Keane & Keane
[2021] FamCAFC 1
•18 January 2021
FAMILY COURT OF AUSTRALIA
Keane & Keane [2021] FamCAFC 1
Appeal from: Keane & Keane [2020] FamCA 99 File number(s): LNC 306 of 2018 Appeal number(s): SOA 46 of 2020 Judgment of: ALSTERGREN CJ, MCCLELLAND DCJ, BENJAMIN J Date of judgment: 18 January 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the mother appeals against parenting orders in relation to the father spending unsupervised time with the child – Where the primary judge made orders for a graduated arrangement for the child to spend supervised to unsurprised time with the father – Family Violence – Where the appellant argues that the primary judge erred in not inferring from the evidence available to him that the mother’s parenting capacity would be adversely impacted such that it was necessary for him to make an order for the child’s time with the father be supervised in order to ameliorate the extent of the mother’s distress – No error in the primary judge’s exercise of discretion – Findings open to the primary judge – No error of fact or law established – No error in attributing weight to the evidence – Appeal dismissed – No order as to costs. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC, Pt VII
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)
Cases cited: A v A (1998) FLC 92-800
Allesch v Maunz (2000) 203 CLR 172
B and B (1993) FLC 92-357
Banks & Banks (2015) FLC 93–637
Biogen Inc v Medeva plc (1996) 36 IPR 438
Blinko & Blinko [2015] FamCAFC 146
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Boyd & Owen [2016] FCCA 3209
Briginshaw v Briginshaw (1938) 60 CLR 336
Cao & Cao (2018) FLC 93-880
FJ & PN Curran Pty Ltd v Almond Investors Land Pty Ltd [2019] VSCA 236
Gallagher & Gomez [2017] FamCA 944
Gilligan & Addison [2018] FamCAFC 211
Helbig & Rowe [2016] FamCAFC 117
Helton v Allen (1940) 63 CLR 691
Hollister & Gosselin [2016] FamCA 759
House v The King (1936) 55 CLR 499
Hsiao v Fazarri (2020) 383 ALR 446
Kwon and Lee (2006) FLC 93-287
Lee v Lee (2019) 266 CLR 129
Luxton v Vines (1952) 85 CLR 352
Marra & Marra (Unreported, Full Court of the Family Court, Fogarty, Baker & Butler JJ, 8 September 1993)
Mazorski v Albright (2007) 37 Fam LR 518
McDonald v Queensland Police Service (2017) 269 A Crim R 585
Murphy & Murphy [2007] FamCA 795
Nguyen v Cosmopolitan Homes [2008] NSWCA 246
Norbis v Norbis (1986) 161 CLR 513
Re Andrew (1996) FLC 92-692
Re B (a child) (adoption by one natural parent) [2002] 1 All ER 641
Re B (a child) (care order: proportionality: criterion for review) [2013] UKSC 33
Re P (a child): Separate Representative (1993) FLC 92-376
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550
Russell & Close [1993] FamCA 62
Smithson & Lorenzo [2018] FamCA 578
U v U (2002) 211 CLR 238
ZP v P: Re PS: Ex parte ZP (1994) 181 CLR 369
Division: Appeal Division Number of paragraphs: 133 Date of hearing: 30 November 2020 Place: Hobart Counsel for the Appellant: Mr Fitzgerald Solicitor for the Appellant: Rae and Partners Senior Counsel for the Respondent: Mr Turnbull Solicitor for the Respondent: Bishops Barrister & Solicitor Counsel for the Independent Children's Lawyer: Mr Murray Solicitor for the Independent Children’s Lawyer: Murray & Associates ORDERS
SOA 46 of 2020 APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS KEANE
Applicant
AND: MR KEANE
Respondent
MURRY & ASSOCIATES
Independent Children’s Lawyer
ORDER MADE BY:
ALSTERGREN CJ, MCCLELLAND DCJ, BENJAMIN J
DATE OF ORDER:
18 JANUARY 2021
THE COURT ORDERS THAT:
1.The appeal against the orders of a judge of the Family Court of Australia made on 8 May 2020 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Keane & Keane has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Alstergren CJ, McClelland DCJ and Benjamin J:
INTRODUCTION
This is an appeal against final parenting orders made by a judge of the Family Court of Australia concerning X born in 2016 (“the child”). The appellant is her mother, Ms Keane (“the mother”), and the Respondent is her father, Mr Keane (“the father”).
The primary proceedings related to the parenting arrangements for the child in circumstances where the mother alleged that there was a need to protect the child from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence. The mother contended that the father had committed family violence towards her and the child. Further, she alleged that the father had engaged in sexually inappropriate and abusive behaviour with the child on a number of occasions. The father denied the alleged violence and abuse.
The mother’s case, at first instance, was that the child should spend no time with the father. The father’s case was that time should be initially supervised then move to unsupervised time.
On 8 May 2020, orders were made which provided that the child live with the mother and spend time with the father. Initially that time would be supervised.
The mother does not appeal the orders made on 8 May 2020 insofar as they relate to parental responsibility, residence and the child spending supervised time with the father.
The primary judge went on to determine that there ought to be a transition from supervised time to unsupervised time with changeovers at a contact centre, a professional centre or at a police station. It is the orders made for the father’s time with the child to transition to unsupervised time which is the focus of this appeal.
It is often the case that, in final parenting disputes under the Family Law Act 1975 (Cth) (“the Act”), the court is required to adjudicate in respect to serious allegations of family violence. Those allegations need to be carefully considered in the context of the statutory requirements under the Act. A finding in respect to whether family violence did or did not occur can have a dramatic impact on the lives of the parties and, even more significantly, on the life of the child who is the subject of the proceedings.
The process does not stop at that point. If findings are made that family violence has occurred, there needs to be an investigation and consideration as to whether the child is able to spend time with the offending parent or carer in some structured way so as to promote the best interest of the child and to protect the child from harm or risk of harm.
The primary judge carefully analysed the allegations of family violence and made critical, and at times adverse findings, as to the reliability of the evidence of both the father and the mother as to those matters.
The primary judge concluded that the father had committed acts of family violence on the mother, prior to and shortly after separation, but not to the extent asserted by the mother. The mother also asserted allegations of sexual abuse by the father towards the child. The primary judge found “the possibility of past sexual abuse of the child [by the father] to be so unlikely that it cannot establish any real chance of sexual abuse” (at [405]).
