Jollie & Dysart
[2014] FamCAFC 149
FAMILY COURT OF AUSTRALIA
| JOLLIE & DYSART | [2014] FamCAFC 149 |
| FAMILY LAW – APPEAL – CHILDREN – with whom a child lives – where orders were made that the parties’ child live with the father and spend limited time with the mother – where those orders represented a very significant change to the erstwhile care arrangements for the child – where the mother appeals on a number of grounds – where the mother challenges the weight given by the trial judge to a range of evidence, in particular the opinions of a single expert – whether the trial judge erred in the weight given to the single expert’s evidence – where no error demonstrated – where the mother also contends that the trial judge’s discretion miscarried in the making of a recovery order that was stayed for up to three and a half years – whether the trial judge’s discretion miscarried – where that issue is tied to a further challenge to the adequacy of her Honour’s reasons – where her Honour’s reasons do not reveal the path that led to her Honour’s determination that the recovery order was presently in the child’s best interests – where her Honour’s reasons do not reveal the basis for a determination that the recovery order would be in the child’s best interests at any point in the next three and a half years – error demonstrated – appeal allowed in part – where the recovery order and ancillary orders set aside – where remaining substantive orders remain in force. FAMILY LAW – APPEAL – STAY – where the appellant mother applied for a stay of the substantive parenting orders – where that application was dismissed – where the mother appeals that order – where the appeal against the substantive parenting orders has largely failed – no error demonstrated – appeal dismissed. |
| Family Law Act 1975 (Cth) Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) Family Law Rules 2004 (Cth) |
| Allesch v Maunz (2000) 203 CLR 172 Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 CDJ v VAJ (1998) 197 CLR 172 Collu & Rinaldo [2010] FamCAFC 53 Cox & Pedrana (2013) 48 Fam LR 651 French & Fetala [2014] FamCAFC 57 House v The King (1936) 55 CLR 499 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Hugh & Sawer and Anor [2011] FamCA 48 Minister for Immigration and Multicultural and Indigenous Affairs v B and Anor (2004) 219 CLR 365 Norbis v Norbis (1986) 161 CLR 513 Smith and Smith (1994) FLC 92-488 |
| APPELLANT: | Ms Jollie |
| RESPONDENT: | Mr Dysart |
| INDEPENDENT CHILDREN'S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCC | 318 | of | 2012 |
| FIRST APPEAL NUMBER: | EA | 158 | of | 2013 |
| SECOND APPEAL NUMBER: | EA | 160 | of | 2013 |
| DATE DELIVERED: | 15 August 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Murphy JJ |
| HEARING DATE: | 3 February 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 October 2013 |
| LOWER COURT MNC: | [2013] FamCA 762 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr North SC |
| SOLICITOR FOR THE APPELLANT: | Catherine Henry Partners |
| THE RESPONDENT: | Self Represented |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: | Legal Aid NSW: Not participating |
Orders
The appeal in EA 160 of 2013 be dismissed.
The Application in an Appeal filed by the appellant mother on 10 January 2014, insofar as it seeks leave to file an Amended Notice of Appeal dated 13 December 2013, is granted.
The Application in an Appeal filed by the appellant mother on 18 November 2013, having been discontinued during the hearing of the appeal, is dismissed.
The Application in an Appeal filed by the respondent father on 29 January 2014 is dismissed.
The Application in an Appeal filed by the respondent father on 18 November 2013 is dismissed.
The appeal in EA 158 of 2013 be allowed in part.
Paragraphs 23, 24 and 25 of the orders made by Cleary J on 9 October 2013 be set aside.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“Costs Act”) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payment under the Costs Act to the appellant mother in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent father a costs certificate pursuant to the provisions of section 6 of the Costs Act being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payment under the Costs Act to the respondent father in respect of the costs incurred by him in relation to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jollie & Dysart has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 158 of 2013 and EA 160 of 2013
File Number: NCC 318 of 2012
| Ms Jollie |
Appellant
And
| Mr Dysart |
Respondent
And
| Independent Children's Lawyer |
REASONS FOR JUDGMENT
The mother of the child H (born 2001) appeals parenting orders made by Cleary J on 9 October 2013.
Her Honour’s orders were made within the context of complicated family dynamics. The orders, expressed to apply “…until [the child] is 16 years of age (2017)…”, significantly altered interim orders entered into by consent on 18 July 2012 and represented a significant departure from the long-standing agreed care arrangements that had existed prior to the making of the July 2012 interim orders. In addition to ordering that the child was to live with his father and that the father was to have “sole parental responsibility” for him, the orders provided for time with the mother that, in light of the child’s age and the pre-existing care arrangements, might be seen as restrictive. Her Honour’s orders also provided for a recovery order to issue but to lie in the Registry pending a breach of the type specified in the orders.
Some of those orders are the subject of specific challenge in this appeal.
It is asserted correctly on behalf of the mother that, in the heading preceding [200] of the reasons, in the course of enumerating the matters referred to in s 60CC(2) and (3) of the Family Law Act 1975 (Cth) (“the Act”), her Honour errs in citing s 60CC(3)(c). Her Honour cites the terms of the subparagraph repealed by the 2011 amendments to the Act.[1] One issue in this appeal is whether that error sounds in her Honour having taken account of irrelevant considerations or having failed to take account of relevant considerations (see, House v The King (1936) 55 CLR 499 at 504, per Dixon, Evatt and McTiernan JJ).
[1]Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), Schedule 1, Items 18 and 19. The version of s 60CC(3)(c) quoted by her Honour was repealed and replaced by the current subparagraph and subparagraph (ca) was added to the subsection. In fairness to her Honour, however, it ought be noted that the Initiating Application instituting the proceedings the subject of the instant appeal was filed one day after the repeal of the version of s 60CC(3)(c) cited by her Honour took effect.
Her Honour explicitly placed significant weight on a report from a single expert psychiatrist Dr K. Orders made by her Honour can be seen to flow directly from recommendations made by that doctor (and, to one degree or another, from submissions by the Independent Children’s Lawyer). A central issue in this appeal is whether her Honour erred in attributing the weight which she did to that evidence.
Senior counsel for the mother acknowledged the difficulties confronting an appellant in challenging on appeal a trial judge’s attribution of weight. Counsel’s concession is well founded in authority. Here, however, it is said that the error runs deeper; counsel argues that the doctor’s opinions lack probative force because they are not informed by a process of reasoning that leads to the conclusions reached. The mother’s primary argument is that, when properly examined in the light of other cogent evidence before her Honour, it was erroneous to attribute to Dr K’s evidence the probative force which it was given.
Separate to those central matters, a challenge is mounted – effectively as an alternative although based on the same arguments as to weight – to the order for time and to the recovery orders made by her Honour. Her Honour’s power to make the recovery orders was the subject of written submissions ordered to be delivered subsequent to the hearing of the appeal and which were in fact presented by both parties.
There was also before us a second appeal by the mother, namely an appeal against the refusal by the trial judge on 11 October 2013 to stay the operation of her Honour’s orders. During the course of the hearing of the substantive appeal, senior counsel for the mother indicated that the stay appeal “…can just follow the event of the substantive appeal…” By that submission, we understood senior counsel to be contending that success in respect of the stay appeal depended (effectively) upon success in the substantive appeal. For the reasons that follow, the substantive appeal has been largely unsuccessful. Significantly, in terms of the merits of the stay appeal, the mother has failed in her challenge to the orders placing the child in the father’s primary care, those orders being the primary focus of the mother’s stay application. Accordingly, we propose to dismiss the mother’s appeal against her Honour’s refusal to stay the operation of her orders. It should also be noted that the father had filed an Application in an Appeal to adduce further evidence in respect of the mother’s stay appeal. Given the manner in which we have disposed of the mother’s stay appeal, it is unnecessary to consider the father’s Application in an Appeal; for completeness, we will dismiss it.
The Wife’s Application to Amend the Grounds of Appeal
The mother’s Amended Notice of Appeal was served on the respondent father on 13 December 2013 – that is, some eight weeks prior to the hearing of this appeal. Her summary of argument was due to be filed on or before 25 November 2013. Consequently, leave is required to file the Amended Notice of Appeal (r 22.09, Family Law Rules 2004 (Cth)).
The father is self-represented. He consents to the amendment to ground 7 (which, in effect, corrects a typographical error), to the proposed ground 10, and effectively concedes that he is not prejudiced save in respect of the proposed ground 9 which, in broad terms, raises an issue of law about which the husband says he “would have sought advice”. His opposition to leave is principally confined to that ground.
Leave was granted at the hearing of the appeal and the parties were advised that our reasons for so ordering would form part of these reasons.
The grant of leave is governed by the interests of justice which include, importantly, a consideration of any prejudice to an opposing party if leave is given.
That consideration can be seen to be particularly important when a party is self-represented. Here, the father is a health professional, is plainly highly intelligent and articulate and his written outline of argument, which, he informs us, was prepared without legal assistance, evidences a very high level of understanding and articulation of the issues in this appeal.
The appeal was expedited by order of Ainslie-Wallace J on 20 November 2013. The father says that care of the child consequent upon the trial judge’s orders has been a pre-occupation and so much could hardly be doubted. Yet, the father has had eight weeks to prepare such arguments as he might. The Appeals Registrar advised the father via email sent to both parties on 14 January 2014 that he should seek advice should he so choose, and specifically as to the issue the subject of ground 9. We are satisfied that he could have done so had he so chosen.
The amended grounds of appeal better elucidate the basis of the appeal and the issues underlying it. The appeal was expedited because the trial judge’s orders change an existing care arrangement and the trial judge refused a stay. The child’s best interests require the earliest possible determination of outstanding issues relating to his care.
It is for those reasons that leave was granted.
The Husband’s Application to Adduce Further Evidence
On 29 January 2014, the father filed an Application in an Appeal seeking, among other things, to adduce further evidence. The Application was refused by us at the hearing. Again, the parties were advised that our reasons for that refusal would form part of these reasons.
