George & George
[2013] FamCAFC 182
FAMILY COURT OF AUSTRALIA
| GEORGE & GEORGE | [2013] FamCAFC 182 |
FAMILY LAW - APPEAL – CHILDREN – where an interim parenting order for supervised time significantly changed previous interim orders – where concerns were expressed in a single expert report about potential abduction or more serious outcomes for the child – where the trial judge identified the risk – where there was untested but adequate evidence upon which to make the order – where the trial judge had given adequate reasons – appeal dismissed – order for costs in the mother’s favour.
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
Deiter & Deiter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286
Hannigan & Sorraw [2010] FamCAFC 257
M & M (1988) FLC 91-979
| APPELLANT: | Mr George |
| RESPONDENT: | Ms George |
| FILE NUMBER: | SYC | 7795 | of | 2012 |
| APPEAL NUMBER: | EA | 135 | of | 2013 |
| DATE DELIVERED: | 22 November 2013 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Faulks DCJ, Thackray and Watts JJ |
| HEARING DATE: | 13 November 2013 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 10 September 2013 |
| LOWER COURT MNC: | [2013] FCCA 1551 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Messner |
| SOLICITOR FOR THE APPELLANT: | Kells The Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Anderson |
| SOLICITOR FOR THE RESPONDENT: | Watts McCray Lawyers |
Orders
Appeal EA 135 of 2013 is dismissed.
The Appellant father pay the Respondent mother’s costs of and incidental to the appeal, on a party/party basis as agreed or, in default of agreement, as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym
George & George has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 135 of 2013
File Number: SYC 7795 of 2012
| Mr George |
Appellant
And
| Ms George |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Mr George (“the father”) appeals against orders made by Judge Terry on 10 September 2013 in parenting proceedings relating to the child C born August 2005.
As a result of the orders made by her Honour, parenting arrangements that had initially been the subject of agreement, and then confirmed by interim consent orders made on 11 February 2013, were significantly varied.
The orders at the time of the hearing before her Honour provided for C to spend equal time with each of her parents on a week-about basis. The order made on 10 September 2013 suspended those arrangements and provided that the child remain with Ms George (“the mother”) and spend supervised time with the father for two hours each alternate Saturday at a contact service.
BACKGROUND
The parents met in 1997 and were in a relationship from around the end of that year. They married in August 2000 and separated under the one roof in February 2012. The mother left the matrimonial home in March 2012.
From the date of physical separation until the date of the hearing, the child lived on a week-about basis between the two homes, which at the date of the hearing were two doors apart in the same street.
Between late December 2012 and early February 2013 the father retained the child on the basis that he said the mother was not protecting her adequately from what the father asserted was the mother’s sexually transmitted herpes infection. It was in these circumstances that consent orders were made on 11 February 2013 confirming the week-about arrangement.
The father has retained the child on two other occasions for a day longer than he should have under the existing orders and concedes that he did so in breach of those orders. The father also had placed the mother under surveillance by a private detective at a cost to himself of approximately $9,000.
The matter was listed before the trial judge on 10 September 2013 consequent upon the release of the single expert report of Dr W dated 24 July 2013. Dr W’s report was originally released on 9 September 2013 but the father had not been given a copy of prior to the hearing commencing. At the hearing, the mother made an oral application to vary the existing interim orders so that the child would live with her and spend limited supervised time with the father on alternate weekends.
After the matter commenced at 2.21pm, the proceedings were stood down to allow the father to read and consider the report. The matter resumed at 5.26pm. Dr W’s report was admitted into evidence and other documents were tendered as exhibits. The father was given further time to read this material.
The mother asserted (and the father did not assert otherwise) that matters described in the report from Dr W constituted a significant change of circumstances enabling the court to contemplate a variation of the interim orders made in February 2013.
THE HEARING
Her Honour was taken by the mother’s lawyer to specific parts of Dr W’s report, including:
·page 38, where he expressed the view that “there remain significant questions over [the father’s] mood, judgment and impulse control” and
·page 39, where Dr W said he thought the father’s “predisposition to reckless threats do reflect a degree of impulsiveness which may represent a risk.”
