Jarmin and Elstone
[2020] FamCAFC 46
•5 March 2020
FAMILY COURT OF AUSTRALIA
| JARMIN & ELSTONE | [2020] FamCAFC 46 |
| FAMILY LAW – APPEAL – PARENTING – Where the mother appeals against orders for the child to live with the father and spend time with her on alternate weekends – Whether the primary judge erred in the exercise of his discretion in permitting the re-litigation of issues where there had been final parenting orders previously made by consent – Where the primary judge found sufficient changed circumstances to satisfy the rule in Rice and Asplund (1979) FLC 90-725 – Where the primary judge found that the mother’s parenting capacity was limited – Where the primary judge’s findings were open on the evidence – Where there is no error in the primary judge’s attribution of weight on the various expert reports – No error established – Appeal dismissed – No order as to costs. |
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 65D, 69ZW |
| Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54 Elmi & Munro (2019) FLC 93-912; [2019] FamCAFC 138 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Henderson v Henderson (1843) 67 ER 313; [1843] 7 WLUK 87 Jarmin & Elstone (No 4) [2018] FCCA 4003 Miller & Harrington (2008) FLC 93-383; [2008] FamCAFC 150 Newling and Newling (1987) FLC 91-856; [1987] FamCA 21 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84 |
| APPELLANT: | Ms Jarmin |
| RESPONDENT: | Mr Elstone |
| INDEPENDENT CHILDREN’S LAWYER: | The Family Law Project |
| FILE NUMBER: | ADC | 3605 | of | 2015 |
| APPEAL NUMBER: | SOA | 71 | of | 2018 |
| DATE DELIVERED: | 5 March 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland, Aldridge & Kent JJ |
| HEARING DATE: | 7 June 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 September 2018 |
| LOWER COURT MNC: | [2018] FCCA 2724 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr McQuade |
| SOLICITOR FOR THE APPELLANT: | Daniel John Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Roberts |
| SOLICITOR FOR THE RESPONDENT: | Salisbury Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Horvat |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | The Family Law Project |
Orders
The appeal be dismissed.
There be no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jarmin & Elstone has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 71 of 2018
File Number: ADC 3605 of 2015
| Ms Jarmin |
Appellant
And
| Mr Elstone |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
By way of Notice of Appeal filed on 15 October 2018, Ms Jarmin (“the mother”) appeals from two of the final parenting orders made by Judge Young on 21 September 2018 in proceedings between her and Mr Elstone (“the father”) relating to their child X born in 2011 (“the child”).
The orders appealed provide that during the school term the child is to live with the father (Order (2)) and spend time with the mother on alternate weekends (Order (3)(a)). The mother seeks that those orders be set aside and the matter be remitted for rehearing.
The remainder of the orders, which are not the subject of the appeal, provide for the parents to have equal shared parental responsibility for the child, and that he spend time with the mother for half of school holidays and on special occasions.
The appeal is opposed by the father and the Independent Children’s Lawyer (“ICL”).
On 28 May 2019, the mother attempted to file an Amended Notice of Appeal. The Amended Notice of Appeal abandons Grounds 3 and 10 of the grounds of appeal and seeks to vary Grounds 2 and 9. At the hearing of the appeal, an order was made allowing the mother leave to rely on her Amended Notice of Appeal.
On 28 May 2019, the ICL filed an Application in an Appeal, together with a supporting affidavit, seeking an extension of time to file a Summary of Argument. The ICL sought to file that summary on 5 June 2019. An order was made at the hearing of the appeal granting the ICL leave to rely on the same.
Background
Given the issues raised in this appeal, it is necessary to record a detailed history of the proceedings between the parties.
The mother was born in 1990 and the father was born in 1990; making them 30 and 29 years of age respectively.
The parties commenced a relationship in August 2010 and separated in January 2012.
The child is currently eight years of age and is the only child of the relationship.
The mother has another child, C, who was born in 2015. That child was conceived artificially by an anonymous sperm donation in 2014; the mother did not have a partner at that time.
Shortly after the relationship between the parties ended, the mother commenced a relationship and cohabitation with Mr L.
On 2 March 2013, the mother and Mr L presented the child to hospital and he was found to have a spiral fracture on his left arm.
The child was required to return to hospital on 7 March 2013 for a forensic medical investigation, the results of which disclosed significant existing and previous injuries.
A police investigation resulted in Mr L being charged with offences in relation to the child but those charges were eventually withdrawn for lack of evidence. Despite the charges being withdrawn, it was accepted by all parties that Mr L was likely to have caused the child’s injuries.
Between July 2013 and July 2014, the child was subject to a guardianship order and was placed into the care of his maternal grandmother. The mother moved into the maternal grandmother’s home and the father was permitted to spend time with the child.
At the conclusion of the guardianship order, the child was returned to the mother’s care. However, difficulties between the parents arose as to the father’s time with the child, and mediation was unsuccessful.
