Cimorelli & Wenlack
[2020] FamCAFC 58
•23 March 2020
FAMILY COURT OF AUSTRALIA
| CIMORELLI & WENLACK | [2020] FamCAFC 58 |
| FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from interim parenting orders providing for the father to have sole parental responsibility for the children and for them to live with him – Where the primary judge ordered that the children spend supervised time with the mother – Where the grounds of appeal are premised on the primary judge making erroneous findings and attributing weight to untested expert evidence – Where the appeal is resisted by the father and the Independent Children’s Lawyer – Where the appealed orders were premised on the provisional finding that the mother posed a risk of harm to the children – Where the primary judge did not make any error of fact or law – Where the appeal lacks merit – Appeal dismissed – Costs applications made by the father and the Independent Children’s Lawyer are reserved for determination in chambers. |
| Family Law Act 1975 (Cth) ss 60B, 60CC, 60CG, 65DAC Family Law Rules 2004 (Cth) r 5.10 |
| Cimorelli & Wenlack (No. 2) [2019] FamCAFC 255 Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104 Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 M v M (1988) 166 CLR 69; [1988] HCA 68 Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100 |
| APPELLANT: | Ms Cimorelli |
| RESPONDENT: | Mr Wenlack |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 2881 | of | 2013 |
| APPEAL NUMBER: | EAA | 135 | of | 2019 |
| DATE DELIVERED: | 23 March 2020 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Kent & Austin JJ |
| HEARING DATE: | 6 March 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 November 2019 |
| LOWER COURT MNC: | [2019] FamCA 854 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Dr Birch SC |
| SOLICITOR FOR THE APPELLANT: | Minors Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Cummings SC |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Eldershaw |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
The appeal is dismissed.
The costs applications in the appeal made by the respondent and the Independent Children’s Lawyer against the appellant are reserved for determination in chambers, for which purpose:
(a)The appellant and the respondent shall each file and serve within 14 days an affidavit or sworn financial statement providing full particulars of that party’s current financial circumstances;
(b)The respondent and the Independent Children’s Lawyer shall file and serve submissions upon which they rely to prosecute their costs applications within 14 days after the filing of financial statements.
(c)The appellant shall file and serve within a further 14 days thereafter submissions upon which she relies to resist the costs applications; and
(d)The respondent and the Independent Children’s Lawyer shall file and serve within a further 7 days thereafter any submissions in reply.
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 Cimorelli & Wenlack 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 135 of 2019
File Number: SYC 2881 of 2013
| Ms Cimorelli |
Appellant
And
| Mr Wenlack |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
By way of an Amended Notice of Appeal filed on 17 February 2020, the appellant (“the mother”) appeals from parenting orders made on an interim basis between her and the respondent (“the father”) in relation to their three children by a judge of the Family Court of Australia on 20 November 2019.
The appeal was resisted by both the father and the Independent Children’s Lawyer (“the ICL”).
The maternal grandparents were joined as parties to the proceedings and were represented at the hearing before the primary judge. They were also joined as respondents to the appeal, but were later removed as parties with their consent by procedural orders made by the Appeals Registrar on 29 January 2020.
For the reasons which follow, the appeal is dismissed.
Background
The parties’ three children were born between 2008 and 2012 and, at the time of the hearing before the primary judge in November 2019, were aged between 11 and seven years.
The parties separated in April 2013, following which the father commenced proceedings for parenting orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”). Those proceedings progressed to trial before another judge of the Family Court of Australia (“the first judge”) in August 2015 but, part way through the trial, the parties reached agreement about the parenting orders they believed would promote the children’s best interests and the first judge made final orders in accordance with their agreement to end the dispute. The orders essentially provided for the parties to have equal shared parental responsibility for the children and, after a period of graduation, for the children to live with the parties for equal time.
The mother filed an affidavit just prior to the commencement of the trial before the first judge, in which she deposed:
I do not believe that there is any risk of harm or danger to the children while they are in [the father’s] care.
The mother’s concession eradicated what had been a fomenting issue in the proceedings, namely, whether the father posed any risk of harm to the children.
When the first judge made the final parenting orders with the parties’ consent in August 2015, his Honour noted on the sealed orders:
…the mother accepts that there is no unacceptable risk posed by the father to the children based on the available evidence.
Self-evidently, the mother could not then credibly resile from either her sworn evidence or her formal concession, at least by reference to any allegations against the father which preceded the final orders being made in August 2015.
The children then lived with the parties as the August 2015 orders dictated until March 2019, when the arrangement fell into disrepair. During early 2019, the parties both noticed the children’s increasing resistance to their residence with the father. The problem came to a head in March 2019 when the father was told by caseworkers of the child welfare authority not to collect the children from school as a notification had been made requesting him not to collect them, with which request he complied (at [30]). On 11 April 2019, the two eldest children refused to be collected from the school by him (at [37]).
During this time, the child welfare authority became involved and, following interviews with the children and the father, did not substantiate the few allegations the children made of their physical abuse by him in 2016 and 2017. Nevertheless, the child welfare authority noted that all three children were frightened of the father and did not want to return to his care.
Dissatisfied with that situation, the father commenced fresh proceedings against the mother in April 2019 for different orders under Part VII of the Act.
The father’s application for fresh interim parenting orders was first entertained in May 2019 but, given the history of prior proceedings, only procedural orders were made at that juncture appointing a new single expert witness to confer with the family and produce an expert forensic report for use in the proceedings.
The proceedings were listed before the primary judge for further case management in September 2019, at which time her Honour was persuaded the dispute warranted expedition, but it appears her Honour took the view it would be best to wait until the single expert report was ready for release, given the appointments with the single expert were fixed for early October 2019.
