Jackson & Macek
[2015] FamCAFC 114
•19 June 2015
FAMILY COURT OF AUSTRALIA
| JACKSON & MACEK | [2015] FamCAFC 114 |
| FAMILY LAW – APPEAL – Where the mother appeals interim parenting orders concerning an eleven month old child–Where orders made that the child spends one day on and one day off with each parent – Where mother restrained from breastfeeding the child after she had acquired a tattoo – Assessment of risk – Whether there was a risk of harm to the child if the mother continued to breastfeed – Where no expert medical evidence – Matters of common knowledge – Section 144(1)(b) Evidence Act 1995 (Cth) discussed – Whether the trial judge failed to properly apply s 60CC of the Family Law Act 1975 (Cth) – Appeal allowed. FAMILY LAW – COSTS – Error of law – Costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) issued. |
| Evidence Act 1995 (Cth) s 144 Family Law Act 1975 (Cth) s 60CC, s 64B(2)(i) Federal Proceedings (Costs) Act 1981 (Cth) |
| Goode and Goode (2006) FLC 93-286 |
| APPELLANT: | Ms Jackson |
| RESPONDENT: | Mr Macek |
| FILE NUMBER: | NCC | 1295 | of | 2015 |
| APPEAL NUMBER: | EA | 80 | of | 2015 |
| DATE DELIVERED: | 19 June 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan, Aldridge and Hannam JJ |
| HEARING DATE: | 19 June 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 June 2015 |
| LOWER COURT MNC: | [2015] FCCA 1656 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Cantrall |
| SOLICITOR FOR THE APPELLANT: | Virginia Taylor Partners |
| SOLICITOR FOR THE RESPONDENT: | Joplin Lawyers |
Orders
The appeal be allowed.
That orders 1, 4 and 12 of the Orders made on 5 June 2015 be set aside.
That orders 13 and 14 of the Orders made on 5 June 2015 be set aside to the extent that those orders restrain the mother from permitting the child to be in contact with the maternal grandmother.
The question of the child’s time with the father be remitted for re-hearing in the Federal Circuit Court by a judge other than Judge Myers.
Pending the re-hearing referred to in the above order or further order the child shall spend time with the father on two occasions each week for five hours as agreed between the parties and in default of agreement from 10:00 am to 3:00 pm each Wednesday and Sunday.
There be no order as to costs.
The Court grants to the appellant mother a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (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 the appellant in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (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 the respondent in respect of the costs incurred by him in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (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 each of the parties in respect of the costs incurred by them in relation to the re-hearing ordered.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jackson & Macek has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 80 of 2015
File Number: NCC 1295 of 2015
| Ms Jackson |
Appellant
And
| Mr Macek |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Aldridge j
By a Notice of Appeal filed on 10 June 2015 Ms Jackson, who I shall refer to as “the mother”, appeals against orders made by Judge Myers on 5 June 2015.
The proceedings concerned the 11 month old son of the mother and Mr Macek, who I shall refer to as “the father”.
The trial judge made the following interim orders:
1.The mother be prevented by injunction from breastfeeding [the child] born [in] 2014.
2.The father return the child to the mother at the McDonalds Family Restaurant car park at [Town A] by 8.30 pm tonight.
3.The child live with the mother.
4.The child spend time with the father at all times as agreed between the parties and failing agreement from 9.00 am until 3.00 pm each Sunday, Monday, Wednesday and Friday.
5.Whilst ever the child is in the mother’s care the mother shall reside in the home of [the maternal great grandmother] in [Suburb B].
6.The father must reside at all times whilst the child is in the father’s care at the home of [the paternal grandmother].
…
13.Subject to Order 14 below the mother is injuncted and restrained from allowing the child to come into contact with the maternal grandmother or [her partner].
14.The injunction with respect to the maternal grandmother coming into contact with the child shall apply unless the maternal grandmother is at all times in the presence of the maternal great grandmother.
…
The proceedings were commenced after the father failed to return the child to his mother after what had been intended to be the child spending three hours with his father.
The parties are each 20 years old. They started living together in late 2013 when the mother found out she was pregnant. The child was born in 2014.
In January 2015 the mother consulted her General Practitioner and was diagnosed with depression and anxiety and was prescribed Sertraline.
The parties separated in early April 2015.
On 14 May 2015 a final Apprehended Violence Order (“AVO”) was made against the father with the protected person being the mother. It was common ground that the father had only seen the child on four occasions since separation. To put this in context, it is common ground that prior to separation the mother was primarily responsible for the care of the child and the father was involved to the extent that his full time employment permitted. Of particular relevance to the challenge to his Honour’s order concerning the child’s time with the father is the fact that prior to separation the longest period of time the child spent in the father’s sole care was one hour.
