Hood & Weaver
[2022] FedCFamC1A 123
•5 August 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Hood & Weaver [2022] FedCFamC1A 123
Appeal from: Weaver & Hood [2022] FedCFamC2F 118 Appeal number(s): NAA 46 of 2022 File number(s): NCC 1156 of 2020 Judgment of: AUSTIN J Date of judgment: 5 August 2022 Catchwords: FAMILY LAW – APPEAL – Parenting – Where the mother appeals from final parenting orders vesting the father with sole parental responsibility and residence of the children and ordering the children to regularly spend time with the mother – Where, since the appeal was filed, fresh proceedings were commenced by the father and the primary judge has since reversed the orders in respect of the eldest child, rendering part of the appeal otiose – Expert evidence – Where the mother was unable to point to any finding which relied upon the acceptance of any inadmissible expert opinion evidence – Findings allegedly not open on the evidence – Where the findings were open as they were premised upon underlying findings about the mother’s neglect of the two eldest children’s intellectual needs – Weight challenge – Where the mother’s emphasis of other evidence she perceived to be advantageous to her case does not demonstrate the challenged finding was wrong – Where the appeal fails for lack of merit – Appeal dismissed – No order as to costs Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CC, 65C Cases cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
DL v The Queen (2018) 265 CLR 1; [2018] HCA 26
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop (2008) 237 CLR 66; [2008] HCA 42
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Whisprun Pty Ltd v Dixon (2003) 234 CLR 492; [2003] HCA 48
Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127; [2004] NSWCA 174
Number of paragraphs: 55 Date of hearing: 2 August 2022 Place: Heard in Sydney, delivered in Newcastle Counsel for the Appellant: Ms McMahon Solicitor for the Appellant: Meares Law Counsel for the Respondent: Mr Sundstrom Solicitor for the Respondent: HepMac Lawyers Counsel for the Independent Children's Lawyer: Ms Petrie Solicitor for the Independent Children's Lawyer: Coast Law ORDERS
NAA 46 of 2022
NCC 1156 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS HOOD
Appellant
AND: MR WEAVER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
5 AUGUST 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hood & Weaver has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
By the Further Amended Notice of Appeal filed on 30 May 2022, the mother appeals from final parenting orders made on 10 February 2022 under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) by a judge of the Federal Circuit and Family Court of Australia (Division 2).
The orders concern three children, now aged between 11 and four years.
The respondent is the biological father of the two youngest children (“the father”), but is uncontroversially described as the “psychological” father of the eldest child. The biological father of the eldest child was neither joined to the proceedings below nor to the appeal and, so far as the evidence goes, he has shown no interest in him. The primary judge correctly recorded there was no contest about the father’s standing to seek orders in respect of the eldest child pursuant to s 65C of the Act (at [75]–[76] and [82]–[85]).
The appealed orders made provision for the children to live with the father, for him to have sole parental responsibility for them, and for them to regularly spend time with the mother during school terms, school holidays and on other special occasions. The orders generally reflected those sought by the father (at [5]) and were, in effect, a mirror image of those sought by the mother (at [70]–[71], [160] and [229]).
The Independent Children’s Lawyer (“the ICL”) proposed the siblings’ separation, effectively endorsing the father’s proposal for the two youngest children but the mother’s proposal for the eldest child (at [72] and [161]), which proposal was contrary to both parties’ desire and the advice of the court child expert (“the expert”) to keep the children together.
The mother contends the judgment is vitiated by numerous appealable errors but, for the reasons which follow, the appeal is dismissed.
BACKGROUND
The parties commenced a relationship in 2013, at which time the eldest child was two years of age. The two youngest children were born in 2015 and 2018. During the parties’ relationship, the mother was the children’s primary carer.
The parties’ relationship broke down in mid-2018 and, by September 2018 at latest, the father had vacated the family home. The children thereafter lived primarily with the mother and spent time with the father each alternate weekend, which consensual arrangement endured for more than a year.
