Hickson & Matthew
[2022] FedCFamC1A 161
•11 October 2022
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Hickson & Matthew [2022] FedCFamC1A 161
Appeal from: Matthew & Hickson [2022] FedCFamC2F 201 Appeal number(s): NAA 87 of 2022 File number(s): BRC 1533 of 2019 Judgment of: MCCLELLAND DCJ Date of judgment: 11 October 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from orders changing the child’s residence from living with the mother to the father – Where the primary judge ordered unsupervised time with the mother despite finding of unacceptable risk for the child in the mother’s care – Adequacy of reasons – Non sequitur exists between unacceptable risk finding and order for unsupervised time with the mother – Error established – Appeal allowed – Matter remitted for re-hearing – Costs certificates granted for the appeal and re-hearing. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 65DAA
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9
Cases cited: A v A (1998) FLC 92-800; [1998] FamCA 25
AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Ball v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services) [2019] ICQ 23
Blinko & Blinko [2015] FamCAFC 146
Deiter & Deiter [2011] FamCAFC 82
Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5
Edhouse & Edhouse [2022] FedCFamC1A 84
Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235
M v M (1988) 166 CLR 69; [1988] HCA 68
McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255
N v S (1996) FLC 92-655; [1995] FamCA 139
Napier & Hepburn (2006) FLC 93-303; [2006] FamCA 1316
Nikolakis & Nikolakis [2010] FamCAFC 52
Whisprun Pty Ltd formerly Northeast Exports Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Chisholm, Richard “Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions” (Paper presented at the Children’s Court Conference, Parramatta, 1 September 2010)
Fogarty, John, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249
Number of paragraphs: 60 Date of hearing: 20 September 2022 Place: Brisbane (via videolink), delivered in Sydney Counsel for the Appellant: Ms Chekirova Solicitor for the Appellant: Geldard Sherrington Lawyers Counsel for the Respondent: Mr Hii Solicitor for the Respondent: Neilson Stanton & Parkinson Counsel for the Independent Children's Lawyer: Ms Murphy Solicitor for the Independent Children's Lawyer: Life Law Solutions ORDERS
NAA 87 of 2022
BRC 1533 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS HICKSON
Appellant
AND: MR MATTHEW
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCCLELLAND DCJ
DATE OF ORDER:
11 October 2022
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Orders 26, 27, 28 and 29 made on 25 February 2022 are set aside.
3.The proceedings are remitted for re-hearing by a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.
4.The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to her in respect of the costs incurred by her in relation to the appeal.
5.The respondent is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to him in respect of the costs incurred by him in relation to the appeal.
6.The Independent Children’s Lawyer is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to him in respect of the costs incurred by him in relation to the appeal.
7.Each party is granted a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments 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.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hickson & Matthew has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUSTICE MCCLELLAND:
Introduction
The appellant mother appeals against a decision of a judge of the Federal Circuit and Family Court of Australia (Division 2) who, by orders made on 25 February 2022, made parenting orders in respect to Child X, born in 2018 (“the child”). Most relevantly, for the purpose of this appeal, the orders provided for there to be a change in residence from the child living with her mother, who had been her primary carer since birth, to residing with her father, the respondent in this appeal. The reasons for judgment delivered on 25 February 2022 (“the reasons”) explain that the change of residence order was primarily made because the primary judge assessed that the child was exposed to an unacceptable risk of harm in continuing to live with the mother. At the same time, the orders provided for the child to continue spending time with the mother every second weekend until the child starts school and, once the child starts school, every second weekend and half of school holidays.
The mother’s appeal was supported by the Independent Children’s Lawyer (“ICL”) to the extent that the appeal challenges the adequacy of the reasons provided by the primary judge. Specifically, it is asserted that there is a non sequitur between the primary judge’s finding of unacceptable risk in the child living with the mother whilst simultaneously providing for the child to spend unsupervised overnight time with the mother which, it is contended, has not been adequately explained in the reasons.
It is further contended that while the reasons set out the reasoning of the primary judge as to why, in circumstances where the parents live approximately 90 kilometres apart, it would be impracticable for the child to spend equal and/or substantial time with the mother once the child commences school, the orders do not set out the primary judge’s reasons as to why such an arrangement would be impracticable in the period prior to the child commencing school.
For reasons which I explain, I am satisfied that those aspects of the appeal, as supported by the ICL, have merit and the matter should be remitted for rehearing before a judge of the Court other than the primary judge.