The crucial passages of Dr W’s report appear at pages 40 and 41, and we set them out in full:
As I indicate above, these ideas can be extraordinarily difficult to shift, and one measure of Mr [George’s] insight and capacity will be his response to this report. If he is prepared to consider that his central ideas might be wrong, then he probably would be able to be assisted with counselling. If he were to undergo counselling under those circumstances, my view is that firstly it is likely that he would settle down a bit and secondly, even though one of the times when he kept [C] back was for quite a long time, and he has probably been quite unwise about the wide distribution of his misconceptions, he nevertheless could have done quite a bit more, so it might be expected that further or more inappropriate actions are reasonably unlikely.
If on the other hand and particularly if other information comes to light which disproves other of his assertions, and there is still no shift in his views, then I think it is unlikely that the counselling would be of a great deal of assistance and in my experience under those circumstances, people are inclined to take inappropriate steps more frequently, more decisively and for there to be potentially greater harm arising from this including not just withholding of a child but abduction or more serious outcomes. This risk would need to be managed prudently and depending on the perceived level of risk, curtailment or even supervision of Mr [George’s] time with his daughter would need to be considered.
...
In my view Mr [George] has probably exposed [C] to psychological harm because of the ramifications of his misdirected actions, including preventing [C] from seeing her mother for a period of about two months as well as creating an undercurrent of instability to her relationship with her mother and undermining her confidence in her mother. (emphasis added)
At page 42, Dr W opines:
If the court is satisfied that Mr [George] is going to remain insightless and quite paranoid about his ex-wife, then this could even be to a degree which would require that at least initially [C] only sees her father in a supervised setting on alternate weekends.
Finally, at page 43, Dr W states:
I am concerned how Mr [George] may react to this report. He has withheld [C] on several occasions in the past probably without adequate basis, and at least if my findings are generally accepted, it is likely that orders would be made which would favour the mother rather than him. Bearing in mind that there is not an ICL in this matter, I would suggest that at least initially the report is only released to the legal representatives and not to the parties.
The trial judge was referred to the definition of “family violence” in the Family Law Act 1975 (Cth) (“the Act”) and to s 60CC(2)(b) of the Act which provides that a primary consideration when determining what is in a child’s best interests, is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The father’s lawyer submitted that it was clear that the child loved her father, had a strong relationship with him, interacted well with him and that Dr W’s report indicated that she was quite close to her father.
Although the father’s lawyer conceded that the two instances of the father withholding the child in June and July 2013 were in breach of orders it was submitted that that would not “trigger a risk or an unacceptable risk of harm”.
The father’s primary submission was that any change to the arrangement that had been in place would have a devastating effect on the child.
The father’s lawyer informed the court that the father had not shown any anger upon reading the report, and that although the father “did demonstrate some disbelief … [he] has received it in a mature way”.
THE TRIAL JUDGE’S REASONS FOR JUDGMENT
The trial judge acknowledged that Dr W’s report was untested but observed that the opinions expressed in the report were based upon interviews with the parties and the child and on information available to Dr W. The report makes clear that that information included affidavits filed by the parties and documents obtained under subpoena. Her Honour correctly observed that it was the court’s duty to make the decision and that it was fairly rare to change existing orders simply because a family report had been released making certain recommendations (see Hannigan & Sorraw [2010] FamCAFC 257).
Her Honour correctly observed that the mere fact that matters are in dispute does not mean the court can ignore concerns that are raised in material before the court (see Deiter & Deiter [2011] FamCAFC 82).
Her Honour’s primary focus in her reasons was the need to protect the child in circumstances where Dr W had mentioned the possibility “not only of withholding but of abduction, kidnapping or worse”. The trial judge balanced that matter against consideration of the submission made by the father that the orders sought by the mother would have a devastating effect upon the child. Her Honour concluded that she could not make a finding one way or the other about whether or not a change would be devastating for the child but did conclude that if she did not act cautiously in relation to the concerns raised in Dr W’s report, the outcome for the child could be devastating (paragraph 13 of the reasons). The trial judge said, when referring to “withholding… abduction, kidnapping or worse”:
That cannot be recovered from. Supervised time, a break in time, can be recovered from, but a more serious outcome for [C] as a result of the father doing something as a result of his concerns about the mother escalating or him forming a belief that the Court will not help him so that he has to help himself cannot necessarily be recovered from.
