Clanton & Lachman (No 2)
[2022] FedCFamC1A 165
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Clanton & Lachman (No 2) [2022] FedCFamC1A 165
Appeal from: Clanton & Lachman [2022] FedCFamC2F 401 Appeal number(s): NAA 67 of 2022 File number(s): SYC 6156 of 2017 Judgment of: ALDRIDGE J Date of judgment: 11 October 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the primary judge made parenting orders which were amended via the slip rule a number of times – Where the orders reflect the mother’s case at trial that the father was violent and he posed a risk of harm to the children – Where the amended orders required the father to complete an anger management course – Where the father left the courtroom and did not participate in the appeal following his oral application for an adjournment being refused – Where the primary judge erred because it was not possible to discern the pathway by which the orders were made – Appeal allowed – Relevant orders set aside – The issue the time the children will spend with the father is remitted for rehearing before a different judge – Costs certificates granted to the appellant for the appeal and the rehearing. Legislation: Family Law Act 1975 (Cth) ss 65D, 67ZC, 68B, 68P, 114
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13
Federal Proceedings (Costs) Act 1981 (Cth)
Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Boensch v Pascoe (2019) 375 ALR 15; [2019] HCA 49
Clanton & Lachman [2022] FedCFamC1A 155
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jacks & Samson (2008) FLC 93-387; [2008] FamCAFC 173
L v T (1999) FLC 92-875; [1999] FamCA 1699
Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Number of paragraphs: 56 Date of hearing: 14 September 2022 Place: Sydney Counsel for the Applicant: Mr Hill (Direct brief) Counsel for the Respondent: Litigant in person ORDERS
NAA 67 of 2022
SYC 6156 of 2017FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS CLANTON
Appellant
AND: MR LACHMAN
Respondent
order made by:
ALDRIDGE J
DATE OF ORDER:
11 october 2022
THE COURT ORDERED ON 22 SEPTEMBER 2022 THAT:
1.The respondent’s oral application for an adjournment is refused.
THE COURT FURTHER ORDERS THAT:
1.The appeal is allowed.
2.Orders 2, 4, 6 and 12 made on 4 April 2022 as amended on 7 April 2022, 27 May 2022 and 3 June 2022 are set aside.
3.The further issues as to parental responsibility and the time the children are to spend with the father, if any, are remitted to the Federal Circuit and Family Court of Australia (Division 2) for rehearing before a judge other than the primary judge.
4.The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
5.The Court grants to the appellant a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant
each of the partiesin respect of the costs incurred by her in relation to the new trial ordered.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Clanton & Lachman (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
Introduction
This is an appeal against parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 4 April 2022.
The primary judge originally made orders that the parties’ two children, born in 2010 and 2012, live with Ms Clanton (“the mother”) who was to have sole parental responsibility as to matters relating to health and education. Otherwise, the parties were to have shared parental responsibility. The orders immediately provided for the children to have unsupervised time with Mr Lachman (“the father”) for eight hours each Saturday, progressing to overnight time one night per week for four weeks, and thereafter from after school on Friday to the start of school on Monday, as well as half of the school holidays.
These orders did not accurately reflect the intention of the primary judge as expressed in his reasons. The orders were amended under r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) by the primary judge and by another judge of the Court on 7 April 2022, 27 May 2022 and 3 June 2022.
Pursuant to the amendments, as finally made, as and from the children’s time with the father to be spent on the weekend of 18 and 19 June 2022, the time the children were to spend with the father was conditional upon him having done all things necessary to enrol in an anger management course through J Service. Thus Order 4(i) and 4(j) provided:
4. That the children spend time with their father as follows:
…
(i) As and from the children’s time with their Father due on the weekend on 4 and 5 June 2022 the weekend on 18 and 19 June 2022, the children spending time with their Father pursuant to this order is conditional upon the Father having done all things necessary to enrol in and anger management course through F Service J Service. Further, this order for the children to spend time with their Father in further conditional upon the Father undergoing such anger management course and completing that course within the time required under the course structure, and in the event that the Father fails to so enrol, then this order is suspended until such time as he has enrolled, and in the event of the Father failing to undergo and complete the course within the time required under the course, this order is suspended until the Father completes such course. For the purpose of this order, the Father must provide to the Mother proof of his enrolment prior to 4 June 2022 prior to 20 June 2020, including information from F Service J Service as to the duration for the course, and must provide to the Mother proof of his completion of the course within five (5) days of such completion.