The principles applicable to the receipt of further evidence are well settled. In respect of applications to this Court, they are conveniently summarised in CDJ v VAJ (1998) 197 CLR 172. The evidence sought to be adduced, contained in the father’s affidavit accompanying his application, can, broadly speaking, be described as his comments and opinions in respect of the child H’s behaviour subsequent to the hearing. At best, the evidence could be described as “useful” and, as McHugh, Gummow and Callinan JJ made plain in CDJ at [113], that is not, in and of itself, a sufficient basis for admitting further evidence on appeal.
The evidence, if admitted, would almost certainly be the subject of challenge by the mother. Any such challenge would, given the nature of the evidence, require a finding by this Court as to the father’s credibility, and this Court is not equipped to undertake that task.
It was for those reasons, together with the tenuous relevance of the evidence, that the father’s application to adduce further evidence was dismissed.
The Issues that Confronted the Trial Judge
As noted, the father is a health professional. So is the mother. Both parties had remarried prior to the trial. At the time of the trial, the mother was apparently separated from her new husband. The father has two daughters with his current wife.
The parties have three children, the child H being the youngest. Shortly after the parties separated in 2004 (at which time their three children were approximately 13, eight and three years of age), “…the parties came to an equal time arrangement for all three children” (reasons at [6]). In 2007, consent orders were made “…confirming the equal time arrangement for [the child H] alone” (reasons at [8]). The parties’ two older children, it seems, moved between the parties’ homes, living exclusively with each parent for extended periods. At the time of the trial before her Honour, the parties’ eldest child Y was living independently of the parties, the child H was living with his mother (it appears that the child H ceased spending equal time with both of his parents in early 2012) and the parties’ other child, U, was living with the father, having moved into his father’s home in 2010 (reasons at [8]).
Several months after the child U moved into the father’s home on a full-time basis, he ceased spending time with his mother. Thereafter, he did not see or speak to her for a period of about eight months and saw her on only about 10 occasions in the next three years (mother’s affidavit filed 28 March 2013 at [242]).
Each of the parties’ three children has suffered from physical and/or mental health issues. In that respect, her Honour records at [3] of her reasons that:
The [Dysart] children have all experienced issues involving their mental and physical health. [Y] has mild cerebral palsy, a learning disorder and in the view of one if not both parents, Obsessive Compulsive Disorder. [U] suffers from anxiety and was hospitalised for treatment of an eating disorder. [H] suffers from anxiety and has had behaviour problems at school.
Prior to the trial, the father’s home comprised himself, his wife, his two daughters (then aged about three years and four months, respectively) and U. As noted, at that time U was suffering from anxiety and an eating disorder. The child H was living with the mother. The mother’s husband (from whom she had separated in early 2012) was, on occasions, also staying at the mother’s home although, as her Honour found, by the time of trial he had “…not been a member of the household for more than a year…” (reasons at [47] and [49]).
In addition to the “anxiety” and “behaviour problems” confronting the child H, the mother’s mental health featured prominently in the proceedings before her Honour. It is uncontroversial that the mother has suffered from depression and has previously attempted suicide (reasons at [15]).
It is also uncontroversial that, prior to the trial and, indeed, prior to the child H ceasing to spend equal time with his father in March 2012, the parties had a highly conflicted relationship marked by a lack of communication.
The Orders Made by the Trial Judge
Dr K in his report refers to consent orders having been made on 18 July 2012 (that is, after the child H had ceased spending equal time with father). Those orders are not in the appeal books, but perusal of the file confirms that orders were indeed made by consent on that date which provided for time between the child H and the father to gradually increase to about eight hours each week (with no overnight time). Despite those orders, it seems that, by the time of the trial, H had spent very limited time with his father since March 2012.
Her Honour ultimately ordered that the child live with his father, spend (eventually) two nights per fortnight with his mother and that his father have “sole parental responsibility” for him.
Plainly, the orders made by her Honour represented a very significant departure from the pre-March 2012 arrangements and represented an even greater departure from the situation that had pertained in the approximately 18 months prior to the trial.
As noted earlier, paragraph 2 of her Honour’s orders provides that “…until [the child] is 16 years of age (2007) parenting orders are as follows…” Orders allocating parental responsibility and regarding who the child is to live, spend time and communicate with, ensue (together with other orders, some of which will be discussed later in these reasons). On their face, all of the orders (or, at least, all that might be classified properly as “parenting orders”) are, as a result of paragraph 2, intended to cease when the child turns 16.
Paragraph 2 is not, itself, an order. However, it is plain that, despite each of the succeeding paragraphs appearing separate to it, her Honour intended that the condition contained in paragraph 2 was to apply to each of the ensuing “parenting orders” and we will treat it as such in these reasons. No part of the reasons directly addresses the rationale for the condition contained in paragraph 2, but read as a whole it appears that her Honour assumed that, by that age the child will be old enough to, effectively, make his own decisions. No challenge is mounted to that aspect of the orders.
In the absence of specific reasons, we are by no means persuaded of the utility of such an order which, on its face, might be regarded as requiring an adolescent boy to make decisions which would otherwise come within the “duties, powers, responsibilities and authority” held by those who have parental responsibility for him – which, given the contents of paragraph 2 of her Honour’s orders, will, once the child turns 16, be both his mother and father (see, s 61C of the Act[2]). Whilst the condition as to age in paragraph 2 is not, itself, the subject of appeal, the wording may have ramifications for the argument as to her Honour’s power to make a recovery order which is the subject of challenge and will be later discussed.
[2]Paragraph 12.1 of the Orders made by her Honour on 9 October 2013, together with the transcript of final submissions, suggest that her Honour was acutely aware that this would be the effect of the order (transcript of proceedings, 17 September 2014, p 600, lines 33-39).
The child ceasing to spend equal time with his father in March 2012 was, it seems, the catalyst for the parenting proceedings resulting, ultimately, in the trial before her Honour. Having ordered that the child live with the father and that the father have sole parental responsibility for him, her Honour further ordered:
(5)After the expiry of four weeks from the date of these Orders [the child] shall communicate with the Mother as follows:
5.1each week on Wednesday between 6.30 pm and 7.00 pm by telephone or Skype, with the Father to arrange for [the child] to contact the Mother at the number/Skype address supplied by her pursuant to Order 14 herein PROVIDED THAT an adult supportive to the Mother is present with her and an adult supportive of [the child] is present with him on the first four occasions of communication.
(6)In the event that [the child] communicates with the Mother at his instigation or hers in the four week period immediately following the date of these Orders then the commencement of Order 5.1 shall be delayed for a period of four weeks.
(7)In the event that [the child] communicates other than in accordance with Order 5.1 with the Mother at his instigation or hers, after the commencement of that Order, then its operation shall be suspended for four weeks on each and every such occasion.
(8) After the expiry of eight weeks from the date of these Orders:
8.1[The child] shall spend face to face time with the Mother as follows:
8.1.1on two alternating Saturdays commencing 7 December 2013 for a period of five hours from 12.00 noon to 5.00 pm on each occasion;
8.1.2then on alternating Saturdays on two occasions commencing 4 January 2014 for a period of eight hours from 9.00 am to 5.00 pm on each occasion;
8.1.3then on alternating weekends on two occasions from 9.00 am Saturday to 5.00 pm Sunday commencing Saturday 1 February 2014
PROVIDED THAT an adult supportive to the Mother is present on each occasion.
8.2Thereafter each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday commencing 28 February 2014 PROVIDED THAT the Father may thereafter suspend:
8.2.1up to four weekend periods per year for the purpose of holidays [sic] periods for [the child]; and
8.2.2periods of communication pursuant to Order 5.1 during any period of overseas travel for [the child]
PROVIDED THAT the Father gives written notice in advance to the mother of not less than 14 days.
8.3The Father or his nominee is to deliver [the child] to the Mother’s home at the commencement of each period of time and the Mother or her nominee is to return [the child] to the Father’s home at the conclusion of each period of time.
It is accepted on this appeal (whatever else might be said about orders of the type and specificity there made) that there has been compliance with those orders such that the time contemplated by paragraph 8.2 is now in operation. Against the background of past care earlier referred to, it is contended by the mother that the findings made by the trial judge (even if, contrary to that which is contended on her behalf, they be accepted as correct) cannot lead to orders which confine the mother’s time to each alternate weekend with no provision for holiday time, birthdays or other special days (save, of course, as might otherwise fall on the specified weekends).
Additional orders were made that might broadly be described as “pre-emptive enforcement” orders. Her Honour’s reasons read as a whole, and her Honour’s acceptance of the evidence of Dr K suggests that the orders were intended to operate as, in effect, a “sword of Damocles” over the head of the mother seeking to ensure her compliance with them. It seems clear that these orders result directly from her Honour’s acceptance of specific recommendations of Dr K to which reference will later be made. Those orders provide:
(9) In the event of the following:
9.1that [the child] goes to the home of the Mother or meets with her at any time other than in accordance with these Orders;
9.2that [the child] fails to return to the home of the Father at the conclusion of a period of time with the Mother then whether or not the Father has had recourse to the Recovery Order issued pursuant to Order 23 herein, time between [the child] and his Mother will thereafter recommence pursuant to Order 8.1.1 and progress pursuant to Order 8 on each and every such occasion.
…
(23)Subject to Order 24 a Recovery Order is to be issued for [the child] pursuant to s 67Q of the Act and the Marshall, the Deputy Marshall, all Officers of the Australian Federal Police and all Officers of the State and Territory Police are authorised and directed with such assistance as they require and if necessary by force:
(a)to stop and search any vehicle, vessel or aircraft and search and [sic] premises or place for the purpose of finding [the child] born … 2001;
(b)to recover the child;
(c)to deliver the child to [the father].
(24)The execution of the Recovery Order pursuant to Order 23 is stayed until such time as [the child] is absent from the Father’s care without such absence being in compliance with these Orders.
(25)The Recovery Order pursuant to Order 23 is to be executed upon the Father informing the Registrar of the Family Court of Australia at Newcastle that [the child] is absent from his care without such absence being in compliance with these Orders.
Her Honour’s power to make the orders contained in paragraphs 23-25 is the subject of additional written submissions ordered by us and will be addressed later in these reasons.
