Gabbey & Cadriel
[2024] FedCFamC1A 60
•17 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Gabbey & Cadriel [2024] FedCFamC1A 60
Appeal from: Cadriel & Gabbey (No 5) [2023] FedCFamC1F 1028 Appeal number: NAA 330 of 2023 File number: ADC 4072 of 2019 Judgment of: AUSTIN, JARRETT & RIETHMULLER JJ Date of judgment: 17 April 2024 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the appellant mother appeals final parenting orders – Where the appealed orders provide for the children to live with the respondent father and spend no time with the appellant – Whether the primary judge misunderstood the appellant’s evidence and erred in finding the children would be the subject of serious psychological risk in the sole care of the appellant – Where the appellant has made serious allegations of sexual abuse by the respondent – Where the primary judge did not misconstrue or mistake the appellant’s evidence – Where the appellant challenged the consideration and weight ascribed by the primary judge to various parts of the evidence – Where the primary judge gave proper, genuine and realistic consideration to the matters identified by the appellant – Where the primary judge made orders restraining the appellant from approaching and communicating with the children’s school and medical health professionals – Whether the primary judge ought to have considered an alternative set of orders not sought by any party – Where the failure of the primary judge to give any reasons for the making of the injunctive orders is an error of law – Appeal allowed in part – No order for remitter made – Costs certificates ordered. Legislation: Family Law Act 1975 (Cth) Part VII, ss 60CC, 62G, 65L
Federal Proceedings (Costs) Act1981 (Cth) ss 6, 9
Cases cited: Bielen & Kozma (2022) 66 Fam LR 59; [2022] FedCFamC1A 221
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8, [43]
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76, 230–231
D & SV (2003) 30 Fam LR 91; [2003] FamCA 280, [18]–[20]
Edwards & Noble (1971) 125 CLR 296; [1971] HCA 54
Gronow & Gronow (1979) 144 CLR 513; [1979] HCA 63, 519
House v The King (1936) 55 CLR 499; [1936] HCA 40, 504–505
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
Lovett & McGregor (2019) FLC 93-935; [2019] FamCAFC 253, [72]
Mallett v Mallett (1984) 156 CLR 605; [1984] HCA 21
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28, [71]
Whisler & Whisler (2010) 42 Fam LR 633; [2010] FamCAFC 18
Number of paragraphs: 94 Date of hearing: 18 March 2024 Place: Adelaide Counsel for the Appellant: Ms Painter & Ms Tabbernor Solicitor for the Appellant: Mills Oakley Counsel for the Respondent: Mr McQuade Solicitor for the Respondent: Southern Vale Legal Counsel for the Independent Children’s Lawyer: Ms Olsson Solicitor for the Independent Children’s Lawyer: Silkwoods ORDERS
NAA 330 of 2023
ADC 4072 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS GABBEY
Appellant
AND: MR CADRIEL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN, JARRETT & RIETHMULLER JJ
DATE OF ORDER:
17 APRIL 2024
THE COURT ORDERS THAT:
1.The appeal is allowed in part.
2.Orders 9(b), 9(c) and 9(d) made on 4 December, 2023 are set aside.
3.The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
4.The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
5.The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of the costs incurred by the respondent in relation to the appeal.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gabbey & Cadriel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, JARRETT & RIETHMULLER JJ:
After a trial lasting 16 days, on 4 December, 2023 a judge of the Federal Circuit and Family Court of Australia (Division 1) ordered that the children of the appellant and the respondent live with the respondent (their father), that he have sole parental responsibility for them and save for some contact through the provision of cards, letters and gifts on special occasions, they have no contact or communication with the appellant (their mother).
The mother appeals all of the orders made by the primary judge. She advances five grounds, although one was abandoned by her senior counsel during the hearing before us. The respondent opposes the appeal.
For the reasons that follow, only one ground of appeal enjoys success. The consequence of that success is that order 9 of the primary judge’s orders is set aside. The balance of the appeal is dismissed.
BACKGROUND
The following facts are largely (although not entirely) uncontentious and to the extent that they constitute findings by the primary judge, no challenge was mounted to any of them in this appeal. A recitation of them is necessary to provide context to the contentious issues the primary judge was called upon to resolve that are relevant to this appeal.
The appellant has two children from an earlier relationship, D (aged 17 years at the time of trial) and E (aged 11 years at the time of trial). D lived with her father and spent time with the appellant subject to D’s wishes. E lived with the appellant and spent time with his father.
The appellant and the respondent, both then in their early forties, met online in April, 2015. The appellant lived in Australia and the respondent lived in Country G. In July, 2015 the appellant travelled to Country G to meet the respondent face-to-face for the first time. Despite the appellant’s case that the parties never had a relationship with each other, in July, 2015 they became engaged to be married.
Between July, 2015 and October, 2015 the parties remained in regular communication via telephone. In preparation for the parties’ wedding, the appellant, the respondent, D and the appellant’s mother spent time together. During that time, they travelled on a sleeper bus trip from Region UU to City SS.
The parties married in City SS in November, 2015. The appellant’s parents, her younger brother and D attended the wedding. After their wedding the parties travelled by air to honeymoon in City TT.
The appellant returned to Australia in early-December, 2015 and later that month she informed the respondent she was pregnant. The parties’ first child, X, was born in 2016 in Australia.
In the meantime, in January, 2016 the parties ceased communicating. The reason for this was in dispute and the primary judge did not resolve that dispute. It was not necessary to do so. The parties recommenced communication in about May, 2016.
Between May, 2016 and April, 2018 the parties remained in communication. The respondent provided the appellant with money each month and the appellant sent photographs of X to the respondent.
The respondent came to Australia in early-April, 2018. The appellant collected him from the airport and he stayed with the appellant and X for three weeks. He returned to Country G in late-April, 2018.
The respondent returned to Australia in June, 2018 and remained until December, 2018. He left Australia to finalise arrangements for his spouse visa. Although there was a dispute about when the respondent applied for a spousal visa so as to permit him to come to Australia and whether he pressured the appellant to pay for that visa, it is uncontroversial that the respondent was granted a spousal visa.
The respondent returned to Australia in December, 2018 and lived with the appellant and X until 3 April, 2019. The primary judge termed this as the date of the parties’ final separation, but it was always the appellant’s case (notwithstanding an assertion made by her from time to time that there was never a relationship at all) that they had been separated from at least January, 2016.