(j) It is a further condition of the child Y spending time with his Father that the Father comply with all recommendations and medical requirements as recommended by Y’s medical professionals and in relation to the administration of all medications either prescribed or recommended for treatment of Y by any of Y’s health professionals.
(As per the original)
It has to be said at the outset, that the form of Order 4(i) is confusing and it is difficult to work out precisely what it means. I shall return to that order shortly.
These orders reflected the thrust of the mother’s case, which was that the father was violent and that he posed a risk of harm to the children. The mother proposed that such a risk be ameliorated by an order that the father not spend any time with the children until he had undertaken a mental health assessment by named practitioners to “assess whether the father has cognitive learning difficulties or a personality disorder that may impact upon his parenting ability”, that he do all things necessary to comply with all treatment recommendations made in the said assessments and commence any proposed treatment within 28 days of the date of assessment (at [21]).
The father did not participate in the appeal. He did not file a Summary of Argument. He attended the hearing for the purpose of making an oral application for its adjournment, which was refused for reasons given at the time (Clanton & Lachman [2022] FedCFamC1A 155).
Immediately on those reasons being given, the father left the courtroom and did not return.
That being said, it is still necessary for the mother to persuade the Court that the primary judge made an appealable error.
Background
Before turning to the grounds of appeal, it is helpful to set out his Honour’s findings as to the father’s violent behaviour, which are necessary in order to understand the grounds.
In 2007, prior to the parties commencing cohabitation, the father stomped on the mother’s hands and fingers causing injury and bruising.
In April or May 2009, the father broke a bag belonging to the mother, wrapped a t-shirt around her neck and pulled tight, restricting her from breathing consistently. It took the mother two minutes to break free from the father’s grasp. As a result of that assault, the police took the father to the psychiatric ward at Z Hospital and a Provisional Apprehended Domestic Violence Order was taken out by them for the protection of the mother. That order ended when the mother ultimately asked the police not to pursue a final Apprehended Domestic Violence Order.
On 11 May 2012, the father pushed the mother into some surround sound speakers causing her to fall. He then stomped on her feet, hands and chest, bit through the landline telephone cord and hit the mother on her head with a closed fist causing her to fall against a wall and then onto the floor on her back. The father then took one of the children out of her bed, which required the mother to grab the child from the father. The father then left the home, but returned shortly after and smashed the maternal grandmother’s mobile phone. A Provisional Apprehended Domestic Violence Order for the protection of the mother was made by the police. On 15 May 2012, the Suburb E Local Court made a final Apprehended Domestic Violence Order for the period of one year for the protection of the mother. The father was also placed on a good behaviour bond, which as the primary judge rightly observed, meant that the father must have been convicted of an assault. The father was required to complete a 24 week domestic violence program in Queensland.
The father completed his 24 week domestic violence course in 2013, but as the primary judge found at [64], he did not learn how to regulate his conduct.
On 10 August 2017, the father attended the mother’s home and demanded to see the children. The father was asked to leave. The father then went to the rear of the property and opened the kitchen window, removed the flyscreen, lifted the blinds and climbed in through the window. The father then walked down the hallway to the children’s bedroom. After this, he then left the house through the front door.
On 12 August 2017, the police issued another Provisional Apprehended Domestic Violence Order against the father for the protection of the mother, which was made final by the Suburb E Local Court on 19 December 2017 for a period of one year.
On 29 November 2019, the mother and the children were at the maternal grandparent’s home in Suburb C. The father arrived and demanded that the children be given into his care. The mother locked the doors. The father then began banging on a window with a key and the mother informed him that she would call the police is he persisted, which he did. The father climbed over the side gate of the property, removed the flyscreen from the bathroom window, put his head through and yelled “[g]ive me my fucking children” (at [77]). The father was later convicted of intentionally or recklessly destroying property at the Suburb E Local Court on 17 August 2020.
This led to the following findings:
269.I do, however, find that there is sufficient evidence to justify a finding that the father still has difficulties with his emotional regulation and particularly in relation to anger management, and that there is sufficient possibility of the children being affected by the father’s problems in that regard, as time goes by. This, in line with the issues raised by [counsel for the mother] with [the Family Consultant] during cross-examination, goes to circumstances where, in the future, the children may disagree with their father, or fail to follow his directions in some manner, leading to what was phrased in that cross-examination as “a potential problem”.