On unchallenged evidence, the primary judge found the mother delivered the children to the father in December 2019 and announced she could not financially support nor cope with them (at [38]). The primary judge declined to make any findings about why and how that problem arose (at [39]–[41]), other than to observe the mother acted appropriately by seeking the father’s help (at [43]). The children then lived with the father for about a month (at [44]). There was an unresolved conflict in the evidence about whether, once the children returned to the mother, they began spending time with the father more frequently than before or reverted to the routine of each alternate weekend (at [44]).
The children returned to live with the father in March 2020, though the parties disagreed over whether the change was permanent or temporary. In any event, it was common ground the father later withheld the two youngest children from the mother and she withheld the eldest child from him (at [45]).
In April 2020, the mother commenced proceedings under Pt VII of the Act. Very soon afterwards, interim orders were made for the two youngest children to live with the father, but to spend time with the mother and the eldest child each week from Sunday morning to Tuesday afternoon (at [51]–[52]).
In September 2020, more interim orders were made with the parties’ consent for the eldest child to live with the mother, but to spend time with the father and the two youngest children each week from Friday afternoon until Sunday morning (at [56]).
Those interim orders held the parties in check until the trial in February 2022, though both parties disobeyed the orders on occasions (at [53]–[55] and [62]–[63]).
The primary judge ultimately found the residential parent should have sole parental responsibility for the children, concluding the presumption of equal shared parental responsibility either did not apply or was rebutted (at [216]–[222] and [239]).
Her Honour then determined the children should live with the father, essentially because:
(a)the mother posed a risk of psychological harm to the children (at [124]);
(b)the children are not at any risk of harm in the father’s household (at [193]);
(c)both parties proposed a change to the existing residential circumstances (at [160]) and the children were sufficiently resilient to manage the changes they proposed (at [167]);
(d)the mother had struggled to manage the eldest child’s behaviour and to ensure the two eldest children attended school regularly (at [171], [173], [178], [184]–[186], [192], [209] and [224]);
(e)the father had been better able to ensure the two eldest children attended school regularly (at [176] and [209]) and so he had the greater capacity to meet their intellectual needs (at [188]);
(f)the father has greater capacity to provide for the children’s emotional needs (at [190], [195] and [225]); and
(g)the children are more likely to experience consistency and structure living with the father (at [224]).
Even though the father was not the eldest child’s biological father, the primary judge accepted the three children should not be separated (at [224]), which conclusion aligned with the expert evidence (at [134]–[135] and [162]) and the orders posited by both parties (at [134] and [139]).
At least to some extent, subsequent events have overtaken this appeal. Fresh proceedings were commenced by the father within weeks of the final orders being made, after the mother withheld the children. He filed an Initiating Application on 21 February 2022 seeking the recovery of the two youngest children, which the mother resisted by filing a Response on 11 April 2022.
The primary judge heard and determined the parties’ competing interim applications for more parenting orders on 8 June 2022. In effect, her Honour kept intact the orders made on 10 February 2022 in respect of the two youngest children, but reversed the orders in respect of the eldest child. Pending further order, the mother has sole parental responsibility for the eldest child, who lives with her and neither spends time nor communicates with the father.
The mother has separately appealed from those more recent orders, seeking that the fresh arrangements in respect of the eldest child apply to all three children.
THE APPEAL
Ground 1 was abandoned in advance of the appeal hearing.
Ground 2
This ground contends the primary judge erred by accepting the expert’s evidence that the children will likely experience consistency and structure in the father’s home, for two reasons: first, the expert had no evidence about the children’s relationships with other members of the father’s household (Ground 2(a)); and secondly, the expert’s opinion was based, at least in part, on her unqualified opinion about the state of the mother’s mental health (Ground 2(b)).
The expert produced a report in May 2021 which was adduced in evidence (at [9]), upon which she was cross-examined. During cross-examination, in answer to questions posed by the mother’s counsel, the expert said:
[THE EXPERT]: … And what I saw when I did my assessment was that the father was able to provide more stability in terms of getting children to school on time, addressing their needs and providing better supervision.