On 28 September 2015, the father filed an Initiating Application seeking parenting orders with respect to the child.
On 4 February 2016, orders were made, inter alia, for the father to have supervised time with the child, and on 10 May 2016 orders were made by consent, inter alia, for the father to have unsupervised time with him.
On 14 February 2017, final orders were made by consent that the parties have equal shared parental responsibility for the child, and that he live with the mother and spend time with the father on alternate weekends and during school holidays.
On 7 April 2017, the child disclosed allegations of physical and sexual abuse by the father and the father’s partner, Ms C, to his therapist, Dr H.
The mother was present when the child made the allegations. She reported that he told Dr H that Ms C had “licked his butt” and that the father had hit him on the head.
Thereafter, the mother withheld the child from the father, and on 11 April 2017 the mother reported the allegations to police.
The mother reported a further allegation on 14 April 2017 that the child had told the maternal grandmother that Ms C “licks his willy”.
On 27 June 2017, a forensic interview was conducted with the child by Child Protection Services and police.
On 30 June 2017, the father commenced contravention proceedings.
On 17 July 2017, orders were made pursuant to s 69ZW of the Family Law Act 1975 (Cth) (“the Act”) for the Department of Child Protection (“DCP”) to provide the Court with a number of documents, including copies of the notification of abuse allegations, any assessment or investigations into such allegations, and the outcome and findings of same.
On 11 August 2017, the mother filed an Initiating Application seeking to vary the existing parenting orders. She sought orders for sole parental responsibility for the child, and suspension of the child’s time with the father on an interim and permanent basis. In support of her application, the mother filed an affidavit deposing to the allegations of the child, and a report of Dr H supporting the same.
On 26 October 2017, the father filed an affidavit denying the allegations against him, and making a counter allegation that the child had told him that the mother “touches his willy”. Ms C also filed an affidavit denying the allegations made against her.
On 30 October 2017, Judge Young conducted an interim hearing. Despite the fact that the DCP had not yet complied with the s 69ZW order, the Court was informed that the police were not taking the matter any further because the child had not made any allegation of sexual abuse in the forensic interview. In his reasons for judgment, his Honour said:
6.…I was inclined to dismiss the mother’s application on a summary basis because the rule in Rice & Asplund (1978) 6 Fam LR 570 requiring new or significant material likely to result in a variation of orders had not been satisfied. However, because the 69ZW order had not been complied with I thought it prudent to adjourn the matter until that material could be considered.
His Honour adjourned the matter to 23 November 2017.
On 22 November 2017, the mother filed an affidavit deposing to an incident at the child’s school after he returned from weekend time with the father. Allegedly, the child barricaded himself in the classroom and had attempted to poke and stab a teacher with a pencil.
The child attended a therapy session with Dr H, who provided a further report. In that report, Dr H opined that the child was reacting to fear of his father, and noted that the child had threatened suicide if he was required to spend time with the father again. She was of the opinion that the child was at risk of self-harm and needed to be protected from triggers. That report was filed in Court by the mother’s solicitor on 22 November 2017.
When the matter resumed on 23 November 2017, his Honour made orders that the child’s time with the father be suspended. His Honour was satisfied that the requirements of Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”) were satisfied. His Honour made orders for the preparation of a family report and adjourned the matter.
The family report was prepared by Dr K and was released on 16 March 2018. In the reasons for judgment, his Honour noted at [9] that the observations contained in that report were “entirely inconsistent with the opinion expressed by Dr H that the child was afraid of his father”. However, the report raised serious concerns about the child’s behaviour with the mother and the maternal grandmother.
On 20 March 2018, the father filed a Response to the Initiating Application seeking interim orders that the child live with him pending trial. He also sought final orders that he have sole parental responsibility for the child, and that the child live with him and spend time with the mother, conditional upon her attending psychotherapy.
The interim application was heard on 17 and 18 April 2018. His Honour was of the view that given the “striking disagreement between the observations and opinions of Dr K and Dr H” (at [10]), it was necessary to leave a decision about whether the child live with the father until trial, and made orders reinstating the 14 February 2017 consent orders.
The contested trial was heard by his Honour over seven days in August 2018.
At the outset of the trial, the mother abandoned the orders sought in her Initiating Application and sought orders, essentially, for the continuation of the 14 February 2017 consent orders.
The ICL submitted that there should be a gradual increase in the child’s time with the father to an equal time arrangement. This also became the position adopted by the mother in final submissions.
On 21 September 2018, his Honour made final parenting orders and provided his reasons for judgment. His Honour was of the view that Dr H’s evidence “lacked balance and objectivity” and determined to afford it little weight (at [70]). On the other hand, his Honour found Dr K’s evidence to be “convincing” and accepted her evidence that it was in the child’s best interests to live with the father (at [97]).
The Appeal
There are now 10 grounds of appeal, and they can be grouped into the following categories:
Grounds 1 and 2
The primary judge erred at law and in the exercise of his discretion, in permitting the re-litigation of issues already determined, by the making of final consent orders in respect of which there was no new evidence, or previously unknown evidence. This denied the mother procedural fairness, and permitted an abuse of process.
