Cheadle & Pointer - [2020] FamCAFC 277

FAMILY COURT OF AUSTRALIA

CHEADLE & POINTER

[2020] FamCAFC 277

FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from orders providing for the child to live with the father and to spend time with her, with the extent of such time contingent on her psychological assessment – Risk of harm – Whether findings are supported by the evidence – Whether the primary judge took irrelevant matters into account – Adequacy of reasons – Whether the primary judge gave insufficient weight to evidence – Where it was open to the primary judge to order that the child live with the father – No error identified – Appeal dismissed – Costs ordered in a fixed amount.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the mother seeks by two applications to adduce further evidence – Where the applications are misconceived – Where the proposed further evidence would not aid the mother’s case – Where the second application was filed out of time – Where the applications fail the test imposed by CDJ v VAJ (1998) 197 CLR 172 – Applications dismissed.

Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3), 61C, 68LA, 93A(2)

Family Law Rules 2004 (Cth) Pt 15.5, rr 1.14, 22.39(1)

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
In the Marriage of Rose (1976) 12 ALR 107; [1976] FamCA 53
Lloyd and Lloyd and Child Representative (2000) FLC 93-045
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
Vallans v Vallans (2019) 60 Fam LR 193; [2019] FamCAFC 260

APPELLANT:

Ms Cheadle (assisted by an interpreter)

RESPONDENT:

Mr Pointer

INDEPENDENT CHILDREN’S LAWYER:

Delaney Lawyers

FILE NUMBER:

SYC

7392

2013

APPEAL NUMBER:

EAA

2020

DATE DELIVERED:

10 November 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney (by video link)

JUDGMENT OF:

Aldridge, Watts & Austin JJ

HEARING DATE:

10 November 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

26 March 2020

LOWER COURT MNC:

[2020] FamCA 183

REPRESENTATION

THE APPELLANT:

Self-represented litigant

THE RESPONDENT:

Self-represented litigant

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Harper

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Delaney Lawyers

Orders made on 10 November 2020

The Application in an Appeal filed on 4 June 2020 is dismissed.
The Application in an Appeal filed on 30 October 2020 is dismissed.
The appeal is dismissed.
The appellant shall pay the respondent’s costs of and incidental to the appeal fixed in the sum of $6,544.
The application for costs made by the Independent Children’s Lawyer’s is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cheadle & Pointer 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: EAA 50 of 2020
File Number: SYC 7392 of 2013

Ms Cheadle

Appellant

And

Mr Pointer

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Austin J

The appellant (“the mother”) appeals from orders made on 26 March 2020 by the primary judge under Part VII of the Family Law Act 1975 (Cth) (“the Act”) in relation to the parties’ only child – a daughter aged seven years at the time the appealed orders were made.
The appealed orders reversed the child’s residence, making provision for her to move to live with the respondent (“the father”), for him to have sole parental responsibility for her, and for the child to regularly spend time with the mother. Such orders corresponded with the father’s application, the proposal of the Independent Children’s Lawyer (“the ICL”), and the opinion evidence of the Family Consultant. In essence, the primary judge found the child was at risk of suffering emotional harm by living with the mother, due to her exposure to the parental conflict, and the child had a better chance of maintaining her meaningful relationships with both parties by living with the father.
The mother’s appeal was resisted by both the father and the ICL.

Background

The parties separated at some point between June and September 2013, when the child was an infant.
The father vacated the former matrimonial home in January 2014 and he commenced proceedings in the Federal Circuit Court of Australia seeking orders under Part VII of the Act in March 2014.
The proceedings were listed for trial in October 2015, but the parties reached agreement and the trial was vacated. The parties agreed the child should spend more time with the father and the mother abandoned her insistence on the need for their supervision but, instead of parenting orders being made to finalise the dispute, the Federal Circuit Court acceded to the parties’ request to simply dismiss all pending applications in February 2016.
Unfortunately, the transient period of concord was a false dawn and the conflict between the parties did not dissolve as was hoped. The father commenced fresh proceedings before the Federal Circuit Court in November 2017, but the proceedings were later transferred to the Family Court of Australia in July 2018. The trial was commenced in June 2019, finished in November 2019, and the appealed orders were pronounced in March 2020.
The child, who had lived primarily with the mother since the parties’ separation, was ordered to live with the father instead. By reason of adverse findings made about the mother’s parenting capacity, the orders made provision for the child to spend time with her under two alternate regimes, depending upon whether the mother complied with certain conditions (Order 9).
If the mother accepts treatment for her anxiety from a therapist fully informed of background information and the Court’s ultimate findings, then the child will spend substantial time with her, amounting to five nights per fortnight in school terms, half of all school holiday periods, and other special occasions. However, if she does not meet the imposed conditions, the child will indefinitely spend only 24 hours per fortnight with her.

