Burrows and Seddon & Anor
[2020] FamCAFC 190
•6 August 2020
FAMILY COURT OF AUSTRALIA
| BURROWS & SEDDON AND ANOR | [2020] FamCAFC 190 |
| FAMILY LAW – APPEAL – PARENTING – Where the mother was a witness to a violent crime and is a participant in a witness protection program – Where the primary judge did not rely on facts which were not in evidence – Where opinions of the single expert were based upon identified, proven and established facts – Where the primary judge did not impermissibly rely upon the opinion of the single expert – Where the primary judge weighed relevant statutory considerations and made an order taking into account the child’s best interests as the paramount consideration – Appeal dismissed – No order as to costs. |
| Family Law Act 1975 (Cth) ss 60CC, 102PD, 102PE, 102PF Witness Protection Legislation (State Z) |
| Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Hall and Hall (1979) FLC 90-713; [1979] FamCA 73 Housing Commission (NSW) v Tatmar Pastoral Holding Co Pty Ltd and Anor (1983) 3 NSWLR 378 Muldoon & Carlyle (2012) FLC 93-513; [2012] FamCAFC 135 Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 T v F; Commissionerof the Australian Federal Police and The Children’s Representative (1999) FLC 92-855; [1999] FamCA 738 Whisprun Pty Ltd v Dickson (2003) 200 ALR 447; [2003] HCA 48 |
| APPELLANT: | Ms Burrows |
| FIRST RESPONDENT: | Mr Seddon |
| SECOND RESPONDENT: | Commissioner of State Z Police |
| INDEPENDENT CHILDREN’S LAWYER: | CC Lawyers |
| DATE DELIVERED: | 6 August 2020 |
| JUDGMENT OF: | Aldridge, Watts & Tree JJ |
| HEARING DATE: | 11 December 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 May 2019 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr FF |
| SOLICITOR FOR THE APPELLANT: | BB Lawyers |
| COUNSEL FOR THE FIRST RESPONDENT: | Ms DD |
SOLICITOR FOR THE FIRST RESPONDENT: | AA Lawyers |
| SOLICITOR FOR THE SECOND RESPONDENT: | No appearance |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr EE |
| SOLICITOR FOR INDEPENDENT CHILDREN’S LAWYER: | CC Lawyers |
Orders
The appeal is dismissed.
There is no order as to costs.
Pursuant to s 102PE Family Law Act 1975 (Cth), disclosure is prohibited of information tending to reveal the identity of or otherwise concerning any party to or witness in these proceedings, including but not limited to information in any orders or reasons given by the Court; in affidavits; exhibits; or obtained by discovery or the issue of subpoenas, pending further order or until (redacted), provided that this order does not apply to information contained in the published anonymised and redacted version of the reasons for judgment.
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 Burrows & Seddon and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: (Redacted)
File Number: (Redacted)
| Ms Burrows |
Appellant
And
| Mr Seddon |
First Respondent
And
| Commissioner of State Z Police |
Second Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Aldridge J
I have read the reasons of Watts J and agree with the orders proposed by his Honour and, very generally speaking, with his Honour’s reasons for judgment.
I wish to add a few comments about Grounds 1 and 2, which were argued together. Despite the terms of the second ground, which was expressed as a weight challenge, it was argued on the basis that the conclusion that the mother posed an unacceptable risk of harm to the child was not available on the evidence. The remaining grounds of appeal were challenges to the weight to be given to particular matters, which face a particularly high bar (Gronow v Gronow (1979) 144 CLR 513).
Ms Burrows (“the mother”) participates in a witness protection program, having been a key witness to a violent crime. Although, as recorded by the primary judge, she was aware of the dangers that she faced, presumably of reprisal, that did not stop her from taking actions that put her at risk. Thus, the primary judge found that there was a real risk of reprisal against her which extended to the child, giving rise to an unacceptable risk of harm.
Although the primary judge was concerned with risks associated with the mother’s behaviour compared to the father’s.
His Honour said:
101.The cumulative effect of all of these matters leads the Court to conclude that it cannot be confident in the Mother’s ability to make wise decisions about herself and [the child], and her ability to perceive the risks to [the child] in particular is inhibited. The fact that she has changed her identity, and relocated to another state, seems to have lulled the Mother into a false sense of security in relation to the risk of violent reprisal. The Mother gave evidence that she still felt protected by [Interstate] Police, and this was manifested, for example, by the presence of Sergeant [J] at the hearing.