The reasons for judgment provided by the primary judge were fulsome and the parties, who were both legally represented and had the input of an Independent Children’s Lawyer, had many days of hearing to present and argue their respective positions. The mother presented her case as a “no time case” in which she did not seriously contemplate a move from the child spending no time to supervised time and, eventually, unsupervised time with the father. That occurred in circumstances where unsupervised time was clearly contemplated by the father in his case and was raised with experts during the hearing.
It is noted that there are no grounds of appeal raised by the mother in terms of the adequacy of the primary judge’s reasons as to the timing of the child’s transition from supervised time to unsupervised time. The contention is that the transition should not occur at all.
Essentially, the mother appeals the primary judge’s decision on the basis that his Honour erred in determining that he did not accept the mother’s submissions based on the principle of Re Andrew (1996) FLC 92-692 (“the Re Andrew principle”) that, in the circumstances of this case, unsupervised time between the father and the child would cause such a level of distress and anxiety in the mother so as to sufficiently affect her parenting capacity and that, as a result, the father’s time with the child should be limited to weekly two hour visits at a contact centre in B Town. The mother contends that the primary judge failed to adequately consider the impact on the child of the mother’s parenting capacity being adversely impacted if the child were to transition to spending unsupervised time with the father, including the child vicariously experiencing the mother’s stress and anxiety.
For the reasons that will follow, we have found that the primary judge adequately considered all relevant issues on the basis of the evidence presented in the case and the manner in which his Honour exercised his broad discretion under the Act does not give rise to an appealable error.
RELEVANT BACKGROUND
In 2016, the child was born. She is now aged four (4) years.
In 1985, the mother was born in Country C. She is in Australia on a partner visa by virtue of her marriage to the father and currently lives in the B town area with the child.
In 1986, the father was born and also currently resides in the B town area.
Both the mother and father and their respective families are practising Christians and agree that the child should be raised consistently with the teachings of that particular religious faith.
In April or May 2018, the parties separated on a final basis. The child was aged 18 months at the time of the parties’ separation. The mother alleges that this occurred in the context where the mother had been subject to family violence perpetrated by the father and after she witnessed the father sexually abuse the child.
The father suffers from a bipolar disorder and receives ongoing treatment for depression including taking prescribed medication. The primary judge did not make any findings in respect to the father’s parenting capacity being adversely impacted by this condition. This issue has not been raised as an error on the part of the primary judge.
The parenting proceedings were heard by the primary judge over a period of fourteen days commencing on 18 July 2019 and concluding on 26 March 2020.
On 8 May 2020, the primary judge delivered his reasons for judgment and made orders the subject of the appeal. Upon application by the mother, on 31 July 2020, his Honour made orders staying Orders 4(c) to 4(g), 5 and 14(a) of the orders of 8 May 2020 and varied Order 4(b) so that such time, being the child’s spend time with the father for two (2) hours each week supervised by a contact centre in B town, continue pending the determination of this appeal.
The child had not spent any time with the father between May 2018 and the date of the primary judge’s orders of 8 May 2020. The child has since spent supervised time with the father on only one occasion but that is due to the impact of restricted operation of the contact centre in B Town resulting from measures associated with the COVID-19 pandemic. The parties anticipate that those restrictions will be eased in the coming weeks and months such that, unless set aside or varied by this Court, the current orders providing for the transition from supervised to unsupervised time would commence in the middle of 2021.
Family violence
A major focus of the hearing before the primary judge was the mother’s allegations that the father had engaged in conduct constituting family violence as defined in s 4AB of the Act. That conduct included acts of physical violence. The mother further alleged that the father had engaged in sexually inappropriate conduct with the child, including by attempting to engage in an act of penetrative sex with the child.
While the primary judge made adverse findings about the credit of each of the parties’ evidence in respect to their respective accounts as to the extent to which their relationship was characterised by family violence, there has been no challenge to his Honour’s conclusion that “the parties’ relationship has been characterised by a significant level of family violence perpetrated upon the mother by the father” (at [241]). It is apparent, from the primary judge’s reasons for judgment, that his Honour carefully considered the relevant evidence, tendered in the proceedings by each party. His Honour set out in considerable detail why he did or did not accept the competing factual contentions by each of the parties. There has been no challenge to his Honour’s findings of fact in that respect. The mother, however, alleges that, as a result of those findings of fact, the primary judge should have found, by way of inference, that the mother’s parenting capacity will be adversely impacted by the child spending time with the father and, as a result of that adverse impact, the child’s time with the father should be limited to supervised time.
In light of the mother’s submission that such an inference should have be drawn by the primary judge, it is necessary to set out, by way of summary, his Honour’s factual findings in respect to the issue of family violence and in respect to the mother’s contentions that the father engaged in sexually inappropriate conduct with the child and, further, engaged in acts of sexual abuse of the child.
The primary judge found that the father had committed acts of violence against the mother during what his Honour referred to (at [240]) as being:
·the Melbourne and Suburb U incidents;
·the Passport incident;
·the events around separation; and
·the events following separation.
Those findings are set out immediately below.
The Melbourne and Suburb U incidents
The mother alleged that, in 2014, the father pushed her to the floor and kicked her after she complained about the father exiting the bathroom only wearing a towel in circumstances where they were staying at a friend’s house in Melbourne. This occurred, the mother contended, in circumstances where other church members were also staying at the house, including a woman who the mother believed was a former girlfriend of the father (at [108]).
The mother further alleged that, when the parties returned to Tasmania and were staying at another friend’s house in Suburb U, the father objected to her raising her concern about his conduct in Melbourne. The mother alleged that “the parties were in the bedroom they were sleeping in when this happened, and that the father opened the door and tried to push her out of the room. The mother says she then grabbed onto the door and the father pulled her until she let go and he then dragged her ‘down’ towards the front door of the house” (at [114]).
The unchallenged findings of the primary judge in respect to this incident is set out in the trial reasons as follows:
[122] Having regard to the evidence in relation to this incident I am satisfied that there was behaviour on the part of the father in Melbourne and Suburb U in October 2014 in the nature of physical violence to the mother that meets the definition of family violence in s 4AB of the Act. I have formed this view, in particular, by reference to the relatively contemporaneous report of it made by the mother’s sister Ms H in the October 2014 email (albeit on the basis of what she had been told by the mother), and also by reference to the terms of the mother’s November 2014 email. I regard these relatively contemporaneous documents as broadly confirmatory of the mother’s version of events and consistent with the apparent logic of events. In the light of these documents and having regard to the father’s evidence in cross examination I do not regard the father’s denials as credible.
