Jagic & Mattias
[2023] FedCFamC1A 57
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Jagic & Mattias [2023] FedCFamC1A 57
Appeal from: Jagic & Mattias [2022] FedCFamC2F 1820 Appeal number(s): NAA 287 of 2022 File number(s): SYC 2986 of 2022 Judgment of: AUSTIN J Date of judgment: 3 May 2023 Catchwords: FAMILY LAW – APPEAL – Where the mother appeals from interim parenting orders reversing the residence of the parties’ three young children and requiring them to spend professionally supervised time with her, at her cost – Where the father and the Independent Children’s Lawyer opposed the appeal – Where the primary judge found the mother assaulted the middle child and the children needed protection against the risk of suffering harm caused by their subjection to abuse by her – Where the mother was charged and exercised her right to silence – Where the father’s evidence of the mother’s culpability was unchallenged before the primary judge – Where no error of principle was identified – Where the mother lead no evidence of her supposed incapacity to pay for supervision – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CC, 68B, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 28, 132
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Crimes Act 1900 (NSW) s 61AA
Evidence Act 1995 (NSW) s 89
Cases cited: Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17
Cimorelli & Wenlack [2020] FamCAFC 58
Fowler & Northwood (2022) FLC 94-114; [2022] FedCFamC1A 173
G v H (1994) 181 CLR 387; [1994] HCA 48
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Katsilis v Broken Hill Pty Ltd (1977) 18 ALR 181
Lim & Zong (2020) FLC 93-939; [2020] FamCAFC 20
Marvel v Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101
Mead v Mead (2007) FLC 93-327; [2007] HCA 25
Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12
Weissensteiner v R (1993) 178 CLR 217; [1993] HCA 65
Number of paragraphs: 65 Date of hearing: 3 May 2023 Place: Sydney Counsel for the Applicant: Mr Jackson Solicitor for the Applicant: FKG Law Counsel for the Respondent: Mr Givney Solicitor for the Respondent: Apex Legal Counsel for the Independent Children's Lawyer: Mr Kelly Solicitor for the Independent Children's Lawyer: Mason Mia & Associates ORDERS
NAA 287 of 2022
SYC 2986 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS JAGIC
Appellant
AND: MR MATTIAS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
AUSTIN J
DATE OF ORDER:
3 May 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 20 February 2023 is dismissed.
2.The appeal is dismissed.
3.The appellant shall pay the respondent’s costs of and incidental to the appeal, fixed in the sum of $9,170.24.
4.The appellant shall pay the Independent Children’s Lawyer’s costs of and incidental to the appeal, fixed in the sum of $4,136.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under a pseudonym Jagic & Mattias has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
This appeal by the mother lies from interim parenting orders made under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) on 20 December 2022 by a judge of the Federal Circuit and Family Court of Australia (Division 2).
The orders reversed the residence of the parties’ three young children, providing for them to live with the father instead of the mother. The genesis for such disruption to their residence was the mother’s alleged physical assault of the middle child, for which she was charged by police. The criminal prosecution was still pending at the time the appealed orders were made and remains so at the hearing of the appeal.
The appeal is dismissed for the reasons which follow.
Background
The parties commenced cohabitation in 2012.
Their three children were born in 2015, 2017 and 2019. They were aged between seven and three years at the time of the hearing before the primary judge.
The parties separated in either late 2020 or early 2021. Then, in May 2022, proceedings were instituted by the mother under Pt VII of the Act seeking orders in respect of the children.
Interim parenting orders were first made in June 2022, with the parties’ consent. The orders provided for the children to live with the mother and to spend substantial and significant time with the father. Slightly different arrangements were made for the youngest child, but the parties acknowledge the essential effect of the orders was to ensure the children spend four nights per fortnight and other special occasions with the father.
A second set of interim parenting orders was made with the parties’ consent in October 2022, expanding the time the children spend with the father, which expansion included one-half of all school holiday periods.
On 23 November 2022, the children visited the father. The middle child reported she had been recently hit and injured by the mother, which report was corroborated by the eldest child. The father subsequently reported the alleged assault to the police, which report resulted in the mother being charged with assault and bound by an apprehended domestic violence order for the protection of all three children. The children have been in the primary care of the father since about that time.
