Herridge & Handerson
[2011] FamCAFC 156
•28 July 2011
FAMILY COURT OF AUSTRALIA
| HERRIDGE & HANDERSON AND ORS | [2011] FamCAFC 156 |
| FAMILY LAW - APPEAL – Appeal against parenting orders made by trial Judge after lengthy delay in delivery of judgment – In the circumstances, delay in the delivery of the judgment could not of itself enliven appellate intervention – None of the challenges raised by the appellant turn upon delay – Trial judge’s judgment nevertheless subjected to closer than usual scrutiny. FAMILY LAW - POINT OF LAW – Trial Judge erroneously referred to s 65DAA for the purpose of determining the question of parental responsibility without first considering whether the presumption of equal shared parental responsibility applied and whether it was rebutted pursuant s 61DA(2) – In circumstances where the evidence raised matters relevant to s 61DA(2)(b) trial Judge was obliged to consider that section and make findings with respect to it – Although the trial Judge gave considerable attention to the issue of family violence, it cannot be accepted that the trial Judge impliedly considered s 61DA(2) and declined to find that the presumption was rebutted – In circumstances where the trial Judge had concluded that equal shared parental responsibility was not in the children’s best interests, the outcome being the same, appellate intervention not enlivened – High Court’s decision in MRR v GRR (2010) 240 CLR 461 did not render departure from the legislative pathway erroneous – Challenge not established. FAMILY LAW - PROCEDURE – Whether the trial Judge’s reference in his reasons to a newspaper editorial not raised with the parties constituted a failure to afford the parties natural justice – Whether the trial Judge relied upon, or was influenced by, the editorial in reaching his conclusions as to the child’s use of Ritalin – Challenge established. FAMILY LAW - DISCRETION – Established that the trial Judge’s conclusion with respect to the best interests of the children was vitiated by his failure to have proper regard, or give adequate weight to various provisions of s 60CC. Appeal allowed and the matter remitted for re-hearing. |
| Family Law Act 1975 (Cth) Part VII |
| Abalos v Australian Postal Commission (1990) 171 CLR 167 Cameron & Walker (2010) FLC 93-445 De Winter v De Winter (1979) FLC 90-605 Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472 Gronow v Gronow (1979) 144 CLR 513 Korban & Korban [2009] FamCAFC 143 MRR v GR (2010) 240 CLR 461 Rollings & Rollings (2009) FLR 396 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588 Wynona v Friend [2011] FamCAFC 6 |
| APPELLANT: | Ms Herridge |
| FIRST & SECOND RESPONDENTS: | Ms Handerson and Mr Luckwell Senior |
| THIRD RESPONDENT: | Mr Luckwell |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCF | 702 | of | 2006 |
| APPEAL NUMBER: | EA | 31 | of | 2011 |
| DATE DELIVERED: | 28 July 2011 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, May & Crisford JJ |
| HEARING DATE: | 14 June 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 10 February 2011 |
| LOWER COURT MNC: | [2011] FamCA 52 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Page SC and Mr Kelly |
| SOLICITOR FOR THE APPELLANT: | Galloway Family Law |
| REPRESENTATION FOR THE FIRST & SECOND RESPONDENTS: | In person |
COUNSEL FOR THE THIRD RESPONDENT: | Mr Graham |
SOLICITOR FOR THE THIRD RESPONDENT: | The Junction Chambers |
| ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Sperling |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
(1)That the appeal be allowed.
(2)That the orders of the trial Judge be set aside.
(3)That the wife’s application for parenting orders be remitted for re-hearing by a Judge in the Sydney Registry.
(4)That the orders of the trial Judge continue as interim orders until the redetermination of the proceedings.
(5)That the Court grants to the Appellant Mother a costs certificate pursuant to the provisions of s.9 of the Federal Proceedings (Costs) Act 1981 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 Mother in respect of the costs incurred by the Appellant Mother in relation to the appeal.
(6)That the Court grants to the Third Respondent Father a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 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 Third Respondent Father in respect of the costs incurred by the Third Respondent Father in relation to the appeal.
(7)That the Court grants to each party a costs certificate pursuant to the provisions of s.8 of the Federal Proceedings (Costs) Act 1981 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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.
(8)That the ICL have 21 days to seek a costs certificate by the filing of written submissions.
IT IS NOTED that publication of this judgment under the pseudonym Herridge & Handerson and Ors is approved 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 31 of 2011
File Number: NCF 702 of 2006
| Ms Herridge |
Appellant
And
| Ms Handerson & Mr Luckwell Senior |
First & Second Respondents
And
Mr Luckwell
Third Respondent
And
| Legal Aid NSW |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed 29 April 2011 Ms Herridge (“the mother”) appealed against parenting orders made by Cohen J on 10 February 2011 in parenting proceedings between herself, Mr Luckwell (“the father”) and others.
The father resisted the mother’s appeal and sought to maintain the orders of the trial Judge.
Each of the paternal grandmother, Ms Handerson, and the paternal grandfather, Mr Luckwell Senior, was a party to the proceedings before the trial Judge. Both supported the father’s opposition to the mother’s appeal. So did the Independent Children’s Lawyer (“the ICL”).
Although a party to the proceedings before the trial Judge, the Director-General, Department of Family and Community Services (formerly Department of Human Services) did not participate in the appeal.
The trial Judge’s orders essentially provided that the two children of the former relationship between the mother and father, the child B who was born in April 2002 and the child H who was born in July 2003, live with the father, that he have sole parental responsibility for them, and that the children spend time with their mother each alternate weekend, during school holidays, and on other specified occasions. The trial Judge made a series of other orders regulating the parties’ dealings with each other.
In lieu of the trial Judge’s orders, the mother sought that the proceedings be remitted for re-hearing before a Judge other than Cohen J.
Background
Some material facts provide background to the appeal. Whilst many matters were controversial before the trial Judge, we do not understand any of the matters to which we will shortly relate to be controversial within the context of this appeal.
The mother and father commenced to live together in 2000, and finally separated in 2006. Between 2000 and 2006 they separated on a number of occasions. The relationship between the parties was frequently volatile.
Subsequent to the parties’ final separation, the children primarily lived with the mother.
The father, who is 33 years of age, initially proposed that the children would live with him at his mother’s premises. At the date of the trial Judge’s decision, the father was in a relationship with Ms O who is 43 years of age. Ms O has two children, a daughter aged 16, and a son aged 5, the former primarily living with her father, the latter being co-parented by Ms O and the child’s father. The father and Ms O have been engaged since April 2010 but had no immediate plans to marry, intending to “re-consider their situation” after the parenting proceedings were completed.
The mother is 30 years of age and lives with her parents. The mother has a third child, J, who was born in October 2008. The child J’s father is Mr A. The mother and Mr A do not live together. Whilst each of the paternal and maternal grandparents and Ms O gave evidence before the trial Judge, Mr A did not. Why he did not was not adequately explained.
After April 2006, the children spent time and communicated with the father on a regular but limited basis.
For reasons which he detailed, the trial Judge concluded that the best interests of the children would be served by their commencing to live with the father, notwithstanding that they had not since April 2006 lived with him or lived away from the mother.
The Grounds of Appeal
Senior Counsel for the mother agitated the various grounds articulated in the mother’s Amended Notice of Appeal by reference to a number of broader headings. Without necessarily doing so in the same order as Senior Counsel for the mother agitated them, we shall consider the challenges raised by the mother by reference to the ground of appeal in which they were articulated.
The delay in the delivery of judgment – Ground 2
Ground 2 of the Amended Notice of Appeal provided:
2.That the trial judge erred in that he failed to give any or any adequate reasons (having particular regard to the delay in the delivery of reasons and the circumstances in which the trial was conducted) for the assessment by him of the evidence of the parties and expert witnesses and the weight afforded by him to such evidence.
The evidence before the trial Judge concluded on 2 June 2010. Judgment was delivered on 10 February 2011. A period in excess of eight months thus elapsed between the conclusion of the trial and the delivery of judgment.
It was, correctly in the Court’s view, conceded by Senior Counsel for the mother that the trial Judge’s delay could not of itself enliven appellate intervention. However, it was submitted that the trial Judge’s delay would cause the Court to subject his reasons for judgment to closer scrutiny than would otherwise have been the case. The authorities to which all Counsel referred are consistent with doing so.
As is clear from its terms, this complaint involves a challenge to the adequacy of the trial Judge’s reasons for his findings and conclusions in the light of the delay in the delivery of judgment.
Whilst the authorities provide support for the proposition that reasons for a delay in the delivery of judgment are desirable, and may in some circumstances be required (see Rollings & Rollings (2009) FLR 396, Wynona v Friend [2011] FamCAFC 6), we perceive the real issue is whether material findings of fact made by the trial Judge, and/or conclusions reached by him in reliance upon them, could be unsafe by virtue of the time which elapsed between the conclusion of the evidence and the delivery of judgment. That in turn is more referable to a consideration of contested findings or conclusions, and the evidence upon which they were, or could be based, or its absence. If those challenges were made out, the fact that the trial Judge’s delay in delivery of judgment may have caused, or contributed to his error(s) is irrelevant. If they are not, it is difficult to see how his delay could change anything.
With respect to Senior Counsel for the mother, we are not persuaded that her challenges are advanced by either the fact of delay in the delivery of judgment, or, as is clearly the case, the absence of reasons explaining such delay.
Properly considered, none of the challenges to the findings of fact made by the trial Judge, or conclusions reached by him in reliance upon them, articulated in ground 3 of the mother’s Amended Notice of Appeal, rely, or turn upon the trial Judge’s delay in delivering his judgment. As is clear from the terms of the challenges to such findings of fact and/or conclusions, their basis is the asserted absence of evidence in support of them, rather than the delay of the trial Judge in making them.
If, as Senior Counsel for the wife submitted, material findings of fact made by the trial Judge were not reasonably open to him, it does not matter whether that occurred because of the time his Honour took to deliver his judgment or for some other reason. That is also the case if such findings are shown to have been “unsafe” (see State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588). If it is demonstrated that his Honour’s discretion was exercised in reliance upon material errors of fact, appellate intervention is likely to be enlivened (see De Winter v De Winter (1979) FLC 90-605).