(Citations omitted)
The Passport incident
The mother’s allegations in respect to this incident are summarised in the trial reasons as follows:
[185]At paragraphs 48-53 of her trial affidavit the mother deposes to a further incident of family violence which she says occurred when the parties arrived back in Australia on 18 February 2018, following their stay in Country C. The mother says that after the parties arrived at Melbourne Airport, the father took her document bag away from her which contained “our two iPads, my passport, wallet, domestic flight tickets, the signed Agreement, [the child’s] passport, her Australian Medical Book and Country C Medical Book”. She said she asked for the bag back and that the father pretended he was passing it to her, but then he would push it into her and pull it away again. The mother said she was crying and “ran after him, pushing the pram and begging him to give me [the child] and my documents”. The mother deposes that after overhearing conversations in Country C she was worried that the father would abandon her, throw away her important documents and do “something bad” to the child. The mother says that she followed the father into the male toilets at the airport and that he was in a cubicle but then “he came out and pushed me hard towards the toilet sink. He punched me and verbally abused me calling me a stupid bitch and a stupid cow. I fell to the floor. I had [the child] in the pram. He kicked the pram that [the child] was in and she was crying…” She says she eventually got the document bag back from the father, however some of the documents were missing.
[186]The mother says that when the parties arrived in B Town the paternal grandfather picked them up from the airport and took them back to the paternal grandparents’ home. She says that the father and the paternal grandparents bullied and harassed her verbally and physically telling her to give the child’s passport to them. She goes on to say at paragraph 52:
[52] … His mother pulled [the child] roughly from me saying “I’ll revenge you”, “Get out of my house”. [The paternal grandfather] took [the child]. [The father] tried to take the nappy bag I was holding and punched me then pushed me hard out of the living room. I was in pain and I started screaming “do not torture me”. [The father] and his mother then pushed me hard and pushed me to get out of the house. I was left on the side of the road with nowhere to go and without [the child] and had no money or house key and did not have a phone.
The primary judge then described the mother’s evidence that she was then assisted by good Samaritans who provided her with a taxi fare to return to the parties’ residence.
The unchallenged findings of the primary judge in respect to this incident is set out in the trial reasons as follows:
[199]It is clear that upon the parties’ return to Tasmania from Country C in February 2018 there was at the very least a real concern on the part of the father and the paternal grandmother that the mother might seek to leave Australia with the child and hence that they needed to obtain the child’s passport to prevent this from happening. Having regard to the evidence of the mother, the father, the paternal grandmother and Mr F, I am prepared to accept that there was a serious disagreement between the father and the paternal grandmother on one hand, and the mother on the other, in relation to the child’s passport and who should keep custody of it. I consider that, in all the circumstances, the mother was subjected by the father and his family to family violence in the form of controlling behaviour and bullying in relation to the passport which caused her to be fearful.
[200]On the evidence however, and in the absence of corroborating material from other sources, I am not able to make a finding ether way in relation to the mother’s allegations of the physical violence initiated upon her by the father at Melbourne Airport, or the physical violence she says was inflicted upon her by the father and the paternal grandmother once the parties had returned to Tasmania. It is clear that tensions were running high in relation to the passport once the parties returned to Australia from Country C, but in the face of such wildly differing accounts of what occurred I am unable to find the mother’s allegations of physical assault proved to the standard of s 140 of the Evidence Act.
The events around separation
The mother made allegations that, at the time the parties separated, on or around 29 April 2018, after she requested the father to return her mobile phone, the father became angry and that, as expressed by the mother:
[202] …He then pushed me in front of [the child] into the bench and then to the floor. My hip banged into the bench badly. He pulled me [sic] hair and dragged me from the kitchen to the bedroom and put me of [sic] the bed and continued to punch me and hit me with the bag. [The child] by this stage was walking and followed me crying and I got up to try and comfort her but he grabbed [the child] aggressively and pushed [the child] to the floor and he grabbed my hand and he pushed me. I tried again to get [the child] to comfort her but he pushed her again onto the floor. I managed to get away from him and I ran away from him and I left the house. I was so scared. I left [the child] behind, as I was scared for my life and just knew I needed to leave the house.
The primary judge describes how this event led to the father being charged by police with the father pleading guilty to a charge of common assault.
After carefully analysing the parties’ respective factual contentions, the primary judge summarised his findings in respect to this incident that the evidence did not satisfy his Honour, to the requisite standard, that the father had engaged in acts of violence towards the child. The primary judge found, however, that “acts of family violence in the nature of physical assault were perpetrated on the mother by the father on 29 April 2018” (at [209]).
Again, his Honour’s findings in that respect were not the subject of challenge.
The events following separation
After carefully analysing the parties’ competing factual contentions, the primary judge found that, while “not all of the mother’s allegations about the conduct of the father and his family over this period necessarily amount to threatening and intimidating behaviour”, his Honour was satisfied that:
[231] … the father’s text messages to the mother, in particular, are susceptible to this characterisation. Their language is plainly intimidating, and I consider that they were calculated by the father to let the mother know that he knew where she and the child were living, and to frighten her. They also sought to apply pressure to her based on her visa status, and her ongoing membership of her religious community. I accept the mother’s submissions that these messages are threatening, and that they constitute stalking and surveillance of the mother and as such meet the definition of family violence in s 4AB of the Act.
Once again, the primary judge’s findings in that respect were not the subject of challenge.
Conclusions in relation to the mother’s allegations of family violence
While the primary judge rejected the mother’s allegations that the father had committed a number of other acts of family violence, his Honour nonetheless held as follows:
[240]…, having regard to all of the foregoing it is plain that there have been at least a number of occasions where the mother has proved, to the requisite standard, that the father has committed acts of family violence as defined in s 4AB of the Act against her. These occasions involve physical violence during what has been referred to as the Melbourne and Suburb U incidents, bullying and controlling behaviour during what has been referred to as the Passport incident, physical violence during what has been referred to as the events around separation, and acts of stalking and intimidation during what has been referred to as the events following separation.