Within the next few weeks, an interim application was filed by the father to vary the consent orders made in October 2022. He sought to reverse the children’s residence and to impose professional supervision on the time spent by the children with the mother, which application she opposed.
The interim dispute was heard by the primary judge on 20 December 2022, following which the fresh interim orders were pronounced and ex tempore reasons for judgment were delivered. The appealed orders provide for the children to live with the father and to spend time with the mother once per week under professional supervision, paid for by her.
The Independent Children’s Lawyer (“the ICL”) was appointed by one of the orders made by the primary judge. The ICL was joined to the appeal, appeared, and opposed it, as did the father.
The appeal
The mother sought leave to appeal, but it is unnecessary. Save for an irrelevant procedural order (Order 11), the orders from which the mother appeals (Orders 3 to 7 inclusive) are all parenting orders from which the right of appeal unconditionally lies (ss 26(1)(c), 28(1)(b) and 132(1)(a) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).
The most recent iteration of the appeal is found within the mother’s Summary of Argument, filed on 21 February 2023, which amends the grounds of appeal set out within the Amended Notice of Appeal filed on 20 February 2023. The requirement for the mother to file and serve an Amended Notice of Appeal is dispensed with under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
The mother filed an Application in an Appeal on 20 February 2023, by which she sought permission to adduce further evidence in the appeal, but she abandoned the application and it was consensually dismissed.
Ground 1
Although not phrased in this way, Ground 1 comprises a complaint that the primary judge wrongly found the mother had assaulted the middle child.
The complaint is pressed on false dual premises: first, that the finding was made on “disputed and untested evidence”, and secondly, that legal principles prohibited the primary judge from making any factual finding. Neither contention is correct.
At the outset, however, it is worthwhile recording that the primary judge did indeed find the mother had assaulted the middle child (at [11], [20], [24], [25] and [30]). Flowing from that seminal finding was the consequential finding that the children needed protection against the risk of them suffering physical or psychological harm from subjection to physical abuse by the mother (at [13], [15], [17] and [21]).
The context in which the hearing before the primary judge was conducted is instructive in the disposition of this ground.
In support of his application to reverse the children’s residence, the father relied upon his affidavit filed on 14 December 2022, in which he deposed to the circumstances in which he learned of the middle child’s injury, his report of the allegation of the mother’s assault to the police, and the mother’s subsequent criminal prosecution. Photographs of the middle child’s injury, taken by the father, were attached to the affidavit.
The mother was served with the father’s application and affidavit, so she knew what relief he was seeking and the reason why he was seeking it. She filed her affidavit two days later on 16 December 2022, but elected to say nothing of the circumstances under which the middle child sustained her injury. The choice was deliberate. Her counsel explained several times to the primary judge during the hearing how she was exercising her right to silence so as not to prejudice her intended defence of the criminal prosecution pending against her, which his Honour duly recorded in the reasons for judgment (at [4], [9], [13], [24] and [30]).
Consequently, the uncontested facts before the primary judge were these:
(a)the middle child had a large, livid bruise on her left buttock, within which an adult-sized handprint was clearly visible;
(b)the middle child sustained the injury while in the mother’s primary care;
(c)the middle child told the father that the mother struck her on the body in the place where the bruise was evident;
(d)the eldest child corroborated the middle child’s account of being struck by the mother;
(e)the two elder children independently verified their versions of the event to police officers shortly afterwards;
(f)the police charged the mother with assaulting the middle child and occasioning her actual bodily harm; and
(g)when alerted to the allegation against her, the mother elected to neither admit nor deny her commission of the assault.
Such facts were certainly not “disputed” before the primary judge because the mother did not give any contradictory account. Her assertion within this ground that the evidence was “disputed” is simply false. The mother only said this in her affidavit:
67. I intend to vigorously defend the allegations in the ADVO.
But the mother deposing of her intention to contest the application for the family violence order (and, by inference, the allied criminal charge) against her before the State court was no more than a statement of her intention, which may change. It was not evidence which contradicted the facts established by the evidence adduced by the father. She might contemplate disputing, in one way or another, the facts alleged by the police in the pending parallel State proceedings, but the facts were not disputed in the civil proceedings before the primary judge.
