J & W

[1999] FamCA 1002

[1999] FamCA 1002

FAMILY LAW ACT 1975

IN THE FULL COURT  
OF THE FAMILY COURT OF AUSTRALIA  Appeal No SA46 of 1999
AT MELBOURNE  File No AD2068 of 1997

BETWEEN:

J

Appellant Mother
- and -
W
Respondent Husband

THE CHILD REPRESENTATIVE

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM:  NICHOLSON CJ, KAY & O'RYAN JJ
DATE OF HEARING:  1 July 1999
DATE OF JUDGMENT:                  13 August 1999

APPEARANCES:  Ms Pyke of Counsel, instructed by Thomson Playford, Solicitors, 101 Pirie Street, Adelaide, SA 5000, appeared on behalf of the Appellant Mother

Mr McQuade of Counsel, instructed by Julie-Ann Simkin, Solicitor, 64 Hillier Road, Reynella SA 5161 appeared on behalf of the Respondent Father.

Counsel,Mr Strickland, one of Her Majesty's instructed by Mr G D Hemsley, Solicitor, 22 Grenfell Street, Adelaide, SA 5000, appeared on behalf of the Child Representative.

J and W

SA 46 of 1999
Coram:   Nicholson CJ, Kay and O’Ryan JJ       
Date of appeal:      1 July 1999
Date of judgment:  13 August 1999

INTERIM PARENTING ORDERS – Five year old child lived with M – F diagnosed as suffering from AIDS – M reluctant to allow contact – M absconded with the child, who was located and placed in F’s care – Application for interim orders – Risks of one parent with irrational concerns about the other making disparaging comments to the child and re-absconding with the child – Risks from the other parent having limited parenting experience and AIDS – Application of Cowling principles – Proper evaluation of relevant considerations – Child to remain in F’s care in the interim period

The parties had a five year old child who lived with M for most of her life.  The conflict between the parties was focussed on M attempting to prevent or limit contact between F and the child, and F trying to obtain satisfactory contact.  M was highly critical of F, for example alleging that F was a paedophile.  A statement in an affidavit in which M begged the Court not to allow unsupervised contact because she regarded it as a “death sentence” was indicative of M’s views.

F had always had supervised contact.  On 23 December 1998 fresh orders for supervised contact were made.  After two periods of contact in accordance with the orders M absconded with the child.  In April 1999 the Federal Police located M and the child interstate.  The child was removed from M’s care, and lived with F from 23 April 1999.  This was the only period in which F had residence.

Competing applications for interim residence came before Dawe J on 31 May 1999.  A Family Report recommended that the child remain in F’s care and have supervised contact with M.  It contained an admission by M that some of her allegations were unfounded, and an account by the reporter of an argument he witnessed between the parties in front of the child.  The reporter had no reservations about F’s care of the child, other than that F had little experience as an authoritative parent.  M relied on a psychologist’s evidence that she had a close bond with the child and did not have a mental disorder. 

Dawe J found that it was in the child’s best interests to continue to live with F and be protected from the risk of M re-absconding with the child.  On 2 and 4 June 1999 her Honour ordered that F have interim residence and M have limited supervised contact.

On appeal, M submitted that the trial Judge gave insufficient weight to factors which favoured M and gave excessive weight to factors favouring F; failed to properly apply the principles from Cowling, Merryman and Cilento; and made orders that were unreasonable and unjust.  The child had lived with F for five weeks prior to the interim application coming before the Court.

Held

• Relevant considerations included the risks of M making disparaging comments about F, M re-absconding with the child, the child being deprived of M’s caregiving, and that F may behave irresponsibly towards the child regarding his illness.  Her Honour correctly identified and balanced the relevant risks to the child.

• The principles relating to appeals from discretionary judgments are well known (Gronow, House v R).  It was proper to preserve the status quo that existed at the trial date (Cowling, Rainer, Cilento).  There was no error in the approach taken by the trial Judge.  The outcome was within the proper exercise of her Honour’s discretion. 

Appeal dismissed
Reportable

1. M ("the mother") and F ("the father") are the parents of J born 12 July 1995. 

1. On 2 June 1999 Dawe J ordered that, pending determination of competing proceedings for residence and contact, J should reside with her father, and he should have responsibility for her day to day care, welfare and development.  Her Honour further ordered that the matter be referred to the next meeting of the Adelaide Case Management Committee with the recommendation that it receive priority in listing for trial.  After hearing further submissions on 4 June 1999 she ordered that the appellant have contact to J:

"(a)     today from 1.30pm until 5.00pm;

(b)each Monday between the hours of 9.00am and 11.30am;

(c)each Friday between the hours of 12 noon and 3.30pm;

(d)all such contact to be supervised by SC and/or MC;

(e)all such contact to take place at L or such other venue as shall be agreed between the parties, the collection and delivery of the said child at the commencement and conclusion of contact to occur there."