[241]Although the mother gave palpably unreliable evidence in relation to her attendance at her GP after the Hobart incident, and at times her evidence was vague, contradictory, and had the appearance of embellishment, it is difficult to avoid the conclusion that the parties’ relationship has been characterised by a significant level of family violence perpetrated upon the mother by the father. The fact of the family meeting in Country C and the resulting Agreement is entirely consistent with this conclusion. In all the circumstances I am prepared to make a finding in these terms. The existence or otherwise of an unacceptable risk to the child will need to be evaluated in part by reference to my findings that the mother has proved to the requisite standard that some of the allegations of family violence have occurred.
[242]Importantly, however, and leaving to one side for the moment the allegations of sexual abuse of the child to which I will shortly turn, I am not able to make a finding that the father has engaged in acts of family violence against, or in the presence of, the child. It will be necessary to return to the significance of the fact that I am not able to make such a finding against the father insofar as the child is concerned when the existence or otherwise of an unacceptable risk to the child comes to be evaluated.
Allegations of sexual abuse of the parties child
As noted by the primary judge, the mother presented her case on the basis that the child should have no time with the father and that:
[243]Central to the mother’s case that the child should have no time with the father is her allegation that she witnessed the father engaging in sexually inappropriate and abusive behaviour with the child on four occasions. The mother says she first witnessed the father being sexually inappropriate with the child in the shower on two occasions when the parties and the child were visiting the maternal family in Country C in early 2018. She also says that she again witnessed the father sexually abusing the child on two occasions in B Town in April 2018, eventually leading to their separation.
Alleged abuse in Country C
After considering each of the parties’ factual contentions including their respective responses to questions asked in cross examination, the primary judge concluded that he could not be satisfied, to the standard required by s 140(2) of the Evidence Act 1995 (Cth) (“the Evidence Act”), that the father had, as alleged by the mother, engaged in inappropriate sexual conduct with the child in Country C in early 2018. His Honour stated (at [333]) that he reached that conclusion having regard to the following:
(a)first, it appears highly doubtful that the mother sought any medical attention for the child until some three weeks after she says she formed her concern that the child may have been sexually abused by the father, and that when she did seek medical attention it is apparent that the child was suffering from gastroenteritis;
(b)secondly, the mother’s evidence that when she did seek medical attention the doctor suggested that there appeared to have been some interference with the child’s vagina is wholly inconsistent with the contemporaneous notes made in the Medical Book, and with the Case Summary obtained subsequently by the mother’s lawyers from the hospital;
(c)thirdly, having found, for the reasons I have explained, that the provenance of the Q Hospital letters is too uncertain to be regarded as reliable and that their material terms are so obviously different to the contents of the Medical Book and the Case Summary document, there is no contemporaneous corroborating document which would tend to support the mother’s allegations;
(d)fourthly, it seems that not only did the mother continue living with the father upon their return to Tasmania, she did not report these allegations:
i) upon her return;
ii) when she made a statement to police in May 2018;
iii) when she spoke to CSS in May 2018; and
iv)when she was interviewed by Police on 15 May 2018 (at which time the mother affirmatively suggested that she had no concerns about the father with the child at the time they were visiting Country C earlier in the year);
(e)fifthly, that Mr F, who met with the mother on two occasions in April and May 2018, says that he does not recall the mother ever making reference to the Country C allegations in the time he spent with her;
(f)sixthly, although the mother was visibly distressed when giving evidence about the alleged incidents in the shower in Country C, this did not necessarily present as supportive of her version of events – to use the language of Dr E, there was a sense in which her evidence gave the inescapable impression of being an “oft-told tale, consolidated by frequent repetition” (page 30 of his report).
Dr E was the single expert psychiatrist who gave evidence in this matter.
Alleged abuse in B Town
The primary judge considered the mother’s allegations as set out in paragraphs 30 and 32 of her trial affidavit:
[335] … [The mother] says as follows:
[30] On 17 April 2018 [the father] advised me he wanted to have a bath with [the child]. I thought this was unusual as at home, he rarely participated in bathing or showering of [the child] when I was there. I removed [the child's] clothes and [the father] asked me to leave the bathroom and close the door which I did. I then heard [the child] suddenly screaming and crying excessively so I ran into the bathroom and opened the door to find [the father] holding [the child] with an erect penis. He attempted to cover his erect penis with his hand and I grabbed [the child] from the bath and tried to comfort [the child] but [the father] grabbed [the child] back towards him and held her on his lap with his erect penis. I quickly picked [the child] up again and removed her from [the father] and [the father] got angry and said that he had not finished bathing her. I left the room with [the child] and kept her with me for the balance of the evening.
…
[32]The following day being 18 April 2018 [the father] returned home and again said he was going to have a bath with [the child]. I did not do this as I was worried about what I had observed yesterday. [The father] then began shouting at me to do it and proceeded to take the baby and her clothes off himself. He then shut himself in the bathroom and told me to stay out. I left the bathroom but stayed at the door listening and again heard the baby suddenly cry and I opened the door and found him sitting in the bath with an erect penis and it appears that he was trying to put his penis into the baby's bottom/vagina area. I again quickly snatched the baby from [the father] and observed his erect penis and left the room whilst [the father] was yelling saying that he wanted to finish bathing her and to bring her back. I ran to [the child's] room and observed her bottom being red and put cream on it and I did not know what to do and stayed with [the child] in the room awake all night. [The father] had removed from me my mobile phone and iPad as I had previously refused to have sex with him. He told me that if I had sex with him that he would return the mobile phone to me.