(Transcript 3 February 2022, p.107, lines 7–9)
The primary judge accepted the expert’s opinion evidence to the general effect that the “father’s household…offer[s] more consistency [to the children] than the mother’s” (at [208] and [224(f)]). But since the expert’s opinion was qualitative in only a comparative sense, this ground was prosecuted on a false premise. The relevant finding was not that “the children will likely experience consistency and structure in the father’s home” as the ground asserts, but rather they were more likely to do so with the father than with the mother (at [192]).
The manner in which this ground was particularised should also be rejected. Relevantly, the expert was cross-examined by the mother’s counsel about her lack of information concerning the members of the father’s household, which at that time comprised (excluding the children) the father, his partner Ms L (at [30]), and four members of the C family (at [58]). This was the excerpt of cross-examination upon which the mother specifically relied in the appeal:
[COUNSEL FOR THE MOTHER]: … What about the other couple who are living in the house? You said that – I think you said about that that – well, I will ask you a question rather than repeat what you said. If there is dysfunction – we don’t know whether there is any dysfunction between these other two adults, the husband and wife, because we haven’t been fortunate enough to have an affidavit from them to question them. If there is dysfunction in their marriage and the way they treat each other and in their level of communication, can that be detrimental to these children?---
[THE EXPERT]: Yes.
[COUNSEL FOR THE MOTHER]: And it seems that there’s a bit of joint parenting, that everyone looking after each other in the house. Different styles of parenting often are accompanied by different values, aren’t they?---
[THE EXPERT]: Yes.
[COUNSEL FOR THE MOTHER]: And the effect upon young minds can confuse duties and obligations?---
[THE EXPERT]: Yes.
(Transcript 3 February 2022, p.108 lines 33–45)
Quite unexceptionally, the expert conceded it was possible the children could be deleteriously affected by any dysfunction within the father’s home or by different styles of parenting. However, neither the cross-examination of the expert nor any other witness formed the basis for any submission that there actually was dysfunction or different styles of parenting deployed in the father’s home.
Despite submissions being made about the “potentially ‘chaotic’ circumstances of the father’s household” (at [211]), without there being any obvious evidentiary foundation for it, the primary judge observed and found:
149.… Under cross-examination I heard of no particular disunity within the father’s household that would cause me to be concerned about the children’s relationships with the other members of the father’s household.
150.For the reasons above and noting the identified limitations, I accept the submission of the ICL that “the children appear to have a good relationship” with the parents and other adults involved in their lives, including Ms L and the grandparents.
…
170.Submissions were made about the prospect of the orders sought by the father failing on a practical level; should the relationship between the father and Ms L fail. The father and Ms L were cross-examined about the strength of their relationship. Whether unconscious or not, it seemed to me that there was an unnecessary emphasis put upon the relative youth of Ms L and what this may mean for the future. In cross-examination, the child expert conceded she too had thought critically about the longevity of Ms L’s commitment to care for someone else’s children. Clearly none of us can predict the future of our inter-personal relationships but despite some (at times) robust cross-examination of the father and Ms L, I was left with the impression that they are committed to each other and to the ongoing support of the children (however that may look in the future).
…
193.I saw no evidence of that risk in the father’s household and evidently, neither does the mother because it is to him that she turns to for support.
…
211.… I heard no evidence of the children being adversely affected by the sharing of their home with the C family. On that basis I am unable to make any particular finding about the father’s household.
(Footnotes omitted)
The primary judge noted the limitation of not having direct evidence from some adult members of the father’s household (at [148]) but, far from there being no evidence at all about the children’s relationships with members of the father’s household, there was evidence the eldest child had positive views about Ms L (at [132]), all children were happy and comfortable with Ms L and the paternal grandmother (at [145]), the middle child was fond of one of the C family children (at [149]), the expert had no concerns about the eldest child living amongst other adults in the father’s household (at [164]), and the C family would vacate the home by the end of the year (at [211]). Ground 2(a) must therefore fail.