From 3 April, 2019 the appellant permitted the respondent to spend time with X on one or two occasions each week, but only in public. X’s time with the respondent soon broke down and ended completely in June, 2019.
The parties’ second child, Y, was born in July, 2019.
The respondent commenced proceedings in 2019 and after interim orders were made on 19 June, 2020 X spent supervised time with him in July, 2020. The orders provided for Y to also spend time with the respondent, but she never did. The supervised visits persisted for about a year, but ended when the appellant ceased complying with the order in June, 2021. Aside from a short period of time undertaken for the purposes of a s 62G report, neither X nor Y spent any time with the respondent between June, 2021 and December, 2023 when they came into his care pursuant to the primary judge’s orders the subject of this appeal. That is despite the primary judge, as part of his management of the case towards a final hearing, ordering a s 65L Assessment Report to be undertaken shortly before the commencement of the trial. The appellant refused to attend the appointments for that purpose or present the children in accordance with that order.
THE ISSUES BEFORE THE PRIMARY JUDGE
The outcome contended for by the appellant was that she should have sole parental responsibility for the children, that they live with her and spend no time with the respondent. The primary judge summarised the appellant’s position thus:
25.…she does not consider the children should have any relationship with the father whatsoever nor should there be any information provided to the father as to the care, welfare and development of the children.
26.Moreover, the mother was resolute in her determination that she would not comply with any orders that provided for the children to spend time or communicate with the father or that would enable a meaningful relationship to be fostered.
It was the appellant’s case that the respondent had perpetrated sexual violence upon her regularly when they were together including on the evening of their engagement party, on the overnight trip from Region UU to City SS (the assaults lasting “all night”), on their honeymoon in City TT, on the day she collected the respondent from the airport in Australia when he came from Country G to visit her and on at least one other occasion. She describes the assaults variously as “rape” or “digital rape” and considered that the parties’ children were conceived as a result of some of those rapes.
The appellant also alleged that in early 2018 she had observed the respondent sexually assaulting X.
The appellant contended that her proposed outcome was in the best interests of the children because:
(a)the respondent had committed significant acts of sexual violence towards the appellant;
(b)the appellant had observed the respondent sexually assaulting X;
(c)by reason of these matters, the respondent presented as an unacceptable risk to the children because he had the very real and probable intention of sexually abusing them;
(d)by reason of the sexual violence she and X had experienced at the hands of the respondent and its effects upon her psychological well-being, if the court were to make an order in favour of the father, her ability to parent the children would be significantly compromised to their detriment; and
(e)in any event, the respondent had no real interest in a meaningful relationship with the children, but rather he was using the process to obtain or maintain a visa that would permit him to remain living in Australia.
Although he initially sought that he and the appellant have equal shared parental responsibility for the children and after the children live with him for six months without spending time with the appellant they would thereafter spend week about with each of them, by the conclusion of the final hearing the respondent’s position had changed. At the conclusion of the trial, he sought orders for sole parental responsibility for the children, that they live with him and spend no time with the appellant. His position was informed by his contentions that:
(a)the appellant would not promote a relationship between him and the children;
(b)the appellant would inform the children that the respondent was a rapist, had sexually abused X and that both children had been conceived as a result of rape; and
(c)the only way the children would have a meaningful relationship with him was if they live with him to the exclusion of the appellant.
The primary judge had the benefit of an Independent Children’s Lawyer. Although she submitted that the best interests of the children would be served by them spending a gradually increasing amount of time with the respondent, she also acknowledged that the appellant’s opposition to the children having any relationship with the respondent was such that there was really no alternative to the orders proposed by the respondent.
THE ISSUES AS RESOLVED BY THE PRIMARY JUDGE
The primary judge concluded that the children would not be at an unacceptable risk of harm in the respondent’s care as the appellant alleged. Underpinning this conclusion was his Honour’s rejection of the appellant’s evidence about the sexual assaults against her. The trial judge accepted the respondent’s denials of any improper behaviour towards the appellant and preferred the evidence of the respondent to that of the appellant on all matters critical to her contentions about these matters. Specifically, the trial judge said:
417.I do not accept the mother’s evidence that she was sexually assaulted involving conduct consistent with digital rape on the evening of the engagement nor do I accept that the mother was digitally raped for the entire night whilst on a sleeper bus travelling between Region UU and City SS.
418.The further allegation of the mother that she was raped by the father upon his arrival in Australia is not made out. The mother’s allegation of rape is underpinned by the reference to the “rape” or “pregnancy” dress. It is not a matter of the mother’s evidence being improbable but rather the cross-examination of the mother established a temporal disconnect between the alleged rape and the dress that the mother contends was given to her by the father after the sexual assault as an indication that she would now become pregnant.
419.The evidence in respect of the manner by which the mother chose the dress from a brochure or photograph provided by the father whilst he was in Country G prior to his travel to Australia is such that it could not have been a feature of the alleged assault.
420.If there is no evidence of substance that supports the specific occasions when the mother alleges she was raped by the father then her narrative that categorises subsequent acts of sexual intercourse as being predicated upon rape is not able to be sustained.
Moreover, the trial judge rejected the appellant’s case that the respondent’s “broad conduct was replete with family violence and coercive controlling behaviour” (at [421]).
His Honour also rejected the appellant’s claims that the respondent had sexually abused X or groomed him for future sexual assaults in any way. He accepted the respondent’s evidence that any interaction he had with X was nothing out of the ordinary.
The trial judge concluded that the children would not be at an unacceptable risk of harm in the respondent’s care.
Although his Honour did not do so expressly, by clear implication he also rejected the appellant’s argument that the respondent had no real interest in a meaningful relationship with the children.
His Honour accepted that the mother’s belief about the potential for the respondent to harm the children was a genuinely held belief. However, he did not consider that, given the factual findings he had made, her belief was reasonable. His Honour said:
313.As discussed, whilst I am likely to accept that the mother’s entrenched opposition to the father is not made up, I consider that the evidence which underpins the mother’s position is inherently unreliable.
