Ervin & Allum
[2022] FedCFamC1A 172
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTIONErvin & Allum [2022] FedCFamC1A 172
Appeal from: Allum & Ervin [2022] FedCFamC1F 177 Appeal number: NAA 79 of 2022 File number: PAC 643 of 2016 Judgment of: MCCLELLAND DCJ, CAREW & HENDERSON JJ Date of judgment: 21 October 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the appellant filed an Application in an Appeal out of time to adduce further evidence – Where that application was not pressed – Where the appellant challenged the primary judge’s reasons on four grounds of appeal – Where the grounds of appeal included: a lack of procedural fairness; inadequate reasons; acting upon wrong principles; and affording too much weight to the evidence of a single expert – Where the appellant failed to establish any appealable error – Appeal dismissed.
FAMILY LAW – APPEAL – COSTS – Where the respondent seeks his costs in the appeal – Where the appellant has been wholly unsuccessful – The circumstances justify an order for costs – Order for the appellant to pay the respondent’s costs in a fixed sum within seven days.
Legislation: Evidence Act 1995 (Cth) s 140(2)
Family Law Act 1975 (Cth) ss 60B, 60CC(2), 60CC(3)(a) 60CC(2A), 60CD(2), 64B(1)(b), 117(2), 117(2A)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 13.23
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Bahonko v Sterjov (2008) 247 ALR 168; [2008] FCAFC 30
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Concrete Pty Ltd v Parramatta Design& Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jones v Bradley [2003] NSWCA 81
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Koyroyshs & Koyroyshs [2021] FedCFamC1A 54
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Rigby & Olsen [2021] FedCFamC1A 46
Stopford Malloy & Malloy (Costs) [2018] FamCAFC 6
Willmore & Menendez [2022] FedCFamC1A 73
Number of paragraphs: 139 Date of hearing: 25 July 2022 Place: Sydney The Appellant: Litigant in person Counsel for the Respondent: Mr Blank (direct brief) The Independent Children’s Lawyer: Submitting Notice filed ORDERS
NAA 79 of 2022
PAC 643 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTIONBETWEEN: MS ERVIN
Appellant
AND: MR ALLUM
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCCLELLAND DCJ, CAREW & HENDERSON JJ
DATE OF ORDER:
21 October 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the respondent’s costs fixed in the sum of $6,206 within 7 days.
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 Ervin & Allum has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
INTRODUCTION
I have had the advantage of reading the joint judgment of Carew and Henderson JJ. Unfortunately, I depart from my learned colleagues in finding error on the part of the primary judge in failing to provide adequate reasons in respect to several matters of significance. Those matters relate to steps required to ensure the welfare of the child in circumstances where orders were made for a change in the child's residence from her mother to her father. This is in circumstances where it was acknowledged that this would cause significant emotional distress to the child.
BACKGROUND
The relevant factual background to this matter has been appropriately set out in the judgment of Carew and Henderson JJ. I refer to it only to the extent of noting the findings of the primary judge that the mother's fixation on her allegation that the father had sexually abused the child arose in circumstances of hyper-vigilance resulting from having been the subject of sexual abuse as a child herself (at [422]). In those circumstances, the primary judge found that the mother's firmly held belief that the father had sexually abused their daughter was misinformed, rather than made for malicious purposes (at [293]–[299]).
Significantly, it was accepted that removing the child from her primary attachment figure, her mother, and placing her in the sole care of her father, who the child genuinely believed had sexually assaulted her, was likely to cause significant distress and loss to the child (at [216], [232] and [415]).
This was in circumstances where there was no assurance that other adults would be present, as support for the child, in the father's household, due to the fact that the father was living alone after the breakdown of a subsequent relationship he had entered into following his separation from the mother.
Given the significance of the impact of the orders upon the child, careful explanation was required as to why the orders provided for the child to have no contact with her mother for a period of four weeks and thereafter limited contact for the first year of change of residence. Despite an otherwise thorough judgment, for reasons which I explain, I am of the view that the reasons of the primary judge were deficient in that respect.
FOCUS UPON FIRST GROUND OF APPEAL
The focus of my decision is on the appellant's first ground of appeal, which is:
1.The judge erred by failing her obligation to give adequate reasons and acting on the wrong principle where the orders are harsh, weighting evidence in such a manner that it has led to an injustice.
Rule 13.23 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 requires the parties to file a Summary of Argument that identifies the alleged error on the part of the primary judge in respect to each ground of appeal. While not expressed with the precision that the Court would ordinarily expect from a legal practitioner, in circumstances where the appellant is self-represented, it is adequately clear that under the subheading "the issue of adequate reasons", the appellant is concerned about inadequate reasons being provided by the primary judge in respect to the following matters:[1]
[1] Mother’s Summary of Argument filed 28 June 2022, p.3.
•A cold switch to the father, who the child had not seen in 14 months
•The mother only spends time with the child 4 hours per month (supervised) for the first six months, then 4 hours every second weekend for the following six months (supervised changeovers)
•No provision for the child to spend time with her extended family within the first 6 months without the father’s consent
•After a year, the child spends fortnightly weekends (after school Friday to before school Monday) with her mother with no provision for blocks of time such as during school holidays
•There is no provision within the Orders for telephone or email contact
•The mother may only attend the child’s school with the father’s written permission
(As per the original)
The mother further contended that the failure by the primary judge to address those matters constituted an error of principle in that the orders do not facilitate the child having a meaningful relationship with the mother.
For reasons which I set out, I am satisfied that there was error on the part of the primary judge in respect to the following:
(1)Failure to provide adequate reasons as to why the child's time with the mother during the first six months of the operation of the orders was limited to just four hours per month;
(2)Failure to provide adequate reasons for deferring the time that the child will spend overnight with the mother until after the preliminary period of 12 months of operation of the orders;
(3)Failure to provide adequate reasons as to why no provision was made for the mother to attend school events at the invitation of the school in circumstances where that was proposed as an order by the father;
(4)Failure to provide adequate reasons as to why no provision was made for the child to have electronic communication with the mother in circumstances where that was proposed as an order by the father and where it could reasonably be assumed that such contact would have ameliorated, to some degree, the distress of the child;
(5)Failure to provide adequate reasons as to why the orders did not make any provision for the child's time with the mother to progress to spending school holiday time with the mother at any point in the future.
RELEVANT LEGAL PRINCIPLES
The relevant appellate principles applicable to the circumstances of this matter have been succinctly summarised in the judgment of Carew and Henderson JJ. Essentially, it is not to the point that an appellate judge would have reached a different conclusion on the facts of the case. In order to succeed in an appeal in respect to an evaluative decision by a primary judge as to what orders are in the best interests of the child, it is necessary to establish a ground of appeal that falls within the principles identified by the High Court in House v The King[2] and Norbis v Norbis.[3]
[2] (1936) 55 CR 499 at 505.
[3] (1986) 161 CLR 513 at 539-540.
Additionally and relevantly for the purpose of this appeal, an appeal may also succeed on the basis of an inadequacy of reasons. In that respect, in Rigby & Olsen,[4] the Full Court stated at [38] that:
The requirement for the giving of reasons is a fundamental requirement of the exercise of the judicial function, as it both demonstrates that justice has been done, and enables the proper challenge of a decision. The content required varies depending upon the circumstances of the case, but is that which makes apparent how the decision was arrived at (see Bennett and Bennett (1991) FLC 92-191 at 78,266). It is not required to give reasons regarding every argument, nor to perform a microscopic analysis "if, in all the circumstances, it is clear that the trial judge has considered and evaluated the relevant evidence, taken into account all relevant factors… (A v J (1995) FLC 92-619 at 82,230).
