Cao & Cao
[2018] FamCAFC 252
•19 December 2018
FAMILY COURT OF AUSTRALIA
| CAO & CAO | [2018] FamCAFC 252 |
| FAMILY LAW – APPEAL – CHILDREN – Appeal against interim parenting orders providing for the children to remain living with the respondent mother – Where leave granted for the appellant father to rely on his Amended Notice of Appeal – Where the Independent Children’s Lawyer filed a Submitting Notice – Where the grounds of appeal pressed by the appellant father challenged the weight which the primary judge gave to the risk of harm posed to the children in the mother’s household – Where the primary judge found the risk of harm to the children in the mother’s household was not unacceptably high and could be ameliorated by injunctions – Where the evidence is untested – Where no appealable error demonstrated – Where there is no merit in the grounds of appeal – Where the appellant was unable to demonstrate he was not afforded procedural fairness – Appeal dismissed – Where appeal is wholly unsuccessful – Where the appellant ordered to pay the respondent’s costs on a party/party basis. |
| Family Law Act 1975 (Cth) ss 4(1)), 60CC(2)(b), 94AAA(3), 117(2), 117(2A) Federal Circuit Court of Australia, Practice Direction No. 2 of 2017 – Interim Family Law Proceedings, 1 January 2018 |
| Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; [1981] HCA 1 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 Concrete Pty Limited v Parramatta Design& Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104 Faulkes & Tomkins [2018] FamCAFC 151 Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Kioa v West (1985) 159 CLR 550; [1985] HCA 81 Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52 M v M (1988) 166 CLR 69; [1988] HCA 68 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296; [1984] HCA 29 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 RCB v The Honourable Justice Forrest (2012) 247 CLR 304; [2012] HCA 47 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 U v U (2002) 211 CLR 238; [2002] HCA 36 Whitby & Zeller (No.2) [2014] FamCAFC 239 |
| APPELLANT: | Mr Cao |
| RESPONDENT: | Ms Cao |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW, Parramatta Family Law |
| FILE NUMBER: | PAC | 3226 | of | 2016 |
| APPEAL NUMBER: | EAA | 86 | of | 2018 |
| DATE DELIVERED: | 19 December 2018 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Sydney via video link with Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 20 November 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 June 2018 |
| LOWER COURT MNC: | [2018] FCCA 1816 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Coulton |
| SOLICITOR FOR THE APPELLANT: | Vizzone Ruggero Twigg Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Lioumis |
| SOLICITOR FOR THE RESPONDENT: | Jennifer Weate & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Not Applicable |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Not Applicable |
Orders
Leave is granted to the appellant to rely upon the Amended Notice of Appeal filed on 17 October 2018.
The appeal is dismissed.
The appellant shall pay the respondent’s costs of and incidental to the appeal on a party/party basis in the sum agreed or assessed.
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 Cao & Cao 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY (VIA VIDEO LINK WITH NEWCASTLE) |
Appeal Number: EAA 86 of 2018
File Number: PAC 3226 of 2016
| Mr Cao |
Appellant
And
| Ms Cao |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
This appeal was heard by a single judge following the Chief Justice’s direction pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
On 14 June 2018, Judge Obradovic of the Federal Circuit Court of Australia made interim parenting orders between the appellant father and the respondent mother in respect of their two young children following the hearing of the father’s urgent application. Her Honour dismissed his application to reverse the children’s residence, left intact the interim orders made by Justice Hannam of the Family Court of Australia nearly two years before in August 2016, and made some supplementary interim orders.
The father appealed against all of the orders. The appeal was resisted by the mother and, although the Independent Children’s Lawyer broadly supported the father’s application at first instance, she filed a Submitting Notice and neither supported nor opposed the appeal.
The father filed an Amended Notice of Appeal on 17 October 2018 and, without objection by the mother, leave was granted for him to rely upon the amended grounds.
For the reasons which follow, the appeal should be dismissed with costs.
Relevant background
The parties’ children were born in 2010 and 2014 and, at the time of the interim hearing before the primary judge, were respectively nearly eight and four years of age.
The parties separated in 2015 and proceedings were later instituted between them for parenting orders under Part VII of the Act. The first set of interim parenting orders were made by Hannam J on 12 August 2016. Those orders provided for the children to live with the mother and to spend substantial time with the father. Despite high conflict between the parties, the orders operated effectively for nearly two years until an incident on 2 May 2018.
In the lead-up to that day, the children spent time with the father for the second half of the school holidays. He returned them to the mother on Monday 30 April 2018, which was a pupil-free day at the eldest child’s school.
The eldest child suffers from anxiety and, although the mother attempted to ensure her attendance at school on Tuesday 1 May 2018, the school counsellor and the child’s teacher sanctioned her taking the child home.
The eldest child attended school on Wednesday 2 May 2018. There was a sports carnival that day, which the father attended the school to watch. The eldest child did not participate and, when the father spoke to her, she disclosed she was struck by the mother the night before. The father reacted to her disclosure by taking her, first, to the acting school principal and, later, to the police. The child repeated her allegation of being struck by the mother, albeit that her description of the event was not identical on each occasion. The father retained the eldest child in his care from that day.