More than that, the primary judge considered that some of the appellant’s behaviour could properly be seen as malicious:
429.The concern, anxiety and distress that the mother may hold in relation to the father could well be genuine, albeit without foundation, but her conduct in seeking his deportation, pursuing a private Intervention Order and other avenues of complaint against the father are likely to be malicious in their purpose and pursuit.
The trial judge accepted that the appellant’s views about the respondent and the risk he posed to the children and the appellant were immutable. He recounted the opinion of the Family Report writer, that the potential for the appellant’s resistance to the respondent’s time with the children and her malevolent attitude towards him risked impairing the children’s proper development by the false narrative that he was a rapist, that they were conceived as a result of sexual assault and that he was grooming them to be the willing victims of child sexual abuse, ideas that the trial judge thought will inevitably be conveyed to them by the appellant.
After weighing the risks the trial judge had identified and after considering other relevant matters raised in the evidence, his Honour fixed upon the orders we have already identified. To the extent that it is necessary to do so, we shall refer to the other matters considered by his Honour later in these reasons.
THE GROUNDS OF APPEAL
The first ground of appeal is as follows:
1.In making findings that the mother posed an unacceptable risk of emotional and/or psychological harm to the children, including at [444] and [497], the trial judge erred in:
a.making findings that were not supported by the evidence or otherwise based on a misconstruing of the mother’s evidence;
b.failing to give any, or adequate reasons, for the making of the findings and/or rejection of the mother’s evidence; and
c.denying the mother procedural fairness occasioned by the failure to put to the mother the factual matters that underpin the relevant findings.
Although consisting of three sub-grounds, senior counsel for the appellant accepted that the success of this ground hinged upon Ground 1a. and that Grounds 1b. and c. were subsidiary.
The appellant’s argument, both written and oral, focussed this ground upon the trial judge’s finding that if the children remain in the sole care of the appellant they are likely to be the subject of serious psychological risk. Informing this conclusion was a finding that the appellant was likely to tell the children about what she considered to be the respondent’s sexually violent conduct towards her and the sexual abuse by him of X. The relevant findings of the trial judge to which this ground is directed are exemplified in [442] and [444] of his Honour’s reasons, which we reproduce with some surrounding paragraphs for context:
440.The concern expressed by the family consultant as to the potential for the mother’s resistance to the father’s time with the children and her malevolent attitude towards him places the children at considerable risk. The family consultant was concerned that the proper development of the children may well be impaired by the false narrative that will inevitably be conveyed to them by the mother that their father was a rapist, that they were conceived as a result of sexual assault and that the father was grooming the children to be the willing victim of child sexual abuse.
441.As considered, the mother is not able to recognise the father as having any beneficial relationship connection or involvement with the children. The mother is not able to refer to the father by his name nor any information about him. Nothing that the father has touched is able to be touched by the mother without some level of revolution.
442.The mother conceded that while she was uncertain as to how it would be done, at some point she would tell the children the truth about the father, albeit her truth. The likelihood that the children would grow up with a false belief of the father in terms of his conduct, character and culture has the real potential, according to the family consultant, to adversely impact upon the children’s mental health both as adolescence and then into adulthood.
443.The family consultant considered that the father had the potential to make a positive contribution to the children’s development and that it was critically important that the children spend time with him, even if this resulted in the children being placed in the father’s sole care.
444.It may be that if the children remain in the sole care of the mother, in circumstances where they will have no positive knowledge, awareness or engagement with the father, his culture and extended family, they are likely to be the subject of serious psychological risk and possibly to an unacceptable level.
445.I do not ignore that the report of the family consultant was dated 24 July 2021 and was prepared consequent upon orders made at an interim hearing. It is however not controversial that the matters raised by the family consultant were demonstrably evident in the mother’s presentation at trial. The family consultant was accurate in her prediction that the mother’s attitude towards the father was unrelenting and unlikely to have changed. What is different is that whilst the family consultant considered that the presentation of each of the parties might be inconsistent with the mother’s belief that the father is a violent man who has sexually assaulted the mother and X, a comprehensive consideration of the evidence does not lend any support for the mother’s allegations.
(Emphasis added)
The trial judge’s finding at [442] that the appellant would, at some point, tell the children the truth about the respondent, albeit “her truth”, is central to his Honour’s conclusions about the risk of harm presented by the appellant. So much is apparent from his Honour’s acceptance of the evidence of the Family Consultant at [375] and [440]. It is this critical finding of fact that senior counsel for the appellant argued was not supported by the evidence (Ground 1a.), not “put to the mother” thereby denying her “procedural fairness” (Ground 1c.) and which was otherwise unexplained by his Honour’s reasons (Ground 1b.).
An appeal court should only interfere if the finding was not reasonably open on the evidence: Edwards & Noble (1971) 125 CLR 296. Here, the finding was supported by the appellant’s own evidence.
The prospect of the appellant informing the children of her allegations against the respondent and informing them of her view about the circumstances of their conception was the subject of cross-examination of the appellant by counsel for the respondent, the Independent Children’s Lawyer and questions from his Honour. The appellant’s evidence was clear. She had not told X about any of her allegations (Transcript 3 November 2022, p.670). She was clear that she would not tell them about those allegations herself (Transcript 4 November 2022, p.957, Transcript 9 November 2022, p.1111). However, the appellant accepted that they were likely to ask her questions about their father and his absence (Transcript 3 November 2022, p.667 and p.669) and when that time came, she would seek professional assistance to help explain those matters to the children:
[THE APPELLANT]: …Having to get in here routinely every couple of weeks and talking about all these issues, it has had a toll. Had a major toll, and I am unable to talk about him to the children, and when the time comes, when – obviously, that can’t go on forever but I – I can’t do it on my own. It’s going to need support. Once these proceedings end, hopefully there’s no contact given. It’s going to be support required. I cannot do it on my own.
[COUNSEL FOR THE RESPONDENT]: So - - -?---[X]
[THE APPELLANT]: [X] doesn’t know what happened to him. [X] was molested when he was two. He doesn’t know. So this is – the - - -
[COUNSELF FOR THE RESPONDENT]: [To the appellant], are you intending that you might tell [X] - - -?
[THE APPELLANT]: No.
[COUNSEL FOR THE RESPONDENT]: - - - at some stage - - -?
[THE APPELLANT]: No, but at the end of the day, the children, when they – they will get older. They will start asking questions, and at some point, somebody is going to have to answer the questions, and I can’t do it on my own, and I envisage it’s going to need professional psychological support.