The mother and the ICL both invited the primary judge to either “disregard or treat with great caution” the evidence given by the expert (at [11]), in response to which the primary judge ruled any expert opinion evidence given on “the cause of the mother’s observed behaviours or reported actions” was inadmissible (at [12]–[13]), but the expert was otherwise found to be a reliable witness whose opinions should be accepted (at [14]–[20], [84], [87], [114], [129], [132], [134]–[135], [145], [162]–[167], [176(d)], [177], [181], [196], [208], [218]–[219], [224(a)], [224(f)], [226], [230], [239], and [246]).
The expert noted in her report how it was possible the mother suffered from a “cognitive disorder”, but expressly abstained from any attempt at diagnosis, observing simply that the mother’s behaviour “does negatively impact her parenting at times” (Expert Report dated 29 May 2021 at [167]). Then, in answer to questions posed in cross-examination by the mother’s counsel, the expert said she was “concerned” about the mother’s mental health, adding that it appeared to affect her parenting capacity, though there was “no clarity” to confirm it (Transcript 3 February 2022 p.107 lines 9–12).
From that synopsis it can be seen why Ground 2(b) must be rejected. Any opinion expressed in-chief by the expert about the “state of the mother’s mental health” was ruled by the primary judge to be inadmissible. But no such opinion was ever expressed by the expert. While she entertained some suspicion about the mother’s impaired state of psychological health, she refrained from expressing any concluded view about it as she lacked the qualification to do so and explicitly recommended that the mother follow the issue up with her general practitioner and have further assessment of her cognitive function. The expert’s comments were directed to the deficits in the mother’s parenting capacity which were evident from her behaviour, to which she declined to ascribe any psychological label. The mother was unable to point in the appeal to any finding made by the primary judge which hinged upon the acceptance of any inadmissible expert opinion evidence.
Ground 3
This ground challenges the validity of the finding expressed at [224(e)] of the reasons for judgment. It is contended there was “little or no evidence” to support the finding, or alternatively, the primary judge failed to take material evidence into account when making the finding.
The subject finding was expressed thus:
224.The children should live primarily with the father. The reasons for that conclusion may be summarised as follows:
...
(e)the mother tends to neglect the boys’ education, which is an influential consideration when the children need the intellectual development, life skills and social support they derive from regular school attendance;
The finding was open, premised as it was upon these following underlying findings about the mother’s neglect of the two eldest children’s intellectual needs by her failure to ensure their prompt and regular school attendance over a number of years:
176. …
(b)School staff said that the father is connected to the online communication tool for [the middle child] but the mother is not despite being given the information twice. [the middle child’s] attendance is “good”, having been away from school for two days in term one (2021) and that the mother had said she would supply a medical certificate but didn’t. The school staff said that [the middle child] attends school on time on days when he is with the father but is consistently late on the days (Mondays and Tuesdays) when he is with the mother;
(c)School staff are concerned about [the eldest child’s] attendance, noting that he was in attendance for only 63% of 2021. The staff report that the mother would supply a medical certificate but none has been supplied. There has been some contact with the mother but not the father. The school staff are reported to “feel that [the eldest child’s] academic performance would improve if he attended school more often”;
177.Continuing with the children’s intellectual needs, it is significant that the expert says this at paragraph 157:-
[The middle child] is reported to be attending school regularly but is often late when with his mother. Being late for school is disruptive for the class and places [the middle child] in a situation where he will likely receive unwanted attention, not be ready for learning and may impact his capacity to focus. Chronic lateness can become habitual and negatively impact other areas of life [work and relationships]. [The father] is reported to be in contact with the school and seeking information to support [the middle child]. [The mother] has also contacted the teacher about friend groups but has not added herself to the class information sharing point. [The middle child] is reported to be doing very well in some areas of his academic performance and improving in others…
178.Exhibit “F-11” included the [school] attendance records for [the eldest child] (from 13 July 2019 onwards) and [the middle child] (for all of his 2021 kindergarten year).
179.The mother was cross-examined about why [the two eldest children] were either absent or late on specified days when they were in her care. Her oral evidence was consistent with her written evidence but she also appeared surprised at the number of reported absences that were put to her arising out of Exhibit “F-11”.