Her Honour also granted an injunction pursuant to s 68B of the Act restraining the mother from “…making contact and communicating with [the child] in any way other than in accordance with these orders” and an additional injunction restraining the mother “…from providing [the child] with a mobile telephone.”
The Grounds of Appeal
The grounds of appeal in the Amended Notice of Appeal are as follows (amendments indicated by strikethrough and underlining):
1. That the Learned Trial Judge failed to provide adequate reasons.
2.That the Learned Trial Judge failed pursuant to section 60CC(3)(a) of the Family Law Act to accord adequate and proper weight to the Child’s views.
3.That the Learned Trial Judge made a suite of orders that were not pursuant to section 60CA of the Family Law Act in the Child’s “best interests”.
4.That the Learned Trial Judge failed to adequately take into account the Father’s post-separation care of the Child’s older siblings.
5.That the Learned Trial Judge failed to take into account as to the Father’s household issues of alienation and alignment.
6.That the Learned Trial Judge gave excessive weight to the report of the Chapter 15 Single Expert.
7.That the Learned Trial Judge failed to adequately take into account the Child’s anxiety prior to and after March 2012 and circumstances in the paternal home that may have
attributedcontributed to that anxiety.8.That the Learned Trial Judge failed to adequately take into account the non-disclosure by the Father and/or [Ms G, the father’s current wife] of their mental health history in a frank and open way.
9.Her Honour erred in that in reaching a determination as to the child’s best interest her Honour failed to have regard to the considerations under s.60CC(3) of the Act that applied to the proceedings but had regard to matters other than matters under s.60CC(2) or (3) of the Act and thereby failed to have regard to the matters that she was required to consider by s.60CC(1) of the Act.
10.Her Honour’s findings at paragraph 204 of her Reasons for Judgement was contrary to the evidence and not one reasonably open on the evidence.
8.11. The Learned Trial Judge failed to give consideration or adequate consideration to the father’s role in the empowerment of [the child] after [2012].9.12. That the Learned Trial Judge failed pursuant to section 60CC(3)(1) of the Family Law Act to make orders that are least likely to lead to the institution of further proceedings between the parties in relation to the Child.
Child’s Views and Further Proceedings - Grounds 2 and 12
These grounds of appeal received no further elucidation either in the written submissions filed on behalf of the mother or in oral submissions by senior counsel on her behalf. To the extent that they are pressed, they can be dealt with briefly.
Her Honour had express regard to the child’s views in her reasons. Indeed, under the heading “Section 60CC(3)(a) – any views expressed by the child and the weight it should give to the child‘s views” her Honour stated:
196.[The child] is expressing a strong wish to live with his mother and to spend time with his father, step-mother, brother and little sisters at a time directed by him.
197.[The child] is a 12 year old boy starting high school next year. He is intelligent and thoughtful. He is not mature enough to understand that taking his mother’s side and looking after her emotionally is not what he should be doing.
198.I give weight to [the child’s] expressed views that he wants a relationship with both parents, but not to his insistence on his own control over events.
We can see no error in her Honour’s treatment of the child’s views. The child was interviewed by Dr K. No challenge is made to his observations. Her Honour’s reasons accurately reflect the doctor’s evidence not only as to the child’s expressed views but how, in the doctors’ opinion, they should be viewed by her Honour. Her Honour accepted the doctor’s evidence in that respect and we can see no error in her Honour doing so.
There is no merit in ground 2.
As to ground 12, it appears, in terms, to assert an error of law: that her Honour made orders that were more likely to lead to further litigation when alternative orders would not do so. No alternative orders were suggested as having the latter effect in contrast to the orders that were made. Argument that can be seen to embrace this ground is in fact argument directed specifically to the making of the recovery order and other orders that might be seen as “pre-emptive enforcement” orders, each of which will be dealt with in some detail later in these reasons.
In so far as argument is directed to the broader challenge of an asserted failure linked to s 60CC(3)(l) of the Act, her Honour’s reasons exhibit a careful consideration of that issue (among many others) that were, by reference to the evidence before her, critically important to the child H’s best interests. Specifically, her Honour made explicit reference to s 60CC(3)(l) and, in doing so, accepted the evidence of Dr K that, if orders were not made altering the existing care arrangement for the child, further issues were likely to arise as to time between the child and the father (reasons at [213]-[214]).
There is no merit in ground 12.
The Reference to The Repealed s 60CC(3)(c) - Ground 9
At [190] of the reasons, under the heading “The Law”, her Honour states specifically that she has “take[n] into account” the matters thereafter listed in the reasons. The headings which follow mirror what her Honour asserts are the relevant mandatory considerations prescribed by s 60CC of the Act. In doing so, as referred to above, there is no doubt that her Honour errs in setting out s 60CC(3)(c) for the reason identified by the mother: the 2011 amendments which repealed that subparagraph and replaced it with a new subparagraph (c) and inserted subparagraph (ca), became operative prior (albeit only one day prior) to the filing of the mother’s Initiating Application.
Ground 9 asserts that, as a result, her Honour erred by failing to take account of relevant considerations (“the considerations under s 60CC(3) of the Act that applied to the proceedings”) or took account of irrelevant considerations (“…had regard to matters other than matters under s 60CC(2) or (3) of the Act). As a result of either or both it is said that her Honour “…failed to have regard to the matters that she was required to consider by s 60CC(1) of the Act.”
The written outline filed on behalf of the mother cites Collu & Rinaldo [2010] FamCAFC 53 in support of the argument and, in particular, relies upon those parts of that judgment which cite with approval Smith and Smith (1994) FLC 92-488. In Smith, this Court (Ellis, Baker and Kay JJ) referred, at 81,084, to a “preferable approach” involving the separate consideration of the (then) statutory matters. That guideline is, in the context of what the Act now requires, nothing more than an exhortation to apply system and order to that which the Act, and s 60CC in particular, mandatorily requires. What the Act mandates is a “consideration” – a mental process of analysis – that has proper regard to such of the enumerated matters as are judged to be relevant to the particular circumstances of the child H involved. Of course, the law also requires of a judge reasoning which is adequate to evidence that process of analysis (the required “consideration”) and to explain, consequently, the path to the ultimate result.
Yet, neither s 60CC nor any other section or Part of the Act requires a judge’s reasons to deal seriatim with each of the s 60CC considerations. Indeed, doing so can sometimes obfuscate the matters which are judged, properly, to be central to the ultimate determination of a child’s best interests and the orders which best meet them. That central determination, as has been explained regularly and exhaustively in the authorities, involves the exercise, ultimately, of a very wide discretion. That it remains so despite the mandatory requirements of s 60CC is evident from s 60CC(3)(m) and s 60CA.
If the matters considered by her Honour under the erroneously cited s 60CC(3)(c) are matters properly relevant to the determination of the child’s best interests, the error will not have infected her Honour’s exercise of discretion.
Under the erroneous sub-heading, her Honour considers aspects of the evidence that led to a finding, at [204], directed to the father “…understand[ing] the value of [the child] maintaining his relationship with his mother and the warmth and support she unfailingly provides.” That finding is the subject of a separate challenge in ground 10 (to be later addressed). However, in the context of considering what orders would best govern the child’s living arrangements and the time to be spent with the other parent, it cannot be said that a consideration of that matter is irrelevant to the decision as to the child’s best interests; indeed we consider it highly relevant including by reference to s 60CC(3)(d). That the finding was headed erroneously by a reference to the repealed subparagraph of s 60CC(3) does not render it irrelevant. In that respect, the error made by her Honour might be distinguished from an error of law which renders it unsafe for this Court to conclude that the correct principles have been applied (see, for example, Cox & Pedrana (2013) 48 Fam LR 651).
As to an asserted failure to take account of relevant considerations (that is, the matters set out in the new subparagraphs (c) and (ca)), there was no suggestion before her Honour that the father had failed to avail himself of the opportunity to participate in the making of decisions regarding major long-term issues, nor was there any suggestion that the father had failed to take the opportunity to spend time or communicate with the child H (s 60CC(3)(c)). Similarly, there was no suggestion that the father had failed to fulfil his “…obligations to maintain the child” (s 60CC(3)(ca)).
In those circumstances, we are not satisfied that her Honour’s error in citing the repealed s 60CC(3)(c) warrants intervention by this Court. Ground 9 fails.
Grounds 4 -8; 10,11 - The Challenges to Weight
Ground 6 challenges, in terms, the weight given by her Honour to Dr K’s evidence, and each of the grounds just enumerated are, in the mother’s argument, connected to that challenge. Further, broader contentions supporting the challenge in ground 6 are effectively summarised at [61] of the mother’s written submissions: “…the trial and her Honour’s reasons [became] dominated by a consideration of the impact of the mother’s personality traits or possible disorder to the almost total exclusion of … other significant considerations.”
That contention, in turn, is also connected to the challenge in other grounds. The mother’s written submissions in respect of ground 4 reference her Honour’s finding (at [204]) that the father “…understands the value of [the child] maintaining his relationship with his mother and the warmth and support she unfailingly provides” and proceeds to contend that grounds 4, 5, 6, 7, 8, 10 and 11 “…assume importance” in light of that finding. Simply put, though the central challenge raised by those grounds is that her Honour erred in attributing too much weight to certain evidence (specifically, Dr K’s evidence) and too little weight to other evidence and, as a result, the finding at [204] was not reasonably open to her Honour.
As noted earlier, senior counsel for the mother readily acknowledged the difficulties confronting an appellant challenging the weight given by a trial judge to particular evidence. As was pointed out by Kirby J in CDJ at 219 “[b]est interests are values, not the facts”. Further, the “essence” of the discretion conferred upon courts exercising jurisdiction under the Act is such that “…on the same evidence two different minds might reach widely different decisions without either being appealable” (Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345 cited in Norbis v Norbis (1986) 161 CLR 513 at 540). Similarly, as Brennan J observed in Norbis (at 540):
[t]he ‘generous ambit within which reasonable disagreement is possible’ is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community.
For the reasons which follow, we are not persuaded that the weight attributed (or not attributed, as the case may be) to the evidence the subject of grounds 4, 5, 6, 7, 8, 10 and 11 was such as to take her Honour’s findings as to the child’s best interests and, more particularly, her conclusion that the father “…understands the value of [the child] maintaining his relationship with his mother…”, outside the “generous ambit within which reasonable disagreement is possible”.
