Jopson & Lilwall (No.2)

[2016] FamCAFC 262

FAMILY COURT OF AUSTRALIA

JOPSON & LILWALL (NO. 2) [2016] FamCAFC 262

FAMILY LAW – APPEAL – CHILDREN – where the trial judge made interim parenting orders for the father to spend unsupervised time with the child during a period of four months – where the mother applied for a stay of those orders and for the trial judge to recuse herself – where those applications were dismissed – where the mother appeals those orders – where there are allegations of family violence and risk to the child – where the mother asserts procedural unfairness, prejudgment of the issues for determination and failure of the trial judge to determine the best interests of the child – where no appealable error established – appeal dismissed – each party to bear their own costs.

Family Law Act 1975 (Cth) Division 12A, Part VII, ss 60B(1), 60B(2), 60CC, 60CC(2), 60CC(2A), 69ZN(1), 69ZN(4), 69ZN(7), 97(3), 94AA, 94AAA(3)

Family Law Regulations 1984 (Cth), reg 15A

Federal Circuit Court Rules 2001 (Cth)

AMS v AIF (1999) 199 CLR 160
Banks & Banks [2015] FamCAFC 36
Goode & Goode (2006) FLC 93-286
Johnson v Johnson (2000) 201 CLR 488
U v U (2002) 211 CLR 238
Vanzin & Vanzin [2014] FamCAFC 245

APPELLANT: Ms Jopson

RESPONDENT: Mr Lilwall

INDEPENDENT CHILDREN’S LAWYER: Stuart Mackey

FILE NUMBER: CSC 243 of 2016

FIRST APPEAL NUMBER: NA 68 of 2016

SECOND APPEAL NUMBER: NA 80 of 2016

DATE DELIVERED: 9 December 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 9 December 2016

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

1 September 2016

13 October 2016

LOWER COURT MNC: [2016] FCCA 2862

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Othen

SOLICITOR FOR THE APPELLANT: Finnane Family Law

COUNSEL FOR THE RESPONDENT: Ms McArdle

SOLICITOR FOR THE RESPONDENT: Newman Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

1. That appeal NA 68 of 2016 be dismissed.

2. That appeal NA 80 of 2016 be dismissed.

3. That each party bear their own costs of and incidental to each appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jopson & Lilwall has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 68 of 2016; NA 80 of 2016
File Number: CSC 243 of 2016

Ms Jopson

Appellant

And

Mr Lilwall

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1. The mother of an almost three-year-old child appeals interim parenting orders made by Judge Willis on 1 September 2016 by which the child’s father is to spend unsupervised time with him during a period of approximately four months pending the return of the issue before the judge on 8 February 2017.

2. The orders provide for three hours of time on consecutive days in October; eight hours on three consecutive days in November; and for two periods of three consecutive days, each of eight hours duration, pre-Christmas in December. After Christmas, the orders provided for two consecutive eight hour days and, on the third day, an overnight period from 4 pm until 9 am the following day.

3. Subsequent to the making of those orders the mother applied for a stay of them pending this appeal and also applied for the judge to recuse herself from all further hearings of the matter. Both applications were dismissed by orders made by her Honour on 13 October 2016. The mother also appeals those orders.

4. May J ordered that the appeals be expedited and heard together. The Chief Justice certified pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) that it is appropriate for the jurisdiction of the Family Court in relation to these appeals to be exercised by a single judge. This hearing proceeded in each such manner.

5. It is convenient to deal first with the appeal against the parenting orders.

6. Despite the parenting orders being interim orders, and therefore interlocutory, the mother appeals as a right (s 94AA of the Act; Family Law Regulations 1984 (Cth), reg 15A).

Factual Background And Allegations of Risk[1]

[1]          Headings and sub-headings have been inserted in the settled Reasons.

1. The parents cohabited from 2010 until February 2015. Their child was born about 12 months prior to their separation and has resided with his mother since. The mother alleges that separation occurred in the context of acts of family violence committed by the father. A protection order was made for the protection of herself, her mother and the child for a period of two years. That protection order ends in March 2017 and was, accordingly, current at the time when her Honour made the parenting orders under appeal.