[COUNSEL FOR THE RESPONDENT]: So are you saying at some point, [X] will need to know that his father - - -?
[THE APPELLANT]: If they - - -
[COUNSEL FOR THE RESPONDENT]: [To the appellant] - - -?
[THE APPELLANT]: No. If they start - - -
[COUNSEL FOR THE RESPONDENT]: - - - that his father molested him?
[THE APPELLANT]: Not necessarily. If – if they start asking me questions that I cannot answer, we’re going to need professional support. Children have a right to know their origins, the truth about their lives. They have a – they have a right to know.
[COUNSEL FOR THE RESPONDENT]: So the truth about [X]’s life for you is that he was molested by his father?
[THE APPELLANT]: Not – not only that - - -
[COUNSEL FOR THE RESPONDENT]: Sexually assaulted?
[THE APPELLANT]: Not only that.
[COUNSEL FOR THE RESPONDENT]: Is that a yes or no?
[THE APPELLANT]: He was conceived in – in – to get a visa.
[COUNSEL FOR THE RESPONDENT]: No. No, just this simple question.
HIS HONOUR: Sorry, I missed the last bit?---He was conceived by the applicant
[THE APPELLANT]: Yes?--- - - - as a tool to secure a visa.
HIS HONOUR: I see, yes.
(Transcript 3 November 2022, p.665 line 27 to p.666 line 20) (Emphasis added)
And soon thereafter (Transcript 3 November 2022, p.669 line 22 to p. 670 line 25):
[COUNSEL FOR THE RESPONDENT]: No. The only reason, your Honour – you’re – [to the appellant], you’re saying the children one day will find out the truth because it’s in their - - -?
[THE APPELLANT]: They could.
[COUNSEL FOR THE RESPONDENT]: Their records?
[THE APPELLANT]: No.
[COUNSEL FOR THE RESPONDENT]: Yes?
[THE APPELLANT]: Not they will; they could.
[COUNSEL FOR THE RESPONDENT]: Yes?
[THE APPELLANT]: I don’t – I can’t read the future but there’s a chance – depending on how many questions they ask me, how determined they are to – to get answers to questions. I mean, I’m not going to lie to my kids. I’m not going to lie to them.
[COUNSEL FOR THE RESPONDENT]: So - - -
HIS HONOUR: [Counsel for the respondent], there will never be any support for your client in the mother’s household. It’s as simple as that, isn’t it? Why is it more complicated than that? It’s not a matter of nuance even. To be fair to [the appellant], her position is as clear as she could possibly make it. I accept without question her evidence that she will – she is incapable of supporting any relationship or even any knowledge of their father as far as the children are concerned.
[COUNSEL FOR THE RESPONDENT]: Your Honour - - -
HIS HONOUR: Whether or not ultimately a situation arises where the children ask questions of [the appellant] that she doesn’t feel she is able to deal with and professional assistance is required, isn’t it all part of the same issue?
[COUNSEL FOR THE RESPONDENT]: Well, your Honour, it’s the question of whether [the appellant], when answering the children’s queries, tells them the truth in her mind that [X] has been sexually assaulted - - -
HIS HONOUR: Well, she’s likely to.
THE WITNESS: I have never told – no, but I’m trying to protect my children from his behaviour. So I’ve protected [X] to date.
HIS HONOUR: She’s likely to, [counsel for the respondent], but - - -
THE WITNESS: [X] doesn’t know.
HIS HONOUR: - - - we’re - - -
[COUNSEL FOR THE RESPONDENT]: I won’t go further.
THE WITNESS: Even [Y] – Ms - - -
[COUNSEL FOR THE RESPONDENT]: Yes.
THE WITNESS: Excuse me, [counsel for the respondent], and - - -
HIS HONOUR: But that’s not the issue. We’re a long way down the track from
that.
Later in submissions at Transcript 9 November 2022, p.1111 line 39 to p.1113 line 40):
[COUNSEL FOR THE RESPONDENT]: The proposition is, yes, either of those choices, but that it is more likely than not, in my – we would put to you, and ask his Honour to find, that the mother will say negative things - - -
[THE APPELLANT]: Objection, because there’s no evidence of that.
[COUNSEL FOR THE RESPONDENT]: - - - about the father.
[THE APPELLANT]: There’s no evidence of that anywhere. I’ve never done that. I don’t do that.
HIS HONOUR: No. Excepting I did hear your evidence that when the – if the children were to challenge you about their father and ask questions, your evidence was that you didn’t yet know without some therapeutic assistance as to how you would handle answering the questions - - -
[THE APPELLANT]: No.
HIS HONOUR: - - - put by the children and that you got to the point where there was a possibility that you may actually have to tell them that their father had sexually abused [X].
[THE APPELLANT]: No, no. I - - -
HIS HONOUR: Well, that was your evidence, [to the appellant].
[THE APPELLANT]: - - - said – yes. I said that I would require expert assistance.
HIS HONOUR: Sure.
[THE APPELLANT]: But I made no commitment to saying anything negative to them.
HIS HONOUR: You didn’t make a commitment, but you - - -
[THE APPELLANT]: And that was something that needed to be dealt with down the track when and if we got to it.
HIS HONOUR: But you left – well, that’s a different matter, but you left open the
possibility - - -
[THE APPELLANT]: Yes. On expert advice
HIS HONOUR: - - - that so troubled were you - - -
[THE APPELLANT]: On expert advice.
HIS HONOUR: Well - - -
[THE APPELLANT]: I didn’t – it wasn’t on my motion. It was on whatever the expert advice was.
HIS HONOUR: So that’s fine.
[THE APPELLANT]: This is – [counsel for the respondent] is accusing me of I might just let it slip because I can’t control myself. I’m very capable of protecting my children from this man’s conduct. That’s why we’re in this court.
HIS HONOUR: I don’t know. That’s exactly the point. But are you confirming the point that [counsel for the respondent] is making? It sounds like you are.
[THE APPELLANT]: No. This is - - -
HIS HONOUR: You’re very able to protect your children from this man’s abuse.
[THE APPELLANT]: No. Because Ms – that includes protecting them from disclosures of what he has done. I don’t talk to the children about what he has done.