Dr K’s Evidence (ground 6)
The extent to which her Honour relied upon Dr K’s evidence is encapsulated by [172] of the reasons:
172.Dr [K] provided a detailed, thorough, comprehensive report which was of immense assistance in understanding the dynamics of this family. His oral evidence was equally helpful.
In preparing his report, Dr K interviewed both parents (twice), their respective partners, the children U and H, and conducted a “family interview with the father’s household and [the child H].” Additionally, Dr K spoke with the mother’s clinical psychologist, a clinical psychologist who had seen the child, as well as the child’s principal, teacher and school counsellor.
Dr K opined in his report that:
140.I am concerned that whilst at a conscious level the mother is deeply committed to the child’s welfare, in practice the nature of this relationship is such that if this relationship continues to take primacy in the child’s life, the result will be detrimental to the child’s welfare and will disrupt his personality development and his personal and interpersonal functioning.
141.In addition, I am concerned that whilst the mother-child relationship continues to take primacy in the child’s life, the child will continue to play out a hostile, ambivalent relational process with the father which (like the mother’s relationship with the father) will remain enmeshed but unresolved.
142.There is considerable parentification of the child in the mother-child relationship, and associated pseudomaturity in the child.
143.Parentification refers to the child being concerned for the parent’s welfare, and focussed on meeting the parent’s needs, rather than the other way around.
144.Pseudomaturity refers to the child having an “old head on young shoulders”, in that he has had to worry about, weigh up, and adapt to serious matters from a young age, such that he has a greater understanding of some adult matters than does the average child his age, and a related greater than average adaptive capacity. The maturity is “real”, in that it contributes to a real capacity to manage complex adult matters, but it is “pseudo” in that this management occurs without an adult foundation of wisdom, experience and brain development, and hence is associated with a lot of anxiety and with the risk of unwise decisions.
…
151.[The child] went on to tell me that when he was at dad’s, he would get really worried that mum would kill herself, or get hit by a car, or get murdered. But, he wasn’t allowed to take the ‘phone into his room, to have a private conversation. “It was upsetting, [his step-mother] listening to our conversations.”
152.I asked what [the child] said, with the father’s partner listening, and what he would have said, if it was private. With her listening, he said, “I love you”. If it was private, he would have said, “Are you OK?”.
153.So, the child describes a long-term pattern of concern about the mother’s welfare, and the risk that the mother may die. This had led to a vigilant desire to monitor the mother’s welfare (by not going to dad’s, or by ringing and asking “are you OK?”) and to make the mother feel better by giving the mother hugs and expressions of love...
…
160.It is not my view that the mother would deliberately alienate the child from the father, but rather that the mother’s intense and distorted perspective will be evident in their shared experience, and will elicit complicit statements and to some extent beliefs from the child.
…
177.But, I note that the child merging with the mother’s negative portrayal of the father is not the main reason for the child’s reticence to go to the father’s home. Rather, the child described the main time that he wanted to stay with mum was as he left her, and the main reason was that he feared that she would not be “OK”. Similarly, the main reason that he sought privacy when talking to the mother on the ‘phone from his father’s home was not to talk negatively of the father, it was to ask, “Are you OK?”
(Bold emphasis in original).
Significantly, in terms of the mother’s challenge Dr K went on to opine:
178.If parentification and pseudomaturity were the only concerning patterns within the mother-child relationship, one might argue that the child’s wish to retain his important role in the mother’s life might be respected…
179.But, in addition to these, I am concerned that the child is showing the extremes of an anxious-ambivalent attachment style in relating to his mother, and that this relational style is extending to his broader relationships, disrupting his emotional wellbeing and character development, and disrupting his ability to accept adult guidance to function at home adult guidance and to function at home and school.
180.In my view, if the mother-child relationship continues to take primacy in the child’s life over the next few years, the child is likely to experience significant emotional and behavioural disturbance, disruption to his relationships at home, school and in the broader community, and distortion of personality development, which will have long-term negative consequences for him and for those to whom he relates.
…
194.…[I]n March 2012, the child moved into the mother’s full-time care. In my view since that time, the child has taken a marked turn for the worse, in terms of his relational style, adaptive functioning and character development.
195.Notably, the child’s anxious-ambivalent strategies have become much more coercive and amplified. The child has switched between presenting to the mother an anxious, not-sleeping, distressed self in need of protection, and a hurt, aggrieved, let down, indignant self demanding acknowledgment and compliance. In this regard, the child has successfully “knocked over” the mother, such that she has not been able to enforce basic boundaries such as school attendance or computer time. The school staff … had noticed how uncooperative and disrespectful the child had become towards the mother.
(Emphasis added).
The trial judge was confronted with a wealth of competing evidence from various psychologists and health professionals. Dr K’s evidence can properly be seen as a consolidation of the bases for rejecting the alternative expert evidence relied upon by the parties. There were, unsurprisingly, competing opinions between those experts and, in turn, opinions by them which differed from Dr K. It was entirely open to her Honour to accept the evidence of Dr K and all the more so when his reports and oral evidence sought to analyse, consolidate and, as the case may be, embrace or challenge alternative opinions.
It was entirely open for her Honour to find that Dr K’s report was “…of immense assistance” and his oral evidence “equally helpful” and to, accordingly, attach significant weight to it.
The Specific Issue of the Improvement in the child’s Emotional/Psychological Health
It was submitted on behalf of the mother that “…over time from January 2013 through to trial [a period of about nine months] there had been a gradual improvement in [the child’s] emotional state and engagement with the school and his father and his household.” The written submissions go on to contend that that improvement was put to Dr K in cross-examination and “…he acknowledge[d] the fact of it.” The submissions refer to certain aspects of Dr K’s cross-examination by the mother’s then counsel in support of that submission. It can be accepted that, as contended, the cross-examination does indicate an acknowledgment by Dr K of improvements in the child’s schooling.
However, we consider that counsel’s submissions ignore the broader context within which those concessions were made including, very significantly, the maintenance by Dr K of his very real concerns regarding the degree of control afforded to the child by his mother. Those concerns permeate Dr K’s cross-examination. For example:
MR TREGILGAS: And do you agree – sorry, I withdraw that. In terms of [the child’s] current presentation, you are aware that he sat for a selective school exam on 14 March this year?
DR [K]: Yes.
MR TREGILGAS: And you are aware that he was successful in that?
DR [K]: Yes.
MR TREGILGAS: And that would be – that would be indicative, wouldn’t he, that in his mother’s care, at least some of his anxiety is ameliorated. Do you agree with that?
DR [K]:I think quite a bit of his anxiety is ameliorated because he is in a position where he can choose whether or not he can see the father. He is with a teacher that he prefers, that the mother requested that he now has. There is a circumstance where he is being quite looked after by that teacher. There’s regular emails between mother and the teacher. If he has got a problem with one of the kids, the teacher gets in there and helps sorting it out. If he asks his mum to reduce his Mathletics from the harder to the easier, there’s an email back the next day saying, “I have done that.” So his anxiety is reduced and I believe that, in the short term, and maybe even in the longer term, his anxiety may be increased by a transition to his father’s care, but I’m concerned about the impact on his character development and his overall wellbeing of his current environment, even if there is less anxiety.
…
MR TREGILGAS: And I take it that you have seen a copy of his current school report?
DR [K]:Yes.
MR TREGILGAS: And again, that would seem to indicate that in terms of schooling for the first six months of this year, his schooling has been going along reasonably well?
DR [K]:Yes. I do have concerns. I’m encouraged by the fact that he has settled down. Reading that report, he seems much happier. His school attendance is better, but I do have concerns in that it’s a very supported environment which is very much still in the paradigm of [the child] having a lot of say. So he did get – he knows he got the teacher he asked for and he told me, with a smirk, that – towards the end of last year that his teacher at that stage was being good now, probably because she might get in trouble. There’s a lot of email traffic between that teacher, who is the assistant principal, and the mother. So I think that’s a managed environment with a challenging mother, would be my view. When I spoke to that teacher over the phone, she had a bit of a concern that the feedback she had got from the mother just that week about the kid – a certain child being negative to [the child] may have been because that child had stolen the limelight in the class earlier that day and she wondered whether [the child H], when he doesn’t get the limelight, got jealous and that fits with what the mother said to the teacher, which was that [the child H] claimed that that child always said, “I’m better than you.” So this child is really being treated with kid gloves, and I suppose the other comment I would make is that persons with borderline personality function are good at bonding with one person against a common enemy. Now, if the court comes to the view that the mother has borderline personality functioning, at the moment the mother and child are combined against the common enemy of the father. There’s awareness of the court process. The child is aware he has got to get to school; he has got to look functional. I would be concerned that, as in 2012 when the child disliked aspects of school, the mother did not have the capacity to get him to school and the best case scenario for the next four years until 16 is that nothing particularly bad happens in the mum’s life or the child’s life, and they go along like they are now, which I still think will create a weaker character, but the kid will do all right, but I’m concerned that if mum has a crisis in her life, or if the child has one, this is not a resilience set up, and I think that was demonstrated in 2012. So that would be my view.
…
MR TREGILGAS: And that’s a dramatic improvement on 2012, isn’t it?
DR [K]:Very much so, but there’s still – there’s as two week period of being off with a cold where the teacher is often saying, “He could try tomorrow,” you know, “tomorrow is quite a light day. We could send him home if he has trouble.” So there’s still a fragility there that concerns me in the context of an anxious ambivalent attachment where, just like all the other adults in his life don’t have much power over him, the mother doesn’t have much power over the child either, is my view.
…
MR TREGILGAS: And I take it then, sir, to move to the next topic of this, you have seen the proof of evidence of [Ms D], his current teacher … And that seems to indicate again a dramatic improvement in [the child’s] capacity to deal with various things at school. Do you agree with that?
DR [K]:An improvement, yes, but as I said, my view is it’s still being very managed.
MR TREGILGAS: And that’s again – that report is in the context of [the child] mainly being in his mother’s care this year. Do you agree with that?