On either 21 May 2015, according to the father, or 23 May 2015, according to the mother, it was arranged for the child to spend time with his father. The father did not return the child as had been agreed. In his affidavit the father said that he decided to keep the child in his care due to concerns about the risk of harm if he remained in the mother’s care. He said:
43.I am extremely concerned about the environment [the mother] and [the child] live in at the maternal grandmother’s home. I am concerned about [the child’s] exposure to illicit drug use and the inability of [the mother] to care for [the child] properly especially if she is non-compliant with her medication. I am concerned about [the child] living in a residence with [the maternal stepfather] due to the previous investigations and allegations against him and the Department of Family and Community Services.
44.I am very concerned [the mother] is using illicit drugs and cannot prioritise [the child’s] care and welfare and therefore I feel [the child] is at risk of child abuse due to a risk for serious psychological harm. I believe [the child] may be at risk of child abuse.
(Affidavit of the father affirmed 25 May 2015 at [43] – [44])
The mother, after separation, had gone to live with the maternal grandmother and her partner.
On 26 May 2015 the mother filed an Initiating Application seeking the immediate return of the child and an interim order that the child live with her and spend time with the father as determined by the court. On the same day, the father also filed an Initiating Application seeking an interim order that the child live with him, that he have sole parental responsibility for the child and that the child spend time with the mother as ordered by the court. He did not seek an injunction restraining the mother from breastfeeding.
On the same day each party filed a Notice of Risk against the other making accusations of drug use against the other.
The matter came before the trial judge on 3 June 2015. The proceedings commenced with there being discussion between the parties and the court as to the material that needed to be before the court to enable the trial judge to come to a more considered view as to the appropriate interim orders. The trial judge then indicated that the appropriate form of orders in the meantime was that the child should live with the mother, spending a lot of time with the father. The mother agreed for there to be restraint against the child being brought into contact with the maternal step-grandfather.
The trial judge raised the issue of the mother’s breastfeeding. It needs to be remembered that when his Honour raised this issue there was then no application by the father to restrain the mother from continuing to breastfeed.
His Honour said:
If your client is not taking the medication she needs to do to stabilise her mental health because she’s breastfeeding, stop breastfeeding because the child has now been with the father how – for how long now?
(Transcript of proceedings, 3 June 2015, page 19, lines 25-27)
The mother had suffered post-natal depression. Sertraline, an anti-depressive, was prescribed by her doctor because it was a drug that was suitable for breastfeeding mothers. For reasons that are not apparent to me, the trial judge took the stance that this was apparently a second rate drug saying:
And if your client is taking a lesser drug so she can breastfeed, the child is 11 months of age and hasn’t been breastfed for the last two weeks. Stop breastfeeding. I would rather a parent who has got capacity to provide for the needs of the child, including their intellectual and emotional needs, by virtue of taking medication, rather than breastfeeding the child. Does that make sense?
(Transcript of proceedings, 3 June 2015, page 10, lines 21-25)
The lawyer for the father then proffered to the court her client’s instructions that the mother had recently had a tattoo.
The mother’s lawyer agreed that the mother had gotten a tattoo four weeks ago but said that she did not get an infection and had the tattoo through a reasonable tattoo parlour. His Honour’s response to that was:
Look, you can’t give blood if you’ve had a tattoo recently, to protect the poor blood donor – the recipient of the blood from potentially having hepatitis. Does the mother really want to punt the risk that she hasn’t? If you get hepatitis you’ve got it for life, and you can pass on hepatitis through breast milk. So that’s what I’m saying is, do you really want to punt the risk? I hope they are reputable. I hope they really clean their needles. I hope their sterilising machine really worked, because if it didn’t – if it seriously didn’t – then your child could have a condition that he will have for the rest of his life that will probably ultimately kill him. So that’s the point I make.
It’s serious if you do these things you might think, “Look don’t worry about it, I will throw caution to the wind”. Ink your body as much as you want, but do you really want to run the risk that you might pass on a disease you can’t cure to your son out of doing it? There is a good reason why you go to the blood bank and they ask you half a dozen questions, including, “Have you had a recent tattoo”, to see whether they want your blood or not. That’s the point I make.
(Transcript of proceedings, 3 June 2015, page 15, lines 32-47)
Later his Honour said:
Just say she has contracted herself hepatitis. She doesn’t know. She can’t possibly know whether she has or she hasn’t, and she goes home and breastfeeds tonight and passes on hepatitis on to her child. What do I do about it then? What do I say then? What does she say then?