HIS HONOUR: You don’t at the moment, but you gave the evidence, and it wasn’t even a – I’m not even sure if it was invited, but you gave the evidence that you would need some professional assistance because you didn’t know how you were going to deal with the problem if the children were to make repeated requests to you about their father and what had happened.
[THE APPELLANT]: Yes. And that’s a mature approach. [Counsel for the respondent] is - - -
HIS HONOUR: It might be.
[THE APPELLANT]: - - - accusing me of doing something - - -
HIS HONOUR: It might be.
[THE APPELLANT]: - - - like, totally inappropriate, which I have never indicated I would do and I have not done.
HIS HONOUR: Well, that’s your assessment and I will have to – and I will have to make my own assessment as to whether I consider that there is some possibility or no possibility that you might tell the children the truth as you see it.
[THE APPELLANT]: And I have not done that to date and there’s no evidence - - -
HIS HONOUR: No. You haven’t. I’m not suggesting - - -
[THE APPELLANT]: - - - that I have.
These passages of transcript demonstrate that the trial judge clearly flagged a preliminary view (perhaps even a strong preliminary view) that the appellant would likely tell the children about their father and the things that the appellant alleges he had done. In her view, they were entitled to know these matters. To the extent there was any obligation on his Honour to foreshadow his reasoning or the findings he intended to make so as to give the appellant the opportunity to respond, these passages demonstrate his Honour doing so. That the appellant understood his Honour’s comments is beyond doubt because she engaged with his Honour about these issues.
Moreover, his Honour’s statement at [442] that the appellant “conceded that while she was uncertain as to how it would be done, at some point she would tell the children the truth about the father” was plainly supported by the passages of her evidence in cross-examination we have just set out. Senior counsel for the appellant submitted that the appellant’s evidence was far more nuanced than the trial judge recorded. We accept that it was, but even so, the effect of her evidence was not misstated by his Honour. Whether the children were to be told about the respondent by the appellant herself or by another person organised by her is not to the point because on the appellant’s evidence, once the children began asking questions about their father, they were entitled to have answers and professional support would be needed to provide those answers to them. There was no suggestion they would not be told anything about their father or told something other than what the appellant believed to be true.
Additionally, whilst the appellant’s evidence does not go so far as to identify the recipients of the psychological support she identified was likely to be needed, it is tolerably clear from her evidence that it will be for her just as much as for the children. That she envisages such support being necessary demonstrates that the children will be told, as his Honour put it, “her truth”, rather than the true factual position as found by his Honour and in respect of which there is now no challenge. Indeed, earlier in his reasons at [311], after referring to the appellant’s evidence and how and when she might feel obliged to explain to the children their circumstances, his Honour made a finding in those terms:
311 The importance of the evidence is that it supports a finding that the mother will not tell the children a “fake” story but is likely to explain her version of the events to the children namely, that she was the subject of sexual assault and rape resulting in the children’s conception. I am satisfied that the mother will tell the children that their father is a sexual predator and in respect of X, that the father was grooming him in preparation for a sexual assault.
Even if the appellant made out her submission that the primary judge’s findings about what she would do in terms of informing the children about the father “steadily increase in degree and intensity”, we consider his Honour’s observations and findings to be an accurate recitation of the evidence. Moreover, the submission is not to the point. The primary judge made findings about what the appellant was likely to do and the appellant must demonstrate that those findings were not open on the evidence in order for this ground to succeed. That she cannot do. The evidence supported the finding made by the trial judge who did not misconstrue or mistake the appellant’s evidence.
There is no merit in Ground 1.
GROUND 2
This ground is as follows:
1.The trial judge erred in making orders removing the children from the mother’s care and placing them into the untested sole care of the father, by:
a.failing to properly consider relevant considerations;
b.placing excessive weight on the evidence of the father as to his capacity to care for the children;
c.failing to apply the Statutory Framework and properly assess mandatory considerations as contained in s 60CC of the Family Law Act 1975 (Cth) (“the Act”); and
d.otherwise, failing to give any, or adequate reasons for the matters contained herein.
Senior counsel for the appellant accepted that despite the terms of this ground of appeal, there was no mandatory consideration that the trial judge did not consider and there was no identification of the way in which the trial judge failed to follow the “Statutory Framework” or the matters prescribed by s 60CC of the Family Law Act 1975 (Cth) (“the Act”). Rather, this was a challenge to the consideration of and weight ascribed to various parts of the evidence by his Honour.
In support of this ground, the appellant relied upon Bielen & Kozma (2022) 66 Fam LR 59 which had a somewhat similar factual scenario. The appeal in that case was successful in circumstances where, having found that the mother posed an unacceptable risk of harm to the children and that time and communication between the mother and the children must cease, the primary judge considered that it was “unnecessary to explore the remaining primary consideration and additional considerations contained in section 60CC” (at [40]). The Full Court found error with that approach.
However, the approach of the primary judge here was quite different. His Honour considered the facts as he found them against the framework established by Part VII of the Act and specifically, s 60CC(2) and s 60CC(3).
As the written submissions for the appellant reveal, this ground and the argument in support of it, highlights a shopping list of matters the appellant argues the primary judge did not properly consider or to which he gave excessive or inadequate weight.
To succeed in demonstrating that the trial judge did not give proper consideration to a matter, the appellant must demonstrate that the trial judge did not give “proper, genuine and realistic consideration” to that matter: Lovett & McGregor (2019) FLC 93-935 at [72], applying Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [43].
To succeed in challenging the weight ascribed to evidence, an appellant must establish that the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion entrusted to the court: Mallett v Mallett (1984) 156 CLR 605, per Gibbs CJ citing with approval the statement of Latham CJ in Lovell v Lovell (1950) 81 CLR 513. The well-known passage from Gronow & Gronow (1979) 144 CLR 513 at 519, is worth repeating:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight…
The weight or importance given to evidence is a matter quintessentially for the primary judge unless an appellant can show that the primary judge was “plainly wrong”: CDJ v VAJ (1998) 197 CLR 172 at 230–231.