1. By her Notice of Appeal the appellant mother sought a discharge of the orders of 2 and 4 June 1999 and a revival of some earlier orders made in March 1997 which provided that:

·    J reside with the appellant;

·    the father have liberal contact with J strictly confined to the perimeter of the mother's home or property;

·    the mother have sole responsibility for the day to day care, welfare and development of J; and

·    both parents have joint responsibility for the long term care, welfare and development of the child.

1. At the conclusion of oral argument we announced that the appeal would be dismissed, and that a request would be made that the trial of the competing residence claims be given such priority as the Adelaide Registry could accommodate.  The following are our reasons for that dismissal.

Background

1. The parties met in 1993.  The father asserted that they cohabited until 1997 whilst the mother asserted that cohabitation ceased in July 1993 but that they maintained a sexual relationship until late 1997 when the father told the mother he was suffering from AIDS.

1. It was common ground that in March 1997 consent orders were made concerning issues of residence, contact, and short and long term responsibility for J's care, welfare and development. 

1. The father commenced proceedings in January 1998 seeking to change the contact arrangements to each Friday between the hours of 4.00pm and 8.00pm and each Sunday between the hours of 1.00pm to 6.00pm.  The mother responded to that application by seeking an order that she be solely responsible for the long term care, welfare and development of J.  On 12 February 1998 an order was made by Judicial Registrar Forbes that J be separately represented in the proceedings. 

1. On 7 April 1998 Burton J varied the March 1997 contact order by fixing contact each Friday and Sunday from 4.00pm to 6.00pm, such contact remained strictly confined to the perimeter of the mother's home property.  In May 1998 the father sought a variation of that order seeking contact from 9.00am to 5.00pm each Sunday away from the mother's home and in her absence.  In response she proposed there be no contact at all and said in an affidavit sworn 3 July 1998:

"I believe that I will never see the child [J] again if the father is allowed to take her away."

She also said:

"The father is criminally irresponsible and too sick to be in charge of a child."

1. Notwithstanding that her application formally sought that contact be denied, in the material which accompanied the application she said:

"I beg the court to deny the father unsupervised access... [S]o long as he is supervised I think the child is reasonably safe but allowing him to take her away is a death sentence."

1. On 8 July 1998 Burton J discharged the earlier contact orders and ordered:

(a)     that the father have contact each Sunday from 10.00am until 2.00pm;

(b)     such contact shall be supervised by the mother and shall take place at the mother's residence or such other place as shall be agreed; and

(c)     it is a condition of such contact that MH and her son AH be at liberty to attend during such time.

1. MH had sworn an affidavit in which she asserted that she was the former de facto wife of the father and that they were the parents of a child AH.  The father was having contact with AH each alternate week from Friday to Sunday.  MH indicated that she would be willing to supervise contact visits between the father and J on Sundays.

1. On 10 November 1998 the mother filed a Form 8 application seeking the following orders:

1.      That the order for contact made on 8 July 1998 by Justice Burton be discharged;

2.      Until further orders that contact do cease, due to extreme distress of mother and child;

3.      That MH be dismissed as a potential supervisor;

4.      That AH be excluded from any contact or future association with J due to his extreme aggression toward the mother and in front of the child.

5.      That the independent assessment of the father's health by Clinic 275, ordered by the Court on 6 February 1998 be tabled.

1. The father's response to that application was to seek to have the contact order varied so that he could have contact from 9.00am to 5.00pm each Sunday and from 3.00pm to 6.00pm on Christmas Day.  The father also sought orders on a Form 7A that he have contact:

(a)     each alternate weekend from 4.00pm Friday to 4.00pm Sunday;

(b)     one half of each of the school holidays;

(c)     on Christmas Day from 3.00pm to 3.00pm Boxing Day;

(d)     on Father's Day from 9.00am to 4.00pm;

(e)     such further or other contact as may be agreed.

He further sought an order that the mother notify the father of any major illness or accident suffered by the child.

1. In the material in support of her application the mother said:

"I have agreed to meet the father at the … Police Station but I do not believe it is in the child's best interest.

...

I beg the court to put J's welfare first and stop access."

1. The competing Form 8 applications filed in November 1998 came on for hearing before Judicial Registrar Forbes on 23 December 1998.  The mother appeared in person, the husband was represented by counsel, and a solicitor appeared as child representative. 

1. Amongst the material before the Judicial Registrar was a family assessment complied by Malcolm K Robinson, who had been retained by the child representative to prepare the report.  In it Mr Robinson reported that the mother said:

"her principal concern is the idea that F is a paedophile and has sexually abused his daughter AW.  M said that whilst she does not have any proof of this she believes this to be the case."