2. It does not seem to have been controversial before her Honour that the child had spent five periods of supervised time with the father at a Cairns contact centre. The visits were originally for one hour and subsequently for two hours.

3. The father asserts that the mother “has repeatedly frustrated [his] attempts to spend even that time with the child”, deposing that the mother has “at the last minute changed arrangements or cancelled arrangements for various reasons”. Those assertions are denied. Understandably within the context of an interim hearing, that issue was not determined by her Honour.

4. The father lives in far north-western Queensland.  He works at a mine on a two-week-on/one-week-off roster and he deposes to working “long hours” while on roster. He deposes to the fact that spending periods of one hour or two hours with the child at the contact centre “involves a 28 hour round trip”. That is, I gather, uncontroversial.

5. The mother also lives in North Queensland with the child and her mother. The father asserts that it is the grandmother who is primarily caring for the child. Visits between the child and the father involve the mother in an approximate four-hour round trip.

6. In early 2016 the father filed an application for parenting orders. He later amended that application.  Neither application sought an interim order that the child live with him.  Rather, his amended application sought orders that the child (then aged two) “live primarily with the mother” and spend time with him:

   a) For a period of 6 months, every five weeks, for a period of three days from 10:00am Friday to 2:00pm Monday; and

   b) After the six month period, a period of one week from 10:00am Wednesday to 2:00pm the following Wednesday, every five weeks.

7. The mother filed a response by which she sought interim orders that the child have supervised time with the father for two hours every five weeks at a Cairns contact centre. She also sought orders for drug and alcohol testing for the father.

8. Each of the parties filed a Notice of Risk with their respective initiating proceedings, as the Federal Circuit Court Rules require.

9. The father’s Notice of Risk asserted:

   The Father, in his material alleges that the Mother has serious mental health conditions that are not being appropriately managed. In particular, the Mother has a history of presentation at mental health facilities for periods of time and has been formally diagnosed with Bi Polar Disorder. The Father’s material also provides that the Mother neglected the child’s needs during their relationship and did not clean the house nor care for the child while the Father was at work.

10. The father’s Notice of Risk also refers to him deposing in his affidavit that the mother was “domestically violent” to him but that he “has not made a complaint regarding” that behaviour. That document also reveals that the father consented to the making of a protection order “without admissions”. Notably, while these apparently serious allegations relating to the best interests of the child were made by the father his orders propose not only that the child live “primarily” with the mother but that he spend time with the child only every five weeks. As is so frequently the case in this jurisdiction the asserted connection between allegations made and the orders sought is difficult to discern.

11. For her part the mother’s Notice of Risk alleges that:

    1. on multiple occasions, the [father] made threats to physically assault the child and members of the child’s family, directly in the child’s presence and hearing, as well as to the Respondent and other members of the child’s family.

    2.on multiple occasions the [father] acted in a frightening manner, to the child and in the presence and / or hearing of the child, which reasonably caused the child to suffer psychological harm.

12. The mother repeated those allegations as assertions that the child is at risk of being abused by the father. In addition the mother alleges in her Notice of Risk that the father is “a heavy alcohol consumer who, on more than one occasion placed the child at a risk of harm by driving with the child, in the car, while intoxicated” and that “the [father] is incapable of properly caring for the child, unsupervised, due to a long history of heavy alcohol consumption”.

13. I pause there to note that within the Notice of Risk the “long history of alcohol consumption” and the lack of safety or capacity said to flow from it is the only specific assertion that is connected directly to the need for supervision of the child.

14. The mother, too, recited allegations of conduct by the father that meets the Act’s definition of “family violence”. Predominantly, those allegations involve assertions of threats (for example, that “on multiple occasions the [father] made threats to physically assault the child and members of the child’s family directly in the child presence and/or hearing” and “on multiple occasions the [father] made threats to physically assault the child’s family members”). The allegations also include an allegation of physical assault on the mother “whilst she was incapacitated due to illness” and that the father “on at least one occasion … sexually assaulted the [mother]”.

15. There is no allegation that the father has ever assaulted the child although the mother deposes in her affidavit that on 16 January 2015 (notably prior to separation) “the father put his fist to the child’s head when the child was crying and threatened to punch the child”.[2] The mother also filed affidavits from three people, including her mother, who deposed to matters similar to those deposed to by her.