For reasons it is now unnecessary to discuss, the mother did not attend her appointment with the single expert and so, in reliance upon earlier procedural orders, the ICL took steps to re-list the proceedings before the primary judge.
On 4 October 2019, pending further orders, her Honour suspended the August 2015 orders and ordered the children to be recovered from the mother and delivered to the father, with whom they would then live. The father was vested with sole parental responsibility for the children. The mother was restrained from contacting the children by any means. The mother appealed from the orders, but the appeal was abandoned and its application for re-instatement later refused (Cimorelli & Wenlack (No. 2) [2019] FamCAFC 255). In fulfilment of those orders, the children were recovered from the mother, but not without difficulty, as the primary judge explained (at [52]-[53]).
On 14 October 2019, when the proceedings were back before her Honour for further case management, the mother applied to discharge the new single expert’s appointment, which application was refused. As the primary judge explained (at [54]-[56]), due to the lack of time to then deal with it, the interim parenting dispute was adjourned for hearing on 1 November 2019. The mother appealed from the orders made that day, but the appeal was later abandoned.
On 16 October 2019, the primary judge made further interim orders governing the children’s education in the interregnum, up until the pending parenting dispute was heard on 1 November 2019 (at [55]). The mother appealed from the orders made that day, but that appeal was also later abandoned.
The interim hearing proceeded before the primary judge on 1 November 2019, but judgment was reserved. However, the primary judge made more procedural orders that day, against which the mother appealed, but the appeal was later abandoned.
The interim orders pronounced by the primary judge on 20 November 2019 suspended the August 2015 orders, required the children to live with the father, and gave him sole parental responsibility for them. Provision was made for the children to spend only supervised time with the mother at a professional contact service for two hours each fortnight and she was otherwise restrained from having any contact with them. The parties’ dispute over the school at which the children should be enrolled was resolved by an order compelling the father to enrol them at the school he proposed, which order was really unnecessary given the order granting him sole parental responsibility for them.
The appeal
The mother filed her appeal in December 2019 without the benefit of legal assistance. She advanced many grounds of appeal though, in truth, most did not assert any appealable error in the recognised sense. Subsequently, the mother obtained legal representation and, by arrangement with the father and the ICL, filed an Amended Notice of Appeal in February 2020 which substantially re-caste her appeal.
In effect, the new grounds of appeal contend the primary judge made numerous findings of fact which were not open on the evidence and wrongly relied upon the evidence-in-chief of the single expert witness appointed in the former proceedings.
Before evaluating the various grounds and sub-grounds of appeal, it is useful to explain the nature of the dispute before the primary judge to give the appeal context.
The central contest between the parties was described by her Honour thus:
7.…The father contends that the mother poses an unacceptable risk of harm to the children arising from psychological abuse of them in her care…
…
29.It appears to be common ground between the parties that the children’s anxiety had been intensifying during the first few months of 2019. It is the mother’s view, as I understand it, that the children were dissatisfied with their current care arrangements and wanted to spend more time with her, while the father was becoming concerned that the children were rejecting him or becoming aligned with the mother for no reason.
…
78. It is the father’s contention that the children have been subjected to psychological abuse in the care of the mother in particular from the early months of 2019 and that there is an unacceptable risk the children will continue to be harmed by such abuse in the care of the mother should they return to live with her…
79. The father’s concern about psychological abuse arises from the undisputed fact that the children, in particular the oldest and middle children have been overtly rejecting the father since at least February 2019 and appear to have formed a belief which the father says is false that he is dangerous and that they are unsafe in his care…
80. It is the mother’s case, as I understand it, that she has at all times supported the children’s relationship with their father. She does not offer any explanation for the children’s attitude towards the father other than that the children have always been uneasy with the equal time arrangements and frequent change to routine brought about through the 2015 orders…
The ICL endorsed the father’s contentions about the unacceptable risk of psychological harm posed to the children by the mother, though the ICL sought to address that problem by ensuring the children spend professionally supervised time with the mother, while the father’s preferred position was for a temporary suspension of time and communication between the children and the mother.
The mother conversely proposed the restoration of the “equal time” residential regime which had previously applied under the August 2015 orders, though she could not advance any logical explanation for how she could then successfully comply with the same regime she was demonstrably unable to implement from March 2019 until the children were removed from her care in October 2019.
Even though the mother failed to ensure the children spent any time with the father for the last six months before they were removed from her care, it was not due to any need to keep them safe. At least four matters demonstrate that the mother accepted there to be no objective evidence whatsoever of the father posing any risk of harm to the children.
First, it was implicit from the mother’s proposal for the children to resume living with the father for equal time.
Secondly, she did not contend in her Case Outline document that the children needed protection from any risk of harm to which they would be subjected or exposed in the father’s care, as a primary consideration under s 60CC(2)(b) of the Act.
Thirdly, during oral submissions, the mother’s lawyer did not correct and took no issue with the primary judge’s understanding of the mother’s case, as this excerpt of the transcript shows:
HER HONOUR: The mother says that the father doesn’t pose any risk to them. She proposes orders that they live back with him.
[COUNSEL FOR THE MOTHER]: And that is a means of resetting arrangements until such time as there is a new expert before the court, at which time we will, no doubt, be back here again to consider where we go from there.
(Transcript 1 November 2019, p.96 line 46 to p.97 line 3)
Fourthly, in the reasons for judgment, the primary judge confirmed the mother accepted there was no concern about the father’s capacity to properly care for the children (at [126]) and the mother did not contend in the appeal that statement had misconstrued her case.
