expert to comment upon the nature of the child’s relationship with the appellant.
Further, I would add, that the primary focus of the Court in considering the first primary consideration of matters set out in s 60CC(2)(a) of the Act, being the desirability of the child having a meaningful relationship with both parents, is one that is prospective (McCall & Clark (2009) FLC 93-405 (“McCall & Clark”)). While, in considering that issue, the Court will inevitably have regard to the nature of the child’s relationship with both parents (s 60CC(3)(b)), the fact that there has been a hiatus in the child’s relationship with the appellant in the period subsequent to February 2021 will not be determinative of the question as to whether it is in the best interests of the child to have a meaningful relationship with the appellant in the future.
Relevantly, however, in rejecting this ground of appeal, there is the obligation of the Court to have regard to the principles set out in s 43 of the Act and the principles for the conduct of parenting proceedings as set out in s 69ZN of the Act.
Section 43 of the Act requires the Court, in exercising its jurisdiction under the Act, to have regard to “the need to... promote [the children's] welfare.” Section 69ZN sets out the principles that the Court must apply in exercising its powers in child-related proceedings. In my view, the most relevant principle to apply in respect to these proceedings is Principle 1, which relevantly provides that:
…the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
The principles set out in s 69ZN apply in the context of interim proceedings as much as at final hearing. This is made clear in the following extract from the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005, which provides:
The amendments in Schedule 3 provide for a less adversarial approach to be adopted in all child-related proceedings under the Act. This approach relies on active management by judicial officers of matters and ensures that proceedings are managed in a way that considers the impact of the proceedings themselves (not just the outcome of the proceedings) on the child.
(Emphasis added)
It would be perverse to adopt a construction of s 69ZN that results in an outcome where the Court, in making final parenting orders, is required to consider the potential impact of those orders on a child’s physical and psychological wellbeing but where the Court is not required to do so in respect to interim proceedings and orders arising from those interim proceedings.
That is, the Court is required to be conscious of the impact of the orders it makes on the welfare of the child, both in respect to final orders and in respect to any procedural orders.
In this case, the primary judge was acutely aware that an order requiring the child to spend time with the appellant, including in circumstances where that time was to be supervised, may be causative of an adverse impact on the child. It was entirely appropriate for the primary judge to have regard to that potential impact, which he identified in the context of it being an unacceptable risk until such time as the Court is in a position to determine the veracity of the respondent’s allegations.
Expressed proactively, the Court’s obligation to have regard to the best interests of the child applies not only in respect to the final orders it makes, but also in respect to procedural and interim parenting orders. The child’s best interests are not to be made subservient to the evidentiary goals of the parties.
No appealable error has been established in respect to the manner in which the primary judge exercised his discretion in this matter by prioritising the welfare and best interests of the child above the evidentiary aspirations of the appellant.
Accordingly, Grounds 8 and 9 are without merit and must be dismissed.
Ground 11:
The Primary Judge erred in failing to take into consideration the paramount under S60CC(2)(a) of the FLA of the child having a meaningful relationship with both parents.
This ground of appeal was not specifically addressed in the appellant’s Summary of Argument, save to the extent that paragraph 27 provides what is effectively a restatement of this ground of appeal rather than setting out any supportive argument.
The ground of appeal is nonetheless without merit. The very subject matter of the interim proceeding was the primary judge balancing what are commonly referred to as the twin pillars in parenting proceedings (Mazorski v Albright (2007) 37 Fam LR 518 at [3]). This is made clear by the primary judge’s reference to the well-known authority of Goode as providing guidance to the consideration of this matter. In that respect, the Full Court in Goode noted at [7] that the objects and principles in respect to the conduct of parenting proceedings includes s 60B(1)(a), which relevantly provides:
1.The objects of this Part are 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 in involvement in their lives, to the maximum extent consistent with the best interests of the child
(Emphasis added)
The Full Court in Goode further noted at [9] that the primary considerations set out in
s 60CC(2) include the first primary consideration of “the benefits of the child having a meaningful relationship with both of the child’s parents.”
