Garraghan and Westerfield (No 2)
[2014] FamCAFC 96
•6 June 2014
FAMILY COURT OF AUSTRALIA
| GARRAGHAN & WESTERFIELD (NO 2) | [2014] FamCAFC 96 |
| FAMILY LAW ─ APPEAL ─ CHILDREN ─ INTERIM PARENTING ORDERS – Whether the trial judge’s discretion miscarried by ordering the father to spend time with the child supervised by the maternal family at their home on one day and by the paternal grandmother at a public place on another ─Whether the father should be allowed to spend all of his time with the child supervised by the paternal grandmother at his home – Where the need for supervision was questionable and untested on the evidence – Where the risk of family violence is low – Where the father’s relationship with the maternal family is so fraught that it is likely to expose the child to some level of conflict – Where the trial judge did not adequately expose his reasons for making what appears to be inconsistent orders by allowing the paternal grandmother to supervise on some days but not others and to supervise in a public setting but not at the father’s home – Where it is necessary to first consider the nature of the alleged risk to the child in order to determine the circumstances under which supervised time would occur – HELD –Appeal allowed |
| Family Law Act 1975 (Cth): ss 60CA, 61DA, 60CC |
| Goode & Goode (2006) FLC 93-286 |
| APPELLANT: | Mr Garraghan |
| RESPONDENT: | Ms Westerfield |
| INDEPENDENT CHILDREN’S LAWYER: | Mark MacDiarmid |
| FILE NUMBER: | SYC | 4582 | of | 2013 |
| APPEAL NUMBER: | EA | 171 | of | 2013 |
| DATE DELIVERED: | 6 June 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 3 June 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 25 October 2013 |
| LOWER COURT MNC: | [2013] FCCA 1840 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Harper |
| SOLICITOR FOR THE APPELLANT: | Blanchfield Nicholls Partners |
| SOLICITOR FOR THE RESPONDENT: | Benetatos White |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mark MacDiarmid Family Law Specialist |
Orders
That the appeal against order 3 made by Judge Monahan on 25 October 2013 is allowed, and subject to order 2 of these orders, the orders are set aside.
Pending the further hearing and determination of the proceedings between the parties, or until further order, order 3 made by Judge Monahan on 25 October 2013 remains in force.
That the matter is remitted for rehearing before a judge other than Judge Monahan.
That there be no order for costs in relation to the appeal.
That the Court grants to the appellant father a costs certificate pursuant to 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 him in relation to the appeal.
The Court grants to the respondent mother and 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 respondent and Independent Children’s Lawyer in respect of the costs incurred by them in relation to the appeal.
The Court grants to the parties and Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 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 parties and Independent Children’s Lawyer in respect of the costs incurred by them in relation to the new trial ordered.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Garraghan & Westerfield has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 171 of 2013
File Number: SYC 4582 of 2013
| Mr Garraghan |
Appellant
And
| MsWesterfield |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed 22 November 2013, Mr Garraghan (“the father”) appeals against orders made by Judge Monahan on 25 October 2013. Ms Westerfield (“the mother”) resists the appeal and seeks to uphold the orders.
The appeal relates to interim parenting orders concerning the parties’ only child M. The interim orders provide for the father to spend supervised time with the child each Saturday and Wednesday for four hours.
The father’s appeal relates to who is to supervise his contact with the child and where that supervision is to occur.
An Independent Children’s Lawyer (“ICL”) has been appointed. For the reasons advanced by the father, the ICL submits the appeal should be allowed.
Background Facts
So as to give this appeal context, it is necessary to record a few seemingly uncontroversial facts.
The parties were never married. They commenced cohabitation in early 2006 and separated in May 2011. The parties’ only child was an infant when they separated.
The catalyst for the separation was the father’s assault on the mother.
The child has lived with the mother ever since. From separation until June 2013, by agreement, the father regularly spent time with the child at the maternal grandparents home where she and the mother lived and occasionally elsewhere.
Around June 2013, the mother stopped the father’s contact with the child. As a consequence, the father filed his Initiating Application on 12 August 2013. The mother filed her Response on 16 October 2013. When the matter first came before the court, the parties were referred to a Child Dispute Conference (“CDC”) and an order to that effect was made. A family consultant memorandum was prepared by Ms G on 21 October 2013. Unfortunately, no agreement was reached with respect of the interim arrangements. The family consultant recommended supervised time.
The matter came before Judge Monahan for interim hearing on
21 October 2013. Orders were made that day appointing an ICL. Agreement was reached for interim orders that the child lives with the mother and spends time with the father at a Contact Service each alternate Saturday for four hours.
Judge Monahan pronounced his orders, the subject of this appeal, on 25 October 2013 and the father consequently filed his Notice of Appeal on the 22 November 2013.