[4] [2021] FedCFamC1A 46.
THE DECISION OF THE PRIMARY JUDGE
As earlier noted, in this matter the primary judge was faced with the difficult decision as to whether to change the child's living arrangements. If orders were made providing for the child to continue to live with the mother, for reasons explained throughout the primary judge’s reasons, the child would likely have no relationship with her father. In that respect, at [58] the primary judge noted that:[5]
… It was the expert's opinion that it would be markedly detrimental to the child's development if she were not to spend time with the father and to grow up believing he had sexually abused her if this were not the case.
[5] See also [194] to similar effect.
On the other hand, orders in the nature of those which were ultimately made in the proceedings were likely to be extremely traumatic for the child. That is, the orders provided for the removal of an eight year-old child from her established home environment where she had been living with her mother, her primary carer and attachment figure since birth.
The orders have placed the child in the care of her father, who the child had not spent time with in the 13-month period prior to the delivery of the primary judge’s reasons, and who was, from the child's perspective, a man who had sexually abused her. In that context, the primary judge noted at [206]:
The expert also confirmed that once a child forms a belief, even if based on something that did not occur and is an entirely fabricated account of the personal experience, that belief is just as real for the child as if it did occur.
This is in circumstances where, as noted, the father is living on his own following the breakdown of a relationship he had entered into in the period subsequent to his separation from the mother. The potential for the child to suffer trauma in those circumstances was recognised by the court-appointed expert, who opined that there was a real risk that the child would attempt to run away from her father's place of residence in the circumstances that I have outlined (at [229]).
Outline of orders
By way of outline, the orders of the primary judge were, relevantly, as follows.
Order 2 provides that, subject to the father engaging in a process of reasonable consultation with the mother, he is to exercise sole parental responsibility for the child. For reasons explained by the primary judge, this is entirely appropriate given the history of poor communication between the parties and in circumstances where the child will live predominantly with the father (at [454]–[455]).
Order 3 provides for the child to live with the father. The primary judge adequately explained why she considered that order to be in the child's best interests (at [457]) and that finding was reasonably open to the primary judge on the evidence.
Orders 4–7 provide for the regime of time that the child is to spend with the mother. It is on a graduating basis and subject to the mother participating in appropriate therapy as provided for in Orders 8 and 10. As I will explain, those orders require the mother to undergo therapy and are, in my view, highly relevant in the consideration of the appellant's first ground of appeal. That ground contends that the primary judge acted on wrong principle and failed to provide adequate reasons in respect to future arrangements for the child to spend time with and communicate with the mother.
Orders 8 and 10 set out a detailed and sophisticated plan for the mother to engage in appropriate therapy to address personality flaws and her misguided fixation arising from the fact that she, herself, is a victim of childhood sexual abuse.
Order 8 provides:
8.The mother shall continue to attend upon [Ms B] of the [C Service] for therapeutic counselling and support as follows:
8.1The mother's engagement with [Ms B] shall address issues including but not limited to supporting the mother to accept the outcome of these proceedings and the Court's findings; her emotional regulation during time and communication with the child and implementing these orders and her entire life experience as recommended by the single expert [Dr D];
8.2The mother shall comply with all reasonable directions and requests made by [Ms B] including attending for appointments at such frequency and over such period of time as requested by [Ms B];
8.3The mother shall continue to engage with [Ms B] until such time as [Ms B] recommends that her engagement should cease;
8.4In the event [Ms B] recommends or refers the mother to an additional or alternative practitioner or service provider, the mother shall engage with such additional practitioner or service provider in the manner and time frame recommended by [Ms B], and continue to engage with such additional practitioner or service provider until such time as they recommend her engagement should cease;
Ms B is the mother's treating psychologist, who swore an affidavit, filed on 6 September 2021, detailing the history of treatment that she has been providing to the mother since March 2021 and included her recommendation for ongoing therapy subsequent to the conclusion of the proceedings. Relevantly, Ms B stated in her report that it would be important for the therapist providing such ongoing therapy to the mother to do so in the context of the judgment by the primary judge in the proceedings.
Order 10 provides:
10.The child and the parties will engage in Family Therapy with [Mr G] and in the event [Mr G] is unavailable or unwilling to undertake the Family Therapy, with a family therapist recommended by [Mr G] as follows:
10.1Each party shall comply with all reasonable directions and requests made by the family therapist including providing information and attending for appointments at such frequency and over such period of time as requested, and facilitating the child's attendance for appointments at such frequency and over such period of time as requested;
10.2Within 7 days from the identity of the family therapist being confirmed, each party will attend with their general practitioner to obtain a referral and Medicare subsidised GP Health Care Plan referring them to the family therapist for therapy;
10.3Within 7 days from the identity of the family therapist being confirmed, each party shall provide any authority or consent necessary to facilitate any other therapeutic practitioner engaged by the parties or the child, and the child's paediatrician, to communicate with the family therapist.
10.4Each party will solely meet the costs of any out of pocket expenses for sessions they attend with the family therapist;
10.5The parties will equally share the costs of any out of pocket expenses for sessions the child attends in the absence of either parent with the family therapist;
10.6The parties shall continue to engage with the family therapist until such time as the family therapist recommends that engagement should cease;
10.7In the event the family therapist recommends or refers the parties or either of them, or the child to an additional or alternative practitioner or service provider, the parties shall engage with such additional practitioner or service provider in the manner and time frame recommended by the family therapist, and continue to engage with such additional practitioner or service provider until such time as they recommend engagement should cease.
Mr G is the family therapist who was proposed by the father as being an appropriately qualified professional to provide the services as set out in Order 10 to the parties.[6]
[6] Transcript 22 October 2021, p.24 lines 35–42.
Significance of the mother engaging in therapy
For reasons which I will explain, it is my view that the primary judge erred in failing to have regard to the detail and sophistication of the requirements she put in place for the mother to engage in therapy when it came to making orders prescribing a future spend time and communication regime between the child and the mother.
As noted, the spend time orders made by the primary judge are set out in Orders 4–7.
Order 4 was based on the minute proposed by the Independent Children’s Lawyer (“ICL”) and is as follows:
4.Subject to the mother's compliance with Orders 8 and 10, the child shall spend time with the mother for a period of six months from the date of these orders as follows:
4.1Time shall be supervised by an agreed private supervision agency and failing agreement, the father shall nominate at least three agencies from which the mother shall elect the agency to engage ("the supervision agency");
4.2Time shall occur from 12noon until 4pm on the second Sunday of each month;
4.3 In relation to the supervision agency's fees:
4.3.1Each party shall meet the cost of their intake assessment process;
4.3.2The parties shall equally share the cost of the child's intake assessment process;
4.3.3The parties shall equally share the costs of supervision including any reasonable travel expenses and report writing fees;
4.4Changeover shall occur at a location agreed upon between the parents in consultation with the supervision agency.
It can be inferred from a reading of the totality of the reasons for judgment that, in making that order, the primary judge had regard to the opinion of the single expert that the father's proposal for the child to spend weekly supervised time with the mother "was too much and could be quite disruptive" (at [227]). For reasons which I will explain, it is my opinion that the primary judge nonetheless failed to provide adequate reasons explaining why Order 7 provides for supervised time to occur just once per month, rather than more frequently.
Order 5 provides for the child's spend time arrangements with the mother after the completion of the first six months of supervised time and is as follows:
5.Upon completion of the six month period provided for by Order 4 and subject to the mother's compliance with Orders 8 and 10, the child shall spend time with the mother for a further six month period as agreed and failing agreement, from 12noon until 4pm each alternate Saturday with changeover to be facilitated by the supervision agency.