Background
It is helpful to briefly set out the relevant background facts that are pertinent to this appeal. In doing so, I draw substantially on [6] of the reasons and a helpful summary provided in the father’s Summary of Argument for this appeal.
The father is 28 years of age and lives in City A. The mother is 32 years of age and lives in the City B district of Queensland, which is approximately 90 kilometres from the father’s residence.
The parties commenced cohabitation in August 2017 and lived together until August 2018.
The child was born in 2018 but, as result of complications associated with her birth, the child and the mother remained in hospital until August 2018.
The parties separated approximately three weeks after the child’s birth in circumstances where the mother alleges that the father had engaged in an act of family violence resulting in the child being struck on the side of the head with a mobile phone.
On 22 November 2018 on a “without admissions” basis, the father consented to the making of a Protection Order naming the mother as the aggrieved and the child as a protected person. That order was specified to remain in place until 20 September 2023.
Despite the existence of the protection order, the mother facilitated the child having contact with the father for six visits during the period from November 2018 to 8 January 2019. On 8 January 2019, the mother ceased time between the father and the child.
On 11 February 2019, the father filed an Initiating Application in the Federal Circuit Court of Australia (as it was then known) seeking orders inter alia for the child to live with him and spend time with the mother.
On 1 July 2019, consent orders were made which provided for the parents to have equal shared parental responsibility, for the child to live with the mother and spend time with the father on a graduated basis, commencing at four hours every Saturday for a month, supervised by the mother and then for a period of a month with the mother supervising only the first hour of time that the child spent with the father. The orders provided for time to progress after that period such that the father spend four hours of unsupervised time with the child each Saturday until the child reached 18 months of age.
On 26 September 2019, those orders were varied by a registrar of the Court to provide for the child to spend fortnightly, as opposed to weekly, time with the father. The parties were also directed to enrol in a Triple P Parenting Program and Managing Emotions Program.
On 18 February 2020, orders were made for the child to spend time with the father from 8.00 am to 4.00 pm each alternative Saturday on an unsupervised basis, commencing on 29 February 2020. Orders were further made directing the parties to attend a Parenting Orders Program.
On 18 May 2020, a judge of the Court ordered the father to spend weekly time with the child for four consecutive weeks between 8.00 am and 4.00 pm. Thereafter, commencing on 11 July 2020, the child was to spend time with the father for two weekends out of three on Saturday from 8.00 am to 4.00 pm and then on Sunday from 9.00 am to 3.00 pm, with changeovers to occur on the front porch of the mother’s home.
A Family Report was subsequently obtained from Mr C and the primary judge also ordered that a psychiatric report be obtained in respect to the mother’s mental health. Both the Family Report writer and the single expert psychiatrist, Dr D, gave evidence in the proceedings before the primary judge.
On 17 February 2021, consent orders were entered which provided for interim parenting arrangements such that the child live with the mother and spend time and communicate with the father each alternative weekend from 8.00 am Saturday to 4.00 pm Sunday, with changeover to occur on the front porch of the mother’s residence. The parties were also directed to attend a Parenting Orders Program.
On 24 March 2021, a registrar of the Court made orders extending the period of time that the child spent with the father, which would occur from Friday, after daycare or 4.00 pm, until 4.00 pm Sunday each alternate weekend for two weekends and, thereafter, from Thursday, after daycare or 4.00 pm, until before daycare on Monday or 4.00 pm should daycare not be available to the child, with changeover in those circumstances occurring at the mother’s porch or at daycare.
It was not disputed that the mother had been the victim of physical abuse at the hands of her father when she was a child and had been sexually abused by a boarder who resided at the then family home. Unsurprisingly, this has adversely impacted upon the mother’s mental health, however the extent of that impact as creating an ongoing concern was classified by the primary judge as being an “unknown” (at [79]).
In the context of those mental health challenges, the mother engaged in substance abuse and committed acts of violence, most relevantly against her father who had abused her as a child. The mother’s conduct resulted in several interactions with law enforcement authorities and mental health service providers. The mother’s criminal history is set out in detail at [17] of the reasons. That history was then summarised at [18] as follows:
…in all of the serious criminal matters relating to wounding, assault and breach of a Domestic Violence Order, the [mother’s] father was the victim. The assaults were serious. Twice the aggrieved was assaulted while driving a motor vehicle. The wounding charge arose because the mother stabbed the father with [a sharp object] in the face and arm.
The primary judge also noted sentencing remarks made by the relevant District Court judge that, in respect to the serious incident involving wounding with a sharp object, the mother was intoxicated and affected by prescription drugs. It was noted that the transcript records the mother was, at that time, prescribed medication for a mental illness.