DR [K]:Yes.
MR TREGILGAS: And do you agree, sir, that he is -
DR [K]:See, part of 2012 there was some big swings in the mother’s presentation of [the child]. One minute – she would be saying at one stage, “He seems to be heaps better,” and then at other times, “He seems to be much worse,” and there was a dynamic where the worse he was, perhaps the less likely he was to have to see his father, whereas there’s now a dynamic where there’s a real need for child and mother to demonstrate function in this context and it’s my view that those things have contributed significantly to the change because the period in 2012 where he had a lot of struggle, was also in the mother’s care.
(Transcript of proceedings, 16 September 2013, pp 505-508. Emphasis added).
As that extract makes plain, the doctor’s opinion was that the acknowledged improvements were occurring in the context of the adults in the child’s life treating him with “kid gloves” and none of those adults “hav[ing] much power over him”. Her Honour plainly had that broader context, and the significant concerns expressed by Dr K very much in mind. We see no error in her Honour doing so.
Additionally, we consider that counsel’s submission overlooks her Honour’s finding that any improvement also occured in a context where:
32.Between February and August 2013 [that is, one month prior to the trial] [the child] missed part or the whole of a school day on 58 occasions. The mother denied that she had been advised in writing by the school of that fact. She conceded that she had received [the child’s] school report, but denied knowledge of a letter which appeared to be a covering letter, referring to the school report being enclosed. The mother said simply that she had not looked at his school attendances and did not know there had been so many.
33.Later in her evidence she changed this and said that she had received a handwritten note from the school alerting her to absences and that she had spoken to [the child] about it. He explained that he had difficulty getting to school on some days when the mother had already left for work. On balance, I consider it likely that the mother was well aware of the majority of [the child’s] failures to attend school and was unconcerned about it, or more likely had been unable to get him to attend on time and sometimes at all.
(Footnote references omitted).
Taken together, the evidence accepted by her Honour renders unpersuasive the mother’s written submissions that “… the mother’s gentle and less coercive approach to [the child], was bearing fruit and its significance was not sufficiently acknowledged in the Reasons.” There was an absence of evidence for the broad premise contained within the submission and her Honour’s reasons, far from not sufficiently acknowledging it, contained reference to evidence, accepted by her Honour, which cast doubt upon it.
For example, Dr K opined specifically that the child’s “improvements” were occurring in the context of the adults in his life not having “much power over him” and in circumstances were the child and his mother were likely to be aware of the “…need for [each of them] to demonstrate function…” Her Honour accepted that evidence:
182.I accept that the improvement this year for [the child] is probably a result of micro-management of his situation so that nothing upsets him. I note Dr [K’s] statement:
Parenting is a contribution to the raising of the child, not just choosing what the child wants.
The submissions of counsel for the mother in that respect should be rejected and we can otherwise see no error.
That conclusion, and the proper context for Dr K’s concession as to “improvement”, also disposes of the contention in the mother’s written submissions that the child’s alleged “marked improvement” at school, together with “…an increasing willingness to engage with his father [and] his father’s household … are matters that point to Dr [K’s] hypothesis concerning the mother’s mental personality not being the sole or even central matter to be considered in determining the child’s best interest[s].”
The father’s home and the child’s mental wellbeing – Grounds 5, 7 and 11
Common to grounds 5, 7 and 11 is the contention that her Honour failed to have sufficient regard to factors in the father’s home (and conduct on the part of the father) when considering the child’s mental wellbeing both prior to and following the cessation of equal time in March 2012.
The father’s empowerment of the child – Grounds 7 and 11
The mother contends in ground 11 (and also, to an extent, ground 7) that her Honour “…failed to give consideration or adequate consideration to the father’s role in the empowerment of [the child] after 16 March 2012”. Senior counsel for the mother’s written submissions make specific reference to a telephone conversation between the child and his father on 13 June 2102 and to an email deposed to at [55] of the mother’s affidavit of evidence in chief. The mother deposes there to the father requiring that the contents of the email be conveyed “verbatim” to the child.
The father accepted that he had sent the email. Relevantly, it included the statement that “I will not try to make you come here”. During his cross-examination the father conceded that this constituted “partial empowerment”, with “‘partial’ being the operative word”. Additionally, the father conceded when cross-examined that, in the 13 June 2012 telephone conversation with the child, he said he was going to let the child live with his mother.
It is contended on behalf of the mother that her Honour does not refer to this email in her Reasons. So much is true. It is submitted further that this failure is indicative of her Honour failing to take account of a consideration directly relevant to the child’s best interests, namely the father seeking to “empower” an adolescent boy.
While it is true that her Honour does not refer to that email, the transcript of proceedings and [137]-[138] of the reasons make plain that her Honour considered this issue, and in some depth. For example, during the father’s cross-examination, this exchange occurred:
HER HONOUR: …Why did you tell him that [he could live with his mother]?
[THE FATHER]: Because I – because it was the truth. It – if – if we continue with this conversation, I mean, it was – I – I had actually – I was pretty distressed at the time, and I – I actually had sort of – well, it was a pretty weird conversation – I had actually made – sort of more or less made up my mind that that was the right thing to do, was to - - -
…
HER HONOUR: Yes. But what I’m wondering was … why you told him. Leaving aside that it was the truth, that that’s what you were … presently thinking, why did you pass it on to him at that time?
[THE FATHER]: I – I guess because – because that – it appeared to be the case, the words of coercion and force have been used in court, and I believe that they had been bandied around and [the child] was under this sense that I was forcing him and coercing him, and I guess that I was distressed that that was the primary problem that was causing his anxiety, and I wanted to – and I guess it was said in the – it was said in the same spirit that I sent the email to – to him much, much earlier where I said, you know, “I’m not going to – I’m not going to try and push you to see me.” ...
HER HONOUR: So to be clear … you told him because you wanted ameliorate the idea that he thought you were forcing or coercing him?
[THE FATHER]: Correct.
(Transcript of proceedings, 13 September 2013, pp 345-346).
As to [137]-[138] of her Honour’s reasons, they include the significant finding that the father’s statement to the child that he would let the child live at his mother’s was:
…a completely insightless thing to do, with all the potential for creating false hope that [the child] would have his wishes met and lack of trust when it did not come to pass. It was a self- indulgent thing for the father to do and surely contributed to the deterioration in [the child’s] relationship with his father.
Her Honour was plainly aware of the father’s “self-indulgent” conduct following the cessation of equal time in March 2012, and was appropriately critical of the potential for that conduct to have created “false hope that [the child] would have his wishes met…” The evidence, taken as a whole, does not lead to a conclusion that her Honour “…failed to give consideration or adequate consideration to the father’s role in the empowerment of [the child] after 16 March 2012.” Rather, it reveals her Honour, with respect properly, locating the father’s conduct within a broader context, including Dr K’s evidence and evidence of conduct on the part of the child and his mother in respect of his schooling earlier referred to.
Further, taken in isolation, the challenge in ground 11 ignores the opinions of Dr K (accepted by her Honour) that:
194.…[I]n March 2012, the child moved into the mother’s full-time care. In my view since that time, the child has taken a marked turn for the worse, in terms of his relational style, adaptive functioning and character development.
195.Notably, the child’s anxious-ambivalent strategies have become much more coercive and amplified. The child has switched between presenting to the mother an anxious, not-sleeping, distressed self in need of protection, and a hurt, aggrieved, let down, indignant self demanding acknowledgment and compliance. In this regard, the child has successfully “knocked over” the mother, such that she has not been able to enforce basic boundaries such as school attendance or computer time. The school staff … had noticed how uncooperative and disrespectful the child had become towards the mother.
(Emphasis added).
The emphasised portions of the preceding extract from Dr K’s report, together with the oral evidence given by Dr K set out earlier, plainly reveal that, in the doctor’s opinion, in the mother’s care the child was given complete control over almost every aspect of his life.
There is no merit in either ground 11 (or in ground 7 insofar as it pertains specifically to the issue just discussed).
The impact of U’s mental health issues on the child– Ground 7
A second specific issue raised in ground 7 is the contention that her Honour “…failed to adequately take into account the Child’s anxiety prior to … March 2012 and circumstances in the parental home that may have contributed to that anxiety…” In the absence of further elucidation, it is difficult to understand what alleged “circumstances” in the father’s home are said to have “…contributed to … [the child’s] anxiety…” The written submissions on behalf of the mother appear to suggest that the “circumstances” are “…the stressors in the father’s household relating to [U]…” (see, for example, [22]-[27] and [52] of the written submissions).
Her Honour expressly addressed the impact of U’s issues on “capacity in the father’s household” at [122]-[123] of the reasons:
122.The proposition was put to the father that it may be a burden that his household could not bear, to have [the child H] with all his emotional difficulties in the same household as [U]. The father rejected this proposition.
123.The father conceded that [U’s] mood swings made him moody, irritable and sometimes more angrily reactive than could have been predicted. [U] sees a psychologist once a week and a supervising psychiatrist about every three months. He is taking medication, perhaps for anxiety.
Her Honour acknowledged that the child H had told his mother that he “felt unloved and stressed out in his father’s household”. Very significantly in respect of the challenge in ground 7 and to the “weight challenges” more broadly, her Honour said:
50.In March 2012, [the child] told his mother he felt unloved and stressed out in his father’s household. She did not take the opportunity to reassure him of his father’s love or to contact the father. She simply told him to talk to his father about it.
51.Since then [the child] has been caught in a power play between his parents and has become a player himself. He is increasingly insisting on having his own way. I accept the advice of Dr [K] that there are very real risks for [the child’s] character development and mental health in continuing to be supported by his mother in having “the freedom to live where he wants and to see his father as often as he wanted”.
(Emphasis added).
The emphasised aspect of the preceding paragraphs of her Honour’s reasons encapsulates, in our view, the very significant difficulty confronted by the mother in challenging specified, isolated, aspects of the evidence and her Honour’s reasons; specific findings need to be placed in the context of the reasons read as a whole.