270.I consider that such risk is unacceptable, but can be mitigated and dealt with appropriately by a requirement that, as a condition of spending time with the children, the father engage in, undergo and complete an anger management course through F Service – a course that he was ordered to undergo and complete by Judge Henderson as far back as May 2018 but with which he failed to comply.
271.Accordingly, I find that other than the father’s propensity to anger just discussed, appropriately mitigated by an order of the nature I have foreshadowed, there is no unacceptable risk to the children in spending time with their father on an unsupervised basis and, after a suitable introductory period of daytime, on an overnight basis.
The Appeal
Counsel for the mother concentrated on just three grounds of appeal in the course of his oral submissions, and I shall do the same, dealing with them in the same order.
Did the primary judge err in failing to consider whether there were unique circumstances that justified a psychiatric assessment of the father before time with the children started? (Ground 7)
I have reworded the terms of this ground somewhat to take into account the oral submissions. Counsel for the mother accepted that the order the mother sought for psychiatric assessment of the father was a “freestanding” or “stand-alone” order as identified in L v T (1999) FLC 92-875 (“L v T”). There, the trial judge had made an order that “the wife attend upon a psychiatrist for assessment of her present psychiatric state and thereafter abide by such therapy program recommended by the psychiatrist” (at [2]). The Full Court found that such an order was not authorised by any of ss 65D(1), 67ZC, 68B or 114 of the Family Law Act 1975 (Cth) (“the Act”), as they then stood. The Full Court said:
57.… It would not be, in our view, a proper exercise of the “welfare” power for a court to place limits on a parent’s conduct, unless it could be demonstrated that those limits are necessary for the welfare of the child. Even then, careful consideration would need to be given to the right of the parent to conduct their life as they see fit.
…
60.Had the ongoing psychiatric treatment been imposed as a condition of contact, then, in our view, on the evidence available to her Honour, such an order could well have been upheld. However, the form of the order leaves it free standing, and in our view it does not comfortably fit within any of the heads of power that we have identified. …
The Full Court returned to the above question in Jacks & Samson (2008) FLC 93-387 (“Jacks”). There, the order required the mother to undertake individual psychotherapy treatment as soon practicable after the date of the orders. This led the Full Court to describe the order as:
212. … an order which compels the mother to undergo medical treatment which Dr M considered could require therapy over an extensive period of time, at her cost. On its face, it has no direct nexus to “any other aspect of the care, welfare and development” of the children, and is a “stand alone” order as was the order in L & T.
Nonetheless, the Court found that because the mother had given sworn evidence that she would attend for psychiatric treatment “the unique circumstances of this case were distinguishable from those pertaining in L & T ” (at [226]). Thus, s 67ZC empowered the order.
This issue was the subject of consideration by the Full Court in Oberlin & Infeld (2021) FLC 94-017. There the order in question was an order requiring the mother to undertake counselling and treatment from a suitably qualified professional. The Court found that that order was a “self-standing order” untethered from any particular parenting order and therefore the only conceivable source of power for it could be s 67ZC. The Full Court referred to Jacks and said:
52.We endorse the serious reservations expressed there by the Full Court as to how self-standing orders directing a party to accept therapeutic treatment are not usually made conformably with s 67ZC of the Act. As the Full Court earlier observed in Jacks & Samson (at [226]), that would take “unique circumstances”, which we are satisfied are not present here. …
After referring to these authorities and noting that a stand-alone order could be made in unique circumstances (at [241]), the primary judge said:
242.Is the order proposed by the mother in relation to the father undertaking mental health assessment and following recommendations of treatments a “stand alone” order or is it a condition of him spending time with the children by requiring compliance with that order before the parenting orders come into effect?
The mother submits that in these paragraphs the primary judge correctly identified that the stand-alone order for therapeutic treatment could be made under s 67ZC if there were unique circumstances and that his Honour erred by failing to undertake such a consideration, and rather, proceeded only on the basis of whether such an order could properly be made as a parenting order as set out at [243].
As close as his Honour came to such a consideration of unique circumstances occurred in the following paragraphs:
265.When I take the whole of the mother’s evidence in relation to family violence and behaviours by the father that caused her to have concerns about his spending time with the children into account, and at its highest, I find that there is not a risk to the children that they will be exposed to behaviours of the kind asserted by the mother to present unacceptable risk to them.