    [2]Mother’s Summary of Argument, filed 18 November 2016, p 3; Footnotes have been added to the settled reasons, as have citations.

16. The picture of risk asserted by the mother is completed in her Notice of Risk by her referring to allegations within her affidavit that the father:

    (a)is a constant and heavy consumer of alcohol;

    (b)consumer of marijuana;

    (c)mostly intoxicated, without capacity to care for the child, unsupervised;

    (d)repeatedly drives, while under the influence of alcohol, even when the child is in the car;

    (e)repeatedly drives beyond prescribed speed limits, even when the child is in the car;

    (f)repeatedly speaks in a manner, which is not conducive to a child’s oral and behavioural development and reasonably offensive to social normalcy.

17. The father maintains in his Notice of Risk, as he did in his affidavit, a denial of the allegations of family violence, although he appears to have admitted to his Honour during the hearing that, as the mother alleges, he uses foul language repeatedly.

The Appellant’s Central Contentions

1. The mother’s challenges can be summarised as assertions that her Honour denied the mother procedural fairness; that her Honour had pre-judged the issues for determination; and that her Honour failed to determine the child’s best interests by reference to s 60CC as the Act demands. In circumstances shortly to be referred to, her Honour did not provide reasons for her orders on 1 September 2016 save for what emerges from the transcript. No ground of appeal is based on an asserted failure to give adequate reasons.

2. Counsel for the appellant contends that the first five pages of the transcript of the proceedings before her Honour on 1 September 2016 should, in particular, be read together. Those parts of the transcript record an 18-minute period central to the appellant’s arguments. It is contended that they evidence her Honour having made up her mind that unsupervised time would be ordered and her Honour thereafter not conducting a process that can be described as an appropriate interim hearing. Specifically, it is said that the interim hearing conducted did not embrace an analysis of the issues of risk raised by the mother and that, accordingly, did not result in appropriate orders consistent with a proper determination of the child’s best interests.  In that regard it is pointed out that her Honour did not, for example, make clear on the record the material relied upon by each of the parties nor avail the solicitor for each party of the opportunity to make submissions in respect of the central issues raised by the mother’s material.

3. The first 18-minute component of the proceedings is crucial to the appellant’s arguments because there is no doubt that, when the matter resumed some two and a half hours later consequent upon a period of negotiations between the solicitors for the parties, the solicitor for the mother set out in some detail a staged process of unsupervised time between the child and the father.  Importantly, the solicitor did so in response to her Honour’s question, “[a]nd what’s your client [that is, the mother] proposing”. 

4. Counsel for the appellant mother argues that by this time the die was, as it were, cast. Counsel submits that in the earlier part of the proceedings, her Honour had “killed off the contact centre” and made it clear that she would be ordering unsupervised time.  Counsel points in particular to what is said at pages 5 and 6 of the transcript.  It is important, I think, to quote some of those passages at length:

   That’s a given. I don’t know what the discussions [sic] have been going on out here for the last hour, but let’s get in the real world. I don’t understand still why there would still be supervision at a contact centre. Supervision isn’t an unending thing. We don’t go on having supervision till the child is 10. Your client, though, has a whole lot of her own reasons why she wants that to happen, and it’s going to be hard for her to move beyond that, because of what she is fixated on. It’s going to take someone else to tell her that.

   And it that has to be the court, then that will be the court. If there is to be supervision – if I accommodate the requirement for supervision – and all of the material before me from independent people would say that the father is doing very well with the child, that the child has built up a bond with this child, the child is not six or seven months anymore. If there is any supervision to be had, why on earth wouldn’t it be the paternal grandmother? That’s obvious. And to make these parties do all the striving [sic], coupled with a roster that has him away, this is just not sustainable.

   …

   Now, I want you to get in the real world, and if you don’t come up with an agreement that I agree to, we will have an interim hearing and it will start at 11 o’clock. Okay. And, obviously, if Mum is unwell, on the material I’ve got before me, the child should go to the grandmother. And, sir, you can say what you like about her being interfering. If it wasn’t for her, you would have had to give up work and have a completely different life. And she has always acted in the best interests of your child. So whatever arguments you’ve had about swags being in the lounge room and foul language – could everybody focus on the real issue. The real issue: two young parents, one baby, father working away.