The children were again due to spend time with the father for the first weekend of the new school term and so, even though the father had withheld the eldest child from her, the mother sent the youngest child to the father on Friday 4 May 2018 in compliance with the existing orders. The father refused to return either child to the mother at the conclusion of the weekend.
On 9 May 2018, the mother filed a recovery application, but it was made returnable before the Court on 20 August 2018 and was therefore overtaken by the Application in a Case filed by the father on 15 May 2018 seeking reversal of the children’s residence. His application was urgently listed before the Court on 5 June 2018, at which time his counsel informed the primary judge:
Your Honour, this is the return date of an application filed by my client on 15 May 2018…seeking urgent orders…there is a serious risk of physical and emotional harm…
(Transcript, 5 June 2018, p 2 ln 12-19)
The Independent Children’s Lawyer also proposed interim orders reversing the children’s residence, but not for the same reasons as the father. While the father relied upon the mother’s alleged assault of the eldest child on 1 May 2018, the Independent Children’s Lawyer relied upon the mother’s allegedly abusive relationship with Mr C. The Independent Children’s Lawyer told the primary judge during the hearing:
…I can indicate to your Honour that the identity of this person with whom the mother has some form of a relationship has been a concern to the independent children’s lawyer from the outset of, essentially, February 2017 [when Mr C assaulted the mother].
(Transcript, 5 June 2018, p 16 ln 43 to p 17 ln 2)
Although the Independent Children’s Lawyer sought similar orders to those initially proposed by the father (which orders the father later adopted, abandoning the orders set out within his own application), she was clearly concerned about the behaviour of both parties. During submissions, the Independent Children’s Lawyer said to the primary judge:
…perhaps this is a matter where the children are not safe in either household…
(Transcript, 5 June 2018, p 38 ln 45)
The primary judge reserved judgment and then pronounced the orders and published reasons on 14 June 2018, little more than a week after the hearing. Her Honour ordered the father to return the children to the mother (Order 1), re-set the times at which the children would resume spending time with the father under the existing orders (Order 2), and made injunctions restraining the mother’s conduct in various respects, including restraining her from allowing the children near Mr C (Order 3), restraining the parties from taking the children to any more therapy (Order 4), and restraining the father from allowing the eldest child any contact with the paternal grandmother other than when she spends time with him (Order 5).
The father pressed Grounds 2, 2A and 3 of the amended appeal.
Ground 2
This ground contended the primary judge erred by finding the children were not at an unacceptable risk of physical and emotional harm by reason of their abuse by the mother, given that:
(a)She maintained a domestic relationship with Mr C, despite his assault upon her in February 2017; and
(b)She inflicted the children with “emotional and physical violence”.
Before analysing the validity of this ground of appeal, it is instructive to isolate precisely what risk of harm the father contended the primary judge should find existed and then evaluate what the judge actually did and did not find.
During the hearing, the father’s counsel simply said there was a “serious risk of emotional and physical harm” to the children and that they lived in the mother’s “violent household”, which necessitated fresh orders for them to live with him and to spend only supervised time with the mother. The alleged cause of the risk of harm was not articulated and had to be imputed. Given that the father’s “urgent” application was precipitated by the eldest child’s disclosure of being struck by the mother, it was likely he perceived the children were at risk of either emotional or physical harm if they were physically abused by the mother and also at risk of emotional harm from exposure to any violence perpetrated between the mother and Mr C.
As for the Independent Children’s Lawyer, she articulated her concern to be the children’s exposure to family violence between the mother and Mr C, particularly since the mother maintained her relationship with Mr C even after his violent assault of her in February 2017. She suspected the mother could not be trusted to exclude Mr C from her life. Inferentially at least, the Independent Children’s Lawyer was not motivated by any concern about the children’s subjection to physical abuse by the mother. She certainly did not advert to it in submissions.
In respect of the risk of harm posed by the mother to the children, as it was contended at the hearing, the primary judge said (at [111]);
…The actual nature of the risk, to the Court’s mind, has not been articulated by the Independent Children's Lawyer or the father, but it seems to be the risk of physical discipline or physical assault in the mother’s household, the risk that follows from the mother’s drunken behaviour or rather a risk flowing from the mother drinking and then engaging in certain behaviour, and also violence in the mother’s household as a result of her drinking and also as a result of her relationship with Mr C.
The fact the primary judge was still uncertain, even once judgment was reserved, about the precise nature of the alleged risk of harm to the children in the mother’s household is evidence of the lack of clarity brought to bear on the problem, particularly by the father.
Cutting through the jargon and imprecision, it seemed that, relevantly for the determination concerning the children’s best interests pursuant to the primary consideration expressed within s 60CC(2)(b) of the Act:
(a)The father was contending the children were at risk of harm by being subjected to physical abuse by the mother; and
(b)The father and the Independent Children’s Lawyer were both contending the children were at risk of harm by being exposed to family violence committed between the mother and Mr C.