The orders provide for the father to spend time with the child for four hours on Saturdays and Wednesdays. Each alternate Saturday, the father is to spend time with the child in accordance with the 21 October 2013 orders (at a contact service). The remaining Saturdays, the father’s time was ordered to be with a professionally accredited supervisor retained and paid for by the father, or failing that, supervised by the paternal grandmother at a suitable play centre (failing that the mother or her nominee). As to time on Wednesdays, the father was ordered to spend time with the child supervised by an agreed person, or failing agreement, by either of the respondent mother, the maternal grandmother or the maternal grandfather at the home of the maternal grandparents or an agreed location.
The father did not retain an accredited supervisor. Instead, the father nominated the paternal grandmother to be the Wednesday supervisor. The mother has withheld her consent to the paternal grandmother being able to supervise on Wednesdays. The father is unwilling to spend time with the child at the maternal grandmother’s home. The consequence has been that the father has declined to see the child on Wednesdays since the orders were made.
The father does not seek a change to the effect of the 21 October 2013 orders. By his appeal, the father is seeking that supervision on the alternate Saturdays (which is supervised by the paternal grandmother) be allowed to occur at a place other than a defined public place (being a public play centre). The father wishes to be supervised with the child at home. In relation to Wednesdays, the father is seeking time with the child to be supervised as agreed, or failing agreement, by the paternal grandmother.
The father filed an application to expedite his appeal. The application for expedition came before me on 27 February 2014 and was dismissed. The matter has not yet been listed for a final hearing.
On 3 March, pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”), 2014 the Chief Justice issued a direction that it was appropriate this appeal be determined by a single judge.
The primary judge’s reasons
The proceedings came before the primary judge on 21 October 2013. Both parties were represented. The primary judge noted the father’s application (seeking the same orders that he now seeks on appeal) and the mother’s response that if additional time was to be granted to the father, that she opposed such time occurring in the presence of the paternal grandmother.
The primary judge correctly noted his requirement under s 60CA of the Act, to regard the best interests of the child as the paramount consideration. At [23], his Honour noted the constraints when determining the best interests of the child in interim proceedings because “…the Court cannot fully determine issues of credit at an interim hearing as the evidence being presented by the parties has not been tested by cross-examination…”. His Honour referred to the legislative pathway to be followed in interim proceedings set out in Goode & Goode (2006) FLC 93-286.
His Honour noted the “considerable animosity and distrust” that existed between the parties [24]. At [28], the primary judge determined that it would not be appropriate to apply the presumption of equal shared parental responsibility under s 61DA of the Act at this stage of the proceedings.
The primary judge then discussed the benefit of the child having a meaningful relationship with both of her parents. His Honour noted the need to balance that benefit with the need to protect the child from physical or psychological harm. Noting that there were “issues in this case warranting investigation” and the need to “tread cautiously in the interim arrangements”, he took note of the requirement to give greater weight to s 60CC(2)(b) over s 60CC(2)(a) [36]. The history of family violence in this matter was discussed at [51]:
In respect of s.60CC(3)(j) (“family violence”) and s.60CC(3)(k) (“family violence orders”), there are allegations of family violence made by the mother against the father. There is also evidence that the father was charged and pleaded guilty to an assault upon the mother in 2011. That said, there is no current Apprehended Violence Order (“AVO”) in place to my knowledge, and the mother’s concerns about her safety would appear to be answered somewhat by her offer to physically supervise the child’s time with the father, albeit in the home of her parents.
His Honour then considered the relevant additional considerations under s 60CC(3). His Honour noted that most of these considerations require further testing. Relevantly, under a consideration of s 60CC(3)(d) (“likely effect of changes…”) his Honour noted the father’s opposition to having his time supervised by the mother or the maternal grandparents. In response to his application to have the paternal grandmother supervise, his Honour noted at [42]:
…the mother asserts that there is insufficient evidence before the court that would suggest that the paternal grandmother is a suitable supervisor, and indeed the mother would suggest or assert that there is evidence to suggest that the relationship between the father and the paternal grandmother has been strained in the past, and that the relationship between the paternal grandmother and the mother is similarly strained.
Whilst acknowledging that prolonged supervision by the mother may make it more difficult in the future for the child to separate from her when in the father’s care, the primary judge observed that the child was used to being physically present in their home [43].
The possible “power imbalance” that might be created by allowing supervision to occur at the maternal grandparents home was noted, at [54], where
his Honour referred to the “further mistrust” that this may create .
In light of this finding, his Honour concluded, at [62], that the father should have additional time with the child on alternate Saturdays to be supervised by an accredited supervisor, so that the father can have the benefit of engaging with the child with a “neutral professional childcare worker” at a suitable venue. In the event the father did not retain an accredited supervisor, the paternal grandmother was to supervise at a play centre [64].