The primary judge noted the father’s emphatic denial of the mother’s allegations and again, after detailed analysis of the parties’ evidence, his Honour concluded that:
[357]Having regard to all of the evidence about the B Town allegations, I do not consider that the mother has proved to the standard of s 140 of the Evidence Act that the two incidents in the bath with the child occurred. And as with the Country C allegations, I entertain real doubt about whether the B Town allegations did in fact occur. I have reached this conclusion having regard to the following matters:
(a)first, that in the face of what the mother says she witnessed on 17 April 2018, she permitted the father to bathe the child the following night;
(b)secondly, the mother’s failure immediately to report these incidents to the police, a doctor, or even to take the child and leave the house;
(c)thirdly, the difficulty experienced by the mother in responding to several of the questions asked of her in cross examination about the detail of what she said she had witnessed on the nights in question, and the imprecision with which she gave this evidence;
(d)fourthly, that the mother did not report these incidents to the police until 15 May 2018 – almost a month later;
(e)fifthly, that the mother appears to have let the father care for the child on his own after the incidents had occurred without sounding any alarm or mentioning any concern to anyone;
(f)sixthly, that the mother did not mention these matters in her statutory declaration of 1 May 2018 in support of assault charges against the father;
(g)seventhly, that the mother did not mention these matters to Mr F at her meeting with the church elders in late April 2018; and
(h)eighthly, that the terms in which the father’s alleged conduct is described in the mother’s written statement of 11 May 2018 differ so markedly to the terms in which the alleged conduct is described by the mother in her trial affidavit.
Again, the findings of the primary judge, in that respect, were not the subject of challenge, nor was his Honour’s consequent conclusion that:
[358]As with the Country C allegations, the existence or otherwise of an unacceptable risk of harm to the child will need to be evaluated in part by reference to my finding that the mother has not proved to the requisite standard that the B Town incidents occurred.
The primary judge explained (at [405]) that he considered “the possibility of past sexual abuse of the child [by the father] to be so unlikely that it cannot establish any real chance of sexual abuse”. This, together with his Honour’s finding that the father had not engaged in any acts of family violence against the child, or in the presence of the child, led his Honour to conclude that orders providing for the child to have time with the father would not expose the child to an unacceptable risk in terms of s 60CC(2)(b) of the Act.
THE APPEAL
The mother’s grounds of appeal are set out in an Amended Notice of Appeal filed 1 September 2020, as follows:
1. Having determined the mother is “genuinely very distressed at the prospect of the child having time with the Father” (paragraph 11 of Judgement) His Honour failed to correctly apply the principle stemming from the line of authorities generally acknowledged to commence with Russell & Close (unreported Full Court 25 June 1993) as recently reaffirmed by the Full Court of the Family Court in Blinko & Blinko (2015) FamCAFC 146 at paragraph 83 (the Re Andrew Principle)
Particulars
A. By His Honour's apparent reliance on the facts underpinning the decisions of Dunst & Dunst (2016) FamCAFC 15 and Hollister & Gosselin (2016) FamCA 759 as reflecting the necessary nature and magnitude of behaviour to persuade the Court the [mother’s] belief the [the father] posed a risk was not so “irrational or baseless” as to call into question the genuineness of the [the mother’s] belief;
B. By His Honour's apparent assessment the necessary nature and magnitude of impact upon the Appellant to excite the Re Andrew Principle is “a reaction on the part of the mother that would be so extreme and so unmanageable that it would discernibly impair the mother's caregiving capacity”; and
C. His Honour apparent determination that for the Re Andrew’s principle to apply there needed to be more than the [mother’s] capacity to properly care of the child be sufficiently eroded if the child is to spend unsupervised time with the [father]
2.That His Honour erred in fact and/or law in determining - by effect - the [mother’s] capacity to properly care for the child would not be sufficiently eroded by unsupervised time as set out by orders 4(c) to (g) and order 5.
Particulars
A.By His Honour's apparent reliance on the facts underpinning the decisions of Dunst & Dunst (2016) FamCAFC 15 and Hollister & Gosselin (2016) FamCA 759 as reflecting the necessary nature and magnitude of behaviour to persuade the Court the [mother’s] belief the [father] posed a risk was not so “irrational or baseless” as to call into question the genuineness of the [mother’s] belief;
B. By His Honour's apparent assessment of the necessary nature and magnitude of the impact on the [mother] to excite the Re Andrew Principle being “a reaction on the part of the mother that would be so extreme and so unmanageable that it would discernibly impair the mother's caregiving capacity” was required for the Court to be persuaded the [mother’s] capacity to properly care for the child would be sufficiently eroded if the child is to spend unsupervised time with the [father].
C. His Honour's failing to consider the family violence perpetrated by the [father] would inform the [mother’s] anxiety of the [father] and/or her genuine belief the [father] posed a general risk of harm to the child and/or
D. By His Honour's failure to consider the cumulative force of the family violence together with the father’s trenchant denials informed the mother’s belief the father presented a risk of harm; and/or
E. His Honour erred in apparently determining (paragraph 374)- that the Mother’s is conditional on the Court finding the father represented an unacceptable risk" where the correct position of the mother was even "in the event the Court did not make a finding of unacceptable risk she submitted that an order providing for the child to spend time with the father would have such an impact on her - - that it would not be in the best interests of the child (paragraph 82).
F. By failing to give any weight to the position that -though determining on the balance of probability the sexual abuse had not occurred- the Court did not find the [mother’s] belief such behaviour has occurred was “irrational and baseless” whereby the genuineness of her belief was open to doubt
G. By placing too much weight on the importance of bringing an end to the litigation that when there were countervailing considerations relevant to the best interests of the child.
H. By failing to consider whether the issue of the transition to unsupervised spend time with may deleteriously impact on the mother’s capacity to properly care for the child or that her capacity would be sufficiently eroded by the unsupervised time.
3.That the finding His Honour being “I do not consider that there is sufficient evidence of the mother's distress of having to facilitate the child having time with the father” particularly in relation to unsupervised time was against the weight of the evidence.
Particulars
A. Failing to give any or any appropriate weight to the evidence of Dr E (paragraph 394) that the mother would require intensive psychological therapy up to and beyond the first contact of the child with the father if such was ordered.
B. By erroneously inferring the [mother’s] concession that if orders were made she would “have no choice” but comply as indirect or inferential evidence the [mother] would psychologically cope; or
C. (Alternative to B above) By giving undue weight to the mother’s evidence she would have to comply with the orders of the Court if time was ordered was evidence of itself that she would cope with those orders.
D. Failing to give sufficient or any weight to the evidence of the Family Consultant where
i. That evidence or opinion was corroborated or was otherwise supported by the evidence of Dr E;
ii. That evidence relating to the family violence perpetrated by the [father] in forming the mother’s belief the father posed a risk to the child and/or
iii. That evidence relating to the family violence perpetrated by the [father] in forming the mother’s distress in having to facilitate the child having time with the father - particularly unsupervised time - impinged on her capacity to cope
iv. Unreasonably criticising the Family Consultant's failure to - with any degree of precision- detail the future impact on the mother if spend time with orders were made particularly unsupervised spend time with orders.