The second asserted risk hardly warranted, in response to an urgent interim application, the reversal of the children’s residence and the constriction of their future interaction with the mother by the imposition of professional supervision. The evidence did reveal Mr C assaulted the mother, but that was in February 2017, some 15 months before the father filed his urgent application. The father and the Independent Children’s Lawyer were aware of that incident long before and the urgency to react to that incident had long since subsided. Characterising that incident as historic is not intended to trivialise the risk of harm posed to the children by their exposure to family violence, but rather to elucidate the true issue the primary judge was being asked to adjudicate on an urgent basis in May 2018, before any of the evidence was properly tested at trial.
In the appeal, dealing with the second asserted risk, the father simply submitted it was not open to the primary judge to find the mother would comply with the injunction eliminating Mr C from the children’s lives. His submission was premised on the assertion she did not observe court orders in the past, because she invited Mr C back into her life in breach of the apprehended violence order made against him in her favour following his assault of her in February 2017. The mother certainly admitted continuing her association with Mr C, as was noted by the primary judge (at [109]) but, when invited to point to the evidence showing she did so in breach of the apprehended violence order, the father’s counsel could not do so. There was no evidence of any breach. Nor did the evidence establish that the mother’s continuing association with Mr C after the incident in February 2017 amounted to a “domestic relationship”, as the ground of appeal contended.
In reality, it was the first asserted risk which motivated the father to act. He contended the mother physically assaulted the eldest child on 1 May 2018. It was that belief which caused him to withhold the eldest child on 2 May, to withhold the youngest child on 4 May, and to file his urgent interim application on 15 May 2018. It was that issue which dominated the evidence, the submissions, and the primary judge’s reasons.
Her Honour properly understood she may not be able to make findings of fact about the incident, because the evidence was controversial and was untested, but she still needed to adopt a cautious approach. Her Honour said (at [121]):
…Even if the Court is unable to make findings of fact about many of the issues, the Court is still obliged to take into consideration the various allegations which have been made…It is the existence and the magnitude of the risk of harm that is a fundamental matter to be taken into account in deciding what orders are to be made…
The primary judge was correct to be wary. Serious allegations cannot be disregarded just because the evidence is controversial and factual findings cannot ordinarily be made during an interim hearing. The court must remain alive to controversies, the ultimate resolution of which may have a significant bearing upon the orders which meet the children’s best interests (see Salah & Salah (2016) FLC 93-713 at [33]-[45]; Eaby & Speelman (2015) FLC 93-654 at [18]-[19]; Whitby & Zeller (No.2) [2014] FamCAFC 239 at [63], [71]).
Her Honour knew “a risk assessment exercise” was at hand and she was “oblig[ed] to ameliorate the risk in the best manner possible” (at [112]). Her Honour also correctly acknowledged that “[r]isk assessment is not an exact science” (at [115]).
The decision was obviously not an easy one. In the discourse during submissions, the primary judge tested the parties’ contentions and aired preliminary thoughts for their feedback. Her Honour’s comments suggested she was vacillating about the result. For example:
(a)Her Honour said to the mother’s counsel:
…there have been plenty of Full Court authorities which suggest that this court should take a conservative approach in circumstances such as this. And I don’t know why I’m even considering not making the orders that the father is asking in the circumstances of the face of these allegations [sic].
(Transcript, 5 June 2018, p 34 ln 10-14)
But at the moment the evidence is – I might even say – overwhelmingly in support of an order for supervised time.
(Transcript, 5 June 2018, p 35 ln 39-40)
But at the moment, the orders that the independent children’s lawyer asks me to make seem to make a lot of sense.
(Transcript, 5 June 2018, p 37 ln 3-4)
(b)Her Honour then said to the Independent Children’s Lawyer:
…why isn’t the solution for the children to remain living with mum, to put in a restraint in relation to Mr C, and spend limited time with the father in order to remove them from the conflict if I’m not satisfied that they are at an unacceptable risk of harm in relation to physical abuse, for example?
(Transcript, 5 June 2018, p 40 ln 40-43)
The primary judge commendably remained open to persuasion until the last submission was made. Her interventions were moderate and appropriate.
The alleged risk that the children could, in future, be harmed by the mother physically abusing them was said to spring from the fact that she physically assaulted the eldest child on 1 May 2018. It was therefore incumbent upon the primary judge to thoroughly scrutinise the evidence pertaining to that incident and her Honour did so.
The primary judge recorded the father’s evidence about the child’s disclosure of her assault by the mother to him, to the acting school principal, and to the police (at [14]-[20]). The primary judge also recited the version of the event contemporaneously recorded by the police (at [29], [31], [33]) and by the school authorities (at [39]-[43]). The consistent gist of the allegation was that the mother struck the eldest child on the evening of 1 May 2018, but the details about how it occurred and what (if any) injury it caused remained quite unclear. The primary judge was aware the mother denied all of the allegations against her which were attributed, either directly or indirectly, to the eldest child on 2 May 2018 (at [103]-[104]).