It follows that the primary judge correctly identified the parties’ competing cases and their proposals (at [7]-[8] and [69]-[73]).
Having identified the principal issue in dispute and the competing proposals to resolve it, the primary judge moved to the evidence and the law. Her Honour canvassed the uncontroversial history (at [10]-[56]), then accurately referred to both substantive and procedural legal principles (at [57]-[63]), before addressing the evidence by reference to the factors prescribed by s 60CC of the Act which would influence the determination about the suite of orders needed to promote the children’s best interests pending final trial (at [64]-[131]). In a succinct conclusion, the primary judge summarised the outcome (at [132]-[138]).
The primary judge’s essential conclusions were stated as follows:
132.It is extremely unfortunate for these children that circumstances have arisen whereby they are currently receiving the benefit of only one of their parents being involved in their care. Throughout their lives and until about March 2019 they received the benefit of a shared care arrangement in which they were raised by two loving and conscientious parents. However, for reasons which have been explored at length in this judgment from the end of 2013 the mother formed the belief that the father then posed various risks of harm to the children. Although at various stages thereafter the mother has appeared to resile from this position and has managed her anxiety concerning these matters from at least as early as November 2018 and most likely from an earlier stage it would appear that her anxiety has re-emerged. In this context the children have also come to form beliefs about their father and the risks of harm he poses which on the available evidence appear to have no foundation.
133.Although the mother somewhat inconsistently contends in this application that the previous arrangement whereby she and the father had equal shared care of the children is in their best interests I consider it unlikely that this is her genuine position given her actions over at least the last 12 months. I consider it likely that if the previous arrangement were reinstated it would only be a short matter of time before the children once again began forming and expressing false beliefs about their father and it would be almost inevitable that the relationships between the children and their father will have completely broken down by the time these proceedings are determined to finality.
Ground 3
This ground of appeal (in part) contends the primary judge erred in making numerous factual findings which underpin four other findings (which are the subject of separate challenge under Ground 1). The alleged basal factual errors relate to:
a)the circumstances surrounding the fracture of the middle child’s arm and the mother’s knowledge of it (Ground 3(i)(a));
b)the mother’s failure to assure the children their beliefs regarding the father were false (Ground 3(i)(b));
c)the mother’s failure to “reality test” the middle child’s beliefs and whether that afforded any proper basis for inferring she caused the middle child to hold false beliefs (Ground 3(i)(c));
d)the mother’s failure to persuade the children their belief about the father tracking them electronically and administering electric shocks to them was false and whether that was a proper basis to infer she was causing the children to hold false beliefs (Ground 3(i)(d)); and
e)whether the mother enrolled the children in a counselling course because she formed the view they had been abused or traumatised by the father (Ground 3(ii)(a) and Ground 3(ii)(c)), when she alleged the father had consented to their enrolment (Ground 3(ii)(b)).
The remainder of this ground of appeal contended that, for various different reasons, the primary judge erred by relying upon the evidence-in-chief of the single expert retained by the parties in the prior proceedings, concluded between them by the orders made in August 2015 (Ground 3(iii)).
Ground 3(i)(a)
It was common ground the middle child fractured his arm in February 2016.
The father contended the fracture was caused by the child falling from some playground equipment while spending time with him (at [23] and [84]). The father, who is a medical professional, first thought it was a soft tissue injury, but an x-ray taken a week later showed it to be a wrist fracture (at [84]). The mother also had the child’s arm x-rayed at that time, when alerted by the father (at [85]).
When the mother had the child’s arm x-rayed, she told the hospital staff the middle child reported to her that “dad pulled my arm and it hurt” when the father locked him in a bathroom (at [85]). The incident was reported by someone to the child welfare authority and it was investigated in March 2016. The father denied the version of events related by the mother to hospital staff and the complaint against him was unsubstantiated (at [86]).
The father deposed that about a year later, in April 2017, the middle child questioned him about the circumstances surrounding his arm fracture. The child told the father that the mother informed him his arm was broken by the father throwing him into a wall. The father wrote to the mother asking her to disabuse the child of his misconception, but she replied telling the father she had no idea what he was talking about (at [87]).
In another investigation by the child welfare authority in March 2019, the middle child alleged his arm was fractured two (not three) years before when the father threw him into the bathroom (at [33] and [93]), which was a repetition of the story the mother attributed to the child in February/March 2016. The incident was freshly investigated by the child welfare authority in 2019, at which time medical records revealed the middle child gave wildly different accounts of the incident and his injury (at [94] and [95]). One of his accounts aligned with the father’s innocuous explanation of his fall from playground equipment and medical staff were satisfied the nature of the child’s injury was consistent with that account, but inconsistent with the account touted by the mother of the child having his arm wrenched or him striking it on the bathroom sink (at [96]). Although it was not mentioned in the reasons for judgment, senior counsel for the father drew our attention to the child welfare authority’s records (part of Exhibit 7) which note the mother actually “believes” the middle child fractured his arm by being thrown into the bathroom by the father.
In the hearing before the primary judge, the mother deposed it was only after having read the documents produced to the Court on subpoena that she became aware the middle child continues to believe the father was responsible for breaking his arm (at [97]). The primary judge concluded it would be a false belief, which the mother now accepts, regardless of what she might have earlier told the child welfare authority about believing the child’s false report.
The primary judge’s findings were consistent with the evidence and were therefore open (Gronow v Gronow (1979) 144 CLR 513 (“Gronow”) at 519-520). There was no error of fact.