   He has been very compliant. A lot of fathers wouldn’t have gone along with this routine about supervision for so long, driving all this distance. You need to know this child has rights. Neither of you two do. The law says this child is entitled to know both his parents, whether or not you live together, whether or not you’re separated, whether or not you’ve never lived together. This child is also entitled to have an association and relationship with both grandparents – not just one: both. It’s in the law. Read it.

5. I should record that preceding the second set of passages just quoted, her Honour directs a number of remarks to, and about, the maternal grandmother. The maternal grandmother was on any view (including, it should be noted, by reference to other comments made by her Honour) a significant person in the child’s life and a significant support to the mother.  Given that with whom the child would live was not in issue and the uncontroversial fact that on either party’s case the child would live with the mother and her mother for the overwhelming bulk of the time, her Honour’s comments were, with all respect, entirely misplaced, wholly irrelevant to the issues joined in the proceedings before her and, to say the least, unfortunate. 

6. Those things said, it is not, I think seriously suggested (in light of the other comments made by her Honour) that the comments just referred to are indicative of pre-judgment or bias on the judge’s part.

Context for These Interim Proceedings

1. It is said that, while the whole of the transcript relating to that initial 18-minute period needs to be read as a whole (with which assertion I respectfully agree), the statements made by her Honour which I have just quoted are said to be of particular importance in the arguments advanced on behalf of the appellant mother.

2. It has long been recognised that interim parenting proceedings conducted within busy lists – which require a number of important interlocutory decisions to be made in particular about the best interests of children pending trial or resolution – occur within “an abridged process where the scope of the inquiry is necessarily significantly curtailed” (Goode & Goode (2006) FLC 93-286, at [68]).

3. Equally, the nature of the proceedings often sees the scope of the issues to be determined, in those interim proceedings, being significantly narrower than what will be the case at a trial. That is all the more so where, as here, orders are made for a short period of time pending the matter being further returned before the court. (see Goode (above); Vanzin & Vanzin [2014] FamCAFC 245).Here, as I have said, that period was four months

4. It can be accepted, however, that whether proceedings relate to interim issues or not, the Act and well settled principle dictate that:

   a)Parties must be accorded procedural fairness because, axiomatically enough, procedural fairness lies at the heart of all judicial determinations;

   b)Equally axiomatically a judicial officer must bring to all such decisions as might be required a properly objective and impartial mind;

   c)Children should be protected “from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” (s 60B(1)(b));

   d)Co-parenting of children by their parents and the right of children to spend time on a regular basis with and communicate on a regular basis with (relevantly) both their parents and the sharing of duties and responsibilities with respect to the children is a desired outcome subject always to the best interests of the particular child in his or her particular circumstances (s 60B(1)(a); s 60B(2)(c));

   e)Consequently while the issues for determination might be extremely narrow and decisions made are pending a further return to the court, there remains the need to follow mandatory statutory requirements (see Goode (above), at [82]; Vanzin (above), at [20]); and

   f)It is fundamental to every parenting case, however narrow the issues and however short the time frame until the matter is returned before the court, “that the parties’ proposals be clearly identified … because it is an essential requirement that each proposal be the subject of separate evaluation” (see Banks & Banks [2015] FamCAFC 36, at [25] citing AMS v AIF (1999) 199 CLR 160, at 191, [95] per Gaudron J; at [196] per Kirby J; at 232, [218] –[219] per Hayne J; U v U (2002) 211 CLR 238, at 248, [37] per Gaudron J).

1. In assessing the child’s best interests, albeit within interim proceedings in respect of narrow issues defined by the issues which the parties have agreed and otherwise identified in their proposals, the consideration of s 60CC must be predominated by the need to “protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” (s 60CC(2A); s60CC(2)(b)).