Grounds 4, 5, 6 and 12
The primary judge made findings which were not open on the evidence.
Grounds 7, 8, 9 and 11
The primary judge placed insufficient weight on the family report of Ms Y, the reports and oral evidence of Dr H, and the report and oral evidence of Ms A, and placed undue weight upon a parenting capacity assessment report and the family report and oral evidence of Dr K.
Grounds 1 and 2
Ground 1
The [primary judge] erred at law and in the exercise of his discretion in permitting the re-litigation of issues that had already been the subject of litigation between the parties and judicially determined by the making of final Consent Orders upon the first day of trial before His Honour on 14 February 2017 and in respect of which issues there was no new evidence or previously unknown evidence.
Ground 2
In so doing the [primary judge] denied the [a]ppellant [m]other procedural fairness and permitted an abuse of process.
This issue arose during cross-examination of the mother by the father’s counsel on day three of the trial. The mother’s counsel objected to questions about the events in 2012 and 2013 on the basis that the rule in Rice and Asplund prevented cross-examination of a witness about events prior to a previous final order made by consent.
His Honour heard submissions about this issue and delivered an ex tempore judgment overruling the objection, finding first that “there are multiple new, significant and grave factors that require reconsideration of the parenting arrangements for this child”, and secondly, that given “the whole of the parenting arrangements have to be reconsidered”, there is “no limitation … on the ambit of the inquiry required, and a question such as the one that was objected to relating to injuries received by the child in 2012 appears to me to be permissible” (Jarmin & Elstone (No 4) [2018] FCCA 4003 at [14]).
As for the changed circumstances, his Honour essentially relied on the allegations of sexual abuse against the father which were later discontinued by the police, the two expert reports written by Dr H stating that the child reported that sexual abuse and was fearful of the father, and the family report of Dr K which was not only at complete odds with the reports of Dr H, but raised serious concerns about the ability of the mother to parent the child appropriately, to satisfy the rule in Rice and Asplund.
Although in Ground 1, the mother appears to challenge whether there was any new evidence, nothing was put about that in her written or oral submissions, but in any event, we are of the view that his Honour was correct in finding that the rule in Rice and Asplund had been satisfied. There was also the course of the litigation subsequent to the consent orders, and which was commenced by the mother filing an Initiating Application on 11 August 2017, seeking orders suspending the child’s time with the father. Indeed, the mother persisted in seeking these orders, right up until the beginning of the trial before his Honour. She then sought to revert to maintaining the consent orders made on 14 February 2017, but later altered her position again, and sought orders that varied those consent orders.
As for the claim by the mother that the rule in Rice and Asplund precluded evidence being adduced as to events occurring prior to the earlier order in question, no authority was cited for that proposition, and we reject it. Once the rule is satisfied, and as his Honour put it, “the whole of the parenting arrangements have to be reconsidered”, all evidence relevant to what is in the best interests of the child can, and should, be able to be presented. A consideration of what is in the child’s best interests (s 60CC of the Act) is not time limited or limited according to when previous consent orders may have been made.
In this context, the mother also attempted to suggest that the rule in Rice and Asplund is in effect a form of estoppel, preventing re-litigation of issues, save in prescribed circumstances. As such, the principles established in the cases of Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 and Henderson v Henderson (1843) 67 ER 313 apply. The latter prevents the
re-litigation of issues raised in previous proceedings and resolved by judgment (in this case by consent order), and the mother asserted that his Honour’s failure to apply that decision was an error of law.
However, we do not agree. Because what is in the best interests of the child is the paramount consideration (s 60CA of the Act), and because the Act specifically authorises reconsideration of parenting orders (s 65D), it is inappropriate to describe the rule in Rice and Asplund as an estoppel (Newling and Newling (1987) FLC 91-856 at 76,467 per Nygh J, Barblett and Fogarty JJ agreeing; Miller & Harrington (2008) FLC 93-383 at [98]–[100]); Elmi & Munro (2019) FLC 93-912).
Thus, there is no merit in Ground 1.
As for Ground 2, apart from linking it to the error asserted in Ground 1, there was nothing put in relation to it, in either the written or oral submissions of the mother. Plainly though, if Ground 1 has no merit, as we have found, then this ground has no merit.
Grounds 4, 5, 6 and 12
Ground 4
The [primary judge’s] finding at [45] that the [m]other’s claim that the injuries to [the child’s] right arm in early 2013 at Town O were the accidental result of rough play with another child or a fall was inconsistent with the opinion expressed by Dr E is not supported by the evidence before him and is against the weight of the evidence.
The basis of the assertion in this ground of appeal is that there was nothing in the report of Dr E from the Child Protection Service indicating that the incident at Town O on 13 February 2013 led to any injury at all.