Understandably, her Honour expressed significant concern about the serious nature of the allegation made against the mother (at [101]), so it was not waved away without close attention. The remarks made by the primary judge to the mother’s counsel and the Independent Children’s Lawyer during submissions, which need not be repeated, demonstrated the thorough consideration given to the evidence and the way to remedy the dispute.
The primary judge ultimately concluded (at [129]):
In all of the circumstances, the Court does not find that there is an unacceptable risk of harm to the children in the mother’s household.
For present purposes, it is important to note her Honour found there was no “unacceptable risk” of harm posed to the children in the mother’s household; not that there was no risk of harm at all. There is obviously a difference between a risk of some occurrence and an unacceptably high risk of the same occurrence. The former may be tolerated, but not the latter.
In summary, the primary judge found the risk of harm to the children in the mother’s household was not unacceptably high because she lived alone with the children and Mr C was not a member of her household (at [108]), she agreed to submit to an injunction restraining the children’s interaction with Mr C (at [106]), and although the Independent Children’s Lawyer doubted her capacity or willingness to abide by such an injunction (at [109]), her Honour at least inferentially expected she would. Her Honour considered those factors ameliorated the risk of harm to the children in the mother’s care (at [127]-[128]). The primary judge was also concerned about the risk of harm posed to the children by their exposure to the intense parental conflict and the damage to their relationships with the mother, from whom they were still being withheld by the father (at [127]-[128]). The primary judge found it a “tough decision” (at [128]) but found in favour of adherence to the existing orders pending the final trial, which was then imminent (at [130]-[131]).
The injunction precluding the children’s interaction with Mr C (Order 3(a)) was designed to avert the risk of the children’s exposure to family violence between him and the mother.
The injunctions restraining the mother’s alcohol consumption and restraining her from physically disciplining the children (Orders 3(b) and 3(c)) were designed to avert the risk of the children’s subjection to physical abuse by the mother.
The father submitted the determination about the lack of any “unacceptable risk” of harm in the mother’s household was “vitiated” by the primary judge’s failure to take into account that the eldest child gave consistent accounts of her assault by the mother to him, the school authorities, and the police. However the error of the submission is easily exposed, thus: if a false, exaggerated, or inaccurate allegation is made, it still remains false, exaggerated or inaccurate no matter how many times it is repeated. That is not to say the eldest child’s reports were false, exaggerated, or inaccurate. But equally, they were not true just because she repeated them. At best, the asserted consistency of the eldest child’s reports about being struck by the mother enabled greater weight to be reposed in her reports, but it did not mean the primary judge was obliged to accept the literal truth of her various reports in all respects.
The father’s submission, that there was “no proper basis upon which the court should not accept” his evidence as truthful and correct, was misconceived. Even if his evidence about what the eldest child told him was exactly correct, it did not mean what he was told by the child was truthful and accurate. He only related what he was told by her. The submission also assumed the primary judge was obliged to accept his evidence of what the eldest child said, despite the controversy over the facts she reported. The mother squarely refuted the allegation she assaulted the child. The primary judge could not just assume his evidence was correct and that hers was false.
Moreover, even if the eldest child was struck by the mother, as she alleged, it did not necessarily mean she was physically assaulted. For example, she may only have been physically chastised. Even though corporal punishment is falling out of favour under contemporary moral standards, it is still not yet unlawful to use modest physical force to chastise a child (s 61AA of the Crimes Act 1900 (NSW)). Corporal punishment does not amount to physical “abuse” under the Act unless it constitutes an assault (s 4(1)). Significantly, as was noted by the primary judge (at [29]), on the afternoon the matter was reported by the father, the police recorded in relation to the allegation:
…Due to the age of the [child] she was not specific as to how the assault occurred and whether or not it was under the grounds of lawful chastisement…Police are of the opinion the use of force on the [child] is borderline excessive.
(Emphasis added)
It would therefore seem the police contemplated the mother may have smacked the eldest child and they remained unconvinced the incident amounted to an assault of the child by the mother. There was certainly no evidence before the primary judge (or in the appeal) that the mother was charged by police with any criminal offence arising out of the incident. The police issued a provisional apprehended violence order against the mother for the children’s protection, but its terms did not preclude the children from living or spending time with her.
Consequently, on closer analysis, the father’s real complaint could not be that the primary judge was bound to find the mother “abused” the eldest child by assaulting her and, therefore, she posed an unacceptable risk of harm to the children. Rather, his contention could only be that the primary judge’s finding there was no unacceptable risk of harm to the children was contrary to the weight of the evidence. That is a high hurdle to surmount (Lovell v Lovell (1950) 81 CLR 513 at 519; Norbis v Norbis (1986) 161 CLR 513 at 518, 539-540), but the complaint conveniently dovetails with Ground 2A because some anomalies identified by the primary judge in the evidence affected the weight attributable to the eldest child’s various disclosures and hence the viability of both Grounds 2 and 2A.
