Jasapas & Johns (No. 2)
[2020] FamCAFC 203
•17 August 2020
FAMILY COURT OF AUSTRALIA
| JASAPAS & JOHNS (NO. 2) | [2020] FamCAFC 203 |
| FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from the second set of final parenting orders made in these proceedings – Where the primary judge’s orders provided for the children to be transferred from the mother’s care to live with the father and spend supervised time with the mother following a moratorium of six months – Where the mother’s case was based on allegations that the father physically and sexually abused the children – Where the primary judge found that the father presented no unacceptable risk to the children – Where the primary judge found the mother presented an unacceptable risk of exposing the children to emotional harm – Where the primary judge found the mother is unable to let go of her beliefs that the father has physically and sexually abused the children – Where the expert evidence supported the primary judge’s findings – Where the mother contends the primary judge erred in failing to consider the rule in Rice and Asplund (1979) FLC 90-725 – Where the rule in Rice and Asplund (1979) FLC 90-725 was not raised by any party until the mother’s closing submissions – Where it could not sensibly be suggested that there had not been a sufficient or material change in circumstances as to warrant reconsideration of parenting orders – Apprehended bias – Where the primary judge changed his time of delivery of judgment to a time when the children were spending supervised time with the father – Where that change was consequent upon correspondence received from the ICL setting out concerns raised by the contact supervisor – Where such correspondence was appropriate given the exceptional circumstances of the case – Where, in any event, the primary judge had already decided the case such that no apprehension of bias as to the question to be decided could arise – Where the remainder of the mother’s grounds of appeal have no merit – Appeal dismissed – No order as to costs. |
| Family Law Act 1975 (Cth) Pt VII, s 68L |
| Ahmad and Ahmad (1979) FLC 90-633; [1979] FamCA 20 Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 Argos Pty Ltd v Minister for the Environment and Sustainable Development (2014) 254 CLR 394; [2014] HCA 50 Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Charisteas & Charisteas and Ors (2020) FLC 93-971; [2020] FamCAFC 162 De Winter and De Winter (1979) FLC 90-605 Dixon v Commonwealth (1981) 61 ALR 173 Elmi & Munro (2019) FLC 93-912; [2019] FamCAFC 138 Ex parte Lewin; Re Ward [1964] NSWR 446 Garrihy v Wyatt (1975) 10 SASR 476 Genesalio & Genesalio [2020] FamCAFC 113 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Helbig & Rowe and Ors(No. 2) (2014) FLC 93-625; [2014] FamCAFC 241 Hillier & Wootton (2013) FLC 93-526; [2013] FamCAFC 11 F and N (1987) FLC 91-813; [1987] FamCA 40 Johns & Jasapas [2016] FamCA 471 Kanda v Government of Malaya (1962) AC 322 Kioa v West (1985) 159 CLR 550; [1985] HCA 81 KWLD v Western Australia [2020] WASCA 94 Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17 Malloy and Ors & Stopford Malloy (2017) FLC 93-804; [2017] FamCAFC 204 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Miller & Harrington (2008) FLC 93-383; [2008] FamCAFC 150 Newling and Newling (1987) FLC 91-856; [1987] FamCA 21 The King v Justices of Bodmin; Ex parte McEwen (1947) KB 321 Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342; [1986] HCA 39 Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372; [2002] HCA 16 The Queen v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] V.R. 122 Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84 Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 |
| APPELLANT: | Ms Jasapas |
| RESPONDENT: | Mr Johns |
| INDEPENDENT CHILDREN’S LAWYER: | Barbara Fox, Solicitor |
| FILE NUMBER: | BRC | 5081 | of | 2014 |
| APPEAL NUMBER: | NOA | 22 | of | 2020 |
| DATE DELIVERED: | 17 August 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Aldridge, Kent & Watts JJ (via video link) |
| HEARING DATE: | 31 July 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 February 2020 |
| LOWER COURT MNC: | [2020] FamCA 214 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr McGregor |
| SOLICITOR FOR THE APPELLANT: | Mitchell Lawyers |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Hodges |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Barbara Fox, Solicitor |
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 Jasapas & Johns (No. 2) 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 BRISBANE |
Appeal Number: NOA 22 of 2020
File Number: BRC 5081 of 2014
| Ms Jasapas |
Appellant
And
| Mr Johns |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Following a trial of parenting proceedings[i] concerning the children, B born in 2010 and C born in 2013 (“the children”), between their parents and the Independent Children’s Lawyer appointed[ii] to independently represent the children’s interests in the proceedings (“the ICL”), the primary judge made parenting orders which relevantly provide for:
a)The children to live with the father;
b)The father to have sole parental responsibility for the children’s long term welfare, care and development;
c)There be a six month moratorium on the children spending time or communicating with the mother, after which the mother is to have supervised time only until both parties agree that it is appropriate for the mother to have unsupervised time; and
d)Injunctions preventing the mother and her parents from attempting to contact the children other than in accordance with the orders without the father’s permission.
Of critical importance in approaching the mother’s challenges on appeal to those orders is that, taken from the primary judge’s reasons for judgment, the orders were founded upon the following central findings, none of which are challenged on appeal:
a)The father has not physically or sexually abused the children and there is no unacceptable risk of him doing so in future (at [185]);
b)The mother is unable to let go of her beliefs that the father has physically and sexually abused the children, or to objectively evaluate evidence and to shield the children “from the emotional harm being caused to them by the continual raising of allegations of abuse that has not happened” (at [186] and [191]);
c)Orders for the children to live with the mother and to spend regular unsupervised time with the father will result in a continuation and probable worsening of the allegations causing the children emotional harm (at [158] and [193]).
Each of the father, who was self-represented, and the ICL oppose the appeal.
In the context of these central findings which are unchallenged on appeal, and for the reasons which follow, the appeal must be dismissed.
Brief background
The father was born in 1975 and is 45 years old. The mother was born in 1983 and is 37 years old. The parties met and commenced their relationship in May 2003. As noted, they have two children, B born in 2010 (aged nine) and C born in 2013 (aged six).
The parties separated in March 2014 when the mother discovered the father had been engaging in a hobby which saw him photograph attractive, young female models.
The mother also discovered that the father had been regularly accessing internet pornography and had an undisclosed bank account into which some of his wage was deposited.
Parenting proceedings between the parties were commenced by the father in the Federal Circuit Court of Australia (“the FCC”) on 11 June 2014.
In about mid-2015, the mother alleged that the children began making disclosures of physical abuse whilst in the father’s care, and sexual abuse of B by the father. In consequence, on 1 July 2015, the mother sought the suspension of the children spending unsupervised time with the father and on 14 July 2015, a trial judge in the FCC ordered that the father’s time with the children be supervised at a Contact Centre.