180.I formed the impression that in part, an explanation for the boys’ lateness or non-attendance was because she was struggling with the technology that all families have had to grapple with during the various COVID-19 lockdowns. She said that she was committed to working with the teachers and turning this situation around.
181.Because of her evidence, I asked the [expert] whether it made a difference from a child’s perspective if a late attendance was physical or digital and was told it did not.
…
184.In submissions, the mother’s counsel reflected on the numbers recounted at Exhibit “F-11” which showed [the eldest child] having partial absences of 110 and whole absences of 174 days between 13 July 2019 and 13 December 2021, although I have not forgotten that at least five of those whole day absences were due to the father’s inappropriate actions in October 2021.
185.Similarly counsel reminded me of what Exhibit “F-11” said about [the middle child] having 17 partial absences and 43 whole absences during 2021, and again I note that at least five of those days were attributable to the father.
186.Nonetheless, during these periods, [the eldest child] lived with the mother for the majority of the school days and [the middle child] lived with the mother on Mondays and Tuesdays since the April 2020 Orders were made. Other than the week in October 2021, there were no submissions made to the effect that any of the other recorded absences were due to the father. Rather, and in particular for [the middle child], the evidence was that there was a consistent pattern of the absences falling on Mondays or Tuesdays (when [the middle child] was in the mother’s care).
…
188.However, the consistent and enduring pattern of either whole or late attendances of [the two eldest children] at school on days when they were under the care of the mother, combined with the mother’s evidence of having struggled to get the children on-time during lockdowns and the reported observations from school staff about the father’s capacity to get [the middle child] to school on time and his engagement with the communication tool, causes me to find that the father has the greater capacity to meet the boys’ intellectual needs.
…
209.The other problem is the evidence about the mother being unable to ensure the boys turn up to school on time, if at all. If that were to continue with all three children in her household, then it is likely that the matter would return to court. I see no evidence of that being of significant concern in the father’s household, in circumstances where it appears his poor actions occurred over the space of one week.
(Bold emphasis in original)
The mother submitted:
…there was no evidence that either of the boys had suffered a lack of intellectual development or had, in any way, lost out on the development of life skills and social support.
However, the primary judge did not purport to find the two eldest child had already suffered intellectual disadvantage; only that they would do so if things were left unchanged. The primary judge was obliged by the Act (s 60CC(3)(f)) to consider the parties’ respective capacity to provide for the children’s emotional and intellectual needs. The subject finding directly addressed such capacity, given the evidence of past events.
As for the material evidence supposedly not taken into account, the mother pointed to the eldest child’s school report for mid-2021 showing his satisfactory progress, school records revealing no concerns about the two eldest children’s care, and their 2021 attendance records.
The school records concerning the children’s care were not overlooked, as they were expressly referred to by the primary judge (at [176(a)]), as were the attendance records for 2021 (at [178] and [184]–[186]). The mother’s faint attempt to suggest the reasons did not accurately reflect the contents of the attendance records is rejected.
The eldest child’s 2021 school report was not mentioned, but it is impossible and unnecessary to mention every piece of evidence in reasons for judgment (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at 463–464; Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127 at 136). That is particularly so when the subject piece of evidence is not the subject of any particular focus (DL v The Queen (2018) 265 CLR 1 at [32]–[33] and [130]–[131]; Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop (2008) 237 CLR 66 at [120]–[121]; Fox v Percy (2003) 214 CLR 118 at 132), and the mother was impelled to concede no submission was made about the school report at trial on her behalf. The unmentioned contents of the school report do not detract from the findings recited above.
Ground 4
This ground attacks several findings which were allegedly made either without evidence or against the weight of the evidence.
The first point to be made is that “weight” challenges to factual findings are incompetent. Factual findings are either open on the available evidence or they are not. They are not open if there is no evidence at all to support them (Edwards v Noble (1971) 125 CLR 296 at 302–304 and 307). If there is some evidence to support the findings then they are open and immune from challenge on the basis of mistake, subject to the caveat that those based on the testimony of a witness deemed to be credible, but yet glaringly improbable due to inconsistency with other incontrovertible evidence, may be impeached (Fox v Percy at 127–129 and 138–147; Lee v Lee (2019) 266 CLR 129 at [55]).