2. Equally, of course, both the Act and the practices of the courts with jurisdiction and power to make parenting orders recognise the particular nature of parenting proceedings and the fact that parents differ in the talents, beliefs and practices they bring individually to the onerous task of parenting. The Act and the practices of the courts also recognise that, as Kirby J famously said, parenting cases are as much about values as they are about facts and, perhaps as a reflection of all of those matters, agreement and co-operation between separated parents should be encouraged actively.

3. Mandatory statutory requirements apply to the hearing of parenting proceedings by reason of Division 12A of the Act. Those mandatory obligations apply not only to the exercising of the power to make parenting orders under the Act but also in making decisions “about the conduct” of those proceedings (see s 69ZN(1)(a) and (b)). Included among the mandatory obligations upon the court is an obligation for the court to “actively direct, control and manage the conduct of the proceedings” (s 69ZN(4)).

4. Those principles may be seen to have particular application where a court with increasingly limited resources is called upon to make decisions in a large number of cases. The limited resources and large number of cases together impact upon the number of cases in a judge’s docket and the need to manage that large number of cases, many of which may resolve, before the allocation of trial dates.  Those issues are acute.

5. Further emphasis is given to the matters just discussed by a further mandatory principle which requires the court to conduct proceedings “without undue delay and with as little formality, and legal technicality and form, as possible” (s 69ZN(7)). That mandatory obligation sits with a further mandatory obligation which has applied to all proceedings under the Act for 40 years to “proceed with undue formality and [to] endeavour to ensure that the proceedings are not protracted” (s 97(3) of the Act).

6. Some sixteen years ago, Chief Justice Gleeson and Justices Gaudron, McHugh, Gummow and Hayne  said in a joint judgment in Johnson v Johnson (2000) 201 CLR 488, at 493, in a case involving assertions of bias:

   The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. …

7. What was true then is, with all respect, even more so now.

8. In addition to the matters just discussed, cases commenced in this jurisdiction do not require a pleading or any document akin to a pleading. Rather an application sets out the orders sought and, in the case of applications for interim orders, are accompanied by an affidavit. The almost universal experience of judges in both the Federal Circuit Court of Australia and the Family Court of Australia is that the issues joined between the parties which the court is asked to determine are not delineated with anything like sufficient particularity or clarity within those documents which are required by the Family Law Rules 2004 (Cth) and, relevantly, the Federal Circuit Court Rules2001 (Cth). Sadly, in very many cases that remains true even upon oral exposition at a hearing. A consequence is that judges very frequently commence an interim hearing by having the parties delineate properly the issues that need determination. Frequently, that involves the parties in setting out orders and issues different from those revealed by their applications and/or affidavits.

9. In addition, judges must be aware that among the Principles underlying the Objects of Part VII of the Act dealing with children is that “parents should agree about the future parenting of their children” (s 60B(2)(d))

10. The combination of some or all of those circumstances leads to judges, with the assistance of experienced legal practitioners, frequently and quite properly, encouraging the parties to reach agreement about matters in dispute affecting their children.  Sometimes robust language is used in that process.  Sometimes exhortations are used that might give the impression, particularly to self-represented litigants, that a judge has closed his or her mind to their contentions or pre-judged their case.  More frequently, however, those statements – even if, sometimes at least, expressed somewhat unfortunately – are merely a strongly expressed desire to have conflict between parents end for the benefit of their child or children.

11. There is in my view little doubt that judges reacting not only to the need for “more active case management” but to the incessant demands created by dwindling resources and expanding lists of cases of increasing complexity – most of which concern children – might intervene in a manner which might surprise some. Equally, there is little doubt that there is a line over which judicial intervention – however well motivated in seeking to have conflicted parents co-parent co-operatively for the benefit of their children – will require interference by an appellate court. 

12. The question in this case, simply put, is, “was that line crossed by her Honour”. My conclusion that it was not is informed by the following considerations.

Reasons For Concluding No Appealable Error Is Demonstrated

1. Whilst it is true that her Honour does not seek from each of the parties, or otherwise record, a list of the material relied upon, a fair reading of the transcript, reveals to my mind, both that her Honour had read significant parts, if not all, of the material filed by each of the parties and also that it was that material she was relying upon. Importantly, her Honour had the report from the mother’s psychiatrist Dr M and the family consultant preparing the children’s issues assessment (see Transcript of Proceedings, 1 September 2016, for example pp 6, 7 and 17).