The mother’s allegations were investigated by the Department of Communities, Child Safety and Disability Services (“the Department”) and the child B was interviewed by the police. No disclosures were made and after the matter had been transferred to the Family Court of Australia, on 21 September 2015, a Magellan Report prepared by the Department concluded that there was no information indicating sexual or other abuse of B by the father, or other indicators of sexual abuse.
The first trial of the proceedings was heard by Tree J over three days in May 2016. In that trial, the mother contended that the father ought not have unsupervised time, with the mother arguing that the children spending unsupervised time with him presented an unacceptable risk of sexual abuse and physical harm to them. The mother also mounted a case that the paternal grandmother was complicit in the sexual abuse allegedly perpetrated by the father.
Tree J was not satisfied that the father was an unacceptable risk of harm to the children, despite those allegations, being central to the case mounted by the mother, that the father sexually and physically abused the children.
Tree J made final parenting orders and delivered reasons for those orders on 13 June 2016 (Johns & Jasapas [2016] FamCA 471). The orders made by Tree J provided for:
a)The parents to have equal shared parental responsibility for the children;
b)The children to live with the mother; and
c)The children to spend time with the father gradually increasing to being from Thursday to Monday in week 1 and overnight Thursday to Friday in week 2 of the fortnightly cycle commencing in February 2019.
The orders made by Tree J included an order requiring both children to undertake a course of “protective behaviour counselling” with a social worker, Ms E. Only the child B was taken to such counselling in September 2016. Prior to that visit, the mother had told Ms E of disclosures being made by the child, B. Ms E had confirmed that if the child made disclosures to her, she was obliged to make a report to the Department. In visits to Ms E in 2016, the child B made multiple disclosures to Ms E which were the subject of reports to the Department. On one visit, the child, without prompting, launched into disclosures as soon as he entered Ms E’s office about the father taking photos of the child naked (this was, on the mother’s evidence, a week after the child made similar disclosures to the mother).
Thus, within six months of the orders made by Tree J, the Queensland Police Service and the Department were again involved in investigating allegations that the father was sexually abusing the children and the mother was withholding the children and not allowing them to spend any time with the father at all.
On 20 March 2017, the mother filed an application instituting further parenting proceedings. Whilst that application was the subject of subsequent amendments, it is important to note, for reasons later discussed, that it was the mother who instituted the parenting proceedings which progressed to the trial before the primary judge.
Indeed, the child B made and continued to make various and serious disclosures. These disclosures included that the father would insert his finger in the child’s anus and urethra; would masturbate the child; and would take photographs of both children naked. These allegations were made, not only to the mother, but also subsequently to police, psychologists, psychiatrists, counsellors, teachers and workers at the Contact Centre.
The Department initially concluded that the claims were “substantiated”. However, after an inter-departmental review, that conclusion was changed to “unsubstantiated” but with emotional harm being “substantiated” but not specifically identifying who perpetrated such harm.
Likewise, a police investigation was pursued. The child B was interviewed and, subsequently, a search warrant was executed at the father’s home. The police were particularly searching for a camera described by the child as one used to take photographs of the children naked. During and after the search, the police looked through every device and computer hard drive located in the father’s home but found no inappropriate photographs of the children or indeed any photographs of any naked children. No camera was located. Consequently, the police investigation was concluded as there being “insufficient evidence to bring charges”.
Because part of the mother’s allegations was that the paternal grandmother was aware of the abuse and acquiesced to its occurrence, the paternal grandmother was involved in all investigations and interviewed by the Department, the police and Court appointed experts for the purpose of the proceedings.
Approach of the primary judge
At the trial before the primary judge, the mother sought orders for no time between the children and the father. The father and the ICL sought orders in a vein similar to those ultimately made by the primary judge. That is, each of the father and the ICL sought orders for the children to live with the father, for there to be a moratorium of time and communication between the children and the mother and thereafter that the children only spend supervised time with the mother.
Much of the primary judge’s reasons for judgment are devoted to the allegations of sexual abuse and analysis of their veracity in conjunction with extensive consideration of expert evidence from a number of experts, including Ms E, a Court appointed psychiatrist Dr M, a family report writer Ms J, a social worker Ms F and an expert psychiatrist Dr Q.
The primary judge’s discussion of the evidence of each expert is extensive, as is his Honour’s analysis of that evidence and the underlying issues. We have earlier set out the central findings founding the orders. In addition, it can be seen that in summary and paraphrased form, the primary judge concluded that:
a)Ms E was made aware of fresh allegations made by the children prior to the commencement of counselling following the orders made by Tree J;
b)The conversations between the mother and the child about sexual abuse increased in the time leading up to the child’s counselling with Ms E and that the mother would have expected the child to make those disclosures to Ms E and, indeed, wanted Ms E to report such disclosures to the Department (as Ms E did, being the first report to the Department, post the orders made by Tree J and which reports led to the aforementioned investigations);
c)The mother, without the requisite skills, has likely questioned the child at length about these issues with such questioning likely to have influenced the child’s answers and conduct;
d)There is no medical evidence substantiating sexual abuse;
e)The police investigation (and search warrant) yielded no evidence of abuse or a predilection for child exploitation material held by the father. Likewise, an internal investigation launched at the behest of a complaint made by the mother to the father’s workplace found no wrong doing and no reason for disciplinary action;
f)The Department found no evidence of abuse to substantiate the claims;
g)The primary judge’s observation of the parties and the maternal grandparents lent nothing to support the mother’s case that the father had, over a prolonged period, with the knowledge and acquiescence of his parents, sexually and physically abused his own children;
h)The child, B has shown himself to have a fertile imagination and that, in combination with the influence from the mother and the maternal grandparents, led to his disclosures. Notably, the child’s disclosures would change over a short period of time and the child was observed on multiple occasions showing no sign of anxiety, fear or apprehension when spending time with the father;
i)To leave the children with the mother or, indeed, to allow any communication or time between the mother and the children whilst the children transition to the father’s care would result in further exposure to emotional and psychological harm; and
j)The Court accepted the expert evidence that if it was satisfied that the father did not present an unacceptable risk of harm and that the allegation and disclosures were false and fuelled by the mother, there ought be a moratorium on the mother’s time with the children for six months. Thereafter, supervised time only until such a time as the father agrees unsupervised time is appropriate. That order being made after the Court was satisfied that the father is capable of objectively assessing the appropriateness of such time and would not be motivated to act out of spite or malice.
The mother’s challenges on appeal
On 24 June 2020, the mother filed an Application in an Appeal seeking the following orders:
1.That the [mother] have leave to file and serve an Amended Notice of Appeal including amended grounds of appeal; an amended summary of argument which may be 15 pages in length, and an amended list of authorities.
2.Such orders that may be necessary to enable the [father] and the independent children’s lawyer to file documents in response thereto.
The mother’s solicitor filed an affidavit in support of that application in which he deposed to the reasons for the Second Amended Notice of Appeal and Amended Summary of Argument being that counsel’s advice regarding arguments to be made on appeal was not received until 22 June 2020.