Challenges to appealed orders based on the weight afforded to certain aspects of the evidence can only pertain to the residual ground of appeal available in respect of discretionary judgments – namely, that the orders (not findings) are “unreasonable or plainly unjust” or “plainly wrong” (House v The King (1936) 55 CLR 499 at 504–505; Norbis v Norbis (1986) 161 CLR 513 at 539–540; and Bugmy v The Queen (2013) 249 CLR 571 at [24], [44] and [51]–[52]). Such an argument would be ordinarily expected to assert the result is unreasonable, plainly unjust or plainly wrong because insufficient weight was given to an important piece of evidence, though it bears repeating that such submissions are rarely successful (Gronow v Gronow (1979) 144 CLR 513 at 518–520; Norbis v Norbis at 539–540).
The findings said to be mistaken are these:
(a)The eldest child would cope with being moved to live with the father (Ground 4(a));
(b)The father had greater capacity to provide for the children’s emotional needs (Ground 4(b));
(c)The mother would be overwhelmed by the responsibility of ensuring the two elder children attend school on time (Ground 4(c)); and
(d)The mother’s household was “disrupted” or she was otherwise unable to adequately care for all of the children (Ground 4(d)).
Ground 4(a) attacks this finding:
226.Obviously, the reversal of [the eldest child’s] residence with the mother after years of primary residence with her may cause him some emotional disturbance. His younger siblings appear to have adjusted to the change, albeit they have not had the same experience as [the eldest child]. The child expert said all the children were comfortable in the father’s care and [the eldest child], like his siblings, may just as easily cope with the change in his primary residence. I am heartened in that view by the mother’s acknowledgement of the bond between them given her decision to contact the father at times when [the eldest child] has been highly agitated and aggressive.
(Emphasis added)
The pursuit of Ground 4(a) is now otiose, as the mother properly acknowledged, because the appealed orders in respect of the eldest child have already been set aside by the primary judge. Under the current interim orders, he will neither spend time nor communicate with the father.
Nonetheless, the ground fails because it was underpinned by evidence-based findings made to this effect:
164.In particular, the ICL addressed with the child expert, the impact upon [the eldest child] should he no longer live with the mother and instead live with his psychological father. It was put to the child expert that it would not be the best situation for [the eldest child] if he was to live with the father, because he would be cared for by two adults with whom he shares no biological attachment. The child expert was clear to say that she had no concerns about this because [the eldest child] had described to her how close he felt towards his father (knowing that he is not his biological father) and that the father had demonstrated his commitment to [the eldest child], albeit she described the father as being “somewhat naïve”. She went on to say that from her experience it was the level of care and psychological bond that were important.
165.In the context of [the eldest child] going through puberty and the likelihood that his bonds to each of his attachment figures would likely become strained, it was suggested to the child expert that it would be better for him to live with the mother because she has both the psychological and biological bonds. In response, the child expert said that, “it comes down to their insight into normal adolescent behaviour and how they manage it”.
166.At no point did the child expert say that the children would not be able to accommodate changes to their circumstances as promulgated by the various parties.
167.Based on the above, I find that the children would be sufficiently resilient to manage a change to their circumstances.
(Emphasis in original)
The eldest child’s apparent current refusal to live with or even see the father, the cause for which is unknown, does not mean the primary judge was mistaken to find he could easily cope with living with the father. The eldest child’s current estrangement from the father is potentially demonstrative of various different things, including for example: his current view about where he should live; his propensity to act out; or the mother influencing him.
Ground 4(b) attacks this finding:
195.After weighing up the evidence, I find that the father has a greater capacity to provide for the emotional needs of the children.
The ground fails because the primary judge found the mother poses a risk of psychological harm to the children due to her unfounded, but persistently expressed, concern that the father may sexually abuse the children (at [119]–[124]), the validity of which finding was not challenged. The mother’s inferior capacity to provide for the children’s emotional needs follows axiomatically from the risk she poses to their psychological health.