Ground 2A
This ground contended the primary judge erred by allowing extraneous or irrelevant matters to guide or affect her, including:
(a)The father’s omission to mention in his affidavit that he video-recorded the eldest child’s complaints about the mother;
(b)The father’s solicitor made no mention of the mother’s assault of the child in communication with the mother’s solicitor; and
(c)Asserted inconsistencies in the evidence adduced by the father.
The first point to be made is that any anomalies found in the evidence could not be properly characterised as “extraneous” or “irrelevant” considerations. The central task of the primary judge was to assess the risk of harm posed to the children and to determine what orders should be made to ameliorate the risk. Intrinsic to that process was the need to assess the strength of the evidence from which it was said the risk should be inferred, so any anomalies had the capacity to directly influence the weight attributed to the father’s evidence. Consequently, they were relevant and influential in the assessment of the evidence.
The various “matters” identified by the father in the grounds of appeal could only have been productive of appealable error if the primary judge made mistaken findings about them, which then influenced the outcome. Accordingly, it is necessary to identify the findings made by the primary judge about those matters to ascertain whether the findings were open or not.
Underpinning these grounds of appeal is the father’s apparent misconception that the primary judge “disbelieved” his evidence. It was alternatively asserted in oral submissions that the primary judge “ignored” his evidence or only perfunctorily gave it “lip service”. True it is, her Honour expressed some reservations about the evidence the father adduced in some respects, but that is a long way short of “disbelieving” him or “ignoring” his evidence. Given the primary judge could not make findings of fact about the irreconcilable evidence, her Honour could only discharge her judicial function by examining the evidence carefully to determine whether it was capable of establishing the “unacceptable risk of harm” for which the father contended.
Although the father contended in the appeal that the circumstances surrounding the eldest child’s various disclosures of her physical abuse were entirely consistent, the primary judge identified numerous inconsistencies in, and curiosities about, the evidence. For example:
(a)The father contended the eldest child was already separated from the other students and crying by the time he attended the school on 2 May 2018 (at [14]-[15]), but the school records noted the eldest child first became upset with the father following his arrival and he then took her away from the other students and the carnival (at [42]).
(b)The child initially disclosed to the father merely that she was “hit” by the mother (at [15]), which was much the same as the child reported shortly afterwards to the acting school principal (at [16], [44]), but remarkably different from what the child later reported to the father and the police.
(c)The father alleged that, in the car on the way to the police station, the eldest child gave him much more detail, alleging the mother pushed her to the ground, grabbed her on the leg and arm, dragged her across the floor to her room, grabbed her and pinched her, pulled her up from under the bed, hit her on her thigh, and scratched her stomach (at [17]).
(d)At the police station, the father (relying upon what he was told) informed the police the eldest child was “assaulted” by the mother the night before after being dragged out from beneath her bed. When the police first spoke to the eldest child in the father’s presence, she told them she had been “hit” by the mother, but when she later spoke to the police alone “she was not specific as to how the assault occurred and whether or not it was under the grounds of lawful chastisement” (at [29]).
(e)The circumstances surrounding the eldest child’s injuries are also intriguing. It was reported to the police that the child had numerous injuries, including bruises to “both arms” and “both legs” and a “scratch to her stomach” (at [29], [33]).The police apparently took photographs of bruises and marks on the child’s body, which were presumably believed to be the product of her assault by the mother the night before (at [18]), but the photographs were not tendered in evidence before the primary judge. The father then had the child examined by a doctor when they arrived home from the police station on the evening of 2 May 2018. Somewhat differently from the report made to the police, the doctor noted “mild bruise marks” over her legs, but only on one arm, and “no bruise marks” on the chest, abdomen or back (at [25]-[26]). No opinion was expressed by the doctor (or anyone else) about whether the mild bruises on her legs and arm could be the result of the incident the night before. Later, the father even apparently reported to one of the eldest child’s counsellors that he saw bruising on her hips (at [62]-[63]), which was not seen by the doctor or noted by the police.
(f)Following the father’s attendance at the police station to report the mother’s misconduct, the police went to the youngest child’s pre-school to check on his welfare. The police officers told the pre-school staff they were informed by the father that both children were “covered from head to toe in bruises” (at [95]), which was simply untrue. The youngest child was not bruised at all and there was no evidence before the primary judge he ever had been bruised as a consequence of physical abuse by the mother (at [96]-[98]).
In such circumstances, it was not remiss of the primary judge to observe how there appeared to be “conflicting or at least in some respects inconsistent versions” of, and “some general inconsistencies” about, the event (at [34], [41]).
The father’s submission that there was “no inconsistency whatever” in the accounts given by the eldest child to the father, the acting school principal, and the police is rejected as incorrect. The consistency lay only in the child’s core complaint that she was “hit” by the mother. The peripheral details of the incident were inconsistent in numerous material respects.
The father made a video-recording of the eldest child’s disclosure to him in the schoolyard. For reasons which were not made clear to the primary judge, that video-recording (or perhaps the whole of it) was not apparently shown by him to the police when he attended the police station later that day (at [29], [31]), nor was it tendered in evidence before the primary judge. Her Honour remarked upon how the father did not mention the existence of the video-recording in his evidence (at [32]) and, although the father objected to its accuracy, the observation was perfectly correct.