It was and remains meaningless that such facts were “untested” in cross-examination when they were not contradicted. No application was made to cross-examine the father in the interim hearing, which proceeded by way of submissions.
The accounts of the event given by the children were direct evidence of the middle child’s assault by the mother. The hearsay evidence of their accounts was admissible, even if the rules of evidence applied (s 69ZV), though they did not in this instance (s 69ZT(1)) because no application was made for them to apply (s 69ZT(3)).
The uncontentious facts virtually impelled findings that the middle child’s injury resulted from being intentionally struck by an adult and that the mother was the culprit. Moreover, as the primary judge correctly recognised (at [5], [11] and [29]), in view of the significant bodily injury sustained by the middle child, her assault could not likely be passed off and excused as lawful correction under s 61AA of the Crimes Act 1900 (NSW).
The mother’s belief that no finding of her responsibility for the middle child’s injury could be made is mistaken. She was certainly entitled to maintain her silence, as she asserts, but she had to bear the forensic consequences of her decision. All evidence must be weighed and assessed in light of the parties’ respective capacity to produce it (Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [35]-[36]; Burke v LFOT Pty Ltd (2002) 209 CLR 282 at [134]-[135]; Swain v Waverley Municipal Council (2005) 220 CLR 517 at [17]). Aside from the children, the mother was the only person who could have given direct evidence about what did or did not happen to the middle child while in her care, but she deliberately chose to not do so.
The mother’s voluntary silence on the issue of her alleged assault of the middle child in the civil proceedings permitted the primary judge to more easily make findings and draw available inferences against her from the unchallenged evidence led by the father (Weissensteiner v R (1993) 178 CLR 217 at 227 and 244; Katsilis v Broken Hill Pty Ltd (1977) 18 ALR 181 at 197). The process of drawing inferences from established facts simply involves logical deduction (G v H (1994) 181 CLR 387 at [4]; Mead v Mead (2007) FLC 93-327 at [13]).
Section 89 of the Evidence Act 1995 (NSW) will prevent any inference of guilt being drawn against the mother from her silence in the criminal proceedings, if she chooses to remain silent before the State court too, but neither that statutory provision nor any other gave her the same protection in the civil proceedings before the primary judge. Nonetheless, the mother was not found to have assaulted the middle child merely because she elected to give no evidence denying the allegation, but rather because of and consistently with the father’s unchallenged evidence of her culpability (at [2], [3], [4], [5], [10], [11], [20], [24] and [25]). The mother’s submissions to the contrary in reliance upon two sentences identified in the reasons for judgment (at [4] and [30]) are rejected. At those points in the reasons, the primary judge was doing no more than recording how the mother had chosen not to offer any evidence about the critical issue, which observations are the subject of Ground 2.
The mother’s unqualified contention that factual findings cannot be made in interim proceedings is rejected. Findings of fact can always safely be made on uncontested evidence, though it is well established that findings made in interlocutory proceedings should be circumspect if the evidence upon which they are made is, or is liable to be, controversial (Marvel v Marvel (2010) 43 Fam LR 348 at [122]-[123]). Certain provisions of the Act actually require a judge to react to credible evidence of risks of harm to which children might be exposed and against which they require protection, thereby making findings about such risks indispensable (Fowler & Northwood (2022) FLC 94-114 at [24]; Cimorelli & Wenlack [2020] FamCAFC 58 at [80]–[81]; Lim & Zong (2020) FLC 93-939 at [32]–[33]).
Here, the primary judge did as the law allowed.
Ground 2
This ground contends the primary judge erred by “criticising” the mother in the reasons for judgment for not giving evidence about the circumstances in which the middle child came to be injured, which complaint is presumably meant to convey an assertion that the primary judge fell into legal error by reason of such unwarranted criticism.
The assertion can be immediately rejected because it wrongly presumes the primary judge criticised the mother for her forensic decision, when his Honour did not do so. His Honour’s recitation of the mother’s decision to abstain from adducing any evidence about the critical issue was an entirely correct observation. It was not gratuitous criticism.