What we have said ought not be misconstrued, however. It is regrettable that judgment was not delivered more expeditiously than it was in this case. In a case where impressions of parties and witnesses clearly assumed considerable significance, a delay of eight months had the potential to diminish the clarity of the trial Judge’s recollection of their evidence, and his assessment of its reliability. We shall subject the trial Judge’s judgment to closer than usual scrutiny (see M v M (2006) 36 Fam LR 97; R v Maxwell (1998) 217 ALR 452).
The asserted erroneous approach to Section 65DAA of the Family Law Act 1975 (Cth) – Ground 1
Ground 1 provided:
1.That the trial judge erred in that he failed to give any or any adequate reasons for his decision to rebut the presumption of equal shared parental responsibility and the consequent avoidance of the provisions of section 65DAA of the Family Law Act.
In his oral submissions, Senior Counsel for the mother asserted that the trial Judge erred in law in his application of the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”) which governed the determination of the parenting proceedings before him in ways, and to an extent not specifically articulated in this ground.
Notwithstanding that, as the trial Judge recorded early in his reasons for judgment, the parenting proceedings had initially been commenced by the paternal grandparents, by the conclusion of submissions at the end of the trial, the contest was in reality between the mother and father of the children. The presumption of equal shared parental responsibility created by s 61DA(1) of the Act was thus potentially enlivened. The section provides:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In this case it was ordered that the father have sole parental responsibility for the children.
The trial Judge’s consideration of equal shared parental responsibility commenced in the following terms:
203.Here the parties have not agreed to an order for equal shared parental responsibility. The mother seeks such an order and the independent children’s lawyer supports her in this respect. DOCS asks that sole parental responsibility reside in the mother, whereas the father and his parent’s seek sole responsibility for the father. The rebuttable presumption to the effect that shared parental responsibility best promotes a child’s welfare which is imposed by s61DA of the Act when making parenting orders is sought to be rebutted.
His Honour then said:
204.Because there may be a parenting order giving the parties equal shared parental responsibility, s. 65DAA is given effect. It requires the Court to consider whether it would be in the best interest of the boys, and practical for them to spend equal time with each parent. If it is both, the Court is required to consider making an order for equal time with each parent.
His Honour thus, correctly there is no doubt, recorded that, if the parents retained equal shared parental responsibility, s 65DAA applied and necessitated the Court considering making an order that the children spend equal time with each parent, or spend substantial and significant time with each parent. A consideration of s 65DAA only followed, and was dependent upon, a finding that, if it applied, the presumption created by s 61DA had not been rebutted (see eg MRR v GR (2010) 240 CLR 461, discussed below). If the presumption did not apply, or applied but was rebutted, s 65DAA was not relevant to the determination of the parenting proceedings. The proceedings were then determined solely by reference to “best interests”.
The trial Judge then proceeded to address the issue of “best interests” by reference to the provisions of s 60CC of the Act. As is not in doubt, that exercise led him to conclude that the best interests of the children required that they live with the father.
Having concluded his s 60CC deliberations, his Honour then said:
252.I must determine whether or not to make an order for the parents to have equal shared parental responsibility for the boys. I should apply the provisions of s. 65DAAA [sic] of the Family Law Act. By s. 65 DAA(1), I must consider whether it would be in the best interests of each child to spend equal time with each of the parents, and at the same time consider whether orders to that effect are reasonably practicable. As I have said, to determine what residence order to make I must, because of s. 60CA, regard the best interests of each child as the paramount consideration. This is why I have already canvassed s. 60CC.
Senior Counsel for the mother submitted that the trial Judge erred in law by referring to s 65DAA for the purpose of determining whether the statutory presumption of equal shared parental responsibility was rebutted. It was by reference to s 61DA, to which the trial Judge did not refer, that the applicability of the presumption of equal shared parental responsibility and, if it applied, its rebuttal were submitted to have been required to be determined.
As is not in doubt, Section 61DA(1) of the Act is the legislative foundation of the “presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”. In support of his contention that the trial Judge’s approach to the question of parental responsibility was fatally flawed, Senior Counsel for the mother referred to s 61DA(2) of the Act, which provides:
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
Family violence is defined in s 4 of the Act as:
"family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
Having erroneously referred to s 65DAA for the purpose of determining the question of parental responsibility, and having assumed that the presumption was applicable, it is perhaps unsurprising that the trial Judge did not address either of the two potential bases by virtue of which the presumption may not have applied pursuant to s 61DA(2). As is not in doubt, if the presumption does not apply, no question of its rebuttal can arise. Only if the presumption of equal shared parental responsibility is applicable, and not rebutted, can s 65DAA assume relevance.
The evidence before the trial Judge raised matters potentially falling within the ambit of s 61DA(2)(b). His Honour was obliged to consider s 61DA(2)(b) in the light of that evidence, and make findings with respect to it. We accept that the findings of fact made by the trial Judge, which have not been challenged in this appeal, did not oblige him to consider s 61DA(2)(a).
Earlier in his reasons for judgment, the trial Judge made extensive findings with respect to a range of matters which could have informed a consideration of s 61DA(2)(b) of the Act. It was, at least inferentially, submitted by those resisting the mother’s appeal that, albeit the trial Judge did not expressly refer to s 61DA(2) of the Act, a balanced reading of his reasons for judgment leaves no room for doubt that had he directed his mind to it, his Honour would have concluded that the presumption created by s 61DA(1) was not enlivened. A number of his Honour’s findings support that proposition.
Having referred to the parents’ separation sometime prior thereto, the trial Judge said:
37.By 28 September 2002, the mother had contacted DOCS to get advice about domestic violence. However, no evidence of specific acts are before the Court in relation to this contact. It is typical of the mother’s case that she claims many acts of violence against her by the father, but provides next to no detail or specific evidence of it. I regard the mother as being an exaggerator and habitual liar, and as being exceptionally willing and able to manipulate situations to her perceived advantage, especially by using politically correct do-gooders and people who have a duty to deal with social problems and the like, but not the time, inclination or ability to distinguish truth from fiction. I do not completely discount the allegations of violence. I think they have been greatly exaggerated in number, extent and effect by the mother and regard the limit of the father’s violence toward the mother as likely to be drunken verbal abuse, threats and occasional damage to property.
The trial Judge also referred to an incident between the parties in 2004, of which he said:
42.Again, in late 2004, the father and mother were involved in an incident at the father’s father’s home when the mother claims the father assaulted her. She says he punched her 3 times “around the face, arms and shoulders”, which seems to me to have been exaggerated. He then began punching himself. It is likely that, at this time, the mother and father were not living together. When the mother attempted to drive him to his home, he attempted to open the door and jump from the moving car. When the mother locked the doors, he climbed out the window while she was stationary at traffic lights. He must not have been rational, she must not have feared him. The parents either separated then or soon afterwards. This incident is unusual for the mother, in that she did not involve the police.
The trial Judge also referred to an incident in April 2005, and recorded:
43.The police were involved over an incident on 10 April 2005. The details seem to me to show much about the parents’ relationship. They were not living together at the time according to the mother, but were living together according to the father. She said they had been separated for about six months, yet saw one another daily and they had an arrangement for the father to see the children each day. On the day in question, the father says she had earlier taken him to a bowls club where he had been playing bowls and drinking. The mother must have at least wanted him to see the children, or wanted to see him herself, although he was so affected by alcohol that he could not drive. She collected him and drove him to her home. She was in the words of the police report, “going to allow him to sleep the night”. He was moderately affected by alcohol. An argument over a trifle then developed. I am not satisfied that one or the other was more at fault in it. The father left, but before he did, according to the mother, he threatened to return and “fucking get her”. (Original emphasis).
44.He denies this. He said she was argumentative so he left and went for a drive. The mother called the police who saw the father on his way back to the mother’s home and arrested him. His PCA reading was 0.16gm/100. His driving licence, which had recently been regained, was confiscated and he was ultimately disqualified from driving for 42 months and sentenced to seventy hours community service.
45.The police obtained an interim telephone AVO on 11 April but it was not converted to a final order. The application was actually dismissed by the Local Court on 14 April 2005, when the mother did not wish to proceed. It is important to know that the ground for seeking the order specifically says “protected person hasn’t complained of any previous assaults”.
An incident on Melbourne Cup Day 2005 was also referred to, of which the trial Judge said:
48. The date of the next relevant incident to be considered is not in doubt. The mother called at the police station at Maitland at about 9pm on 3 November 2005. She did not appear to be upset. She complained that seven hours earlier the father had telephoned her a number of times and had frightened her by telling her he would take the children and she would not see them again. He made threats such as “I am going to put you in a grave”. She came to the police station to apply for an AVO. It is of great significant that, in making this complaint, the mother told the police that she had left the father two years earlier because of domestic violence. She alleged that the father had often come to her home to see the children and that these visits had resulted in twenty incidents when the father had “harassed” her. No allegations of assault were made, and when asked to supply details of the incidents to the police the mother refused to give them. (Original emphasis).
49.Nevertheless, on 10 November 2005, the mother, on the police application, obtained an AVO against the father, who agreed to it but was not represented. His story, however, differs greatly from that of the mother. He thinks the incident occurred in November 2004. I have no substantial doubt that the incident he says occurred on Melbourne Cup Day 2004 actually occurred on Melbourne Cup Day 2005 and the AVO of 10 November 2005 is a consequence of it. Melbourne Cup Day 2005 was on 1 November.
50.The father says, and I believe him, that he was separated from the mother at the time. He took another woman to a Cup Day function. He discovered the mother found out about this two days later, on the 3 November, when he had a conversation with her, in which she said of his outing “I know you did. You are not seeing the boys ever again”. This is the day she went to the police to seek the AVO. The father was served with the application only a few days afterwards. By that time, he was on good enough terms with the mother for her to have accompanied him to Court. He denies assaulting the mother. I am not satisfied he had at that time hit, pushed or punched the mother as she alleged. He said he did not fully understand the terms of the AVO. I believe him. (Original emphasis).
The trial Judge then referred to proceedings against the husband arising out of the AVO which was granted on 10 November 2005 and said:
54.The father was arrested and charged with the breach on 11 November 2005. On 12 November, he sent a text message to the mother which said “I know some good stuff on you now”. He was arrested again but was too drunk to be interviewed until later. He claimed to the police and in his affidavit he intended to send it to the woman he went to the Cup Day event with. He was not believed and charged with another breach of the AVO. I do not believe his excuse either. He was convicted and given a bond to be of good behaviour for two years and accept supervision of the Probation and Parole Service.