Only the first 10 pages of the father’s affidavit were read in evidence. The father submitted in the appeal that the existence of the video-recording was revealed by the police records which were annexed to his affidavit, but the annexures to his affidavit did not fall within the first 10 pages. At the commencement of the hearing, the primary judge asked the father’s counsel which 10 pages of the father’s affidavit were relied upon, so as to comply with the Chief Judge’s Practice Direction No. 2 of 2017 about the amount of evidence adduced at interim hearings, and his counsel replied “[t]he first ten pages” (Transcript, 5 June 2018, p 3 lns 1-41). The remainder of the father’s affidavit was not received in evidence. The same records were annexed to the mother’s affidavit, but she only relied upon the first 10 pages of her affidavit as well (Transcript, 5 June 2018, p 6 lns 38-39). Regardless of the content of the mother’s affidavit, it did not detract from the accuracy of the observation that the existence of the video-recording was not revealed by the father in the evidence he relied upon.
Even if it is generously implied the father intended to reveal the existence of the video-recording, by annexing to his affidavit the police record which referred to it, and the remarks of the primary judge are construed as a factual error, the mistake made no difference to the result. The father could not point to how the mistake influenced the exercise of the primary judge’s discretion. The finding about the absence of an “unacceptable risk of harm” did not hinge in any way on whether or not the father revealed that he video-recorded the eldest child’s complaint to him in the schoolyard on 2 May 2018. The primary judge accepted the accuracy of the father’s evidence of the eldest child’s disclosure to him at the school that day, without the need for any corroboration by the video, but then contrasted that evidence with evidence of what the eldest child later inconsistently told him in the car and the police at the police station.
The father’s complaint about the way in which the primary judge treated some legal correspondence was similarly flawed. The father informed police the child made her disclosure to him about her assault by the mother at the school at about 11.45 am (at [29]). Only six minutes later, at 11.51 am, the father’s solicitor sent an email to the mother’s solicitor (at [35]). In the email, the father’s solicitors confirmed their instructions from the father as to how the eldest child was not participating in the school sports carnival (at [36]). The father only learned she was not participating in the carnival several minutes beforehand so, for his solicitors to know it, the primary judge inferred the father probably immediately contacted the solicitors to inform them and instruct them to correspond with the mother’s solicitors to find out why. Significantly, the father’s solicitors made no mention in the email of any disclosure by the eldest child to the father about her assault by the mother the night before. Given the father’s feverish reaction to the disclosure, the primary judge inferred it was improbable he would not have mentioned it to his solicitors if he was aware of it at that time, as he most probably would have been on his version of events. It was open to the primary judge to draw those inferences, which her Honour found to be very curious (at [37]-[38]). The father’s oral submission that it was not open to the primary judge to draw those inferences from the uncontroversial facts is rejected.
Although her Honour’s curiosity about that aspect of the evidence found expression in the reasons for judgment, it was not an extraneous or irrelevant matter. It was capable of affecting the weight the primary judge reposed in the father’s evidence about the circumstances in which the child reported her physical abuse by the mother and, in aggregation with the other inconsistencies and anomalies, inferentially reduced the weight the primary judge gave to the father’s evidence in respect of the contest over whether the mother posed an unacceptable risk of harm to the children. In any event, in his written submissions, the father asserted the point was “somewhat immaterial”, which rendered any further argument about it futile.
It follows that the primary judge’s treatment of the discrete factual “matters”, which were the subject of the father’s complaints, was quite unremarkable. He was unable to demonstrate that her Honour fell into appealable error and so both Grounds 2 and 2A should be rejected for lack of merit.
Ground 3
This ground contended the primary judge erred by making an injunction restraining the father from permitting any interaction between the eldest child and the paternal grandmother while the eldest child is at school or spending time with him, when:
(a)There was no application before the Court for such an order;
(b)There was no evidence before the Court to warrant such an order;
(c)The father was not afforded procedural fairness in relation to the pronouncement of such an order; and
(d)The injunction was impractical in any event because the paternal grandmother is employed at the school the eldest child attends.
It is first necessary to eradicate any misunderstanding about the terms of the injunction which is the subject of this ground of appeal (Order 5).
When originally pronounced, Order 5 provided:
…the father is restrained…from permitting, allowing or encouraging the paternal grandmother from having any contact with the [eldest child] during the days on which [she] attends school or is otherwise living with the father…
(Emphasis added)
The parties agreed there was a typographical error in the order and they successfully approached the primary judge to have it rectified under the slip rule.
Following rectification, Order 5 now provides:
…the father is restrained…from permitting, allowing or encouraging the paternal grandmother from having any contact with the [eldest child] during the days on which [she] attends school or is otherwise living with the mother…
(Emphasis added)
The Ground 3 complaint was formulated by the father before the terms of the order were rectified but, once the order was amended, he disavowed the need to amend the ground of appeal in any way, which was surprising because the amendment of the order completely changed its meaning.