The first complaint of the appellant is that the primary judge failed to give adequate weight to several matters, namely that:
(a)the respondent worked three casual jobs, including work requiring overnight shifts, with the hope (but not the certainty) that his employment opportunities would shift to allow him to be available to care for the children;
(b)the respondent would be reliant on largely unidentified friends or church colleagues to care for the children when he was unable to do so, noting that those persons were not witnesses in the respondent’s case and of course, persons not known to the children;
(c)the respondent was a person virtually unknown to Y and had last spent time with X some two and a half years prior to judgment, when X was four years old (he being aged 7 by the time of the hearing);
(d)the respondent had no involvement with the children’s schools and/or daycare centre service providers;
(e)the respondent had no involvement with the children’s treaters in respect of their Autism Level 2 diagnosis, with his knowledge as to the same, including how to parent children with such presentations to meet their social and emotional development limited to short courses or books on the subject.
The difficulty for the appellant with this argument is that his Honour did consider each of these matters. He considered the respondent’s work and the arrangements that might be made in that regard at [139]–[143]. The appellant does not cavil with his Honour’s treatment of this evidence.
The primary judge noted at [145] that the respondent impressed as having a close and highly supportive network within his church community who were able to assist in the care of the children and provide for their material needs. There is no suggestion the evidence did not permit the trial judge to form this impression.
His Honour gave consideration to the fact that X had spent very little time in the care or company of the respondent and that Y had spent none. Indeed, the primary judge expressly said that he did “not ignore that Y has spent literally no time” with the respondent at [394]. The primary judge further considered these matters at [452]–[457]. Although the respondent was relatively unknown to Y, the Family Consultant considered he had much to offer, demonstrated sensitive parenting skills and was able to encourage the children in their various activities. The children were positive in their response to their father even though Y had spent no time with him prior to the assessment.
Whilst it was true the respondent had no involvement with the children’s schools and/or daycare centre service providers up to the date of the judgment, that came about because the appellant did not want the respondent to have any involvement in the children’s lives. His Honour was alive to those facts. However, the primary judge noted at [469] that the respondent had ascertained an appropriate school for the children and at [492] that he had considered school arrangements for the children.
Similarly, the trial judge was alive to the fact that the respondent knew little of the children’s health and their autism diagnoses. The trial judge plainly gave consideration to this matter. He noted at [461] that the respondent had completed courses run by Autism SA, he expanded upon his one-day sessions with Autism SA at [491] and at [492] impressed as having read widely in respect of the challenges in caring for a child with autism.
Next, the appellant argues that the primary judge failed to place any weight on the evidence concerning the children’s autism diagnoses. The appellant says that apart from noting the fact the children had these diagnoses, the primary judge “fails to grapple with or engage with this evidence in any or any meaningful way”. By this submission the appellant seems to suggest that it was incumbent upon the primary judge to parse the children’s diagnostic reports line by line. However, in circumstances where the primary judge noted that the respondent (as we have set out above and also at [462]) impressed as to his ability to form an attachment to the children, be respectful of their needs and provide the necessary support for them, it was not incumbent upon the trial judge to do that. The trial judge was demonstrably aware of the children’s diagnoses, the respondent’s awareness of those diagnoses and was satisfied the respondent could provide the necessary support for them. So much appears from [469]:
469. The father impressed as having given proper consideration to the educational requirements of each of the children taking into account their ASD Level 2. The father had ascertained an appropriate school for the children and that they have out of school hours care. The father was also prepared to attend upon relevant special appointments for the children.
Furthermore, the appellant was unable to identify any diagnostic finding or recommendation specific to X that the primary judge ought to, but did not, take into account beyond his Honour’s impression of the respondent as having given proper consideration to the children’s needs.
The appellant next argues that the primary judge failed to properly consider the impact on the children of removal from their mother’s care. In this regard, his Honour recorded the Family Consultant’s evidence:
372. In evidence, the family consultant repeated the tenor of the Family Assessment Report and expressed a concern that the mother is unlikely to encourage the children to maintain a relationship with the father.
373. There was recognition of the relationship between the mother and the children evidenced by the development of a close emotional attachment with her. To place the children with the father would result in significant emotional distress and dysregulated behaviour.
374. The family consultant considered that the father is prepared to support the children and her observations of his interactions with them gave some confidence that he would be able to regulate their emotional distress over time.
There is no challenge to the accuracy of his Honour’s recitation of this evidence.
The primary judge considered this evidence and the impact upon the children of their removal from the appellant at [471]–[473] of his reasons. These passages demonstrate the primary judge’s consideration of the adverse impact upon the children of a transition from the appellant’s care and a consideration of the Family Consultant’s evidence about the respondent’s skills to be able to manage that impact.
In connection with this argument, the appellant identifies two particular matters that require comment. First, the appellant argues the trial judge did not refer to any evidence that the respondent would source therapeutic support identified by the Family Consultant as perhaps being necessary to assist the children with the transition to his care, or alternatively, did not give reasons as to “why this aspect of the Family Consultant’s evidence was rejected in the making of the Orders”. The evidence of the Family Consultant on this point came through cross-examination. The Family Consultant was the last witness to give evidence in the trial. The evidence was not given in her report. The criticism of the trial judge is that he did not refer to any evidence that the respondent would source the therapeutic assistance talked about by the Family Consultant in her cross-examination. He did not. But there was no such evidence. Given the way in which the evidence fell, the respondent had no opportunity to provide such evidence. His Honour was then left with his impressions about the respondent’s ability and willingness to meet the children’s needs more generally derived from the evidence of the contact supervisor, Ms B, the Family Consultant and the respondent. No more could be done on the evidence before the trial judge. No more was necessary.
Second, the appellant argues the primary judge did not consider the “long term impacts” on the children’s emotional wellbeing in losing their relationship with their mother. The long-term impacts were set out by the Family Consultant in her evidence:
I think the long term – the long term risk then of the children being removed from their mother is less if they are able to have support and if the father is able to be supported in caring for the children. So – but I – I can’t deny that there will be distress and dysregulation at that separation. They won’t be familiar with the father. They don’t know their father. They haven’t had the opportunity to build a relationship with their father, but my assessment is that he shows – the father has the skills to support their development, to support their regulation. And – and I think that can only be enhanced by him seeking out appropriate parenting support. I think the greater risk to the children and their mental health and their development is if they don’t have a relationship with their father.
(Transcript 9 November 2022, p. 1106 lines 10–19)
We were not taken to any other evidence that bore upon this issue. There was no evidence about the long-term risks or impacts other than that which was articulated by the primary judge in his reasons.