While it is the case that the primary judge did not use the expression “meaningful relationship” in his judgment, it is clear that, in substance, that was the concept that he was considering in undertaking that task of balancing the benefit of the child having a relationship with the appellant by spending “meaningful time” (at [32]) with him as against the potential risk to the child in the event that the mothers allegations that the father has perpetrated serious acts of family violence are found to be of substance.
In circumstances where that could not occur until the respondent’s evidence was tested, the primary judge, in what he candidly acknowledged was the “cautious” exercise of his discretion, determined that the balance lay in favour of protecting the child from an unacceptable risk of being exposed to emotional harm rather than for the child to spend “meaningful time” with the appellant prior to final hearing. In exercising his discretion in that manner, the primary judge was acting in a manner that was entirely consistent with the legislative directions as set out in s 60CC(2) of the Act.
The primary judge was also, with respect, acting in a manner that was consistent with authority. Before a determination is made that it is in the best interests of the child to have a meaningful relationship with a parent, a determination is required as to whether such a relationship is possible and will, in actual fact, be of benefit to the child (see for instance Loddington & Derringford (No 2) [2008] FamCA 925 at [169], McCall & Clark at [117] and [122], Jurchenko & Foster (2014) FLC 93-598 at [123] and Cotton & Cotton (1983) FLC 91-330 at 78,252).
As I have earlier stated, it was within the proper exercise of his discretion for the primary judge to determine that, in the absence of his Honour being able to make that determination in the context of the interim hearing, the balance lay in favour of protecting the child from what the primary judge determined to be an unacceptable risk of harm to the child if orders were made requiring the child to spend time with the appellant prior to final hearing, even if that time was to be professionally supervised.
Accordingly, for all these reasons, Ground 11 is also without merit and should be dismissed.
Costs
In this matter, the respondent sought an order for costs in the event of the appellant being unsuccessful. Comparatively, the appellant sought that costs in respect to the appeal be payable in the proceedings. It is unnecessary to spell out detailed reasons for awarding costs: Greedy and Greedy (1982) FLC 91-250 and Luadaka v Luadaka (1998) FLC 92-830.
Section 117 of the Act relevantly provides as follows:
(1)Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
…
There only need be one justifying circumstance to found an order for costs: Fitzgerald v Fish (2005) 33 Fam LR 123. In this case, it is relevant that the appellant has been wholly unsuccessful in his application for leave to appeal: s 117(2A)(e).
While, in the context of s117(2A)(a), the appellant contends through his counsel that he has exhausted available funds in litigating in this Court and also in defending criminal charges, the reality is that this appeal challenging interim, rather than final, orders was wholly unnecessary. The primary judge had set this matter down for a hearing which was to take place in August 2022, just six months after the date of the interim hearing. That hearing would have provided the opportunity for the parties to respectively test the veracity of the evidence of the other and to enable the primary judge to make a determination in respect to the central issue involved in the parties’ dispute, being whether the respondent’s allegations of the appellant engaging in a pattern of coercive and controlling conduct, including serious acts of physical violence, are of substance.
Also of relevance to the consideration of the respondent’s application for costs is the manner in which these proceedings have been conducted (s117(2A)(c)). This includes the appellant pressing grounds of appeal in circumstances where he clearly required leave.
Having regard to those considerations, I am of the opinion that Australian taxpayers should not be required to pay the legal costs incurred by the respondent in responding to this appeal, which would otherwise be the case if they were met by Legal Aid NSW as the legal representative for the respondent.
For these reasons, I am satisfied that an order for costs should be made in favour of the respondent. The question then becomes in what amount.
Rule 12.17 of the Family Law Rules 2021 permits the Court to order costs in a specific amount. The power to do so is to “avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation”: Graham & Squibb (2019) FLC 93-892 at [92] quoting Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120.
The respondent seeks costs which have been assessed at legal aid rates, which are substantially below the scale prescribed in the Family Law Rules 2021. I am satisfied that those costs are logical, fair and reasonable and an order should be made for those costs to be met in their entirety by the appellant.
Orders
Accordingly, for all of the reasons expressed in this judgment, the appeal will be dismissed and the appellant is ordered to pay the costs of the respondent assessed in the sum of $4,356 within 28 days.
I certify that the preceding one hundred and twenty-six (126) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 11 October 2022
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