1. Mr Robinson further reported that the mother told him:

"…that she would not tolerate any form of contact between J and F unless that contact is very closely supervised and video taped.  M believes that she would need to be the supervisor although she does not appear completely settled on that point.  She has indicated that if she does not get the result she wants in this matter she will either ’disappear’ or refuse to hand J over for contact.  She said she is quite prepared to accept the consequences of such actions."

1. Among the conclusions reached by Mr Robinson were the following:

"1.      J is strongly attached and bonded to her mother;

2.        J has a strong and close connection with her father;

3.J is probably strongly attached to her father as well as her mother;

4.        J is deeply disturbed by the parental conflict;

6.J is deeply disturbed by her mother's distress about and anger towards F;

...

17.The basis of M’s objection to contact in (sic) F, hinge (sic) upon her allegations about sexual abuse and paedophilia on the one hand and F's HIV+ and AIDS status and irresponsible behaviour on the other.

18.My understanding is that there isn't any foundation to M's objections in relationship (sic) to either issue."

1. Mr Robinson then recommended inter alia:

"1.      Contact with F is in J's best interests;

2.J's four hours/week contact with her father be fully restored and extended;

3.A regime developing full day, overnight, weekend and holiday contact be mapped out over the next year in this matter.

4.Contact take place in the absence of M;

5.Contact be unsupervised;

6.F consider some form of short-term voluntary supervision in order to pacify M."

1. On 23 December 1998 Judicial Registrar Forbes ordered:

“1.That the mother do give and the father do take contact to the said child on Saturday the 26^th December 1998 from 5.00pm to 6.00pm such contact to take place at the home of and in the presence of the mother.  The contact to take place to the exclusion of all others save as to the parents.

2.That the mother do give and the father do take contact of the said child from 12 noon to 6.00pm each Sunday commencing Sunday the 27^th December 1998, the first 2 (two) such occasions of contact to be in the presence and under the supervision of LB [the husband's niece] and either one of them SC or MC and thereafter the contact be in the presence of LB only.

3.That until further order the mother be restrained and an injunction be granted restraining her from changing the principal place of residence of the child.

4.That further consideration of the matter be adjourned to the 2^nd day of March 1999 at 9.30am before a Registrar.”

1. Following the first two periods of contact the mother disappeared with the child.  A location order and then a recovery order were made.  The child was located in Perth in late April 1999 and on 23 April 1999 the child was handed to the father in Perth by the Federal Police.

1. On 27 April 1998 the father filed a Form 8 seeking an interim residence order and further restraints on the mother removing J out of South Australia.  There then followed a series of adjournments of the matter with orders being made that the child remain in continuous contact with the father, save for some brief periods when the mother was to have supervised contact with the child.  Directions were made for the preparation of a further family assessment by Mr Robinson.

1. The hearing which led to the orders of 2 June 1999 took place on 31 May 1999.  The mother sought that J be returned to her care and the father sought that he be granted an interim residence order.

1. The only evidence from the father of events which had occurred post 23 April 1999 was a short affidavit sworn on 28 April 1999 in which he deposed:

"J has now been in my care since Friday 23 April 1999.  She is extremely happy and settled."

1. There was a further report of Mr Robinson detailing two further interviews he had with the parents on 3 May and 6 May 1999.  He reported on what he described as "a bout of spontaneous conflict between the parties" in the waiting area of his professional room.  He said that it provided a rare opportunity to witness J's response to what appeared to be a common place interaction between her parents.  He said:

"the conflict between the parties was verbal, relatively intense and the (sic) somewhat accusatory.  J stood directly between her bitter and angry parents who were approximately two metres apart facing each other.  J's first response to this outbreak of hostilities appeared to be physical and emotional paralysis.  She was unable to move one way or the other and appeared stunned.  Her face seemed to lose its colour as if the blood was drained from her.  After a short while J regained her composure and found an effective way of ignoring her warring parents and setting about the business of play.  Of particular significance is the fact that J did not seek the solace of D [an adult daughter of the appellant] who was seated in the waiting area alongside M... F appeared to notice his daughter's discomfort and attempted to stop the altercation.  M did not appear to be at all aware of the plight of her daughter and seemed intent on escalating the dispute further.

This observation of conflict between the parties is particularly troubling in that it is clearly evident that this child finds her exposure to such matters very difficult.  It is also clear that the parents do not experience many personal constraints to their behaviour and are quite prepared to make damaging statements about the other party in the presence of J.  This appeared on this occasion to especially apply to M who felt possessed to make utterances about F's HIV/AIDS status and the allegation that he is a paedophile.  F's utterances were not of the same order of allegation and more directed at the mother's recent removal of J from the state."