Whilst the affidavit in support of the application explains the proposed amendments to the grounds of appeal, it is silent as to the substantial amendments to the orders sought on appeal. In her Notice of Appeal filed on 17 March 2020, the mother sought orders in the appeal including an order that she have sole parental responsibility for the children and, importantly, an order that “[t]he chidlren [sic] shall not spend any time with the father”. In contrast, in her Second Amended Notice of Appeal, the mother seeks orders including orders for the father to spend unsupervised time with the children for five nights each fortnight and for one half of each school holiday period. Such a profound change went unexplained and moreover is relevant to consideration of the question as to whether the mother in fact supports the children’s relationship with the father.
Whilst counsel for the ICL did not press objections to the Second Amended Notice of Appeal, counsel for the ICL likewise submitted that the unexplained change referred to was noteworthy for the reasons identified. Counsel for the ICL did not maintain objection to the mother being permitted to rely upon an Amended Summary of Argument on the basis that he was in a position to deal with the relevant amendments.
For his part, the father raised objection to the mother being permitted to rely upon the amended documents. We resolved to permit the amended documents on the basis that the father, who was self-represented, had the opportunity to hear the submissions of the ICL first, and that if necessary, the father would be permitted an opportunity to file further written submissions subsequent to the hearing of the appeal. In the event, the father was satisfied that it was not necessary for any further written submissions to be filed by him.
Ground 1A
(i) The [primary] judge erred in receiving and entering into communications with the Independent Children’s Lawyer conveying to the [primary] Judge information from a witness in the trial otherwise than in the presence of, or with the prior knowledge and consent of, the [mother]; and
(ii) In so doing, the [primary] Judge undermined the integrity of the trial and created a reasonable apprehension that the [primary] Judge did not bring an impartial and unprejudiced mind to the resolution of the dispute.
The factual context for this challenge is set out in some detail in the reasons for judgment of the primary judge. Having recorded all of his central findings and conclusions as to what orders were to be made in 209 preceding paragraphs, there is then a heading in the reasons “Transition Arrangements” following which the primary judge sets out the relevant factual context which is the focus of this challenge. It is useful that this passage of the reasons be set out in full as follows:
Transition Arrangements
210.I have been particularly concerned about this aspect of this matter. I have always been concerned about the likely reaction of the mother and her parents to Orders requiring the children to be moved to the father’s full-time care. Those concerns have arisen out of my consideration of the probability that they would be unable to shield the children from the emotional trauma likely to arise immediately on learning of the outcome and that the children would suffer such emotional trauma, even if I ordered the mother and the maternal grandparents not to tell the children or discuss it with them. I had considered making an order, prior to delivering judgment, for the mother to bring the children in to the Child Dispute Services section of the Court and for them to remain there in the care of a Family Consultant whilst I delivered judgment, after which the children could be delivered into the care of the father. I decided against that because I was satisfied that the mother would quickly realise what was going to be happening, with the children still likely to be exposed to the same emotional trauma.
211.On Tuesday, 18 February 2020, all three parties were notified of my intention to deliver judgment at 10:00 am on Thursday, 20 February 2020. At 9:04 am on Wednesday, 19 February 2020, my Administrative Associate received an email from the ICL. The ICL did not copy the mother or the father into that email. After reading the contents of that email, her decision not to copy them in can be seen to have been a sensible one. The email was brought to my attention by my Associate. I have made it an exhibit in the trial, so that it forms part of the record of the trial proceedings. It reads as follows:
Dear Associate,
As His Honour will be aware Ms Fox is the Independent Children’s Lawyer in relation to this matter.
We note that His Honour is delivering Judgment tomorrow and that no appearance is required by the Parties.
Please see below a copy of an email received yesterday – 18 February at 7.23pm from [Ms R] who is supervising the Children’s time with the Father. The email from [Ms R] outlines her concerns and no further comment will be made by the Independent Children’s Lawyer.
However, given [Ms R’s] concerns the Independent Children’s Lawyer considers it may be appropriate to provide a copy of this email to His Honour.
A copy of this email has not been cc’ed to either party.
Yours faithfully
[The ICL]
The email from [Ms R] said this:
I have just been told that judgement is on Thursday at 10am and just via email. I know this is out of your control but as I said months ago I am very concerned for the children if the reversal is granted and they are in mum’s care at this time. It doesn’t sound like it has been advised they are with you or a court consultant for the reading of the orders and for a potential handover. Mum is very confident this is going her way and the enmeshed relationship with the grandparents is a huge concern to me, what they would say to the children and if they would even follow a reversal order.
Anyways, I just had to send this as I would hate something to happen that could have been prevented.
Thanks,
(The Supervisor)
212.I gave consideration to that information and what the appropriate response should be. I asked my Administrative Associate to write to the ICL only to ask her if she could advise of the next scheduled time for the father to have supervised time with the children at the commercial supervisor’s premises. The email my Associate sent to the ICL and the ICL’s response were as follows:
[ICL]
In light of your email below [the one quoted above], his Honour has asked if you could please advise of the next scheduled appointment time for the father to have supervised time with the children at [L Group], with a view to possibly delaying the delivery of Judgment until that time.
Regards,
[Associate]
Dear Associate,
[The Supervisor] has advised that the next Scheduled Supervision is Monday 24th February 4pm – 6pm.
Yours faithfully,
[ICL]
213.Consequently, I determined to postpone the delivery of this judgment so that it could be delivered during the scheduled supervision on Monday, 24 February after the children were in the supervised care of the father and before they were returned to the mother at the end of that visit. I determined not to notify the mother and the father of that particular decision but rather to have my Associate write to all three parties and advise them that delivery of the judgment was postponed to a later date of which they would be advised. That email said this:
I refer to my email below. [The initial email advising the parties that judgment was to be delivered on Thursday, 20 February 2020.]
Due to unforeseen circumstances, the delivery of judgment will be adjourned to another date and time in the near future. You will be advised when the matter will be re-listed.
Regards
[Associate]
214.I then had my Associate write solely to the ICL again in the following terms:-
Dear [ICL],
You would have seen notice that delivery of judgment has been postponed.
Please be advised that the Court will be contacting you next Monday at around 4:30 pm to ask if you can confirm that the children are in the supervised care of the father at that time.
Regards,
[Associate]
215.All of the above emails are now exhibits in the trial.
216.At 4:30 pm today, I directed my Associate to telephone the ICL and to obtain confirmation that the children were currently in the supervised care of the father as the Court had been informed was going to be the case between 4:00 pm and 6:00 pm today.
217.My Associate did that and then informed me that the ICL had confirmed that they were.
