Jebbett and Corey (No. 3)
[2020] FamCAFC 233
•21 September 2020
FAMILY COURT OF AUSTRALIA
| JEBBETT & COREY (NO. 3) | [2020] FamCAFC 233 |
| FAMILY LAW – APPEAL – CHILDREN – Expert evidence – Where primary judge plainly did not uncritically adopt the Family Report – Where appellant contends no legitimate basis for the exclusion of material – Where basis for its exclusion cannot be determined without the relevant transcript – Where s 106A of the Family Law Act 1975 (Cth) is not limited in scope by s 112AA of the Act – Findings of fact – Where the primary judge did not accept that the child is at a great risk of bullying in mainstream schooling – Weight of Department of Child Safety letter –Weight given to the child’s wishes in relation to home schooling challenges – Appeal dismissed – No order in relation to costs. FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Leave sought to file a further Application in an Appeal – Discharge of Independent Children’s Lawyer – Where delay in filing would have resulted in deferral of the hearing of the appeal – Where material relied upon considered by primary judge from which decision no appeal was brought – Leave refused. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Paediatric report and psychological report – Where if reports were admitted into evidence in the appeal, it is likely that cross-examination would be required – Application dismissed. FAMILY LAW – APPEAL – APPLICATION FOR STAY OF ORDERS – Refusal of primary judge to stay his orders – Stay appeal futile once substantive appeal fails – Appeal dismissed. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Pt XIII, XIIIA, ss 60CC, 69ZT, 93A(2), 106A, 112AA |
| Australian Coal & Shale Employees’ Federation v The Commonwealth (1993) 94 CLR 621; [1953] HCA 25 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Corey & Jebbett(No. 2) [2018] FamCA 1034 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Hall and Hall (1979) FLC 90-713; [1979] FamCA 73 House v The King (1936) 55 CLR 499; [1936] HCA 40 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Ralton & Ralton [2017] FamCAFC 182 Sathra & Sathra [2013] FamCAFC 142 |
| APPELLANT: | Ms Jebbett |
| RESPONDENT: | Mr Corey |
| INDEPENDENT CHILDREN’S LAWYER: | Norman & Kingston |
| FILE NUMBER: | BRC | 9223 | of | 2017 |
| APPEAL NUMBERS: | NOA NOA | 54 102 | of of | 2019 2019 |
| DATE DELIVERED: | 21 September 2020 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Brisbane (via video link) |
| JUDGMENT OF: | Ryan, Aldridge & Tree JJ |
| HEARING DATE: | 30 July 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 May 2019; 22 October 2019 |
| LOWER COURT MNC: | [2019] FamCA 358; [2019] FamCA 774 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Jones |
| SOLICITOR FOR THE RESPONDENT: | MLDG Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Pendergast |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Norman & Kingston |
Orders
All extant Applications in an Appeal in Appeal No. NOA 54 of 2019 and Appeal No. NOA 102 of 2019 be dismissed.
Appeal No. NOA 54 of 2019 be dismissed.
Appeal No. NOA 102 of 2019 be dismissed.
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 Jebbett & Corey (No. 3) 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 Numbers: NOA 54 of 2019; NOA 102 of 2019
File Number: BRC 9223 of 2017
| Ms Jebbett |
Appellant
And
| Mr Corey |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
On 29 May 2019, the primary judge made final parenting orders in relation to D (“the child”), the only child born to the parties’ relationship, who is presently eight years old. Pursuant to those orders, Ms Jebbett (“the mother”) has sole parental responsibility for the child, who lives with her and spends no time with Mr Corey (“the father”). The only contact permitted between the father and the child is pursuant to an order that the father be at liberty to send the child some written communications, cards and presents. No appeal has been brought from those orders.
However, the primary judge made a number of other orders, including that each party notify the other of their residential address and telephone number, that the mother consider the father’s suggestions in relation to major long-term decision‑making concerning the child, an order under s 106A of the Family Law Act 1975 (Cth) (“the Act”) allowing a Registrar to sign a document where either party has failed to do so, and orders in relation to therapy and schooling for the child (who has been diagnosed with Autism Spectrum Disorder). It is from these orders that the mother filed her appeal on 18 June 2019 (“Appeal 54”).