1. Mr Robinson further reported that the mother admitted she had no proof that the father was a paedophile, and it was a fear she had based upon information she had pieced together about him: 

"This fear, in my opinion, has become a fact in M mind.  Equally her concerns about HIV/AIDS have also become a fact.  She is convinced that F will deliberately infect J with the HIV.  It is not likely that any rational or logical approach to this matter will succeed in changing her mind around these matters.

...

At the conclusion of these interviews with M there wasn’t any significant information that could clearly demonstrate that she would not take such a course of action again.  M clearly believes that she was justified in taking this course of action and this process lends some credence to that view in that she believes she may be heard this time.

...

In short I remain unconvinced that M sentiments are at all significantly altered for the better by this experience.  As such I am concerned about the possibility of M again taking matters into her own hands.  If she were to do so again this may spring from an even greater sense of impotence than she has (sic) in the past."

1. Mr Robinson also reported that he had no reservations about the relationship between the father and J, except to note that the father had very little experience as an authoritative parent to J.  He concluded in his opinion J should not be returned to reside with her mother at this point of time and should remain in her father's care.  She should not have unsupervised contact with her mother.

1. The child representative provided her Honour with an affidavit by the father's niece LB and an affidavit by one VS.  The mother was living with VS in Western Australia at the time the child was recovered.  It would appear that the recovery was made possible as a result of information given by VS to the Australian Federal Police.  VS deposed that when the police attended to remove the child the mother became very angry, saying that the father was a paedophile and was having incest with his own son.  In front of J, she then said to the police "Are you going to hold J while her father rapes her".  VS was critical of the care given to J by the mother during the short period that the mother lived in her home.

1. Amongst the matters deposed to by LB in her affidavit of 27 May 1999, were observations of the care given to J since she came to the father in late April 1999.  She said:

"I think that he has found the task of caring for her very difficult.  J has a number of problems.  I have observed these for myself because I helped him with her initially.

...

From my own observation, I believe that the father provides physically for the child.  She always has a meal packed for her whenever she is away, he always arranges a change of clothes and she is properly fed and cleaned."

1. The material relied upon by the mother at the hearing before Dawe J included a report from one Janet Schwarz, Registered Psychologist, who said that she had seen the mother on 18 March 1998 and since then had seen her for counselling and talked to her on the phone on a number of occasions.  She said:

"I experienced M as an intelligent, clear thinking and straight forward person who obviously loved and took good care of her daughter.  She demonstrated no signs of psychological problem or psychiatric disorder and I considered her to be fully in charge of her life and of a responsible nature."

1. The mother swore an affidavit on 20 May 1999.  She said that she had been extremely upset with the order for "unsupervised" (sic) contact made on 23 December 1998:

"I continue to have serious concerns about J having contact with the father on an unsupervised basis.  My primary concerns relate to the father's sexual proclivities and his AIDS virus."

She said she made the decision to leave South Australia with J as she felt that no-one was listening to her and it was the only way she could protect her.  She said that after the child was recovered in Perth she had a period of unsatisfactory contact with J on 2 May 1999 when J cried and would not let her leave.  She said that subsequent contact periods "have gone extremely well".  She was dissatisfied with Mr Robinson's methodology and attitude towards her.  She said she had now obtained a three bedroom Housing Trust property and wanted to live there with J.  She proposed contact between the father and J each alternate weekend but if he was unwilling or unable to travel to her property she would travel to Adelaide.  She indicated her preparedness to give an undertaking not to remove J from South Australia until further order and to have any residence order made conditional upon her complying with that undertaking.  In the course of one of the interim proceedings before Burton J she indicated that she realised that if she absconded again with the child she would go to gaol.

1. The hearing before Dawe J on 31 May 1999 took place by way of submissions without any oral evidence being given.  Mr Lindsay of counsel for the mother made lengthy submissions as to why Mr Robinson's material should be rejected.  He urged her Honour to accept that the mother's level of anxiety and distress was understandable given that it was a severe risk in her mind at least that the child may be infected with the AIDS virus.  All of the mother's behaviour, rational or otherwise, needed to viewed in light of the mother's fears, be they rational or otherwise.

1. Mr Lindsay submitted that the proper order would be to return J to her mother and:

"to take all such steps as are possible and necessary to build the contact between the father and the child and to build the relationship of trust between the mother and the father."

He said that his client would be fully cooperative with any course which the court would see as ensuring that the mother did not abscond again:

"and if that requires her to step into the witness box, and if that requires stringent safeguards to be put in place to ensure she does not leave the jurisdiction then of course it goes without saying, your Honour, the court would be quite entitled to proceed in that way."

He then indicated that his only instructions were to seek to have the child returned to the mother and that he was not seeking any modification of the orders for contact made 22 December 1998, which he continued to refer to as "unsupervised contact" although the order itself required supervision by LB. 