266.I am not satisfied on the evidence that there is any necessity to make the orders sought by the mother that, as a precondition to the father spending any time with the children, he undergo a mental health assessment and receive any consequent recommended treatment. …, as counsel for the mother, strove mightily to present to the Court a case where the Court should find that the father represented an unacceptable risk to the children due to the father’s personality and mental health issues. [Counsel for the mother] further submitted there was sufficient possibility that the father may represent such a risk. It was submitted this gave rise to the need to ascertain the realities of any such personality or mental health issues affecting the father through assessment.
267.These submissions were made without the sort of expert evidence that would be required to establish the fact of such risk, and without evidence of behaviours and events that would give rise to the possibility of such risk.
268.I find on the whole of the evidence that there is no sufficient basis to justify the making of the order sought by the mother as a precondition to the father’s spending time with the children.
Immediately after this, his Honour proceeded to consider the F Service anger management course order at [269]–[271], which I have already quoted above at [18]. I consider here, that in these paragraphs, his Honour was contrasting the making of a stand-alone order at [265]–[268] and making an order for the father’s attendance at an anger management course as part of the parenting orders at [269] and [270]. Thus, the finding in [268] is tantamount to a finding that his Honour was not satisfied that there were unique circumstances that justified the making of a stand-alone order.
I should add, that the content of “unique circumstances” sufficient to justify a stand-alone order under s 67ZC of the Act has not been explored in decided cases. The exceptional circumstance identified in Jacks was that the mother had given sworn evidence that she would undertake the ordered treatment. That is not the case here, which is very much closer to the L v T end of the spectrum. There is no reason at all to read down the deliberate use of the word “unique”.
This ground, therefore, does not succeed.
Did the primary judge fail to give adequate reasons for failing to make an order under s 68P of the Act? (Ground 3)
Section 68P applies where a court makes a parenting order that provides for a child to spend time with a person and that order is inconsistent with an existing family violence order. That was the case before the primary judge.
Section 68P(2) then provides that the court must take a number of steps, including, explaining or arranging for someone else to explain the order to a person protected by the family violence order (s 68P(2)(c)(iii)). In other words, in this matter, the children.
Section 68P(2)(A) provides that the above section does not apply to a child if the court is satisfied that it is in the child’s best interest not to receive such an explanation.
Such an order was sought by the mother, but was opposed by the father. As to this, his Honour said:
319.In the circumstances of this matter, I do find that I am satisfied that it is in the children’s best interests that they not receive those explanations. I am satisfied of this on the basis of the matters I have considered under section 60CC.
Under consideration of risk of harm, the primary judge had said:
262.Though the father has never been physically violent to the children, his actions on 10 August 2017 had the effect of making them afraid. A tiny bit of consideration by the father of the likely consequence of his actions on that day by way of effect on the children would have led him to realise, if he has any ability for such insight at all, that it could not have done other than cause the children to be upset and scared by the event.
263.Similarly, in light of my finding that I accept the mother’s evidence in relation to that event over the varying picture presented by the father in his evidence, the father’s actions on 29 November 2019 can only have had the same effect upon the children. This is in circumstances where prior to that occurring, the father had available to him and on his evidence, had read and considered the Family Report released to him on 14 October 2019 which made it explicit for him, in the words of the children themselves, that such event made X scared and Y frightened.
264.Nevertheless, the incidents of 10 August 2017 and 29 November 2019 must be seen in light of the reality of what were the surrounding circumstances – the father was, in a wholly inappropriate manner and to the detriment of the children, taking the action he did in an attempt to see and spend time with his children in August 2017 and November 2019.
His Honour took into account the wishes of the children to see their father, as expressed to the Family Consultant (set out at [277]–[282]). However, because of their age and because the Family Report interviews were conducted before the events of 29 November 2019, they were not given great weight as to whether the Court should follow them, but were given weight as an indication as to the nature of their relationship with the father.
I am otherwise unable to find any other comments by his Honour that bear on the question.
The obligation to give adequate reasons is well known (Bennett and Bennett (1991) FLC 92-191; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110). A party is entitled to know how their case has been disposed of. Whilst the subject matter of this ground is not of primary importance in the proceedings as a whole, nonetheless, in circumstances where the children were found to be scared by the incident on 29 November 2019, scared by the fact that they might be taken away and where nobody had explored their views as to the incident, it follows that some reasons, however brief, should have been given. It is not possible to discern from his Honour’s reasons why he found it was not in the best interests of the children to have an explanation given to them as to why they would be seeing their father, when there was an Apprehended Domestic Violence Order in place for their protection.
This ground therefore succeeds. However, that success would by no means justify the revisiting of all of the parenting orders. That requires, simply, a reconsideration of that particular aspect of the matter.