102.The inference to be drawn, however, is that [certain actions taken by the mother], was not of itself protective of risk. Moreover, it might be overstating the matter to say that Sergeant [J’s] presence of the hearing was protective of the Mother, when in reality it could have been protective of the Witness Protection Program and its integrity.
103.When all the evidence is considered in totality, the Court cannot exclude the risk of violent reprisal. In short, there is an unacceptable risk of harm to [the child] if he spends unsupervised time with his Mother and, indeed, when the risk is properly assessed, there is a risk of harm to [the child] even when he spends supervised time with his Mother. It must be recalled that the Mother [behaved in certain ways], at a time when supervised contact was occurring.
Those conclusions are readily supported by the evidence and by the basic facts of the case as I outlined at [3], leaving aside the opinion of the single expert. Indeed, the single expert expressly left the finding of any risk to the Court and expressed her opinions on the premise that the risk was established (see [60]).
That is an orthodox way to proceed and one which properly left the finding of risk to the primary judge. The fact that his Honour’s conclusions as to the mother’s appreciation and management of that risk were substantially the same as the single expert’s opinion and, indeed may have been substantially based on them, does not establish error.
It follows that Grounds 1 and 2, which were the main focus of the oral submissions at the hearing of the appeal and which, as argued, contended that the above conclusions were not available on the evidence, must fail.
Watts J
Introduction
By a Notice of Appeal filed on 20 June 2019, Ms Burrows (“the mother”) challenged various orders made by a judge of the Federal Circuit Court of Australia on 24 May 2019. At the end of oral submissions, the appeal was limited to being against only Orders 3 to 6 inclusive, which provided that X, born on [date redacted] (“the child”), have supervised recognition time with the mother for two hours, five times a year. Mr Seddon (“the father”), with whom the child lives, resists the appeal, as does the Independent Children’s Lawyer (“ICL”). The second respondent did not appear at the appeal hearing.
At the hearing before the primary judge, the mother had sought that his Honour make an order for equal shared parental responsibility and that the child spend unsupervised time with her commencing with four hours each week and building over five stages to five nights a fortnight once the child commenced primary school. At the time of the hearing, the child was almost aged [number deleted] years old.
The mother’s challenges to the primary judge’s orders are that his Honour impermissibly gave weight to extraneous or irrelevant matters, including flawed opinions of the single expert gave excessive weight to some considerations and failed to give any or sufficient weight to others. For the reasons which follow, there is no merit in any of these challenges and the appeal shall be dismissed.
Relevant background facts
In 20AA, the mother witnessed part of a violent crime. The mother gave evidence implicating the two perpetrators. The mother was not charged with any offence. The primary judge found that one of the perpetrators was the mother’s partner at the time who identified as “Mr U” and the other identified as “Mr GG”. These men were sentenced to imprisonment and may be released from prison in [date redacted]. The primary judge found that had the mother not behaved in a certain way, it was highly unlikely that she would have found herself at the scene of the violent crime.
In late 20AA, the mother became a participant in the State Z witness protection program pursuant to the Witness Protection Legislation of State Z. The mother’s name was changed and she moved interstate.
The mother and the father commenced a relationship in early 20BB. Both participated in a certain activity throughout their relationship. As mentioned above, the child was born in [date redacted].
After the birth of the child, the mother did something.
Whilst an order had been made granting the Commissioner of State Z Police leave to intervene in the proceedings, the Commissioner played a very limited role in the case. An officer from State Z Police was present as an observer throughout the trial and provided an affidavit that was only available to the primary judge. His Honour returned the affidavit at the end of the trial to the Commissioner of State Z Police. In his Honour’s reasons for judgment at [30], the primary judge recorded that this affidavit did not inform the Court of any evidence that the parties had not already provided and consequently no issue arises such as that referred to by the Full Court in T v F;Commissionerof the Australian Federal Police and The Children’s Representative (1999) FLC 92-855 at [55].
In early 20DD the police took out a family violence order in the mother’s favour and the father and child left the residence where the parties were living. The child has been living with the father since that time. In February 20DD the father ceased a certain activity.