(Transcript of proceedings, 3 June 2015, page 18, lines 12-15)
Ultimately the matter was adjourned to 5 June 2015. The trial judge did not make an order returning the child to the mother. The reason given by the trial judge was that “she will go home and breastfeed the child tonight” (Transcript of proceedings, 3 June 2015, page 18, lines 45-46). I observe that if the child was being breastfed it would be difficult for him to spend a lot of time with his father as his Honour said ought be the case.
On the resumed hearing, the mother had available blood test results that indicated she did not have hepatitis. Her blood also tested negative for HIV but that was subject to the caveat that, if there had been a risk of exposure to the virus, a test taken less than three months after that risk of exposure would not exclude the risk of an acquisition of HIV from that exposure.
As to the issue of breastfeeding, the course of the trial had been that the father’s initial concerns were that the mother was using cannabis. The mother conceded that she had used only used cannabis on one occasion in May 2015. A drug screen established she was drug free. The issue of Sertraline seemed to have passed.
The trial judge referred to s 144 of the Evidence Act1995 (Cth) which provides:
Matters of common knowledge
(1) Proof is not required about knowledge that is not reasonably open to question and is:
(a) common knowledge in the locality in which the proceeding is being held or generally; or
(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.
(3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.
(4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.
The trial judge then handed to the parties documents that he said he had obtained from the websites of Hepatitis Australia and the Australian Breastfeeding Association. As to the first document his Honour said, “What it tends to indicate is that hepatitis is not a big risk with respect to transmission during breastfeeding, even hepatitis C.” (Transcript of proceedings, 5 June 2015, page 6, lines 2-3).
The issue of hepatitis raised by his Honour thus also disappeared.
After some discussion the trial judge said:
I’m only asking the point, is your client – the baby is not two months of age, it’s eleven months of age. She has gone off and had a tattoo. If you read what it says in the Australian Breastfeeding Association, it says seriously consider whether you should breastfeed, seriously do if you are going to have a tattoo and is it worth - hopefully she’s not going to contract HIV out of having a tattoo, but it’s a possibility. And if she does, by some unlucky chance, does she want to punt that she passes on something to a little child who’s eleven months of age for the sake of it. That’s the point. Does she really want to do that and hope … that when he turned on the autoclave machine, he set the temperature correctly, that there wasn’t a blackout, the pressure was right and it actually cooked it properly or at least it sterilised it properly so that there’s no chance whoever was tattooed five minutes before she was, or at least some time before she was, who she can’t control, who may have had HIV, didn’t leave it on the implements that she was then tattooed with. That’s the point. I’m only asking so you can consider your own client’s instructions. Does she really want to press this application?
(Transcript of proceedings, 5 June 2015, page 12, lines 18-37)
Thus HIV now became the issue. There is a real sense that this issue was being driven by the trial judge. On many occasions during the hearing he exhorted the mother to stop breastfeeding even saying on one occasion “don’t breastfeed anymore. Seriously don’t. It’s not in the best interests of the child” (Transcript of proceedings, 3 June 2015, page 11, lines 1-2) and repeatedly asked her lawyer to obtain instructions to consent to the injunction, now sought by the father.
Although not a ground of appeal, it was submitted that the trial judge had prejudged this issue leading to a failure to properly consider the s 60CC factors of the Family Law Act1975 (Cth) (“the Act”), which was a ground of appeal. His Honour’s remarks to which I have just made reference do appear to have the flavour of prejudgment but absent a ground of appeal directed to that issue nothing further need be said.
the trial judge’s reasons
The trial judge commenced his reasons with a survey of the evidence which I will not repeat.
His Honour referred to the evidence as to the tattooing and risk of infection and said at [21]:
It is an agreed fact between the parties that the mother was tattooed within the last three months and, as such, if the mother had been infected with HIV as a result of being tattooed, that it is unlikely a positive result for HIV would have shown up in the results that have been provided to the court.
This would appear to be a misreading of the test results that state that the test “may not” exclude infection.
The trial judge then turned to the evidence of the owner of the tattoo parlour and noted that he did not tattoo pregnant or breastfeeding women.