Did the primary judge err in finding that the father’s risk of harm to the children was mitigated by undergoing by an anger management course? (Ground 4)
It is convenient to restate two relevant paragraphs of his Honour’s reasons:
269.I do, however, find that there is sufficient evidence to justify a finding that the father still has difficulties with his emotional regulation and particularly in relation to anger management, and that there is sufficient possibility of the children being affected by the father’s problems in that regard, as time goes by. This, in line with the issues raised by [counsel for the mother] with [the Family Consultant] cross-examination, goes to circumstances where, in the future, the children may disagree with their father, or fail to follow his directions in some manner, leading to what was phrased in that cross-examination as “a potential problem”.
270.I consider that such risk is unacceptable, but can be mitigated and dealt with appropriately by a requirement that, as a condition of spending time with the children, the father engage in, undergo and complete an anger management course through F Service – a course that he was ordered to undergo and complete by Judge Henderson as far back as May 2018 but with which he failed to comply.
There was no reference in the reasons to the content of the F Service anger management course, or as to how its completion would ameliorate the otherwise unacceptable risk of the father being unable to regulate his emotions and anger.
The issue of a neuropsychological assessment had been raised with the Family Consultant who prepared the Family Report, who expressed the view that it was not unreasonable for the mother to request such an assessment before the children spent time with the father, but was “not so sure [it was] warranted” (at [192]).
The primary judge also referred to the following evidence of the Family Consultant:
176. [The Family Consultant] made the following observations:
There is considered to be the possibility of further family violence being perpetrated by [the father] against [the mother] in the event that he does not obtain a favourable parenting arrangement for the children. This is because (the father) presented as a “reactive perpetrator”. Where active perpetrators tend to possess qualities of poor communication, are easily frustrated, have difficulty coping with rejection and when they feel under attack, and as such, they have poor impulse control, which can escalate to violence. This assessment, however, suggests that the level of potential risk (of physical violence) is considered to be low.
177.When the father was then asked in relation to family violence, “did it used to be you?” he responded, “prior to 2012, yes.”. He was then asked, “What changed?” And he replied, “The domestic violence course changed me.” He was then confronted with his behaviours on 10 August 2017 and 29 November 2019 and it was put to him that they were demonstrations of a person with the traits of a “reactive perpetrator” as described by [the Family Consultant] in the Family Report, to which the father replied “I would do anything to see my kids.”
178.When asked to expand on what she meant by “reactive perpetrator” in the Family Report during cross-examination by [counsel for the mother], [the Family Consultant] replied that a reactive perpetrator was someone who has difficulty with emotional regulation, and that their reactions in relation to family violence are usually reactions to a perceived threat or through experiencing feelings of anger or rejection, causing them to act out. She said that their actions were not a premeditated plan as is found with proactive perpetrators who have a goal of ongoing family violence.
179.Then once [counsel for the mother] had outlined to [the Family Consultant] the events of 29 November 2019 as given in the mother’s evidence, he asked [the Family Consultant] “where you used the words ‘risk of physical violence is low’, what words would you use now, on the mother's scenario?”. To which [the Family Consultant] replied:
“Potentially “moderate”.
180. [Counsel for the mother] then asked [the Family Consultant]:
“When things escalate to violence, in terms of a reactive perpetrator, what do you understand from the research that violence looks like?
To which [the Family Consultant] replied:
“When a reactive perpetrator is confronted with a situation that angers or threatens them, their behaviour changes and escalates quickly, they become angry and that can lead to acts of physical violence and aggression.”
[Counsel for the mother] then asked:
What type of physical violence?
And I interposed the description:
The whole range, from a push to a killing.
To which [the Family Consultant] responded:
“Correct.”
181.[The Family Consultant] then indicated that short of physical violence, the typical reactions of a reactive perpetrator to being angered or feeling threatened commonly included verbal abuse and emotional abuse.
182. [The Family Consultant] notes:
“[The father’s] … refusal on an interim basis to consider an incremental approach to the children’s resumption of time with him is unlikely to have been of benefit to the children. This resulted in a two-year period of the children having no access to their non-resident parent, whom they likely had a significant relationship and attachment to. This would have likely caused the children to feel confused, abandoned, sad and unsupported by him. His approach seems to have supported his own agenda (trying to validate that he has done nothing wrong) rather than ensuring that the children’s needs were met as best as possible within the context of a parenting dispute.