Accepting the mother’s evidence at its highest, at the very least, these facts must follow: at times after the middle child’s arm was fractured in February 2016, the mother was aware the child alleged he sustained the fracture in an assault by the father; she knew the father denied it and maintained the child was hurt accidentally; she now disbelieves the middle child’s version of the event, because she did not allege in these proceedings that the father assaulted him and she accepts the father poses no risk of harm to the children; nevertheless, the mother knew the middle child still adhered to the false belief his arm was fractured when assaulted by the father and she did not disabuse him of the false belief, even though asked to do so by the father in 2017.
Ground 3(i)(d)
Even though the children barely saw the father after March 2019, critical notifications were still made against him to the child welfare authority in June 2019 (at [42] and [92]). The notifications included allegations that the father used an electronic device attached to the children’s necks “to track their movements and electrocute them when they were naughty” (at [44]). The children retained what was said to be a piece of the electrical device and it was shown to the police, but it was found to be only the internal casing of a child’s plastic wristwatch. The police were satisfied it was not a tracking device and was incapable of administering electric shocks. The complaint against the father was not substantiated and the child welfare authority concluded his home was safe for the children (at [44]-[45]).
Independent police records revealed the mother was aware of the children’s allegation of the father tracking them from as early as Easter 2019, so the primary judge concluded the mother knew of the children’s allegations concerning the electronic device for several months before the notification was made to the child welfare authority in June 2019 (at [92] and [111]).
The primary judge’s findings were consistent with the evidence and were therefore open. There was no error of fact.
The primary judge expressed concern about how the mother had abstained from challenging the children about the validity of their bizarre claims of being electronically tracked and shocked and had not reassured them it was untrue. Another person reported those claims to the child welfare authority in June 2019, which investigation then involved the children (at [111]). While the mother did not admit she was aware of the allegations before she read the documents produced on subpoena (at some indistinct time ahead of the hearing), the primary judge relied upon the independent police record to find the mother knew of the allegations from Easter 2019. Although not the subject of comment by the primary judge, the mother must have been aware of the investigation in June 2019, as the children could not have been formally interviewed by the authorities without her knowledge. The mother must then also have known the children’s allegations in that regard were found to be spurious – some five months prior to the hearing before the primary judge in November 2019.
Grounds 3(i)(b) and 3(i)(c)
The mother submitted the primary judge’s finding of her failure to assure the children that their concerns about the father were ill-founded should not have been made in the absence of the evidence being tested in cross-examination, and furthermore, the finding that she had not reality-tested the children’s beliefs was not a proper basis for inferring she caused the children to hold false beliefs.
The findings of the primary judge which are the subject of these two challenges were expressed in the following terms:
98.It seems likely to me on the undisputed facts that the mother was aware of the emergence of the children’s complaints over the months (and years in the case of the fractured wrist) prior to March 2019 about the father’s alleged conduct and their emerging and developing beliefs that he was dangerous and that they were not safe in his care. It also seems likely that the mother was aware that there was no factual foundation for those beliefs. Further, I accept the submission of the ICL that the mother’s failure to test the reality of the children’s beliefs in this regard is highly relevant.
99.…The mother did not however reassure [the middle] child or challenge the more unusual explanation that he had started to express from around February 2019 of being deliberately injured by the father…
100.The mother also did not test the reality of the particularly bizarre allegations said to have been made by the children to her as early as around April 2019 that the father was tracking and administering shocks to them through a device which has also been subsequently found unsurprisingly to have no foundation in reality.
101.These foregoing matters must be considered in the context of the mother having referred the children at the same time to an agency which was providing services on the basis that the children had been traumatised or abused (implicitly at the hands of the father). I am of the view that when this context is considered real concerns arise about the role of the mother in the children coming to form the view in the first few months of 2019 that the father was dangerous and posed a threat to them.
…
111.Of particular concern in this regard are the allegations of the father connecting an electronic device to the children’s neck for the purpose of monitoring and harming them about which the mother seems to have been aware for some months. Rather than challenge the validity of such a claim or reassure them the mother appears to have encouraged another person to report this allegation. Although further interviews by authorities have only on occasions produced more incriminating statements about the father the authorities have not confirmed that he has perpetrated any physical harm.
(Emphasis added)
Those findings were all available on the evidence before the primary judge.
That the evidence was not tested in cross-examination is not to the point. The findings about the false allegations made against the father, the children’s false belief in them, and the mother’s failure to disabuse them of such false beliefs are all entirely consistent with the mother’s own evidence and independent records.
While the mother might not have actively inculcated the children with the false beliefs, her knowledge that their beliefs were false and her consequent deliberate failure to correct them was directly responsible for the perpetuation of their false beliefs. It was the children’s false beliefs about the danger posed to them by the father which caused their relationships with him to deteriorate and for them to resist spending time with him.
Ground 3(ii)
In November 2018, the mother engaged the children to receive therapy from an organisation which specialised in the provision of counselling to people who have experienced trauma or abuse (at [4], [26] and [88]). She did not consult the father about it, even though the parties held equal shared parental responsibility for the children under the orders made in August 2015. The father was unaware of the children’s enrolment and counselling at that service until April 2019 (at [26] and [36]). Although the mother initially denied the father’s ignorance of the children’s enrolment, the primary judge correctly noted her lawyer eventually conceded there was no evidence to prove the father knew of the children’s engagement with the counselling service any earlier than he admitted. The primary judge also found the documents of the counselling service tendered in evidence “support[ed] his position” (at [89]).
When the mother enrolled the children at the counselling service, she noted on the enrolment form “family violence” as relevant background information for the counsellor and asked that the children be given strategies to “cope with what they have been through” (at [27] and [88]). There could be no doubt the mother was there referring to what the children had “been through” with the father because she deposed the children were attending the counselling service “regarding their experiences at their dad’s” (at [25]).