The primary judge noted, however, that the mother had not been charged and convicted of any criminal actions since August 2015.
The mother acknowledged to Dr D that prior to becoming pregnant with the child, she had abused alcohol and periodically used illicit substances. This was confirmed in records subpoenaed from Queensland Police and Queensland Health, particularly in respect to the period between 2012 and 2015.
The primary judge also noted a history of the mother suffering episodes of mental illness which she found had not been fully disclosed by the mother to the Court, the family consultant or the single expert psychiatrist. This lack of disclosure, the primary judge noted, was a cause for concern (at [79]).
Grounds of appeal
By Notice of Appeal filed on 3 June 2022, the appellant mother raised the following grounds of appeal in respect to Orders 26, 27, 28 and 29 made on 25 February 2022:
1. The Honourable Judge made a decision that was plainly wrong.
2.The Honourable Judge erred at law in making a finding the Mother was an unacceptable risk of harm and then Ordering regular unsupervised time without pre-conditions.
3.The Honourable Judge failed to properly consider the time elapsed between the Mother's criminal history and the fact it was all prior to the child's birth.
4.The Honourable Judge failed to consider evidence, in that the Mother was no longer in a relationship with the person [Mr E] when taking into account the Mother having been a victim of Domestic Violence on 8 March 2021.
5.The Honourable Judge placed inappropriate weight on the child being at risk of domestic violence into the future when failing to consider that the relationship had ended.
6.The Honourable Judge failed to make findings about whether the Father had perpetrated Domestic Violence against the mother and child.
7.The Honourable Judge gave inadequate reasons in respect of her finding that the Father was not an unacceptable risk of harm to the child as a result of exposure to Domestic Violence.
8.The Honourable Judge gave inadequate reasons for the removal of the child from the Mother's primary care while providing unsupervised time between the Mother and child.
9. The Honourable Judge failed to properly consider the evidence.
For reasons which I subsequently set out, I am satisfied that there is substance in Ground 8 of the mother’s grounds of appeal such that a re-trial is required.
Principles relating to appellate review
The onus is held by the appellant to show that there is some error in the decision under appeal: Allesch v Maunz (2000) 203 CLR 172 at [23]; McDonald v Queensland Police Service [2018] 2 Qd R 612 at [47]. In that context, there is a strong presumption in favour of the primary judgment, and an appellate court must be satisfied it is clearly wrong before there is any appellate interference: Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627.
As noted by the Full Court in Edhouse & Edhouse [2022] FedCFamC1A 84 at [13]–[14]:
The orders which are the subject of appeal were the result of the exercise of a discretion. In those circumstances, it is necessary for an appellant to establish grounds that fall within the principles identified by the High Court in House v The King (1936) 55 CLR 499 at 505 and Norbis v Norbis (1986) 161 CLR 513 at 539–540, that is, appellate intervention may be required where the primary judge:
(a) Acts upon a wrong principle; or
(b)Allows extraneous or irrelevant matters to guide or affect the decision; or
(c) Mistakes the facts; or
(d) Fails to take into account some material consideration; or
(e)Makes a decision that, upon the particular facts, is unreasonable or plainly unjust.
An appeal may also succeed on the basis of an inadequacy of reasons. In that respect, in Rigby & Olsen [2021] FedCFamC1A 46, the Full Court recently stated at [38] that:
The requirement for the giving of reasons is a fundamental requirement of the exercise of the judicial function, as it both demonstrates that justice has been done, and enables the proper challenge of a decision. The content required varies depending upon the circumstances of the case, but is that which makes apparent how the decision was arrived at (see Bennett and Bennett (1991) FLC 92-191 at 78,266). It is not required to give reasons regarding every argument, nor to perform a microscopic analysis "if, in all the circumstances, it is clear that the trial judge has considered and evaluated the relevant evidence, taken into account all relevant factors… (A v J (1995) FLC 92-619 at 82,230).
Findings of risk
The reasons clearly state that the primary judge ordered there be a change of residence as a result of her Honour’s finding that the child faced an unacceptable risk of harm in the mother’s care. In that respect, the primary judge stated at [78]:
… the Mother has multiple risk factors which, taken together and in light of the fact that the Mother has not received any cognitive assessment or any psychotherapy, in my view do pose an unacceptable risk of harm to the child.