Two telephone calls and text messages the father sent to the mother between 17 and 30 April 2006 were referred to by the trial Judge, who said:
59.The mother then received many telephone calls from the father. From 17 April 2006 to 30 April 2006, the father sent thirty-three text messages to the mother, culminating in thirteen on the final day of that period. During the same period, he left eighteen voice messages including eleven on 26 April. On 6 May he left a further five voice messages. There is no doubt he eventually knew he was harassing the mother. He also knew that it was a condition of the AVO of 11 November 2005 that he must not harass the mother or telephone her except to arrange access to the children. The messages probably only stopped because, on 6 May, the mother changed her telephone number. A few of the messages were directed at access arrangements. Most were not.
His Honour then referred to an incident on 12 May 2006, and recorded:
63.On the evening of the day he went to the kindergarten, the father went to the mother’s home. She was not there. He saw her father. The father was arrested and charged with breaches of the AVO of 10 November 2005, which specifically provided that he should not approach the daycare centre. He denied attempting to get in the moving car. The father was, on 19 May 2006, convicted and given three sentences, all suspended, the longest of which was 12 months imprisonment with the longest bond to be of good behaviour being for 12 months. He was required to accept supervision from the Probation and Parole Service and obey to accept its directions in respect to domestic violence education and alcohol rehabilitation.
His Honour then considered an incident in June 2006, and said:
64.The next incident which warrants discussion occurred on 21 June 2006 when the father was seen by the mother at 4pm when she drove past him on her way to collect the boys’ from preschool. She claimed to the police that the father was holding a beer bottle. When her car approached, she said he lifted it as though he was about to throw it at the car. He did not throw it. She claims she then stopped her car because she was too upset to drive and the father then began staring at her.
65.The father denied knowing the mother was in the car and acting as though he was about to throw the bottle when he was interviewed about this incident three months later, on 22 September 2006 then arrested and charged with yet another breach of the AVO. I do not accept his denial.
The trial Judge then referred to events in August and September 2006 and said:
66.On 25 August 2006 the headmistress from the childcare centre telephoned the police. It was not, in my assessment, a coincidence that she did so. The Principal said she had concerns for the children, as [the child B] was showing signs of fear of his father and the teachers at the school believed the children’s development was being impeded because of their fear of their father. The headmistress reported that another teacher who lived near the father had seen him “throw things around” when he got angry. The police applied to vary the AVO by adding the boys to the protection it supposedly provided, despite not having a scintilla of real evidence to support the application.
67.There is no realistic doubt that the mother stage managed the Principal’s complaint. The mother made a statement to the police on 16 September 2006 to support the variation. In it she confirmed, for the first time known to the Court, that when [the child B] was 6 weeks old; that is, in mid 2002, four and a half years earlier, the father had pushed her while she was holding [the child B], then when she handed [the child B] to a friend who was visiting her, punched her several times. She made a general complaint about assaults by him on her. She specifically alleged that once… he head locked her, punched her in the head several times and held her against a wall with his hands around her throat. This latter incident allegedly occurred in late 2004 or early 2005. It was well after the mother has started to complain to the police about the father’s harassment, yet she did not complain of assaults to the police for another eighteen months or more. By the time the application to vary was filed at … Court House, it was not only based on the children witnessing the violence of the father, which was not specifically alleged, it was alleged that the most recent incident had been more than one year earlier and that the father bit [the child B] while assaulting the mother.
His Honour also recorded:
70.If it might be thought that the bottle throwing threat claims and the teacher’s report were rather tendentious, the next claimed incident must also be regarded similarly. On 1 November 2006, the mother went to … Police Station and complained that the father has been in breach of a bail condition that he not come within 5km of … Post Office. This was a condition of bail imposed on the father after he was arrested on 22 September 2006 for the alleged threat to throw the bottle at the mother’s car in June 2006. He had been bailed to appear at … Court on 3 November 2006 to answer this charge. The mother’s allegation was that some shop assistants at a shop in … Shopping Centre saw him, but when the police contacted them they did not provide any evidence.
…
72.… Shopping Centre is 3.5km, according to readily available maps, from … Post Office. Nevertheless, it is more probable than not that the father was stalking the mother when she saw him …, whether or not he had a bottle in his hand. The location of this intersection is on the way … to the preschool, but otherwise was out of the way of any route the father would need to use, according to the police.
As the trial Judge recorded, by 4 November 2006, the father had taken out an AVO against the mother, “alleging the mother was stalking him and attempting to get him to breach the AVO which bound him”, a suspicion which the trial Judge regarded as “well justified”.
Ultimately the trial Judge recorded:
78.It is my assessment, after reading all the relevant police material in evidence, the affidavit evidence and seeing and hearing both the mother and father giving oral evidence, that the mother is not, and has never been, fearful of the father but that she has abused the system in place to protect people who are in genuine fear, and have a proper reason to be fearful, for the purpose of getting her own way and gaining a tactical advantage in these proceedings. To do so she must have manipulated [the child B] and [the child H] so they would be fearful of their father, not for any benefit to them. Such manipulated fear in the boys is the only explanation for the preschool teacher’s complaint, although it was no doubt made because of information the mother supplied and because of her urging. It is not, in my opinion, a coincidence that Senior Constable [P] reached much the same conclusion as I have about the motives, bona fides, and attributes of the mother. I regard her as attempting to use the Court in the same way as she attempted with more success to use the police and Local Court.
Later in his reasons, the trial Judge referred to an episode on 4 January 2010, and said:
136.One 4 January 2010, the father attended … Police Station in response to a police request. He was charged with two counts of breaching the AVO, which was in place at the relevant time. The charges were based on the text messages of 5 and 11 December. He was initially refused bail, and spent from 4 January to 27 January at … jail. It is a testament of the ridiculousness of the situation that, on 27 January, the father admitted what it was alleged he said and was convicted. It does not reflect well on the legal system and those who refused bail, that the Magistrate sentenced the father to 14 days imprisonment after he had already spent more than that on remand. He was immediately released. The father, his mother, the police, and the Magistrate who refused bail and could not have seriously considered the circumstances, further empowered the mother. That this is the case is shown by what next occurred.
137.On 15 February 2010, the father went to [the child B]’s school. He had, in May 2009, after I had allowed him to collect the children from school and return them to it, met the Headmistress, [Ms M], to inform her of the situation. He had requested copies of [the child B]’s school reports, including that for the end of 2009. He collected this on 15 February 2010. Either [the Headmistress], who in many ways has demonstrated that she is quite prejudiced against the father in favour of the mother, contacted the police or, as is more likely, contacted the mother, who had already told her not to deliver reports to the paternal grandparents. The mother or [the Headmistress] contacted the police and claimed that the father had breached the AVO, which he had because of its ludicrous terms. One of these was that the father was not to approach the children’s school. The police charged the father on 22 February, but he was granted bail. He had, between 18 February when the police first contacted him about the matter and 22 February made an application to discharge or modify the AVO.
138.When the matters were due to be heard on 5 May 2010, the mother refused to attend but wanted the orders to continue unchanged. The charge of breach was withdrawn and dismissed and the term of the AVO was reduced from five years to one further year concluding on 5 May 2011. The children were also removed from the “protection” of the AVO and the condition about approaching their school was deleted, as it should have been in view of my still effective orders. The terms affecting the children and school should not have been there in the first place.
Later again, the trial Judge recorded:
149.… On any view, the facts up to that time [November 2007] establish that the father could not limit his alcohol consumption to acceptable levels and was very prone to lack of self-control and angry outbursts. These resulted, in Ms [T’s] [the Family Consultant’s] understanding, in damage to property, an assault on police, pub brawling and similar, as well as disparaging language directed at the mother; sometimes in the presence or hearing of the children, but not in assaults on the mother or children.
His Honour also later recorded:
157.The father was no more candid with Dr. [R] than the mother. He said he was “now” drinking only one or two alcoholic drinks each week, and had no current alcohol problems. Ludicrously, he said he had been a heavy drinker, drinking up to five beers per day. Surely, to get as drunk as he often was, he was drinking much more than that, and would be likely to believe that to drink five beers a day would be very modest consumption. He attributed the breakdown of his relationship with the mother in part to her objection to his alcohol consumption. This is probably true. The paternal grandmother understated the father’s alcohol problem to Dr. [R] and excused it by blaming the mother.
At trial, Counsel for the ICL submitted the following in relation to the issue of violence:
It is submitted that the Court would be persuaded that there is substance to the mother’s complaints about breach AVO’s, given the number of convictions and the sheer number of messages, coupled with the father’s admission to the police that he recognised that he had breached the orders on a number of occasions. The Court would also accept that her concerns that the children or either of them had been sexually interfered with were genuinely held, and based on the unchallenged evidence of [Dr B] it is clear that [the child B] made some disclosures even though JIRT held that the charges could not be substantiated, and that she was perhaps encouraged in those beliefs by the responses she received from [Ms G], [Mr F] and [Dr N]. …
Although the paragraphs of the trial Judge’s reasons which we have set out above were considerably more critical of the mother than of the father, the findings recorded in those paragraphs reveal that the trial Judge regarded the issue of family violence as real and significant.
Without more than finds expression in the reasons of the trial Judge, we are unable to accept that the trial Judge impliedly considered, and rejected any suggestion that the presumption of equal shared parental responsibility did not apply by reason of the evidence before him with respect to family violence. His Honour’s consideration of the issue, particularly as it emerges from paragraphs 204 and 252 of his reasons, is also inconsistent with his having done so. So does the sequence of his reasoning in relation to the presumption of equal shared parental responsibility, and the failure to anywhere refer to s 61DA(2) of the Act.
Albeit in the context of his consideration of s 60CC factors, the trial Judge made a number of findings which would have been relevant to his conclusion in relation to s 61DA(2)(b) of the Act if he had engaged with it. Those findings leave room for doubt as to what his Honour may have concluded in that regard. These findings recorded:
212.Now that the parents live apart, there is virtually no prospect of incidents of violence occurring between them. There is no evidence which I accept of family violence in the father’s or either of his parents’ homes, and no acceptable evidence that the boys have been physically abused by anyone.