In addition, the mother has historically struggled to contain the eldest child’s emotional outbursts, at times seeking the father’s help to do so (at [43], [83(d)], [171(a)], [173(l)], [175(c)]), but the father has not encountered similar problems with the eldest child (at [175(h)]), leading the primary judge to say this:
190.Insofar as having the capacity to meet the children’s emotional needs, I observed during submissions that [the eldest child] is clearly a vulnerable child. He has no current diagnosis but it appears that the mother recognises that he has some challenging behaviours which at times have caused her to ring the father for help. In cross-examination she accepted that in the past [the eldest child] had a knife and she had rung the father because she was concerned about her and [the youngest child’s] safety. She was frank in her assessment of her son’s behaviour last year and to her credit on this occasion she once again rang the father for help. The expert agreed that the mother’s actions on both occasions were appropriate.
191.I was taken to an observation made by Dr LL in his report dated 4 March 2019 when [the eldest child’s] behaviour in the waiting room was described as “oppositional”. In 2019, [the eldest child] was given a diagnosis including ODD but it seems other than sessions with a psychologist that ended mid-last year [the eldest child] has not engaged with any sufficiently qualified treators since that time. In that context, and noting the mother’s description of her son’s not “uncommon” explosive behaviour, it is of concern that the psychological recommendation for [the eldest child] to continue with short-term counselling in the form of psychological treatment for another six months was not secured for [the eldest child].
192.In weighing up the capacity of the parents, I am mindful of what the mother said in her affidavit about events of late last year when she said that her son was very strong and when he hits her it hurts and further that his explosive behaviour is not uncommon. Her evidence in cross-examination was to the effect that [the eldest child’s] behaviour had settled somewhat, however I remain unconvinced that she has the capacity to manage his behaviours in the future and that, as she has done in the past, she will call upon the father to help. This will then, as it has in the past, lead to inconsistency and uncertainty for the children.
(Footnotes omitted)
The mother’s past reliance upon the father for help to control the eldest child tends to undercut her complaint about the finding of his superior capacity to meet the children’s emotional needs, but her emphasis of other evidence she perceived to be advantageous to her case on this point does not demonstrate the challenged finding was wrong.
Grounds 4(c) and 4(d) attack these findings:
225.The risk of placing all three children in the mother’s household is that she will become overwhelmed by the added responsibility of ensuring that both boys attend school on time and complete their school tasks, in circumstances where her evidence is that [the eldest child] displays difficult behaviours in her home which in the past have caused disruption to the household and her being hurt. In addition, the child expert was clear to say that given [the youngest child’s] future milestones it was important that her care be consistent.
Ground 4(c), which relates to the finding about the risk of the mother being “overwhelmed”, fails because it was open for the same reasons given in answer to Ground 3. There was a demonstrated history of the mother’s failure to ensure the two eldest children attended school promptly and regularly over a period of years. It is not to the point that the primary judge might have chosen to address the problem in another way, as the mother suggested, such as by imposing some form of mandatory injunction upon her to ensure their punctual school attendance in the future.
Ground 4(d), which relates to the finding of the past “disruption” in the mother’s household, fails because it accords with the underlying findings about the mother’s inability to quell the eldest child’s occasional outbursts, which have been so severe as to be described as “psychotic” episodes (at [173(g)]). His violent outbursts have been directed at the mother and other school students (at [173(j)], [173(k)], [173(l)] and [175(g)]). On one occasion, the eldest child confronted the mother and the youngest child with a knife (at [175(d)] and [190]).
CONCLUSION
The appeal fails for lack of merit.
On 14 April 2022, the appeal registrar ordered that Schedules of Costs be filed and served no less than seven days prior to the hearing if applications for costs were intended. Neither party nor the ICL complied because they are all the beneficiaries of grants of legal aid. They all agreed there should be no order for costs, regardless of the outcome of the appeal.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 5 August 2022
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