218.I will now be immediately ordering that the father may take them home in his unsupervised care this afternoon as soon as he and the supervisor are made aware of the delivery of the judgment and the making of the Orders. I will also make an Order restraining the mother and the maternal grandparents from attending at the premises of the supervisor or from contacting or attempting to make any contact with the supervisor before the expiration of five calendar months from the date of the Orders. That will be to protect the supervisor from any adverse consequences of the email that she forwarded to the ICL set out above. I will direct, by order, the ICL to inform the mother by whatever means of communication she considers appropriate immediately the ICL is aware that the children have been taken home in the unsupervised care of the father after the delivery of this judgment.
219.I am quite satisfied that this transition process will best shield the children from the emotionally traumatic consequences that would likely occur if they were in the mother’s care at the time the mother learns of the ordered outcome of these proceedings. I fully appreciate the emotional trauma that the mother will experience on learning of the outcome of these proceedings and can only urge her to take up the therapeutic counselling that the expert witnesses all considered she needs as soon as she possibly can.
220.I also appreciate that the transition arrangements that my Orders will be putting in place will likely result in some emotional difficulties for the children, in any event. I have already observed my acceptance of this fact in these reasons. I will make Order that will also require the father to arrange and facilitate therapeutic counselling and assistance for himself and the children to help them cope with the inevitable challenges that will present. My Orders will provide that he may expressly take advice from the ICL as to referrals and recommendations for this purpose and for the ICL to seek out advice herself in this respect, if she considers it appropriate, from the professionals who have been engaged in the case to this time – [Ms J, Dr M, Dr T and Ms K]. For this purpose particularly and in the event of any other unforeseen matters, the ICL shall not be discharged until a date that is one year from the date of this judgment. That accords with the submission of the ICL herself and I consider it appropriate in the circumstances of this case.
(Emphasis added)
The mother cites numerous authorities[iii] for the central principle that a judge should not hear evidence or receive representations from one party to proceedings behind the back of another. Expressed another way, that there should be no communication or association between the judge and one of the parties to proceedings (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party.
By Ground 1A, the mother contends that the primary judge undermined the integrity of the trial and created a reasonable apprehension of bias by receiving and acting upon the subject communications from the ICL.
Whilst the central principle emanating from the authorities is not open to doubt, there are two fundamental reasons for rejecting the mother’s contention that application of that principle to the circumstances here gives rise to an apprehension of bias on the part of the primary judge, such that it invalidates the integrity of the trial and thus the determination of the primary judge.
First, as [210] of the reasons for judgment makes plain, the primary judge had already reached concluded findings and the conclusion, in advance of the subject communication, of the need for there to be a transition “requiring the children to be moved to the father’s full-time care”. The primary judge there records that he already held concerns “about the likely reaction of the mother and her parents” with those concerns arising from “the probability that they would be unable to shield the children from the emotional trauma likely to arise immediately on learning of the outcome and that the children would suffer such emotional trauma”. The primary judge expressed consideration about making an order in advance of delivering judgment for the mother to bring the children to the Child Dispute Services section of the Court and for them to remain there whilst his Honour delivered judgment. That likewise reflects that his Honour had already reached conclusions about the orders to be made, in advance of receiving any of the communication referred to.
The accepted test for an apprehension of bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide” (see, for example, Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [31]).
That test is directed to the “resolution of the question the judge is required to decide” not one that is already decided but not yet delivered. As paragraph [210] of the reasons for judgment makes clear, the primary judge had already decided the question before receiving any communication.
Second, even where the principle applies, the principle itself recognises “exceptional circumstances” or “exceptional cases”. In Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342, each of Gibbs CJ (at 346) and Mason J (at 350-351) in discussing the principle, cited with approval the following statement of McInerney J in Reg. v Magistrates’ Court at Lilydale; Ex parte Ciccone[iv] as follows:
The sound instinct of the legal profession – judges and practitioners alike – has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisors or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party…
(Emphasis added)
To similar effect is the reference by the High Court of Australia in Livesey v New South Wales Bar Association (1983) 151 CLR 288 at [18] to “[n]ecessity and the extraordinary case”, citing with approval Ex parte Lewin; Re Ward [1964] NSWR 446 at 447.
We have no hesitation in concluding that here, even if the principle was engaged, there existed exceptional circumstances or the case was exceptional. The primary judge received cogent information of potential risk to the welfare of the children if the mother learned of the outcome of the case whilst the children were in her care. It was thus entirely legitimate for the primary judge to adopt the means which his Honour did to deliver judgment at a time and in a manner to minimise or avoid any such risk being realised.
There is no merit in Ground 1A.
Grounds 1, 2.1, 2.2, 2.3, 2.4 and 2.7
The [primary] Judge erred at law and in the exercise of his discretion by failing to take into account the findings of fact made by the Honourable Justice Tree at the final hearing in respect of parenting in May 2016 (as set out in his Honour's judgment dated 13 June 2016) and, in particular, that, notwithstanding those findings, the Honourable Justice Tree ordered that the children reside with the [mother]
That the [primary] Judge erred at law and in the exercise of his discretion by:
2.1 Failing to consider the submission made by the [mother] at trial that he should determine whether the “rule” in Rice [and] Asplund (1979) FLC 90-[725] should apply
2.2 Failed to consider that the actions of the [mother] were not a continuation of the conduct found by the Honourable Justice Tree to have been engaged in by the mother
2.3 Failed to appreciate that the words and actions by the child [B] were consistent with the behaviours he had exhibited prior to the decision of the Honourable Justice Tree and that it was not likely that those behaviours would immediately cease upon the Order being made by the Honourable Justice Tree
2.4 Failed to recognise or consider that the [mother] had, in fact, changed the behaviour for which she was criticised by the Honourable Justice Tree in his Judgment AND that she had facilitated the relationship between the children and the [father] even in the face of the words and conduct of the child [B] – UNTIL “directed” not to make the children available to the father by the Queensland Police Service and then the Department of Community Services under threat that the Department would take steps to remove the children
2.7 In interpreting the mother's failure to react to the children's disclosures made to her after the Judgment delivered by the Honourable Justice Tree as ‘interesting omissions’ and ‘difficult to consider’ (see para 35) as tantamount to a failure to properly or fully disclose what had really happened – in circumstances where the [mother] had been roundly criticised for reacting to or acting on such disclosures – which criticisms were highlighted by the [primary] Judge
These grounds of appeal were argued together given the focus in each upon the findings of Tree J in his Honour’s 2016 judgment, and we will take the same approach.
The first point of emphasis is that, as earlier referred to, it was the mother who initiated further parenting proceedings, subsequent to the orders made by Tree J in 2016, seeking that those orders be reconsidered and varied. The father joined issue, likewise seeking variation of those orders. At no point of the proceedings, from their institution to progressing through interlocutory stages to trial, did either party raise the principle known as the rule in Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”) as a preliminary issue to be resolved as to whether the Court ought entertain parenting proceedings.