The primary judge accurately said this in the reasons for judgment:
4.The mother has been charged. She faces those charges in the Local Court [i]n [early] 2023. The mother provides no evidence in her affidavit as to the assault. [Counsel for the mother] has indicated to the Court that the mother has chosen to remain silent in circumstances where she is facing criminal charges. She has exercised her right to remain silent, but in doing so has failed to put any evidence before the Court about the circumstances in which the bruising took place.
…
9.This is a difficult matter compounded by the fact that the mother has chosen to remain silent and say nothing. She could have filed evidence in support of her application today. She could have provided significant evidence about the circumstances in which the alleged assault took place, but she has chosen to say nothing in circumstances where she is facing the charges in the Local Court and possibly a recall on the bond from the previous breach ADVO.
…
13.It is her choice to offer no evidence, and that is what she has chosen to do. It puts the Court in an extremely difficult position because all the Court has at the moment is the mother’s say-so that she will defend the charges. She could plead guilty ultimately, the Court just does not know what will happen where the mother has not committed herself to any story at this stage. …
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30.It is the view of the Court the mother is the perpetrator of that family violence in circumstances where it is the only finding available to the Court where the mother has chosen to remain silent. She has not denied the matter. She has offered no evidence. As [counsel for the mother] said, it is her right to do so, but in circumstances where she could have put evidence on before the Court. She is not in a position where she cannot provide evidence, instead, she has chosen not to provide evidence.
The mother could not identify any error therein.
Ground 4
This ground is related to the first two grounds and alleges the primary judge “erred in the assessment of the risk” posed by the mother to the children because his Honour failed to take into account a series of considerations.
It is evident from the terms of this ground that the mother is alleging discretionary error by the primary judge’s failure to take material considerations into account. So construed, the ground is incompetent because the assessment of risk is an evidence-based conclusion, not the product of an exercise of discretion (Isles & Nelissen (2022) FLC 94-092 at [85]).
The mother’s emphasis of the importance of other features of the evidence is not to the point. The finding of risk is correct if it was open on the available evidence (Thorne v Kennedy (2017) 263 CLR 85 at [54] and [59]), as indeed it was. The primary judge’s finding in relation to the risk of harm posed by the mother to the children is not impeached by the mother stressing these other miscellaneous facts: the middle child was apparently only struck once, the other two children were not struck at all, three weeks elapsed before the father brought his interim application, and the father was in breach of interim property orders.
The mother deposed this in her affidavit:
68.… [I]n hindsight, I am now not surprised by the shocking events that arose on 23 November 2022. …
Without any admission of her misconduct, without any expression of her contrition, and in the face of the mother’s sworn evidence that she was “not surprised” by the “shocking” event of the middle child’s assault and injury, reported on or about 23 November 2022, it is quite unexceptional that the primary judge found the children still needed protection against the risk of them suffering harm by reason of their subjection to physical abuse by her.
Ground 3
This ground complains that the primary judge erred by ordering the mother to bear the cost of the professional supervisor because his Honour did not take into account the material consideration of the mother’s financial capacity to bear such cost.
On the question of the mother’s capacity to pay for professional supervision, her counsel had these exchanges with the primary judge during submissions:
[COUNSEL FOR THE MOTHER]: … [T]here’s no contest that my client cannot afford any sort of private supervision. …
…
HIS HONOUR: [To counsel for the mother], if I make an order here’s the question, and it has been put to me by [counsel for the father] that it’s open for me to make an order that there can be a private supervision service that would be available immediately, if your client pays do you tell the court your client wouldn’t be prepared to take that up?
[COUNSEL FOR THE MOTHER]: My client is destitute, your Honour. My client has no access to matrimonial income. … my client’s case is, quite squarely, that she’s completely reliant on her parents for accommodation and living expenses, and that the father has complete control of all the matrimonial assets. …
(Transcript 20 December 2022, p.22 lines 42–43; p.24 lines 26–32 and 40–42)
However, such submissions were seemingly made by the mother’s counsel either without any apparent evidentiary foundation or contrary to the available evidence.