The potential harms to which the child would be exposed in the mother’s care were referred to in [79] of the reasons as follows:
The potential harms are:
(1) Being exposed to serious domestic violence
(2)If the Mother’s cognitive capacity is compromised, this could expose the child to mood instability. This is an unknown variable at the moment.
(3)According to [Dr D], the Mother’s lack of insight and failure to tell the truth about aspects of her history made it less likely for her to seek appropriate treatment for mental health issues. Even if the Mother has expunged aspects of her history from her mind, this is still a concern.
(4)The history of violence and drug use, while not recent, considered in conjunction with the other concerns are risks if the Mother is placed in a high stress situation.
(5)[Mr C] expressed the view that the child should reside with the Father once he was provided with the evidence of the March 2021 domestic violence incident.
From [72] to [73], the primary judge indicated that she would not have arrived at the conclusion that the child faced an unacceptable risk of harm in the mother’s care “were it not for the serious incident of domestic violence in March of 2021”.
At [43] of the reasons, the primary judge described what occurred on that day by adopting the account made by a police officer consequent upon the mother attending the City B police station on 8 March 2021 to report the incident. That account refers to the mother as being the “aggrieved” and the perpetrator of violence against the mother being identified as the “respondent”, who is a male person known by the name of Mr E with whom the mother was in a relationship at the time of the incident and who is not a party to the appeal.
The account provided by the police of their interview with the mother is as follows:
The Aggrieved / informant in this matter is [the mother]
The Respondent in this matter is [redacted]
Named child is [the child] (biological child to [the mother])
The Agg and Resp have been a defacto relationship for about 6months.
On the 8th of March 2021, the Agg in this matter attended the front counter of [City B] Police Station with visible red marks on her chest along with appearing to be in shock. The Agg claimed that she had sore ribs along with pain to her arms and chest area. (QAS were contacted)
The Agg stated that she attended a unit near the [recreational area], [City B] and took up with the Resp to collect some property that she left at his address.
The Agg stated that the Resp refused to let her in the address.
The Agg stated that the Resp eventually let her in and there was another female at the address who she did not know and was on drugs. (self-admissions by the female)
The Agg stated that the Respondent called her a piece of shit, junkie slut and to fuck off.
The Agg stated that the Resp made threats to kill her family, and when the doors are closed, he’s going to kill her. The Agg stated that the Resp has previously made those threats and assaulted her, but she never came forward to the police about it.
The Agg stated that she just slapped him instantly in rage reacting to the threats.
The Agg stated that the Resp has king hit her to the left side of her face and her legs immediately buckled beneath her and she dropped to the ground. Whilst on the ground, the Resp kicked her in the head whilst she was curled up into a ball covering her face making contact with her arms too.
The Agg stated that she managed to stand up and the female entered the room and told the Resp to leave her alone.
The Agg stated that the Resp has closed the door and he has grabbed the Agg from behind around the front of neck and she couldn’t breathe. The Agg stated that she was tapping The Resp’s arm, but he wasn’t letting go.
When the Agg could breathe again she yelled at him to leave her alone and when she had the chance, she left the address straight away.
The Agg stated that all this occurred in the bedroom.
The Agg kept saying to police how scared she was of the Resp and what he would do when he saw her again.
The Agg when at the police station could not provide an accurate address but stated a unit address near the [recreational area] in [City B].
Attempts were made to contact the Resp with a phone number which was unsuccessful.
QAS attended the [City B] Police Station and the Agg attended the [City B] Hospital with them.
Police believe that the Agg is in need of a PPN / order due to this and previous undocumented occurrences with the RESP.
The Agg stated that she no longer wants to see or have any contact with the Resp.
(As per the original)
It was not suggested that the self-admission of substance use was in relation to the mother. It appears to be that of the woman who was in the presence of Mr E.
The primary judge noted that of particular concern to her was a reference to the respondent in the above extract in the Police Protection Notice, stating that the mother had stated that the respondent “has previously thrown her ontop [sic] of the named child and [the child] has been present during previous domestic violence incidents.” This was denied by the mother, however that evidentiary finding was open to the primary judge.
Principles relating to findings of unacceptable risk
The relevant principles in assessing whether a child would be exposed to an unacceptable risk of psychological and/or physical harm were recently considered by the Full Court in Isles & Nelissen (2022) FLC 94-092, who agreed with and adopted Austin J’s dissenting judgment in Fitzwater & Fitzwater (2019) 60 Fam LR 212 as being the correct statement of the law. Justice Austin’s judgment includes the following:
138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
…
142.As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
(Emphasis in the original)
Thus, it can be seen that determining the issue of risk essentially involves applying a risk matrix, whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence. That is, there is an obligation on a trial judge to evaluate not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: see N v S (1996) FLC 92-655 at 82,713 (Fogarty J) cited with approval in Napier & Hepburn (2006) FLC 93-303, Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]–[96] and Deiter & Deiter [2011] FamCAFC 82 at [54].