E.Failing to give sufficient weight to the cumulative force of the repeated acts of family violence perpetrated by the [father], his lack of acknowledgement and insight.
F. There was insufficient evidence for the Court to be satisfied the transitions to unsupervised spend time would not deleteriously impact on the mother distress or that her capacity to care would not be (sufficiently) eroded by the unsupervised time.
4. In the circumstances alleged by grounds 1 and/or 2 and/or 3 His Honour erred in the exercise of discretion when ordering unsupervised time.
(As per original)
Senior counsel for the father argued that the appeal should be dismissed on the basis that the mother is seeking to raise arguments that were not argued at the trial. In circumstances where, for the reasons we set out, we have dismissed the appeal, it is unnecessary to consider this argument.
For reasons which we explain, we are not satisfied that the grounds of appeal establish any error on the part of the primary judge.
Ground 4
Before commencing our discussion of the grounds of appeal, it is important we note that this is an appeal against a discretionary judgment. It is therefore convenient, at this stage, to firstly turn to Ground 4 as this ground alleges that his Honour erred in the exercise of his discretion.
It is well established that discretionary judgments of a primary judge should only be disturbed on a limited and considered basis.
An appeal, including in parenting proceedings, is not an opportunity to revisit and rectify deficiencies in a party’s case at first instance. As recently noted by the High Court, in Hsiao v Fazarri (2020) 383 ALR 446 at [53] (per Kiefel CJ, Bell & Keane JJ), a trial is not to be regarded as “some preliminary skirmish” that can be conducted without consequence. As the High Court explained, a party’s right of appeal against a primary judge’s exercise of discretion in proceedings under the Act is a “right to have the Full Court review whether the primary judge’s discretion to make [an order] had miscarried, applying the well-established principles expressed in House v R. It was not an opportunity for the appellant to make a case that she chose not to make at the trial” (Citations omitted).
In Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [31]–[32], the High Court stated:
… It is well recognised that orders made in the exercise of a judicial discretion under the Family Law Act, including orders as to the alteration of property interests [Norbis v Norbis (1986) 161 CLR 513 at 517-518, 534-535; Mallet v Mallet (1984) 156 CLR 605 at 610, 621-622, 634], orders as to custody [Gronow v Gronow (1979) 144 CLR 513 at 534] and parenting orders [CDJ v VAJ (1998) 197 CLR 172 at 182 [40]], can be set aside only on a strictly limited basis, in accordance with House v The King [(1936) 55 CLR 499 at 504-505].
[32] A parenting order made under s 65D [of the Act] involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant [Family Law Act 1975 (Cth), s 60CC(3)(m)]. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion [Norbis v Norbis (1986) 161 CLR 513 at 518], as does the overall assessment of what is in the best interests of the child.
As noted by Kirby J in U v U (2002) 211 CLR 238 at [119], in parenting cases, trial judges are often required to make difficult decisions involving fine judgment after consideration of “conflicting material pointing in different directions”. As his Honour, at [117], noted:
Given the disputable nature of all such decisions, the cost and emotional burden of litigation, the persuasive arguments that both sides can typically muster and the need for finality of disputation, courts in this country [eg House v R (1936) 55 CLR 499 at 504–5 ; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 176–8 ; 35 ALR 625 at 628–30] and overseas [Poel v Poel [1970] 1 WLR 1469 ; sub nom P v P [1970] 3 All ER 659 ; Moge v Moge [1992] 3 SCR 813 at 817] have long recognised the need for appellate courts to exhibit restraint in disturbing such conclusions. An appellate court will refuse to intervene unless a material error of principle is demonstrated [Poel v Poel [1970] 1 WLR 1469; sub nom P v P [1970] 3 All ER 659 ; Moge v Moge [1992] 3 SCR 813 at 817]. In considering suggestions that such an error has occurred, the appellate court will "avoid an overly critical, or pernickety, analysis of the primary judge's reasons, given the large element of judgment, discretion and intuition which is involved" [eg AMS (1999) 199 CLR 160 at 211 [150] ; 163 ALR 501 at 540].
Noting his Honour’s reference to a similar approach being taken by courts in other jurisdictions, it is instructive to have regard to the observation of Nicholls LJ in Re B (a child) (adoption by one natural parent) [2002] 1 All ER 641, at [16], where his Lordship observed that, often in parenting cases, “There is no objectively certain answer on which of two or more possible courses is in the best interests of a child” and that:
… save the most straightforward cases, there are competing factors, some pointing one way and some another. There is no means of demonstrating that one answer is clearly right and another clearly wrong. There are too many uncertainties involved in what, after all, is an attempt to peer into the future and assess the advantages and disadvantages which this or that course will or may have for the child.
For those reasons, at [19], his Lordship further explained that:
Cases relating to the welfare of children tend to be towards the edge of the spectrum where an appellate court is particularly reluctant to interfere with the judge’s decision.
In exercising appropriate restraint, an appellate court should also be recognisant of the role and particular advantages of a trial judge in evaluating the competing contentions of parties in parenting case. In Biogen Inc v Medeva plc (1996) 36 IPR 438 at 453, Hoffmann LJ stated:
The need for appellate caution in reversing the [trial] judge’s evaluation of the facts is based on much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made on him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance . . . of which time and language do not permit exact expression, but which may play an important part in the judges overall evaluation.
In Re B (a child) (care order: proportionality: criterion for review) [2013] UKSC 33 at [42], Wilson LJ further explained the role and advantages of a primary judge in parenting matters, as follows:
The function of the family judge in a child case transcends the need to decide issues of fact; and so his (or her) advantage over the appellate court transcends the conventional advantage of the fact- finder who has seen and heard the witnesses of fact. In a child case the judge develops a face-to-face, bench-to-witness-box, acquaintanceship with each of the candidates for the care of the child. Throughout their evidence his function is to ask himself not just “is this true?” or “is this sincere?” but “what does this evidence tell me about any future parenting of the child by this witness?”…
In Lovell v Lovell (1950) 81 CLR 513 at 519, Latham CJ said:
But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion (as to which see Sharpe v Wakefield [1891] AC 173 at 179) unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court. The words used by their Lordships in the House of Lords in this connection are not always easy to apply, but they ought not to be read as denying the long established principle (which, indeed, is expressly recognized in the cases in the House of Lords) that on an appeal from an order founded upon the exercise of a discretion the appellate tribunal has no right to substitute its discretion for the discretion entrusted to the primary tribunal.