In our view his Honour gave proper, genuine and realistic consideration to the impacts upon the children of their removal from the appellant’s care. The evidence did not require the primary judge to go any further than he did.
Finally, the appellant argues that the primary judge did not consider s 60CC(3)(d)(ii) and s 60CC(3)(b)(ii) in that he failed to consider the children’s relationships with their half-siblings, D and E. We accept that the primary judge did not refer to this matter in his reasons. However, apart from the appellant’s self-serving evidence about these relationships and their strength, there was no other evidence that bore on this issue. In particular, there was no evidence from the Family Consultant about the nature and extent of these relationships and the importance of them to the children. In circumstances where his Honour did not place any great weight in the appellant’s evidence as a general proposition and given his Honour’s finding that the appellant posed an unacceptable risk of harm to the children, their relationships with their half-siblings was not a consideration which could countermand the result demanded by the finding about the risk of harm posed by the appellant.
We are not persuaded that the trial judge did not give proper, genuine and realistic consideration to the matters identified by the appellant. Nor are we persuaded that error has been demonstrated in the consideration of the various matters discussed above or that his Honour’s orders were unreasonable or plainly unjust so as to indicate error in the exercise of the discretion reposed in the primary judge: House v The King (1936) 55 CLR 499 at 504–505.
This ground of appeal has no merit.
GROUND 3
This ground is:
3.The trial judge erred in the making of Orders 6 and 9a, which [sic] such orders being:
a. disproportionate to those which were required to mitigate the finding that the mother posted an unacceptable risk of emotional and/or psychological harm to the children;
b. made absent any or any adequate reasons; and
c. made without affording the mother procedural fairness.
Order 6 specifies that the children spend no time with the appellant. Order 9(a) restrains the appellant from communicating with the children directly. The appellant argues that the primary judge’s orders lack proportionality (see Bielen at [51]–[55]) and that his Honour ought to have fashioned orders that provided a mechanism for the children to maintain their relationship with the appellant, such as orders for supervised time.
Whilst we accept there was an obligation upon the primary judge to consider orders that fell outside of the parameters of those proposed by the parties where those proposals did not meet the best interests of the children (see D & SV (2003) 30 Fam LR 91 at [18]–[20]; Whisler & Whisler (2010) 42 Fam LR 633), the incidence of obligation and its content is informed by the cases presented by the parties and the facts as found by the primary judge.
There can be no doubt that the appellant’s attitude towards the respondent and any relationship the children might have with him weighed heavily upon the primary judge. That evidence about the appellant’s attitude was summarised by the primary judge, amongst other places, at [249]–[257]. It was not suggested that any of this summary was inaccurate.
In his reasons for judgment, the primary judge said:
258. Part way through the mother’s evidence, the mother was asked to consider whether if orders were made that reinstated time spending as between the children and the father, if she would seek therapeutic assistance. The mother considered that the very notion of the children resuming time with the father was ridiculous and she stated that no therapy would likely make her feel safe. The confluence of the evidence led me to summarise the position at least at that point in the cross-examination:
[His Honour]: I don’t know if I’ve made this clear, but maybe I should. This is a case where the likely only orders that are available to me would be an order that places the children in [the appellant’s] care without there being any communication, relationship or information passing to your client; or the alternative is that the children are placed in your client’s care and there is no relationship, communication or information about the children to [the appellant]. There is – it’s not a matter of a transition, it’s not a matter of a month here, not a matter of moving to shared care. It is – the parties have left me with no alternative but those two alternatives. Now, the Independent Children’s Lawyer might have some better way forward, potentially, but at the moment, on the evidence – and again I’ve told you I’m likely to accept [the appellant’s] position as being completely entrenched and irreconcilable – there is nothing else.
(Footnote omitted)
Immediately following this extract from the transcript, the following exchange occurred:
[COUNSEL FOR THE RESPONDENT]: I’m grateful to your - - -
HIS HONOUR: So your client’s - - -
[COUNSEL FOR THE RESPONDENT]: Yes. Yes.
HIS HONOUR: - - - orders, to the extent that they might have hoped for something else, you can reassess those orders, [counsel for the respondent]. If that changes your client’s position, then that’s a matter that I will entertain – I don’t – or not; it’s a matter for you. But let’s not try and think that there’s some happier alternative. There isn’t.
[COUNSEL FOR THE RESPONDENT]: No, your Honour.
HIS HONOUR: There isn’t.
HIS HONOUR: [To the appellant], am I overstating - - -
[COUNSEL FOR THE RESPONDENT]: I accept that.
HIS HONOUR: - - - the position?---No, your Honour, you’re not.
Not trying to be dramatic, am I? It’s what – this is what we’re at. That’s what we’re talking about? - - - Correct, your Honour.
(Transcript 3 November 2022, p.696 lines 5–29)
Senior counsel for the appellant argued (both in written submissions filed 27 February 2024 at [46]–[47] and orally) that whilst the primary judge had discussed the prospect of supervised time between the children and the appellant with counsel for the Independent Children’s Lawyer, he had not raised it with the appellant during her submissions despite indicating that the issue would be a matter for exploration with the appellant in her final submissions. However, this submission cannot be accepted.
The issue of the children spending supervised time with the appellant was raised by both counsel for the Independent Children’s Lawyer and counsel for the respondent. On each occasion it was counsel who instigated the exchanges about this issue. In his discussion of this issue with counsel for the respondent, the following exchanges occurred:
[COUNSEL FOR THE RESPONDENT]: So, your Honour, one of the considerations in this particular case, which may well be not relevant for this case, but it is that it was not considered whether supervised time with the mother, who was not – who is indefinitely not having time with the children, whether supervised time with a professional would help ameliorate or mitigate the lack of any contact with the children. So, your Honour, that hasn’t been considered or canvassed. It is open to your Honour to make such an order, but - - -
HIS HONOUR: How?
[COUNSEL FOR THE RESPONDENT]: - - - in my submission - - -
HIS HONOUR: Under what terms? How?
[COUNSEL FOR THE RESPONDENT]: It - - -
HIS HONOUR: How? I mean, I will wait – I will await [the appellant’s] submissions, but for reasons that I’ve said 50 times, I don’t understand that there is any circumstance where [the appellant] would be able or be prepared or be willing to undergo that proposition, that circumstance.