2. The assessment of the family consultant was particularly important not only because of the expert opinions expressed but because, in the context of an interim hearing with conflicting allegations, high conflict and little or no trust and communication between the parents, it provided evidence independent of the parties of the relationship between the father and the child and the meaning and the benefit of that relationship to the child. In my view the transcript reveals her Honour to have been plainly cognisant of that.

3. The mother is, unfortunately, subject to frailties in her mental health. The evidence before her Honour was that this was currently being well controlled by her compliance with prescribed medication. But, the mother did not represent herself. She was at all times represented by an experienced solicitor (as was the father). Each of those solicitors practices in the city where her Honour is the sole resident judicial officer exercising jurisdiction under the Act.

4. Not only did the solicitor for the mother not object to any comments made by her Honour or ask her Honour to recuse herself (matters relevant to the second of the two appeals), but she also did not demur at any time while details of the parties’ negotiations were being given to her Honour by the solicitor for the father.  Nor, ultimately, when she addressed the court did she do other than set out proposed orders, the substance of which was largely not disputed. It must be presumed that what the solicitor said was said upon instructions. 

5. I am unable to accept the submission that by then, the die was, as it were, cast.  In particular, her Honour asked the solicitor for the mother specifically whether supervision was “agreed or not agreed”. (see Transcript of Proceedings, 1 September 2016, p 12)  Later, the solicitor for the father clarified that lack of supervision was agreed. Again, the solicitor for the mother did not demur. As is pointed out by counsel for the independent children’s lawyer before me, the mother’s solicitor was not “backward about coming forward” when later it came to putting other aspects of the orders sought by the mother before her Honour. 

6. I am similarly unpersuaded that the content or tone of what was said by her Honour in the first 18 minutes of the hearing was indicative of her Honour either having made up her mind or having made it clear that no submissions as to supervised time would be considered. 

7. I am aware of what was said by her Honour in the passages of the transcript I have earlier quoted and in other passages referred to by counsel for the mother, but the transcript subsequent to those passages, and the transcript read as a whole, in my view sees her Honour plainly indicating that supervision was still, in her mind, a potential issue. That only changed when her Honour was told that it was, in fact, not in issue.

8. Her Honour having read the children’s issues assessment and being cognisant of its contents is important because it sets out (in some detail) the allegations and counter allegations of family violence and the mother’s concerns about the father’s asserted deficiencies in parenting capacity emanating from, primarily, his use of alcohol.  The reports expressed opinions of the importance for the child seeing his father were made in light of those matters. Her Honour was cognizant of that (see, for example, Transcript of Proceedings, 1 September 2016, p 22, lines 29–36). The report also set out that the paternal grandmother accompanied the father on his erstwhile periods of time with the child and her Honour was plainly aware of her involvement and saw it as important.

9. It must be accepted, as counsel for the mother is at pains to point out, that her Honour does not set out within the transcript (again noting that no separate reasons were given) the mother’s allegations of the father’s conduct from which the mother would have the court infer risk to the child.  So, too, her Honour cannot be seen as there analysing the nature and extent of the risk or how any such perceived risk or risks are alleviated by the orders ultimately made. 

10. However, it cannot in my view be said that her Honour was not alive to the risks as referred to by the mother or which the mother would seek to have inferred from her evidence. Nor, more broadly, can it be said that her Honour was not alive to the evidence from which the mother would infer risk if the father was to have time with the child of the nature and duration under discussion. Indeed, when her Honour was addressing the mother herself, the mother said “I’m just trying to protect my child” to which her Honour responded “Well, I have made the orders, and I am aware of all the risks and this is the beginning, all right” (Transcript of Proceedings, 1 September 2016, p 31, lines 41–44).

