Collins & Monroe
[2021] FedCFamC1A 75
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Collins & Monroe [2021] FedCFamC1A 75
Appeal from: Monroe & Collins [2021] FamCA 315 Appeal number(s): EAA 63 of 2021 File number(s): SYC 809 of 2014 Judgment of: TREE, GILL & HARTNETT JJ Date of judgment: 6 December 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the father appealed interim orders for the child to spend supervised time with the mother at a contact centre – Discretionary judgment – Where the primary judge weighed up the risks to the child and balanced those risks and any ameliorating factors against the child’s right to a meaningful relationship with the mother – Findings open on the evidence – Adequacy of reasons – Where the legislative pathway was followed – Father to pay costs of the ICL – Quantum of the father’s payment of the mother’s costs to be determined – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CC
Mental Health Act 1990 (NSW)
Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
SS & AH [2010] FamCAFC 13
Number of paragraphs: 68 Date of hearing: 28 September 2021 Place: Sydney (via video link) Counsel for the Appellant: Ms Gillies SC Solicitor for the Appellant: Santo Family Lawyers Counsel for the Respondent: Ms Lioumis Solicitor for the Respondent: Pearson Emerson Family Law Counsel for the Independent Children’s Lawyer: Mr Harris Solicitor for the Independent Children’s Lawyer: Legal Aid NSW ORDERS
EAA 63 of 2021
SYC 809 of 2014FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR COLLINS
Appellant
AND: MS MONROE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
TREE, GILL & HARTNETT JJ
DATE OF ORDER:
6 DECEMBER 2021
THE COURT ORDERS THAT:
1.The Amended Notice of Appeal is dismissed.
2.The appellant pay the Independent Children Lawyer’s costs of the appeal fixed in the sum of $4,356.00.
3.No later than 4.00 pm on 13 December 2021 the appellant file and serve any further materials in relation to costs as claimed by the respondent.
4.No later than 4.00 pm on 20 December 2021 the respondent file and serve any further materials in relation to costs.
5.Otherwise the question of costs of the appeal stand reserved.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Collins & Monroe has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE, GILL AND HARTNETT JJ:
INTRODUCTION
On 18 May 2021, interim parenting orders were made by a judge of the Family Court of Australia in relation to the parties’ child X (“the child”) born in 2011, who is now ten years of age. At the interim hearing, Mr Collins (“the father”) alleged the child was at an unacceptable risk of emotional and psychological harm from Ms Monroe (“the mother”), and accordingly the child should spend no time nor have any communication with her.
The primary judge did not accept the totality of the father’s contentions. Whilst her Honour found that the mother should not, on an interim basis, spend unsupervised time with the child, she ordered that supervised time occur at the K Centre (“the contact centre”) (Order 1).
By Amended Notice of Appeal filed 16 August 2021, the father appeals only from Order 1.
The mother and the Independent Children’s Lawyer (“ICL”) resist the appeal.
BACKGROUND
At the time the primary judgment was delivered, the father was aged 61 years, and the mother aged 40 years. During the period of the parties’ relationship (at most, a little over two years in duration) the child was born.
Following the termination of the relationship, (when he was about one year old), and until January 2018, (when he was aged six years), the child lived in the primary care of the mother. During this period of five and a half years, amongst other things, the mother’s intoxicated or drug affected behaviour (evidenced in contemporaneous hospital or police records) adversely impacted upon the child’s welfare as found by the primary judge at [22]–[25].
On 6 January 2018, the mother suffered a psychotic episode upon her discovery that her mother (“the maternal grandmother”) had placed the child in the care of the father. It led to her abducting and assaulting the maternal grandmother (at [27]–[30]). Arising from the ensuing criminal charges against her, the mother was in custody for six months in respect of her offending and was released on 10 July 2018 (at [45]).
On 19 April 2018, the Court made interim orders for the father to have sole parental responsibility for the child, for the child to live with him, and for the mother to be restrained from coming within 100 metres of the child. Orders were made for telephone communication between the child and the mother to be as agreed between the parties. No such communication has occurred due to the father’s refusal to agree.
After 6 January 2018, the child did not see the mother again until 22 October 2019, a period of one year and nine months, and then only in the presence of Dr B during the course of the preparation of his expert report in the parenting proceedings. Subsequent to 22 October 2019, the child has again not spent any time with the mother.