Applications in the appeal

On 4 June 2020, the mother filed an Application in an Appeal seeking to adduce further evidence. The evidence was generically said to relate to most of the 12 grounds of appeal, but the connection between the evidence and the nominated grounds was not obvious, even with the benefit of the mother’s submissions.
The proposed further evidence fell into three categories: first, a report dated 28 January 2020 showing the results of the child’s most recent allergy test; secondly, reports procured by the mother from her general practitioner and a psychologist, which purport to comment authoritatively upon her current state of psychological health; and thirdly, the mother’s own notes summarising some historical medical records concerning the father’s state of psychological health.
The mother contended the child’s allergy test results ought to be admitted in the appeal as the report only became available after the trial was completed. While that is true, the evidence should be rejected. The primary judge accepted the child suffers from a nut allergy, if not anaphylaxis, which is all this evidence shows, in which case it does not demonstrate any material mistake of fact and has no work to do.
The mother contended the reports by her general practitioner and psychologist, prepared in April and May 2020 respectively, verify that she does not suffer from any psychological condition. It remains quite unclear whether the mother procured the reports simply to prove her compliance with Order 9 (which requires her to submit to recommended therapy), thereby enabling the child to now spend more expansive time with her, or alternatively, whether it was to demonstrate mistaken findings by the primary judge.
If the evidence was obtained for the first purpose, it is irrelevant to the appeal because the appealed orders already make provision for the way in which the mother must demonstrate her compliance with Order 9 to the father and the ICL (Orders 10 and 11). Any dispute over compliance with or enforcement of the appealed orders must be entertained by a judge at first instance.
On the other hand, if the evidence was instead obtained for the latter purpose, then it should be rejected for both substantive and procedural reasons.
The primary judge did not find the mother suffers from some form of recognised psychological or psychiatric condition; only that she was unjustifiably anxious about the child’s safety while in the father’s care, which finding was entirely consistent with the evidence of the Family Consultant. The mother challenged the Family Consultant’s opinion evidence to that effect by pressing her to agree it was reasonable to have reacted as she did to certain incidents but, significantly, the Family Consultant made no such concession.
In fact, the opinion of the mother’s psychologist does not even necessarily contradict the Family Consultant’s evidence or the primary judge’s finding. The psychologist only considers the mother’s presentation does not meet the diagnostic criteria for an “Anxiety/Stress disorder”, but she expressly abstained from commenting upon the mother’s “personality functioning”. Similarly, the general practitioner opined the mother “does not show evidence of anxiety”, though that opinion was based exclusively upon the mother’s own report and the answers she gave in a test for “stress, depression and anxiety”.
Neither the psychologist nor the general practitioner were privy to the full measure of tested evidence received by the primary judge during the trial so their reports were prepared in reliance upon a much narrower band of information. Their adversarial expert opinions would not have been admissible before the primary judge pursuant to rigorous application of Part 15.5 of the Family Law Rules 2004 (Cth) (“the Rules”) and, for the same reason, they are not admissible now. But there are additional obstacles to reception of the evidence under s 93A(2) of the Act, as the evidence would tend to obliterate the distinction between original and appellate jurisdiction, it is controversial, it lacks substantial probative value, and it would still not establish appealable error (CDJ v VAJ (1998) 197 CLR 172 at [111], [114], [136], [148], [149] and [186.9]).
The medical records relating to the father date back to 2014, 2015 and 2017, they were produced in answer to subpoenas, and they were inspected by the mother prior to the trial. At least some of those records were actually tendered in evidence at trial (Exhibits 9 and 22), so it must follow that the lawyers who represented the mother chose not to tender the balance. Since the residual reports were then readily available and deliberately not used, they should not be admitted as further evidence in the appeal (CDJ v VAJ at [55], [114], [116] and [186.9]). There is even less reason to admit the mother’s selective notes of the records.
On 30 October 2020, the mother filed another Application in an Appeal seeking to adduce even more evidence in the appeal. The application was filed late under the Rules (r 22.39(1)) and the disinclination to excuse the delay (r 1.14) is influenced by the lack of merit in the application. The mother wanted to tender one or more medical records confirming the child suffered respiratory infection which triggered her asthmatic symptoms in February and March 2019, many months before the trial. The mother explained the records were available at the trial, but were not included within the documents tendered in evidence by her lawyers. Even if the evidence was received in the appeal, it would not aid her case. The evidence would not prove the father was responsible for the child’s respiratory infection and, even if he was, it was inconsequential: the child had a wheeze which “responded well” to an inhaled medication.
The applications to adduce further evidence in the appeal should both be dismissed.