It does not lie in the mouth of a party who institutes parenting proceedings in these circumstances to voice complaints, after the Court has assumed jurisdiction to entertain and determine such proceedings, about the Court having done so. Implicit in the institution and maintenance of parenting proceedings is the contention that it is in the children’s best interests that the Court assume jurisdiction to determine them on the foundation that the operative parenting orders are not serving the children’s best interests.
At the commencement of the trial, the mother read and relied on her Case Outline and a List of Documents (Transcript 1 July 2019, p.2 lines 21–25). The first document sought to be relied on is the mother’s “2nd Amended Initiating Application filed 21 May 2018”. Importantly, within that Initiating Application, the mother seeks final parenting orders as deemed appropriate by the Court but explicitly seeks the discharge of any order providing for the father or paternal grandmother to spend time with the children. Importantly, the mother never discontinued her application for orders which would see the father spend no time with the children.
The reference in Ground 2.1 to “the submission made by the [mother] at trial that his Honour should determine whether the ‘rule’ in Rice [and] Asplund (1979) FLC 90-[725] should apply” is apt to mislead, both as to the timing of the subject submission and as to its actual content and effect. There was no submission at the trial that the rule in Rice and Asplund operated as a preliminary issue to be determined before a trial was embarked upon. Further, the submission was made at the commencement of counsel’s closing submissions and did not in fact amount to a submission that the rule applied, with the effect that the orders of Tree J ought not be varied, or that the mother’s application ought not be entertained.
At the very commencement of the mother’s counsel’s closing submissions, the following exchanges occurred:
MR McGREGOR: Thank you, your Honour. I want to start my submissions by looking at the judgment of Tree J in brief because, with respect, Tree J dealt with the issues between the parties - - -
HIS HONOUR: Yes.
MR McGREGOR: - - - up until that time.
HIS HONOUR: Yes. All right. I figured you would start here, because you started the trial there.
MR McGREGOR: That’s right. Now - - -
HIS HONOUR: What are you telling me I’m locked in to that I can’t – that I can’t do, other than what Tree J did?
MR McGREGOR: No. I’m not telling you that yet. I might. But I want to start - - -
HIS HONOUR: Well, that’s what I’m interested to hear.
MR McGREGOR: - - - there because there is a factual base there that we need to look at to see what might have changed. Because this order is still – was still in force, or is still in force, but for some interim orders that have been made and there really is a principle of Rice [and] Asplund which is involved in this case, in my respectful submission. Now - - -
HIS HONOUR: Pardon?
MR McGREGOR: There’s a principle of Rice [and] Asplund involved in this case.
HIS HONOUR: Yes.
MR McGREGOR: Yes.
HIS HONOUR: Yes. Well, you will have to explain that to me because - - -
MR McGREGOR: All right.
HIS HONOUR: - - - forgive me, but I don’t understand - - -
MR McGREGOR: That’s all right.
HIS HONOUR: - - - and I’m not with you.
MR McGREGOR: Can I just make my submissions the way that I would like to and then, you know, I’m quite happy to answer the queries, but I’ve got some things fixed in my mind that I want to take your Honour through, if you don’t mind.
HIS HONOUR: I don’t mind at all, Mr McGregor.
(Transcript 5 July 2019, p.68 line 16 to p.69 line 17) (Emphasis added)
In her Amended Summary of Argument filed with leave on 31 July 2020, the mother highlights the portion of the transcript where her counsel is seen to say “there’s a principle of Rice [and] Asplund involved in this case” and then jumps to the end of her counsel’s submissions where the primary judge says “I don’t have any questions” (Transcript 5 July 2019, p.87 line 33). However, what that submission omits is several key factors. One is already touched on, which is that the mother sought orders from the Court substantially different to those made by Tree J. In Elmi & Munro (2019) FLC 93-912 (“Elmi”), the Full Court described the converse situation in this way:
14.During the hearing before the trial judge, the mother’s counsel withdrew the Response filed 24 September 2018 and … we were informed by both parties that they and, apparently, the Court, regarded it as spent and no longer before the Court. There was, therefore, no basis for contending that a reconsideration of the [previous orders] was warranted because both parties had agreed that they were no longer working and that new orders were required.
(Emphasis added)
Here, the mother never withdrew her Initiating Application seeking new orders and both the father and the ICL also pressed for the Court to make new orders.
The second key factor omitted by the mother in her Summary of Argument is the following exchange:
HIS HONOUR: What are you telling me I’m locked in to that I can’t – that I can’t do, other than what Tree J did?
MR McGREGOR: No. I’m not telling you that yet. I might. But I want to start - - -
HIS HONOUR: Well, that’s what I’m interested to hear.
(Transcript 5 July 2019, p.68 lines 29-35)
That was followed by the oblique reference to Rice and Asplund outlined above and, when counsel for the mother was explicitly told by the primary judge that his Honour was not with him, counsel for the mother said this:
MR McGREGOR: Can I just make my submissions the way that I would like to and then, you know, I’m quite happy to answer the queries, but I’ve got some things fixed in my mind that I want to take your Honour through, if you don’t mind.
(Transcript 5 July 2019, p.69 lines 13-15)
Importantly, counsel for the mother never returned to any Rice and Asplund point. The mother also fails to address the point that, if she has not run the case for Rice and Asplund to preclude further orders being made at first instance, she cannot now run that case on appeal (Metwally v University of Wollongong (1985) 60 ALR 68 at 71).
If the rule in Rice and Asplund is not raised as a preliminary issue then the trial which follows is a full hearing. If a trial judge reaches a conclusion that it is in the child or children’s best interests that there be changes to operative orders, the trial judge is bound to give effect to that conclusion. For example, in F and N (1987) FLC 91-813, Nygh J, with whom Evatt CJ and Burton J agreed, said at 76,137:
… Rice and Asplund, in my view, also makes it clear that once the Court assumes jurisdiction the normal rules applicable to custodial decisions apply. That is to say, the earlier decision does not assume any particular onus upon the person who seeks a change from the existing situation to show that this is or is not justified. The Court must consider the matter afresh in the light of what it considers to be in the best interest of the child.
In Bennett and Bennett (1991) FLC 92-191, the Full Court said at 78,262–78,263:
In some cases, however, and her Honour apparently considered that this was one of them, it is not easy to determine the threshold question without going into the merits of the matter. Obviously, if this is done, and as a result of taking such a course, the trial Judge comes to the conclusion, as her Honour did, that a change of custody is warranted in the interests of the child, then it would be unthinkable not to give effect to such a conclusion upon the basis that no change in circumstances had been shown …
… [I]t seems to be almost impossible to argue that if a trial Judge has concluded that, in the interests of a child, there should be a change in custody, such a decision should be set aside upon the basis that there has been no sufficient change of circumstances…
It is obvious on the facts of this case that even if the rule in Rice and Asplund had been agitated as a preliminary or threshold issue, it could not sensibly be suggested that there had not been a sufficient or material change in circumstances as to warrant reconsideration of parenting orders. Since the orders had been made by Tree J in 2016, there had been a further Departmental investigation and police investigation into many and varied alleged disclosures of the children. Moreover, it was being alleged that not only B but also C was being sexually abused by the father, a development from the allegations that were before Tree J.