213.It is the mother’s case that because the father is, and was violent and abusive towards her, and because he is prone to abuse alcohol, there is an unacceptable risk that the father will be violent to the boys. I am quite sure he has never shown a tendency to violence against them and has never sexually abused them. I am also satisfied the he has matured a lot recently and has largely overcome his reliance on and abuse of alcohol. A judgment in his favour will help him considerably in this regard, as I think there is much to suggest his resort to alcohol has been a reaction, albeit an unjustified one, to his frustrations caused by the mother’s behaviour. I am satisfied that any risk that he will harm the children either physically or psychologically as a result of abuse, family violence or neglect is such that the risk is so low as to be within acceptable limits.
Had his Honour referred to s 61DA, he may reasonably have concluded, in reliance upon those findings, which have not been challenged in this appeal, that the presumption of equal shared parental responsibility applied. He may also have reasonably concluded that the presumption did not apply by reason of s 61DA(2)(b) in reliance upon those findings. It is clear however that his Honour did not engage with the evidence with respect to family violence in the context of s 61DA, either to determine whether or not the presumption applied by reason of s 61DA(2)(b), or, if it did, whether it was rebutted pursuant to s 61DA(4). The implications of the failure to engage require further consideration.
As is not in doubt, the trial Judge purported to rely, albeit by reference to s 65DAA rather than to s 61DA(4), upon the “best interests” of the children as the basis for rebutting the presumption, without having ever considered whether or not it applied. Having assumed that the presumption of equal shared parental responsibility applied, his Honour should have had regard to s 61DA(4), which provides:
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
To the extent that his Honour did subsequently purport to give reasons for concluding that the presumption was rebutted, it was submitted by Senior Counsel for the mother that the matters upon which he relied did not, and could not, provide a proper basis for rebutting the presumption, if it applied.
The trial Judge revisited the issue of rebuttal of the presumption later in his reasons and said:
267.In the circumstances, although there is a presumption that equal shared parental responsibility is in the best interests of a child, that presumption is strongly rebutted. The mother and father are quite unlikely to agree on any significant matters. The mother will probably see such disagreement as a way of overturning the orders of the Court and frustrating the father into resorting to self-defeating behaviour. Her level of self-absorption is such that she is not likely, in any event, to compromise when differences arise, so any hope of cooperation or compromise would be in vain. The mother has already made many decisions affecting the boys’ long term future which have shown either her bad judgment or deliberate agenda to further her needs in preference to the boys’ needs, or both. Because the father is not as inclined to do this and will have the boys living with him, it is much more preferable that he have sole parental responsibility for decisions and the implementation of those decisions which will have a long term rather than an immediate effect on the boys.
As Senior Counsel for the mother submitted, the trial Judge’s error of principle was compounded by his consideration of whether or not it would be in the best interests of the children, and reasonably practicable, for them to spend equal or substantial and significant time with each parent, prior to having determined whether or not the presumption which gave rise to the need to consider such matters applied, or, if it did, had been rebutted.
Although conceding that, prior to his reference to s 65DAA of the Act, the trial Judge did not previously “indicate a determination whether the presumption for equal shared parental responsibility is rebutted pursuant to s. 61DA”, it was submitted by Counsel for the ICL that:
… the clear intention of the Trial Judge at paragraph 267 [AB1/94] is that it would not be in the best interests of the children for these parents to have equal shared parental responsibility. This is on the basis of prior considerations made in relation to s. 60CC matters, largely considered at paragraphs 209 to 251 [AB1/82-90]. The basis for this is located at 252, where the Trial Judge foreshadows:- “As I have said, to determine what residence order to make I must because of s. 60CA regard the best interests of each child as the paramount consideration. That is why I have already canvassed s. 60CC.” (AB1/90 emphasis added as underlined). [ICL’s Outline of Argument, page 2, para 11]
The submissions of Senior Counsel for the mother in support of this challenge are superficially attractive. In isolation, what his Honour recorded in the passage quoted above does not appear to be matters capable of rebutting the presumption of equal shared parental responsibility. As is not in doubt, the presumption was rebuttable by reference to the terms of s 61DA(4), which turns upon the Court’s conclusion with respect to “best interests”. Given that, by the time the trial Judge expressed the conclusion recorded above, he had addressed s 60CC, and notwithstanding that he did not ever refer to s 61DA(4), we consider that paragraph 267 should be read in the light of what had earlier been recorded. That, however, does not necessarily mean that the trial Judge’s conclusion with respect to rebuttal of the presumption of equal shared parental responsibility may not have been erroneous. However, the focus becomes more whether the trial Judge’s conclusion with respect to “best interests” survives the challenges which have been agitated on behalf of the mother which the Court will consider later in these reasons. If they do, albeit without reference to the relevant statutory provision (s 61DA(4)), the trial Judge’s conclusion with respect to rebuttal of the presumption of equal shared parental responsibility would survive.
It remains however to consider the mother’s challenge to the trial Judge’s approach to the legislative provisions applicable to determining whether or not the presumption applied.
The decision of the Full Court in Korban & Korban [2009] FamCAFC143 was relied upon by Counsel for the ICL in support of his contention that the challenge raised by Senior Counsel for the mother was not made out. In the passage relied upon by Counsel for the ICL in Korban, the Full Court said:
… [i]t is important to note that paragraph 82 of Goode does not contain binding principles departure from which will constitute appealable error… failure to follow such a guideline does not constitute appealable error, provided all the relevant provisions of Part VII of the Act are addressed ….(Original emphasis).
The passage to which Counsel for the ICL referred in Goode (para 82) made clear that, albeit in a necessarily circumscribed manner, parenting proceedings should be determined by reference to the same legislative pathway as applies to final hearings of such proceedings. It is not in doubt that the failure to determine proceedings pursuant to any “guidelines” will not of itself constitute appealable error. Failure to follow what have come to be described as “legislative pathways” may constitute appealable error.
The crux of the submission of Counsel resisting the mother’s appeal, and particularly of Counsel for the ICL, is that ultimately the failure to have regard to s 61DA of the Act did not lead the trial Judge into appealable error, given that his conclusion was that equal shared parental responsibility was not in the children’s best interests. Whether the trial Judge concluded that the presumption of equal shared parental responsibility did not arise by virtue of s 61DA(2)(b) of the Act, or assumed that it applied but concluded that it had been rebutted in reliance upon “best interests”, the outcome being the same, it was submitted that appellate intervention would not be enlivened. The logic of that contention is difficult to reject.
The more difficult issue is whether, notwithstanding the practical realities of the issue, the Court can sanction so fundamental a departure from the legislative framework by reference to which the issue of equal shared parental responsibility is determined as occurred in this case.
In MRR v GR (2010) 240 CLR 461 the High Court said (at paragraph 13):
13.Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. (footnotes omitted)
Their Honours’ references to statutory provisions of Part VII expressed in “imperative terms”, and the requirement that “jurisdictional facts” be found before certain kinds of orders can be made, suggest that the process, or path of reasoning by which the Court reaches its conclusion, may in some circumstances be as crucial as the conclusion itself. That is clearly the case when a Court applies the presumption of equal shared parental responsibility, and proposes making an order for equal shared time, or for substantial and significant time. Whether it is also the case when a Court does not apply the presumption of equal shared parental responsibility and does not propose making such an order is the issue for determination in this appeal.
Senior Counsel for the mother submitted that “a determination of parental responsibility both as to rebutting of the presumption and the making of a specific order is a pivotal factor in the determination of the parenting orders that are in the child’s best interests.” As the High Court’s decision in MRR makes clear, that is undoubtedly so when the presumption is not rebutted. The question in this appeal is whether that is so when the presumption is rebutted.
Whilst it is regrettable that the trial Judge departed as substantially from the legislative pathway created by s 61DA of the Act as he clearly did, we are not persuaded that, in the circumstances of this case, so doing led to appealable error. There is a distinction between failing to observe the provisions of Part VII of the Act and to find “jurisdictional facts” when, having applied the presumption of equal shared parental responsibility, it is “imperative” to do so in order to enliven the power to make orders, and failing to observe the provisions of Part VII of the Act when determining that the presumption of equal shared parental responsibility is rebutted, and no orders of the kind requiring findings of jurisdictional facts are made.
The trial Judge in this case assumed that the presumption of equal shared parental responsibility applied, but was rebutted by his conclusion with respect to “best interests”, albeit by reference to the wrong section of the Act. Had he considered s 61DA of the Act, and considered that the presumption did not apply, consideration of “best interests” could not have changed the trial Judge’s conclusion.
In the particular circumstances of this case, we thus find this challenge fails. Nothing we have said should however be interpreted as endorsing the trial Judge’s approach to the presumption of equal shared parental responsibility. Despite the course taken by the trial Judge’s path of reasoning, and almost fortuitously, his conclusions with respect to “best interests” deny this challenge success. Clearly the preferable course would have been for his Honour to have considered s 61DA, the presumption of equal shared parental responsibility, first.
Ground 4
Ground 4 provided:
4.That the trial judge erred in that he took into account evidence not properly before him in the proceedings.
This complaint arises from the following passages of the trial Judge’s reasons for judgment:
248.There are two circumstances which I regard as sufficiently relevant which have not been canvassed already. The boys’ behavioural problems is one. They both seem to have them, although [the child B]’s are more extreme. As I have already said, Dr. [R] seems to accept that he has a degree of ADHD. The father and his parents are much more sceptical, especially the father’s father. The father’s side of the family seem to suggest that the diagnosis of ADHD and reliance on Ritalin is a substitute for ill discipline in the mother’s household.
249.I am not in a position to say whether there is any substance in this claim. I do know that the diagnosis of ADHD and the use of Ritalin and the like to treat so called sufferers is still controversial with some authoritative opinion to the effect that it is over diagnosed, or does not exist and is sometimes “used as a crutch” by medical professionals loath to tell parents that their child is “ill-disciplined”, and that Ritalin is over prescribed and used “as a crutch by parents and/or teachers in response to children whose real need is better parenting or teaching” (Sydney Morning Herald, Editorial p12 (25.01.2011))
250.If [the child B] resides with the mother and she retains a say in his medical treatment he may revert to dependence on Ritalin. He is not taking it at present, so the mother cannot be regarded as more likely than not to resume its use. If [the child B] lives with the father or paternal grandmother, and the father has sole responsibility for relevant decisions, [the child B] is likely to remain free of Ritalin in the short term. In that time, his principal carer will be able to decide whether or not the change in parenting and other circumstances, possibly including school, warrants a continuing lack of need to return to reliance on Ritalin. I regard both the father and his parents as sufficiently responsible to then make the decision about Ritalin which will best advance [the child B]’s welfare. (Original emphasis).