That order was made in the context where the father proposed, at paragraph 56 of his written submissions filed on 5 October 2021, that subsequent to those first six months of supervised time, the child should spend time with the mother for "a full day every Saturday for a period of 8 weeks." Again, for reasons which I will explain, it is my view that the primary judge failed to provide adequate reasons as to why that initial period of unsupervised time extended for a period of six months, rather than the eight weeks as proposed by the father.
Order 6 provides for a further graduation in time to occur 12 months after the date of the making of the orders, such that the child will spend overnight time with the mother from after school Friday until before school on Monday. That order was also based on the proposal by the ICL which, the father noted in his written submissions, was more severe than his proposal which would "have the mother enjoying overnight time within about eight months (6 months plus 8 weeks)."[7]
[7] Father's written submissions filed 5 October 2021, paragraph 56(c).
Order 7 provides for the child to spend additional time with the mother on Mother's Day and similarly, for the child to spend time with the father on Father's Day as well as the child spending time with both parents on Christmas Day.
The orders do not, however, make provision for the child to spend time with the mother on the child's birthday or the mother's birthday, nor do they make provision for the child to spend time with the mother during school holidays other than to the extent that the orders provide for the child's time with the mother to graduate such that, after a 12 month period, the child will spend overnight time with the mother on each alternate weekend.
Further, the orders do not provide for the mother to attend school functions to which she may be invited including, for example, Mother's Day assemblies, unless she obtains, as a precondition, the consent of the father.
Significantly, the orders do not provide for the child to have any form of communication with the mother, other than for the graduation to fortnightly overnight time to which I have earlier referred.
For reasons which I explain below, I am satisfied that, in the particular circumstances of this case, the primary judge fell into error in failing to provide adequate reasons explaining why she did not make provision in respect to those matters, particularly in circumstances where some of the potentialities had been proposed by the father.
Failure to provide adequate reasons as to why the child's preliminary time with the mother was limited to just four hours per month
The adequacy of the reasons is to be assessed in the context of issues joined in the proceedings, with the primary judge being required to “‘enter into’ the issues canvassed and explain why one case is preferred over the other”.[8]
[8] Jones v Bradley [2003] NSWCA 81 at [129] (Santow JA with Meagher and Beazley JJA agreeing). See also Bennett and Bennett (1991) FLC 92-191 at 78,266.
The primary judge at [227] noted that a relevant issue in the proceedings was the dilemma framed by the single expert that the child's contact with the mother in the initial period following the child being removed from the mother's care,
[S]hould not be so often as to disrupt the stabilisation of the child in the father's household, but often enough to give the child some reassurance that the mother ‘is still available and loves [her] and wants to be with [her], and that eventually they will see each other in a more normal way.
After quoting from the single expert in that respect, the primary judge noted the opinion of the single expert that the father's proposal for the child to have weekly supervised contact with the mother “was too much and could be quite disruptive” (at [227]). At the same time, the primary judge noted the counterbalancing evidence of the single expert, which the primary judge summarised at [216] of the reasons as follows:
…The expert was quite emphatic that even if this finding were made, all contact between the child and mother should not be ceased because she considered "that would be an incredible loss and cause problems". The expert also emphasised that even minimising her time with the mother would cause the child distress and a sense of loss.
(Emphasis added)
The primary judge has, with respect, failed to articulate why the orders did not provide for the child to spend time with the mother that was less often than once per week but more often than once per month. This is in circumstances where, in my view, the order providing for the child to spend just four hours of supervised time with the mother, once per month, could properly be characterised as an order minimising the child's time with her mother.
In that context, recently, in Willmore & Menendez,[9] the Full Court said at [52]:
The requirement for the giving of reasons is a fundamental requirement of the exercise of the judicial function, as it both demonstrates that justice has been done, and enables the proper challenge of a decision. The content required varies depending upon the circumstances of the case, but is generally that which makes apparent how the decision was arrived at. The obligation is particularly significant where orders are made limiting the amount of time that a child will spend with a parent and the circumstances in which that will occur. In that respect, in Blinko & Blinko [2015] FamCAFC 146 the Full Court said:
The authorities dealing with cases of unacceptable risk are replete with exhortations to trial judges to “consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard”: see for example N and S and the Separate Representative (1996) FLC 92-655 at 82,714. That extends not merely to the identification and analysis of the risk itself, but also to the imposition of conditions or other safeguards in relation to the non-resident parent
(Emphasis added, citations omitted)
[9] [2022] FedCFamC1A 73.
As earlier noted, the facts and circumstances in which the orders in this matter have been made resulted in the profound impact on this eight year-old child of being removed from the primary care of her mother, maternal relatives and her home environment, including her beloved pet, to be placed in the care of her father who, from the child's perspective, was a man she had not seen for 13 months and who the child believed had sexually abused her. In that context, it was incumbent upon the primary judge to explain why she did not make orders providing for the child to have more frequent time with the mother than once per month in the first six months of the operation of the orders to minimise what the expert acknowledged would be a sense of "incredible loss" that would inevitably be felt by the child (at [216]).
Failure to provide adequate reasons for deferring the overnight time that the child spent with the mother for the first 12 months of operation of the orders
For similar reasons, I am of the opinion that the primary judge failed to provide adequate reasons as to why the orders failed to provide for the child to spend overnight time with the mother in the period subsequent to the first six months of supervised time. This is in circumstances where, despite being aware of the proposal by the ICL for overnight time to be deferred for a period of 12 months, the father nonetheless, to his credit, pressed for an order that overnight time between the child and the mother commence after a period of approximately eight months, rather than the 12 months as set out in the orders.[10]
Failure to provide adequate reasons as to why no provision was made for the mother to attend school events in circumstances where such an order was proposed by the father
[10] Father’s written submissions filed 5 October 2021 at paragraph 56.
There is some ambiguity in the wording of Order 16.5 which restrains the mother from attending the child's school. Order 16.5 sets out that the mother is restrained from:
Attending upon the child's school whilst the child is present on school grounds, except for at times provided for by these Orders or with the father's prior written consent.
It is apparent that there are two separate exceptions to the operation of that constraint:
(1)An exception that permits the mother to attend the child's school “at times provided for in these orders”; and
(2)Where the father provides his prior written consent.
The ambiguity that arises is that the orders do not otherwise provide for the mother to attend the child's school. This is despite the fact that, again, the father's proposed orders provided for that to occur. In his case outline document filed on 2 September 2021, the father confirmed he was seeking orders in accordance with his Amended Initiating Application filed on 8 February 2021. The father's proposed Order 16 was as follows:
The Mother is permitted to attend [the child's] sporting activities, school performances or award ceremonies and to be involved in school activities such as volunteering or other parent groups as she sees fit, provided she gives the Father 24 written hours’ notice of her intent to do so.
Significantly, it is to be noted that the order proposed by the father is permissive. That is, subject to the mother showing appropriate courtesy of notifying the father of her proposed engagement in those activities, the father proposed that she be permitted to do so. The orders made by the primary judge, on the other hand, restrain the mother from attending those activities without complying with the condition precedent of obtaining the express written permission of the father. The primary judge has not articulated reasons for adopting that approach.
Failure to provide adequate reasons as to why no provision was made for the child to have electronic communication with the mother, in circumstances where that was proposed as an order by the father
During the course of the appeal, counsel for the father contended that the orders failing to include provision for the child to have electronic communication with the mother does not establish error. In summary, he contended that it is not incumbent upon a primary judge to make orders that regulate each and every aspect of the child's interaction with both parents. Expressed in the generality, there is merit in that submission.