Her Honour referred to Dr W’s concern that the father may hold a fixed false belief about the mother having a sexually transmitted disease and that the father had had the mother followed and observed by a private detective.
The trial judge referred to C’s age and the fact that she was unable, at her age, to do anything about resisting the possibility of abduction or worse.
In conclusion, the trial judge referred to the fact that the father had an opportunity between the interim hearing and the final hearing to bring some evidence to the court about how he had reacted to and adopted recommendations in respect of him obtaining some professional assistance and also noted that “in circumstances where only supervised time is in existence sometimes the court does have to revisit interim orders before the final hearing”.
GROUNDS OF APPEAL
There were four grounds of appeal. The fourth ground, which asserted that her Honour erred in failing to provide procedural fairness to the father because the trial judge had not granted an adjournment, was not pressed. That ground had been misconceived given that no application for an adjournment had been made by the father before the trial judge.
Ground 1
That her Honour erred in finding in the absence of evidence that the father posed an unacceptable risk of psychological abuse to the child
The relevant passages from Dr W’s report have been set out above. The father first complains that her Honour, at paragraph 15 of her reasons, has embellished what Dr W said. The embellishment referred to is the trial judge’s use of the word “kidnapping” in addition to the word “abduction”. As can be seen from the extract from Dr W’s report, Dr W does not use the word “kidnapping” and it is the trial judge who introduces that word. Given that the words “abduction” and “kidnapping” are synonyms, nothing turns on the introduction of that word by the trial judge.
We note in passing that the ground categorises her Honour’s finding as “an unacceptable risk of psychological abuse to the child”; however, there is nothing in the opinion of Dr W or the reasons of the trial judge which would confine the risk to only psychological abuse. The words “or more serious outcomes” cannot be confined in that way.
The gravamen of the father’s complaint is that the trial judge had misunderstood what Dr W had said. The father asserted that the reference by Dr W to people who were inclined to take inappropriate steps and who are a potential risk in respect of not just withholding of a child but abduction or more serious outcomes, was not a specific reference to the father, or to the father as at the date of the hearing, but rather a reference to a situation that might exist at the final hearing if certain contingencies transpired.
Counsel for the father submits that:
Properly understood, that observation by Dr. [W] was no more than him talking in the abstract: see the references to “people”, “inclined”, “more frequently”, “more decisively”, “potentially greater harm”, “depending upon the perceived level of risk”. There is no statement by Dr [W] that the Appellant Father posed a risk of such outcomes and further the Respondent Mother did not suggest such a risk or concern.
Firstly, we cannot agree that the mother did not suggest that the father was such a risk or concern. That was very much at the centre of the submissions made by the mother before the trial judge.
Nor do we accept the interpretation placed upon the paragraphs at pages 40 to 41 of Dr W’s report, which are set out above.
When those paragraphs are read in context, it is clear that Dr W is speaking about the father’s ideas being extraordinarily difficult to shift and Dr W is saying that one measure of the father’s insight and capacity to change would be his response to the report. Although Dr W refers to the possibility (albeit not necessarily a strong one) that the father might be able to change with counselling, Dr W was describing the father’s ideas as at the time that he wrote the report. Dr W was saying that if the father was unable to shift his views then the father would remain with fixed ideas, and in those circumstances, would be one of those people who were inclined to behave in the way that Dr W described in such concerning terms.
We are of the view that the trial judge correctly identified during submissions (see Transcript 10 September, page 10) that the court was not going to know whether the father was willing to reconsider his beliefs (nor in fact whether his beliefs are actually without foundation) until the final hearing.
The trial judge set out to make orders that did not expose the child to an unacceptable risk (see M & M (1988) FLC 91-979 at 77,081). We do not accept the submission by counsel for the father that the trial judge failed to identify what “unacceptable risk” the father posed. The risk identified was that the father would withhold; abduct or kidnap the child or do something that could lead to a more serious outcome.