[COUNSEL FOR THE RESPONDENT]: Yes, your Honour. And that - - -
HIS HONOUR: That’s not what – so to the extent that obviously I will have to consider those things, they will be considered in the sense of is this a viable possibility? And I imagine that what I’m going to find in relation to both sides is it’s not. Now, your client has got a preparedness, and I think I’m prepared to accept that because of the original orders he sought that were the mother’s position to alter, then he would fall in to a fairly significant degree. But that’s not an option that is available, and I - - -
[COUNSEL FOR THE RESPONDENT]: Your Honour, I’m not - - -
HIS HONOUR: - - - just can’t – I can’t see how I could do it. So I’m - - -
[COUNSEL FOR THE RESPONDENT]: - - - urging that upon your Honour.
HIS HONOUR: - - - not concerned about it. I mean, I appreciate that what the court requires of me is to make sure that the orders I seek are justified by a proper consideration of the evidence – so the orders I make are supported by a proper consideration of the evidence, and where there is a significant issue in respect of meaningful relationship the Full Court consider that there should be some – I should have some regard to any alternative, but the least desirable one, which is that one party will have the sole care of the child or children to the exclusion of the other.
…
[COUNSEL FOR THE RESPONDENT]: And I’m not urging you, your Honour, or saying that there is evidence to support that. I’m just raising it really because this decision was delivered so recently, and your Honour could be contrasted, for example, with a decision of her Honour Judge Dickson in Griggs & Oduro in 2022 where she did allow some supervised time with the mother, but there was a report supporting some of that.
HIS HONOUR: There is no evidence.
[COUNSEL FOR THE RESPONDENT]: And there’s no - - -
HIS HONOUR: The mother has presented - - -
[COUNSEL FOR THE RESPONDENT]: - - - evidence here, your Honour.
HIS HONOUR: The mother in this case has presented psychiatric and psychological evidence which closes that door.
[COUNSEL FOR THE RESPONDENT]: That’s - - -
HIS HONOUR: It’s not even a matter for me to say, “Well, look, let’s give it a try”. I can’t do that in this case, because I have evidence that the mother wants me to rely upon which says to do so would be adverse to her mental health. I don’t know what more I can do about that.
[COUNSEL FOR THE RESPONDENT]: No, your Honour. I really raise it - - -
HIS HONOUR: And the idea of a judge going on some – look, I’m not here to make people better parents. I’m not prepared to do that. I’m here – if the party had any opportunity to be better parents, they would have been before they get to me. By the time they get to me, it’s a bit late. So I won’t be embarking upon any heroic notions because I just don’t see how I can. I’m only raising these matters with you for two reasons: (a) because you might want to challenge me about any of the assertions I make and that’s perfectly proper in submissions; and, (b) [the appellant] might also want to challenge me when her time comes on Friday morning, and she’s obviously free to do so. But I – and I’m not sure that more is required of meaningful relationship than the Act provides, but I will have to review carefully their Honours’ decision. But there’s not a – what can be done? This is not a case – this is not a case where there can be a consideration or an opportunity for these children to maintain a relationship with each of these parties.
(Transcript 30 January 2023, p.96 lines 1–44; p.97 line 9 to p.98 line 2) (Emphasis added)
This exchange did not occur in a vacuum. The transcript demonstrates the appellant was present. However, far from these passages indicating these were matters “for exploration with the mother” when she made her submissions, they indicate the question of supervised time was raised and the appellant reminded that she might also make submissions about the point. She did not.
This was not a case where alternatives were reasonably open to the primary judge given the appellant’s evidence, including her evidence that no therapy would likely make her feel safe. The primary judge recognised this:
485 It must be remembered that the mother’s presentation did not leave room for any other option or outcome other than the children living in the sole care of or other of the parties. It is regrettable. The father’s initial position was to not challenge the mother’s primary care of the children and to undertake a gradual restoration of his relationship with the children. The mother’s extreme position leaves no reasonable alternative.
(Emphasis added)
Moreover, as the primary judge pointed out in the transcript extract above, there was no evidence upon which he could make a determination about the efficacy or practicality of an order for supervised time as the appellant now submits.
It was not the appellant’s case at trial that there were alternative orders available to ameliorate the risk she posed. None reasonably arose upon the evidence led by the parties at the trial. The primary judge considered that alternative orders were impossible because of the appellant’s past conduct and the case that she presented. The appellant is bound by not only her case at trial (Metwally v University of Wollongong (1985) 60 ALR 68 at [71]) but also by her own evidence and conduct. This ground should fail.
GROUND 4
This ground was abandoned.
GROUND 5
This ground is as follows:
The trial judge in making the injunctive order (Order 10), with such order being unsupported by the evidence, absent proper regard for relevant facts and without any or adequate reasons.
The reference to Order 10 should be a reference to Order 9.
We accept the appellant’s submissions that his Honour gave no reasons for the making of these orders.
However, Order 9(a) restraining the appellant from communicating directly with the children needs no further explanation. It was an entirely appropriate order made as a consequence of Order 6.
However, no reasons were given by his Honour for Orders 9(b), 9(c) and 9(d). Those orders restrained the appellant from:
(b)Attending at or being within 100 metres of any school, preschool, out of school hours care and/or school or extracurricular activity attended by the children;
(c)Communicating with any school, preschool or out of school hours care attended by the children; and
(d) Communicating with the children’s medical and allied health professionals.
The necessity for these orders is not immediately apparent and is unexplained by the primary judge. The failure to give any reasons for the making of these orders is an error of law.
Senior counsel for the appellant accepted that in the event this ground found favour, the appropriate relief was to set aside Order 9, or those parts of it in respect of which this ground succeeds. She also accepted that in the event this was the only aspect upon which the appeal succeeded, no order for remitter should be made. Neither the respondent nor the Independent Children’s Lawyer sought remitter in that event either.
Order 9(b), 9(c) and 9(d) will be set aside.
COSTS
In the event that the appeal succeeded on a question of law both parties and the Independent Children’s Lawyer sought a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the costs of the appeal. Otherwise, no orders for costs were sought.
In the circumstances it is appropriate to grant those certificates.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin Jarrett Riethmuller. Associate:
Dated: 17 April 2024
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