While there can be no doubt, as her Honour expressly identified, that the impact of U’s mental health issues on the child H’s wellbeing when in the father’ s home was a relevant consideration, that factor needs to be considered in the context of other evidence, in particular that which was referred to by Dr K in support of his opinion that “[t]he child’s presentation changed markedly for the worse after his transition to the mother’s care”, and the doctor’s opinion that this decline was as a result of the mother having been “knocked over” by the child. Her Honour’s acceptance of those findings is not specifically challenged and they were well open to her.
Those findings have an important context. Dr K recorded in his report:
226.The brother [U] spoke positively of the household and of the child’s experience of the household, and the sister [Y’s] attitudes to the household, the father and the father’s partner as expressed in the notes of her therapy, were also in synchrony.
227.When I spoke with others who had known the father, his partner, and the child with that household over time, including in the lead-up to the current rupture (that is, [a clinical psychologist who had input with the family “for some years”], school staff in particular the school counsellor … ), they supported a view that the child was loved and well-raised in the father’s household, and they did not have concerns about his care in that household.
228.The child’s expressed opinions about his relationship with the father and the father’s partner were positive, right up until and even to some extent after the relationship rupture…
229.In his discussions with me, the child was given the opportunity to express concerns about life in the father’s household, but did not take that opportunity. His main focus was on his desire for control over the contact process and indignation that the father wanted that control, and his argument that “If he’d just have… [not pushed/given the child control]”, things would probably be fine between them now.
(Emphasis added. Words in square brackets in [229] per the original).
Her Honour was plainly alive to that context. The facts informing those opinions are also not subject to challenge. Those findings were also well open to her. However, once the proper context for her Honour’s findings is seen, it can also be seen that no error is demonstrated in respect of her Honour attributing the weight which she did to the evidence referred to in the reasons.
There is no merit in ground 7.
“Alienation and alignment” in the father’s household – Ground 5
Ground 5 received no specific elucidation in either the written submissions filed on behalf of the mother or in the oral submissions made by senior counsel on her behalf during the hearing of the appeal. There are, it will be observed, no particulars given in the ground.
To the extent that it is bound up with ground 10 (the asserted error in the finding that the father would facilitate a relationship between the child and the mother), it will be dealt with below.
To the extent that it otherwise constitutes a discrete challenge, we are unable to find any foundation for it.
Ground 5 fails.
U’s wellbeing in the father’s care – Ground 4
As ultimately argued, the challenge mounted in ground 4 is that her Honour failed to have sufficient regard to the way in which the father dealt with U’s anxiety and eating disorder whilst he was living with him on a full-time basis. More specifically, it is submitted that:
48.The fact that [U’s] contact with his mother diminished almost to nothing within months of moving into his father’s household is one indication that the father places little value on his children maintaining a relationship with their mother.
49.The father’s role in withholding information from the mother with respect to [U’s] eating disorder in 2011 through to 2012 is a further demonstration of the lack of regard for her as a parent and her role in the children’s lives. This matter is discussed by her Honour but that discussion is in the context of commenting, largely unfavourably, upon the mother’s reaction to the incomplete information being provided to her.
50.While the father had informed the mother that [U] had some suicidal ideations he at no time informed her of specific acts of self harm. The mother came to suspect self harm by [U] as a result of having seen scarring on him when seeing [U]. The father’s lack of candour about this matter extended to a failure to inform Dr [K] about [U’s] repeated acts of self harm or include any reference to it in his Affidavit material. [The father’s wife] was similarly uninformative. The detail and extent of [U’s] distress and state of tension and level of dysfunction in the father’s house in 2011 to 2012 emerged in cross examination of the father and [his wife]. [U’s] mother obtained this information as a party to proceedings listening to evidence as it was given.
(Footnote references omitted).
At the time U commenced residing full-time with his father, he was 14 years of age. In 2011-2012 he was 15-16 years of age. By contrast, at the time of the trial, the child H was 12 years of age (and was 11 years old when he decided he no longer wanted to spend time with his father). That context is highly significant when considering the manner in which the father treated U’s eating disorder, which was described by her Honour as follows:
37.[U] asked that his mother not be told about it, which put his father in a difficult position. I asked the mother whether she believed that [U] had told his father that he did not want his mother to be told about his eating disorder. She said she did believe it. When asked why she thought [U] had made that request, she said she didn’t know and was unable to reach any conclusion about that, except for one issue. She had become concerned about his weight and had shown him a couple of books that she had bought about anorexia and young boys and that he had become “very angry with her for bringing it up.” The mother simply brushed aside the suggestion that [U] may also have been concerned that she would become immensely distressed, worried and angry.
38.The mother denied that the father had sent her emails about [U’s] condition and asserted that she had learned of the diagnosis from a third party, a medical practitioner. Confronted with emails she agreed that she had received some information.
39.The mother considered that the father and his wife contributed to [U’s] illness with their food regime in the household and their focus on staying thin. She continues to be understandably upset that [U] did not want to see her when he was in hospital and that she was not given all of the information, at his request. When asked whether she thought information should have been given to her, even if [U] did not want it to be, she answered, “Yes, in the case of such a serious illness.” It is understandable. However, it sits directly at odds with the mother’s view that [the child H] since March 2012 should have complete authority about whether or not he maintained his relationship with his father.
(Footnote references omitted).
Those passages from her Honour’s reasons are of themselves sufficient to dispose of the arguments contained [48]-[50] of the mother’s written submissions. It cannot be said that her Honour “did not have regard” to the manner in which U’s illness was handled by the father.
Once it is accepted that her Honour did in fact consider that issue, the challenge becomes one of the weight given to that evidence and nothing to which we have been taken persuades us that the difficulties inherent in a challenge of that description are overcome.
There is no merit in ground 4.
The mental health of the father and his wife – Ground 8
The challenge in ground 8 is, in terms, a challenge to the weight attached by her Honour to the father’s asserted non-disclosure of his mental health history. It was submitted that her Honour responded “somewhat benign[ly]” to the “lack of candour” on the part of the father and Ms G (his wife) as to “…the medical assistance they had each received with respect to their own mental health.”
In respect of Ms G, her Honour found (at [170]) that she:
…should have been more open in her affidavit about some fragility in her own mental health. I note her statement that there was “a lot of discussion about what to put in about my mental health.” However I do not consider that it was deceptive conduct at all, rather self-protective and protective of her new baby and three year old child, who constantly need her attention and have done so through the course of the preparations for these proceedings.
The father conceded in oral evidence that he had not included in his affidavit the fact that he had attended upon a psychologist on five or six occasions between late 2012 and early 2013. More specifically, the father conceded that “…if [he] hadn’t been asked these questions [about his attendance upon the psychologist] [he wasn’t] going to tell her Honour about it…” (transcript of proceedings, 13 September 2013, pp 367-368).
Dr K referred in his report (at [293]) to the father having seen “…a psychologist a few times in recent years when he was struggling with co-parenting with the mother. He went once or twice, but was fine, and didn’t need to keep going.” In cross-examination by the mother’s then counsel, the father stated that he was seeing the psychologist “…for issues in relation to co-parenting with the mother”, and stated that “…it’s highly likely that I would have told Dr [K] exactly that [he had seen a psychologist on two occasions in October 2012]…” (transcript of proceedings, 13 September 2013, p 370, lines 3-26). Consistent with that, the father had had two sessions with the relevant psychologist at the time of his interview with Dr K (transcript of proceedings, 13 September 2013, p 370, lines 13-21).
Her Honour noted the apparent inconsistency between the father’s affidavit evidence and his oral evidence at [144] of the reasons:
144.When asked, the father said he had been seeing a psychologist, but could not recall the dates without notes. He had been referred for anxiety related issues, difficulties sleeping and agitation. This is somewhat inconsistent with his statement, “I enjoy good mental and physical health”.
(Footnote reference omitted).
There is no error in her Honour’s summary of the father’s oral evidence regarding his attendances upon his psychologist. Her Honour’s observation that that evidence was “somewhat inconsistent” with his statement of “good mental … health” is significant; the father was not prescribed medication as a result of his attendances upon the psychologist and, by the time of the trial (one month after filing the affidavit), he was no longer seeing the psychologist (transcript of proceedings, 13 September 2013, p 368, line 5).
Dr K was plainly aware that Ms G had previously been treated for depression and had been informed by her that U’s issues had resulted in her starting antidepressants again (see, [301] of Dr K’s report and the transcript of proceedings, 16 September 2013, p 514 at lines 3-21). That is entirely consistent with Ms G’s oral evidence (transcript of proceedings, 16 September 2013, p 457, lines 34-37).
While oral submissions made on the mother’s behalf referred to the asserted lack of disclosure on the part of the father and his wife, it was not submitted that either the father or his wife lacked the capacity to care for the child as a result of their mental health.
It has not been demonstrated that any issue relating to the mental health of the father or his wife nor, specifically, any “lack of disclosure’ in respect of same was instrumental in her Honour’s ultimate findings as to best interests or ought to have assumed a more central role than it did; no fair reading of the evidence suggests that it should have.
Ground 8 fails.
Encouragement of a close and continuing relationship – Ground 10
As acknowledged in the written submissions, grounds 4, 5, 6, 7, 8, 10 and 11 “assume importance in light of her Honour’s findings at paragraph 204…” . Her Honour there said:
I am satisfied that the father understands the value of [the child] maintaining his relationship with his mother and the warmth and support she unfailingly provides.
It is submitted on behalf of the mother that:
45.There is little evidence to support the conclusion expressed at paragraph 204. Indeed much of the evidence and certain of her Honour’s findings indicate that the father sees little benefit in the child’s relationship with his mother, is not respectful of her as a parent and can and will do little to encourage to [sic] support that relationship.
In support of that submission, reference is made to her Honour’s findings at [119]-[121] and to the manner in which the father dealt with U’s mental health issues and, specifically, his desire not to have his mother involved.
To the extent that the latter is relied upon to support ground 10, it can be disposed of by reference to what has been said earlier in these reasons.
Otherwise, we have difficulty in seeing how her Honour’s reasons at [119]-[121] support ground 10. Those paragraphs provide:
119.Each of the older two children have made decisions; [Y] at about 15, [U] at about 13 to end equal time. It may be that the father had expected that [the child H], in his early teens, would have made the same decision as his older siblings and decided to live fulltime in the father’s household. However it was at first difficult to see, given that the father has held a belief about the mother’s personality for many years, why he has become so passionately concerned about [the child’s] safety in the mother’s care fulltime, rather than half the time as previously.