Despite knowing the father was seeking orders for the children to live with him and to spend only professionally supervised time with her, which outcome was obviously possible, the mother chose to lead no evidence about her supposed incapacity to pay for such supervision to buttress her resistance to the father’s application. In fact, attached to one of the affidavits upon which the mother relied was a balance sheet of the parties’ assets and liabilities, in which she admitted her joint ownership of a bank account containing $307,000, her joint ownership of another $184,000 held in escrow for the parties, and her ownership of a Rolex watch worth $20,000. Such evidence implied the mother’s financial circumstances were not so perilous as was asserted.
The father’s counsel submitted this in reply:
[COUNSEL FOR THE FATHER]: Just specifically in relation to some matters that my friend raised in relation to the supervision arrangement, my instructions are that the mother has full-time employment, is carrying paying seventeen-hundred about seventeen-hundred per week is it per month for a Motor Vehicle. …
(Transcript 20 December 2022, p. 29 lines 30–33)
The relevant findings of the primary judge were expressed this way:
15.Noting the paramount consideration with primacy over all others, the Court is of the view that supervision can mitigate the issue of risk between the mother and the children for the purposes of ensuring the children continue on with their relationship with the mother. The Court has heard that the usual services, [C Counsellors], [D Counsellors] and some of the other contact service providers are unavailable for a significant period of time. The Court is aware that there are private supervision services, and the counsel for the father does not want to be heard against that.
16.[Counsel for the mother] suggests that the mother is not in a position to be able to fund that, but in circumstances where there is little evidence before the Court for the purposes of submissions in these proceedings, the Court cannot really make findings about the mother’s capacity. [Counsel for the father] suggests that the mother’s financial statements, in circumstances – it was either the property and parenting proceedings – suggests that the mother leases an expensive Motor Vehicle and asks the Court to draw an inference that the mother can afford to pay the costs of supervision.
…
22. This is not a case about the practical difficulty and expense of the children spending time with or communicating with a parent. I know that there is some issues about whether the mother can afford to pay for the supervised time. She is in the middle of property and parenting proceedings with the father, and that is not a matter the Court can give great weight to for the purposes of today.
Accordingly, the primary judge made these orders giving the mother some flexibility about the professional supervision service she could choose to use:
5.For the purposes of supervision, where the mothers [sic] chooses to engage with a publicly funded childrens contact service, such times shall be weekly on such dates and times as made available by the contact service.
6.The mother may at her election choose to engage a private supervision service. In such circumstances, the mother shall be entitled to select the private supervision service, where the mother pays the cost of that supervision, and supervision shall take place for three hours each week.
The contentions within this ground of appeal that the primary judge “failed to consider” the parties’ financial circumstances and “did not consider” the possibility that the mother could not afford the cost of professional supervision are false. The cost of supervision was expressly considered and it could not now be sensibly asserted the primary judge’s remarks on the issue were materially mistaken, given the available evidence.
Grounds 5, 5A, 5B and 5C
Together, these grounds amount to an amorphous grievance about the reversal of the children’s residence on the asserted basis that the primary judge paid insufficient heed to several critical considerations, being: the benefit derived by the children from their meaningful relationships with the mother, who had hitherto been their primary carer; the likely deleterious effect upon the children of their separation from the mother; and how a more measured response might have alleviated any risk to the children without needing to disturb their primary residence.
Both the grounds and the submissions made in support of them vacillate between allegations of the primary judge not giving sufficient consideration to those factors and not giving any consideration at all to them, but neither contention can be sustained. Each factor was considered by the primary judge and, that being so, the mother is driven back to a contention that the result was manifestly unreasonable, which submission was not available to her in the absence of any explicit ground of appeal to that effect.
With respect to the benefit derived by the children from their relationships with the mother (ss 60CC(2)(a) and 60CC(3)(b)(i) of the Act), the primary judge said:
8.The Court turns to the paramount considerations, the best interests of these children. The Court weighs and balances what is in the best interests of the children, having regard to those matters set out in section 60CC(2)(a) and (b), (3)(a) through to (m). The Court considers the benefit of the child having a meaningful relationship with both parents. These are difficult interim proceedings. There is clearly some benefit of the children having a relationship with the father and, until such time as this application was brought before the Court, and in urgent circumstances, the Court would have easily found that there was a benefit of these children have a meaningful relationship with their mother.