The primary judge found it intriguing that the mother decided to engage the children with that particular counselling service for those particular reasons, given she did not allege in the litigation the children had suffered any trauma or abuse (at [4]), she did not explain in her evidence-in-chief why such counselling was needed (at [89]), and her counsel informed the primary judge that family violence “was not a relevant matter in the proceedings” (at [129]).
The primary judge ultimately concluded:
90.I am of the view that by November 2018 when the mother first engaged the children with [the trauma counselling service] she had formed the view that they had been abused or traumatised in the care of the father despite there being no evidence of the basis upon which she formed this view.
…
101.These foregoing matters must be considered in the context of the mother having referred the children at the same time to an agency which was providing services on the basis that the children had been traumatised or abused (implicitly at the hands of the father). I am of the view that when this context is considered real concerns arise about the role of the mother in the children coming to form the view in the first few months of 2019 that the father was dangerous and posed a threat to them.
…
136.…The mother unfortunately utilised her decision making power inappropriately in seeking services such as [from the trauma counselling service]…
In our view, although the mother contended to the contrary in this ground of appeal, it was open to the primary judge to so find on the available evidence.
In her Summary of Argument, in an apparent attempt to demonstrate the primary judge’s inconsistency, the mother pointed out how her Honour did not similarly criticise the father’s unilateral decision to seek out counselling for the children, but that was not an analogous situation. As was noted (at [124]), the psychologist selected by the father had particular experience in dealing with children and families involved in high conflict separations and, significantly, the children had just moved to live with the father under the interim orders made in October 2019. The father then had the benefit of an interim order conferring him with sole parental responsibility for the children and he was not obliged to consult the mother about their engagement with that psychologist.
Ground 3(iii)
At the hearing, the parties were invited by the primary judge to identify the evidence upon which they relied. In the affidavit upon which the father relied, he referred to two reports prepared by the single expert in the previous proceedings – the first in January 2014 and the second in September 2014 – and copies of those reports were included within the documents he tendered in evidence without objection by the mother’s lawyer (Exhibit 2).
The mother’s lawyer engaged the primary judge in debate about whether or not the two former single expert reports should later be furnished, as background information, to the new single expert engaged in the current proceedings, but that debate had no bearing on the admissibility of the reports in the interim hearing before her Honour.
The two expert reports were therefore admissible in evidence before the primary judge and the opinions expressed by the former single expert were plainly relevant to the dispute being agitated by the parties for a second time. It was only the weight attributable to the evidence which could be open to debate, given its age and it being untested at trial in August 2015.
The mother first contended the primary judge wrongly relied upon the evidence at all (Ground 3(iii)(a)), which is rejected as being plainly wrong. Once the evidence was properly before the primary judge, her Honour was entitled to use it. The mother’s argument in the appeal could only rationally be confined to the weight afforded it.
The reasons asserted by the mother for the primary judge’s alleged erroneous reliance upon the evidence effectively amounted to this: the opinions of the former single expert expressed in the two reports were stale, they were not tested in cross-examination, the primary judge extrapolated from the stale opinions, and her Honour speculated about what the former single expert might now have said about the mother (Ground 3(iii)(b)-(e)).
Initially, something must be said about the former single expert not being cross-examined. The expert was not cross-examined at trial in 2015 because the parties settled the dispute before he was called as a witness. Nor was he cross-examined before her Honour in 2019 because, as is orthodox, the interim hearing was conducted as an “abridged process” in which the scope of the enquiry was “significantly curtailed” (Goode and Goode (2006) FLC 93-286 at [68]). Rule 5.10 of the Family Law Rules 2004 (Cth) stipulates that, other than in “exceptional circumstances”, no witnesses should be cross-examined in an interim hearing. The mother’s lawyer did not ask the primary judge for permission to cross-examine the former single expert, let alone try and demonstrate there were exceptional circumstances to justify it.
Not only did the mother’s lawyer not ask to cross-examine the single expert, the lawyer said nothing at all to the primary judge of there being any need to depreciate the evidentiary weight attributed to the single expert reports. That failure does not preclude these complaints now being raised in the appeal, because the father is not prejudiced in having to meet the contentions, but the mother’s failure to pursue the issue before the primary judge is an indication of how the complaints made under this ground of appeal are not self-evidently correct.
The primary judge referred to the former single expert’s reports in the reasons for judgment, describing their contents in summary (at [13], [15], [16]) and extracting some parts considered most salient (at [105], [106], [108]). The single expert was “concerned that [the mother] does have significant personality disturbance with dependent features”, but he did not diagnose her sufferance of any specific psychological or psychiatric condition, contrary to the submissions made for the mother in the appeal. In any event, a diagnosis was unimportant. The mother’s conduct and its effect upon the children was the important ingredient of the expert evidence.
In relation to the expert evidence, the primary judge observed:
104.The psychiatrist’s second report prepared nine months later in September 2014 is considered by the father to be concerningly [sic] but remarkably prescient. By the time the psychiatrist had seen the parties in June 2014 for the purposes of the second report the mother had continuing concerns about the welfare of the children in the care of the father.
…
109.Although as previously indicated the opinion of the psychiatrist was not tested in the first proceedings there does appear to be a consistency between the presentation of the mother in June 2014 and the present. Although there is less evidence to suggest she is persistently involving questioning the children herself, for reasons previously discussed she clearly believes that the children have been abused and traumatised as evidenced by her enrolling them in the [trauma counselling] program…
As can be seen, the primary judge was well aware that the former single expert’s opinions had not been tested in cross-examination and, while the opinions were some years old, her Honour found consistency between the mother’s presentation to the single expert in 2014 and her presentation in 2019.