On 22 October 2019, the primary judge dismissed the mother’s application for a stay of some of the final parenting orders, which was sought pending the determination of Appeal 54. It is from that dismissal that the mother filed her second appeal on 15 November 2019 (“Appeal 102”).
Background
The mother was born in Country F and is presently 48 years old. The mother whi is university qualified cared for the child full-time. The father was born in Australia and is presently 45 years old. He has Major Depressive Disorder, a condition assessed since he was a teenager, and has been diagnosed with Autism Spectrum Disorder (Psychiatric Report dated 12 March 2019, p.3). At the time of the hearing before the primary judge, he was employed.
The parties commenced cohabitation in November 2010, married in 2011 and separated on a final basis in August 2016. The child was diagnosed with Pervasive Development Disorder in 2014, and Autism Spectrum Disorder in 2015. There was expert evidence in the trial to the effect that “[i]t is possible that [the child] does have Autism Spectrum Disorder with an associated Language Impairment, and possibly Attention Deficit Hyperactivity Disorder” (Psychologist Report dated 27 November 2018, p.26).
The mother’s application for leave to file an application to remove the Independent Children’s Lawyer
On 21 July 2020, the mother unsuccessfully sought to file an Application in an Appeal in both appeals to, in substance, have the Independent Children’s Lawyer (“ICL”) discharged. Because that application was sought to be filed in breach of procedural orders made by a Registrar, leave was needed, and the mother made an oral application for such leave at the commencement of the hearing of the appeals. At that time, we dismissed the mother’s application, for reasons to be later published. It is convenient to incorporate those reasons in the judgment arising from the appeals.
The proposed application to discharge the ICL would have been the third such application made by the mother. The immediately previous one was filed by her on 8 November 2018, heard by the primary judge on 26 November 2018, and dismissed for reasons delivered on 3 December 2018 (Corey & Jebbett(No. 2) [2018] FamCA 1034). That application was brought in advance of a trial then anticipated to run for three days before the primary judge commencing on 3 December 2018.
In the 3 December 2018 reasons, the primary judge said as follows:
27.Here, at the time the application was heard, there was only seven days until the trial of the action is to be held. That heightened the need for a compelling case to be demonstrated by the mother for removal of the ICL.
28.The mother demonstrated no such compelling case with respect to apprehended bias or lack of impartiality on the part of the ICL. None of the matters agitated by the mother demonstrated such a lack of impartiality. In other words, whilst it can be accepted that the mother perceives difficulties in the conduct of the ICL in this respect, on no objective assessment of the complaints can it be seen that the ICL has demonstrated a lack of impartiality.
No appeal was brought from that decision.
Many of the complaints identified by the primary judge in those reasons were repeated by the mother in the affidavit which she proposed to rely upon in the event that we granted her leave to file the third application. However, it appears that there were some new matters, and some of the historical matters appear to have been somewhat re-cast.
It bears repeating that Appeal 54 was initially filed as long ago as 18 June 2019. The parties were advised of the hearing date of the appeals on 25 June 2020. The inevitable consequence of permitting the mother to file a further application to discharge the ICL would be that the hearing of the appeals would have had to be adjourned, directions made for the filing of responsive material, and a mechanism determined for resolving the inevitable factual disputes between the mother and the other parties arising from the proposed application. The undoubted consequence would have been that it is unlikely that the appeals would have been heard this year, and hence almost inconceivable that they would be resolved by way of final judgment within 18 months of the date when Appeal 54 was filed.
The excuse proffered by the mother for the delay in bringing this application was, in substance, that she had attempted to file the substantive application for discharge in December 2019, but it was rejected, it being unclear which appeal it was being brought in. Precisely why the mother then waited a further seven months before seeking to refile the application was not made clear. That is all the more curious given the mother’s demonstrated capacity for filing Applications in an Appeal, she having filed nine other such applications since December 2019.
Given the absence of any proper explanation for the mother’s delay in bringing the application for leave, and the inevitable dislocation and deferral of the hearing of the appeals, we therefore refused the mother leave.
Whilst no argument as to the merits of the mother’s proposed application was advanced before us, we repeat that much of the mother’s material relied upon was considered by the primary judge in November 2019, and found not to then justify a discharge of the Independent Children’s Lawyer, from which decision no appeal was brought. Leaving aside the potential difficulties for the mother in now seeking to revisit factual determinations of the primary judge that have not been the subject of appeal, there is no sound reason to suspect that a fresh consideration of the facts before the primary judge, even together with the mother’s new material, would likely command a different conclusion.