However, that is not so. The incident at Town O is referred to on page 5 of the Child Protection Services report dated 30 April 2013. The presenting problem with the right arm is recorded as well as the medical attention received by the child, both at Town O and back in City T. It seems there was no fracture but there was swelling and pain, and the diagnosis was ligament damage, as reported by the mother. It is here also where the mother claimed that the injury suffered, and which led to the need to seek medical attention, was caused by rough play (also see Transcript 15 August 2018, p.166 lines 1–10).
Further, Dr E plainly referred to this in her opinion at the conclusion of her report. She said this (at page 5):
Forensic Medical Opinion
[The child] has experienced multiple episodes of cutaneous and bony trauma which are not accounted for by normal childhood activities of a toddler. He had nine separate areas of bony injury (four injuries to the left arm, two to the right arm, two to adjacent ribs and the left tibia) with a high likelihood of a repeat injury to the proximal right humerus within a few days of the original injury. … The injuries to the limbs would be accounted for by forceful pulling and twisting and are therefore considered to have been inflicted.
(Emphasis added)
This evidence provided the basis for his Honour’s finding at [45], and it was reasonably open on that evidence. That is all that is required, and an Appeal Court will not interfere with such a finding (Edwards v Noble (1971) 125 CLR 296; Gronow v Gronow (1979) 144 CLR 513 (“Gronow v Gronow”)).
There is no merit in this ground of appeal.
Ground 5
The [primary judge’s] finding at [50] that the [f]ather’s interrupted time with [the child] including between April 2017 and April 2018 was a consequence of the [m]other’s failure or refusal to take any active steps to support the [c]hild’s relationship with the [f]ather and the [p]aternal [f]amily is not supported by the evidence before him and is against the weight of the evidence before him.
His Honour said this at [50]:
I am satisfied, however, that the mother has not generally supported the child’s relationship with the father or the paternal family. The child spent little or no time with the father or the paternal family from early 2012 until about mid-2013 and then again from about July 2014 to February 2016. The child’s time with the father was again interrupted between April 2017 and April 2018 following baseless allegations of sexual abuse against the father and Ms C and an allegation of emotional abuse against the father arising from [the child’s] “meltdown” at school in November 2017 following the resumption of the child’s time with the father. I am satisfied, without ignoring other contributory factors, that these interruptions, amounting to about 3 ½ years in total (about half the child’s life), are significantly a consequence of the mother’s failure or refusal to take any active steps to support the child’s relationship with the father and the paternal family. This reflects her hostility and mistrust towards the father. This is exacerbated by the father’s mistrust of the mother and his extreme vigilance and suspicion in regard to the possibility of [the child] being injured in the mother’s care, either by her or the maternal grandmother.
In support of this ground of appeal, the mother asserted that the father’s time with the child was interrupted as a consequence of the child’s disclosure to Dr H on 7 April 2017 of alleged sexual abuse by the father’s partner. However, as can be seen, what his Honour in effect found was that there were a number of “contributory factors”, but the interruptions to the time the child spent with the father were “significantly a consequence of the mother’s failure or refusal to take any active steps to support the child’s relationship with the father and the paternal family”.
Thus, his Honour accepted that there were many factors, including the disclosures of sexual abuse, but found that the principal factor was the mother’s failure to support the relationship.
That finding was clearly reasonably open to his Honour on the evidence, including in particular the evidence of the mother’s hostility and mistrust towards the father, and it is not enough for an Appeal Court to infer that there may have been a different finding open to his Honour.
Ground 6
The [primary judge’s] finding at [121] that the [fa]ther “was able to calm [the child’s] distress and help him regulate his emotions during observation” is not based on and cannot be supported by or found in the evidence before him.
It is submitted that in her report, Dr K “does not record any distress during her observations”, and “does not report any evidence of [the] father calming [the child’s] distress or helping him to regulate his emotions during observation” (Mother’s Summary of Argument filed 18 April 2019, paragraph 18).
However, the mother overlooks first, those parts of the report recording how the child was actively engaged in a video game on the PlayStation, and the different reactions from him when each of the parties attempted to have him move to other activities in the room. Those parts of the report are as follows:
88.Prior to the observation, [the father] was advised that [the child] had become absorbed in a PlayStation game. [The father] was asked to attempt to encourage [the child] to explore the other activities in the room. This was suggested in order to understand how [the father] managed situations in which [the child] was likely to become upset or defiant.
89.The most noteworthy aspect of the observation between [the father] and [the child], was the father’s ability to emotionally attune to [the child] and [the child’s] positive responsiveness to the father.