As to time that is to occur on the Wednesday, his Honour concluded that “I am satisfied that there are benefits to the child, in terms of consistency and continuity, in having the mother cause that time to occur at the home of the maternal grandparents” [68].
The Appeal
The father’s appeal raises two grounds of appeal relating to his Honour’s orders. The first ground relates to his Honour’s discretion in ordering that the father’s time be supervised by either the mother or maternal grandparents.
Ground 1
His Honour’s discretion miscarried by ordering supervision of the Appellant father’s time by “either the Respondent Mother, Maternal Grandmother or the Maternal Grandfather” at the home of the Maternal Grandparents in circumstances where:
1.1.The need for any supervision was questionable;
1.2 In any event the Paternal Grandmother was found to be a suitable supervisor;
1.3 The Paternal Grandmother was available to supervise;
1.4 There was a history of conflict between the Appellant Father and the Respondent Mother;
1.5 There was a history of conflict between the Appellant Father and the Maternal Grandparents;
1.6 The Appellant father had been convicted of assaulting the Respondent Mother;
1.7 Each parent had recently made complaints to Police about the conduct of the other parent.
It is common ground that the interim hearing undertaken by the primary judge concerned what arrangements should be made for the father to have supervised time with the child pending further order. It is not entirely clear but it would seem to have been contemplated that following the appointment of an ICL, it might be necessary to give consideration to the arrangements for the father to spend time with the child in advance of a final hearing. Thus, by this ground the father does not challenge the primary judge’s order that he sees the child under supervision, but rather the circumstances under which supervised time is to occur.
Before the primary judge, the father sought orders that his mother supervise and that there be no restriction upon where he would have supervised time with the child. That said, the thrust of his and his mother’s evidence was that the child’s time with the father would generally take place in the father’s home. Lest it be misunderstood, the issue before his Honour related to time on alternate Saturdays and Wednesday afternoons only. The point being, that the father would continue to spend time with the child on alternate Saturdays at a contact centre.
The mother’s primary position before the primary judge was that the father’s time with the child should be supervised at a contact centre. However, she agreed that the father could have supervised time with the child on Wednesday afternoons and alternate Saturdays. It was her proposal that this additional time should take place at her parents’ home, where she and the child also lived. As to who would supervise, the mother said either she or her parents would supervise and was opposed to the father’s mother doing so.
In order to determine the child’s best interests (s 60CC(1) of the Act) the hearing focused on:
a)the benefit to the child of having a meaningful relationship with the father; and
b)the need to protect her from exposure to neglect and family violence as a consequence of what the mother said was the father’s poor emotional regulation, and angry outbursts.
In order to answer those questions, counsel for the father sought to persuade the primary judge that some degree of analysis of the evidence concerning relationship and risk issues would be required. The point being, that it was necessary to first consider the nature of the alleged risk to the child in order to determine the circumstances under which supervised time would occur. Thus, a nuanced response to the identified risk would be achieved and the framework for deciding which of the various supervisors should supervise would be established.
With this approach in mind, counsel for the father sought to persuade
his Honour that the need for supervision was at best questionable and mentioned that supervision was conceded at this point in pragmatic recognition to his Honour’s indication that he did not have time to determine the larger issue of whether supervision was required at all. Counsel for the father proceeded to provide a helpful analysis of the few agreed facts before making submissions to the effect that the level of risk was so insignificant that supervision could comfortably be undertaken by the paternal grandmother. In this regard, counsel for the father distinguished the facts in this case from those cases where there was evidence suggestive of an unacceptable risk to the child of real harm and thus a skilled supervisor and contained environment was warranted.
Counsel for the father then addressed his Honour on why it was that the mother and her parents would not be appropriate supervisors. Reference was made to the “litany of complaints” contained in the maternal grandfather’s affidavit about the father, few of which it was said had anything to do with his parenting capacity. Reference was made to the father assaulting the mother in mid 2011 and to the obvious tension between them that was identified in the parties’ affidavits, text and email exchanges. The gravamen of this submission being that the parental relationship was so fraught that if the mother or her parents were to act as supervisors, this would not be conducive to a pleasant time for the child with the father.
Finally, and no less relevantly, the fact that the mother proposed to supervise the father’s time with the child in the privacy of her home supported the inference that the mother considered the risk of exposure to family violence was very low.
The solicitor for the mother sought to persuade the primary judge there was sufficient evidence to establish the need for reasonably close supervision. As has already been mentioned, the mother’s case for supervision centred on “… the father’s anger and emotional regulation”. The father’s assault of the mother which was the catalyst for separation some two years earlier was referred to, it would appear, as evidence of both the risk of exposure to family violence and angry outbursts. That the risk remained current was evidenced by incidents that occurred when the mother or members of her family supervised the father’s time “…where the father has become easily angered and, in effect, stormed off … the father’s reaction in (sic) concern in relation to the father’s overreaction to minor issues that has caused the mother’s concern” (Transcript, 21 October 2013, p 20).