However, having regard to the specific facts of this case, it is my view that it was incumbent upon the primary judge to explain why she did not make an order providing for the child to communicate with the mother by electronic means at times other than when she was spending time with the mother. This was in circumstances where proposed Order 9 of the father's Amended Minute of Order (annexed to his Amended Initiating Application filed on 8 February 2021) included provision for that to occur. In other words, it was an issue in respect to which the parties had engaged in the proceedings.
The particular facts and circumstances of this case are such that the primary judge recognised not merely the possibility, but the likelihood of the child experiencing significant distress at being separated from her mother and placed in the care of the father. It was, in those circumstances, incumbent upon the primary judge to explain why she did not include, in the orders, an opportunity for the child to contact her mother by electronic means to quell likely feelings of distress and anxiety. This is in circumstances where there is no other adult living in the home of the father who is available to provide comfort to the child.
This is particularly significant in circumstances where these orders, unless varied, will remain in place indefinitely and, in a relatively short period of time, the child will experience biological changes associated with puberty. No other female was identified as an available confidant for the child other than her mother. In circumstances where, at least as at the point of the trial, the child believed that the father had sexually abused her, failing to provide an opportunity for the child to confer with a female confidant about those biological changes was, in my view, either an oversight on the part of the primary judge or, if deliberate, one that should have been articulated by adequate reasons.
Failure to have regard to relevant considerations in failing to make any provision for the child's time with the mother to progress to spending holiday time at any time in the future
The primary judge provided adequate reasons as to why, in the time until the mother engages in an adequate amount of therapy, the orders do not provide for the child to spend holiday time with the mother. Those reasons are set out at [459] of the reasons as follows:
So far as the balance of the orders proposed by the ICL are concerned, there are some small differences between that proposal and the father's proposal. In particular, the ICL's proposed orders do not make provision for the child to spend time school holiday time with the mother, but they do provide for an end point of that time during the school term which is more lengthy than the father's proposal being three nights per fortnight and additional time on special days. I accept the submission of the ICL that this proposal is proper and in the child's best interests as the expert was firm in recommending that any unsupervised time with the mother only commence after at least six months of therapeutic engagement and in her opinion that the therapy to date had a long way to go. There are questions about the success of the mother's engagement in that therapy, having regard to the steadfast nature of her beliefs.
It is implicit in the reasons for judgment and the orders made that the primary judge was satisfied that psychological and/or family therapy would achieve at least some success because the mother's attendance and participation in that therapy was a precondition to the child having increased time with the mother.
Additionally, at [228] of the reasons, the primary judge noted “[t]he expert expressed an expectation that in the long term, if the child settles with the father and as she becomes older and more discriminating, the child would desist from making these allegations”. The allegations, it is accepted, were the unfounded allegations that the child had been sexually abused by her father.
The consideration of the legislative criteria set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”) guides the Court to determine what orders are in the best interests of the child, and are informed by the objects set out in s 60B of the Act, which includes the object of:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.
(Emphasis added)
At [459] of the reasons, the primary judge articulated sound reasons as to why she came to the conclusion that, at this point in time or, more accurately, at the point in time of delivery of the reasons, she considered that the prospect of the child spending lengthy periods of time with her mother during school holiday periods was not in the child's best interests.
However, as previously noted, these orders will apply indefinitely unless and until varied. The primary judge, in my respectful opinion, erred in failing to explain the extent to which she had regard to two relevant considerations, which are:
(1)The fact that the mother was to participate in both psychological and family therapy to address her misguided belief that the father had sexually abused the child; and
(2)Even in the context of the primary judge having doubt as to the efficacy of such therapy, the evidence that a point in time would arrive, where by virtue of her maturity, the child would be more discerning in respect to any pressures that may be placed upon her by the mother to make such allegations.
During the course of the appeal, counsel for the father noted that despite the absence of provision for the child to spend holiday time with the father, the orders provided for that to occur by way of agreement. This was noted to be in the context where the parties are required to participate in family therapy. In circumstances where the father, again to his credit, proposed in his orders that the child commence spending holiday time with the mother after the second school holiday period in 2022, one would expect and hope that the father would act reasonably in agreeing to the child spending additional time with the mother during periods of school holidays.
On the other hand, the parties have been engaged in protracted litigation since 2016. The orders made by the primary judge for the father to have sole parental responsibility were informed by the history of poor communication between the parents. In those circumstances, it is unsatisfactory that the prospect of the child spending holiday time with her mother at some point in the future is dependent upon the prospect of her parents reaching agreement in respect to that issue.
In the context of the specific facts of this case, the primary judge, therefore, in my respectful opinion, erred in failing to explain why she did not identify a point in time where it was appropriate for the child to commence spending holiday time with her mother that would take effect in the event of the parties being unable to reach agreement in respect to that issue.
DISPOSITION
Having regard to those errors which I have identified, I am of the view that the appeal should be upheld in respect to Ground 1, to the extent that I have indicated. In those circumstances, the matter should be remitted for hearing by a judge other than the primary judge to consider the following limited issues:
(1)The amount of time, including potentially school holiday time, that the child should spend with the mother in the future;
(2)Whether the mother should be able to participate in the child's educational, extracurricular and sporting activities and the circumstances in which that should occur; and
(3)Whether the child should be permitted to engage in electronic communication with the mother at times that she is not in the care of the mother and the circumstances in which that communication should occur.
In circumstances where neither party has been wholly unsuccessful, and given the significance of these issues for the welfare of the child, it is my view that the provisions of s 117(1) of the Act should apply, such that there be no order for costs in respect to this appeal.
CAREW & HENDERSON JJ:
The appellant is the mother of a little girl, Z, who was born in 2014. Z has been the focus of intense conflict between her parents for most of her life. After her parents separated in 2014, Z lived with her mother and spent time with her father (the respondent to the appeal), although the time was far from consistent. At the time of the trial before the learned primary judge in September 2021, Z had not spent any time with her father since January 2021.
On 25 March 2022, the primary judge ordered that the child live with her father and spend time with her mother, initially supervised for six months and then, conditional upon the mother continuing therapeutic counselling and family therapy, increasing to unsupervised day time only (with changeovers to be supervised) and, after a further six month period, increasing to alternate weekends from Friday afternoon to Monday morning. There is provision in the orders for the time spent by the mother with the child after the first six months to be as agreed between the parents.
In a thorough judgment, the primary judge rejected the mother’s allegations that the child had been sexually abused by the father and found that the father did not pose an unacceptable risk of sexual harm to the child in the future. The primary judge also rejected the mother’s allegations of family violence perpetrated by the father against her.
While the primary judge was not persuaded that the mother’s allegations of sexual abuse were motivated by malice, but rather arose in the context of the mother’s overvalued ideas emanating from her own experience of childhood sexual abuse, the primary judge found that the mother’s fixed belief that the child had been sexually abused by the father, and the conveying of those false beliefs to the child, amounted to psychological abuse of the child.
The primary judge found that the mother thereby posed an unacceptable risk of psychological harm to the child if she remained living with the mother. Further, the primary judge found that the only way the child could have a meaningful relationship with both parents was for her to live with the father.
The mother challenges the decision of the primary judge and, if successful in her appeal, seeks the matter be remitted for re-hearing in relation to all orders or, alternatively, in relation to the time the child spends with her.
For the reasons set out below, the appeal will be dismissed.
Preliminary matter
The mother filed an Application in an Appeal on 14 July 2022 (out of time), seeking to adduce further evidence in the appeal. The nature of the evidence sought to be relied upon consisted of an Application in a Case filed 3 February 2021 and supporting material, together with orders made and a transcript of the court appearance before the primary judge in relation to this Application in a Case. The mother, who represented herself in the appeal, was keen to demonstrate that her attempt to obtain updated evidence relevant to the child was not an issue raised only in the context of the appeal. The Full Court noted that to be the case. Ultimately, as the mother did not press her application to adduce further evidence, the question of leave to file that application out of time was not considered.
appellate principles
It is important to keep in mind that the role of an appellate court is to correct error. The fact that a different judge hearing the case at first instance may have come to a different decision does not establish error. The applicable principles are set out in House v The King,[11] where the High Court of Australia held:
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.