1. The following exchange then took place between her Honour and Mr Lindsay:

"HER HONOUR:      As I understand your submission, the mother does not resile in any way from her allegations of paedophilia by the father, sexual abuse by the father of his daughter and the father having an intention to deliberately infect his daughter, J, with AIDS.  She does not resile in any way from those allegations.

MR LINDSAY:           As to the latter, most certainly, if your Honour pleases.  The mother does not maintain that the father would deliberately infect the child with the AIDS virus ... [W]ith the wisdom of hindsight she realises that some of her assertions were unreasonable.  The assertion in relation to the husband deliberately infecting the child is one of those albeit, your Honour, and she does not resile from this, it was a belief that was genuinely held at the time.

As to the other matters, your Honour, in relation to paedophilia and the husband's sexual abuse of his daughter of his first marriage, can I submit to your Honour, with respect - I think if your Honour goes to the circumstances in which those allegations were made, for example, Mr Robinson's first report, your Honour will note - this is page 3 of that first report of 21 December - that in making those allegations the mother acknowledges her lack of proof.  So if your Honour pleases, it is not any part of the submission I put to your Honour today that this child is at risk of sexual abuse by her father."

1. After setting out the background at some length her Honour said at 9 (Appeal Book 20):

"This is an interim determination of the issues heard on submissions of Counsel referring to the papers.  I have not had the benefit of oral evidence and the testing of contested material.  I cannot, therefore, make findings on the important factual disputes.  I am limited to determining as best I can in these circumstances what will be in the best interests of J pending a full final determination of these proceedings.  I follow the guidelines set out in the cases of Cilento vCilento (1980) FLC 90,847; Griffiths v Griffiths (1981) FLC 91,064 and Cowling v Cowling (1998) FLC 92,801. The exercise of my discretion is, as always, determined by Section 65E, bearing in mind the objects of Section 60B and the criteria set out in Section 68F.

Because of the limits placed upon my capacity to assess the conflict in the evidence, I have set aside the contested conclusions drawn by Mr Robinson in his second report, the contested evidence of VS and the contested evidence of LB.  These contested matters would need to be determined by the Trial Judge after appropriate testing.  That does not mean I agree with the mother's Counsel's criticisms, only that I am not in a position to make an appropriate determination.

One matter that was not contested but is an indication of the mother's views is as follows: In paragraph 23 of her affidavit, VS says:

'When the police attended to remove the child the mother became very angry saying that the father was a paedophile and was having incest with his own son.  In front of J she then said to the police, "Are you going to hold J while her father rapes her?"  I was shocked to hear her say that, not only because of what she was saying but the fact that she was saying it in front of the child.'

Paragraph 2.17 of the mother's affidavit in reply says:

'As to paragraph 23 of the said affidavit, I admit being upset when the police attended to remove J.  My reaction was normal, given the situation and the stress that I was under at the time.'

I also pay heed to Counsel for the mother when he warns against making adverse findings at this stage against the mother based on inferences which might be drawn from her daughter's letters.

This is a situation where I must apply the criteria in Section 68F to two different situations which both have serious negative aspects as far as the child is concerned.  Until late April, J had been cared for all her life by the mother.  Mr Robinson described their relationship as ‘impressive’.

The father was, until December 1998, seeking only contact.  The father has AIDS.  His life expectancy is in dispute.  The mother expresses great anxiety about unsupervised contact.  In many circumstances the child's welfare may require that the child remain with or be returned to the stability of the emotional relationship with the primary caregiver.

Criteria such as the strong bond between the mother and child [Section 68F(2)(b)] and the possible detrimental effect on the child of separation from the mother [68F(2)(c)] are important considerations which I bear in mind.  The father has only very limited experience in caring for J and his capacity to do so is substantially untested.

On the other hand, serious questions are raised, not established or proven, about the mother's mental health.

The material in and the significant omissions from her affidavit of the 20^th of May, 1999; her statements to Mr Robinson as recently as early May (being the allegations about the father not mentioned in her affidavit) and her justification for the outburst in front of VS are all uncontested matters which convince me that there remains a risk, a serious risk, that if J is returned, her mother will abscond and hide again.

This would risk J being isolated from all her family.  Such a risk raises questions of the mother's capacity to provide for the emotional needs of J [68F(2)(e)] and the need to protect J from psychological and emotional harm that may be caused by being exposed to the mother's allegations about the father and any further attempt to hide from him and the authorities [Section 68F(2)(g)].

Balancing all of these factors in this difficult matter, I find that J's best interests currently require that she be protected from the risk that her mother will abscond again, or expose J to unnecessary emotional harm.  I am satisfied that in the short term that is a greater risk to J's well being than the interruption to her care by her primary caregiver or the risk alleged by the mother that the father's irresponsible behaviour may cause to J's health.