In 20DD and 20EE, the child continued to live with the father and spent irregular time with the mother, notwithstanding the father encouraging the mother to do so. This time with the mother was supervised by either the father or another adult. During these visits, the father made certain observations. Following separation, the mother continued particular activities. There was evidence before the primary judge that at least on one occasion the child was exposed to a particular risk in the mother’s presence/company. Unlike the father, the mother did not involve herself in certain positive activities and gave inconsistent evidence about a particular issue.
On 23 November 2017, interim orders were made for the father to have sole parental responsibility for the child, who was to live with him and to have supervised time with the mother at a contact centre. The mother had been seeing the child pursuant to those orders up until the date of the hearing before the primary judge.
The primary judge’s reasons for judgment
The primary judge had the advantage of receiving both the written and oral evidence of each of the parties and the single expert, together with tendered documents and a confidential affidavit from an officer from State Z Police.
There is no suggestion that the primary judge did not provide adequate reasons for the order limiting the child’s time with the mother to recognition contact.
The primary judge set out the proposals of both the mother and the father and the ICL. As indicated above, the mother sought orders that, after a staged build-up, the child ultimately spend time with her five nights a fortnight. The primary position of the father was that there should be no contact between the mother and the child. The ICL proposed the orders which were ultimately made and which the father supported as an alternate proposal.
At particular places in the primary judge’s reasons for judgment, his Honour assessed the credit of the parties and made findings of fact. At [75], the primary judge made findings about the seminal event in 20AA in the following terms:
… [The mother] was not criminally involved, in the sense of being an accessory before or after the fact. However, it perhaps overstates the case to say that she was merely a bystander. On her own evidence, the Mother was [involved in certain activities] at the time. On the Mother’s own evidence, it was her boyfriend who was one of the [perpetrators]. She [was involved in a certain way]. A reasonable inference is that if the Mother had not been involved in the [activities] in which she was involved, it is highly unlikely that she would have found herself in the position she was in that … day, and thus none of the present risk issues would be present so far as [the child] is concerned…
The primary judge discussed the evidence of the single expert at some length and considered relevant s 60CC(2) and s 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”) considerations. These included the benefits the child would have from a future relationship with the mother, the current nature of the relationship between the child and each of the child’s parents and the mother’s allegations about family violence.
The primary judge found at [88] that “probably the most important and determinative consideration”, was the need to protect the child from the risk of harm. Apart from making findings about the incident in 20AA, the primary judge discussed certain behaviours in which the mother was involved; the mother’s attitude about the risk to the child as one of denial and minimisation; and the mother’s inability to perceive the risks to the child which the primary judge found existed.
The primary judge concluded that making, amongst others, Orders 3 to 6, were in the child’s best interests.
Grounds of appeal
Ground 7 was abandoned.
Ground 2
Did the primary judge give excessive weight to findings of unacceptable risk on purported facts where there were no evidence to support such facts?
The mother’s challenge is that the primary judge had mistakenly found that Mr U was one of the perpetrators of the crime and that Mr U had been incarcerated along with Mr GG until 20XX for the crime.
It is submitted by counsel for the mother that “[t]he notion that the then boyfriend of the Mother’s was one of the [perpetrators] appears to be completely baseless” (Mother’s Summary of Argument filed on 25 October 2019, paragraph 24) and given the contents of [95] of the reasons for judgment, set out below at [36], that error of fact formed a critical part of the primary judge’s decision.
In the mother’s affidavit filed on 13 March 2019, she gives this version of events. [The summary of the mother’s evidence which relates to her version of the events associated with her witnessing the crime has been redacted].
The mother said that [additional information the mother gave about events has been redacted].
At paragraph 10 of the father’s affidavit filed 21 March 2019, he gives the following evidence:
Five months into our relationship [the mother] disclosed to me that she relocated to [to a state] as she has given evidence in a criminal trial interstate. She described to me, [the father’s detailed evidence as to what the mother told him about her involvement in witnessing the violent crime has been redacted].
At paragraph 29 of the single expert’s report, the single expert recorded the following in respect of her interview with the mother on 21 May 2018:
… She admitted that the boyfriend she had when she was [age redacted] was in gaol for a criminal offence committed in another state. She said he had received a [HH-JJ] year sentence and expected that he would not be released for FF to GG more years. [Further statements made by the mother to the single expert have been redacted].
During the mother’s oral evidence at the trial, she maintained her position that her then boyfriend Mr U was not one of the perpetrators.