[11] (1936) 55 CLR 499 at 504–5 (Dixon, Evatt and McTiernan JJ).
In CDJ v VAJ[12] the High Court further observed:
151 … Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. The views of appellate judges about the proper order to be made will not infrequently conflict with those of the primary judge. Yet, absent legal error or a plainly unjust result, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge.
[12] (1998) 197 CLR 172 at [151] (McHugh, Gummow and Callinan JJ).
In summarising the general principles applicable to appeals against discretionary and evaluative decisions in this Court, Kirby J in CDJ v VAJ[13] included the following:
186 …
10.…Every appellate judge knows that the reasons given for a decision can never express the entire range of matters which the decision-maker has taken into account. In matters of evaluation and discretion, this would be impossible to achieve and undesirable to attempt. Judicial reasons, whilst they must be adequate for the purposes of the exercise of any right to appeal cannot possibly catalogue all of the subtle considerations that lie behind a judicial decision. This is true of the decision of the primary judge, expressing the combination of "main considerations" that led to his ultimate conclusion that the children should reside with one parent rather than another. … Inescapably, at both levels of the judicial process, intuition plays a part in the ultimate decision. It will sometimes be hard to explain. …
(Footnotes omitted)
[13] (1998) 197 CLR 172 at [186] (Kirby J).
Grounds of appeal
With due respect to the mother, the grounds of appeal are infelicitously drafted but appear to challenge the primary judgment on the following general grounds:
(1)Inadequate reasons;
(2)Acting upon wrong principle including, but not limited to, failing to apply s 140(2) of the Evidence Act 1995 (Cth);
(3)Failing to afford procedural fairness; and
(4)Affording too much weight to the opinion of the single expert witness.
It is, of course, the mother’s responsibility to identify appealable error in the primary judgment and:
…It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appealable error.[14]
[14] Bahonko v Sterjov (2008) 247 ALR 168 at [3].
This observation is not intended to be a criticism of the mother, who has no doubt done her best in the difficult circumstances in which she finds herself, but rather to highlight the limits on the role of an appellate court.
A challenge based on a failure to afford procedural fairness must be dealt with first because, if successful, it may infect the whole of the hearing at first instance.[15]
[15] Koyroyshs & Koyroyshs [2021] FedCFamC1A 54 at [34] citing Concrete Pty Ltd v Parramatta Design& Developments Pty Ltd (2006) 229 CLR 577 at [117] (Kirby and Crennan JJ).
Ground 3
The judge erred by failing to apply the principles of procedural fairness, where the child has been denied a meaningful relationship with her mother to ensure the psychological wellbeing of a child and failing to apply the objects of Part VII of the Family Law Act 1975 and s 60CC provisions.
The paragraphs of the mother’s Summary of Argument purportedly dealing with this ground merge into numerous other grounds of appeal. On the procedural fairness ground, it appears that the mother misconceives the nature of a right to procedural fairness. Such a right does not require a person to be afforded an endless opportunity to argue their case but, rather, “a person whose interests may be adversely affected by a decision”[16] is entitled to know the case they have to meet and have the chance to present evidence and make submissions in relation to it.[17]
[16] Allesch v Maunz (2000) 203 CLR 172 at [35] (Kirby J).
[17]Allesch v Maunz (2000) 203 CLR 172 at [35] (Kirby J); Kioa v West (1985) 159 CLR 550.
Understandably, the mother is dismayed by the decision made at first instance, but the father’s proposal for a change of living arrangements for the child and limitations upon the child spending time with the mother, as well as the factual basis contended to support his proposal, were fairly raised and argued at trial. The mother was represented at trial and both written and oral submissions were made on her behalf. The mother cannot sustain her submission that she was not given the “opportunity to explain”.
In her oral submissions in the appeal, the mother focused on what she submitted was the primary judge’s failure to afford procedural fairness to the child, in that the primary judge did not obtain updated evidence of the child’s wishes.
In determining what is in the best interests of a child, the Court must consider the matters set out in s 60CC of the Act, including s 60CC(3)(a) which is in the following terms:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.
Section 60CD(2) of the Act provides that a court may inform itself of views expressed by a child as follows:
(a)by having regard to anything contained in a report given to the court under subsection 62G(2); or
(b)by making an order under section 68L for the child's interests in the proceedings to be independently represented by a lawyer; or
(c)subject to the applicable Rules of Court, by such other means as the court thinks appropriate.
At the commencement of the trial, the mother applied for an adjournment for not less than nine months “to permit [the child] to become engaged and obtain therapy”[18] with the focus of the therapy being to “re-establish and improve the relationship between the father and [the child], and to ameliorate any distress and/or anxiety occasioned upon [the child] resuming time with her father”.[19] The application by the mother was not to obtain an updated report from the expert child psychiatrist, Dr D. The primary judge nevertheless considered doing so, but arrangements could not be made for that to occur, in part because of the Covid-19 pandemic restrictions then applicable.
[18] Transcript 6 September 2021, p.11 line 44.
[19] Transcript 6 September 2021, p.11 line 45 to p.12 line 1.
In dismissing the mother’s application for an adjournment of the trial, the primary judge noted in particular the need to assess “the issue of the risk posed in each of the households”[20] and the inconsistency between the mother’s application for the child to undergo therapy to improve her relationship with the father on the one hand, and her allegations that the father had sexually abused the child on the other. If the latter were found to be correct, the primary judge noted that “[t]here may not be any benefit to the child in having any relationship with the father”.[21] The primary judge, with respect correctly, concluded that the “central contention”, i.e. the issue of risk, needed to be resolved.[22]
[20] Transcript 6 September 2021, p.26 lines 25-26.
[21] Transcript 6 September 2021, p.27 line 1.
[22] Transcript 6 September 2021, p.27 line 18.
In any event, the primary judge had the assistance of a report from the expert, Dr D, who conducted interviews with the family on 14 and 15 October 2019, when the child was five years of age. True it is that the report was dated by the time of the trial nearly two years later but, in the context of this ground of appeal, the following opinions of the expert as accepted by the primary judge are relevant:
(1)The child’s development has been compromised by her parent’s chronic conflict;
(2)The child’s attitude to her father was remarkably variable;
(3)The child’s statements about her father seemed like rote lines;
(4)The child appeared delighted to see her father;
(5)It was clear the child does want to spend time with her father just not for a long time;
(6)The couple’s relationship remains one of high conflict.
The primary judge considered the child’s views at [390]–[394] of the reasons and, in particular, said:
394 The expert also opines that as the child was only five years old when assessed she did not have the capacity to critically evaluate what arrangements are in her best interests. There is no reason to assume that the child has gained this capacity since the time of that assessment. Accordingly, little weight is attached to the child’s expressed views.
An ICL represented the child’s interests at the trial and filed a Submitting Notice in the appeal. The ICL met with the child on 11 January 2021 and, in a letter to the parties dated 12 January 2021, informed them that the child “requested to draw a picture in the context of expressing that she remembered being inappropriately touched by the father” (at [171]). The primary judge had regard to the drawing as part of her meticulous examination of all relevant evidence.
The statutory requirement to consider a child’s views in parenting proceedings is addressed by receiving evidence of such views in a Family Report (as occurred in this case) and having the child’s interests independently represented (as occurred in this case). The child also met with the ICL and the drawing undertaken by the child formed part of the evidence at trial.