In 2014, the single expert considered the mother’s anxiety about the children’s safety with the father would unwittingly influence the children and eventually impair, if not destroy, their relationships with him. The factual evidence adduced at the hearing in 2019 led the primary judge to find the mother was again anxious about the children’s safety with the father because she believed the children were abused and traumatised by him (at [109]), much the same as the belief she initially held but belatedly purported to abandon in the original litigation concluded in August 2015. The remarkable similarity of those factual circumstances, albeit five years apart, properly enabled the primary judge to compare them and find the mother’s anxiety was liable to have the same effect upon the children as the single expert predicted it would years before. The inference was logical, since the mother was unable to compel or induce the children to spend any time with the father between March and October 2019, even though the August 2015 orders required them to live with him for equal time and that was the regime she proposed be restored in their best interests. There was no error in the primary judge’s approach. Ground 3(iii) is rejected.
Ground 1
This ground of appeal contends the primary judge erred in making four discrete findings, namely:
a)the mother caused the children to form false beliefs that the father could be harmful to them, thereby causing a breakdown in the children’s relationships with the father (Ground 1(i));
b)if the children had any unsupervised contact with the mother, she would cause them harm by causing them to form and express false beliefs about the father, which would bring about an inevitable breakdown in the children’s relationships with the father (Ground 1(ii));
c)the mother used her decision-making power to obtain counselling services for the children which was inappropriate (Ground 1(iii)); and
d)the mother pursued allegations of physical abuse against the father (Ground 1(iv)).
Ground 1(i)
In relation to this sub-ground, the mother submitted in her Summary of Argument:
53.… In effect, Her Honour concluded that the mother was causing the children to believe that their father was a danger to them, and thereby disrupting or destroying their relationship with their father, thus abusing her own children (judgement at [66])…
(As per the original)
In fact, what the primary judge said at [66] was:
66.I understand it to be contended on behalf of the mother that if the children are to continue to live with the father and spend limited or no time with her they will be deprived of the benefit of having a meaningful relationship with her. The father contends that the mother’s proposal (that the suspension of her time and orders for the children to live with him be discharged resulting in the parenting arrangements under the 2015 orders being revived) will cause the children to be deprived from having a meaningful relationship with him.
(Emphasis added)
As can be seen, contrary to the assertion made in the sub-ground, the primary judge made no finding at all in that paragraph of the reasons for judgment. It was only a recitation of the parties’ competing contentions.
Her Honour was conscious of the desirability of avoiding concluded findings of fact on untested but controversial evidence.
During submissions, the primary judge said to the mother’s lawyer:
HER HONOUR: That’s not the father’s case. And you need to understand that what I’m dealing with today is that, of course, being an interim hearing, I cannot make findings of fact. But in accordance with cases such as Dieter and George and AS, and those sorts of matters, what I must make is an assessment of risk.
(Transcript 1 November 2019, p.98 lines 7–10) (Emphasis added)
Her Honour’s observation, as a generalisation, was correct and the mother’s lawyer understandably took no issue with it.
Then, in the reasons for judgment, the primary judge correctly observed:
74.Any factual matters in dispute that supports these contentions cannot of course be resolved at an interim hearing. However, the court may and in some circumstances must have some regard to matters in dispute at interim hearings.
In interim hearings, where the evidence remains untested, disputed facts cannot be the subject of definitive findings, but simply because material facts have been put in issue does not mean the contested evidence must or should be ignored, since such evidence may have a significant bearing upon the determination of orders which promote the children’s best interests (Salah & Salah (2016) FLC 93-713 at [35]-[45]; Eaby & Speelman (2015) FLC 93-654 at [18]-[19]). Despite the limitations which constrain findings at interim hearings, aside from those “couched with great circumspection”, certain provisions within Part VII of the Act direct judges to consider risks which are pertinent to the welfare of children and their carers (for example: ss 60B(1)(b), 60CC(2)(b), 60CC(3)(j), 60CC(3)(k) and 60CG). It would constitute an error of law to ignore the statutory mandate and, correctly, the primary judge did not ignore it.
Naturally, the concept of risk encompasses the possibility of harm, not just the probability of harm (M v M (1988) 166 CLR 69). The primary judge was conscious of the need to evaluate the available evidence to determine whether or not it capably vindicated the submissions made by both the father and the ICL that the mother poses a tangible risk of psychological harm to the children. Her Honour’s finding that the evidence did do so was appropriately circumspect and does not foreclose the issue being revisited at final trial, when the evidence will be properly tested. Her Honour was obliged to resolve the issue at an interlocutory stage, albeit provisionally rather than definitively, because it underpinned the parties’ contest over the children’s residence.
The mother’s further contention in the appeal was that, although the primary judge properly acknowledged the constraints upon the determination of factual disputes in interim hearings, her Honour nonetheless went on to make definitive findings against her.
This contention is rejected. Her Honour’s findings were, as the authorities require, “couched with great circumspection” in the following terms:
79.…Without proceeding to make any findings I am of the view that if the apparent rejection of the father by the children has no foundation and their belief that he is dangerous and unworthy is false, and the mother were found to have influenced the children in adopting this stance and beliefs she would be responsible for perpetrating psychological abuse.
…
101.…I am of the view that when this context is considered real concerns arise about the role of the mother in the children coming to form the view in the first few months of 2019 that the father was dangerous and posed a threat to them.
…
109.Although as previously indicated the opinion of the psychiatrist was not tested in the first proceedings there does appear to be a consistency between the presentation of the mother in June 2014 and the present…
110.…The mother continues to be increasingly anxious about the children and their safety in the care of the father and has not tested the children on the reality of their allegations which appear to have escalated and become more bizarre.