The Application in Appeal 54 to adduce further evidence
By an Application in an Appeal filed 15 July 2020, the mother sought to adduce further evidence annexed to her affidavit also filed on that day.
Section 93A(2) of the Act expressly provides for the receipt of further evidence on appeal.
The High Court in CDJ v VAJ (1998) 197 CLR 172 (McHugh, Gummow and Callinan JJ) observed:
114.No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge’s decision. In that context, the likely effect of the further evidence on the Full Court’s view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
…
116.The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily on the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
117.The discretion to admit further evidence obviously needs to be exercised with much care in parenting cases. The decision as to who should have the day to day care of children will so often be an agonising one, as indeed it is in the present case where both parents are anxious for their children’s welfare. The advantage said to be attached to the opportunity of a judge at first instance to see and hear the witnesses on issues of credibility and the like may perhaps on occasions be exaggerated. Nevertheless, those advantages are likely to be real ones in a parenting case heard by a specialist judge whose decision will involve a choice of who will be a better “custodian” of the children: sometimes either parent would be an excellent choice, and often neither would be ideal.
118.The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations. So too the public and private interests in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.
…
148.… [T]he power conferred by s 93A(2) is not a solvent for correcting orders that the Full Court regards as unsatisfactory but which contain no appealable error. New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the s 93A(2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A(2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.
The proposed additional material fell broadly into two categories; the first being some additional factual material, and the second being some earlier orders of the primary judge and accompanying reasons. The latter may be dealt with shortly, in that those are all matters of record which do not require formal adducing into evidence. Therefore, we will restrict our consideration of the mother’s Application in an Appeal to the three documents containing additional factual material upon which she seeks to rely.
The first is a report of a paediatrician dated 25 June 2020 which notes that (in breach of the primary judge’s orders) the child is currently being home schooled, and is said to be “thriving in the home schooling environment”. The second is a psychological report in relation to the child dated 6 July 2020 which, amongst other things, predicts (at p.8) that “it is highly likely that when placed in a school setting that [the child’s] immense fear of school will compromise his psychological well-being and the risk of [the child] presenting with behavioural issues is very high.” The third was a heavily redacted copy of at least some parts of records maintained by the Department of Child Safety, Youth and Women from (it seems) 12 October 2018 onwards.
It is immediately obvious that both the paediatric report and the psychological report are likely to be controversial. Neither of those authors gave evidence during the course of the hearing before the primary judge. If we were to permit that evidence in the appeal, it would therefore likely be required to be subjected to cross-examination, with the prospect of factual findings needed to be made.
In any event, none of that material speaks to error by the primary judge, but rather to whether or not the child is coping with his present home schooling, and may not cope with formal schooling. Importantly, the primary judge did not determine that the child would not cope with home schooling. Rather his reasons, as mandated by the Act, were directed to determining where the best interests of the child lay.
The purpose of introducing the further Departmental material, some of which must have been available at the time of trial, is quite unclear.
We therefore decline to admit the further material before us, and accordingly dismiss the mother’s Application in an Appeal to adduce further evidence filed 15 July 2020.
The mother’s other applications in Appeal 54 and Appeal 102
Also outstanding were an Application in an Appeal filed by the mother on 2 March 2020 and 10 March 2020 which, to the extent that it remained unresolved, was to lead additional evidence, and an Application in an Appeal filed 15 July 2020 (in addition to the application of that date which we have determined above) to have the appeals proceed without transcript. During the course of the hearing of the appeals, we resolved to hear both appeals without the transcript (other than some excerpts which had been obtained by the mother being provided), and determined that we would resolve the proposed admission of additional extra evidence during the course of the hearing of the appeals, if and when the mother referred to any particular additional piece of evidence. However the mother did not refer to any additional evidence, and therefore the purpose to which the mother wished to put it is unclear.
It therefore follows that the mother’s Applications in an Appeal in Appeal No. NOA 54 of 2019 and NOA 102 of 2019 filed 2 March 2020, 10 March 2020 and 15 July 2020 should be dismissed.