The appeal

Grounds 1, 4, 6 and 12

One issue dominated the contest before the primary judge: the mother’s anxiety about the child’s safety in the father’s care and how it affects, or is liable to affect, the child. The primary judge eventually found the level of the mother’s anxiety posed a risk of psychological harm to the child and each of these grounds, in one overlapping way or another, attack that conclusion.
Relevantly, the primary judge’s conclusions were expressed in these terms throughout the reasons for judgment:
7.Regrettably, despite strong recommendations from the single expert in this matter, the mother has not taken steps to address the extreme anxiety from which she suffers. She believes that she does not need such assistance. Her belief, in that respect, is misguided. Her failure to obtain such assistance is, in turn, adversely impacting upon [the child].
…
10.As against that unknown factor, the Court finds that there remains an unacceptable emotional risk to [the child] if the mother does not take steps to address her extreme level of anxiety, pattern of dysregulated behaviour and instances of unacceptable interaction with [the child].
…
108.The orders sought by the mother propose a precondition to the child spending limited overnight time with the father, involving that the father agrees to message the mother three (3) times throughout the night and into the early hours of the morning to confirm [the child’s] wellbeing. I respectfully agree with the submission of the Independent Children’s Lawyer, which was supported by the father, that this proposal made by the mother, together with other evidence to which I will refer, indicates that the mother’s anxiety about the safety of the child in the father’s care is so extreme that “it overwhelms her capacity to support [the child] having a meaningful relationship with [the father]”.
…
174.Having regard to that evidence, I am satisfied of the validity of [the Family Consultant’s] opinion that the mother’s concerns, in that respect, go far beyond those of an overprotective parent. I accept and agree with the submission of the Independent Children’s Lawyer that the mother’s anxiety of the child becoming ill, suffering injury or being lost in the father’s care is disproportionate and irrational. There is no evidence of the father failing to keep a proper watch out for the child when she is in his care. Further, there is no evidence that the child’s asthma attacks have been more frequent or more severe at those times that the child is or has been in the father’s care.
…
179.It is of concern that the mother does not accept the assessment made by [the Family Consultant] that the child is so burdened by the mother’s anxieties. I am satisfied that [the child] has already developed a sense of responsibility for her mother’s emotions. In that respect, at paragraph 53 of her 2018 report, [the Family Consultant] recorded that the child “said that she feels worried when her mother worries about her. When asked to elaborate she replied ‘When I am at [the father’s] she worries if I get sick and she gets grey hair”.
…
251.… I am satisfied that those orders proposed by the mother are reflective of her extreme and ongoing anxiety in respect to the child spending overnight time with the father.
252.I am also satisfied that the mother has shown little insight as to the impact that her conduct is having upon the child. During cross-examination, the mother was asked several times by counsel for the Independent Children’s Lawyer whether she was concerned to read [the Family Consultant’s] assessment that the child may be “burdened” by the anxieties that she has displayed. After the Independent Children’s Lawyer’s attempts to question the mother in respect to that issue, I intervened to request that the mother give careful consideration to the response she provided to the question that was being put to her. The mother stated that she disagreed with the assessment of [the Family Consultant] and did not believe that the child is so burdened. I am satisfied that the child is so burdened and the mother’s failure to recognise that fact shows lack of insight on her part.
…
255.I respectfully agree with the Independent Children’s Lawyer that the difficulty with the mother’s position, in that respect, is that she maintains an irrational view that the child will be unsafe in spending overnight time in the father’s care.
…
356.On the other hand, I find that the mother’s parenting capacity has been compromised by her extreme level of anxiety in respect to the child’s medical needs. In that respect, I agree with [the Family Consultant’s] observation that:
[The mother] presents with an extremely high level of anxiety that is palpable. She attributes all of the blame for [the child’s] alleged illnesses onto [the father] and his lack of responsibility and she seems to be unable to consider that there might be other explanations for any illness [the child] suffers. Her quest to discredit [the father] seems unrelenting.
…
434.For reasons which I have set out, I am satisfied that the child is exposed to an unacceptable risk of emotional and psychological harm if she remains in the primary care of the mother.
435.This is because of the mother’s extreme anxiety concerning the welfare of the child when the child is in the father’s care. It is also because of the mother’s difficulty in appropriately regulating her own behaviour and, as a related issue, the inappropriate manner in which she has communicated to the child, including, most relevantly, advising the child that she faces a risk to her health and, specifically, the possibility of dying in the father’s care.
…
460.As noted, I am satisfied that the child would suffer such emotional and psychological harm should it be the case that the mother fails to address the extreme level of anxiety from which she suffers concerning the child being in the care of the father and her propensity to engage in dysregulated conduct, including in respect to her inappropriate interactions with the child.
(Footnotes omitted) (As per the original)
Such findings were securely premised on the evidence.
In the first Family Report compiled in October 2015, the Family Consultant reported the mother presented as having an “extremely high and palpable level of anxiety” in respect of the child’s safety while in the father’s care and her capacity to foster the child’s relationship with the father was “sorely lacking”. The mother’s need to “control and micromanage” the child’s care was considered to be extreme and, furthermore, it was “extremely important” for her to seek professional help in dealing with her anxieties. Indeed, the mother’s worry about the child’s health was overtaking and inhibiting her capacity to meet the child’s emotional needs by facilitating her relationship with the father.
Nearly three years later, nothing had materially changed. In the second Family Report compiled in July 2018, the Family Consultant reported there was “little change”, as was evidenced by the mother persistently withholding the child from the father in breach of orders because she considered his care of the child’s medical conditions was negligently deficient. The Family Consultant considered the mother still had a “significant level of anxiety” about the child’s well-being, being so pronounced that no court order would ever be sufficient to re-assure her of the child’s safety in the father’s care. The Family Consultant considered the father was more attuned than the mother to the child’s needs and that the mother’s hypervigilance had the potential to be “abusive” to the child.