In 2019, Professor D, a psychiatrist, diagnosed the mother with postpartum psychosis; post-traumatic stress disorder; persistent depressive disorder; separation anxiety disorder; and alcohol use disorder. He recommended that the mother’s criminal charges be dealt with under the Mental Health Act 1990 (NSW) rather than through the criminal justice system, and this occurred on the mother’s plea of guilty.
Before the primary judge was a report of November 2019, from Dr B in his capacity as single expert, which recommended that the child spend supervised time with the mother, as well as four reports from Professor D as to the mother’s functioning, and two reports from Professor C, a specialist in addiction medicine. At [57]–[71] the primary judge discussed this evidence including the risk of the mother’s relapse.
The primary judge noted:
43.… I am not tasked to make findings in interim hearings, and my task is to decide whether [the child] should be given a chance to resume his relationship with his mother in light of her concerning mental health history, abuse of alcohol and prescription medication or should such a step wait to a final hearing when all the evidence is tested as the father submitted to me was the correct course.
Ultimately, having traversed the relevant benefits and risks, the primary judge concluded:
131.I find the risk to [the child] has been minimised in the extreme and his right to be given an opportunity to have a relationship with his mother with that relationship commencing in a safe environment such that the contact centre provides, with the assistance of Ms G, outweighs any potential risks to the child from this time commencing and I will make orders put forward by the Independent Children’s Lawyer and consented to by the mother as I find they are the orders in his best interests.
GROUNDS OF APPEAL
The Amended Notice of Appeal seeks to challenge a discretionary decision made by the primary judge being an interim parenting decision made under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
The applicable principles for appeals from discretionary decisions were stated by the majority of the High Court in House v The King,[1] namely:
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.
[1] (1936) 55 CLR 499 at 505.
The proper exercise of discretion in parenting cases may be broad, and “[i]t is a mistake to think that there is always only one right answer to the question of what the best interests of a child require.”[2]
[2] CDJ v VAJ (1998) 197 CLR 172 at [152].
An “appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.”[3]
[3] Gronow v Gronow (1979) 144 CLR 513 at 519, per Stephen J. See also Aickin J’s statement to similar effect, at 538.
An appeal which challenges the weight given to a relevant consideration faces enormous difficulty, as it is quintessentially a matter for the primary judge.[4]
[4] Gronow & Gronow (1979) 144 CLR 513 at 519–520.
Ground 1
Ground 1(a) provides:
1.The Learned Trial Judge erred in the exercise of her discretion by failing:
a. to give weight or any sufficient weight to the recommencement of time between the child and the mother in circumstances where the father is seeking an order that the child spend no time with the mother on a final basis…
On its face, this ground advances a weight challenge. We have already identified the high bar which such challenges face. That is particularly the case here where, in a careful and comprehensive decision, the primary judge determined that supervised time at the contact centre was in the best interests of the child.
There is no doubt that the primary judge understood that the father was seeking an order that the child spend no time with the mother on both an interim and final basis. The primary judge’s reasons make that clear in several places, including at [5], [6] and [124].
At [75] and following, the primary judge expressly canvassed the risks for the child in commencing to spend supervised time with the mother and the risks for the child in not commencing to spend supervised time with the mother (at [84], [85], [122], [123], and [125]–[132]). Such considerations are set out within the context of the evidence that was before the primary judge, including the evidence from the child’s treating psychologist Ms G, whose opinion was that the child presented with symptoms and behaviour consistent with childhood trauma, and that the mother posed a risk to the child’s “psychological welfare” (at [77]). Together with this evidence was evidence from the mother’s treating psychologist as to the mother’s improving mental health functioning, being progress which was “positive” as stated by the primary judge (at [82]).
The primary judge weighed these risks against the child’s right to have a relationship with his mother (at [130]–[135]). Further, the primary judge noted the child’s wishes to see the mother (at [110]) but did not regard them as determinative (at [111]). Rather, the primary judge indicated that she was making a determination as to the child’s best interests on the basis of the competing risks as assessed by her, and the evidence going to any amelioration of those risks.
The degree of weight which relevant considerations should bear is ultimately – and exquisitely – a matter for the primary judge. That the primary judge did not give parts of the evidence the weight or importance the father contends for, does not comprise appealable error.
This ground fails.