Before we consider the appeals in detail, it should be acknowledged that there is a strong presumption in favour of the correctness of the decision appealed from (Australian Coal & Shale Employees’ Federation v The Commonwealth (1993) 94 CLR 621 at 626–627). As this Court said in Sathra & Sathra [2013] FamCAFC 142 at [25], the absence of a transcript could not be permitted to undermine the strength of the presumption and adds a layer of complexity for an appellant who seeks to challenge the adequacy of reasons and matters of fact raised during the trial.
Appeal 54
Overview
The mother’s Amended Notice of Appeal filed 18 June 2019 extended to some 11 grounds of appeal. As we shall shortly detail, some of those grounds are based upon a misconstruction of the primary judge’s orders; whereas others do not properly engage with the relevant legal principles which govern appeals. Particularly, insofar as the mother’s appeals challenge the exercise of a discretion by the primary judge, she would need to establish error of the type discussed in House v The King (1936) 55 CLR 499 at 504–505 (“House v The King”), where the majority of the High Court said:
… The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…
Ground 1
The first ground of appeal asserts:
The justice relied heavily on expert evidence which was given without knowledge and experience.
(As per the original)
Although this ground does not specify the identity of any particular expert whom it is asserted was without knowledge and experience, reference is made in the mother’s Summary of Argument filed 1 May 2020 to Ms H, the Family Report writer. Later in that document, the mother went on to quote extensively from a number of articles in relation to expert evidence, ultimately concluding with the well‑known proposition, quoting from Hall and Hall (1979) FLC 90-713 at 78,820 that:
… There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities...
In response to the mother’s complaint in this regard, three matters need to be emphasised. The first is that Ms H’s curriculum vitae was in evidence (Annexure “H2” to the affidavit of Ms H filed 12 September 2018), and demonstrated that she obtained a Bachelor of Science, majoring in psychology, in 2005, having previously been a nurse. At the time she obtained her degree, it appears as though she was working as a counsellor for two agencies. Thereafter, she obtained employment with a government department where she was employed for five years, before working for a year with an interstate government department in 2010 and 2011. She then returned to the Queensland department in 2011. It appears as though she has been in private practice as a psychologist since May 2013.
Ms H is a member of the Australian Psychological Society, the Child Protection Practitioners Association and the Family Law Practitioners Association. Her Family Report is entirely orthodox both in its structure and its approach to the relevant issues.
The second matter is that another psychologist, Ms J, also gave evidence. Where it dealt with the matters addressed by Ms H, their opinions substantially coincided.
The third matter is that the primary judge plainly did not merely uncritically adopt Ms H’s opinions. For instance, at [176] of the reasons, his Honour only accepted a particular part of her evidence with qualification (in relation to whether the child’s lack of engagement with appropriate therapies to prepare him for school was entirely the result of the mother’s failure to follow advice, or at least in part the product of the lack of funds) and otherwise throughout the judgment independently assessed the cogency of Ms H’s evidence, in the context of the totality of the evidence relating to the particular issue then being considered.
To the extent that this ground alleges appealable error, it is not established.
Ground 2
The second ground of appeal asserts:
Failure to afford the mother the Natural justice and procedural fairness by dismissing relevant documents in support of home schooling and calling them extrinsic.
(As per the original)
It appears (although it is by no means clear) that the material to which this ground relates, comprises a report of Dr ST and some academic articles exploring the asserted benefits of home schooling, and was likely contained within five variously coloured books of documents which the mother purported to make part of her affidavit filed 16 November 2018. For instance in the “red book” item 15 was described as “Letter of Dr. [ST] in support of home schooling” (as per the original). Likewise, items 17, 18 and 19 of the “red book” appear to be articles about home schooling, presumably painting it in glowing terms.
As to those volumes, at [39] of the reasons the primary judge said as follows:
At trial, the mother presented a series of five bound books which were marked “A” to “E” for identification. As the transcript of the trial will reflect, it was explained to the mother that these books contained some inadmissible and/or irrelevant material. It was also explained to the mother that whilst the books were marked for identification, in order for any content to be received into evidence, the mother would need to tender specific documents for them to form part of the evidence to be considered. The exhibits include portions from or items in one or other of those books identified by a particular colour ie “blue book”, “green book”, “no colour book”, “red book” and “yellow book” respectively. Some reference will be made in the course of these reasons to particular documents admitted as exhibits, sourced to one or other of the mother’s books.