The mother’s submission that the primary judge failed to afford procedural fairness (to either her or the child) is without merit.
Ground 1
The judge erred by failing her obligation to give adequate reasons and acting on the wrong principle where the orders are harsh, weighting evidence in such a manner that it has led to an injustice.
It is trite to say that a decision at first instance must be supported by reasons which enable an appellate court and the parties to identify the reasoning of the primary judge for the decision appealed against.[23] This will generally require the identification of the issues in the case, the law applicable, an explanation for material findings of fact, and the application of the law to those findings.[24] However, not every finding of inadequacy of reasons will result in a successful appeal. In Beale v Government Insurance Office of New South Wales,[25] Meagher JA said:
It does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered.
[23] DL v The Queen (2018) 266 CLR 1; Bennett and Bennett (1991) FLC 92-191 at 78,266–78,277.
[24] DL v The Queen (2018) 266 CLR 1; Bennett and Bennett (1991) FLC 92-191 at 78,266–78,277.
[25] (1997) 48 NSWLR 430 at 444.
With respect to the mother, the written submissions in support of this ground also have a tendency to merge into other grounds of appeal or to re-argue the case at first instance. The mother, in her oral submissions, stressed that she was not attempting to re-argue her case and stated several times that she accepted the primary findings i.e. that the father did not sexually abuse the child and does not present an unacceptable risk of doing so in the future.
Doing the best we can, the mother challenges the adequacy of the primary judge’s reasons in relation to the following matters:
(1)How the risk posed by the mother of psychologically harming the child was unacceptable when (the mother submits): “the mother was not deemed malicious”,[26] “a reasonable person could consider after hearing that evidence from their child that something inappropriate had happened”,[27] and Orders 8 –11 (inclusive) “mitigate the risk”;[28]
(2)Why the change in the child’s living arrangements was necessary given the mitigation of risk;
(3)How the mother and child can have a meaningful relationship when the order makes no provision for holiday time, special days or communication with the child and, in the long-term, the mother’s time with the child is limited to 72 days per year; and
(4)Why the mother was restrained from attending the child’s school without the father’s written consent in circumstances where the father did not seek such a prescriptive order.
[26] Mother’s Summary of Argument filed 28 June 2022, p.3.
[27] Mother’s Summary of Argument filed 28 June 2022, p.4.
[28] Mother’s Summary of Argument filed 28 June 2022, p.4.
(1) “Mitigation” of risk
In relation to (1) above: the primary judge considered the mother’s motivation for making the allegations of sexual abuse at [283]–[299] and, in particular, said:
294 The ICL does not take the position that the mother’s view about the father was formed maliciously and does not seek a finding to that effect. Although the ICL contends that it has never been reasonable for the mother to hold the views that she did, the Court could not be satisfied, in the ICL’s submission, that the mother intentionally set out to concoct a version of events to bring about the result she wanted.
295 In my view, the evidence of the expert in relation to this matter is particularly useful and weighty. In relation to the mother’s motivation the expert remains of the opinion that the mother’s beliefs about the father’s conduct towards the child are overvalued, firmly held and unlikely to change, rather than false.
296 The expert was well able to explain her reasoning in reaching the opinion as to the way in which the mother came to believe the father had sexually abused the child and her reasons for characterising the mother’s belief as an overvalued idea rather than malicious allegations. This is outlined at length earlier in these Reasons.
297In my view, some of the matters deposed to in the mother’s affidavit regarding her concerns that the child may have been sexually abused well before the child’s first disclosure must be approached with caution and could support the contention of malicious motivation. However, I consider that these matters are equally consistent with the expert’s formulation about the mother’s overprotectiveness and vigilance in light of her own early experience of trauma arising from sexual abuse and her enmeshment with the child. I also agree that there are many concerning features about the mother’s approach to the question of sexual abuse and to the contamination of the child’s ongoing disclosures from December 2018 and the limited evidentiary value of those disclosures as a result. However, I also consider these matters to be equally consistent with the expert’s opinion as to how the mother came to hold the unshaken belief about the child’s experience of sexual abuse.
298I also have some suspicion about the mother’s ongoing consent to orders over time in the proceedings which provided for the child’s time with the father, including overnight time, and agree that it is a significant inconsistency in the mother’s case. However, it is also clear that there were numerous occasions over a number of years including the period of over 12 months since January 2021 where the mother has not facilitated the child spending any time or having contact with the father. This is equally consistent in my view with her steadfast belief in relation to the dangers posed by the father which has been the ongoing and consistent theme in her approach to the proceedings to date.
299In summary, having regard to the foregoing, I cannot be satisfied to the requisite standard that the mother did act maliciously and intentionally when alleging sexual abuse and consider it more likely that the allegations came about as hypothesised by the expert.
It is important to note that while rejecting the father’s contention at trial that the mother was motivated by malice, the primary judge went on to state:
383 … Focus on the mother’s intent when considering the risk of psychological abuse, however, is not determinative having regard to the expert’s opinion to the effect that the ongoing maintenance of a belief that the father has harmed the child with the result that the child also continues to falsely believe that the father abused her and is to be feared, amounts to psychological abuse even if it occurs unintentionally.
384 The expert opined there is a real likelihood, if not an inevitability, that the mother will not change her fixed belief about the father’s abusive behaviour towards the child. It is also likely, given the history of the mother’s belief, and the impact upon the child having regard to the nature of the mother/child relationship, that the child will continue to hold the belief that the father has harmed her and is to be feared if she remains living with the mother. This domain of psychological abuse is weighty when considering the alternative proposals of the parties.
385 … In the expert’s opinion, if the child lives with the mother and spends no time with the father the child will not only experience the significant loss associated with the absence of her father, but will grow up believing she has been sexually abused and believing that the father is “a bad person who has done bad things and should not be known to her”. The various risks to the child including the possibility that she may experience complex trauma and its associated consequences is dealt with at length in these Reasons when considering the expert’s evidence.
At the end of [385], the primary judge included a footnote reference to [220] of the reasons, which stated:
220 The expert explained that there is a risk that when the child is forming her identity she will identify with “bad dad” and that if she has not learnt that a parent is a safe person to be around this will detrimentally affect her relationships when she is older. The expert described having a warm and loving relationship with a parent as being significantly important for a child’s self-esteem and that for adolescent girls having a father’s esteem is very good for their sense of self-confidence. The expert reiterated that if the father were both absent and demonised there would be “significant consequences” for the child which “would probably fall in the realm of being complex type trauma”. The expert went on to outline the many adverse outcomes that may be experienced by a person who has a complex trauma disorder including that they may experience emotional dysregulation, become avoidant, be prone to substance and alcohol use, and possibly become promiscuous.
The mother submits in her Summary of Argument filed 28 June 2022 that “a reasonable person could consider after hearing that evidence from their child that something inappropriate had happened” (at page 4). No such finding was made by the primary judge. Indeed, the primary judge accepted the opinion of the expert that the child was “highly impressionable and therefore easily led by her mother’s line of questioning” and “has been exposed to the mother’s negative views of the father” (at [249]). Further, at [249], the primary judge found:
…it likely that in the December 2018 interview with the mother the child was aware that the mother was invested in the subject matter of the questions and there is a real risk that she wanted to please her mother by giving the answers she understood the mother wanted.
The primary judge accepted the opinions of the expert and concluded that the risk posed by the mother was unacceptable (at [387]). It is tolerably clear that the combination of findings, including that the mother held a “fixed belief about the father’s abusive behaviour towards the child” (at [384]), the “real likelihood, if not inevitability, that the mother will not change her fixed belief about the father’s abusive behaviour towards the child” (at [384]), and the risk of adverse outcomes for the child (at [220]) if the child remains living with the mother, more than adequately explain why the primary judge concluded that the risk posed by the mother was unacceptable.