Ground 1(b)
Ground 1(b) was as follows:
1.The Learned trial Judge erred in the exercise of her discretion by failing:
…
b. to give weight or any sufficient weight to the evidence of the father about the impact upon the child of contact with the mother…
Again, this ground challenges the weight given to certain evidence, which we have noted is a difficult matter to successfully assert on appeal. But in any event, her Honour did not err as alleged but rather, as highlighted below, considered the evidence of the father about the impact that contact with the mother would have on the child, and weighed that evidence in the exercise of her discretion.
At [48] to [49], the primary judge referred to the father’s assertion that in 2020 the child’s behaviour had changed, and that the child had become more anxious as a consequence of having telephone communication with the mother.
At [74] to [77], the primary judge set out the evidence of Ms G. The primary judge stated her agreement with the position of Ms G that the child should not spend unsupervised time with the mother. Her Honour gave significant weight to the evidence which was presented to the Court by the father, together with the child’s school reports, which were contained in the father’s tender bundle, with those school reports attesting to the child making excellent progress at school after being at a “very low base” when in the mother’s care (at [76]).
At [79], the primary judge reiterated that the child was not being removed from his father’s care and would continue to “attend his school, his sporting and other activities, enjoy his father’s love and excellent care of him into the future. None of this is jeopardised by [the child] spending supervised time with his mother.”
At [105], the primary judge canvassed the father’s evidence as to the child being distressed after the child’s interview with the single expert.
Weighing up of those matters and risks as against the benefits to the child of pursuing a meaningful relationship with the mother within a structure that ameliorated those risks, if that was possible, was the very basis for the decision that any time spent between the child and his mother was required to be supervised by a professional agency. It cannot be argued that the Court gave no weight or insufficient weight to the evidence of the father about the impact upon the child of contact with his mother. Rather the primary judge considered such impact and gave the degree of weight necessary, as determined by her, to that evidence, that weight being ultimately a matter for the primary judge.
Ground 1(b) is without merit.
Ground 1(c)
Ground 1(c) was as follows:
1.The Learned Trial Judge erred in the exercise of her discretion by failing:
…
c. to give weight or any sufficient weight to the evidence generally about the impact upon the child of contact with the mother.
Yet again, this ground advances a weight challenge. Again however, this issue was clearly and explicitly at the forefront of the primary judge’s considerations, not just in terms of the matters canvassed in Grounds 1(a) and 1(b) above, but in respect of the totality of the evidence before her. What weight the primary judge gave that evidence was, as we have earlier observed, quintessentially a matter for her Honour.
This ground fails.
None of the matters raised in Ground 1 succeed.
Ground 2
Ground 2 was as follows:
2.The Learned Trial Judge failed to give sufficient regard to the legislative pathway including the impact upon the child of a significant change in circumstances by recommencing time with the mother.
Although this ground referred to the “legislative pathway”, during argument the appellant properly conceded that it could not be said that the primary judge had failed to mention this matter in her reasons, and hence the argument narrowed to challenge the weight assigned by the primary judge to the change in the child’s circumstances that would be occasioned by the introduction of time with the mother, where at a final hearing such an arrangement could be reversed.
The primary judge identified the competing proposals before her, the agreed facts, and those facts in dispute, and made findings where possible, but otherwise, as indicated by her Honour on numerous occasions, made no findings in respect of matters where in an interim hearing it was not possible to make such findings. The primary judge carefully evaluated the evidence in light of the relevant s 60CC considerations, including the likely effect of the changes in the child’s circumstances by recommencing time with his mother in the supervised contact centre setting. That included acknowledging that making orders for supervised time might subsequently need to be discharged (at [81]–[83], [85], [125], [127] and [129]) and that such supervised time “may destabilise [the child]. This may cause further behavioural issues and interfere with [the child’s] very pleasing and positive but slow trajectory into self-regulation” (at [124]). Having identified the risks, her Honour concluded that “if they have been not ameliorated entirely, they have been so minimised that the greater harm is not allowing [the child] a chance to form a relationship with his mother into the future” (at [135]).
There is no error in her Honour’s consideration of the evidence and again, the weight or importance of such a consideration was quintessentially a matter for her.
This ground fails.
Ground 3
Ground 3 asserts:
3.The Learned Trial Judge erred in the exercise of her discretion by failing to find that the child would be at a significant risk of harm by any time being re-introduced between the mother and the child, and that the time taking place in a supervised contact centre was sufficient to ameliorate the risk the mother presented.