This matter commenced in January 1998.  I am told that it was not placed in the PHC pool until December 1998.  In any event, I am referring this file to the next meeting of the Case Management Committee with a recommendation that it receive priority in listing for trial.  I will place these reasons before the committee.  Any party wishing to send a letter to the committee about such priority should write to the Listings Registrar promptly.

I order that pending the determination of these proceedings the child, J, reside with the father, who shall have the responsibility for the day-to-day care, welfare and development of the child.  I propose that the mother have regular, frequent contact to J for a number of hours each week, provided that a suitable supervisor can be found who will ensure that J is returned.  If this cannot be agreed, I will hear Counsel's submissions."

1. The matter returned to her Honour on 4 June 1999 to determine issues of interim contact between the mother and child.  On that occasion a minute of proposed orders was tendered by Mr McQuade on behalf of the father and Mr Lindsay said:

"I have got nothing to put to you about the terms of the minute...."

The Appeal

1. At the hearing of the appeal we gave leave to counsel to rely on an amended Notice of Appeal.  The matters for appeal contained three grounds.  The first asserted errors by the trial Judge in failing to give sufficient weight to matters urged on behalf of the mother and in giving inappropriate weight to factors which favoured the father.  The second ground asserted that the trial Judge had erred in law in failing to properly apply the principles set out in Cilento (1980) FLC 90-847; 6 Fam LR 35, Merryman (1994) FLC 92-497 and Cowling (also known as In the Marriage of C) (1998) FLC 92-801; 22 Fam LR 776. The third ground asserted that the orders were unreasonable and unjust.

1. In her oral submissions Ms Pyke on behalf of the appellant said that she wished to argue a general proposition that on an interlocutory application for residence the Court needed to be convinced of the need for a change.  J had lived all of her life with her mother and there was no appropriate basis in the circumstances for the making of the order in favour of the father.  As a corollary to that she sought also to argue that there was in fact no material from the father as to his proposals for the care of the child and therefore no basis upon which her Honour could properly assess how the child's welfare could be advanced by remaining in the father's care pending the hearing.

1. Ms Pyke sought to emphasise that the focus of the hearing before Dawe J should have been about avoiding the mother absconding again with the child and not on the residence question, given that the child had lived all of her life with her mother and the evidence was that she had a close and loving relationship with her. 

1. She also asserted that there had been a common misapprehension flowing throughout the case, which misapprehension was shared by the mother, her counsel, Mr Lindsay and Dawe J, namely that the orders of December 1998 allowed the father to have unsupervised contact with the child.  She said that somehow her Honour's interpretation of this misunderstanding had affected the outcome of the proceeding.

1. Whilst it is clear from the material that Mr Lindsay spoke of the mother's belief that the contact was to be unsupervised, there is nothing in the order of Judicial Registrar Forbes of 23 December 1998 that ought to have led the mother to that belief.  The order is clear on its face that the first two periods of contact were to take place in the presence of LB and either or both of SC and MC, and that further periods of contact were to take place in the presence of LB.  Her Honour correctly set out the terms of the order and when describing the facts of the case said:

"The first two periods of contact took place but before the contact in the presence of LB only could occur, the mother and child disappear[ed]." (Appeal Book 15).

1. Subsequently in her judgment, when dealing with the mother's affidavit, her Honour said:

"The mother says in Paragraph 30 that:

'Until 23 December the father never had anything but unsupervised (sic) contact with her.'

He did not have unsupervised contact in December because of the mother's secret move to Western Australia.  The father had unsupervised contact for the first time when he collected J from the Federal Police in Perth."

1. The quote from paragraph 30 of the mother's affidavit contains an error in that the mother was deposing to the fact the father had never had anything but supervised contact with the child.  There is nothing in the material to suggest that her Honour was not fully aware of that situation.  Her reference immediately thereafter to the father not having unsupervised contact in December is a repetition of that error but does not lead us to assume that somehow her Honour anticipated that the father was entitled to have unsupervised contact in December. 

1. The facts set out earlier by her Honour in her judgment as to the history of contact, and the orders made, are not in dispute.  The fact that by the time the matter came on for hearing by her Honour the child had been living with the father for a period in excess of five weeks is not in dispute.  In our view, nothing in her Honour's judgment turns upon any possibility that she might have been mistaken as to the nature of the orders made on 23 December 1998.