In summary, the primary judge was not obliged to consider the application of the rule in Rice and Asplund when neither party raised it as a preliminary issue, and when the approach of both parties in seeking orders was entirely inconsistent with its application. By the time of the oblique reference to the rule by counsel for the mother in his closing submissions, the evidence that had been heard clearly established a substantial change in circumstances and the need for parenting orders to be reconsidered.
As for the primary judge’s consideration of the factual findings of Tree J, it is clear throughout the primary judge’s reasons that he was well across the contents of Tree J’s judgment. Indeed, Tree J’s reasons are referenced some 44 times throughout the primary judge’s reasons (at [1], [4], [6], [7], [9], [11], [26], [27], [29], [33], [34], [37], [41], [72], [108], [148], [162], [165], [172], [173], [174], [175], [177], [182], [183], [184], [188], [190], [193] and [209]).
Included in those references are quotations from Tree J’s judgment as well as extensive references to findings made by Tree J. It cannot be said that the primary judge had not considered the findings of Tree J or that Tree J made orders for the children to live with the mother despite certain findings. That must, consequently, mean that the mother’s argument in this regard devolves to a challenge as to the weight attributed to those findings or would necessitate authority that the primary judge here was, in some way, bound by the findings and orders made by Tree J.
That is simply not the case. Res judicata is not applicable in parenting cases (see Elmi at [27] onwards, citing Newling and Newling (1987) FLC 91-856 per Nygh J at 76,467 and Miller & Harrington (2008) FLC 93-383 at [100]). Indeed, in Elmi, the Full Court there described the extent to which the previous reasons for judgment are relevant in this way:
42.This was not an appeal from the [previous decision] and the merits and thoroughness of his Honour’s reasons were beside the point. The relevance of these reasons was that they were a source of findings against which the present circumstances could be compared.
(Emphasis added)
Grounds 2.2–2.4 and 2.7 relate to contentions that the primary judge failed to properly recognise that the conduct of the mother was not a continuation of the conduct for which she was criticised by Tree J and that the primary judge failed to appreciate that the conduct of B was consistent with his conduct prior to Tree J’s decision and that such would not and could not simply cease upon the making of orders.
It is unclear what relevance these complaints have in relation to asserting error in the primary judge’s exercise of discretion. As already noted, there was no obligation on the primary judge to follow findings made by Tree J. It seems that the mother’s argument in this regard is to evidence that there was no significant change in circumstances to warrant a departure from the earlier orders. Again, that was not a case advanced at trial but in any event, for the reasons referred to, it was not a case that could possibly succeed.
We find no merit in any of these grounds of appeal.
2.5 Speculating (and apparently finding) that the [mother] arranged for the child [B] to see the therapist [Ms E] as a ruse so as [B] could make disclosures to [Ms E] and thereby trigger a referral to the appropriate authorities and a suspension of the child’s time with the [father] when the Honourable Justice Tree ordered on 13 June 2016 by Order 10 thereof that the children attend on [Ms E] for protective behaviours counselling for so long as she ([Ms E]) may recommend it continue
2.6 In being critical of the [mother] for not herself providing the children with protective behaviours counselling (a suggestion of [Ms E]) in the face of the Order of the Honourable Justice Tree and in the face of the criticisms of the [mother] in the previous trial of ‘coaching’ and conduct described as attempting to influence the children to a negative view of the father or otherwise impede that relationship
The fundamental difficulty with these sub-grounds of appeal is that the errors agitated within them lie at the margins of the case. That is, given the central findings founding the orders, it is readily apparent that even if these errors were to be established they are not errors which are material to any of the central findings and thus cannot constitute errors which are material to the orders made (De Winter and De Winter (1979) FLC 90-605).
These sub-grounds constitute bare challenges to the findings of fact recorded by the primary judge with respect to the mother’s involvement of the children with Ms E and, in particular, the findings recorded at [72] and [177] of the reasons as follows:
72.It must be observed here that despite all of the evidence of the mother about the disclosures that the two children were making to her between the date of the first trial and the reporting by [Ms E] to the Department, the mother was still sending the two children to spend unsupervised time with the father pursuant to Tree J’s Orders for all those months. She had not stopped the visits. She said that she feared losing the care of her children if she did. However, neither had she told the father anything of the alleged disclosures. Neither of her parents had either. None of them had told him anything of what they believed he was doing to the children. None of them had warned him to stop doing any of that or face the consequences. They had not said anything to either of the paternal grandparents either. The mother had not made her own notification to the Department or to the Queensland Police Service. Neither had either of her parents. As I have already pointed out though, the mother did know before she took [B] to his first appointment with [Ms E] that if he made disclosures to [Ms E] that [Ms E] would report those disclosures to the Department. [Ms E] had told both parents that before she saw the boy. The mother also knew that from her 2015 experience. There can be little doubt that she expected the boy would disclose to [Ms E] and that [Ms E] would notify the authorities.
…
177.I am satisfied that conversations between the mother and [B] about the things that the mother believed the father was doing to [B] and his sister increased in the immediate lead up to the first session with [Ms E]. I am satisfied that the mother would have had an expectation that [B] would repeat things to [Ms E] such as those she said he had said to her about his father and that, as a consequence, those things would be brought to the attention of the authorities and investigated again. Although I accept [Ms E’s] evidence that when she told the mother she would be notifying the Department of what [B] had said to her the mother cried and expressed fear at losing the care of her children, I am satisfied the mother actually wanted the matters to come to the attention of the authorities again and to be investigated. She just did not want to be the one directly bringing them to the attention of the authorities again so soon after Tree J’s judgment. I expect she would have considered it a less prejudicial course for such matters to be brought to the attention of the investigating authorities by someone like [Ms E].
The primary judge had the advantage of seeing and hearing the mother and Ms E give their evidence. The mother fails to demonstrate that the primary judge’s findings of fact are wrong by reference to “incontrovertible facts or uncontested testimony” or that they are “glaringly improbable” or “contrary to compelling inferences” (Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43]).
The findings of fact recorded by the primary judge were open on the evidence and on the primary judge’s assessment of that evidence.
However, even if there were any substance in the mother’s contentions in respect of these sub-grounds, we fail to see how these arguments come to terms with the central findings of the primary judge which we outlined at the outset of these reasons upon which the parenting orders are primarily based. That is, we fail to see how, even if it could be established that there was some factual error made by the primary judge in the respects contended for, that this could be seen as material to the outcome.