Ground 2
That her Honour erred in making orders resulting in a change to where the child lives without adequate evidence
It was clear that the trial judge was well aware of the change being proposed by the mother. During submissions, counsel for the father was unable to point to any evidence about the effect of change upon the child which her Honour did not consider.
Her Honour dealt with the effect of change at paragraphs 10 to 12 of her reasons in the following way:
10.[C] has a relationship with her father and if I make the orders that the mother’s counsel is urging upon me then [C] will require some time to adjust to that.
11.I cannot however necessarily draw the conclusion that if I make the orders sought by the mother it will have a devastating effect on her. I do not know what the effect on [C] will be. If [C] is under pressure at the moment because her father is promoting one particular version of events and her mother another, removing that pressure from her might actually have a beneficial effect. On the other hand there may be limited validity in the concerns and [C] may miss her father a lot if she does not see him regularly.
12.I cannot make a finding about which is likely to be the case. I do not accept that the change would be devastating for [C], but I do not know either whether it is [sic] will be generally beneficial or whether it will have a detrimental aspect.
Her Honour made what findings were possible about the effect of change on the child with the evidence available. There is no merit in ground 2.
Ground 3
That her Honour erred in that she failed to give adequate reasons in:
(a)Changing which parent the child should live with
(b)Reducing the time that the child spends with the Father
(c)Making the Father’s time with the child conditional upon supervision
(d)Finding that the Father posed an unacceptable risk of psychological risk to the child
The hearing was circumscribed, having been dealt with at the end of the day, in a busy duty list. Ex tempore reasons were delivered shortly before 6.27 pm. The Full Court in Goode & Goode (2006) FLC 93-286 at [74] acknowledged that given the circumscribed nature of the proceedings, the reasons given at an interim hearing may be brief. In addition, in the context of this case, we take into account the views expressed by her Honour during oral submissions.
As part of this ground, counsel for the father submits that her Honour did not follow the “legislative pathway” as set out in Goode & Goode (supra). That pathway is set out at 80,903 in the following terms:
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child
Counsel for the father conceded that her Honour had identified the competing proposals of the parties.
We are of the view that her Honour properly identified the issues in dispute in the interim hearing and identified agreed and uncontested relevant facts.
We accept that her Honour did not consider the application of the presumption in favour of equal shared responsibility contained in s 61DA of the Act. This presumption is expressed to apply to all proceedings for parenting orders (subject to s 61DA(2) and (3) of the Act); however, we accept it was of no practical significance in the present matter, given it was common ground that no order for equal shared parental responsibility had been made in February 2013 and no such order was sought before her Honour. Furthermore, there was no ground of appeal expressly directed to her Honour’s failure to consider the application of the presumption.
Section 65DAA of the Act was not triggered, but clearly the trial judge gave consideration to the father spending equal time with the child because that was his application.
The real complaint made by counsel for the father about the failure to follow the “legislative pathway” was that the trial judge had not considered all relevant matters in s 60CC of the Act. We cannot agree. In the context of this interim hearing, her Honour focused on the relevant matters and made findings about them.
Her Honour importantly balanced the competing concerns. On the one hand, the serious risk identified by Dr W in his report and, on the other, the child’s relationship with her father and the effect upon the child of a change in the time she would live with her father.
We find no basis for any complaint in relation to the adequacy of the trial judge’s reasons.
CONCLUSION
We conclude that the father has failed to make good any ground of appeal and the appeal consequently is to be dismissed.
COSTS
The mother sought costs against the father in the event the appeal was dismissed. It is clear from Dr W’s report that the father is not currently in employment whilst the mother is an executive manager working in Sydney. However, the father has paid $9,000 to a private inquiry agent for surveillance of the mother. The father has been wholly unsuccessful in his appeal.
We conclude it is appropriate that a costs order should be made in the mother’s favour on a party/party basis to be agreed or assessed.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Faulks DCJ, Thackray and Watts JJ) delivered on 22 November 2013.
Associate:
Date: 22 November 2013
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