183. [The Family Consultant] notes that the father’s responses suggested that:
He lacks insight into the direct impact on Y and X, if he decided to spend no time with them. This may suggest significant immaturity and some limitations in (the father’s) parenting capacity in understanding and meeting the children’s needs.
Then:
Overwhelmingly, the family consultant considers that (the father) is very likely to follow through with his intention (of no time) should orders be made that he does not agree with. It is considered that the children are at great risk of having no relationship with their father through their childhood, if orders are made that are not supported by (the father).
I have made comment on this opinion by [the Family Consultant] earlier in these Reasons.
(Footnotes omitted)
Drawing these threads together, the primary judge found that the father posed an unacceptable risk of harm to the children, which could be ameliorated by him attending the F Service anger management course. As noted already, the orders as originally made did not include any such requirement. Very shortly after the orders were made, they were amended so as to require the father to undertake the course from 4–5 June 2022. When it was discovered that F Service no longer offered the course, the orders were again amended to refer the father to J Service and to apply on and from 18–19 June 2022. Again there is no evidence as to the content of the J Service anger management course. Importantly, there is no discussion of any evidence before his Honour that enrolling in the course and doing nothing else, would have any effect whatsoever.
Self-evidently, such a course could only ameliorate the risk of harm if it was satisfactorily completed by the father. Until that occurs, the risk is not ameliorated. No doubt, for these reasons, on 27 May 2022 (double underlined) and 3 June 2022 (in italics), the following additional words were included in the orders of 4 April 2022:
4.…
(i) … Further, this order for the children to spend time with their Father in further conditional upon the Father undergoing such anger management course and completing that course within the time required under the course structure, and in the event that the Father fails to so enrol, then this order is suspended until such time as he has enrolled, and in the event of the Father failing to undergo and complete the course within the time required under the course, this order is suspended until the Father completes such course. For the purpose of this order, the Father must provide to the Mother proof of his enrolment prior to 4 June 2022 prior to 20 June 2020, including information from F Service J Service as to the duration for the course, and must provide to the Mother proof of his completion of the course within five (5) days of such completion.
…
(As per the original)
That order, although difficult to understand, seems to suggest that the children are to spend no time whatsoever with the father until he successfully completes the J Service anger management course. That would be consistent with his Honour’s findings. However, the reference to “this order” could be to Order 4(c) which refers to weekend time during school terms, or to the entire Order 4 which provides for the time the children are to spend with their father.
As far as it can be determined from his Honour’s reasons, the father did not consent to such an order. As his Honour pointed out at [271]–[276], the father had indicated that if he did not get orders largely along the lines he sought, he would simply walk away from the children, thus raising a doubt as to whether he would complete the course.
Again, that is difficult to reconcile with the findings of the primary judge.
The ground in question is that his Honour erred in making the order. The identification of error in the exercise of discretionary judgments is governed by the principles set out in House v The King (1936) 55 CLR 499 (“House v The King”) at 504–505 as follows:
…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…
Here, the mother simply asserts error in making the order and not one of the specified errors in House v The King.
Merely because a primary judge made an order that may not have been made by an appellate court is not sufficient to establish error. It is therefore difficult to see how Ground 4 can succeed. Nevertheless, the above discussion is relevant in assessing Ground 2.
Did the primary judge err at law in that it was not possible to discern the legislative pathway from his Honour’s reasons? (Ground 2)
Ground 2 asserts that his Honour erred because it was not possible to discern the pathway by which he reached the particular orders that he did.
I am satisfied that it cannot be discerned from the reasons how his Honour found that the F Service and subsequently the J Service anger management courses would ameliorate the otherwise unacceptable risk of harm that the father posed and how an obligation to complete the course was reconcilable with the children immediately spending unsupervised time with the father in a rapid reintroduction of the children to him.
For these reasons, I am satisfied that Ground 2 has been established and his Honour’s orders must be set aside and the matter remitted for rehearing by a different judge.
That being so, it is unnecessary to consider the other grounds (Boensch v Pascoe (2019) 375 ALR 15) or to consider the orders that should be made in relation to s 68P of Act.
I shall therefore set aside Orders 2, 4 and 6 of the orders made on 4 April 2022 and as subsequently amended and remit the issue of the time that the children are to spend with their father, if any, to be heard by a different judge of the Federal Circuit and Family Court of Australia (Division 2).
Costs
The appeal has been successful on a question of law. The mother sought a costs certificate for the hearing of the appeal and the rehearing pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). These certificates will be granted.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 11 October 2022
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