…
18.From the Court’s point of view, the nature of the relationship between the children and the father seems to be untainted and, presumably, a loving one - and the Court probably would have said, given the amount of time the children were spending with the mother up until recent events, would have been a loving one. The Court does not know what the nature of the relationship between the children and the mother is at the moment, whether it might be characterised by fear. It is a distinct possibility where the mother offers no evidence about the circumstances of the alleged assault and its aftermath.
With respect to the likely effect upon the children of their residence being reversed (s 60CC(3)(d) of the Act), the primary judge said:
20.There will be a significant change in the children’s circumstances. They will be removed from their primary carer. They will go and be placed with the father, who has been spending four nights a fortnight with the children. But the Court has done so in circumstances where it is the view of the Court the middle child, X, has been physically assaulted by the mother significantly, such that she has had welts and bruising left on her buttocks, to the extent that the mother has been charged with assault occasioning actual bodily harm. The police have deemed it necessary, for the protection of all three children, to take out an ADVO.
21.There will be a change in the children’s circumstances but, given what has transpired, where the mother offers no evidence, it is the view of the Court that the change, whilst not necessarily perfect for the mother’s relationship with the children and probably detrimental towards that relationship, it is protective of them. In that regard, the detriment caused by the children being removed from the mother is outweighed by the necessity of the Court to mitigate risk.
With respect to the proportionality of the orders to alleviate the risk of harm posed to the children by the mother (s 60CC(2)(b) and 60CC(2A) of the Act), the primary judge said:
10.The Court considers that it is necessary to protect these children from physical or psychological harm from being exposed to abuse, neglect or family violence, and more of this is really a case about family violence and abuse. Striking a child in this manner is abusive. It is family violence, and it is an assault. It is the view of the Court that the Court can take no comfort in the fact that there is an ADVO in place for the protection of the children in circumstances where the mother has already breached an ADVO for the protection of the father. Whilst [counsel for the mother] might make some suggestions about the circumstances in which it took place, again, there is little evidence before the Court about it such that the Court can give any weight to the submissions of counsel for the mother.
11.The Court cannot take any comfort in the fact there is an ADVO in place. It has been put in place because the Local Court holds fears for the safety of the children. The Court is concerned that these children will be subjected to abuse or family violence in circumstances where one of them is a witness to the mother’s alleged assuslt [sic]. The mother seeks to defend the charges against her. It is the view of the Court that the Court does need to step in now and act protectively by removing these children where the mother has, on the face of the material, struck one of the children so hard it has caused an enormous hand mark and welt across this child’s buttocks, to the point where it cannot be excused as simply lawful correctional undertaken for the purpose of chastisement that is lawful. It is well outside of that.
12.The suggestion that the issue of risk might be mitigated by the mother providing an undertaking not to physically chastise the children, again, is such that the Court cannot rely on that undertaking in circumstances where there is no evidence about what took place with respect to the alleged assault from the mother’s point of view. I know what it says in the COPS entries, but I just do not know enough about it. The mother just offers no evidence.
13.It is her choice to offer no evidence, and that is what she has chosen to do. It puts the Court in an extremely difficult position because all the Court has at the moment is the mother’s say-so that she will defend the charges. She could plead guilty ultimately, the Court just does not know what will happen where the mother has not committed herself to any story at this stage. The Court is not satisfied that the undertaking proposed by the mother or the fact there is an ADVO in place will continue to protect these children from suffering physical or psychological harm as a result of being subjected to or exposed to abuse, neglect or family violence.
…
15.Noting the paramount consideration with primacy over all others, the Court is of the view that supervision can mitigate the issue of risk between the mother and the children for the purposes of ensuring the children continue on with their relationship with the mother. The Court has heard that the usual services, C Counsellors, D Counsellors and some of the other contact service providers are unavailable for a significant period of time. The Court is aware that there are private supervision services, and the counsel for the father does not want to be heard against that.