It is not in doubt that, until the delivery of judgment, none of the parties to the proceedings before him had any indication that the trial Judge was going to rely upon the material to which he referred in his reasons for judgment.
To the extent that the newspaper editorial was regarded by the trial Judge as evidence, no party had the opportunity to test it. No party had any opportunity to make submissions about the material, whatever its potential status may have been. Quite apart from the trial Judge’s failure to afford the parties natural justice, the statements from the Sydney Morning Herald reiterated by the trial Judge do not appear to be those of a person who was qualified to make or express such opinions and would not have been admissible.
Sensibly, Counsel opposing the mother’s appeal acknowledged that, as a matter of natural justice, the trial Judge had erred by referring to the material from the Sydney Morning Herald. Necessarily, it was submitted on behalf of the parties opposing the mother’s appeal that, although referring to it, the trial Judge could not be said to have relied in any discernable way on the statements in the Sydney Morning Herald editorial.
It was submitted by Counsel for the ICL that “to the extent that the Court made such a comment in a judgment no decision or finding turned on such comment. It is the submission of the Independent Children’s Lawyer that this ground of itself does not warrant remission of the matter.”
The proposition that a trial Judge would refer to material without in any way having regard to it is difficult to accept. Ultimately, having regard to the paragraphs in question, we are persuaded that the trial Judge did rely upon what he apparently read in the Sydney Morning Herald editorial in concluding as he did with respect to the child B’s likely future use of Ritalin. To read the three paragraphs is instructive, and supportive of our conclusion.
The trial Judge referred to the children’s behavioural problems, and observed that Dr R “seems to accept that [the child B] has a degree of ADHD”. His Honour recorded, accurately, that the father and his “side of the family” questioned the diagnosis of ADHD for the child B and suggested that “reliance on Ritalin is a substitute for ill-discipline in the mother’s household”. As was conceded before us, Dr R did accept that the child B exhibited ADHD “to some degree”. No party at trial challenged Dr R’s expert opinion evidence in that regard.
In a passage which was understandably relied upon significantly by Counsel resisting the mother’s appeal, the trial Judge said the he was “not in a position to say whether there is any substance in this claim”, i.e. the claim of the father and his family. How his Honour came to “know that the diagnosis of ADHD and the use of Ritalin and the like to treat so called sufferers (emphasis added) is still controversial with some authoritative opinion to the effect that it is over diagnosed” was not revealed by him in his reasons, or anywhere during the trial to which we have been referred. Nor was the basis upon which his Honour observed that the “authoritative opinion” to which he alluded also suggested that ADHD “does not exist”.
In circumstances where there was unchallenged admissible expert opinion evidence that the child B exhibited a “degree of ADHD”, it was not open to the trial Judge, without reference to admissible evidence which was before him, to speculate as to whether or not ADHD existed or was exhibited by the child B. His Honour’s personal opinions, whatever their basis, were no substitute for evidence.
Ultimately, it is apparent from the balance of the paragraph that the trial Judge accepted what an unidentified, and presumably unqualified editor of a newspaper apparently said about ADHD. It is readily apparent that, notwithstanding that Dr R had not expressed the cynicism so colourfully articulated by the newspaper editor, the trial Judge preferred the opinion of the latter.
Our conclusion that the trial Judge’s opinions in relation to ADHD and Ritalin were influenced by the Sydney Morning Herald editorial is reinforced by the first sentence of the paragraph immediately following the reference to the editorial. His Honour there said that if the child B resides with the mother “and she retains a say in his medical treatment he may revert to dependence on Ritalin” (emphasis added). Notwithstanding that there was no evidence that the child B had ever been dependent upon Ritalin, inappropriately prescribed it, or that the mother had ever inappropriately had the child take Ritalin, the trial Judge clearly, and in the face of Dr R’s evidence, which was uncritical of the mother in relation to Ritalin, regarded the child B taking Ritalin in the future as undesirable, and reflecting adversely upon the mother.
It is difficult to see how, by reference to the trial Judge’s own reasons, such a view could not have been reliant upon, or influenced by the newspaper editorial from which he quoted. If it was not, in the circumstances it could only, and impermissibly, have been based upon his Honour’s own views about those matters.
Not surprisingly in the light of his earlier comments, the trial Judge proceeded to make a comparison between the father and the mother which was unfavourable to the mother, finding that the mother “cannot be regarded as more likely than not to resume [Ritalin’s] use”. We have not been referred to any evidence before the trial Judge which established that any administration of Ritalin to the child B by the mother had been, or would in the future be, other than as a result of a medical practitioner recommending and prescribing such a course.
The trial Judge’s statement that he regarded the father and his parents as “sufficiently responsible” to make decisions about “Ritalin which will best advance [the child B]’s welfare” was a clearly implied criticism of the mother in that regard. Such criticism was without foundation.
Whilst it is difficult to suggest in what way the trial Judge’s findings and conclusions influenced his decision, they were in our view material to the overwhelmingly adverse view he formed of the mother’s parenting capacity, which in turn impacted significantly, if not decisively on his ultimate decision. We conclude that this challenge has been made out.
Grounds 5 & 6
Grounds 5 and 6 provided:
5.That the trial judge erred in that he failed to [sic] any or any proper regard to the provisions of sections 60CC(3)(g) and (h), 60CC(6) and 61F of the Family Law Act.
6.That the trial judge erred in that he failed to give any or any adequate weight to the provisions of section 60CC(3)(d)(ii) of the Family Law Act.
Albeit by reference to differing provisions of s 60CC of the Act, these challenges assert that the trial Judge either failed to have proper regard, or give adequate weight to the provisions of s 60CC concerning the impact of a change of circumstances on the children the subject of the proceedings, the Aboriginal heritage of the children, and the father’s untried and untested capacity to adequately parent the children on a day-to-day basis.
The first and third of these topics were primarily addressed by Senior Counsel for the mother in his oral submissions. The issue of Aboriginality was developed in his written submissions.
Although a ground not forming part of the grounds of appeal, in his written submissions, the scope of the challenge to the trial Judge’s consideration of s 60CC was extended by Senior Counsel for the mother to encompass the provisions of s 60CC(3), and inferentially s 60CC(2)(b) of the Act, directed to family violence. We have dealt with this topic to some extent earlier in the context of the challenge to the trial Judge’s consideration of equal shared parental responsibility.
It is convenient to deal with these topics in the order in which they find expression within s 60CC(3).
The trial Judge’s consideration of the capacity of the parents
As was not in doubt, the children had been in the primary care of the mother for almost five years by the time the trial Judge delivered his judgment.
Although paragraph one of the orders provided that the children shall live with the father, there were no reasons given as to why this order should be made apart from criticisms of the mother and the importance of a meaningful relationship contained in paragraph 209.
The evidence of Dr R in both the reports prepared by him, the first in March 2008, the second in May 2010, described the mother as “providing well” for the children, being “competent and caring” and being “very capable and competent as a parent”.
We have not been directed to any cross-examination of Dr R in which it was suggested that the mother was other than he had thus described her. Nor have we been referred to any finding by the trial Judge contrary to Dr R’s opinion with respect to the mother’s capacity.
Nowhere in his first report did Dr R suggest, save to the extent that he indicated with respect to the child B having “features of ADHD and language difficulties”, that the children were developing other than satisfactorily in the mother’s care. Dr R suggested in his second report that “both children were developing as well as possible both cognitively and emotionally for their respective ages”.
We do not perceive that the trial Judge referred to the evidence of Dr R with respect to the mother’s capacity when addressing s 60CC(3) of the Act, or elsewhere in his reasons.
His Honour was critical of the mother’s parenting capacity, recording:
147.Ms. [T]noted that there seemed to be no concern about the mother’s physical care of the children but said that, if the mother was “engendering an exaggerated or unnecessary fear of the father in the children”, it would amount to “emotional and psychological abuse”. I regard the mother as having done this and as being emotionally or psychologically abusive toward the children, not only at the time Ms. [T] made her report, but until now. There is overwhelming evidence of this from the children’s school, indirectly from the mother, the paternal grandparents, Dr. [I] and from a variety of people attached to State and charitable health services and like complaints the children, especially [the child B] had made about the father to the effect that he has hurt the mother, is a bad man, has hurt them, that they are afraid of him; even of being afraid of sounds like his motorised bicycle, and has sexually abused them, all of which were not based upon their actual experiences but deliberate lies that the mother and her parents have told them and others in their presence. I should say that, in this context, the use of “abuse” is not limited to its statutory meaning in the Family Law Act of physical assault including sexual assault or involvement in sexual activity. (Original emphasis).
Later, his Honour recorded:
160.Dr. [R] reserved his highest level of relevant disapproval for the mother. His description of her appears to me to be apt for the impression I have independently gained from the evidence which I accept as likely to be accurate. He said that she is “extremely manipulative and shrewd” and “sees no value in the children seeing the father”. I do not agree with Dr. [R’s] assessment that otherwise she is “a capable and caring parent”. Capable and caring parents do not knowingly try to alienate children from their other parent by brainwashing them to believe he is a “bad man” who has hurt them and their mother, to be afraid of him, and to make sexual abuse allegations against him which, if they are not given a proper opportunity to forget or realise otherwise, they will eventually believe when they are old enough to understand them.
Notwithstanding that the trial Judge made numerous references to the evidence of Dr R which was critical of the mother’s attitudes with respect to a number of relevant issues, his Honour did not refer anywhere to the evidence of Dr R to which we have referred earlier, which was favourable to the mother. In a case where there was clearly, as the trial Judge recognised, no entirely acceptable option available, the failure to have regard to evidence of the positive aspects of the mother’s parenting capacity and attitudes was in our view significant.
Not surprisingly, having not taken Dr R’s evidence of the mother’s competence as a parent into account, the trial Judge did not anywhere in his reasons for judgment have regard to the reality that the father’s competence was necessarily largely untested.
His Honour was clearly, by virtue of s 60CC(3)(f), obliged to consider the capacity of each of the parents to provide for the children’s needs in a variety of ways. The trial Judge clearly considered the question of capacity to provide emotionally for the children. His conclusions in that regard were overwhelmingly negative with respect to the mother. As the evidence obliged him to, his Honour was also critical of the father.
On any view of the evidence before the trial Judge, the proposal of neither parent could have been regarded as entirely adequate or acceptable. The expert opinion evidence established that the children had particular needs. Notwithstanding the unchallenged medical evidence in that regard, the trial Judge sought to suggest that such problems were substantially referrable to the actions of the mother and her family.