90.When [the child] first saw [the father] he smiled and looked surprised. [The father] was observed to speak to [the child] in a kind and warm tone of voice. [The child] invited [the father] to play a game on the PlayStation with him. [The father] was observed smiling and appeared positively responsive to this suggestion. Both [the child] and [the father] were observed laughing, talking about the game and strategising their play. After a time, [the father] suggested that [the child] show him some of the other activities in the play room “and then we can come back to the game after”. [The child] responded “okay”. Both [the child] and [the father] explored the activities in the playroom amicably. Much laughter was observed as they played cards, engaged in a spontaneous “bus ride” using a bus shaped tent, and played numerous games of Skittles. [The father] followed [the child’s] cues and play ideas and responded appropriately. [The child] responded to [the father’s] play ideas, and a sense of camaraderie and mutual enjoyment was observed. [The child] was physically oriented toward [the father], he demonstrated appropriate eye contact, and smiled and laughed with [the father] throughout the observation. No overt or covert signs of fear were apparent in [the child’s] demeanour.
…
104.The most noteworthy aspect of this observation was [the mother’s] lack of emotional attunement to [the child]. This observation raised significant concerns about the quality of [the child’s] relationship with [the mother] and the impact of this on [the child’s] developing sense of self and on his emotional wellbeing.
105.As with [the father], prior to entering into the play space, [the mother] was advised that [the child] was engrossed in a PlayStation game. Nonetheless [the mother] was asked to attempt to encourage [the child] to explore the other activities in the room. This was suggested in order to understand how [the mother] managed situations which required her to take the lead, and in which [the child] may become defiant and non-co-operative.
106.When [the mother] entered into the play space, [the child] was playing on the PlayStation. It was positive that [the mother] noted that [the child] loved video games. It was noted that shortly after having made this comment [the mother] suggested to [the child] “how about we play something away from the TV?” [The child’s] reaction to this was instantaneous and defiant. He became angry and shouted “No” at [the mother]. [The mother] immediately responded by asking [the child] “how has that made you feel?” [The child] was clearly angry and responded to her through clenched teeth saying, “really, really sad and angry”. [The mother] responded by repeating his words “really, really sad and angry”. While her response to [the child] appeared to be an attempt to assist him to regulate his emotions it was not successful. Asking a child how they feel when it was obvious how they feel is not considered a helpful way to assist children to regulate their emotions. It does not demonstrate empathy, and instead can be a source of frustration and furthermore, conveys the message to the child their parent does not understand them.
107.[The mother] allowed [the child] to continue playing on the PlayStation. Over the course of the observation, [the mother] continued to try and encourage [the child] away from the PlayStation on several more occasions. Each time, [the child] responded angrily. Each time, [the mother] interrogated [the child] as to how he felt. Each time, [the child’s] feelings were demonstrably evident. Each time, [the mother] asked him why he felt the way he felt.
…
110.The lack of attunement and sensitivity to [the child] was of significant concern. [The mother] did not seem to understand how to attune or empathise with [the child] or how to help him regulate his anger. Instead her interactions with him seemed to stimulate his anger and frustration. [The mother] did not demonstrate that she could understand [the child’s] emotional experiences or assist him to regulate his emotions. [The mother’s] manner of interrogating [the child] about his feelings appeared to be a method that [the mother] had either read about and misinterpreted, or had seen or been instructed in. Whatever the case, this method is not useful in assisting [the child] to regulate his feelings. It rather appeared more provocative than helpful.
Secondly, although the mother referred to the cross-examination of Dr K by the counsel for the ICL (Transcript 17 August 2018, p.413 line 43 to p.414 line 14), the assertions by the mother overlook the evidence given by Dr K when cross-examined by the mother’s counsel about these issues. The relevant exchange is as follows:
[COUNSEL FOR THE MOTHER]: … [W]hat I’m putting to you is you don’t know what the reaction would have been had the mother entered the PlayStation area first and the father second, do you?
[DR K]: - - - Well, they were – they were – the – the – the environment in which both parents entered into with [the child] on the PlayStation was pretty similar, there’s no – there was no – [the child] was not distressed in either of the parents entering.
[COUNSEL FOR THE MOTHER]: Well - - - ?
[DR K]: - - - into the room. He became stressed at the minute that the mother said, “How about we play away – play something away from the TV?”, and, as soon as she said that, [the child] became distressed. So the distress happened after …
[COUNSEL FOR THE MOTHER]: Yes, but I’m – what I’m putting to you is the father wasn’t exposed to that level of distress. How do you know how he would have reacted? You don’t?
[DR K]: - - - Well, he wasn’t exposed to it because – because he interacted with [the child] in a way that didn’t elicit that response from [the child].
…
[COUNSEL FOR THE MOTHER]: And can I ask you this – that prior to either parent entering the room, wouldn’t it have been better to just simply turn the PlayStation off? Think about that?
[DR K]: ---I – I think I made reference to that before. I said that I spoke to [the child] and said, “We’re going to go into another room - to the observation room”, and as soon as I said “We need to go into another room” [the child] became extremely distressed. This is before any – not extremely distressed. Let me - let me say he ….. notes ….. he didn’t want to go into the other room. He got upset. He got upset, but he was responsive to reassurance and he was responsive to negotiation. So he got upset and I said, “That’s okay. All right. We won’t then. Are you feeling more comfortable in here?” and he – and, you know – and so we negotiated that he could stay where he was and that his parents would come up to him, and we wouldn’t move into another room.