In its former erroneous format, the injunction worked to restrain the father from facilitating the eldest child’s interaction with the paternal grandmother both at her school and when she is spending time with him, which would effectively preclude any personal interaction at all between the eldest child and the paternal grandmother.
In its current corrected format, the effect of the injunction is to restrain the father from facilitating the eldest child’s interaction with the paternal grandmother either at her school or when she is living with the mother. Accordingly, there is no limitation upon the eldest child’s interaction with the paternal grandmother while she is spending time with the father.
The primary judge found it was in the eldest child’s best interests to make the injunction, confining the child’s interaction with the paternal grandmother to periods during which she spends time with the father, to reduce the chance of her immersion in the inter-family conflict. The paternal grandmother is employed as a teacher at the eldest child’s school and the primary judge was concerned their interaction at school might deprive the child of any safe haven she enjoys there.
It was common ground the eldest child was anxious about her school attendance. The evidence revealed she told the mother she did not want to go to school (at [10]-[12], [91]) and, when with the father, she also presents with anxiety about attending school (at [48], [50], [53], [56], [57], [74]). Her attitude is hardly surprising, given that some of the parental conflict has played out at the school. The Independent Children’s Lawyer submitted to the primary judge that, in the past, both parties withheld the children from the other, and the child was worried about being taken away from the school. The dispute before the primary judge was precipitated by the mother taking the eldest child home from school on 1 May and by the father taking the child from the school to the police station on 2 May 2018. The mother is clearly concerned the paternal grandmother interferes with the eldest child at school in ways other than is strictly appropriate as between teacher and student (at [11], [91]) and the primary judge’s concern about the paternal grandmother’s involvement was the catalyst for the injunction which related to her (at [125]).
Given those features of the evidence, the father’s complaint that there was “no evidence before the Court to warrant such an order” cannot be sustained. There is an obvious distinction between no evidence and some evidence. There was some evidence and, furthermore, it afforded a sufficient foundation for the injunction. The father was unable to explain why it was not open for the primary judge to make the order on the available evidence, though that was not the only limb to this ground of appeal.
The father’s alternate contention, that the injunction is impractical, is rejected. It is not to the point that the paternal grandmother is employed as a teacher at the eldest child’s school and she may incidentally interact with the child in that capacity. The injunction simply restrains the father from “permitting, allowing, or encouraging” the paternal grandmother’s interaction with the child at school. If, despite his entreaties not to do so in accordance with the injunction, the paternal grandmother still speaks with the eldest child at school, the father will not be in breach of the injunction. Nor will the paternal grandmother. She is not a party to the proceedings and could not be bound by orders made by the primary judge (Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 at 342-343, 351-356). The order did not purport to bind the paternal grandmother.
The father’s principal point under this ground was that he was denied procedural fairness in relation to the order because, first, no such order was sought by the parties or the Independent Children’s Lawyer and, second, the prospect of it being made was not raised in submissions.
There could be no dispute the father was entitled to procedural fairness in respect of any orders made by the primary judge, so the argument devolved to the practical content of the obligation to afford him procedural fairness. In other words, what else, if anything, did the primary judge need to do to ensure the father’s treatment was procedurally fair?
It cannot be enough to establish the lack of procedural fairness simply by demonstrating that no order of the type made was sought by the parties or the Independent Children’s Lawyer, since the ultimate task of any judge in quelling disputes under Part VII of the Act is to make orders which promote the subject child’s best interests. Sometimes (perhaps even often), parties do not apply for orders which promote the child’s best interests. The court is not then bound to a choice between two or more suites of inadequate orders. Once parties are unable to reach a compromise and their dispute is litigated to conclusion, the child’s best interests become the paramount consideration in the court’s determination of appropriate orders, irrespective of the parties’ competing proposals. The making of orders that do not reflect the orders devised by the parties does not, of itself, vitiate the judgment or orders (U v U (2002) 211 CLR 238 at 263, 284-285).
Order 5, or an injunction in similar terms, was certainly not mooted during the oral submissions made to the primary judge. Most probably, the order was contemplated for the first time by the primary judge during her deliberations, once judgment was reserved. The father’s contention was that the primary judge was obliged to re-list the matter to forewarn him of the formative intention to make the order so he could seek leave to re-open the evidence, or make further submissions, or do both of those things. To make good on that submission, the father relied upon Faulkes & Tomkins [2018] FamCAFC 151 (“Faulkes & Tomkins”), but that authority did not afford him the support he anticipated.
In that case, the Full Court held (at [17]-[25]) that the appellant was denied procedural fairness when the primary judge gave an assurance during the hearing that the appellant’s evidence was accepted and she could expect orders would be made in reliance upon it, but then recanted once judgment was reserved and made contrary orders, which seemingly entailed rejection of the evidence. Of course, the primary judge was entitled to re-consider the orders which would be made but, in those circumstances, to ensure the appellant received procedural fairness, it was incumbent upon the primary judge to re-list the proceedings and at least invite further submissions on the point, but perhaps also entertain the appellant’s application to call further evidence.