In our view, the trial Judge’s consideration of s 60CC was vitiated by his failure to have any regard to the expert opinion evidence of Dr R as to the mother’s competence, which had clearly been demonstrated over a long period of time, and in difficult circumstances, and the reality that the father was an unknown in terms of parenting ability.
Failing to have regard to Dr R’s evidence with respect to the children’s development, and relationships with the father and the paternal grandparents, denied the trial Judge the opportunity to balance the numerous and serious adverse findings he made with respect to the attitude of the mother, and her family, to the relationship between the children and their father and his family, against the demonstrated positive aspects of the mother’s parenting. Had his Honour had regard to those matters, he may have reached the same conclusion, but we are unable to accept that he would, or should have.
The trial Judge’s consideration of the likely effect of any changes in the child's circumstances
It was submitted that the trial Judge failed to adequately consider the likely effect of any changes in the children’s circumstances. The trial Judge’s orders meant that the children would cease to live with a parent with whom they had always lived, and would commence to live with a parent with whom they had not lived for almost five years.
To the extent that the trial Judge did address s 60CC(3)(d), it was submitted that his conclusion in that regard was not reasonably open to him. That submission was sought to be supported by reference to the expert opinion evidence of Dr R, to which the trial Judge was submitted to have failed to refer.
To the extent that the trial Judge specifically addressed s 60CC(3)(d), he recorded his conclusion in the following terms:
227.Changes in the boys’ circumstances are likely to have significant effects. If the father and paternal grandparents are not able to see much of the boys, as has been the situation up to the hearing; that is, if there is no significant change, the boys are likely to lose their relationship with the father and his family. A change to reduce the father’s and/or paternal grandparents’ contact with the children will simply make this prospect more certain, resulting in, according to Dr. [R], an impediment to the boys’ emotional development, especially in [the child B]’s case. They are likely to be trained to believe that the father and his mother have physically abused them, and that the father has sexually abused them.
228.It will also be a loss to the boys to not see their mother, half-brother, and maternal grandparents. A reduction in the time they spend together will be a loss for the boys, particularly [the child B]. He is less resilient and has more difficulty coping with change. However, if the boys live principally with their father, or even the paternal grandmother, they will probably not become alienated from the mother and her family.
229.A change in school will probably also assist [the child B] to maintain a proper relationship with the father and his family. His current school seems to be an environment in which he will be encouraged to think badly of the father, and believe what the mother and her family say of the father. Continued attendance at [E Organisation] seems to be likely to create the same problem for him. As [the child H]’s school seems to be closely related to [the child B]’s, there is a risk that it has been, or will become infused with the same attitudes as those which exist at [the child B]’s school.
230.If the boys do go to live with the father, or paternal grandmother, their relationship with [the child J], the maternal grandparents, and even the mother will be undermined to some extent, but not so much that the improvement in their relationship with the father and his family will not more than make up for this so far as it effects the boys’ future emotional health.
The submission of Senior Counsel for the mother was that so concluding was not supported by the evidence, and not reasonably open having regard to the evidence of Dr R. By impermissibly undervaluing the likely impact of change on the children, the trial Judge’s discretion was submitted to have miscarried.
During the course of his cross-examination, Dr R, in response to questions by the trial Judge, gave his opinion of the option of the children living with the father, in the following terms:
The father living away from the paternal grandmother ‑ ‑ ‑?‑‑‑From the paternal grandmother, yes. Is he a viable option as a residential parent, is the big question.
That’s what I’m asking you?‑‑‑Well, it was quite clear to me that, of the two parents, the mother appeared to be much more competent of the two parents. The father seems to be rather dependent in his nature. I think he’s been – he was possibly dependent on his wife, [Ms Herridge], to a degree. He’s been a bit dependent on alcohol in the past. He’s been dependent on his own mother, [Ms Handerson], to a large extent in recent years. Whether he would be able to stand up and provide for the children is a difficult question to answer, your Honour. I think he would need a substantial amount of support to be able to achieve that.
Also in that context, counsel for the Department elicited from Dr R:
And that if the evidence - his Honour finds that there were periods of time where the father spent no time with the children - firstly with [the child B] prior to [the child H]’s birth, and then, following [the child H]’s birth, and I will come to that in a little more detail in a moment. But is that something you would see as significant in him taking over a caring role, or the primary caring role for them?‑‑‑I do have major concerns about the father taking over the primary caring role, but I also have major concerns about if - as was discussed with his Honour, if the mother is determined to ‑ ‑ ‑
Sure?‑‑‑ ‑ ‑ ‑ sabotage the father, then there is a very high risk that the children will lose their relationship with their father completely, and also with his family most likely.
In cross-examination, Dr R also said:
Right. With respect to [the child B], firstly, would you see his attachment to his mother at the present time, I think you have agreed it would be more significant at the moment, than his attachment to his father?‑‑‑Yes.
Would you see that issue, if I can just ask you to focus on that, as causing a problem for [the child B] if he did not see his mother?‑‑‑It would be a great loss to him not to see his mother, yes.
With respect to [the child B], I think that you referred in the first report to him as having features of ADHD and language difficulties; that is right?‑‑‑That is correct, yes.
And that you, I think, referred in the second report to him as having mild intellectual difficulties?‑‑‑Yes.
And I take it what you mean is that he has – that all three of those things are inter-related in some way; is that right?‑‑‑All are contributing to his difficulties, yes.
And that would you agree that that makes – that could make [the child B] a child who is less resilient to change than [the child H], for example?‑‑‑Yes, I think he is.
And in terms of separation from his mother, would you see that those matters, that is, what you have described as the mild intellectual difficulties, features of ADHD and language difficulties, those problems for [the child B] as causing for him a greater problem in being separated from his mother?‑‑‑He has less resilience and more difficulty coping with change, I believe, and these things need to be weighed up in the bigger picture, as to the shorter term difficulties, and the longer term benefits of any potential change.
Would you agree they also have significance, leaving aside for a moment any attachment issue, with the comment that you make at a number of points in both reports, of the mother as being a more competent parent than the father, that is, with respect to dealing with a child with the problems that [the child B] has, as opposed to [the child H] or some other child?‑‑‑Yes, he does have special educational needs, and more emotional issues to deal with, and the mother appeared to be more competent in being able to understand and address those issues.
Can I just also ask you, in your assessments of [the child B] and the material that you have read, I take it that you accept that [the child B] genuinely has these problems, that is, that that is not something that the mother is manipulating for a perceived benefit on her part or something like that?‑‑‑No, it is well documented that he has those problems.
and further:
With respect to – sorry, Doctor, I’ll just be a moment. With respect to moving [the child B] then, if that were to happen, it would be a separation from his mother, his maternal family, the school with which he is familiar, all of those things at once, if I can put it that way. You would accept that that’s what would be part of the picture if the father had him ‑ ‑ ‑?‑‑‑It would be a major upheaval, yes, for the child.
Later, Dr R was asked:
And were you able to – or are you able to – assist with any observations about the importance for these boys in maintaining that sibling relationship, or is that something that you weren’t able to particularly assess?
to which he replied:
Well, I think, I guess, from a face value point of view, they see [the child J] as their brother and that he is an important sibling to them. So separation from him would be a major issue.
Dr R reiterated his earlier evidence later in cross-examination by counsel for the mother in the following exchange:
Dr [R], some further thoughts on some of the questions you have already been asked by my learned friends. You were asked by Ms Boyle, I believe, about the effects on the children of being parted – if they were the orders that were made – from [J]. Is this – and as I remember, you answered that it would have a detrimental effect upon him?‑‑‑Yes.
Later, in cross-examination, the following exchange occurred:
Yes, grandmother, sorry, yes?‑‑‑Yes. Well, I think if his Honour is faced with trying to look at the least grave outcome, then he would need to look at the potential options of – if it were that one grave outcome would be living with the mother but he was convinced on his assessment that she would not allow a relationship with the father and that the children would lose the father completely, then that would be a grave outcome. The other potential may be that the children live with the father and the paternal grandmother, and this means disruption between the children and [J], the other child. It means that they may not be receiving as competent day to day care as the mother could potentially provide. And so that would be another potentially grave outcome. But if it were that we are trying look at the least grave outcome the father and the grandmother caring for the children and there being still some link with the maternal family and the relationship’s being sustained versus a – the grave outcome of perhaps the children living with the mother but never having any relationship with father or his family, then on balance would have to try and weigh up which is least grave.
Now, just finally ‑ ‑ ‑?‑‑‑But I’d see that that is a potential option, living with the father and the paternal grandmother. I don’t – I think that they – whilst there are some reservations that I would have about them, I do think that they are a potential option for these children.
Well, if that is the case – I mean, if the evidence suggests that the father is in the relationship which would take the usual couple of people to living together rather than living separately, if it were that the father moved out of the grandmother’s home in the near future, would you see the grandmother being the sole carer as a viable option?‑‑‑Whilst the paternal – I had no reason to believe the paternal grandmother could not provide for the children adequately, even though I do have some reservations about her insight and ability to fully under [sic] the needs of children of this age, there is no indication ‑ ‑ ‑
I am thinking more – sorry to butt in – I am thinking more of – in relation to your word, “toxicity” of these two sets of grandparents?‑‑‑In terms of the toxicity from the maternal grandparents, they – their toxicity leads them to, I think, want to try and eliminate the paternal family completely from the children’s lives. The paternal toxicity is more about, I think, trying to defend themselves from being attacked.
Now, just finally, would it be true to say that if his Honour were to believe that it is possible for the mother’s attitude to the paternal family to change, if that is something which is possible or shall we – no, I withdraw that. If that is something which is probable would you say that the children should – would you recommend that the children should be left with the mother?‑‑‑Well, if the mother were to demonstrate that she could separate herself from the toxicity of her parents, perhaps by relocating her physical premises and she was able to demonstrate that she could support a relationship between the children and the father, then that would probably go some way to giving the – his Honour some confidence that she was capable of that. But to date she – it doesn’t appear that she has been able to demonstrate that.
It is not insignificant that Dr R at no point in that evidence suggested one of the “potential options” to be the children residing with the father away from the paternal grandmother, although that was clearly a possibility on the father’s own case.