(Transcript 17 August 2018, p.397 line 17 to p.398 line 8)
Thirdly, also overlooked is what his Honour said in his reasons as follows:
85.It was suggested that the child became distressed during the observation with the mother because the child refused to stop playing with a PlayStation and the mother was unable to divert the child’s attention into other activities. It was suggested that the circumstances of the child’s observation with the father were different and the observation of the child and the mother was skewed and inaccurate. Dr K rejected that suggestion. She said that she had not had any control over the child’s activities before the observation began. She said that in both cases the child had been playing with a PlayStation before the observation. She said that the child was in the crèche at the court before each observation. She said that she told each parent before the observation that [the child] was playing on a PlayStation. She said the environment facing each parent and the instructions given were the same.
86.The same subject was taken up in cross-examination by counsel for the independent children’s lawyer who suggested that the extreme distress exhibited by the child during the observation with the mother and maternal grandmother was merely coincidental or the result of the child being tired by the time of the observation with the mother, which followed the observation with the father.
87.Dr K rejected that suggestion. She said the skills demonstrated by the father during the observation were those that supported cooperation and interaction and underpinned sensitive parenting. She said that if [the child] became distressed the father was able to use these skills. In the observation with the mother she said that she could see the mother attempting to cope but that she lacked the skills to do so. She said the father demonstrated key parenting skills indicative of sensitive parenting. She said this encouraged secure attachment by the child. She said these skills were not demonstrated by the mother. Dr K also said that her assessment of these matters was not simply based on the observations but she gave the observations significant weight.
Although it is true that there was no distress exhibited by the child when with the father, and in respect of which the father was able to calm the child, and thus his Honour’s phraseology was not entirely accurate, it is plain that his Honour was referring to the comparative abilities of the parties to manage “situations in which [the child] was likely to become upset or defiant”.
There is no merit in this ground of appeal.
Ground 12
The [primary judge’s] finding at [85] that Dr K had rejected the suggestion that the circumstances of the [c]hild’s observation with the [f]ather were different and that the observation of the [c]hild of the [m]other was skewed and inaccurate is not supported by the evidence and is against the weight of the evidence.
The difficulty with this ground of appeal is that the written and oral submissions in support of it do not address the thrust of the ground.
Those submissions assert that the cross-examination of Dr K by the counsel for the ICL, reveals uncertainty by Dr K as to whether improvements in the child’s behaviour at school, and at home, alter her recommendations as to the living arrangements for the child.
In our view, that has no relevance to the ground of appeal.
His Honour’s “findings” at [85], if they can be described as such, were well open on the report and the oral evidence of Dr K that we have recorded earlier in these reasons. Indeed, or put another way, it was open to his Honour to accept the evidence of Dr K as recorded in [85] (see [97]).
Thus, this ground of appeal as framed has no merit.
For completeness, we are not persuaded that his Honour made any error based on Dr K being “uncertain” as to the effect of any improvements to the child’s behaviour. His Honour referred to that evidence at [89].
Grounds 7, 8, 9 and 11 – Weight Challenges
The difficulty in challenging a trial judge’s attribution of weight on appeal is well known. That difficulty is best described by Stephen J in Gronow v Gronow, at 519–520:
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 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 …
Ground 7
The [primary judge] placed insufficient weight on the family report of family consultant Ms Y of July 2016 and in particular her finding that “observations of [the child’s] interactions with his [m]other suggested a strong, loving and secure primary attachment”.
The report of Ms Y was prepared in July 2016, namely just under two years before the report of Dr K was provided to the Court. Ms Y was not available for cross-examination, and her report was tendered by consent by the ICL.
Dr K was cross-examined by the mother’s counsel as to Ms Y’s note of her “informal (curiously left out in the ground of appeal) observations”. Dr K made the point in responding that it is unknown what “informal” meant, and that needed to be clarified before she could comment on the content of the observations.
However, the issue is the weight his Honour attributed to Ms Y’s report. His Honour addressed that report in his reasons as follows:
92.The independent children’s lawyer tendered a family report prepared in July 2016 by Ms Y. Ms Y was not available for cross-examination but no objection was taken to the tender of the report. Counsel for the mother relied, in particular, on this sentence:
Observations of each party’s time with [the child] were made throughout the Assessment. Informal observations of [the child’s] interactions with his mother suggested a strong, loving and secure primary attachment.
93.It was put to Dr K that this observation was inconsistent with her observations. She agreed but said she did not understand what was meant by “informal observations”. She implied that she did not accept the accuracy of the observation.
94.Elsewhere in Ms Y’s report she acknowledged attachment issues: “It was undisputed that [the child] had attachment difficulties with his mother and this was being addressed with [the child’s] therapist”. She went on to say:
With respect to [the mother], it was most unfortunate that [the child] had been harmed in her care when an infant, however it did appear that since that time [the mother] had been committed to providing [the child] a safe and secure parenting environment, as well as attending to his psychological needs through regular and ongoing involvement in therapy.