Part of the material before us was an exhibit book. It appears as though there were 57 exhibits tendered before the primary judge, some of which contained several documents, and some of which may have been derived from the coloured books. However neither the letter from “Dr [ST]” or items 17 to 19 of the “red book” appear to have been admitted.
At [237] of the reasons, the primary judge said as follows:
The mother sought an order that she be permitted to home-school [the child]. In support of this application, the mother sought to lead evidence which was not in admissible form from various studies, news articles and other kinds of extrinsic evidence regarding the benefits of home-schooling, however the mother did not meet the criteria for admission into evidence of such extrinsic material. Further, none of that material spoke to [the child’s] specific needs and whether it was in the best interests of this child to be home-schooled by this parent, rather than attend a special school or a mainstream school with a support unit.
(Emphasis in original)
It appears as though the material which his Honour was there referring to were the report of Dr ST, and the academic articles.
In her Summary of Argument filed 1 May 2020 at p.4–12, the mother descended to a consideration of provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”), interspersed with reference to natural justice and procedural fairness. It is not possible to identify the link between the provisions of the Evidence Act and those other complaints, however, doing the best we can, it appears as though the substance of this ground has its genesis in s 69ZT of the Act, which provides that identified sections of the Evidence Act do not apply to child related proceedings, unless there is an order to the contrary. Therefore, it seems that the mother contends that there was no legitimate basis for the exclusion of the material which she was proffering.
Although it seems clear that the primary judge, during the course of the trial, had earlier refused to allow the mother to rely upon the report of Dr ST, his Honour’s reasons for doing so are not able to be ascertained without the benefit of transcript.
Further, beyond the reference to the additional material as being “extrinsic” at [237] of the reasons (which we would understand to refer to it not being directed to the specific facts of the case before the primary judge), the basis for its exclusion also cannot be determined without the relevant transcript. In those circumstances, it is not possible to conclude whether or not any part of that material was improperly excluded, and this ground of appeal must fail.
Ground 3
The third ground of appeal provides:
The justice disregarded that I am the full time carer for [the child] and despite ordered to share decisions in regards to Education and Medical and health.
(As per the original)
This ground may be shortly dealt with. It is simply not correct to say that the primary judge was not cognisant of, or otherwise failed to give proper regard to, the fact that the mother was the full time carer for the child, as inevitably, that was the effect of the orders which his Honour made. Secondly, the mother’s assertion contained within this ground, namely that she was obliged to share decisions in relation to education, and medical and health issues with the father, is patently not correct either. Order 2 provided that the mother have sole parental responsibility for all major long term decisions in relation to the child, save that she was obliged to advise the father in writing of details of any decision that needed to be made, and what she proposes to do, and why. The father then has an opportunity to respond, should he so wish. If he does, then the order goes on to oblige the mother to consider any such response, albeit the decision remains exclusively hers.
The third ground of appeal fails.
Ground 4
The fourth ground of appeal provides:
The justice erred applying 106A of the Family Law Act, which is not covering “Parenting order” under its act.
(As per the original)
The particular order to which this relates was Order 35. It provides as follows:
35.That:
35.1Each party shall do all acts and things reasonably required by the other including signing or execution of all necessary documents to give effect to these Orders within seven (7) days of being requested in writing to do so;
35.2If either party refuses or neglects to sign or execute and return a document within seven (7) days of a written request to do so then the Registrar of the Brisbane Registry of the Family Court of Australia is hereby appointed under section 106A of the [Act] to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit on behalf of the requesting party as to the said refusal or neglect;
35.3The requesting party be at liberty to apply for costs when submitting such an affidavit to the Registrar.
Section 106A of the Act provides as follows:
(1)If:
(a)an order under this Act has directed a person to execute a deed or instrument; and
(b)that person has refused or neglected to comply with the direction or, for any other reason, the court considers it necessary to exercise the powers of the court under this subsection;
the court may appoint an officer of the court or other person to execute the deed or instrument in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the deed or instrument.
The mother argues that the effect of s 112AA of the Act, is that s 106A of the Act has no application to parenting orders. That is by virtue of the definition in s 112AA of the term “order under this Act” which specifically excludes a parenting order. However, s 112AA is in Pt XIIIA which is headed “[s]anctions for failure to comply with orders, and other obligations, that do not affect children”.