Counsel for the ICL submitted that in paragraph 230, which we have earlier set out, the trial Judge clearly took into account the impact on the children the subject of the proceedings of separation from both their mother and the child J. It was further submitted that the Court could not accept that the trial Judge failed to adequately have regard to that factor. It was further submitted that “for reasons associated with [the child B] and [the child H]’s emotional health, the benefits of improved mental health for them in the residence of the father and other matters referred to in s 60CC”, the trial Judge was entitled to conclude that the children’s best interests would be served by their commencing to live with the father.
In our view the trial Judge’s consideration of s 60CC was vitiated by his failure to have any regard to the evidence of Dr R as to the children’s attachments, the likely effect on them of changing their primary place of residence and carer, and the tried and tested, albeit imperfect parenting capacity of the mother, given the unknown and untried parenting capacity of the father, particularly if, as was a possibility, he ceased to reside with the paternal grandmother.
That is not to say that, had he done so, the trial Judge would, or should have reached a different conclusion. It is sufficient that a different conclusion could have been reached had the trial Judge had regard to the matters to which he did not refer in his reasons for judgment. We are satisfied that there could have been a different outcome.
The trial Judge made numerous findings critical of the paternal grandmother, with whom the children would be living unless and until the father and Ms O commenced cohabitation. The trial Judge’s failure to have regard to those critical findings of fact in deciding the children’s “best interests” compounded the failure to consider in that context the matters to which we have referred.
The adverse findings with respect to the paternal grandmother commenced with his Honour accepting Ms T’s conclusion that the paternal grandmother “blamed the mother for everything”. After recording the events surrounding an incident in which his Honour found the paternal grandmother to have driven the children in the car with the father to his houseboat, against the orders he had made, his Honour recorded his finding adverse to the paternal grandmother’s credit that he did “not believe this flimsy and obviously concocted excuse”.
A large part of the trial Judge’s criticisms of the paternal grandmother appears to have stemmed from a letter the paternal grandmother wrote to DOCS, about which his Honour recorded:
189.Dr. [R] was not only concerned about the mother’s attitude. He was also concerned about all grandparents. The basis for his concern about the paternal grandmother is well illustrated by a letter she sent to a DOCS worker, who had interviewed her on 29 April 2010 about the marks on [the child B]’s legs. The letter is dated 2 May 2010. It appears to me to be a reaction to all the problems she believed the mother had caused her and her son in their quest to have a normal relationship with the boys. Although one can easily appreciate that she must have felt driven to take this course, that she did so says much about her deficits in insight and understanding of the boys’ need to have the family conflict reduced, and her seeming lack of appreciation that the boys would not be helped by making petty or baseless allegations against the mother and her family. She, in what seems to be a universal pattern, did the very thing which could only make matters worse for the boys on the pretext of guarding their welfare. She had array of alleged concerns which must have been calculated to give her side a tactical advantage in these proceedings. I shall list them:
…
There is some truth in a few to these claims and some of these are worthy of complaint, but most amount to petty revenge or tactics which show that the paternal grandmother has not learnt from her experience in these proceedings much more than the mother has. Knowing that they have both read the family reports and heard Dr. [R’s] oral evidence leaves the Court to wonder if anything will suffice to move them to alter their relevant attitudes.
His Honour did note, in more positive terms, that:
216. … If the paternal grandmother is freed of the feeling that she must defend herself from the mother and her family and she sees the boys and her son having a life together, she is highly likely to be able to restrain herself from attempting to undermine the good image the boys have of their mother and her family.
Later in his reasons the trial Judge recorded that the paternal grandmother holds prejudices towards Aboriginal people. His Honour expressed his concerns that the prejudices held by the paternal grandmother might result in the children being “inhibited from their rejoicing in their Aboriginality” and considered at one point whether he might limit her contact with the children in order that there “be less opportunity for any adverse effect on them from these prejudices”.
His Honour also expressed concerns that the paternal grandmother might have difficulties in encouraging a relationship between the children and the mother’s side of the family, although he concluded in this respect that:
226.[The paternal grandmother] is not very willing to encourage it, but she is able to facilitate it. If she or the father gain principal residence of the boys, she is unlikely to undermine the close relationship which now exists between the boys and the mother, [the child J], and the mother’s parents, because she has probably retained the basic appreciation that to do so is likely to impede the boys welfare. However, she is not likely to encourage or facilitate a close relationship.
Later, his Honour also recorded:
256.The father’s father has the capacities required to implement arrangements and resolve difficulties, but the paternal grandmother is lacking in these, as is demonstrated by Exhibit “SS”, the letter she sent to [Mr F] on 2 May 2010.
The trial Judge concluded with respect to the paternal grandmother:
264.In concluding that the above orders are those which will best advance the boys’ welfare, I have considered the paternal grandmother’s care as against that of the father. I regard her as more of a risk to the boys’ emotional wellbeing than the father because of her lack of insight, lack of self-restraint, and poor judgment and attitudes as demonstrated by the letter of 2 May, her breach of the order when she gave the father a lift to the houseboat, and her prejudice against Aborigines. I think the boys will be better off with their father.
The terms in which his Honour thus criticised the paternal grandmother were not dissimilar to those he employed in relation to the mother.
As the trial Judge’s own findings make clear, the father’s proposed future residence was uncertain. On the father’s own case, the more probable arrangement he proposed involved continuing to live with his mother. If, as was a possibility, the father and Ms O commenced cohabitation, that would be a new and untried situation both for the father, Ms O and the children. Were he to continue to reside with his mother, the children would be subjected to the continuing influence of a grandmother about whom the trial Judge made many, and extensive adverse findings. How so doing was consistent with the children’s best interests was not explained.
It was submitted by those opposing the mother’s appeal, with some justification, that, having regard to the terms of Dr R’s reports, and his concession in cross-examination that:
So therefore, if that’s the case, and you’ve formed the view that the mother is going to lie again, then the children just have to change residence, don’t they?‑‑‑Under those circumstances, yes, I would agree.
the trial Judge had not erred in his consideration of s 60CC(3).
We are unable to accept that to have been the case. The fact that Dr R said what he undoubtedly did in cross-examination, upon which the trial Judge significantly relied, did not derogate from the trial Judge’s obligation to have regard to all of the matters which s 60CC of the Act mandated that he consider. Had the trial Judge considered the matters to which we have referred, he may have reached the same conclusion, but that would not in our view have been inevitable, such was the nature and extent of the evidence with respect to these topics.
The matters to which the trial Judge failed to have regard were in our view of such significance as to vitiate the conclusions he reached with respect to the best interests of the children.
The trial Judge’s consideration of the children’s Aboriginality
So far as s 60CC(3)(h), which concerns Aboriginality, is concerned, the crux of the submissions of Senior Counsel for the mother was that the trial Judge impermissibly, and mistakenly, devalued the children’s Aboriginal culture and failed to have any regard to the provisions of section 60CC(6) of the Act.
As is not in doubt, s 60CC(3)(h) requires the Court to consider:
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
Section 60CC(6) provides:
(6)For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii)to develop a positive appreciation of that culture.
The trial Judge said of the children’s Aboriginality:
240.As I have said, [the child B] is emotionally and intellectually immature for his age. [The child H] is probably unexceptional in these respects. The boys are Aboriginal for the purposes of the Family Law Act because they come within the definition of that word in it. They are descendents for the Aboriginal people of Australia. But they are also descendants of white settlers, and are to a great degree, of that heritage. However, their identity has been developed by their maternal side of their family, where the mother, her father and [the child J] are also descendents of Aboriginal people, although the mother’s mother is not. The boys regard themselves as “black”. To undermine their identity could well cause them emotional harm. Nevertheless, denial of the reality that they are also of European or Anglo-Celtic background, especially since their appearance conforms to the stereotype for such a background, could also cause them emotional problems in the long term. They should, in my opinion, be strongly encouraged to embrace both strands of their make up and be proud of them and who they are. To do that they must be exposed to both cultures and to people who share one or other with them.
241.If they live with the mother they will be well exposed to the local Aboriginal community, because the mother and the mother’s parents are active within this community, although the evidence does not suggest that the members are a homogenous group which shares the beliefs, practices and values of one tribe. There is little evidence to suggest that the children will be taught much about any relevant part of Aboriginal culture. The evidence suggests more that the maternal family’s association with the Aboriginal community in the area is a social rather than cultural association, but the children would still be exposed in a general way to Aboriginal culture and some traditions. If they spend less time with the mother, their exposure will be less than it now is.
242.In the father’s care, the children will be exposed to, and be able to enjoy, the lifestyle, culture and traditions of ordinary Australians of their father’s background. These are so well understood little more needs to be said of them. With the father, the boys will be more exposed to his family’s culture and people of the culture, but except to some extent by the paternal grandmother, will not be inhibited from their rejoicing in their Aboriginality.
243.The mother and her parents are quite hostile to non-Aboriginal Australians, particularly those of Anglo-Celtic background. The mother is probably as entrenched in her bigotry in this respect as she is in the habit of claiming those who will not do her bidding are against Aboriginals. Her parents, paradoxically her mother and obviously her father, gave me the impression they, too, are hostile towards non-Aboriginals. Her father was very defensive and hostile when being cross-examined.
244.In the mother’s principal care, because the boys are likely to lose their relationship with the father and his family, they will probably lose the right to enjoy the culture, lifestyle and traditions that the mother and her father have not adopted from people like the father’s family despite their pervasive presence. They will not be as able to have relationships with people of the father’s background who are close to them or share their culture with them. There is a real risk that the boys’ assertion that they are black; implying that they are not white, is a manifestation of the seed of alienation from the general Australian community already having been planted by the mother and her parents. If it has, it will greatly contribute to the boys’ disadvantage. One sees far too many tragic instances of this.
Earlier in his reasons, the trial Judge recorded:
217.Both her [the paternal grandmother] and the mother, and the mother’s parents appear to me to be extremely prejudiced; the paternal grandmother about Australian Aborigines, and the mother and her family towards non-aborigines who do not give them unquestioning support, and about people who are often described as Anglo-Celtic Australians like the father and his family. The paternal grandmother resents the mother and her family’s efforts for the boys to identify strongly as Aborigines. The mother and her family seem to be over zealous in denying the reality that the boys look like the father and his family, look little or nothing like full blooded Aborigines and are in fact only one eighth Aborigine.
218.The boys’ best interest will be advanced if they are put in a position where they can explore and retain substantial connections with, and not reject, all aspects of their background and the cultures that they have inherited.