The father was not cross-examined about his evidence as to what the mother had said to him about the circumstances of the crime. The mother was asked about his version in cross-examination and agreed that she had spoken to the father about what had happened that day but maintained that she did not tell him that her boyfriend was involved. The single expert’s evidence about the mother’s admissions relating to the boyfriend that she had in 20AA and the sentence he received were unchallenged.
The primary judge said in the reasons for judgment:
34.The Court finds that the Mother's presence at the scene of the … crime referred to above was most likely associated with the fact that she was [involved in certain activities], immediately before and at the relevant time of the crime. The Mother was involved in a [certain] culture. Had she not been, it is highly unlikely that she would have found herself at the scene of a violent crime.
…
51.At paragraph 29 of the [single expert’s] report the Mother discloses a matter not elsewhere disclosed. She admitted to [the single expert] that the boyfriend she had at age [redacted] was in jail [sic] for a criminal offence committed in another state and had received a [HH-JJ] year sentence, with the expectation that he would not be released for [FF to GG] years. Indeed, the Father had alleged to [the single expert] that it was the Mother’s boyfriend who was jailed [sic] for the … crime …, and which resulted in the Mother being placed in the witness protection program. Given the Mother’s veiled admission to [the single expert], the Father is probably right.
…
95.The Court found the Mother’s evidence in cross-examination about her former partner, [Mr U], to be unresponsive and, indeed, evasive. At first, she denied living with him, but eventually she agreed that she did live with him. She agreed that she was [involved in certain activities]. She eventually conceded that [those activities were more extensive than she first said]. Her evidence was clear – this was all happening at the time that she was living with [Mr U]. The Court finds that this [Mr U] was, in fact, one of the perpetrators of the violent crime that she witnessed and was, in fact, in jail [sic], and that this was not something that the Mother volunteered in her evidence. It only came out in what she told [the single expert], and even then she was evasive about it. Moreover she told the Father that it was [Mr U], her partner. This is a significant omission on her part. The Mother did not just testify in relation to events involving a stranger – she testified against her former partner at the time. From the Court’s perspective, there are two issues that flow from this. Firstly, the risk to the Mother, and thus to [the child], may well be higher in the circumstances where she gave evidence against a person with whom she had a relationship. Secondly, the failure to disclose this casts further doubt about the reliability of the Mother’s evidence generally, and of her capacity to identify the risk to her, and to her son.
The High Court in Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at [43] said:
… a court of appeal should not interfere with a judge’s finding of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony” or they are “glaringly improbable” or “contrary to compelling inferences”…
(Footnotes omitted)
Whilst there is conflicting evidence about whether or not [Mr U] was one of the perpetrators, it is not accurate to submit that there was no evidence he was one of the assailants. It was open to the primary judge to accept on balance, the evidence given by the father of the conversation that he had with the mother and the evidence of the single expert as to the admissions that the mother had made to her. Given the primary judge’s other findings in relation to the mother’s credit on other matters, it was not an error for the primary judge not to accept the mother’s evidence to the effect that it was her ex-boyfriend’s brother and a man Mr JJ and not her ex-boyfriend who were the perpetrators.
Even on the mother’s version, Mr U was with her when she did something, and “[Mr GG]” did something after the crime.
As discussed during submissions at the appeal hearing, the primary judge had used an infelicitous expression at [75] where his Honour said, “[o]n the Mother’s own evidence, it was her boyfriend who was one of the [perpetrators]”. It is accepted that the mother’s evidence was that he was not. However, that error is not material as his Honour should be taken as referring to the admissions made by the mother both to the single expert and to the father (at [32] and [33] above). This is not direct evidence from the mother but direct evidence of things the mother said, and in respect of her statements to the single expert, in circumstances in which she knew those statements were reportable to the Court.
Counsel for the mother also challenged the primary judge’s finding at [75] and [95] that the mother was involved in a certain activity at a certain time. In fact, the mother did give direct evidence in cross-examination that she had been so involved, when living with Mr U. There is accordingly no error in his Honour finding that that was so.
The primary judge carefully weighed the risks arising from possible retribution by the mother’s ex-boyfriend or those associated with him for her part in the criminal trial and the primary judge made findings about the mother’s credibility on the central matters; the circumstances in which the mother had done certain things; the mother’s attitude about risk and her denial and minimisation of it to reach the conclusion that unsupervised time with the mother posed an unacceptable risk to the child. Those findings were open on the evidence.