Additionally and relevantly for the purpose of this appeal, I would expand upon that insightful analysis by Austin J with the following guidance that emerges from authorities:
(1)It is now well established that “unacceptable risk” includes not merely physical harm but also includes an assessment of the risk of emotional harm: see A v A (1998) FLC 92-800 at 84,996; M v M (1988) 166 CLR 69 at 77.
(2)Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]–[148].
(3)The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or only some of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 at [68], endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249.
(4)While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act 1995 (Cth), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact: “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”.[1]
[1] See the Hon Richard Chisholm “Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions” (Paper presented at the Children’s Court Conference, Parramatta, 1 September 2010) 15.
In assessing the adequacy of reasons provided by the primary judge for the orders which she made in these proceedings and, in particular, the order for there to be a change in the child’s residence, it is to be noted that the primary judge, by reference to paragraphs 137 and 138 of the Family Report, clearly set out the nature of the harm that might befall the child if she were to be exposed to family violence and dysregulated conduct associated with a parent’s mental health issues. Relevantly, those paragraphs of the Family Report are as follows:
137.Especially as research indicates that children who are exposed to DFV and mental health issues have higher levels of emotional and behavioural problems than children who have not been exposed. The research also notes that they are at greater risk of having difficulties controlling their emotions, developing depression or antisocial behaviour such as delinquency or violent behaviours, developing poor relationships with both parents and in the future, developing poor comprehension and language skills and in the long term having difficulties making friends and maintaining these friendships.
138.Given [the child’s] age, the concern for this writer is the effects of developmental trauma should [the mother’s] behaviour deteriorate, that is [the child] being exposed to trauma over time rather than a single incident as in PTSD, as developmental trauma is noted to be repetitive, prolonged and relational rather than externalised.
(Emphasis added)
Appropriately, there has been no challenge to that finding in respect to the nature of the harm that might befall the child, nor the conclusion that such harm would be serious.
As earlier noted, at [79] of the reasons, the primary judge identified “the potential harms” that the child may be exposed to. Those factors could more accurately be described as potential conduct giving rise to harm, however nothing turns on that point for the purpose of this appeal.
I respectfully accept and agree with the submission by counsel for the respondent that an appellate court “…will avoid an overly critical, or pernickety analysis of the primary judge’s reasons” (AMS v AIF (1999) 199 CLR 160 at [150] per Kirby J). I further accept that it is not necessary that a trial judge must “mention every fact” relied on by the losing party in reaching a conclusion (Whisprun Pty Ltd formerly Northeast Exports Pty Ltd v Dixon (2003) 200 ALR 447 at [62]). However, a trial judge is obliged to refer to cogent evidence that is relevant to an issue that is of significance in the proceedings (Ball v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services) [2019] ICQ 23 at [15]).
In finding that there was an unacceptable risk of the child being exposed to “serious domestic violence”, the primary judge placed particular significance on the events which occurred on 8 March 2021 to which I have earlier referred. The reasons do not reveal, however, whether the primary judge considered and regarded as relevant to the assessment of potential conduct that would cause harm to the child, several significant aspects of the evidence presented in the proceedings.
Firstly, the primary judge did not refer to the unchallenged evidence of the appellant that Mr E, who was the perpetrator of the violence that had occurred in March 2021, was in prison as a result of his conduct and that the mother had not had any contact or relationship with him “since the day he bashed [her]” (Transcript 17 February 2022, p.84 lines 9–11).
Second, in finding a risk because an “unknown” existed that the mother may have “serious cognitive difficulties”, the primary judge failed to refer to the oral evidence of Dr D that:
…despite the relationship difficulties that I’m aware of, that sort of behaviour has not been ongoing. Certainly in the last five years I’m not aware of any of it. And, indeed, the mother’s behaviour, despite the stresses and relationship difficulties, has been relatively stable from that point of view.”
(Transcript 18 February 2022, p.94 lines 31–34)
Third, in finding the potential for the mother to return to a pattern of alcohol and substance abuse if she became stressed, the primary judge did not refer to the evidence of Dr D where he stated:
I’m amazed and have to note that it would appear that the issues that I mentioned on page 11 of my report about increased risk for a capacity for violence, emotional and psychological dysfunction, memory dysfunction, credibility issues, the potential for recurrent alcohol abuse, substance use that was denied, it appears that the mother has been doing fairly well despite my increased risk concerns about these issues.