11. The notion that the judges of this court, or judges of the Federal Circuit Court, are not haunted by the prospect of erroneous assessments of risk is as offensive as it is false. But assessments have to be made. Best interests involve a balance. Some assessments of risk are to be made after a trial and a careful assessment of the evidence. But, some assessments of risk have to be made at interim hearings in the absence of the deliberations inherent in a trial. If it were otherwise, there could never be an interim decision that did not default to the entire acceptance of a case that asserted risk. While like the medical adage, the court of course seeks to first do no harm, there is, as Fogarty J has remarked, always a risk and there are always concerns (see ‘Unacceptable Risk – A return to basics’ (2006) 20 Australian Journal of Family Law 249). The issue is the extent of the risk and the things that might be done reasonably to alleviate (note, not eliminate, but alleviate) the risk.

12. The reference to the beginning by her Honour in the passage just quoted is also important in my view.  I consider it crucial that the issues under discussion and the orders made by her Honour did in fact embrace assertions of risk and seek to ameliorate the same but until the matter was returned before the court in approximately 15 or 16 weeks.

13. Contrary to counsel for the appellant’s submissions, the issue before her Honour was not simply about risk as advanced by the mother. It was about the nature of the risk, the degree of risk, what might be done about the risk, and the balancing of assessed risks against the benefit of the child having a relationship with his father in light of the assertions of risk yet to be established (or not established) at a trial. Her Honour’s decision had to be made in circumstances where the conflicting assertions and counter assertions by each of the parties could not be determined at an interim hearing.

14. It cannot fairly be said that her Honour’s orders did not seek to address risk. Here:

    a)there was a protection order current until the next return date;

    b)her Honour ordered that an independent children’s lawyer be appointed and the involvement of the independent children’s lawyer was to occur between the date of the order and the further return date before her Honour in some four months’ time;

    c)her Honour ordered a family report with all that entails for the participation of the parties and the child including the observations of trained expert in respect of the interactions of all three (and other relevant persons as the expert might determine);

    d)the matter was to return to court within four months in the full knowledge that any concerns would be reported to the court by either of the parties or the independent children’s lawyer as the case may be;

    e)her Honour made injunctive orders with respect to the father’s drinking;

    f)her Honour also ordered that each of the parties, forthwith, enrol in parenting courses;

    g)allied to that, her Honour made orders intended to facilitate communication between the parties that, on both parties’ cases, had been lacking up until that point in time; and

    h)most of the evidence of family violence was of the nature that I have earlier described – it was directed to threats to the mother or members of her family and, in particular, at a time when the parties were not separated and were not the subject of a protection order made within the state jurisdiction.

Conclusions

1. However unfortunate at least some of what her Honour said might seem, I am not persuaded that any or all of those statements, or any other aspect of the case, is indicative of pre-judgment or is indicative that her Honour did not, or would not, bring an impartial mind to the issues live between the parties.

2. While I accept that the absence of separate reasons and what was said on the transcript might be interpreted by the mother as her case of risk not having been appreciated and dealt with, I consider that a fair reading of the totality of what was said by her Honour reveals not only that her Honour was alive to all of the evidence before her and all of the issues it raised within it but also, by reason of the orders that were made, embraced all of the relevant considerations in making orders that would apply for a period of approximately 16 or 17 weeks until the matter returned before her Honour for further consideration.

3. In my view the first appeal should be dismissed.

4. It will be clear, I think, from all that I have said in respect of the first appeal that I consider the contentions in the second appeal are without merit and that appeal, too, should be dismissed

Costs

1. The transcript will reveal what was said by counsel for each of the parties in respect of the issue of costs.

2. It seems to me, that the justifying circumstances for an order for costs in favour of the father is that the mother has been wholly unsuccessful in her appeal. The nature of the appeal is such that it could not be said, in my view, that the appeal was unarguable.

3. Little is known about the financial circumstances of the parties but it seems relatively uncontroversial that the mother is not in receipt of any income (whatever her asset position might be). Offers and counter-offers were made by each of the parties. The father’s offer was somewhat ‘diluted’ by the counter-offer from the mother, but counsel for the mother submits that no order for costs should be made. Taking all relevant circumstances into account, in my view it is appropriate that each party bear their own costs of and incidental to the appeal.

Orders

1. I will issue formal orders to the effect that each of the two appeals is dismissed and each party shall pay their own costs.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 9 December 2016.

Associate: 

Date:  14 December 2016