There is no merit in Ground 2.
Ground 1
Were the opinions of the single expert not based on identified, proven and established facts?
The primary judge took into account the opinions expressed and recommendations made by the single expert.
Counsel for the mother asserts when the single expert interviewed the mother on 21 May 2018, the single expert had very little information about the events of 20AA to come to any opinion or conclusion about the lifestyle choices the mother made at that time. On that basis, counsel for the mother challenges his Honour’s finding at [81] of the reasons for judgment that “[i]n cross examination [the single expert] demonstrated that she was well aware of certain key facts”. At the time the single expert carried out the interviews for the report on 21 and 29 May 2018, she had available to her a complete set of pleadings, including orders and extensive subpoenaed material. At the time the single expert gave oral evidence at the trial, she had reviewed further written evidence, including the mother’s trial affidavit. She was also informed about evidence given orally during the trial, including that given about the mother’s particular events. She also relayed to the Court a conversation that she had with the officer from State Z Police who was observing the proceedings. The single expert said that none of this updating information changed her opinions or recommendations. The primary judge concluded at [81] that the single expert:
… was aware of the fact that the perpetrators were in jail [sic], that there was no evidence of intimidation or threats since the criminal events, that there was no intelligence of risk of any concern, and that the perpetrators would not be released before 20[XX]. Her view, however was: “absence of proof is not proof of absence. Just because there’s no demonstrated risk ongoing, that does not prove that there is none.” (transcript page 7, line 16-18) In cross-examination [the single expert] explained that the Mother herself agreed that she was scared for her life at the time of the incident. [The single expert] could not understand why the Mother would not be scared for the life of her son.
(As per the original)
The fact that the mother was scared for her life is the mother’s evidence at paragraph 18 of her affidavit filed on 13 March 2019. The single expert sets out in her report all of the pleadings including affidavits, orders and subpoenaed material that was available to her prior to the interviews taking place.
Counsel for the mother asserts that there was no basis for the single expert to have made the following comments in her report at paragraph 53:
It is a matter of great concern to me that [the mother] was so blithely dismissive about the existence of possible safety risks to [the child] arising from her previous criminal associations. Women who repeatedly make poor choices about who is safe to admit to their lives (and the lives of their children) tend to make risk/benefit assessments based on the desirability of outcomes rather than on the likelihood of those outcomes given past experience. This comment relates to [the mother’s] possible under-estimation of dangers posed by [certain persons] (i.e. [more explicit information about those persons is redacted]) as well as of dangers hypothetically posed by the convicted criminals from whose vengeance [the father] alleges that she is hiding.
Counsel for the mother withdrew the general challenge contained in the mother’s Summary of Argument filed on 25 October 2019 that the single expert had expressed opinions which went well beyond the single expert’s field of expertise. There was no challenge to the single expert’s specialist knowledge. Otherwise, based on the facts assumed by the single expert (facts ultimately found by the primary judge at trial) and observations which the single expert made, it was open to her to express the opinions that she did in paragraph 53.
Counsel for the mother also initially challenged the following statements made by the single expert in paragraph 56 of her report:
… [The mother] has no established track record of making wise decisions in her child’s best interests nor of prioritising [the child’s] needs over her own. She shows a history of [certain behaviours]. [Part of that behaviour] indexes a serious failure in maternal devotion, as does the behaviour which enabled the father to retain custody of the child in [mid 20DD]. If proven, her alleged inattentiveness to [the child] since separation would also be a negative comment on her attitude to the responsibilities of parenthood. On the basis of aggregated information, I conclude that [the mother] fulfils the description of a marginally maltreating parent offered by Crittenden (2008: 134-6).
During oral submissions, counsel for the mother was unable to identify any of these matters that did not have an underlying basis in the evidence.
The single expert’s opinions were not based upon facts that were not identified, proven and established and they were opinions expressed within the expert’s specialist knowledge.
Did the primary judge impermissibly rely upon the opinions of the single expert to determine parenting orders?
In Hall and Hall (1979) FLC 90-713, the Full Court said at 78,819:
… Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the judge has found them consistent with the rest of the body of evidence before him…
The Full Court in Muldoon & Carlyle (2012) FLC 93-513 said:
105.It is not in doubt that the evidence of an expert, suitably qualified and based on an appropriate foundation, will carry substantial weight. Departure from it in such circumstances requires careful consideration; however the ultimate decision must be that of the trial judge.