(Transcript 18 February 2022, p.95 lines 24–29)
Given the significance of that evidence, it was incumbent upon the primary judge to identify that she was aware of and had taken into consideration that evidence in determining that there was a risk that the mother’s cognitive capacity may become compromised and, in the event of the mother being confronted by a situation of high stress, she may engage in violence and substance abuse. The primary judge erred in failing to do so.
In the absence of referring to that evidence, it is not possible to identify how the violent assault to which the mother was subject on 8 March 2021 provided a logical bridge to connect the mother’s pre-2015 conduct to the more optimistic prognosis referred to in the oral evidence of Dr D to which I have referred. Clearly, that required explanation in evaluating the list of cumulative factors considered by the primary judge as giving rise to what she determined to be an unacceptable risk of the mother regressing and engaging in the concerning behaviour that she had engaged in during the period prior to 2015.
Failure to explain the necessity of a change of residence order to mitigate risk
As the Full Court observed in Blinko & Blinko [2015] FamCAFC 146 at [27]–[28]:
A consideration of risk, and factors which impact upon or ameliorate the risk, will in most cases be inextricably linked. That is because “[t]he object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child”: see Hon John Fogarty AM “Unacceptable Risk – A Return to Basics” (2006) 20 Australian Journal of Family Law 249 at 261.
The authorities dealing with cases of unacceptable risk are replete with exhortations to trial judges to “consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard”: see for example N and S and the Separate Representative (1996) FLC 92-655 at 82,714. That extends not merely to the identification and analysis of the risk itself, but also to the imposition of conditions or other safeguards in relation to the non-resident parent.
I respectfully agree with submissions by both counsel for the mother and the ICL that there is, on the face of the orders made by the primary judge, a non sequitur between her Honour’s finding of the child being exposed to an unacceptable risk of harm in the mother’s care such that a change of residence is required while, at the same time, making orders that provide for the child to spend regular overnight time with the mother on an unsupervised basis.
That is, having identified those matters which the primary judge found to cumulatively result in the existence of unacceptable risk, the primary judge failed to explain why there was a need to remove the child from the mother’s primary care and place her in the primary care of her father, in circumstances where it is a necessary inference from the findings of the primary judge that she considered the child did not face an unacceptable risk of harm in the mother’s care for at least three nights per fortnight and, after the child commences school, for half of the school holidays.
The failure to provide adequate reasons explaining that non sequitur constitutes an error of law.
Failure to explain application of s 65DAA considerations in respect to period prior to the child commencing school
Having determined that it is appropriate for orders to be made providing for the parents to equally share parental responsibility, s 65DAA of the Family Law Act 1975 (Cth) (“the Act”) required the primary judge to consider whether the child spending equal time or substantial and significant time with each of the child’s parents would be in the best interests of the child.
The primary judge specifically considered that issue and referred to her conclusion at [108] of the reasons that:
Equal time and substantial and significant time are impractical given the distance the parties live apart once the child commences school.
(Emphasis added)
The primary judge did not, however, consider the practicality of the child spending equal or substantial and significant time with the mother in the period prior to the child commencing school in 2024.
This is an error of significance in the context of these proceedings where the child, at just four years of age has, by the orders made by the primary judge, been removed from the care of her primary attachment figure and will spend just three nights per fortnight with her mother and no additional time during school holidays until 2024.
In that respect, it is to be noted that the orders provide for the changeover of the child spending time with the father to that of the mother to occur mid-week. No explanation has been provided by the primary judge as to why it would be impracticable for that changeover to occur on another night, other than Thursday night, such that the child spends equal time with each parent or, at least, a greater amount of time with the mother.
Disposition
Accordingly, for these reasons I am satisfied that Ground 8 of the appellant mother’s grounds of appeal has merit and the appeal should be allowed. All parties, appropriately, in my view, accepted that, in the event of the Court finding that the learned primary judge had failed to provide adequate reasons regarding those matters of significance to which I have referred, the appropriate order would be for the matter to be remitted for rehearing rather than for the appellant court to re-exercise discretion. In those circumstances, it is unnecessary to consider the other grounds of appeal.
Costs
Given that the appeal is allowed for an error of law, I consider it appropriate to grant the parties costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) for both the appeal and the re-hearing.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 11 October 2022
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