120.The father appeared to feel vindicated by the diagnosis and recommendations in Dr [K’s] report. However he said there was nothing in the report that he did not already know so he found it distressing, although not confronting. The question arises why this vindication of long held beliefs should mean that the mother spend significantly less time with [the child] than in the past.
121.I concluded that the father has held a belief since separation that the children were at risk in their mother’s care, but that on balance it was better for them to be exposed to that risk to some extent, than to the greater risk of losing the relationship with her. [The child] spending so little time with him has reactivated that long held fear. Ultimately I concluded that it is a responsible view, based on his stated fears and beliefs about the mother, confirmed by expert evidence.
(Emphasis added).
No challenge is made to her Honour’s conclusion that the father’s “…belief that the children were at risk in their mother’s care…” was “…a responsible view, based on his stated fears and beliefs about the mother, confirmed by expert evidence…” Similarly, no challenge is made to her Honour’s findings that:
194.There is a need to protect [the child] from psychological abuse unintentionally inflicted.
195.The personality of the mother is assessed by the single expert to be having a detrimental impact on the healthy development of [the child] as he moves into adolescence. He has been given control over matters that he lacks maturity to decide about. He is somewhat parentified and burdened by the mother’s sadness. He feels responsible for her and is taking on her perceived view that the father has ruined his mother’s life.
Tellingly, when given the opportunity to “…express concerns about life in the father’s household…” The child did not “…take that opportunity…” Despite Dr K’s observation that the child and his mother had a “common enemy” (the father), the child did not express any concerns regarding the father’s attitude towards the mother nor, importantly, towards the child’s time with his mother.
Further, and significantly, no challenge is made to the following findings of her Honour, which immediately precede the challenged [204]:
Section 60 CC(3)(c) - the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship
200.The mother encouraged continuing relationships for the three children, but was resentful and hurt by losing the role of primary carer which she had enjoyed during the marriage. She was particularly offended by the way the father’s wife treated the children, imposing strict discipline with well-defined consequences. The mother most likely felt undermined and disrespected in her role as mother.
201.After [U] moved to live with his father and especially because the mother was deliberately excluded from the treatment of his eating disorder, her ability to support relationships in the other household diminished. She is now paying lip service to the importance of [the child’s] relationship with his father but in reality is not supporting it at all.
202.The father was unhappy with the equal time arrangement regarding it as the best available compromise. I infer that his preference after separation would also have been for the three children to live with him.
203.The father supported [Y] moving back to live with her mother when she started University. He permitted [U] to spend less time with his mother from age 15, in particular circumstances of [U’s] ill health and recovery.
The finding made by her Honour at [204] as to the father’s willingness and ability to facilitate a relationship between the child and his mother is well supported by the evidence. Each of her Honour’s findings outlined above was clearly open to her. They support the conclusion reached.
Ground 10 fails.
The “Weight Challenges” - Conclusion
As we have said, the challenge to the weight placed on Dr K’s evidence made in ground 6 hinges to a large extent on challenges made by the mother to the weight given (or not given) to other specific parts of the evidence.
We see no merit in those specific challenges. Thus, there is no merit in the broad or more general challenge to the weight given to Dr K’s evidence.
To repeat, then, grounds 4-8, 10 and 11 fail.
Ground 3 - Best Interests and the “Suite of Orders”
As the ground is expressed it is the quintessential expression of a challenge to the exercise of a broad legislative discretion axiomatically dependent upon the facts and circumstances relevant to each particular case. Without particularity, it is, arguably, not a ground of appeal at all.
As argued, the challenge to the “suite of orders” made by her Honour (as it is called in the ground) was in two parts. The first challenged the orders made as to time, the second challenged the recovery order made by her Honour.
Section 67U comes within Part VII. Thus, a “recovery order” is an “…order under this Part…” The question, then, is whether a “recovery order” deals with “one or more of the following” “matter[s]” set out in s 64B(2).
It was submitted on behalf of the mother that the word “other” in s 64B(2)(i) “…confines the operation of the words ‘any aspect of the care, welfare or development of the child’. Such matters are the subject of parenting orders to the extent that they are aspects of parental responsibility for that child.”
So much must be correct if the power purportedly conferred by s 64B(2)(i) is to be constitutionally valid; if the “care, welfare or development of the child” does not fall within the penumbra of “parental responsibility”, the court would not have jurisdiction to make a “parenting order” dealing with “the care, welfare or development of the child” (as distinct from “parental responsibility”) because that is not a “matter” mentioned in s 75 or s 76 of the Constitution (see, Minister for Immigration and Multicultural and Indigenous Affairs v B and Anor (2004) 219 CLR 365 (“MIMIA v B”) at [13]). As Gleeson CJ and McHugh J said in MIMIA v B in the context of considering the power purportedly conferred by s 67ZC “[u]nder the Constitution, the Family Court, as a federal court, may only be invested with jurisdiction that the Parliament has defined by a law with respect to one of the ‘matters’ mentioned in s 75 or s 76 of the Constitution” (at [10]).
The corollary of the submission by senior counsel for the mother is that a recovery order is not an order relating to parental responsibility – an argument which, counsel says, gains force because recovery orders can be made in favour of non-parents. However, if counsel is correct, s 67U would not be constitutionally valid (or, at least, to the extent that it applies to non-parents). Section 67U must, if it is to be within the court’s jurisdiction, be “…concerned with an aspect of parental responsibility.” As Callinan J observed in MIMIA v B (at [216]):
The respondents’ proposition that s 51(xxi) of the Constitution provides a power on the part of the Commonwealth to legislate, and that by the Family Law Act it has legislated pursuant to it, to confer a power upon the Family Court to make all such orders as it thinks appropriate and may make under Pt VII of the Family Law Act, in cases in which the obligations and rights of parents are in no way in issue, so long as children of a marriage are concerned, should be rejected.
Whilst, as the mother’s written submissions correctly point out, pursuant to ss 67Q(a)(i)-(iv), a recovery order may be made requiring the return of a child to a person who does not necessarily have parental responsibility for the child, that does not, in our view, mean that the order is “…not … concerned with an aspect of parental responsibility.” An order requiring the return of a child to a person who does not have parental responsibility for him/her is, in our view, nonetheless an order concerned with an aspect of parental responsibility for the child in the sense that a decision as to with whom a child resides is, ordinarily, a decision made by a person in the exercise of their “…duties, powers, responsibilities and authority…” in respect of the child (s 61B). Thus, a recovery order requiring the return of a child to a person who does not have parental responsibility for the child, is nonetheless an order concerned with an “…aspect of parental responsibility” held by the person(s) who does have parental responsibility for the child.
That conclusion leads, as a necessary consequence, to a finding that an order pursuant to s 67U is a “parenting order” as defined in s 64B(1) given that it is an order made under Part VII that deals with “any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.”
However, that conclusion also leads, it must be accepted, to an absurdity as a result of the 2006 amendments to the Act which inserted s 61DA (Family Law Amendment (Shared Parental Responsibility) Act2006 (Cth), s 13 of Schedule 1). As a result of the insertion of the s 61DA presumption, if a recovery order is made, the court must apply the presumption that it is in the child’s best interests that their parents “…have equal shared parental responsibility for the child.” The Legislature cannot possibly have intended that result or the consequences which mandatorily follow (per s 65DAA) in respect of a “recovery order”.
That conclusion might, of course, be said to support senior counsel for the mother’s argument. Yet, acceptance of that argument is to deny jurisdiction – an equally absurd result. The better view is that the failure to exempt a recovery order from the consequences of it being a parenting order is that it was a legislative oversight.
That view is supported by the fact that, when s 61DA was inserted, the only amendments to s 64B were minor changes in terminology; that is, it appears that there was no consideration of the interplay between s 64B, orders made pursuant to, for instance, s 67U, and the new presumption in s 61DA.
While the issue of whether a recovery order is a parenting order was the subject of extensive submissions, the resolution of the issue, does not for the reasons which follow, have any substantive implications for the instant appeal.
Legislative time limits and an overarching consideration of best interests
Section 67W expressly provides that a recovery order can remain in force for a period specified in the order but for not longer than 12 months. Her Honour’s reasons do not specifically address s 67W.
It can be argued that the orders do not specify any period within which the order is to remain in force within the meaning of s 67W and, as a result, the order is discharged by effluxion of time on a date 12 months from the date the order was made.
However, that timeframe is not relevant to the argument as presented because the execution of the order – with its inherent 12-month timeframe – is stayed, pending it being triggered by conditions specified in the orders, until not later than the child turning 16. In that respect, it is conceded by senior counsel for the mother that it is within the court’s power to stay the operation of the recovery order for a specified time without contravening s 67W. In the absence of full argument on the point (and reiterating in that respect that the father represents himself), we make no comment on whether the concession is properly made.
However, proceeding on the basis of senior counsel’s concession raises a different issue embraced by (the unparticularised) grounds 1 and 3 which challenge, respectively, the adequacy of her Honour’s reasons and the exercise of her discretion.
Section 67V states that “[i]n deciding whether to make a recovery order … a court must regard the best interests of the child as the paramount consideration” (emphasis added). It must be tolerably apparent from her Honour’s reasons how a recovery order, made in the terms in which it was, was in the child’s best interests.
The sole references to the recovery order in her Honour’s reasons appear at [208] and [218]. The reference at [208] occurs during a consideration of s 60CC(3)(e), in which her Honour states, in respect of “the practical difficulty and expense of the child spending time and communicating with a parent on a regular basis”:
207.There is no impeding expense to a change of residence. There may be practical difficulties in compliance. [The child] may run away or otherwise defy what he is directed to do.
208.Accordingly orders need to be such as to obviate the need for enforcement applications, as well as providing the strong measure of a Recovery Order.
At [218] her Honour states:
Orders have been made with incentives for compliance built in. I accept the expert evidence that enforcement applications would be unusually adverse to [the child] in transition between the households.