(References omitted)
Whilst it is true that the primary judge agreed with most of the opinions expressed by the single expert, as is clear from the reasons for judgment, his Honour had the advantage of being able to assess the opinions and recommendations of the single expert in the context of all the evidence which his Honour heard. Both the single expert in her report and the primary judge in his reasons for judgment made it clear that the ultimate assessment of risk was a matter for the primary judge and not the single expert (see, for example, the single expert’s report at paragraph 66; the primary judge’s reasons for judgment at [60]).
The primary judge did not agree with all the opinions expressed by the single expert. For example, the primary judge noted that in cross-examination the single expert described the mother “as a stupid girl who behaved foolishly, but was not criminally involved, and was really a bystander to a serious criminal event” (at [75]). The primary judge indicated that “[w]ith respect to [the single expert], and acknowledging that she did not have access to all of the evidence in the same way as the Court did, it is possible that she has minimised the Mother’s role in the event in question” (at [75]).
Importantly, the primary judge did not in fact accept the primary recommendation of the single expert that the child have no contact of any sort with the mother. At [83] the primary judge recorded that the single expert’s “view remained, however, that if there was a risk she would still say no contact. However, if the risk were deemed to be manageable, then recognition contact was a possibility”. Having considered all of the evidence, the primary judge did conclude that recognition contact was manageable, despite the risk.
There is no merit in Ground 1.
Did the primary judge fail to consider an issue of public policy?
Asserting it was related to Grounds 1 and 2, counsel for the mother also submits that there were public policy concerns that were raised during submissions before the primary judge but not mentioned in the reasons for judgment. The essence of the submission is that if a person who was a victim of a crime is at risk of losing a meaningful relationship with their child because they have entered witness protection arrangements, then it would be a disincentive to do so. It is difficult to understand this submission in the context of the facts of this case. The mother behaved in a certain manner. Any public policy consideration relating to parents involved with witness protection arrangements needs to be considered in the context of the facts of the individual case and in this case the primary judge makes clear that he does not consider the mother to have been a mere victim but that she came to the predicament in which she found herself in 20AA as a result of choices that she had made (at [75]). More than that, the primary judge has taken into account all relevant s 60CC(2) and s 60CC(3) considerations. Any public policy consideration would be taken into account under s 60CC(3)(m) of the Act. Not all considerations, if they are not of significance, need to be mentioned in the reasons (Whisprun Pty Ltd v Dickson (2003) 200 ALR 447; Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd and Anor (1983) 3 NSWLR 378 per Mahoney JA at [385]-[386]).
Grounds 3 and 4
Did the primary judge give excessive weight to the single expert’s opinion relating to the child’s relationship with the mother or fail to take into account or give excessive weight to the nature of that relationship?
The single expert at paragraph 54 of her report, recorded her observations of the child’s interaction with the mother. As already noted, at paragraph 56 of her report, the single expert formed the view, on the basis of aggregated information, that the mother fulfilled the description of a marginally maltreating parent.
The single expert in cross-examination also said the child would miss the mother and “he might be a bit baffled” (Transcript 5 April 2019, p.19 lines 35–36) and it will not be like losing a parent through death because she is not the child’s primary attachment figure and not probably even a secondary attachment figure (Transcript 5 April 2019, p.19 lines 37–38). The single expert equated the relationship between child and mother as akin to “a favourite aunt or a favourite school teacher” (Transcript 5 April 2019, p.38 line 18).
The primary judge at [63] concluded that the mother “seemed to fail to appreciate the responsibilities of parenthood”. At [82] the primary judge recorded that the single expert “accepted that the evidence clearly indicated that [the child] was fond of his [m]other” but “[t]hat however did not make her an attachment figure” for the child and the single expert doubted whether the mother “was even a secondary attachment figure”. Those findings by the primary judge are an accurate reflection of the oral evidence given by the single expert. The primary judge at [87] recorded that the child would benefit from having a meaningful relationship with the mother but went on to say that, “having regard to the provisions of s 60CC(2A), this may not be the determinative factor”.
A challenge to the weight placed on evidence by the primary judge faces a high bar – “disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge” (Gronow v Gronow (1979) 144 CLR 513 at 519). The primary judge gave appropriate weight to the single expert’s opinion relating to the child’s relationship with the mother and to the findings that he made about the nature of that relationship.