His Honour’s findings as to the risk of harm to the child being breastfed by his mother were at [40] – [43]:
40.When looking at the issue of risk in this matter [I] must look at the benefits to the child and the detriments to the child and try and balance what is in the best interests of the child. There is a need to protect the child from physical or psychological harm. If the child is exposed to HIV, it would result in physical harm. The child would be exposed to physical harm as a result of neglect, that is, if the mother decided to breastfeed the child in circumstances where she could not be sure she had not contracted HIV as a result of having received a tattoo. Exhibit F, being the document from the Australian Breastfeeding Association, sets out the main cause for concern for breast feeding mothers of viral infection referring to hepatitis A or C and HIV is that of HIV, because it is known to be able to be transmitted via breast milk.
41.It is apparent that the mother did not seek any health advice from the tattooist at the time she had the tattoo. Perhaps had she done so, she may have chosen not to have a tattoo in circumstances where she was breastfeeding. It is also apparent, having read the material provided by [the tattooist] to [the father’s solicitor], that she did not have the opportunity to even consider health risks as no health advice given. None the less the mother has been tattooed.
42.The Australian Breastfeeding Association material that the Court has considered for the purposes of 144 of the Evidence Act 1995, is such that the Court forms a view that there is a risk of the mother having contracted HIV as a result of being tattooed. There is a risk of the child contracting HIV through the mother breastfeeding the child, if the mother has contracted HIV from being tattooed. There is a warning given by the Australian Breastfeeding Association to any mothers who are breastfeeding in circumstances where they might consider receiving a tattoo, and it states:
It is a health risk, which must be carefully assessed before a breastfeeding mother or anybody, for that matter, decides to get a tattoo.
43.When taking in to account the considerations at s.60CC balancing the issue of risk in the proceedings, looking at perhaps the benefit to the child who is 11 months old breastfeeding as opposed to what would be a lifelong issue in circumstances where the child contracted HIV, it is the view of the Court that it is not in the best interests of the child that the mother continue to breastfeed the child, and in those circumstances the Court will make the order sought by the father, that is, that the mother be prevented from breastfeeding the child.
(original emphasis)
Continuing with the consideration of the s 60CC factors the trial judge found that there was otherwise no risk of harm to the child being with his mother or his father. There was a finding that the maternal grandmother had been providing some care to the child and that there was a strong relationship between them.
The mother was found to be the primary carer and that there must have been some effect on the child by the removal from her care. It was found that there would be an effect on the child from the separation from his father which would be ameliorated by the orders for the time that the child was to spend with him.
For reasons that need not be discussed his Honour found a benefit in each parent having the support of a responsible adult when the child was with them. He found that the orders to be made provided for the child to spend substantial and significant time with his father.
The Grounds of Appeal
Ground 1 – That His Honour erred in making the order restraining the mother from breastfeeding the child in that His Honour:
a. based his decision on insufficient evidence;
b. failed to properly consider s 60CC of the Family Law Act.
Although the injunction restraining the mother from breastfeeding was expressed as an interim order I accept the submission of counsel for the mother that it operated as a final order. At some point, arrived at sooner rather than later, the mother would not be able to resume breastfeeding. Indeed, all of the comments of the trial judge in the transcript refer to stopping feeding.
The complaint as to the evidence falls under two parts. The first is that the document from the Australian Breastfeeding Association was not a document the authority of which was reasonably beyond question and should not have been relied upon. Secondly, the submission is that the evidence that was in fact before the court did not, in any event, enable the trial judge to make the findings that he did.
It was the trial judge himself who had apparently obtained the document from the Australian Breastfeeding Association website.
I have already referred to s 144 of the Evidence Act 1995 (Cth). There are two elements to s 144(1)(b), being the operative provision, namely which are that the knowledge itself is not reasonably open to question and is capable of verification by reference to a document the authority of which cannot reasonably be questioned. In McGregor & McGregor (2012) FLC 93-507 the Full Court said at [67] – [74]:
67.It is important to note from the outset that the information to which the section refers is of a kind not reasonably open to question and is capable of verification from authoritative sources. Examples abound of the type of information to which this section, and before it the common law, included as “judicial knowledge” or information shared between the judge and the rest of the community.
68.The requirements of s 144(1)(a) limit the potential operation of the section and may only be able to be determined after evidence of “common knowledge” generally, or in “the locality” is received. In practice there would be few issues in respect of which reference to extrinsic materials would not be “reasonably open to question”. This we think would be particularly so in relation to social science issues in parenting proceedings.
69.In X & X (2000) FLC 93-017 the Full Court of the Family Court considered the extent to which a judge was entitled to take judicial notice of the effects of genital herpes pursuant to s 144(1). The judge proceeded on the basis that it was generally known that genital herpes was a condition that may be incurable; that it may be dormant for lengthy periods; and it may surface from time to time. The Full Court concluded that the application of the test prescribed by s 144 would not have permitted the judge to have accepted without proof the range of facts upon which his Honour relied on the basis of his own knowledge.