Section 106A is not in Pt XIIIA of the Act, but rather Pt XIII, which is headed “[e]nforcement of decrees”. There is no equivalent of s 112AA in that Part, or more specifically, it does not contain a definition of the term “order under this Act”. Therefore there is no constraint on that phrase, of the kind imposed by s 112AA of the Act, when it is used in s 106A of the Act and the word “order” should be given its ordinary meaning. This necessarily means that s 106A of the Act applies to, amongst other things, deeds or instruments which give effect to or are part of parenting orders. The mother’s argument is therefore misconceived.
Section 106A of the Act was available as a source of power to the primary judge in making Order 35.2. The fourth ground of appeal therefore fails.
Ground 5
The fifth ground of appeal provides:
The justice failed to give adequate weight to the risk of family violence despite the DVO and the risk involved, by ordering my address to be shared with the father .s60CG.
(As per the original)
This ground appears to relate to Order 9, which provides:
Each party shall keep the other informed in writing of his/her current residential address and contact telephone number and advise of any change thereto within forty-eight (48) hours of any such change.
No doubt the purpose behind this order was to facilitate not only consultation in relation to the mother’s exercise of parental responsibility under Order 2, but also Order 5, which provides that “[t]he [f]ather be at liberty to send the child letters, emails, cards and presents on one occasion each month and at Christmas, Easter and for the child’s birthday”.
Whilst it is true that there were deeply troubling parts of even the father’s own evidence in relation to his ruminations about inflicting family violence upon the mother and others, it cannot be said that the primary judge failed to properly appreciate the gravity of them. Particularly, at [86] of the reasons, his Honour said that “I have no hesitation in finding that presently, and for the foreseeable future, the father poses a significant risk to the physical safety of each of the mother and [the child]”. No doubt mindful of that, the primary judge made no provision for the child to spend time with the father, and his orders did not require any physical interaction, or even proximity, between the mother and the father whatsoever. Interestingly, that was despite the mother’s case at trial being that the father should spend four occasions of face-to-face time with the child each year.
Moreover, as the counsel for the ICL correctly identified:
·the primary judge noted at [302] that “[a]t the conclusion of her cross‑examination, the mother surprisingly offered that the father come and live with her as her roommate until he could find suitable accommodation. The mother said that the father would live in a tent if he had nowhere to go and she would rather that he lived in her second bedroom”;
·that since September 2018 the father had been seeing the child every Saturday by visiting the mother’s residence and the mother undertaking supervision;
·that the mother asked the father to do her shopping each week, which he did, returning to her home with the shopping;
·that there was no evidence of a domestic violence order between the parties at the time at trial;
·that the mother raised no issue at trial about the disclosure of her address until the filing of this appeal; and
·there was no evidence that the father had ever visited the mother’s address uninvited.
Parties are bound by the way in which they conduct their case at trial (Metwally v University of Wollongong (1985) 60 ALR 68 at 71). Given that at trial, the mother did not raise any issue in relation to the disclosure of her address to the father, it was therefore not incumbent upon the primary judge to expose his reasoning in relation to orders reflecting uncontroversial matters.
The fifth ground of appeal is not made out.
Ground 6
The sixth ground of appeal provides:
Failing to give orders to the best interest of the child.
The extreme breadth and generality of this ground was honed somewhat by the mother in her Summary of Argument filed 1 May 2020, from which it appears as though its focus is the asserted failure of the primary judge to reject the risk of bullying of the child if he were to attend a mainstream school. However, whilst it is plain that although the primary judge was well aware of the special needs which the child’s autism gave rise to (at [11]), nonetheless at [282] of the reasons his Honour said:
I do not accept that [the child] is at a great risk of bullying in mainstream schooling or that such a risk is in and of itself sufficient to be a reason to deny to [the child] the obvious other benefits of formal education as identified by the various experts in this case.