Under cover of this ground, in his Summary of Argument, the father essentially seeks to re-agitate his case advanced before the primary judge. There is no error in the exercise of discretion by the primary judge merely by failing to make findings and orders as sought by a party. The fact that another judge might have a different view about what was in the child’s best interests on the evidence is not error.[5] Further, the High Court has said: [6]
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…
[5] Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at [43].
[6] CDJ v VAJ (1998) 197 CLR 172 at [40] quoting House v King (1936) 55 CLR 499 at 504–505 per Dixon, Evatt and McTiernan JJ.
The primary judge clearly addressed the father’s concerns and the orders as sought by him, and in the exercise of her discretion, made orders as proposed by the ICL and consented to by the mother. Necessarily therefore, the primary judge did not make orders as proposed by the father. The primary judge canvassed relevant evidence before her including the mother’s management of her addiction and mental health conditions, and the progress made in respect of those conditions as set out in the expert evidence variously before the primary judge. The primary judge did not cavil with the seriousness of the mother’s medical issues, nor the possibility that the mother might regress. Nevertheless, she observed that the evidence supported the introduction of time spent between the child and the mother, with such time, of necessity, being supervised. The primary judge engaged in the task of the careful weighing up of the evidence and applying, on a consideration of the totality of the evidence, the relevant legislation found within Pt VII of the Act. The primary judge determined that the child’s best interests were served by making an order for time spent with to be in the contact centre and supervised by professionals.
Her Honour’s consideration of this matter was, in particular, set out in her reasons as follows:
125.The mother and child commence their time at the contact centre. It progresses well, and the mother relapses - alcohol or drugs - time ceases, and he will suffer a second loss of his relationship with his mother and a second grief. This would destabilise the child and may cause regression and is a matter of concern. However, Ms G is working with him and the contact centre and he is well supported in commencing and continuing time with his mother and if the time does not progress well as [the child] and Ms G have a good relationship. Ms G understands the child’s functioning well and, importantly, the father is supportive of that therapeutic relationship.
126.I do not see the risk of the mother saying something untoward to the child at the contact centre is realistic given that if she did this, the contact centre workers would simply admonish her and/or cease her time with the child and this would be reported. These are trained professionals and they know precisely how to deal with poor parental comments. There are many instances of time being ceased by contact centre workers because of a parent’s poor behaviour. The centre will be provided with a copy of Dr B’s report, the orders I make and a copy of this judgment if they wish and Ms G is working with them.
127.There is a risk to [the child] of time commencing, progressing well and it ceasing if spending time with her causes him emotional instability or insecurity. This risk has been minimised in that the child’s psychologist, Ms G, will liaise with the contact centre in relation to assisting [the child] should any of these problems resolve. This is something the contact centre has agreed to and Ms G has agreed to and thus there are significant supports in place for [the child] to commence spending time with his mother and for that time to progress well.
128.The Independent Children's Lawyer may provide the contact centre with any of the reports that have been provided to this Court at this hearing or otherwise. Ms G will liaise with the contact centre workers to inform them of [the child’s] particular vulnerabilities and they will be on high alert for this child. Therefore, I do not see that the mother will be even able to say anything inappropriate to her son, and that is a risk that is just not foreseeable or likely in this scenario.
129.There is a risk that time with the mother and the child progresses extremely well but at a final hearing I cannot take it any further for a multitude of possibilities such as the reaction of his father to the child spending unsupervised time with his mother, or I am not satisfied his mother has overcome her serious mental health and addiction issues from which [the child] suffered in the past.
This ground, and the submissions made in the Summary of Argument in respect of it, ignores the evidence the Court had before it which supported the introduction of time, and which supported the primary judge’s conclusion that it was an appropriate amelioration of risk to the child to start professionally supervised time at the contact centre.
To the extent that this ground challenges the primary judge’s assessment of the level of risk, it has not been shown why her Honour was wrong on the evidence presented to her.[7] If the ground is, as it appeared in argument, directed to the weight the primary judge assigned to the risk, and amelioration of the risk, then as described above, her Honour plainly had regard to such matters. Again, the question of weight was a matter for her in the exercise of her discretion.
[7] Fox v Percy (2003) 214 CLR 118.
There is no merit in this ground of appeal.
Ground 4
Ground 4 asserts:
4.The Learned Trial Judge erred in failing to suspend the child’s time with the mother during the short school holiday periods and for portions of the Christmas school holiday periods.