We find no substance in these sub-grounds.
Grounds 3 and 4
The [primary] Judge failed to give proper consideration or adequate weight to the circumstance that the child [C] had always lived with the [mother] as her primary care giver and that removal of her from the [mother] and placement with the [father] would most probably be extremely traumatic for her
The [primary] Judge ought to have found that the removal of [C] and her placement with the [father] was not and would not be in her paramount interests
By these grounds of appeal, the mother contends that the primary judge failed to give proper consideration to C’s circumstances and ought to have found that the removal of C from the mother would “not be in her paramount interests”.
The first point to note here is that, again, the mother has not challenged the primary judge’s findings that she will remain of the belief that the father has sexually abused the children, that she is incapable of objectively assessing the evidence and likely to continue bringing up the allegations with the children.
The primary judge accepted the evidence of Ms J which included the following:
158.… If the children were to live with the Father, it would mean that they would have to change their primary place of residence which will likely have an impact upon them and take a period of adjustment. It is the writer’s view however that the impact upon the children of the continued allegations (if they are found to be ‘coached’, fabricated or otherwise) and the emotional harm caused by them would far outweigh the impact of a change of their primary living arrangements.
(Emphasis in original)
Moreover, the primary judge was clearly aware that the circumstances surrounding C were different to those surrounding B. His Honour relevantly recorded this:
161.Counsel for the mother asked [Ms J] some questions, too. He asked her whether she was aware that [C] was only six months old when the former couple separated and that she has lived with the mother ever since. [Ms J] answered that she was. Counsel asked her what effect moving [C] from her mother’s care to her father’s care might have upon [C]. [Ms J] immediately responded, saying that it would have a significant effect upon the child. She said that if such a transition was not dealt with in a manner that meets the child’s needs, then it would have a long-term effect upon her. However, [Ms J] went on to express the opinion that the effect of the child growing up believing that she has been abused by her father if she has not would be far worse. She agreed with counsel though, that moving [C] to her father would be a serious step and one that should not be made lightly.
162.Counsel for the mother then asked [Ms J] whether her opinion would be any different if the Court’s finding was that the mother had not raised the allegations with anyone herself in the period since Tree J’s judgment. [Ms J] said that it would not make any difference to her opinion. She said the allegations still persist despite having been investigated and unsubstantiated and that she has concerns that the allegations would still persist and could only be addressed as far as the mother is concerned with therapy over a period of time.
That is also to be read in light of Order 12 which requires the father to arrange for counselling for himself and the children to help them deal with the transition to his care.
The notoriously high bar in order to attract appellate intervention with respect to matters of weight is well known (Gronow v Gronow (1979) 144 CLR 513 at 519).
It can be seen that the primary judge gave proper consideration and weight to C’s particular circumstances. There is no substance in these challenges.
Ground 5
The [primary] Judge erred in making his decision without taking into account the evidence of the witness [Ms K] contained in her affidavit filed on or about 26 June 2019, or alternatively, without giving proper weight to the evidence of [Ms K] of the child [B’s] views in relation to the [father]
By this ground of appeal, the mother contends the primary judge erred by failing to consider or place appropriate weight on the evidence of Ms K, the children’s counsellor appointed pursuant to orders made in May 2018.
Ms K prepared a report which is dated 24 June 2019. She was not required for cross-examination at the trial.
The mother highlights paragraph 41 of Ms K’s report which states as follows:
41.[B] has been attending regular therapy sessions with the writer for one full year and it is my opinion that [B’s] presentation and observed behaviours over the course of the therapy have been congruent with [B’s] expressed feelings and described experiences. He has been consistent, strong and clear in articulating his feelings and experiences. It is not my opinion that he is being intentionally coached by the mother to lie. [B] is a bright and intelligent young lad who would be well aware of the parental conflict. In my opinion [B] is negatively impacted by the ongoing parental conflict and disputes.
(Emphasis in original)
It bears emphasis that the primary judge does not record any finding to the effect that the mother deliberately coached the children to lie (at [148]). Second, the extent of the primary judge’s reference to Ms K is at [220] where his Honour lists her as one of the experts with experience in the matter. That would suggest that his Honour was at least aware of her involvement.
Moreover, as the ICL submits in her Summary of Argument filed on 12 July 2020, the mother is not challenging the factual findings about the occurrence of the sexual abuse, which means that the relevance of Ms K’s report is questionable. Perhaps the only relevant part would be the sentence regarding Ms K’s belief that the mother was not coaching the child. Though, as explained above, the primary judge made no such finding.
Plainly the primary judge was aware of the evidence of Ms K but in the circumstances of the findings made by the primary judge, there was no basis for placing significant weight upon that evidence given that the primary judge made no finding of “coaching”.
This challenge is rejected.
Ground 6
The Orders made by the [primary] Judge for the removal of the children from the Supervised time session taking place at [D Town] at the time the Orders were delivered without notice were draconian
We have, in addressing Ground 1A, already addressed the substance of this complaint, and for the same reasons with respect to Ground 1A, this Ground of appeal has no merit.
Ground 7
The restraining orders made by the [primary] Judge against the maternal grandparents in Orders 5 and 14 – 17 of the Orders made on 24 February 2020 were made without notice to, or service of any application on, the maternal grandparents or either of them and were procedurally unfair
By this Ground of appeal, the mother contends that the orders restraining the maternal grandparents (Orders (5) and (14)-(17)) were made without giving notice to the maternal grandparents and in the context that they are not and were not parties to the proceedings.
It is clear that where an order is proposed to be made which affects the rights of a person, that person ought, as a matter of natural justice, be informed of the proposed order and permitted to be heard on it if they choose (see, for example, Allesch v Maunz (2000) 203 CLR 172 at [35] per Kirby J; Dixon v Commonwealth (1981) 61 ALR 173 at 178-179; Kioa v West (1985) 159 CLR 550 at 582).
However, as the Full Court in Malloy and Ors & Stopford Malloy (2017) FLC 93-804 said:
38.… It is beyond doubt that an appellant has no standing to appeal unless it can be demonstrated that they are aggrieved by the orders, or their interests are affected, and that is not the case here.
(See also, Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372; Argos Pty Ltd v Minister for the Environment and Sustainable Development (2014) 254 CLR 394).
The maternal grandparents have not sought to intervene in the appeal proceedings or to be heard with respect to the orders.
We are not persuaded that the mother has established that she has standing to appeal the subject orders as she has not demonstrated that she is a person aggrieved by these orders or that her interests are affected by their making.
This Ground of appeal is rejected.