The Family Consultant’s oral opinion evidence, elicited in cross-examination at the trial, was to exactly the same effect. She agreed with the proposition that the mother’s anxiety fuelled the parties’ conflict and she was deprived of insight into that cause and effect.
The mother’s anxiety about the child was readily inferred from her conduct, to which conduct the child was often exposed. For example, without any challenge in the appeal, the primary judge found that the mother:
a)remains genuinely worried the child will die while in the father’s care (at [169]-[171]);
b)breached orders by withholding the child from the father, because she considered it necessary to ensure the preservation of the child’s health (at [31], [44], [59], [181]-[201], [243] and [254]);
c)told the child on occasions that the father would kill her and the child would never return from his care (at [34], [46], [48], [165], [209]-[211] and [219]-[225]);
d)repeatedly told the child that the father did not take adequate care of her (at [165]-[166]);
e)either telephoned or went uninvited to the father’s home at odd hours, even in the middle of the night, generally because the father failed to send her messages confirming he had checked on the child whilst she was sleeping (at [51]-[53], [63], [226], [306] and [416]-[425]); and
f)unreasonably maintained allegations of the child’s possible sexual abuse by the father, together with the continuing risk of her harm from such abuse, on flimsy evidence (at [37]-[38], [147]-[159] and [355]).
In her Summary of Argument, the mother even admitted:
4.4Up to the final hearing there were only about 49 days that I did not give [the child] to [the father]. I kept [the child] with me only when [the child] got sick or suffered harm when spending time with [the father], and to protect [the child] from further harm…
(Emphasis added)
The suite of orders sought by the mother at trial elegantly vindicated the opinion evidence of the Family Consultant about the mother’s anxiety over the child’s safety (at [73]). She proposed that the child live with her and she have sole parental responsibility. While she accepted the child could spend time with the father, it would only ever be under a slowly graduating and constricted regime, subject to the father meeting her meticulous conditions. Those included: his compliance with her written directions about how to properly care for the child, him checking on the child throughout the night at three hourly intervals, and him sending her texts and photographs to verify the child was well. The mother also sought an order compelling the father to send her quarterly reports confirming that his mental and physical health was satisfactory.
Despite such strong evidence about the impairments to the mother’s parenting capacity, the primary judge’s decision to reverse the child’s residence was only made after earnestly cautious consideration (at [441]-[449]).
The mother’s first proposition in the appeal was that the primary judge’s finding about her high level of anxiety was “not supported by the evidence” (Ground 1). The proposition should be rejected. Not only was the finding open, it is difficult to see how the primary judge could have avoided making it.
The mother submitted she has never been diagnosed with any recognised psychological condition, including anxiety. That may be correct, as there was certainly no evidence elicited at trial of her positive diagnosis in the past. However, the submission is misconceived because it misunderstands the evidence of the Family Consultant and the finding of the primary judge. No finding was made that the mother suffers from a diagnosable psychological condition. In fact, the primary judge expressly found it was impossible to say whether either party’s presentation was due to “any underlying mental health pathology” (at [120]).
The primary judge only found the mother experienced undue anxiety about the child’s safety with the father, which was liable to induce anxiety in the child and damage her relationship with him. Although unappreciated by the mother, there is an obvious distinction between the diagnosis of her suffering an identifiable clinical condition and the colloquial description of her anxious behaviour. The evidence and findings emphasised the latter, but did not broach the former.
Tellingly, in her Summary of Argument filed in the appeal, the mother admitted she was worried about the child in the father’s care, but submitted she had good reason to be so. She said:
2.10[The child’s] doctors’ and hospital visits almost always coincided with the time spent with [the father]. I was worried about [the child’s] health and safety in [the father’s] care.
The submission only tended to bear out the primary judge’s findings. His Honour found the number of the child’s hospital presentations more likely reflected the mother’s level of anxiety than it did the competence of the father’s parenting capacity (at [172], [173] and [357]), which specific finding was not challenged by the mother. As for the mother’s admission of her “worry” about the child’s “health and safety” in the father’s care, the primary judge’s findings about the deleterious effect of her own anxiety upon the child’s emotional state was expressed in these terms:
10.… the Court finds that there remains an unacceptable emotional risk to [the child] if the mother does not take steps to address her extreme level of anxiety, pattern of dysregulated behaviour and instances of unacceptable interaction with [the child].
…
234.In that context, as I have noted, at paragraph 78 of her 2015 report, [the Family Consultant] advised the parties that “poorly controlled emotional responses provide an inappropriate role model to children about how to manage their own emotions”. The fact that the mother has continued to engage in poorly controlled emotional responses, as indicated, most graphically, in the recording of the conversation that occurred on 7 February 2017, causes concern about the mother’s capability of regulating her emotional responses in the future. In the absence of professional intervention to assist the mother to develop those skills, I am satisfied that the mother’s difficulty with self-regulation is such that it has and is likely to continue to adversely impact upon [the child]. This is a significant factor in my determination that [the child] should live with the father and spend less time with the mother than that which is provided for in the currently operating Orders.
…
460.As noted, I am satisfied that the child would suffer such emotional and psychological harm should it be the case that the mother fails to address the extreme level of anxiety from which she suffers concerning the child being in the care of the father and her propensity to engage in dysregulated conduct, including in respect to her inappropriate interactions with the child.
Ultimately, the primary judge determined that before the child could safely spend substantial amounts of time with the mother it would be necessary for her to consult a therapist regarding her anxiety about the child being in the father’s care. Consequently, Order 9 was made in these terms:
9.That the mother’s time with the child in accordance with Order 6 is conditional upon the mother’s compliance with the following:
(a)Within 14 days of the date of these orders, the mother is to obtain a Mental Health Care Plan and referral from her general practitioner to a psychologist or psychiatrist (“therapist”) for treatment of her anxiety;
(b)Within 21 days of the date of these orders, the mother is to make an initial appointment with the therapist and advise the father in writing of the name and contact details of the therapist and the date of the appointment;
(c)The mother is to attend the initial appointment and all subsequent appointments in accordance with the therapist’s recommendations until such time as the therapist deems it appropriate for the mother to cease treatment;
(d)The mother is to comply with all reasonable recommendations made by the therapist in relation to her treatment, including taking any prescribed medication or attending any recommended parenting or behaviour management course;
(e)The mother is to provide a copy of the following documents to the therapist prior to or at her initial appointment:
(i)A sealed copy of these Orders;
(ii)[The] reasons for judgment; and
(iii)[The Family Consultant’s] reports dated 26 October 2015 and 16 July 2018.
The validity of Order 9 is challenged in the appeal in these terms (Ground 12):
Order 9 does not conform to the common health practice processes and it is plainly wrong.
As pleaded, the ground is meaningless but, in support of the ground, the mother submitted that Order 9 wrongly presumes she has an anxiety disorder and requires the condition to be treated. The submission is rejected because, as already explained, experiencing anxiety is not the same thing as suffering from an anxiety disorder. Order 9 is apparently responsive to the submission made by the ICL about the need for it (at [268]), based on the Family Consultant’s evidence to the effect that the mother would benefit from “anxiety-specific therapy” to assist in managing her anxiety and irrational beliefs concerning the child’s health. As was found, for some years, the mother failed to heed the Family Consultant’s advice to seek out such therapy (let alone prescriptive interim orders requiring her to do so) just because she obtained advice from her own general practitioner that she was “a normal mum” (at [256]-[265] and [436]).
As can be seen, Order 9 is capable of easy compliance by the mother. It only requires her to, sequentially, obtain a referral to a therapist from her general practitioner, attend upon the therapist, furnish the therapist with information which equips the therapist with knowledge about why she was referred for treatment, and accept such treatment as is recommended by the therapist for as long as the therapist deems necessary.
Order 9 does not introduce any measure of success as a pre-condition to the alternate operation of Orders 5 and 6. If the therapist says she needs no therapy at all or if the therapy is provided but the mother perceives no benefit from it, then she might well continue to be unduly anxious about the child living with the father. That would be unfortunate, but the primary judge could not have done more to help her. The potential failure of Order 9 to bring about any positive change does not manifest error in the suite of orders which reversed the child’s residence. Nonetheless, compliance with Order 9 triggers the child’s entitlement to spend the more expansive regime of time with her.