95.To the extent that these passages suggest that [the child’s] “attachment difficulties” (in reality, insecure attachment) to his mother have resolved or that insecure attachment has been replaced by secure attachment I reject that suggestion.
96.It is noteworthy that Ms Y observed that, contrary to assertions, [the child] was observed to have fun with his father and the observations suggested a “strong, secure and meaningful” attachment to his father, Ms C and the paternal grandmother.
In [97] his Honour went on to accept the conclusion of Dr K and explained why.
It is not explained by the mother on what basis his Honour should have afforded more weight to the report of Ms Y, or why her observations should have been accepted by his Honour instead of the conclusion of Dr K.
No error of law or fact, or principle, has been established, and it has not been demonstrated that his Honour “was plainly wrong, his decision being no proper exercise of his judicial discretion”.
There is no merit in this ground of appeal.
Ground 8
The [primary judge] erred at law and in the exercise of his discretion in that he placed undue weight upon the contents of the parenting capacity assessment report dated 26 June 2013 in circumstances where:
8.1 At the time of trial the report was 5 years old.
8.2 Its authors were not called to give evidence.
8.3 Its authors had included in the report accounts of conversations had by them with others the veracity of which could not be assured.
8.4 [The child] had been placed back into the [m]other’s care in or about July 2014 following therapy and after consideration of a further report dated 4 July 2014 entitled P Family counselling service.
8.5 The P Family counselling service’s report dated 4 July 2014 was not in evidence.
There can be no doubt that the parenting capacity assessment report was highly relevant as background material, and as a ready reference to what the position was in 2013. Indeed, the report was tendered by consent, and no objection was taken to its tender by the mother.
Again, it is unclear how it is said that his Honour “placed undue weight upon the contents” of the report. By way of background, his Honour set out relevant detail from the assessments contained in the report (at [14]–[16]), and he referred to various findings throughout the balance of his reasons (for example at [23], [27], [40], [45], [56], [67], [97] and [120]).
However, it is plain that his Honour reached his decision on the evidence as to the current circumstances of the child and the parties. His Honour was able though to relate his findings in that regard back to many of the findings in the report, because they were virtually the same. For example, at [97] his Honour said this:
I accept the conclusions of Dr K. I found her to be a convincing witness. In my view, there is strong evidence that [the child’s] disturbed or insecure attachment to his mother results from deficiencies in her parenting capacity. Those deficiencies, in particular her lack of empathy and emotional attunement, contributed to her failure to protect the child from the assaults of Mr L discovered in 2013. This was identified in the PCA Report. The deficiencies in parenting capacity displayed during the observation by Dr K are strikingly similar to those identified and the prognosis in the PCA Report. I accept Dr K’s opinion that [the child’s] continued troubling behaviours at home and school are probably the result of a lack of sensitive parenting skills by the mother and resulting attachment difficulties for [the child]. Ms A’s report indicates that the mother has yet to fully achieve these skills, after almost 5 years of therapeutic intervention. I accept the validity of Dr K’s concern for [the child] if nothing changes.
Further, this appears at [120]:
The case is really about the capacity of the parents to provide for the needs of [the child], particularly his emotional, intellectual and developmental needs. I have concluded that the mother’s capacity to provide for these needs is limited. I have concluded that many of the factors identified in the PCA Report about the mother’s parenting capacity continue to exist and were apparent in the family assessment and in the mother’s evidence. These include ambivalence about the degree of her responsibility for [the child’s] abuse in 2013, emotional detachment from [the child], continued assertion that some of [the child’s] injuries identified as inflicted were accidental, a lack of insight and empathy for [the child’s] emotional experiences and a lack of insight into the attachment difficulties he has experienced and her role in this. The consequence of this appears to be a history of troubled and dysregulated behaviour by [the child]. This has been variously diagnosed as Oppositional Defiance Disorder and ADHD or both. Notwithstanding the relative brevity of the observation conducted for the purpose of the family report by Dr K I am satisfied that what she observed was not accidental or coincidental but a reflection of the real relationship between [the child] and his mother and, to an extent, the maternal grandparents. I accept that there is a proper basis for Dr K’s suspicion that these diagnoses are wrong and that the real source of [the child’s] behavioural difficulties lies in his relationship with his mother, particularly in attachment. I accept her view that if [the child] continues to live with his mother he is likely to be deprived of his best chance of healthy psychological and emotional development.
There is no merit in this ground of appeal.
Ground 9
The [primary judge] placed insufficient weight upon the evidence of Dr H as to her observations of the empathy and attachment between the [m]other and [the child] and insufficient weight upon the evidence of Ms A as to the [m]other’s insight and empathy in respect of [the child’s] requirements.