Legal Principles

1. Orders dealing with whom a child is to live and contact between a child and another person are "parenting" orders and as such are governed by the provisions of s 65E of the Family Law Act, namely that they are to be determined by the Court regarding the best interests of the child as the paramount consideration.  Section 68F sets out the criteria that the Court must consider when determining what is in a child's best interests.  In an interlocutory hearing, where many of the issues remain in contest and there is no proper opportunity available to determine contested issues of fact or to make assessments of the parties themselves by observation of them whilst they give evidence and otherwise, the court is necessarily restricted in the manner in which it can give proper consideration to s 68F(2) requirements.  The appropriate approach to be taken in such circumstances was recently extensively discussed by the Full Court in the decision of Cowling (supra).  In Cowling Ellis, Lindenmayer and Jordan JJ said at (1998) FLC 85,005-85,007:

"15. The applicable criteria relating to the determination of an application for an interim custody order have been considered by the court in a number of authorities, particularly Cilento  and Cilento (1980) FLC 90–847, Griffiths and Griffiths (1981) FLC 91–064, Rainer and Rainer (1982) FLC 91–239 and C and C (1996) FLC 92–651. In our view, notwithstanding the passage of time since the delivery of three of those judgments, the increase in the number of applications before the court since then and the subsequent enactment of the 1995 Act, the criteria referred to therein, remain relevant in relation to an application for an interim residence order. Moreover the correctness of those decisions was not challenged on the hearing of this appeal.

16. The relevant legislative provisions now governing an application for a parenting order are to be found in Pt VII of the Family Law Act. Section 60B sets out the objects of that part and the principles underlying those objects, while s 65E provides that, in deciding whether to make a particular parenting order in relation to a child, and an interim residence order is a parenting order, the court must regard the best interests of the child as the paramount consideration. Section 68F sets out a number of matters which the court must consider in determining what is in the child’s best interests.

17. The procedure to be adopted at the hearing of an application for an interim residence order was considered by this court in D and Y (1995) FLC 92–581 and C and C  (supra). We agree with the conclusions reached by their Honours in both authorities for the reasons which they gave.

18. The Family Law Act does not draw any distinction between the principles to be applied in determining residence in interim and final proceedings. The essential difference between them is one of procedure. Interlocutory proceedings do not determine the long-term rights and obligations of the parties and their children. The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.

Accordingly, in determining what orders should be made, the court traditionally looks to the less contentious matters, such as the agreed facts, the care arrangements prior to separation, the current circumstances of the parties and their children and the parties’ respective proposals for the future. In some cases, it may also be necessary to consider child protection issues.

19. Having regard to the earlier authorities of the court to which we have referred and to the current provisions of the Act, we would summarise the relevant criteria for the determination of interim proceedings for residence and contact as follows.

20. First, having regard to the provisions of s 65E, in determining what interim parenting order should be made, the court must regard the best interests of the child as the paramount consideration.

21. Second, given the mode by which interlocutory proceedings are conducted, those interests will normally best be met by ensuring stability in the life of the child pending a full hearing of all relevant issues. Accordingly, as a general rule, any interlocutory order made should promote that stability.

22. Third, where the evidence clearly establishes that, at the date of hearing, the child is living in an environment in which he or she is well settled, the child’s stability will usually be promoted by the making of an order which provides for the continuation of that arrangement until the hearing for final orders, unless there are strong or overriding indications relevant to the child’s welfare to the contrary. Such indications would include but are not limited to convincing proof that the child’s welfare would be really endangered by his/her remaining in that environment.

23. Fourth, the court is entitled to place such weight upon the importance of retaining the child’s current living arrangements as it sees fit in all the circumstances. In determining what weight to place upon that factor, it is appropriate for the court to take account of the circumstances giving rise to the current status quo. In particular, the court may examine the following issues:

•whether the current circumstances have arisen by virtue of some agreement between the parties or as a result of acquiescence.

•whether the current arrangements have been unilaterally imposed by one party upon the other.

•the duration of the current arrangements and whether there has been any undue delay in instituting proceedings or in the proceedings being listed for hearing.

24. Fifth, where the evidence does not establish that at the date of hearing the child is living in an environment in which he or she is well settled, some limited evaluation of the relevant matters referred to in s 68F (2) needs to be undertaken to ensure that the result embodied in the order promotes the child’s best interests. In undertaking that evaluation regard must be had to the interim nature of the proceedings and the procedure referred to in C and C (supra).

25. Finally in determining whether, at the date of hearing, a child is living in a settled environment, consideration should be given, inter alia, to the following:

•          the wishes, age and level of maturity of the child;

•the current and proposed arrangements for the day to day care of the child;

•          the period during which the child has lived in the environment;

•          whether the child has any siblings and where they reside;

•the nature of the relationship between the child, each parent, any other significant adult and his or her siblings;

•          the educational needs of the child."

1. In C and C (1996) FLC 92-651; (1995) 20 Fam LR 24 the Full Court upheld the right of a trial Judge hearing an interlocutory proceeding to limit the time available for the proceeding and the mode in which proceedings are conducted. The Full Court said at 82,674 that such an approach:

"should be encouraged if the court is to efficiently conduct its business and that of its litigants."