Insofar as the ground may allege an error of fact by the primary judge, in order to succeed, the mother would need to demonstrate that such a conclusion was “glaringly improbable” or contrary to unchallenged evidence (Fox v Percy (2003) 214 CLR 118 at [29]). However there was significant evidence which supported the conclusion made by the primary judge in relation to the risk of bullying, and particularly:
·the Family Report writer did not accept the mother’s concerns about the risk of bullying (at [265]) (Family Report dated 8 September 2018 p.10);
·the single expert psychologist, Ms J, was of the view that it was in the best interests of the child for him to attend formal school. Indeed at [267] the primary judge said as follows:
267.Ms J maintained her recommendation that [the child] not be home-schooled during lengthy cross-examination by the mother on the topic. Ms J stated that the mother’s concerns about the potential for bullying at a school did not affect Ms J’s view that it was in [the child’s] best interests to attend a formal school. Ms J raised the following advantages for [the child] in attending school:
a)Schools (whether special schools or mainstream schools with a special unit) are mandated to increase inclusion and are designed to progress children into a mainstream school environment;
b)Access to trained professionals in small classes to assist [the child];
c)Professionals are better equipped to know what to teach [the child];
d)Ability to teach [the child] the skills to deal with and manage his own behaviour;
e)Would assist [the child] to learn about personal space by having the opportunity to be around other children regularly and socialise;
f)Some schools offer therapeutic services above and beyond that funded by NDIS although such services are subject to the funding available at particular schools;
g)Programs such as V School’s Early Days program offers courses to assist parents to prepare autistic children for school; and
h)[The child’s] attendance at school would provide respite to the mother.
The finding that the child was not at great risk of bullying, and implicitly that any such risk was significantly outweighed by the benefits of mainstream schooling, was clearly open to the primary judge, and no error is demonstrated.
To the extent that this ground asserts that the primary judge otherwise failed to properly consider the best interests of the child, it must also fail.
Ground 7
The seventh ground of appeal provides:
Fail to consider Section 60CC(3(1) to make orders which are least likely to give rise to further litigation.
(As per the original)
Correctly, the Independent Children’s Lawyer identified that this ground is premised upon a false understanding of the primary judge’s reasons, and particularly, that the orders which his Honour pronounced required an exercise of joint parental responsibility in any form. There does not seem to be any direct opportunity for further litigation to be generated by the primary judge’s orders, beyond that which would otherwise exist, even if the father is unhappy with the mother’s decisions.
In any event, the primary judge identified that he had regard to all of the s 60CC considerations, and there is no reason to doubt that in doing so his Honour had also considered s 60CC(3)(l) of the Act.
The seventh ground of appeal fails.
Ground 8
The eighth ground of appeal provides:
Failure to consider the principle of choice in education and UDHR and International Covenant Civil, political right.
(As per the original)
The primary judge was obliged to, and did, follow the statutory dictates established under the Act. It is only to the extent which the Act reflects or incorporates Australia’s treaty obligations, that his Honour was obliged to consider the terms of any such instruments (Ralton & Ralton [2017] FamCAFC 182 at [18]).
This ground has no merit.
Ground 9
The ninth ground of appeal provides:
The justice reached a conclusion which was “Plainly wrong “especially in regards to involvement of Child safety and Mother’s therapy.
(As per the original)
In her Summary of Argument filed 1 May 2020 at paragraph 132, the mother commenced her submissions in relation to this ground by saying “His Honour’s reasoning was erroneous in all aspects of finding facts of involvement of the department of child safety”. Thereafter she appears to seek to refine this ground by reference to criticism of both the Family Report writer, Ms H and the psychologist, Ms J, although the recurrent theme appears to be the mother’s belief that the primary judge was under the impression that the Department of Child Safety, Youth and Women was, in effect, requiring the child to undertake mainstream schooling. The mother contends that had never been, and was not at the time of the conclusion of the trial, the Department’s position.
It is true that when discussing the course of the trial, at [36] of the primary judge’s reasons, his Honour did recite departmental correspondence dated 1 March 2019, in the following terms:
Exhibit 24 in the proceedings is further correspondence from the Department. Correspondence dated 1 March 2019 records the outcome of the Department’s investigation and assessment in the following terms:
…
The outcome of the investigation and assessment will be recorded as substantiated – risk of harm to [the child]. That said, the investigation and assessment did not identify a basis to remove [the child] from the physical custody of his parents, in this case his mother as his primary carer, or a basis at this time to make a referral to the Office of the Director of Child Protection Litigation to commence proceedings in the Childrens Court. The risk found by the investigating departmental officer arises from identification that [the child] is not receiving co‑ordinated, consistent access to therapeutic support commensurate with his special needs.