Ground 8
Order 11 of the Orders made on 24 February 2020 leaving the issue of the mother to be able to “re-commence communication with’ the children and to spend “any unsupervised time” with the children to be “a matter to be agreed between the mother and the father”:
8.1 Abrogates the decision of the Court to the parties and is not appropriate; and
8.2 if the [primary] Judge had the confidence the parties would be able to agree on such significant issues (which, presumably His Honour must have held), then it is at odds with the [primary] Judge’s reasons in paragraph 198 of the Reasons and Orders 8 and 9 giving sole parental responsibility to the … father for issues save in relation to a change of the children’s names or a change in their living arrangements that would make it more difficult for the children to spend time with either parent
By this ground of appeal, the mother challenges Order (11) which provides:
(11)That after the children have begun spending supervised time with the mother pursuant to paragraph (10) hereof, any re-commencement of communication between the children and the mother and any unsupervised time in her care thereafter shall be a matter to be agreed upon between the mother and the father.
Order (10) relevantly provides:
(10)That the children spend time with and communicate with the mother at all times as agreed between the mother and the father and, until she is discharged pursuant to these Orders, the Independent Children’s Lawyer, but failing agreement at least:
Following a moratorium of six (6) months after the transition of the children into the father’s care pursuant to these Orders during which they do not spend time with or communicate with the mother:
(i)Supervised at the [L Group] or such other place as may be agreed upon between the Independent Children’s Lawyer, the father and the mother, each alternate Saturday for a period of up to two hours at the expense of the mother.
(Emphasis in original)
It ought first be noted that the mother challenges the appropriateness of the L Group as the contact centre due to a lack of evidence about cost and who would be supervising the contact. However, clearly on the face of the order that is not a prescriptive order and the parties can agree for such contact to occur anywhere of their choosing.
The mother contends that Order (11) is “tantamount to no order for the mother to spend time and communicate with the children other than on a supervised basis … because it is predicated on a requirement for the parties to agree” (mother’s Amended Summary of Argument, paragraph 68) and that the order abrogates judicial responsibility by leaving it to the parties to determine whether communication or unsupervised time with the mother will resume.
Relevantly, the primary judge said this:
204.I am not persuaded that there should be time limits put on the supervision that the children should have with the mother after the six month period of no time with her expires. Neither am I persuaded to make an order now that conditions the reintroduction of unsupervised time with the mother for the children upon the mother having the psychological therapy that has been suggested will be necessary for any change of mindset and obtaining a report that she has “successfully undertaken” that therapy and completed another parenting course.
205.I am quite satisfied that the father appreciates the children’s need to have a meaningful relationship with the mother and the mother’s extended family. I am satisfied that he will act appropriately in the future to facilitate that, to encourage that and to promote it. As I observed, he did not initially seek to remove the children from the mother’s principal care. The circumstances in which the mother continued to make increasingly serious allegations against him are what prompted him to seek orders moving the children to his principal care, so as to shield them from ongoing emotional harm. I do not consider that the father is motivated to act out of spite or malice towards the mother. I am satisfied that he would exercise appropriate judgment based on the evidence presented to him from time to time as to whether or not it is in the children’s best interests to re- commence spending unsupervised time with the mother in the future.
206.Both the mother and the father will now be aware of all of the expert opinion evidence in this case. They will now be aware that the mother needs to have some intensive therapeutic counselling over a period of time to address her longstanding mindset. I consider it to be in the best interests of the children for their time with their mother, when it is reintroduced after six months, to continue to be supervised at the mother’s expense until the mother and the father agree to change it to unsupervised time. The mother will appreciate that she will have to persuade the father that the children are no longer at risk of being emotionally harmed by allegations of sexual abuse of them by him being raised again. She will appreciate that she will most likely need to show him evidence of having had the psychotherapy that was discussed in the trial and convince him that it has had effect upon her. If she is able to do that, I expect the father will let the children begin to spend unsupervised time with her.
207.Of course, if the mother does address this issue by undertaking psychotherapy to positive effect and she considers the father unreasonably withholds the children from commencing unsupervised time with her despite all the evidence she provides him with, it will then be a matter for her to decide whether or not she should seek to invoke the jurisdiction of this Court again in an attempt to obtain fresh parenting orders that permit of unsupervised time. She will, no doubt, be advised about the principle that emerged from the case of Rice [and] Asplund (1979) FLC 90-725 and cases that have followed it since and the need to put evidence before the Court on any fresh application of a change in circumstances since this decision, such as completion of the intensive psychotherapy spoken about.
The mother has not challenged the factual findings within [205], particularly regarding the father’s ability to recognise the importance of the mother’s relationship to the children, though she does submit that “[n]o evidence was led to the effect that the parties could agree on communication and time arrangement” (mother’s Amended Summary of Argument, paragraph 71).
As [204] of the reasons for judgment reflects, the primary judge rejected the imposition of some arbitrary measure to govern the reintroduction of the children’s time and communication with the mother after the moratorium period. The primary judge, having determined that it was in the children’s best interests that the father have sole parental responsibility for the children’s long term welfare, care and development, focussed upon the father’s exercise of that responsibility (at [198]). The primary judge found that the father appreciates the children’s need to have a meaningful relationship with the mother and her extended family, and expressed satisfaction that the father will facilitate, and encourage and promote that (at [205]). There is no challenge on appeal to these findings and such findings were plainly open to the primary judge.
It was thus entirely legitimate for the primary judge to rely upon the father’s appropriate exercise of parental responsibility to resolve the question, from time to time in future, as to whether or not it is in the children’s best interests for them to recommence spending unsupervised time with the mother. The adoption of these means, given the findings made in relation to the means adopted, was an exercise of judicial authority as distinct from a delegation of judicial authority.
Of course, in the event that the father is demonstrated to act unreasonably in exercising parental responsibility in this respect in future, the mother may seek to have the issue of supervision revisited.
We find no merit in this Ground of appeal.
Conclusion and costs
As we have found no merit in any ground of appeal, the appeal is to be dismissed.
In that event, neither the father nor the ICL sought any order for costs against the mother.
It is therefore appropriate to order that there be no order as to costs.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Aldridge, Kent & Watts JJ) delivered on 17 August 2020.
Associate:
Date: 17 August 2020
[i]Pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
[ii]Pursuant to s 68L of the Act.
[iii]Kanda v Government of Malaya (1962) AC 322 at 337; The Queen v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] V.R. 122; The King v Justices of Bodmin; Ex parte McEwen (1947) KB 321 at 325; Garrihy v Wyatt (1975) 10 SASR 476; Livesey v New South Wales Bar Association (1983) 151 CLR 288 293-294; Ahmad and Ahmad (1979) FLC 90-633; Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342; KWLD v Western Australia [2020] WASCA 94; Genesalio & Genesalio [2020] FamCAFC 113; MichaelWilson & Partners Ltd v Nicholls (2011) 244 CLR 427; Helbig & Rowe and Ors(No. 2) (2014) FLC 93-625; Hillier & Wootton (2013) FLC 93-526; Charisteas & Charisteas and Ors (2020) FLC 93-971.
[iv][1973] V.R. 122 at 127.
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