In the case before us there was no suggestion that any limitation placed by Dawe J on the scope of the proceedings had somehow resulted in an unjust outcome or a denial of natural justice.

1. What was strongly urged upon us was that the clearly established status quo for J was living in her mother's care and that there was no convincing proof provided that J's physical or mental health or moral welfare would be really endangered by J being returned to live with her mother until the contested applications for residence or contact occurred.

1. In Rainer (1982) FLC 91-239 at FLC 77,313-314; 8 Fam LR 210 at 215-216 the Full Court summarised the key principle of Cilento (supra), as clarified in Griffiths (1981) FLC 91-064; 7 Fam 322, in the following passage:

"Something needs to be said at this point about the decision in Cilento and Cilento (1980) FLC 90–847. That case was critical of procedures involving extended and repeated interim hearings prior to a full scale hearing at which all issues would be ventilated in full. It pointed to the danger of making interim orders on incomplete material, especially where such orders disrupted an established position. Even though the court is guided by the paramount concern for the welfare of the child, that welfare is unlikely to be promoted if the child’s established situation is disrupted pending the full hearing of the matter unless there are cogent reasons requiring a change:

'No two cases are the same and it would be unwise to lay down any hard and fast rule. Nevertheless we consider that the interests of children will best be met by ensuring a degree of stability in their lives until the matter can be fully investigated by the court and a full hearing of the issues within a reasonable time. Unnecessary disruption to the life of the child should therefore be avoided.'

Cilento’s case was considered by Lindenmayer J in Griffiths and Griffiths (1981) FLC 91-064. He said (at p 76,500):

’Now, of course, there is not in all cases an existing status quo presented to the court upon an application for interim custody and in such cases the court must necessarily undertake some detailed evaluation of the merits of the claims of both parties. However, as I say, it seems to me that the Full Court is saying in that case that where there  is  a clearly established status quo in relation to children, then upon an interim application that status quo should not be changed unless convincing proof is provided that the child’s physical or mental health or moral welfare will be really endangered by the child remaining where it is until the contested application is heard.’

That statement is a very clear exposition of the Full Court’s ratio in the  Cilento case."

1. As can be seen from the decision in Cowling (supra), the frequently cited passage from Cilento (supra) has been ameliorated by the matters set out in paragraphs 23 and 24 of the decision in Cowling, namely that the preservation of a status quo is appropriate unless there are "strong or overriding indications relevant to the child's welfare to the contrary".

1. Finally, it needs to be remembered that the appeal before us was from a discretionary judgment.  The circumstances in which the Full Court should interfere with a discretionary judgment are well known.  In Gronow v Gronow (1979) 144 CLR 513 Stephen J said at 519:

"The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his (sic) decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight."

1. In House v. The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said at 504-5:

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he (sic) allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred."

Conclusion

1. Notwithstanding that which was urged upon us to the contrary, it is clear that in this case her Honour was faced with a dilemma.  It was open for her Honour on the material before her to conclude that there was a significant risk that the mother might yet again abscond with J.  Further, there was a significant risk that, even if she did not abscond with J, she would continue to make disparaging remarks relating to the father in the presence of the child.  Her Honour identified, in our view correctly, that the existence of such a risk raised questions about the mother's capacity to provide for the emotional needs of J, and raised the prospect of the court needing to protect J from psychological and emotional harm which may be caused to her by being exposed to the mother's allegations about the father and any further attempt to hide from the father and the authorities. 

1. Her Honour properly recognised there was a risk to J's wellbeing by being deprived of her mother's caregiving and that the father may behave irresponsibly towards J in circumstances where he is an HIV/AIDS sufferer.

1. Her Honour balanced those risks and elected to leave the child with the father pending further hearing.  We can see no error in the approach by her Honour that would invite interference by an appellate court. 

1. Ultimately the matter was one of the exercise of a judicial discretion.  It could not, in the circumstances of this case, be said to be a result which was clearly wrong.  No error of law or fact has been demonstrated.  There are clearly shortcomings in respect of the father's evidence as to his proposals but this was not a matter relied upon by counsel for the wife at the hearing.  Had it been raised with the trial Judge then it is a matter which could have been cured by allowing some further evidence at the hearing (see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438). In these circumstances, we would not place any reliance upon it. We see no reason for interfering with the orders made.

1. As to the appeal in respect of the contact orders, there were no submissions made before her Honour as to what would be appropriate contact orders.  The orders her Honour made, whilst they only allowed somewhat limited contact, were consistent with her Honour's assessment of the risk of psychological disturbance to J should her mother continue to berate the father in the child's presence.  It was clearly within the proper exercise of her Honour's discretion to make the limited contact orders that she made.