As noted by Austin J in Gilligan and Addison [2018] FamCAFC 211 at [19], unless an appeal can be categorised within those recognised grounds concerning the appropriate exercise of discretion by a trial judge, as identified by the High Court in House v The King (1936) 55 CLR 499 (“House v The King”) at 504–505 and Norbis v Norbis (1986) 161 CLR 513 (“Norbis”) at 539–540, the appeal will be futile.
That relevant principle, as adumbrated in House v The King at 504–505, is as follows:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
At all stages of parenting proceedings, including an appeal, the best interests of the child is the paramount consideration. Further, it is well accepted that proceedings relating to the welfare of a child in this Court are not strictly proceedings inter partes: see Re P (a child): Separate Representative (1993) FLC 92-376 at 79,896–7; ZP v P: Re PS: Ex parte ZP (1994) 181 CLR 369 at 647–648; Kwon and Lee (2006) FLC 93-287 at 80,922; Cao & Cao (2018) FLC 93-880 at 78,711. However, as in all civil litigation, it will be the issues that are joined that will dictate what issues, including s 60CC factors, are relevant in parenting proceedings: see Banks & Banks (2015) FLC 93–637 at 80,116, [48].
The focus of the mother’s case before the primary judge was presenting a ‘no contact case’ whereby the mother argued that, as a result of her assertions that the child had been sexually abused by the father, the child should spend no time and have no contact with the father. The mother, through her legal advisers, failed to present adequate evidence of sufficient weight to satisfy the primary judge that the emotional and psychological impact, upon the mother, of the child spending time with the father was such that it could reasonably be inferred that the mother’s parenting capacity would be adversely impacted by such orders.
In this matter, on the basis of evidence presented in the trial, and for the reasons set out below, we have concluded that the findings made by the primary judge were reasonably open to him and there is no error in the exercise of his Honour’s discretion.
Ground 1
In respect to this ground of appeal, omitting references and citations, the mother’s argument was set out in her Amended Summary of Argument filed 13 November 2020 at paragraphs 19– 34, as follows:
19. The nub of grounds 1 is the contention His Honour’s formulation of “discernibly impairs” or “so adversely affect” (to describe the nature and magnitude of the impact on parenting capacity) based on the “so impinge” formulation misunderstood or failed to reflect the development of the principle as formulated in “Blinko”.
20. The formulation “sufficiently erode” is not simply a restatement of the “so impinge” formulation found in the decisions A v A and Moose and Moose.
21. The adverb “sufficiently” qualifies the manner of the verb reflecting “enough for a particular purpose”. The verb “erode” imports the notion of “making weaker”. A relevant synonym is “wear away”.
22. The above is contrasted with the formulation “so impinges”. The adverb “so” qualifies the degree or intensity of the verb. The intensity attributed to the verb “impinge” imports the notion of “having a clear and definite effect”. Relevant synonyms are “infringe”, “invade” or “encroach”.
23. When juxtaposing the formulations it is apparent the formulation “sufficiently erode” is a significant departure from the prior formulation “so impinge”.
24. It is submitted the Full Court in Blinko intended to recast the principle particularly the nature and magnitude of impact upon the care giver. Such reformulation is consistent with the objects of the 2011 amendments.
25. The “sufficiently erode” formulation reflects the reality that continued interaction between the [mother] and [father] may, in a prospective sense, wear away the resident parent’s capacity to care for the child.
26. Following the 2011 amendments there have been iterations of the principle more akin to the “sufficiently erode” formulation. In Lane & Steiner the Court when considering the Principle formulated as follows
“as the primary caregiver anxiety about the children's exposure to potential harm is likely to impact adversely (Author's emphasis) upon that parent's ability to care for the children”.
Particular A- Reliance on Dunst & Dunst and Hollister & Gosselin
27. The reliance on both Dunst & Dunst and Hollister & Gosselin was erroneous as His Honour selectively used dicta without proper context.
28. For present purpose Dunst was essentially an appeal against a finding there was sufficient evidence to support findings of unacceptable risk to the children and the trial judge exercise of his discretion within that factual construct.
29. The cited paragraphs from Dunst simply fortified the Full Court’s determination the subject grounds of Appeal were not sustainable;
30. Again Hollister & Gosselin is distinguishable. A critical finding was the Appellant presented a risk of continued alienation which would prejudice the development to the children. It was against this concern the Appellant would thwart any reintroduction with her being “primary factor determining any adverse response to the children to reunification with the Respondent”.
31. It is against the above factual dynamic the Court -in Hollister- came to the conclusion it did.
32. Finally the factual substratum to both Dunst and Hollister were distinguishable given, in both, there was a finding of unacceptable risk.
33.Neither case is predicated on, as the present matter does, there being no risk and the belief of the primary care giver was other than genuine nor the capacity to cope a substantive forensic issue.
Particular B- Erroneous assessment of the nature and magnitude of impact
34. Even if the (Full) Court determines that “discernibly impairs” or “so adversely affect” are simply variations of the formulation “sufficiently erode” it is submitted the statement by His Honour that the necessary “nature and magnitude” of reaction to invoke the principle is a reaction on the part of the [mother] that would be so extreme and so unmanageable (that it would discernibly impair) the [mother’s] caregiving capacity is an error of law and fact.
The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), referred to by the mother, prioritised protecting children from harm as the primary consideration in parenting matters. This is made clear by s 60CC(2A) of the Act which was inserted in the Act by the 2011 Amending Act, referred to above, and requires the court, in considering the matters set out in s 60CC(2) of the Act, to “give greater weight to the consideration” set out in s 60CC(2)(b) over the consideration set out in s 60CC(2)(a). Those two considerations, which are specified as being “the primary considerations” that the court is required to consider in parenting cases, are:
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
This does not mean, however, that allegations that a child will be adversely impacted by particular parenting orders must be uncritically accepted nor does it mean that the court should disregard the benefit of a child having a meaningful relationship with both parents, even in cases where the court has found that the relationship between the child’s parents was marred by family violence. Essentially, the Act requires the court to have regard to those primary considerations which are often referred to in authorities as “twin pillars” together with the other specific criteria set out in s 60CC(3) of the Act (see Mazorski v Albright (2007) 37 Fam LR 518 at [3]). This includes s 60CC(3)(m) which empowers the court to have regard to any other fact or circumstance which it considers relevant.