While the mother’s emotional state was the subject of close attention in the proceedings, so was the father’s. Contrary to the positive finding for which the mother advocated, the primary judge found the evidence did not establish the father suffered from any psychological condition which affects his parenting capacity (at [131] and [381]). The mother submitted the finding was “not supported by the evidence” (Ground 1) and furthermore, the primary judge “gave insufficient weight to the father’s mental health condition” (Ground 6), but both contentions should be rejected.
As the Family Consultant reported in July 2018, the father admitted he had suffered from “situational depression” in the past and, on two prior occasions (one being around the time of his separation from the mother), he had been prescribed antidepressant medication for finite periods. The primary judge did not overlook that evidence when making the finding the mother now attempts to impugn (at [130]).
In the appeal, the mother attempted to make good her contention of the alleged mistake of fact about the father’s state of psychological health by reference to three exhibits (Exhibits 9, 10 and 22). Exhibit 9 comprised file notes produced by the psychiatrist whom the father consulted in 2014. The psychiatrist reported the father had non-pervasive symptoms of low mood, which were to be expected as part of a marriage dissolution and a dispute over the care of a child. He did not suffer from major depression. Exhibit 22 comprised file notes produced by the psychologist whom the father consulted in 2017. The psychologist’s notes reveal the father’s stated concern was only “blended family techniques” and the psychologist was apparently satisfied the father “has strong resilience”. The primary judge referred to both exhibits in the reasons for judgment (at [122] and [127]). Exhibit 10 comprised records produced on subpoena by the State child welfare authority, but the mother did not make any submission about how that portion of the evidence influenced consideration of these grounds.
The father openly admitted he had suffered from “low mood” from time to time, he last visited the psychologist in early 2018, and he might benefit from ongoing psychological support, but those concessions fall far short of supporting the mother’s contention, either expressed or implied, that the father’s capacity to provide for the child’s needs was impaired in some way by his psychological condition. As his Honour expressly observed (at [379]), past psychological fragility is not of itself an obstacle to competent parenting.
The mother contended under two different grounds (Grounds 1 and 4) that several other findings were not supported by the evidence either, but the contention should be rejected as being no more than her disagreement with the findings, as distinct from demonstrating any error in them. It was well open for the primary judge to find the father demonstrates a greater degree of logic and common sense in dealing with the child’s health challenges (at [105]), he demonstrated detailed knowledge of the child’s asthma plan (at [146]), and he diligently respected the child’s health care, including management of her asthma (at [314], [354] and [374]). The father’s attention to the child’s conditions may not have been quite as fastidious as the mother’s, but she mistakenly assumed that any less attention than she devoted was reckless. The primary judge was well satisfied the father handled the child’s asthma and allergies in a measured and responsible way, whereas the mother’s approach was frantic. The evidence before the primary judge verified the child’s asthma was not as serious as the mother thought. The child had not needed to consult with her asthma physician since 2015 and, upon her review in 2018, was found to have “absolutely normal” lung function (at [362]). Her allergies were still being periodically monitored.
The mother’s submission in the appeal that the father had already “put the child’s future health at risk” because he allowed her to become sunburned on two occasions in January 2017 and January 2018 was an example of her undue anxiety about the child’s care. The submission amounted, as the primary judge said (at [137]), to “significant over-reach”. While the undesirability of allowing a child to become sunburned may be accepted, it is quite another thing to contend the responsible parent thereby neglected and subjected the child to the risk of both physical and psychological harm, against which risk the child needs to be protected, as the mother submitted on account of those facts. It should not be overlooked that, while the mother was being legally represented at the trial, her counsel conceded the evidence of the child’s sunburn did not demonstrate the father posed an unacceptable risk of harm to the child, by which concession she is bound. The primary judge did not err in the assessment of risk posed to the child by the father in that particular respect, as the mother asserted (Ground 4). His Honour reasonably acknowledged the sunburn incidents (at [133]-[137]), but they did not influence, much less dictate, with whom the child should live or how much time she should spend with the non-residential parent.
These grounds should be rejected.