The primary judge further concluded at [409] that:
[T]he mother’s belief about the father, even if overvalued rather than consciously false, has brought about the result that the child falsely believes that the father abused her and is to be feared. This confirms that the mother’s parenting capacity is significantly compromised as identified by the expert.
Orders 8–11 inclusive provide for the mother to undergo therapeutic counselling to, among other things, support the mother to accept the outcome of the proceedings and the Court’s findings, address her own life experiences (e.g. her own childhood sexual abuse), and manage her emotional regulation when spending time and communicating with the child; for the father to undergo therapeutic counselling to, among other things, assist the father with tools and strategies to implement the parenting orders and support the child’s re-integration into his household; for the child and parents to engage in family therapy; and for the continued attendance of the child upon a paediatrician to further assess and treat her mental illness.
While Orders 8–11 (inclusive) are no doubt intended to assist the parents to move forward and to manage, to some extent, the unacceptable risk posed by the mother, there can be no suggestion that such provisions “mitigate” the risk such that the child could continue to live with the mother or spend significant and substantial time with her. Indeed, the primary judge noted the expert’s opinion at [221] that the mother had “limited insight about the influence of her own sexual abuse on her approach to parenting” and that even if the mother engaged with a therapist “there was a long path for the mother to follow in addressing the matters of concern.”
The primary judge balanced the need to protect the child from the mother with the expert’s opinion that it was “critical for [the] child to receive support between the two parents” (at [223]). In fashioning appropriate orders for the mother’s time with the child, the primary judge took account of the expert’s opinion that “such contact should not be so often as to disrupt the stabilisation of the child in the father’s household, but often enough to give the child some reassurance that the mother ‘is still available and loves [her] and wants to be with [her], and that eventually they will see each other in a more normal way’” (at [227]). Further, that “any move to unsupervised time could only be considered after at least six months of family therapy” (at [228]).
(2) Why change was necessary
In relation to (2) above: it is important to observe that in addition to the finding of unacceptable risk posed by the mother, the primary judge found that if the child continued to live with the mother, the child would not have a relationship with the father (at [378]), and that the only way the child could have the benefit of a meaningful relationship with both parents was if the child lived with the father (at [379]).
(3) Meaningful relationship
In relation to (3) above: the two primary considerations in s 60CC(2) of the Act that the Court is required to consider, when determining the best interests of the child, are the benefit to the child in having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm. Section 60CC(2A) requires the Court to give greater weight to the need to protect the child.
The primary judge said, with respect correctly:
377 The meaning of the phrase “meaningful relationship” is not defined in the Act but has [been] interpreted by the Full Court as meaning a relationship that is “significant” “important” or “of consequence”. The word ‘meaningful’ is qualitative rather than quantitative and the phrase has not been interpreted as requiring the Court to craft orders to support an optimal relationship, or creating a presumption that a child does receive a benefit from having a meaningful relationship with both parents.
(Footnotes omitted)
The mother’s focus on the quantitative, e.g. 72 days per year, rather than the qualitative, does not establish any failure on the part of the primary judge to provide for the child to have the benefit of a meaningful relationship with the mother in the future.
In relation to the primary judge’s failure to provide for the child to spend holiday time with the mother, the primary judge gave careful consideration to such provision at [460], but ultimately accepted the ICL’s submission that:
…the risk to the child that would be raised if she were to make further disclosures and/or experience difficulties in the father’s care, are heightened if there were to be lengthy periods of overnight time with the mother, such as in the school holiday period as proposed by the father.
The primary judge also noted that the ICL’s proposed orders “incorporate all of the recommendations of the expert” (at [462]).
Given the uncertainties about the success of the mother’s engagement in therapy “having regard to the steadfast nature of her beliefs” (at [459]), the primary judge, in our view, went as far as possible in making predictions and assumptions about what would best meet the needs of the child in the foreseeable future by the specific ‘spend time with’ provisions in the order, while leaving open the prospect of extended time in the future if the parents agreed. It should also be observed that any parenting order is capable of variation (s 64B(1)(b)) if there has been a significant change in circumstances.[29]
[29] Rice and Asplund (1979) FLC 90-725.
(4) Injunction
As to (4) above: Order 16.5 made by the primary judge restrains the mother from:
Attending upon the child’s school whilst the child is present on school grounds, except for at times provided for by these Orders or with the father’s prior written consent.
The form of the injunction made against the mother was adopted by the primary judge from the Amended Minute of Order proposed by the ICL (at Exhibit 20) despite the father proposing something less restrictive i.e. the mother giving the father 24 hours’ written notice of an intention to attend at the child’s school.
The injunction appears to be reasonable in the context of this case, given the child’s long history of “exposure to the dynamics between her parents which the expert described as a ‘horrible experience for all of her life’” (at [333]).
In any event, it does not appear that any submissions were made by the mother at trial opposing the injunctions proposed against her by the ICL and/or the father, despite having the opportunity to do so.
The absence of any specific discussion about the injunction in the reasons does not, in our view, demonstrate material error.
In our view, the reasons provided by the primary judge more than adequately explain the reasons for her decision and the order made to implement that decision.
The mother has failed to establish an appealable error by Ground 1.
Ground 2
The judge erred by failing to apply principles of discretion in a balanced way, determining fact correctly, including but not limited to failing to apply the evidence act section 140/2.
The written submissions in support of this ground again touch upon the adequacy of reasons, which has already been addressed. Further, the appellant contends that in “making Orders limiting the child’s time with the mother” the primary judge failed to apply the “statutory intention”[30] e.g. ss 60B, 60CC and 60CD. In this very broad ground of appeal, the applicant focusses in her written submissions, as best as we can determine, on the following:
(1)The absence of recent evidence about the child from an expert, which made the reliance on “stale” evidence problematic as it “would not meet the level of Briginshaw having limited strength of evidence to make such a determination about a child’s mental health and change in circumstances” (a reference to Briginshaw v Briginshaw (1938) 60 CLR 336 and s 140(2) of the Evidence Act 1995 (Cth));[31]
(2)The reliance, by the primary judge, on an expert whom the appellant submits did not have “specialised knowledge”.[32]
[30] Mother’s Summary of Argument filed 28 June 2022, p.5.
[31] Mother’s Summary of Argument filed 28 June 2022, p.6.
[32] Mother’s Summary of Argument filed 28 June 2022, p.6.
With respect to the appellant, her tangential approach to submissions made it difficult to understand, with any real confidence, what she was contending was the error, but doing the best we can, the following additional matters were raised during her oral submissions:
(3)The primary judge failed to place any weight or sufficient weight on the following matters:
(a)The impact on the child of being removed from her primary carer;
(b)The untested skills of the father in caring for the child, particularly a child who had been diagnosed with a mental illness; and
(c)The change in the father’s circumstances since Dr D’s report in that he was no longer in a de facto relationship.
(1) Evidence as to the child’s mental health – “stale” evidence
In relation to (1) above: as discussed earlier in these reasons at [83]–[84], the primary judge considered obtaining a further report from the expert but ultimately determined that it was of absolute importance to decide the central contentions of risk in each household without further delay. It is also important to observe that the mother did not seek to adjourn the trial to obtain updated evidence from the expert but rather for the child to undergo further therapy in relation to the child re-establishing her relationship with the father. As observed by the primary judge when dismissing the mother’s application for an adjournment of the trial, if the father had sexually abused the child or presented an unacceptable risk of doing so, the focus of such therapy could well be entirely inappropriate.