70.In KB & TC (2005) FamCA 458 at [87] the Court said “that the benefit to be derived for a child from sibling relationships is not a matter” of general common knowledge. The Court noted, as is frequently the case with respect to parenting issues, that there are various credible schools of thought which could not be enlivened by s 144.
71.A more recent example is in Mains & Redden [2011] FamCAFC 184 which involved consideration of whether administering a number of conventional and almost universally administered vaccinations of children against a variety of conditions was in the child’s best interest. The conflict of expert opinion evidence in relation to the benefits and risks of immunisation precluded any prospect of the Court taking “judicial notice” under s 144 of the Evidence Act. If an issue in proceedings is controversial, it is almost inevitable that there will be differing credible expert opinions in relation to it and demonstrably it would not fall within the operation of s 144.
72.But if s 144 of the Evidence Act is to be applied, compliance with s 144(4) will find expression, incorporating as it does the common law rules of natural justice. Fulfilling the requirements of s 144 will not necessarily result in the court taking judicial notice that the matter is falling within operation of the section. In Prentice v Cummins (No 5) (2002) 124 FCR 67 Sackville J said at [85] that if it is:
impossible to take into account knowledge of the kind referred to in s 144(1) without unfairly prejudicing one of the parties, I would read s 144(4) as authorising the court to decline to take that knowledge into account, even if the requirements of s 144(1) otherwise appear to be satisfied.
73.It was common ground that none of the articles to which the learned
Federal Magistrate referred, and upon which his Honour relied, had ever been raised with the parties during the course of the proceedings or prior to the delivery of judgment. None had been in evidence.74.It is not open to a judge to use s 144 of the Evidence Act to “inform” him or herself of matters in respect of which reasonable minds might differ. This case provides an acute example of this. Indeed during her evidence, his Honour sought Dr R’s opinion on conclusions arising from a survey of adults who, it was said, had been alienated from their parents. Dr R said that in her opinion, other, more recent studies have proffered a different view.
(original emphasis)
To the same effect Sackville AJA said in Norrie v NSW Registrar Births, Deaths & Marriages (2013) 84 NSWLR 697 at [224]:
Section 144 does not confer an unlimited discretionary power on a court to take into account unproven facts that might bear on the issues to be resolved.
There is no suggestion in his Honour’s reasons that his Honour gave any consideration as to whether the information from the Australian Breastfeeding Association fell within the terms of s 144(1)(b) – his Honour simply seems to have assumed that it did. Whilst the document appears to have come from a reliable source, its author, the basis on which the statements in it were made and the evidence upon which the conclusions were made, remain unknown. It cannot be said to be clearly knowledge that is not open to question or that it is a document the authority of which cannot be reasonably questioned.
The problems that can arise from a judge assuming that his knowledge falls within s 144 are easily illustrated by what happened in this matter concerning the risk of infection from hepatitis and breastfeeding generally.
On 3 June 2015 his Honour appears to have accepted that he knew that there were advantages to a child in breastfeeding relying upon the World Health Organisation position on the issue but on 5 June 2015 he declined to do so because the material did not fall within s 144. (Transcript of proceedings, 5 June 2015, page 20, lines 10-15).
On 3 June 2015 the trial judge was adamant that the child was at risk of contracting hepatitis from the mother’s breast milk. He exhorted the mother to stop breastfeeding so as to remove the risk. The source of his Honour’s knowledge was never identified. On 5 June 2015, having read apparently the document from the Hepatitis Australia website, he no longer had that concern. This document suggests that his Honour’s forceful views expressed on 3 June 2015, as to the risk to the child of contracting hepatitis from his mother, were entirely misplaced and overstated. The same could be said of the trial judge’s description of Sertraline as a “lesser drug” (Transcript of proceedings, 3 June 2015, page 10, lines 21-25).
This, of course, highlights the need for expert opinion evidence to be given by persons who actually have expertise in that field as opposed to those who do not. Judges must not mistake their own views for being either facts not reasonably open to question or as appropriately qualified expert evidence. That those views may have been obtained by the judge searching the internet compounds rather than alleviates the difficulty.
The following exchange occurred between the trial judge and the lawyer for the mother:
HIS HONOUR: Okay. If one reads – let’s just read what it says. I should hear from the solicitor for the mother. Does your client say – is it accepted by your client that the document produced from the Australian Breastfeeding Association website is a document the type of which falls within the provisions of section 144(1)(b) of the Evidence Act?
MS METHIESON: Yes.