Grounds 2 and 3

These two grounds assert the primary judge erred by taking irrelevant evidence into account, failing to take relevant evidence into account, failing to give appropriate weight to evidence, and failing to properly assess some evidence.
So styled, the grounds largely conform to recognised grounds of appeal from discretionary judgments (House v The King (1936) 55 CLR 499 at 504-505), but advertence to the mother’s Summary of Argument reveals the fundamental flaw in these grounds. Her submissions are no more than a catalogue of the pieces of evidence in which she considers the primary judge ought to have reposed more weight to reach a different conclusion. The principled impediment to an appellate argument about merely the weight attributable to certain evidence is well known (Lovell v Lovell (1950) 81 CLR 513 at 519 and 533; In the Marriage of Rose (1976) 12 ALR 107 at 122; Gronow v Gronow (1979) 144 CLR 513 at 519-520).
Distilling the mother’s submissions, the evidence to which she referred as being important comprised: her role as the child’s primary carer up until the trial; the child’s enjoyment of meaningful relationships with both parties; some particular aspects of the opinions expressed by the child’s treating medical practitioners about her medical conditions; and her assertions of the father’s inferior medical care of the child.
But all of that evidence was considered and discussed in the comprehensive reasons for judgment. The mother could not establish the alleged failure to give adequate weight to the evidence which she identified as being important really amounted to the failure to exercise the discretion actually entrusted to the primary judge (Lovell v Lovell at 519) and, despite the literal terms of these grounds, none of her submissions conversely identified an irrelevant consideration wrongly taken into account.
The mother’s ancillary complaint about the primary judge’s undue attraction to and reliance upon the ICL’s submissions is rejected. The statutory duties of the ICL are prescribed (s 68LA). The ICL is obliged to form an independent view on the available evidence about the suite of orders which would promote the child’s best interests. If the ICL’s view happens to coincide or more closely correlate with the application of one party, that alone does not demonstrate partisanship. The circumstances which would warrant the discharge of an ICL for lack of impartiality are well known (Lloyd and Lloyd and Child Representative (2000) FLC 93-045 at 87,687). There is no suggestion here that those principles should or could have been invoked. The primary judge was greatly assisted by the ICL (at [5]), as is often the case when one or both parties are self-represented. The mother was legally represented for only part of the trial and the father was unrepresented throughout.
These grounds should fail.

Ground 5

Ground 5 provides:
His Honour did not give any adequate reasons for the decision of the restraining orders and travel orders.
Numerous injunctions were made by the primary judge, but the “restraining order” which was the subject of the mother’s express complaint in her Summary of Argument was Order 12(b), which provides:
The mother is restrained from coming within 50 metres of the child’s school at any time except for the purposes of collecting or delivering the child in accordance with these Orders, or at the express written invitation of the school Principal, or with the father’s prior consent in writing.
The mother submitted that particular order does not ensure the child’s best interests are met, and furthermore, she has the “right” to attend the child’s school to support her scholastic and associated activities. It may surprise the mother, but she has no such right at all. Whilst “parental responsibility” is defined to include the powers which parents wield in respect of children, the Act is constructed to emphasise the rights of children, but the duties, obligations and responsibilities borne by parents (Vallans v Vallans (2019) 60 Fam LR 193 at [39]). Any right which a parent enjoys through “parental responsibility”, as conferred by law, remains subject to the terms of any court order (s 61C). The mother’s right to attend the child’s school was stripped by the father’s conferral with sole parental responsibility and the terms of the injunction.

The primary judge vested the father with sole parental responsibility for the child, it being readily accepted by the parties that they could not share such parental responsibility. The father therefore had exclusive control over the child’s education and extra-curricular activities. The orders enabled the mother’s attendance at the child’s school, but only to collect or return the child or otherwise with the express permission of either the father or school principal.
The primary judge reasoned the necessity for the injunction in those terms as follows:
471.In that context, the order will also include the restraint proposed by the Independent Children’s Lawyer restraining the mother from attending the child’s school other than in accordance with the express written invitation of the school principal or with the father’s prior consent. This would avoid a situation where the child is placed in an uncomfortable situation at what should be her place of sanctuary and learning.
Although this ground of appeal also complained about “travel orders”, the mother made no submission about that topic in her Summary of Argument.
The mother sought a series of orders permitting her international travel with the child, but that was in the context of her being granted sole parental responsibility for the child and the child living with her (at [73]). Once orders were instead made requiring the child to live with the father and vesting him with sole parental responsibility for the child, the mother’s application for “travel orders” became otiose. That was particularly so in the context of the primary judge finding the child was at risk of harm in the mother’s care, which risk could only be ameliorated by closely confining the time spent by the child with her.
The primary judge reasoned as follows in respect of that aspect of the mother’s application:
483.At paragraphs 38 through to 44, the mother proposes orders that would permit the mother to travel overseas with the child but which would restrict the father’s travel with the child to interstate travel, subject to the child reaching “an age agreed between the parties”. In circumstances where I have made orders for the father to have sole parental responsibility, such an order would be inappropriate. The father has not pressed for an order permitting him to travel overseas with the child. I am not satisfied that such an order would be appropriate to permit the mother to engage in such overseas travel with the child in circumstances where the amount of time that the child spends with the mother will be significantly limited unless and until she obtains the professional assistance referred to in proposed order 7 of the Independent Children’s Lawyer’s Minute of Order. In those circumstances, the provisions of s 65Y of the Act will apply, which, by way of summary, prevents either party from taking or sending the child outside the Commonwealth of Australia without further order of the Court or where agreement is reached in the circumstances otherwise set out in that section of the Act.
No error is demonstrated in the primary judge’s decision to abstain from making orders about the child’s international travel.