The latter paragraph informs the former: [218] suggests that the purpose of making the recovery order and staying its “execution” was to avoid “enforcement applications” which would be “unusually adverse to [the child] in transition between the households.” Although not expressly stated to be so in the reasons, those findings appear, clearly enough, to be based on acceptance of particular aspects of Dr K’s evidence. First, in his report, the doctor says:
340.[Orders for time with the mother]…can work and will only work if the child in particular but also the mother feels strongly compelled to comply, and fear the consequences of not complying more than they fear or are displeased with the prospect of these orders. The order that the child is to move to and remain in the father’s care needs to be unequivocal. The order that time with the mother is to occur only as ordered and to end when ordered with transition to the father’s care needs to be unequivocal.
…
342.In my view, the above process can only work and will only work if there are contingencies in place to utilise whatever power is required to enforce the orders, should the child resist or counter them, for example by running to the mother’s home, or by refusing to return to the father’s home after a visit to the mother. The child is clever, and has over the past year has become expert at knocking over adult expectations, including mainstream expectations such as that he attend school. In my view, the contingencies need to be in place, and the child needs to know that they are in place. This would include the use of police to enforce orders, and the father and father’s partner being appropriately instructed in the (last resort) safe use of physical restraint.
…
344.If orders are made by consent, it remains important that the unequivocal “push” factor in the orders, and the contingencies to enforce the orders including calling the police, are included.
(Emphasis added)
In a similar vein, when cross-examined by the mother’s then counsel, Dr K said:
…If the court didn’t really feel … that the court could make orders that were enforceable, it would be better not to make the orders. And by enforceable, I don’t mean that he would go to his mum’s and … wait several weeks or months for … a contravention. If it’s possible, it would be better that right from the outset he could be told that … the court intended to make orders that could be enforced at the time. That basically that – that the mother was obliged by the law to return the child, with police, if necessary. That the father could ask the police to go and get him. I believe that there would be a, sort of, 50 per cent chance that if that was very clearly explained to [the child] that that would never happen. About a 50 per cent chance it would happen once, but if it was loose that he would go back and she would put in a new application and he would put a new application and we all started again, then … I wonder whether it’s worth doing…I suppose I’m recommending that if these orders are made, they should really only be made if the predictable contingencies can be managed cleanly and strongly.
(Transcript of proceedings, 16 September 2013, p 516, lines 10-29. Emphasis added).
Paragraphs [208] and [218] of the reasons comprise the totality of the reasons for making the orders contained at paragraph [9] and those relating to a recovery order at paragraphs [23] to [25] of the Orders, all of which are set out earlier in these reasons.
The order at paragraph [9] is not the subject of specific challenge. Whilst it is, it seems, intended to operate as a “sword of Damocles” over the head of the wife so as to ensure compliance with the orders and, specifically, the child’s return to his father, it is an order that, if activated, reduces time that would, pursuant to paragraph [8] of the orders, have otherwise increased in quantity to that point. If that amount of time, built up over a period, has been determined by her Honour to be in the child’s best interests, it is not entirely clear to us how reverting to reduced time is in his best interests or, indeed, is effective as an incentive to compliance by the mother. Moreover, what seems intended as an incentive to the mother appears to have the hallmarks of “punishing” her and “punishing” the child.
It might be possible for orders of that type to be consistent with findings as to best interests but because of the apparent contradiction, clear reasons should indicate the path to that result. We do not consider that her Honour’s reasons do so.
Further, it seems clear that her Honour considered it necessary in the child’s best interests to include paragraphs [23] to [25] as an incentive to compliance in addition to the orders at paragraph [9]. It is possible to glean her Honour’s reasons for doing so as lying in the evidence of Dr K to which we have referred. Again, however, her Honour’s reasons are not explicit in that respect.
That inference may avail the reasons and render them immune from appellate interference, if the only challenge was to the making of the orders per se. However, in our view, the Act’s requirements – and those in s 67V in particular – preclude that conclusion.
We are conscious of guarding against an overly pernickety analysis of a trial judge’s reasons. In that respect, it is true that her Honour’s finding that the orders would “…obviate the need for enforcement applications” can be seen to have an obvious link with the child’s best interests; obviating future proceedings might almost always be seen to be in a child’s best interests.
Equally, while it might be said that it can be inferred why her Honour considered it in the child’s best interests to make orders designed to ensure compliance with the mooted live and spend time with orders, the reasons are silent in this respect. Moreover, while the reasons read as a whole might permit of an inference that some orders were required, we do not consider that course open to explain why a recovery order was made in the terms in which it was.
The difficulty in concluding that these findings (including all that they might fairly imply) is sufficient as the reason for making the recovery order is that there is an absence of specific consideration of s 67W, s 67V and the necessity, inherent in the latter section, that execution of the order at an unspecified future time can be said now to be in the child’s best interests. Where, as here, a recovery order is stayed for an indeterminate time for up to three and a half years, the future execution of it must be in the child’s best interests at that time.
As but one example, the child at 15 might make an entirely appropriate and mature decision that he wants to live with his mother. Putting that desire into effect, however, would entitle the father to invoke the involvement of police through the recovery order (assuming it had not earlier been invoked). That consequence should be seen against the important background fact that each of the parties’ other children have made what the parents have (at the least inferentially through their conduct) conceded were sufficiently mature decisions regarding where they should live when those children were, in the case of U, 14 years of age and, in the case of Y, 15 years of age.
Here, while it might be said to be tolerably clear (absent specific reference by her Honour) that the foundation for the making of some orders to ensure compliance is the evidence of Dr K earlier referred to, and while it may be possible to infer that the need for the draconian measures suggested by Dr K founds the orders made (that might see the police becoming involved in the child’s time arrangements), the reasons should reveal plainly why that is so and why the child’s best interests render, at that time such serious consequences when the circumstances giving rise to those consequences cannot be predicted.
In our view, then, the claim of inadequacy of reasons is made out in respect of the stayed recovery order (that is, paragraphs [23]-[25] of the orders). We also have some difficulty in seeing how, in the absence of specific or comprehensive reasons, paragraph [9] – whatever might be its perceived utility as a “sword of Damocles’ – can be said to be in the child’s best interests but, we repeat, that order is not the subject of specific challenge.
In those circumstances, by reference to both grounds 1 and 3 we consider there is merit to the challenge to paragraphs [23]-[25] of her Honour’s orders.
Consequences of setting aside paragraphs [23]-[25]
The setting aside of paragraphs [23]-[25] raises broader issues in respect of the remaining orders. More specifically, an issue arises as to whether her Honour’s orders placing the child in the father’s primary care were contingent upon the dormant recovery order such that, by setting the latter order aside, this Court must necessarily set the former aside.
For the reasons given earlier, the mother’s challenge to her Honour’s orders on the basis that they were not in the child’s best interests has failed; we consider the reasons plainly reveal why her Honour considered orders placing the child primarily in his father’s care were in his best interests. We also consider that her Honour’s reasons, read as a whole, reveal that the recovery order was not central to her Honour’s determination that orders placing the child in the father’s primary care were in his best interests.
In particular, her Honour stated:
207.There is no impeding expense to a change of residence. There may be practical difficulties in compliance. [The child] may run away or otherwise defy what he is directed to do.
208.Accordingly orders need to be such as to obviate the need for enforcement applications, as well as providing the strong measure of a Recovery Order.
(Emphasis added).
Paragraph 9 of her Honour’s orders has earlier been set out and the fact that it is not challenged on appeal has been noted. In our view, paragraph 9 represents what her Honour referred to in [208] as the “…orders need[ed] … to obviate the need for enforcement applications…” The fact that her Honour considered that objective to be distinct from the “strong measure of a Recovery Order” is, in our view, reflected in the words we have emphasised in [208].
Further, at [218] of the reasons, her Honour stated that:
Orders have been made with incentives for compliance built in. I accept the expert evidence that enforcement applications would be unusually adverse to [the child] in transition between the households.
In our view, when [207]-[208] and [218] of the reasons are read together with her Honour’s orders and, in particular, paragraph 9 of same, two significant factors emerge:
a)Paragraphs [23]-[25] (i.e. the recovery orders) formed part of the of the orders which her Honour described as “…incentives for compliance…”; and,
b)Her Honour plainly distinguished between the “strong measure of a Recovery Order” and “…orders [which] need to … obviate the need for enforcement applications…”, the latter being reflected in paragraph 9 of the orders ultimately made by her Honour.
We are satisfied, by reference to those factors, that paragraphs [23]-[25] of her Honour’s orders were not so central to her Honour’s determination that the child’s orders placing the child primarily in his father’s care were in his best interests that their setting aside would necessitate setting aside her Honour’s substantive parenting orders.
We will, then, order that the appeal be allowed in part and that paragraphs [23]-[25] of her Honour’s orders be set aside.
Costs
In accordance with usual practice, at the conclusion of the appeal submissions were sought from each of the parties in respect of costs.
Senior counsel for the mother submitted that, in the event the appeal was successful, an order for costs ought be made in the mother’s favour. If the appeal was successful and no order for costs was made, a certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”) is sought.
The father submitted that, in the event the appeal was successful, each party should bear their own costs. He argued that it was reasonable for him to oppose the appeal as he was doing so on the basis of what he considers to be the child’s best interests. Whilst he represented himself at the hearing of the appeal, the father has incurred some legal costs in preparation for the appeal. In those circumstances, he also seeks a certificate pursuant to the Costs Act.
Whilst the appeal has partially succeeded, it has done so on what might be described as a peripheral point to the central challenges mounted on appeal. The majority of the mother’s grounds and the written and oral submissions accompanying same, have been found to have no merit.
In our view, the circumstances do not justify a departure from the presumption in s 117(1) of the Act that each party should bear their own costs. We would, then, make no order as to costs.
The appeal has succeeded on an error of law. In the circumstances, we consider it appropriate to grant certificates to each of the mother and father in respect of the costs of the appeal pursuant to, respectively, ss 9 and 6 of the Costs Act.
I certify that the preceding two hundred and one (201) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace and Murphy JJ) delivered on 15 August 2014.
Associate:
Date: 15 August 2014
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