…
113.For all of the foregoing reasons although I do not make any positive findings about matters in dispute I have real concerns about the likelihood that the mother has played a part in bringing about the harmful events, that is the children’s belief that their father is dangerous and that they are unsafe in his care. It may be the case that the mother has brought about this result unwittingly due to her anxiety which is not effectively controlled but this does not reduce the magnitude of my concern. I consider that such circumstances amount to psychological abuse which is likely to have caused the children serious harm as it seems likely to have impacted detrimentally on their relationship with their father and if permitted to continue will have in the words of the psychiatrist “a dire outcome for the children”.
…
133.Although the mother somewhat inconsistently contends in this application that the previous arrangement whereby she and the father had equal shared care of the children is in their best interests I consider it unlikely that this is her genuine position given her actions over at least the last 12 months. I consider it likely that if the previous arrangement were reinstated it would only be a short matter of time before the children once again began forming and expressing false beliefs about their father and it would be almost inevitable that the relationships between the children and their father will have completely broken down by the time these proceedings are determined to finality.
(Emphasis added)
The appealed orders, providing for the children to live with the father, for him to have sole parental responsibility for them, and for them to only spend supervised time with the mother, were premised on the provisional finding about the risk of harm posed by the mother. There was no error.
Ground 1(ii)
This sub-ground is rejected because it misstates the effect of the primary judge’s findings. In oral submissions, it was contended the sub-ground nonetheless captures the flavour of the primary judge’s finding, but we reject that also.
Her Honour said (at [133]) it was “likely” the children would continue in the same pattern of resistance to the father if they live with the parties for equal time and then, by the time of final trial, it would be “almost inevitable” their relationships with the father would be broken down completely.
Her Honour did not say (as alleged in this sub-ground) that, if the children spend unsupervised time with the mother, she “would” cause them harm by enabling them to form and express false beliefs about the father, which “would” bring about an “inevitable” breakdown of their relationships with him.
As the primary judge was at pains to express, both during the hearing and in the reasons for judgment, a finding was required on the available evidence about the risk of that eventuality – not the probability or certainty of it.
The mother asserted in her Summary of Argument:
54.…Whether the determination of Her Honour is expressed as a finding on the balance of probabilities that she engaged in the relevant conduct, or a mere consideration that there was a significant or substantial risk that she may have done so, the factual incidents [referred to in Ground 3] are not capable of sustaining the findings.
(As per the original)
However, the uncontentious facts spoke for themselves. The mother’s case was that the children’s best interests required them to live with the father for equal time but, paradoxically, she had been unable to ensure they spent any time at all with him for the last six months before they were moved to live with him instead. As the primary judge correctly recorded (at [80]), despite the mother’s asserted best efforts to support the children’s relationships with the father, she could not overcome their resistance to him and was simply unable to maintain the “equal time” residential regime demanded by the August 2015 orders. The mother’s only explanation for the children’s adverse attitude towards the father was that they were uneasy with the equal time regime, in which event she had no answer to the question of how she could successfully restore the regime, as she proposed. The children entertained false beliefs that the father posed a danger to them. The mother knew the children’s beliefs about the father were false but, despite her awareness, did nothing to disabuse them of such false beliefs. Her anxiety about the children being unsafe in the father’s care was strikingly similar to the anxiety she experienced during the first proceedings between the parties, at which time a single expert opined her anxiety would destroy or impair their relationships with the father.
In the face of such facts it was open for the primary judge to conclude that, if orders were made to restore the “equal time” regime, it was likely the children’s pattern of resistance to the father would resume and, with the passage of time, it was then almost inevitable their relationships with him would completely break down. Plainly, the risk of the children’s alienation from the father was high, regardless of its cause.
The mother’s submissions in support of this sub-ground of appeal expanded to include criticism of the primary judge for making orders that were “far too drastic” for the risk found to be posed by the mother, though there are several sound answers to those submissions.
First and foremost, they went beyond the ambit of Ground 1, which was confined to an allegation of erroneous findings made by the primary judge. The father rightfully contended the mother should be confined to the grounds of appeal she pleaded, particularly since she amended them so close to the appeal hearing.
In any event, the primary judge expressly did consider how the orders proposed by both parties ran the risk of compromising the valuable relationships enjoyed by the children with one party or the other (at [66] and [69]) and found the ICL’s proposal for the children to live with the father and spend supervised time with the mother balanced the competing considerations best (at [70]). Given the children were removed from the mother’s care about a month before, the primary judge was conscious it was “important for [them] to reconnect with [her]” (at [123]). Her Honour acknowledged some practical difficulties, but concluded it was still necessary for the children to spend time with the mother under professionally supervised conditions (at [134]-[135]).
Significantly, despite the complaint in the appeal, no less drastic orders were put to the primary judge as viable alternatives. In oral submissions before the primary judge, the mother’s counsel contended there was “no basis” for finding the mother posed any risk to the children. In response to that submission, her Honour outlined some facts upon which the father and ICL relied to make out the alleged risk of harm, told counsel he needed to “grapple with the father’s case”, and expressly invited a reasoned response. It was not forthcoming. The primary judge asked the mother’s counsel whether the mother would avail herself of orders providing for the children to spend supervised time with her and, after some prevarication, counsel confirmed the mother would.
When pressed to suggest some alternative orders the primary judge should have considered to make good the submission, the only suggestion made by the mother’s counsel in the appeal was an order which compelled the parties and children to attend “family therapy”. An order to that effect could perhaps in time, if successfully implemented, ameliorate the disharmony within the family, but it had no prospect of quelling the immediate dispute before the primary judge about with whom the children should live and how they would spend time and communicate with the non-residential parent.