Ground 7

Ground 7 provides:
His Honour gave too much weight to the father’s home circumstances.
The submissions made in the mother’s Summary of Argument in support of this ground go to the absence of any evidence at trial from the father’s partner, in circumstances where the father was contesting the child’s residence. Although somewhat unclear, inferentially, the mother’s point was that the primary judge could not have been satisfied the father was capable of meeting all of the child’s needs when, because of his work commitments, he would be reliant upon his partner for help and she did not give corroborative evidence that she was willing and able to do so.
The absence of any evidence from the father’s partner was the subject of extensive commentary by the primary judge in the reasons for judgment, so the lacuna was not ignored (at [9], [278]-[284] and [382]-[397]). His Honour expressed some “significant concern” about it, but such concern had to be weighed against the risk of harm posed to the child if she continued to live with the mother (at [10]). The latter factor weighed more heavily than the former and no error is evident in that balance.

Grounds 8, 9, 10 and 11

Ground 8 asserts the primary judge failed to “properly assess and give any adequate consideration” to the factors prescribed by s 60CC(2) of the Act.
Grounds 10 and 11 are directed more specifically towards the provisions of s 60CC(2)(b) of the Act, asserting the appealed orders “put the child at risk of serious physical and emotional harm” and additionally, that they occasion a “substantial injustice” to the mother.
Ground 9, in similar terms to those of Ground 8, asserts the primary judge also failed to “properly assess and give any adequate consideration” to the factors prescribed by s 60CC(3) of the Act.
The submissions made by the mother in support of these grounds were scant and really amounted to no more than contentions that the primary judge paid insufficient heed to her evidence and submissions about the child’s derivation of benefit from a meaningful relationship with her (s 60CC(2)(a)) and the high risk of harm to which the child was exposed in the father’s care (s 60CC(2)(b)). Her ancillary complaints were that the primary judge did not have sufficient regard for two additional considerations (ss 60CC(3)(f) and 60CC(3)(g)).
As the father and the ICL both correctly contended, the mother’s submissions are bare propositions, do not explicitly identify any error, and must therefore be rejected. The comprehensive reasons for judgment deal with all aspects of the evidence upon which the mother relied, by express reference to each and every factor prescribed as primary and additional considerations by s 60CC of the Act (at [107]-[432]). More specifically, his Honour acknowledged the child derived benefit from her meaningful relationships with both parties, found the mother posed a risk of harm to the child, but found the father did not, and was cognisant of the statutory imperative under s 60CC(2A) of the Act to prioritise the child’s protection from physical or psychological harm (at [91] and [433]).
Although the mother may feel as though the appealed orders wreak “substantial injustice” upon her, it is not a competent ground of appeal.
These grounds should fail.

Orders and costs

The appeal should be dismissed for lack of merit.
While the father was self-represented in the appeal, he incurred legal costs with solicitors and barristers for advice and assistance during the appellate litigation, which amounted to $6,544. He sought an order for costs in that amount against the mother if the appeal was dismissed.
The mother did not cavil with either the fact or the quantum of the father’s costs, but opposed an order for costs in his favour on account of her confined financial circumstances. That is a material consideration, but one which is considerably outweighed by the lack of merit in the appeal and the applications which attended it. I consider the mother should pay the father’s costs in that modest sum.
The ICL belatedly notified his claim against the mother for costs and disbursements in the total sum of $4,060, in the event of the appeal being dismissed. I consider the application should be dismissed, given his breach of the procedural orders made by the Regional Appeals Registrar on 20 May 2020 requiring schedules of costs to be filed well in advance of the appeal sittings if costs are to be claimed.
For those reasons, I propose orders dismissing the two applications to adduce further evidence in the appeal, the dismissal of the appeal, an order that the mother pay the father’s costs of the appeal fixed in the sum of $6,544, and the dismissal of the ICL’s application for costs.

Watts J

I agree with the orders proposed by Austin J and the reasons he has given.

Aldridge J

I also agree.
The orders of the Court are therefore:
(1)The Application in an Appeal filed on 4 June 2020 is dismissed.
(2)The Application in an Appeal filed on 30 October 2020 is dismissed.
(3)The appeal is dismissed.
(4)The appellant shall pay the respondent’s costs of and incidental to the appeal fixed in the sum of $6,544.
(5)The application for costs made by the Independent Children’s Lawyer’s is dismissed.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Aldridge, Watts & Austin JJ) delivered on 10 November 2020.

Associate:

Date: 13 November 2020