As discussed, whilst a substantiated outcome will be recorded and further departmental intervention is proposed, in the first instance the department will seek to intervene to meet [the child’s] need for care and protection by way of parental agreement i.e. the department proposes to open an Intervention with Parental Agreement (IPA) case…
As [the child] lives with the mother, the focus of case planning will be on [the child’s] care in that household, with a particular focus on supporting the mother to better meet [the child’s] therapeutic needs. I am advised by the relevant Senior Team Leader… of the CC Centre, that the mother was verbally advised of the outcome of the department’s investigation and assessment and a preliminary discussion has occurred with the mother about engaging with the department via agreement and she has agreed to do so.
…
Further, I am advised by [the Senior Team Leader] that if the parents, primarily the mother, changes her position and will not engage in Case Planning for [the child] by way of agreement, the assigned Child Safety Officer and [the Senior Team Leader] will consult with the assigned legal officer at the department’s Office of Child and Family Official Solicitor with a view to making a referral to the Office of the Director of Child Protection Litigation that the Director consider an application to the Childrens Court for an order requiring the chief executive to supervise [the child’s] protection in respect of stated matters…
However that letter does not thereafter assume any significance in the primary judge’s reasons, either as to the home schooling issue, or as to the mother’s obligation to comply with a particular therapy regime, as to both of which, his Honour said as follows:
339.I intend to impose orders in relation to the child’s therapies. I have expressed my reservations and concerns about the mother’s approach to this issue. I note the Department’s proposed engagement with the mother on this issue which in my judgment is needed and which provides a safeguard for the child.
340.Likewise I will make orders in relation to the child’s schooling requiring that the child undertake some formal process of education. Obviously, if he proves eligible to attend a special school then that is what should occur. The next best alternative is for the child to attend the V School on a full-time basis but in the event that school cannot accommodate him on a full-time basis or for five days per week, the mother should be permitted to supplement his education by way of home-schooling on the days which the V School is unable to accommodate the child.
Those paragraphs reflect aspects of his Honour’s earlier, more expansive, discussion of those points, in which the prospect of departmental action was minor, if relevant at all.
Error of the kind identified in House v The King has not been established by the mother in this respect.
Grounds 10 and 11
These grounds provide as follows:
10.Given any consideration and cogent reasons of rejection of a child’s wishes in regards to home-schooling, in the reasons for judgment.
11.and fail to consider the point of view of the child.
(As per the original)
Plainly, both of these grounds complain that the primary judge failed to give appropriate weight to the child’s articulated wishes in relation to home schooling. However, at the conclusion of the trial, the child was only six years and nine months of age, and suffered developmental delays (Family Report dated 8 September 2018, paragraph 2.7). The primary judge specifically addressed the question of the child’s asserted reluctance to attend school (at [243] and [254]) and noted that the mother “may not be able to force him to go” to school (at [257]). Therefore the primary judge was well aware of the child’s wishes, but nonetheless concluded that it was in his best interests that he be required to attend a mainstream school. That conclusion was well open on the evidence, and accorded with the professional recommendations. It is therefore not correct to say that the primary judge failed to give appropriate weight to the child’s wishes, as the weight they deserved was a matter quintessentially for his Honour (Norbis v Norbis (1986) 161 CLR 513).
Conclusion
No ground of appeal has been established, and the appeal therefore fails. It will be dismissed.
Appeal 102
This appeal arose from the refusal of the primary judge to stay his orders pronounced on 29 May 2019.
At the hearing of the appeals, we attempted to highlight to the mother that because both this appeal and Appeal No. NOA 54 of 2019 were heard together, the stay appeal lacked utility. Although the mother appeared at times to appreciate that, nonetheless she did not abandon Appeal 102, and relied upon her written submissions filed in support of it.
It is unnecessary for us to determine the stay appeal. That is because, having now disposed of the substantive appeal, the stay appeal is entirely futile. It should be dismissed.
Costs
Neither the father nor the ICL sought an order for costs in the event that either appeal was dismissed. We will therefore make no order in relation to costs.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Tree JJ) delivered on 21 September 2020.
Associate:
Date: 21 September 2020
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