Notwithstanding the dated expert report, there was nevertheless significant evidence (at a time both before and after the completion of the expert’s report) about the child’s concerning behaviours e.g. pulling out her eyelashes, threatening to kill herself, being aggressive to peers, punching herself, being inattentive and disruptive. The source of the evidence was the mother, the child’s school, the expert and a hospital, all of which is set out in considerable detail in the primary judgment (at [114], [181], [197], [310], [312], [313], [317], [319], [320], [324], [325]–[328]). The primary judge also noted that the child was diagnosed with a mental illness in April 2021 (at [87]) and the features and impact of that diagnosis for the child (at [431]–[432]).
The primary judge also took into account the expert’s opinion that the child’s behaviour in pulling out her own eyelashes while suggesting she may kill herself was “a classic symptom of anxiety” rather than an example of self-harming (at [230]).
Having determined that the father had not sexually abused the child and did not pose an unacceptable risk of doing so in the future, the primary judge considered the child’s mental health at [330]–[339], and concluded:
337 … I am satisfied that the psychological difficulties experienced by the child most likely to arise from her exposure to the parental dispute and parenting dynamics and the totality of her lifetime experiences. The child has lived her entire life with a mother who since at least December 2018 has held a fixed belief that the father has harmed the child and that there are real risks associated with her spending time with him and had little experience of the reality of the father’s care. I consider it likely that for a number of years the child has been aware of the mother’s beliefs and feelings and is anxious about the prospect of living with the father, especially given the nature of the enmeshed relationship between herself and the mother, and that these are the reasons for the child’s presentation rather than a fear of the father based on an authentic memory of having been abused by him.
(2) Challenge to expert’s expertise
In relation to (2) above: there was no challenge to the expertise of the expert at trial. The mother seeks to do so for the first time in the appeal. The mother is bound by the conduct of her case at trial.[33] Nevertheless, we note that in accepting the expert’s evidence, the primary judge set out the expert’s impressive qualifications and experience:
235The expert is a well-qualified and extremely experienced child and family psychiatrist, having had experience in clinical practice as a psychiatrist specialising in child and family psychiatry for over 30 years. She has been appointed as an expert in proceedings by the Family Court since 1987 and from 2001 to 2017 was an authorised clinician in [Clinic L]. The expert has also been engaged in teaching practice including supervising trainee psychiatrists much of her career. The expert interviewed the family over two days and had access to a wide range of documents as well as speaking to various relevant people as outlined. The expert was extensively cross-examined in the proceedings and was able to justify her opinions which generally remained consistent with her report as a result of cross-examination. Having regard to the foregoing, I accept the opinion of the expert and attach significant weight to it.
[33] Metwally v University of Wollongong (1985) 60 ALR 68 at 71.
The primary judge was entitled to accept the expert’s evidence.
(3) Weight challenges
Challenges to a judgment on the ground of a failure to place weight or sufficient weight on particular matters are notoriously difficult to establish.[34]
[34] Gronow v Gronow (1979) 144 CLR 513 at 519-520 (Stephen J).
The primary judge considered the impact on the child of a change to her primary living arrangements at [229] and [411]–[415].
In particular, the primary judge took into account that the expert “opined firmly” that if the child moved to live with the father “the child will increase her rejection of the father initially” and that there was a “real possibility” that the child would attempt to run away “given the testing behaviour in which the child has engaged” (at [229]). The primary judge also took into account the need to “‘normalise her life as much as possible’… [by] not changing her school, keeping up play dates with friends and her regular extracurricular activities” (at [229]). While it was anticipated that a move to live with the father would undoubtedly be “a stressor for [the child] which involved some risk”, the primary judge accepted that “it was a risk that was manageable so long as she was supported” (at [230]). The primary judge further took into account the expert’s opinion that “unless there were findings of unacceptable risk, she did not see any difficulty in theory with having the child living with the father” (at [233]). The primary judge accepted that, despite the difficulties likely to be experienced by the child upon her move to the father’s care, “the father seemed to have adequate capacity to meet the child’s needs if she were to live with him alone” (at [412]).
The primary judge concluded:
415There is no doubt that the child will experience a significant loss if she is to move to live with her father especially given the nature of her relationship with her mother and her limited experience of the father’s care. She is also likely to engage in highly challenging behaviour as discussed. I do not consider, however, that the father’s lack of experience in having the child living with him or the concerns arising from his failure to provide evidence of social supports are so great that the child would be placed at an unacceptable risk of harm as contended by the mother having regard to the entirety of the expert’s evidence.
The change in the father’s personal life, i.e. that he had broken up with his de facto partner, was a fact specifically taken into account by the primary judge:
412As noted, the expert’s assessment of the father’s parenting capacity was made in the context of the father then presenting himself as a potential caregiver with his then-partner. When questioned about the change in the father’s circumstances, the expert maintained that the father seemed to have adequate capacity to meet the child’s needs if she were to live with him alone as opposed to in a couple relationship with his former partner.
The mother has failed to establish an appealable error by Ground 2.
Ground 4
The judge erred by attaching significant weight to the opinion a single expert who does not have specialised knowledge, where the voice of the child has not been heard in line with good practice and in particular but not limited to the object in sections 60 B, 60 CD(1), 60 CD (2A[sic]) and 60 CD (2C[sic]) of the Family Law Act.
This ground largely repeats previous grounds of appeal which have already been dealt with and rejected.
The general reference to particular sections of the Act does not assist in identifying what it is the mother contends represents appealable error.
Section 60B of the Act sets out the objects and principles of Part VII (Children) of the Act and, in particular, the child’s right to know and be cared for by both parents when it is safe to do so.
Section 60CD deals with how the Court may inform itself of a child’s views i.e. by having regard to a report, by the appointment of an ICL, or by such other means as the Court thinks appropriate.
The mother did not object to the expertise of the expert at trial and has not demonstrated that the primary judge was in error to rely upon her evidence. The “voice of the child” was heard through the report prepared by the expert, the evidence and submissions presented by the ICL and, of course, from the evidence and submissions made by each of the parents.
The mother has failed to establish an appealable error by Ground 4.
Outcome
The mother has failed to establish any appealable error. The appeal will be dismissed.
Costs
The father seeks to be reimbursed for his costs of the appeal. While parties generally bear their own costs in family law proceedings, an order for costs can be made where there are found to be circumstances justifying such an order (s 117(2) of the Act). In considering what, if any, order for costs to make, the Court is required to have regard to the matters set out in s 117(2A) of the Act, so far as relevant.
In this case, the mother has been wholly unsuccessful in the appeal and, pursuant to an order made by consent on 18 July 2022, the mother agreed to pay into a bank account the sum of $7,700 by way of security for the father’s costs in the appeal. On 4 July 2022, the father suggested the mother withdraw her appeal and offered not to seek costs in that event. The mother did not accept that offer.
In our view, the circumstances justify an order for costs. The Court not only has the power to order a specific amount for costs, such an order is preferred so as to avoid further delay and expense to the parties.[35]
[35] Stopford Malloy & Malloy (Costs) [2018] FamCAFC 6 at [10]–[12].
By his most recent Schedule of Costs filed 22 July 2022, the father particularises his costs in the sum of $6,206. We note that the father’s counsel was briefed directly by the father and the schedule represents only the fees of his counsel of $4,639.39 and disbursements for copying the appeal book (1,176 pages) and transcript (482 pages) of $1,567. The total sum claimed appears entirely reasonable. The mother will have seven days to pay $6,206 to the father.
I certify that the preceding one hundred and thirty-nine (139) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Carew & Henderson. Associate:
Dated: 21 October 2022
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