HIS HONOUR: That being a document capable of verification or:
Proof is not required about knowledge that is not reasonably open to question and is:
(b)capable of verification by reference to a document the authority of which cannot reasonably be questioned.
This is a document the authority of which cannot be reasonably questioned. Does your client say that?
MS METHIESON: Yes, your Honour.
(Transcript of proceedings, 5 June 2015, page 8, lines 1-19) (original emphasis)
There is force in the submission of the mother that her lawyer was not then in the position properly to deal with his Honour’s questioning. The trial judge should not have put the mother’s lawyer in the position of having to answer a question that neither she nor her client had the qualifications to answer. Indeed, to have answered that question would have taken considerable enquiry and quite possibly the consultation of experts. The difficulty is that she did not then say so, but instead agreed with the trial judge who then admitted the document into evidence.
Secondly, it is contended that even if the document was admitted into evidence it was incapable of supporting the finding made by his Honour namely that there was a risk to the child from breastfeeding.
The document relevantly set out:
The main cause for concern out of these viruses for a breastfeeding mother is HIV because it is known to be able to be transmitted by breastmilk.
Tattoo parlours in Australia have to be registered with the Local Council and each State has laws about infection control within the body art industry. The Victorian Government Department of Health (Better Health Channel 2011) advises people who want to get a tattoo to choose a reputable place that is registered with the local council. Reputable tattooists understand the need for infection control so risk of infection is unlikely.
Although the risk of infection from getting a tattoo is low, especially if done by a reputable parlour, it is a health risk which must be carefully assessed before a breastfeeding mother, or anybody for that matter, decides to get a tattoo.
(Transcript of proceedings, 5 June 2015, page 8, line 45 – page 9, line 10)
The trial judge also accepted into evidence a letter from the owner operator of the tattoo parlour. His letter relevantly provides:
No health questions were asked or advised on the day [the mother] at no time did she disclose that she was breastfeeding. As a personal rule I do not tattoo people who are pregnant or breastfeeding. I have spoken to [a local health service] Ph […] and they advised me there is nothing in the SKIN PENETRATION GUIDELINES 1991 about not tattooing pregnant or breastfeeding women but as a rule I do not and advise against it because I can be sure everything is clean at my shop but if it gets infected after they leave due to no fault of my owe it could be past on to the baby.
With this letter I have included
1.An extract from my diary showing when [the mother] received her tattoo and the batch number from the sterilizer and the print out from the autoclave sterilizer.
2.A copy of my last premises inspection from [the local] Council.
3.A copy of my tattoo licence: […]
4.All sterilisation is up to AS2182-1998 standards
(Annexure C, affidavit of the father, affirmed 4 June 2015)
Attached to the letter was the report from the local Council that had a tick next to the following three boxes:
26. All reusable articles that penetrate the skin to be sterilised 26(1)
27. Needles are single use only 27(1)
28. Needles disposed of immediately into sharps container 27(2)
Under the heading ‘Sterilisation’ the following appeared with ticks next to them:
40.Occurs at premises using a benchtop autoclave maintained in accordance with AS21821998. 26(2)(a)
41. Person present who has been trained in autoclave use. 26(2)(b).
42.Sterilisation carried out in accordance with AS/NZS44185:2006 26(2)(c)
- Printout of time/temp etc
- Maintenance records
- Performance validation (yearly)
A handwritten note on the same document indicated that the premises were very clean and well organised.
The mother’s evidence was that she did not get an infection from the tattoo. This appeared to be the risk identified by the owner of the tattoo parlour.
This constituted the evidence before the court on this issue. It must be said that the owner of the tattoo parlour was not established to be a person qualified to express a view as to the risks of breastfeeding after having a tattoo. That too seemed to be of no concern to the trial judge.
However, when regard is had to those matters the only conclusion that could be reached is that the risk to the child of contracting HIV must be regarded as low. That is said to be the risk identified by the Australian Breastfeeding Association which is then minimised by the tattoo parlour taking appropriate sterilisation measures. The evidence, as far as it went, indicated this to be the position, at least to the local Council’s satisfaction.
Importantly, the issue before the court was whether further breastfeeding would be a risk to the child. The child had been breastfed for four weeks after the tattoo. The evidence was entirely silent as to how long after infection a mother becomes capable of transferring the HIV virus through her breastmilk. That is to say the evidence did not disclose whether it is likely that such an infection may have already occurred in which case the injunction was pointless or would occur at some time in the future in which case a weaning plan could be considered.