There is no merit in Grounds 3 and 4.
Ground 5
Did the primary judge fail to give sufficient weight to the impact on the child of having only supervised recognition time with the mother?
At [82], the primary judge accurately summarised the evidence of the single expert which she accepted that the child “might suffer harm to his self-esteem at a later point in his life where [the child] might be asking who his Mother [sic], will want to know her, will probably idealise her, and may engage in self-blame”. The primary judge quoted the oral evidence of the single expert at [82], which is in the following terms:
He falls in the category of someone who is at risk of making mistakes in thinking about himself which harm his self-esteem and harm his attitudes towards relationships with others. Whether that would happen or not would be – would depend on a whole lot of factors. The explanations he had from his father, the relationship he has with peers, all sorts of cumulative attachment and social experiences. But in terms of would – would he likely be curious and go looking for his mother; for sure. That’s what people normally do.
It was in the context of the single expert’s assessment of the attachment between the child and the mother, which the primary judge accepted, that the decision in relation to recognition contact was made. It was based on the fundamental finding by the primary judge that for the foreseeable future for the child, any contact with the mother needed to be supervised, as a result of the unacceptable risk that unsupervised contact with the mother posed for the child.
There is no merit in Ground 5.
Ground 6
Did the primary judge, when assessing risk to the child, fail to take into account the role played by [State Z] Police?
Counsel for the mother submits that insufficient attention was devoted by the primary judge to the evidence of the process in place by State Z Police to ensure that the mother was protected. An officer from State Z Police had been present in the court room every day of the trial and had provided the primary judge with an affidavit.
The mother gave the following evidence in her affidavit filed on 13 March 2019 [the mother’s evidence regarding her current involvement with police has been redacted].
The mother gave oral evidence that she still felt supported by State Z Police.
The primary judge recorded the following:
52.[The single expert] explored with the Mother risk issues arising from this disclosure. At paragraph 29 [the single expert] writes:
… [The mother] denied that this ex-partner was vengeful against her, saying that he and other members of his family realised they were in jail because ‘they had done the wrong thing’. She denied that there was any ongoing threat. She [gave evidence about her current involvement with the police]. She flatly denies any associated risk to [the child] and contends that [the father] is merely raking up ancient history to obstruct mother-child contact…
53.The Court notes that the Mother’s statement to [the single expert] [about her current involvement with the police].
As earlier recorded, the primary judge discussed the circumstances in which the mother found herself.
The primary judge concluded at [102]:
The inference to be drawn, however, is that [certain measures taken, were] not of itself protective of risk. Moreover, it might be overstating the matter to say that Sergeant [J’s] presence of [sic] the hearing was protective of the Mother, when in reality it could have been protective of the Witness Protection Program and its integrity.
The primary judge took into account the role played by the State Z Police in assessing risk to the child.
There is no merit in Ground 6.
Conclusion and Costs
Given that no error has been established in the primary judge’s reasons, the appeal shall be dismissed.
Neither the father nor the ICL sought a costs order against the mother. There is to be no order as to costs.
Suppression Order
The version of the reasons for judgment which is to be published has been anonymised and parts of it have been redacted. The parties have received an un-anonymised and un-redacted copy of the reasons for judgment.
The appeal was heard in a closed court. At [109], the primary judge noted that an earlier order made under s 102PE of the Act continued. It is unclear if that was a suppression order or a non-publication order but I infer it was a suppression order (namely, an order that prohibits disclosure of information by publication or otherwise in respect of the litigation). Section 102PD of the Act provides:
In deciding whether to make a suppression order….the court….must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
Section 102PF of the Act provides that:
The court may make a suppression order … on one or more of the following grounds:
(a)the order is necessary to prevent prejudice to the proper administration of justice;
…
(c)the order is necessary to protect the safety of any person…
Given the facts of this case, it is appropriate, on my own motion, to make a suppression order relating to the original un-redacted version of the reasons for judgment received by the parties and any other document or information received as a result of these proceedings. This order shall operate pending further order or until [date deleted].
Tree J
I agree that the appeal should be dismissed for the reasons given by both Aldridge and Watts JJ, drafts of which I have had the advantage of reading.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Aldridge, Watts & Tree JJ) delivered on 6 August 2020.
Associate:
Date: 6 August 2020
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