Evidence from a psychologist the father consulted in the period after separation was tendered. The mother’s solicitor pointed to references in the psychologist’s notes to the effect that the father was severely depressed, had moderate-severe anxiety and was under severe stress.
The mother’s solicitor then addressed the primary judge on whether the paternal grandmother could be relied upon “…to protect the child from exposure to inappropriate behaviour by the father…” (Transcript, 21 October 2013, p 22).
The challenge to the paternal grandmother’s suitability is tidily captured in the mother’s solicitor’s submissions set out below:
MS [WULF]: In relation to that, [the mother] has witnessed conflict between the father and his mother. There has been a great deal of conflict between his mother and [the mother]. There was a great deal of difficulty when the paternal grandmother stayed with the parties. There was a lot of conflict in relation to the mother’s breastfeeding of the child. The paternal grandmother made allegations that the mother was starving the child. A number of arguments took place between the father and his mother which resulted in his mother crying on a number of occasions.
The paternal grandmother has only seen the child for two periods. One being a period of about two weeks after the child was born and the other for 10 days over Easter 2011 and she’s not in fact spent any time with the child since that time and would not have any relationship with the child. Concern has also been raised in relation to the paternal grandmother’s mental health following conversations that have taken place between the mother and father in relation to that and what the mother relates as an abusive phone call from the paternal grandmother in April 2013. We would also refer to the conflictual relationship between the paternal grandmother and the father and reference will be made also to annexure Y of [the mother’s] current affidavit.
(Transcript, 21 October 2013, p 11)
In circumstances where counsel for the father conceded the paternal grandmother had previously consulted a psychologist, it was submitted on the mother’s behalf that she “…could not take comfort that the paternal grandmother would in fact act in the child’s interests and in the event of any conflict remove the child”. By way of contrast, that the father had been previously complementary of the maternal grandparents and the manner in which on different occasions they had facilitated his time with the child was said to establish that the primary judge could be confident continuing supervision by the mother or her parents would work well.
The reason for this broad overview of the submissions made to the primary judge is to highlight that although supervision was agreed, there was a significant issue between the parties in relation to the gravity of risk the father posed to the child and as a consequence the skills required by the supervisor.
The central challenge raised by ground 1 is, how could the primary judge determine the nature of supervision without considering the nature of the risk and other matters referred to in the ground? It is common ground that his Honour did not evaluate the evidence concerning risk or determine what would be required from a supervisor.
In an attempt to resist the joint challenge made on the father’s behalf and by the ICL that this omission meant that his Honour’s discretion miscarried and the appeal must be allowed, the mother’s solicitor argued that if the primary judge was satisfied that each of the possible supervisors would be appropriate, it was an error without consequence. Had his Honour so decided, this submission may well have found favour. However, the effect of his Honour’s orders is that the paternal grandmother may supervise in some settings but not others. In relation to the mother and maternal grandparents, the same outcome is achieved.
It is accepted that by failing to evaluate the asserted risk, his Honour failed to have regard to a pivotal consideration.
It follows that ground 1 is established.
Ground 2
His Honour’s discretion miscarried by ordering that the Father’s time take place in a defined public space or at the home of the Maternal Grandparents:
By this challenge, it is submitted that the primary judge gave no reasons why, if the paternal grandmother is an appropriate supervisor at a play centre, she was unsuitable to supervise elsewhere.
On the mother’s behalf, a submission was made that it was open to the primary judge to determine that the paternal grandmother was an appropriate supervisor for time that took place in a public location but not elsewhere. Again, while this is undoubtedly correct, the primary judge did not explain why the paternal grandmother could supervise in one setting but not another. The importance of this issue in the proceedings required that the primary judge expose his reasons for what would otherwise appear to be inconsistent orders.
Ground 2 is established.
Conclusion and Costs
The father has established error by the primary judge and that the errors mean that his Honour’s orders must be set aside. The ICL pointed out that the father has now had supervised time with the child pursuant to the orders for about eight months. As the ICL pointed out, it follows that the child’s circumstances are different to those which existed when the interim orders were made. On this basis and in the event the appeal is allowed, it was agreed the matter should be remitted for rehearing before a judge other than Judge Monahan. Those appearing indicated that the proceedings have now been transferred to Parramatta and listed before Judge Dunkley. An expert’s report has been ordered and it is anticipated the report will become available within a matter of weeks. The case for remission is compelling.
So as to ensure that the father’s time with the child continues until the rehearing, it will be ordered that the existing orders remain in force until the rehearing and determination of the matter or until further order.
There should be no order for costs in relation to the appeal.
The parties and ICL sought costs certificates for the appeal and rehearing. Certificate will be ordered as sought.
I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 6 June 2014.
Associate:
Date: 6 June 2014
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