…
17.It is the view of the Court that, if the Court orders supervised time of the frequency of at least every week, it will ensure that the meaningful relationship between the children and the mother is at least maintained in some manner until such time as the charges as against the mother are either heard and the mother is convicted or acquitted in the Local Court.
…
21.There will be a change in the children’s circumstances but, given what has transpired, where the mother offers no evidence, it is the view of the Court that the change, whilst not necessarily perfect for the mother’s relationship with the children and probably detrimental towards that relationship, it is protective of them. In that regard, the detriment caused by the children being removed from the mother is outweighed by the necessity of the Court to mitigate risk.
As can be seen, his Honour was not satisfied that the risk of harm to the children could be satisfactorily attenuated by the children continuing to live with the mother and by relying upon the deterrence of either the State family violence order, an injunction made under s 68B of the Act, or an undertaking to control the mother’s behaviour, which was the extent of the remedy she promoted. His Honour considered it was necessary to remove the children from the mother’s primary care and to professionally supervise the time they spend with her to protect them from the risk of harm. His Honour also considered that weekly supervised visits would enable the children to retain their meaningful relationships with the mother.
The mother may not agree with those conclusions, but they were well open on the evidence and demonstrate how the primary judge took into account the mandatory considerations which she alleges his Honour ignored.
Ground 6
This ground asserts the primary judge fell into error by reversing the children’s residence when there was insufficient evidence as to how the father would manage their primary care.
This was an issue which arose during the hearing, at which time the following exchange occurred between the primary judge and the mother’s counsel:
HIS HONOUR: [To Counsel for the mother], how do you get over the fact that the father is spending fortnight to fortnight unsupervised time with the kids, because mum wasn’t – this hasn’t previously been an unacceptable risk case.
[COUNSEL FOR THE MOTHER]: Well, your Honour, the father has never brought an application that he’s suitable to be the primary carer of these children before.
(Transcript 20 December 2022, p.24 lines 10–15)
That the father had not previously contested the children’s primary residence with the mother was beside the point. His variation application was prompted by an incident which gave rise to a reasonable apprehension that the children were exposed to the risk of harm in the mother’s primary care. An issue then arose as to his capacity to take over the children’s primary care, which capacity the mother unsuccessfully attempted to call into question.
His Honour was correct to say this case had not previously been an “unacceptable risk case” because it will be remembered the mother consented to interim parenting orders in June 2022 and October 2022 which provided for the children to spend substantial and significant time with the father. She thereby accepted the children were not at any risk of harm in his care and he would be capable of caring for them for four nights each fortnight and for one-half of all school holiday periods.
The primary judge therefore said in the reasons for judgment:
18.From the Court’s point of view, the nature of the relationship between the children and the father seems to be untainted and, presumably, a loving one - and the Court probably would have said, given the amount of time the children were spending with the mother up until recent events, would have been a loving one. The Court does not know what the nature of the relationship between the children and the mother is at the moment, whether it might be characterised by fear. It is a distinct possibility where the mother offers no evidence about the circumstances of the alleged assault and its aftermath.
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23.The Court is asked to take into account the capacity of the parents, including the capacity to provide for the needs of the children, including their intellectual and emotional needs. The mother raised allegations the father of historic drug use. She raises allegations against the father with respect to family violence. She raises a number of allegations against the father that would go towards issues with respect to capacity, but the Court views those allegations in circumstances where, for some period of time, the children have been spending unsupervised time with the father four nights a fortnight. The Court is not in a position to make any finding the father lacks the capacity to provide for the needs of the children, including their intellectual and emotional needs.
No reason is advanced to impeach the validity of those observations.
Disposition
The appeal is dismissed.
In the event of dismissal of the appeal, the father sought his party/party scale costs of $9,170.24, on the basis that the appeal was wholly unsuccessful, which costs order the mother conceded. The costs order should therefore be made.
The mother should also pay the ICL’s costs of $4,136, though she contended the parties should each be liable for one-half. The submission is rejected. It was her unsuccessful appeal and she did not submit she would suffer financial hardship if ordered to bear those costs (s 117(4)(b)).
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 4 May 2023
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