It was agreed by the mother in her Summary of Argument that the primary judge failed to address whether time spent between the child and the mother should be suspended during school holiday periods. The mother submits that this issue should be dealt with by the primary judge, not an appeal court, and that it has been open to the father to seek that occur at any time since the interim application was determined. As such she contends that this ground should be rejected.
The ICL, in paragraph 14 of her Summary of Argument filed 6 September 2021, initially conceded that Ground 4 of the appeal was made out. In oral submissions at the hearing of the appeal, counsel for the ICL withdrew that concession and submitted the ground was not established and the appeal should be dismissed.
It is clear that the primary judge did not make orders as to whether to suspend the child’s time with the mother during school holidays. This was not an order sought by the ICL and the mother. The father sought no time be spent between the child and the mother and accordingly did not seek any orders as to school holiday periods. Suspension of any time that might be ordered between the child and the mother was a topic of discussion between the primary judge and each of the parties in the hearing. Submissions were made on the topic by senior counsel for the father and counsel for the mother, although counsel for the ICL declined to make submissions.[8]
[8] Transcript 27 April 2021, p.57 line 16 to p.58 line 31; p.65 line 41 to p.66 line 13; and p.67 lines 1–5.
The parties were not in agreement. There was little, if any, evidence directed to the issue, and certainly none that, in the absence of the agreement of the parties, enabled her Honour to specifically deal with it as a discrete issue. Under circumstances where there was, at best, an oral application made, no consent position, and no evidence to support the making of an order in relation to the school holidays, the primary judge was not in error in failing to deal with a matter that could not be dealt with other than by refusal.
This issue can be addressed by a relisting of the matter before the primary judge upon application of the father should he so desire.
Ground 4 fails.
Ground 5
Ground 5 reads:
5.In making the findings found at Paragraphs 84(1) and 84(2) of the judgment the Learned Trial Judge erred:
a. by making the findings in the context of an interim hearing;
b. by making the findings without a proper evidentiary basis; and
c. by failing to give reasons as to the basis for the findings.
A fair reading of [84] and [85] is that the primary judge was there properly identifying a range of risks to the child in the circumstances of either spending time with his mother, or not spending such time, those risks then being weighed in the balance by her Honour making the finding that she did at [131].
As submitted in the ICL's Summary of Argument at paragraph 19, the primary judge correctly directed herself to the need to assess whether a meaningful relationship with the mother would be an advantage to the child (at [120]). The primary judge identified significant benefits to the child in resuming time with the mother (at [134]). The primary judge considered whether the identified risks could be sufficiently ameliorated, and found that they could.
The primary judge canvassed the evidence and considered the benefits and risks to the child of each of the parties’ positions. The evidence considered included the recommendation of Dr B that there be an immediate reintroduction of time between the child and the mother, supervised at a contact centre – a recommendation made by him in November 2019.
The primary judge set out her decision in the context of careful reasoning and analysis of the matters upon which the Court had to decide, including the objects identified in s 60B of the Act, the s 60CC considerations, and the requirement under Pt VII of the Act to ensure that children have a meaningful relationship with their parents consistent with protecting them from any risk of harm.
The primary judge was acutely aware of the limitations in fact finding inherent to interim proceedings. These limitations do not, however, absolve a judge in interim proceedings from considering the various risks that might be occasioned to a child on either the making or, the refusal to make orders. In SS & AH[9] the Full Court observed that:
100.The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
[9] [2010] FamCAFC 13 at [100].
Here the primary judge was obliged to consider the potential impact of making orders for time, but also to consider the risks occasioned by failing to make no orders for time. This is expressly what her Honour did at [84] which involved no improper fact finding in the context of interim proceedings.
This ground is without merit.
CONCLUSION
No ground of appeal has been made out. It follows that the appeal must be dismissed.
COSTS
The mother sought an order that the father pay her costs of the appeal in the event of the dismissal of the appeal.
Senior counsel for the father sought that the father be permitted to place before the Court evidence, said to be relevant to the mother’s costs, with the mother to have a right of reply. There shall be a timetable ordered in that regard.
The ICL sought costs against the father in a fixed sum of $4,356. There was no dispute as to that quantum claimed, nor the making of such an order. Accordingly, an order for the ICL's costs as claimed shall be made.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Gill & Hartnett. Associate:
Dated: 6 December 2021
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