Dr H was the mother’s therapist, and saw the mother and the child together on approximately 30 occasions from October 2016 to when she gave her oral evidence at the trial. She had provided a number of reports to the mother along the way, and they were relied on by the mother.
His Honour addressed the evidence of Dr H at [64]–[72], and found as follows:
70.In summary, Dr H’s reports did not set out the factual basis on which her opinion was based and that factual basis was not proved by other evidence. I do not accept her opinion that [the child’s] behavioural difficulties are the result of “trauma” from exposure to family violence perpetrated by the father. Further, I find Dr H’s evidence generally lacked balance and objectivity. Overall, I give her evidence limited weight.
Apart from the issue of the weight to be attributed to the evidence, these findings were not challenged by the mother on appeal, and indeed, we can see no error by his Honour in making those findings.
Given that that is the case, we are again unable to see on what basis his Honour is said to have afforded “insufficient weight” to the observations of Dr H.
This aspect of the ground of appeal has no merit.
As to Ms A, she is a psychologist who treated the mother over a number of years, and provided a report, but she never observed the mother with the child, and nor did she interview the child. She also conceded in her oral evidence that she relied on what the mother told her as the source of her comments (Transcript 16 August 2018, p.286 line 3 to p.287 line 7).
His Honour addressed Ms A’s report and her oral evidence at [60]–[63] and concluded as follows:
63.My impression of the evidence of Ms A was that, notwithstanding therapeutic interventions stretching over many years intended to strengthen the relationship between the child and his mother, the mother was still unable to assist the child in a fundamental aspect of parental capacity, that is, assisting the child to regulate his emotions or, in other words, promoting secure attachment. In my view, this observation supported a central aspect of Dr K’s opinion that despite years of intervention the mother was still unable to demonstrate some fundamental parenting skills. This is dealt with further below.
Once more, it is not explained how his Honour gave “insufficient weight” to the evidence of Ms A. In our view, his Honour dealt with that evidence appropriately, and indeed found that in one important respect, it supported the opinion of Dr K.
There is no error here by his Honour and this aspect of the ground is also without merit.
Ground 11
The [primary judge] placed undue weight upon the family report of Dr K and upon her evidence in circumstances where:
11.1 Her Report and recommendations were based on the unfounded underlying assumption that the interruption to the father’s time from April 2017 to April 2018 was a result of a deliberate attempt by the [m]other to disrupt the [f]ather’s relationship with the [c]hild when such an assumption was not supported by the evidence before His Honour and was against the weight of the evidence.
11.2 Until the giving of her evidence Dr K was unaware of allegations made by [the child] that the mother had “touched his willy”.
11.3 Until the giving of her evidence Dr K was unaware of any difficulties in [the child’s] behaviour at the father’s home.
11.4 Dr K had failed to question the [f]ather about his questioning of [the child] as to sexual abuse by the [m]other.
11.5 Dr K had regarded allegations of sexual abuse made by [the child] of Ms C in the presence of Ms A as a deliberate attempt by the [m]other to disrupt the [f]ather’s relationship with the [c]hild.
11.6 She opined that she saw no prospect of [the child] having the benefit of a relationship with his [f]ather in the [m]other’s care when her own observations led her to find that not only was there such a relationship but that it was “warm and spontaneously affectionate”.
11.7 Had opined that the [m]other’s relationship with [the child] was the cause of his disruptive behaviour at school in November 2017 but had given the mother no credit for the improvement in his behaviour at school since that time.
11.8 Paid no attention to the relationship between [the child] and C.
In support of this ground of appeal, all the mother does is attempt to identify areas where allegedly Dr K got the facts wrong, where she failed to take account of certain circumstances, and where she was unaware of certain events until the trial.
Some of these criticisms are bound up in earlier grounds of appeal, and which we have found are not warranted (for example in Ground 5).
Further, some of the facts that his Honour allegedly got wrong were clearly minor, and could have no or little relevant effect on his Honour’s findings and recommendations; for example, to whom the child first made an allegation of sexual abuse.
None of these criticisms of Dr K’s report and evidence provide a basis for there to be any doubt about the findings and recommendations made by Dr K. Further, there is no challenge here to the extensive and in depth reasons provided by his Honour in accepting those findings, and the recommendations of Dr K, and what the mother asserted as a basis for submitting that undue weight was given to Dr K’s report and oral evidence, goes nowhere near to demonstrating that his Honour erred in that regard. We refer again to his Honour’s reasons at [73]–[97], and highlight what his Honour said at [97].
Once more, the mother has failed to demonstrate that his Honour was “plainly wrong, his decision being no proper exercise of his judicial discretion”, and this ground has no merit.
Conclusion
Having found no merit in any of the grounds of appeal, the appeal must be dismissed.
Costs
In the event that the appeal was dismissed, neither the father nor the ICL sought an order for costs. Thus, there will be no order as to costs.
I certify that the preceding one-hundred and four (104) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Aldridge & Kent JJ) delivered on 5 March 2020.
Associate:
Date: 5 March 2020
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