I have been able to find only one reported case where a mother was restrained from breastfeeding her child. In Re Baby A [1999] NSWSC 787 an injunction was granted to prevent a mother who was HIV positive from breastfeeding. She had agreed she would not do so and the only issue before the court was whether that agreement should be reinforced by an injunction. That, of course, is a completely different case. There the trial judge had the benefit of medical evidence unlike the position here.
The evidence was not capable of establishing the risk identified by the trial judge. This aspect of ground one is made out.
Section 64B(2)(i) of the Act provides relevantly:
A parenting order may deal with one or more of the following:
(i)Any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
The breastfeeding of a child clearly falls within the phrase ‘any aspect of the care of a child’. Therefore in making the order in relation to breastfeeding the trial judge was obliged to have the child’s best interests as the paramount consideration. That then required the court to determine those best interests by having regard to s 60CC of the Act. One would have expected the trial judge to have undertaken, however briefly, a consideration of in particular the benefits to the child both emotionally and physically of continued breastfeeding and any negative effects from its sudden cessation.
There was no such consideration. The consideration of the matters took place only after the trial judge had decided to impose the injunction. It is true that s 60CC(2) refers to protecting the child from physical harm but any risk as to this must be weighed against the other s 60CC considerations. It may well be that the risk of harm to the child could, in appropriate circumstances outweigh those considerations, but that does not mean they should be ignored. The best that occurred here was the inclusion of the phrase “looking at perhaps the benefit to the child of breastfeeding” (at [43]). This was insufficient.
Both challenges made by ground 1 have been made out.
Ground 2 - that His Honour erred by failing to consider s 60CC of the Family Law Act when making orders about the time the child is to spend with the father.
Even on an interim hearing such as this, the court is required to take into account the relevant s 60CC considerations (Goode and Goode (2006) FLC 93-286, Marvel v Marvel (2010) 240 FLR 367) Of course, having regard to the state of the evidence such a consideration would necessarily be truncated and often, due to the nature of the evidence, incomplete (Marvel). Nevertheless, there should, at the least, have been careful consideration of the relationship between the child and his parents, noting that he was an 11 month old baby still being breastfed by his mother who was obviously his primary care giver, the conduct of the father in unilaterally removing the child from his mother, the ability of the father to care for the child, the conflict between the parties and the emotional impact on the child of the orders.
The basis of his Honour’s judgment is that because the child had been living with the father for two weeks there was now a platform for longer periods of time to ameliorate the effect of being separated from the father and the paternal grandmother. How, in the life of an 11 month old baby, that period could support his Honour’s approach is not apparent to me.
The orders provide for an 11 month old child to spend six hours with his father every Sunday, Monday, Wednesday and Friday. Quite simply, how such an arrangement is in the best interests of an 11 month old baby is beyond me. Such an arrangement is of its very nature unsettling to the child and likely to lead to instability. It requires a constant change of households and, in this case, would require eight changeovers per week between parents who accuse each other of violence and drug taking and have difficulties with the other members of each other’s family. Such orders are likely to be productive of conflict.
In the course of argument the following exchange occurred:
HIS HONOUR: …the court just doesn’t make orders for equal time for young children because generally, except in matters where you’re really trying to balance risk as much as you can, often on day on/day off sort of situations, the child can be left in a position where they don’t form a bond with anybody and they’re happy to be left with strangers as they are with anyone else.
MS HIGGINS: Your Honour, but…
HIS HONOUR: That’s what can happen with kids if you start doing things to them that aren’t necessarily in their best interests.
MS HIGGINS: Your Honour, my submission has been the whole way through this that the proposal by the father is that it does balance the risk. It’s two nights, and therefore it’s not toing and froing. It’s enough time in each house. But both parties can be satisfied the child is safe and well cared for.
(Transcript of proceedings, 5 June 2015, page 27, line 47 – page 28, line 14)
First, I regard the arrangement imposed by his Honour as involving considerable toing and froing. Effectively, accepting that the father only has the child for six hours, it is a day on, day off arrangement with the difficulties I have just identified.
Secondly, I do not understand the concept that a day on, day off arrangement balances the risk as much as possible. If the child is at risk with a parent they are at risk when they are with that parent on a daily basis or on an alternating daily basis. The trial judge does not identify what the risk may be and how that risk would be alleviated by this bizarre arrangement.
Thirdly, to suggest that day on, day off arrangements are often made is entirely incorrect. In this regard, on appeal from this trial judge in another matter, Reid & Clements and Ors [2015] FamCAFC 33 at [23], Ainslie-Wallace J said:
…In particular it was contended that he failed to give any consideration to s 60CC of the Act and failed to make findings necessary to a determination of the children’s best interests. The concession that his Honour fell into error in this regard was well made. The orders which require the children, one of whom was not then one year old, to move between their parents on a daily basis, on their face are such as to drive the conclusion that his Honour could not have given proper consideration to the dictates of, at least, s 60CC in making the orders.