That result followed because expectations created by a judge may affect the practical content of the requirements of fairness. Nevertheless, the test remains one of unfairness, not merely the departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (“Ex parte Lam”) at 12-13).
The facts of Faulkes& Tomkins are not, however, analogous with the facts in this case. The difference is, in that case, the appellant altered the way in which she conducted the hearing because of the expectation created by the primary judge’s assurance that a particular issue would be decided in a certain way. No such assurance was given here. In this case, the father knew (even if only constructively through his legal representatives) the statutory provisions which governed the court’s determination, the issues in dispute, and the evidence adduced by the parties to address those statutory considerations and disputed issues. He conducted the case to its conclusion on that basis. His eyes were open and he was not misled by anything said by the primary judge.
The concept of procedural fairness is essentially practical, not abstract, and is designed to avoid practical injustice (Ex parte Lam at 14). The rules of procedural fairness do not have immutably fixed content, though, as a general principle, the parties need to know what case the opposing party seeks to make and how that party seeks to make it (Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 (“Pompano”) at 99-100; National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296 at 312). It is also a fundamental principle of justice that a party is given the opportunity of replying to the opposing party’s case (Kioa v West (1985) 159 CLR 550 at 582).
However, once the critical issues in the proceedings are known to the parties, the decision-maker is not required to expose his or her thought processes or provisional views for comment before making the decision (Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 599). Although not obliged to do so, the decision-maker may still choose to do so, because parties can be assisted by hearing tentative opinions and being given an opportunity to deal with them (Johnson v Johnson (2000) 201 CLR 488 at 493, 504-505; Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 609-610).
While procedural fairness is an essential attribute of any court’s procedures, the content of the obligation in each case requires close analysis of all aspects of the court’s procedures and the legislation and rules governing it (Pompano at 99; RCB v The Honourable Justice Forrest (2012) 247 CLR 304 (“RCB v Justice Forrest”) at 321; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 160-161). Importantly, parenting proceedings under Part VII of the Act are not strictly inter partes disputes (RCB v Justice Forrest at 321; M v M (1988) 166 CLR 69 at 76). The rights of the parties are subjugated to the best interests of the child. Furthermore, the interim hearing of urgent parenting applications is an abridged process where the scope of the enquiry is significantly curtailed (Goode & Goode (2006) FLC 93-286 at [68]). The process does not admit of prolongation. Evidence is not tested by cross-examination and, ordinarily, it is impossible to make critical findings of fact so a surfeit of evidence is unhelpful.
Those substantive and procedural considerations influence the content of the father’s entitlement to procedural fairness in respect of Order 5 made by the primary judge in this instance. Relevantly:
(a)The father knew the primary judge was obliged to make orders that promoted the child’s best interests, which decision would be guided by the factors prescribed under s 60CC of the Act;
(b)the father knew the mother alleged that he and the paternal grandmother were trying to drive a wedge between her and the children and, because he denied it, it was a live issue in the proceedings;
(c)the mother’s evidence incorporated her concerns about the paternal grandmother’s interference with the eldest child at her school;
(d)the father had every opportunity to deal with that issue in submissions, but chose not to, apparently because he was focussed on the issue of the unacceptable risk of harm he alleged the mother posed to the children;
(e)during the hearing, the primary judge did not misleadingly create any expectation in the father about the orders which would be made;
(f)the primary judge did not need to re-list the proceedings to inform the father of an intention to make an injunction in the terms of Order 5, inviting his further response, because it was an order which addressed an issue raised in the evidence and was perceived to be an order in the eldest child’s best interests by reference to the relevant statutory criteria;
(g)there was no need to give the father an opportunity to re-open and adduce more evidence, as that would not have aided the resolution of the disputed issue; only compounded the controversy;
(h)the pronouncement of Order 5 did not visit any tangible prejudice or “practical injustice” on the father, since it is only an interim order with which he can easily comply; and
(i)the father will have the opportunity to adduce evidence and make submissions directed to any application for the revocation of the order at the trial, when the evidence is properly tested and final orders will be made.
Consequently, the father was unable to demonstrate his deprivation of procedural fairness in relation to the making of Order 5 and this ground of appeal fails.
Conclusion and orders
The appeal lacks merit and should be dismissed.
In that event, the mother sought an order for the father to pay her costs of and incidental to the appeal. The father resisted such an order, but only on the basis that his appeal was arguable and it was reasonable to prosecute it, which submission is rejected. He did not contend his financial circumstances militated against a costs order and so s 117(2A)(a) of the Act was not an influential consideration. The appeal was wholly unsuccessful because it was unmeritorious and so s 117(2A)(e) of the Act rises to the fore. No other factors prescribed by s 117(2A) of the Act were addressed by the parties. The exercise of discretion under s 117(2) of the Act justifies an order for costs in the mother’s favour.
Despite a procedural order made by the Appeals Registrar on 29 August 2018 requiring them to do so, the parties did not file schedules of their costs. For that reason it is impossible to quantify the costs order in the mother’s favour. If she cannot agree an amount with the father, she will need to apply for her costs to be assessed.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 19 December 2018.
Associate:
Date: 19 December 2018
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