As was submitted by Senior Counsel for the mother, there was no evidence before the trial Judge that the children had been denied “the reality that they are of also of European or Anglo Celtic background”, or that, as the trial Judge implied, they were being raised in an environment in which such background was demeaned or discounted.
Dr R did not express in either of his reports concerns of the kind the trial Judge articulated in the paragraphs of his reasons to which we have referred. Nowhere in his first report did Dr R identify anything in the nature of racial or ethnic tensions between the parents and their families. To the extent that Dr R identified a “great division” between the grandparents, he did not suggest that to have been in any way referrable to ethnicity.
We have not been referred to any evidence which provided a foundation for the stereotyping and misconceptions in relation to Aboriginal culture which find expression in a number of the paragraphs of the trial Judge’s reasons to which we have been referred. Nor have we been referred to any evidence supportive of the trial Judge’s regrettably dismissive comments with respect to the children’s Aboriginality (particularly in paragraphs 217 and 241). Nor do we discern on what the trial Judge based his implied criticism of the mother in terms of the children’s exposure to and enjoyment of “the lifestyle, culture and traditions of ordinary Australians of their father’s background”.
The trial Judge’s reasoning with respect to the children’s Aboriginality also overlooked the reality that, notwithstanding that the children had been in the mother’s primary care for almost five years by the date judgment was delivered, there was no evidence before him suggesting that the children had, or would be likely to “lose the right to enjoy the culture, lifestyle and traditions that their mother and her father have not adopted from people like the father’s family despite their pervasive presence”.
Counsel for the ICL submitted that:
The children are aboriginal. There is limited evidence in this matter in relation to issues of or relation to Aboriginality. The mother makes one reference to the children’s identification of and involvement with aboriginal culture in her affidavit material. The Independent Children’s Lawyer prepared an affidavit from [Mr F], senior counsellor with the Child and Adolescent Mental Health Service detailing their involvement including referrals including to two child psychologists [Ms G] and [Ms W], with [Ms S] as the aboriginal liaison.
After referring to evidence which was given at trial, Counsel for the ICL submitted that “there are very few other references to aboriginal issues raised in the hearing”. Accepting for the purposes of that submission, that the evidence was as limited as Counsel for the ICL submitted, the trial Judge’s conclusions become all the more difficult to sustain.
With respect to the trial Judge, a balanced reading of his conclusions with respect to the question of the children’s Aboriginal culture, and its significance within s 60CC, reflects more of his personal views than the evidence before him to which we have been referred. It is likely that the trial Judge’s overwhelmingly negative impressions of the mother and her family diverted him from proper consideration of s 60CC(6), but we do not need to speculate about that. For whatever reasons, with respect to him, the trial Judge’s consideration of the children’s Aboriginal culture was misconceived, unsupported by the evidence, or inconsistent with it, and resulted in a failure to properly consider the provisions of s 60CC(3)(h) in the light of the provisions of s 60CC(6) of the Act.
The trial Judge’s consideration of family violence
We have earlier, in the context of s 61DA, examined the manner in which the trial Judge considered the issue of family violence.
The trial Judge’s ultimate conclusion with respect to family violence was:
246.The mother’s allegations of family violence have already been chronicled and rejected. There is still a family violence order which, as recently as May 2010, the father contested and had reduced in duration. In my assessment, it was largely made without justification and should not be permitted to inhibit what would otherwise be appropriate parenting orders.
Earlier, his Honour said:
231.There are no significant practical difficulties and expenses which ought to arise whether the boys live with the mother, the father, or the paternal grandmother, which will significantly affect the maintenance by the boys of their right to have personal relations with, and direct contact with, both parents and all the relevant family members on a regular basis. The main source of such practical difficulties to date has been the attitudes of the mother, those who support her, those who have empowered her such as the Police and Local Courts in granting AVO’s to “protect” her and the children unnecessarily, and the father’s weakness of character which makes him vulnerable to her manipulative and deceptive actions.
As is readily apparent, notwithstanding that courts charged with hearing and determining AVO proceedings had determined such proceedings in the mother’s favour, in criticising the mother in the way in which he did, the trial Judge effectively criticised the person who had been found by courts dealing with such matters to have been the victim, and considered the father, who had been found to be the perpetrator of family violence, the victim.
Earlier still, the trial Judge found the mother’s behaviour had been “so serious and potentially damaging to the children” as to raise the prospect of the children only having supervised contact with her. His Honour had also found that “[n]ow that the parents live apart, there is virtually no prospect of incidents of violence occurring between them”. His Honour proceeded to find that “any risk that [the father] would harm the children either physically or psychologically as a result of abuse, family violence or neglect is such that the risk is so low as to be within acceptable limits”. Those findings have not been challenged in this appeal.
Counsel for the ICL submitted that the trial Judge had carefully considered the evidence before him in relation to family violence, and identified some 53 paragraphs in which his Honour did so. Counsel for the ICL relied upon his Honour’s statement in paragraph 37, which we have earlier set out in these reasons, the relevant part of which for present purposes reads:
37.… I do not completely discount the allegations of violence. I think they have been greatly exaggerated in number, extent and effect by the mother and regard the limit of the father’s violence toward the mother as likely to be drunken verbal abuse, threats and occasional damage to property.
Reliance was also placed upon the trial Judge’s conclusion at paragraph 213. We have earlier set out paragraph 213 of the trial Judge’s reasons in full.
It was ultimately submitted on behalf of the ICL that:
It is the submission of the Independent Children’s Lawyer that at 37, the Trial Judge has adjudicated and measured the weight of s. 60CC(3)(j), as applied against the balance of s. 60CC factors. It is clear that the Trial Judge placed at least some weight on these important considerations, but chose to promote other s 60CC factors during the course of Judgment.
Counsel for the ICL relied upon the decision of the Full Court in Cameron & Walker (2010) FLC 93-445, and in particular the following passage (par 106) of that judgment:
It is readily apparent that the issue of family violence was at the forefront of the trial Judge’s consideration. His Honour referred to the allegations of violence at an early stage in the judgment when identifying the ‘distinguishing features’ in the case… The trial Judge’s reasons indicates that his Honour considered carefully the evidence as to the competing allegations of violence and made a number of findings, which we have earlier set out.
The conclusions of the trial Judge with respect to the topic to some extent appear to reflect his personal views in relation to the operation of family violence laws in this country, and of those who rely upon them, or support and assist those who do. Similar views found expression elsewhere in the trial Judge’s reasons, such as the following paragraph:
126.[The child B] had continued to see [Mr F], is a senior counsellor with the NSW Child and Adolescent Mental Health Service, and [Ms G], a biased clinical psychologist at [E Organisation]. [Ms G] made a report that the children could not spend time with the father following an alleged relapse in his behavioural problems. [Ms G] is so biased that, in a report she made on 23 September 2008, she said “[the child B] has disclosed sexual assault to a doctor. Unfortunately [my emphasis] [the child B] has not disclosed to JIRT.” [The child B] was referred to [Dr N], no doubt because the mother had approached [Mr F] or [Ms G].
As is not in contest, Ms G did not give evidence before the trial Judge.
Further support for our conclusion is gained from the following extract of the passage which we have earlier set out in full:
37.… It is typical of the mother’s case that she claims many acts of violence against her by the father, but provides next to no detail or specific evidence of it. I regard the mother as being an exaggerator and habitual liar, and as being exceptionally willing and able to manipulate situations to her perceived advantage, especially by using politically correct do-gooders and people who have a duty to deal with social problems and the like, but not the time, inclination or ability to distinguish truth from fiction. I do not completely discount the allegations of violence. I think they have been greatly exaggerated in number, extent and effect by the mother and regard the limit of the father’s violence toward the mother as likely to be drunken verbal abuse, threats and occasional damage to property.
To whom his Honour was there referring is unclear. We have not been referred to any evidence before him which may have given rise to the trial Judge’s comments.
The trial Judge had the advantage over this Court of seeing and hearing the parties and a number of witnesses. Clearly, and permissibly, his Honour’s findings with respect to credibility and facts in issue were influenced by the demeanour of those witnesses. The most significant of the trial Judge’s findings with respect to this issue, which we have earlier set out, have not been challenged.
Acceptance of this complaint does not involve accepting that, to the extent that he made them, the findings of fact made by the trial Judge were erroneous. The challenge is that the trial Judge failed to properly consider the question of family violence. Whilst a number of passages appearing in the trial Judge’s reasons for judgment cause some disquiet as to the extent to which his findings may have been influenced by opinions held by him, rather than made solely in reliance upon the evidence before him, we are not persuaded that the trial Judge failed to adequately consider the question of family violence. A considerable number of the paragraphs of his Honour’s reasons for judgment were concerned with that issue, despite the frequent “editorialisation” which attended his consideration of the issue. Given our conclusion with respect to other s 60CC challenges, however, that does not change anything.
Ground 3
Ground 3 of the Amended Notice of Appeal asserted:
3.That the trial judge erred in that he made findings as to the credit, suitability and character of the parties and several witnesses in the absence of any evidence which justified such findings.
In support of this challenge, Senior Counsel for the mother articulated some 22 findings by the trial Judge which were submitted to have been made in the absence of evidence or insufficient evidence.
It was submitted by Senior Counsel for the mother that the “closer scrutiny” that the Court was obliged to bring to bear with respect to these findings, having regard to the unexplained delay in the delivery of judgment, supported those conclusions.
Given our conclusion with respect to a number of other challenges successfully agitated on behalf of the mother, and that consequentially, a new trial will be necessary, it is unnecessary, and unproductive, to engage with these specific complaints.
Conclusion
The mother’s appeal having been made out, it will be allowed and the matter remitted for re-hearing.
Costs
The parties sought the opportunity to make submissions about costs in the light of the outcome of the mother’s appeal and our reasons for such outcome.
As between the mother and father there can be little doubt that costs certificates, as Counsel for each of them sought, should be granted for the appeal, as should costs certificates for the re-hearing of the proceedings.
The position of the ICL we perceive to be less straightforward given that, at trial, the ICL essentially supported the mother whilst, before this Court, the ICL submitted that the trial Judge’s decision in favour of the father should not be disturbed. We will allow the ICL the opportunity to make submissions in support of any application for cost certificate(s) which the ICL chooses to make.
I certify that the preceding one hundred and sixty eight (168) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, May and Crisford JJ) delivered on 28 July 2011.
Associate:
Date: 28.07.11
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