Ground 1(iii)
This sub-ground of appeal comprised a complaint about the finding made by the primary judge in relation to the mother’s unilateral enrolment of the children for counselling in November 2018.
The precise finding which was the subject of challenge was expressed in a single sentence thus:
136.…The mother unfortunately utilised her decision making power inappropriately in seeking services such as [those at the trauma counselling service]…
That finding about the children’s enrolment at that counselling service being “inappropriate” flowed from the preceding finding expressed in these terms:
90.I am of the view that by November 2018 when the mother first engaged the children with [the trauma counselling service] she had formed the view that they had been abused or traumatised in the care of the father despite there being no evidence of the basis upon which she formed this view.
In our view, those findings were well open to the primary judge.
Even though the children were experiencing emotional upheaval in late 2018 and early 2019, which both parties were satisfied warranted therapy, the children had already been referred to their school counsellor. The mother gave no explanation for why it was additionally necessary for her to enrol the children at the service which specialised in the provision of therapy for cases of trauma and abuse, without consulting or informing the father.
The inappropriateness of the mother’s enrolment of the children with that counselling service was evident on two levels: first, the children should not have been enrolled by the mother without her having consulted the father in the exercise of their equal shared parental responsibility for the children, as the Act required (s 65DAC); and secondly, the children were already receiving therapy and there was no evidence of their need for any more, particularly therapy pitched at trauma and abuse, which on the evidence adduced before the primary judge they had not suffered.
Ground 1(iv)
The mother contended there was “no evidential basis” for the finding of the primary judge expressed in these terms:
110.Despite accepting in the first proceedings that there was no evidence to suggest that the father poses an unacceptable risk of harm to the children further allegations, in particular of physical abuse have been pursued by the mother…
We reject the proposition that there was no evidentiary foundation at all for that observation.
True it is, the mother did not make any specific allegation in her affidavit that the father had abused the children, but she did make references to the children complaining of being hurt at the father’s home (at [25] and [81]). The complaint made about the father to the child welfare authority in March 2019, albeit by someone other than the mother, asserted the children were at serious risk of harm by reason of the father’s use of “excessive discipline” (at [31]). While it may be accepted the mother only learned of that complaint afterwards (at [32]), she was told in April 2019 that the allegations of physical abuse against the father were not substantiated (at [35]) and she learned the full content of the unsubstantiated complaint when she read the documents produced to the Court on subpoena by the authority in advance of the hearing. At the very least, she knew at least one of the allegations against the father – concerning the middle child’s arm fracture – was false (at [33]), but did not disavow the false allegation during the hearing before her Honour. The mother also knew by Easter 2019 that the children’s allegations of being electronically tracked and shocked by the father were false, but she did not disavow those false allegations either.
While it may have been infelicitous for the primary judge to have said allegations of physical abuse against the father were “pursued” by the mother, because she did not actively promote the allegations in the litigation, it could hardly be doubted she was content for the false allegations, which she knew to be false, to be pursued against him during 2019 with the police and the child welfare authority. She knew of the allegations and, at the very least, acquiesced to their investigation by the authorities, including by interview of the children.
It will be remembered the mother informed the counselling service at which she enrolled the children in November 2018 that “family violence” had been an incident of the children’s lives and they needed strategies to help cope with their experiences. In keeping with the theme of her perception of the father’s abusive domestic conduct, the mother made “oblique references to family violence in her affidavit” (at [129]). Although her lawyer eventually told the primary judge it was not a relevant matter in the proceedings, the advertence to it in the mother’s evidence amounted to its agitation as an issue, even if only indirectly.
Ground 2
This ground of appeal contended that, having reached the conclusions referred to in Ground 1, the primary judge erred by stating them as findings (Ground 2(i)) or in the form of determinations (Ground 2(ii)).
As can be seen, these two sub-grounds add nothing to Ground 1 and can be immediately rejected. If factual findings are open on the available evidence, there was no impediment to them being described as such. As for the implicit, but unexpressed, contention that the primary judge was forbidden from making findings because the hearing was only interlocutory in nature, we reject a submission in such unconditional terms and repeat what has been said already about findings concerning the risk of harm in interim hearings.
This ground of appeal furthermore contended that the “factual conclusions” reached by the primary judge were “without any appropriate evidential support” (Ground 2(v)) and were made without having “regard to the whole of the evidence” (Ground 2(iii)), such that if the primary judge had considered the whole of the evidence then the findings “would not be likely or probable inferences” drawn from it (Ground 2(iv)).
Although these sub-grounds flirt with the notions of the primary judge’s failure to take into account material evidence, in reality, they are no more than alternate ways of alleging that the four findings made by the primary judge, which are challenged under Ground 1, were against the weight of evidence. For the reasons already given, the findings made by the primary judge were open on the evidence. It does not matter that another judge, seized of the same evidence, might have reached different conclusions (Gronow at 519-520). These sub-grounds are also rejected.
Conclusion and costs
The appeal is dismissed for lack of merit.
In the event of the appeal’s dismissal, the father and the ICL both made costs applications against the mother, which she foreshadowed resisting on the basis of her limited financial circumstances. The father and the ICL were not prepared to accept any submission about the mother’s financial incapacity without evidence to prove it, so the parties and the ICL were content for us to reserve and decide the costs applications in chambers on the basis of filed evidence and written submissions. Procedural orders are made to accommodate that.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Kent & Austin JJ) delivered on 23 March 2020.
Associate:
Date: 23 March 2020
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