Lest it not be clear enough, it is difficult to think of any circumstance where a day on, day off arrangement, for quite long periods of time, would be in the best interests of any child, let alone an 11 month old baby.
His Honour did not identify how the s 60CC factors led to the arrangement he imposed other than to say that it would ameliorate the separation from the father. He found that there was no risk of harm to the child being with either the mother or the father. As to the father unilaterally removing the child from his mother’s care the trial judge merely said that “the Court is not hugely critical of what has gone on” because of the “real issues in the mother’s household” (at [48]). I take that to be a reference to the father’s concerns outlined earlier but not to the evidence given by the mother. Those concerns could not have justified the acts of the father.
The relationship between the father and the child was subject to the limited time they had spent alone together, prior to the removal, as set out earlier. Clearly, the child had a very much closer relationship with the mother. I have already referred to the trial judge’s inadequate consideration of the cessation of breastfeeding and the bond with his mother.
No consideration was given to the father’s capacity to care for this child.
There was no consideration of the AVO, or the circumstances that led to it being imposed other than merely to state that the order had been read. There was no reference to the father pleading guilty to assaulting the mother and him being placed on a good behaviour bond which was in place at the time of the hearing. In addition to the AVO, the mother gave detailed evidence about family violence (which the father denied) but which his Honour appears to have overlooked or inexplicably disregarded.
The weighing of the s 60CC factors involves more than a recitation of them and facts relevant to that consideration. The evaluation process must identify how those considerations inform the court as to what is in the best interests of the child and how the orders to be made meet those interests.
The orders that were made could not have been made on a proper evaluation of the s 60CC considerations having regard to the evidence in this case.
I am of the opinion that Ground 2 has been made out.
Ground 3 – that His Honour erred in making the order restraining the mother from allowing the maternal grandmother to see the child other than in the presence of the maternal great grandmother and that he based his decision on insufficient evidence.
As has been seen, allegations were raised about the partner of the maternal grandmother. No allegations as to the maternal grandmother being a risk to the child were raised in the father’s evidence.
The trial judge relied on a purported concession that there should be such an injunction. There was no such concession. The father’s lawyer did not wish to be heard on this ground.
This ground is also made out.
I would allow the appeal, set aside Orders 1, 4, 12 and the reference to the maternal grandmother in Orders 13 and 14. The issue of the time that the child is to spend with his father should be remitted to the Federal Circuit Court to be heard by a judge other than Judge Myers.
Although I expect that an urgent hearing of the remitted issue will take place, until that occurs there would be no orders in place for the child to spend time with the father. I propose that there be an order that the child spend time with his father for two days each week for five hours as agreed between the parties and in default of agreement from 10:00 am to 3:00 pm each Wednesday and Sunday pending the re-hearing. I did not understand that there would be any opposition to these interim orders.
As to costs, I agree with the submission of the parties that an order for costs should not be made. This is however an appropriate case for certificates under the Federal Proceedings (Costs) Act 1981 (Cth) to be issued to both parties for the appeal and the re-hearing.
Hannam j
I agree.
Ryan j
I too agree with his Honour’s reasons and the orders that he proposed. The orders of the court will be:
1. The appeal be allowed.
2.That orders 1, 4 and 12 of the Orders made on 5 June 2015 be set aside.
3.That orders 13 and 14 of the Orders made on 5 June 2015 be set aside to the extent that those orders restrain the mother from permitting the child to be in contact with the maternal grandmother.
4.The question of the child’s time with the father be remitted for re-hearing in the Federal Circuit Court by a judge other than Judge Myers.
5.Pending the re-hearing referred to in the above order or further order the child shall spend time with the father on two occasions each week for five hours as agreed between the parties and in default of agreement from 10:00 am to 3:00 pm each Wednesday and Sunday.
6. There be no order as to costs.
7.The Court grants to the appellant mother 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 the appellant in respect of the costs incurred by her in relation to the appeal.
8.The Court grants to the respondent father a costs certificate pursuant to the provisions of 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 the respondent in respect of the costs incurred by him in relation to the appeal.
9.The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 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 each of the parties in respect of the costs incurred by them in relation to the re-hearing ordered.
I certify that the preceding eighty seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge and Hannam JJ) delivered on 19 June 2015.
Associate:
Date: 23 June 2015
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