At all times, in fulfilling its legislative mandate under Pt VII of the Act, the court is required to have regard to the best interests of the child as the paramount consideration. The important statutory function is informed by a number of objectives and principles which are set out in ss 60B(1) and (2) of the Act.
Significantly, in Masson v Parsons (2019) 266 CLR 554 at 565 [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ gave emphasis to the fact that:
Subdivision B of Div 1 of Pt VII [of the Act], which is headed “[o]bject, principles and outline”, provides, inter alia, in s 60B(1) that the objects of Pt VII include “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”
(Emphasis in original)
In the context of that statutory framework, which was recognised by the primary judge (at [82–[93]), his Honour discussed “the Re Andrew principle” and its application in various authorities. Having considered those authorities, his Honour correctly, in our view, concluded that the task before him was:
[93]…to analyse carefully the evidence led on behalf of the mother in relation to the impact that allowing the child supervised time with the father would have on her caregiving capacity. For present purposes however it may be accepted that there would need to be very cogent evidence that, to use the language of the Full Court in Marra & Marra, the mother’s caregiving capacity would be discernibly impaired by any order that the child have time with the father (see Re Andrew, at 83,201) for such an order not to be made. Ultimately, as the Full Court has consistently observed, the lodestar is the welfare and best interests of the child, which principle now finds statutory expression in s 60CA of the Act: Re Andrew, 83,199.
(Emphasis added)
The primary judge’s reference to the need for “very cogent evidence” should be read as meaning no more than the fact that a parent asserting that a child should spend no time with the child’s other parent should be in a position to prove, by adducing evidence of sufficient weight, the basis of their contention to the reasonable satisfaction of the court. In that context, for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact: see Briginshaw v Briginshaw (1938) 60 CLR 336 (per Dixon J); Helton v Allen (1940) 63 CLR 691 at 712 (per McTiernan J); Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [44] (per McDougall J).
For reasons which we will explain, such evidence has not been adduced in this case. That reality cannot be avoided by the mother taking, with respect, unnecessarily technical objections to the expressions used by his Honour at [93] and repeated elsewhere in his reasons for judgment.
As noted by senior counsel for the father, authorities applying “the Re Andrews principle”, relating to the impact of a genuinely held belief on the primary caregiver’s ability to parent, has been expressed in a variety of ways including:
a. “may so impinge upon her capacity as the primary caregiver of the children” [A & A (1998) FLC 92-800];
b. “her co-parenting capacity would deteriorate and impinge the children’s best interests” [Dunst & Dunst [2016] FamCAFC 15 at 81];
c. “as her likely being unable to continue to function effectively so as to adequately care for the children” [Hollister & Gosselin [2016] FamCA 759 at 193];
d. “genuine fears of the residential parent about such a risk may so impinge upon the parent’s capacity” [Bayer & Imhoff [2010] FamCA 532 at 177];
e. “where such anxiety is likely to impact adversely on that parent’s caregiving ability…” [Russell & Russell v Close SA 45 of 1992 an unreported decision of the Full Court];
f. “have an effect on the custodial parent which will impair to a significant degree the emotional support and for that matter physical support which the custodial parent can render the child” [Grant & Grant (1994) FLC 92-506 at 81–259];
It was further noted by senior counsel for the father, that the primary judge, during the course of his decision, referred to “the Re Andrew principle” in different ways including: “harmful impact of having to facilitate time” (at [4], [11]); “so adversely affect [the mother’s] parenting of the child” (at [11]); and “discernibly impair the mother’s caregiving capacity” (at [85], [395], [430]).
In applying the relevant legislative criteria set out in Pt VII of the Act, the court is, of course, assisted by earlier decisions of the court which have applied the relevant legislative criteria to the particular facts and circumstances of the case that was decided. However, we respectfully agree with the submission of senior counsel for the father that the line of authorities, commencing with Russell v Close [1993] FamCA 62 (“Russell v Close”) and which were referred to by the Full Court in Blinko & Blinko [2015] FamCAFC 146 (“Blinko”), do not create a “binding rule” which confines or modifies the statutory scheme set out in Pt VII of the Act (see Norbis at 519 (per Mason and Deane JJ). As noted, that legislative scheme set out in Pt VII of the Act requires the Court, in the exercise of its discretion in parenting matters, to have regard to the myriad of considerations to which we have earlier referred.
In Russell v Close, the Full Court referred to the decision of the Full Court in B and B (1993) FLC 92-357 (“B and B”) and stated, at [32]:
In upholding children's right to protection from sexual, psychological and/or emotional harm, the court must take into account any anxiety on the part of the primary caregiver concerning the child's exposure to potential harm where such anxiety is likely to impact adversely on that parent's caregiving ability.
In the cited decision of B and B, the Full Court at 79,780 stated:
It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children's protection. As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.
Subsequent authorities, however, confirm that it is an error to assume that, in each and every case where a parent is concerned about the safety of a child in the other parent’s care, the court will infer that there is an unacceptable risk that the concerned parent’s parenting capacity will be adversely impacted. To do so risks elevating those fears to an extent that it overshadows the totality of considerations set out in s 60CC of the Act. In particular, as noted by the primary judge, it does not give the concerned parent a right of “veto” over whether the child should have time with the other parent, citing Marra and Marra (Unreported, Full Court of the Family Court, Fogarty, Baker & Butler JJ, 8 September 1993). As explained in Marra at [6]:
The genuinely held beliefs or concerns of the custodial parent as to access are relevant considerations in deciding what access to order (s.64(1)(bb)(i) and (v)). However, it does not give to the custodian a veto. Its relevance is the extent to which it may have an adverse impact upon the welfare of the child as a result of it affecting the custodian's caregiving capacity. The wife’s fears in the present case, whilst of personal concern to her, do not appear likely to have significant effect upon her capacity as a custodian. The trial Judge in this case, though bound to take account of the wife’s fears, elevated her fears to an extent which transcended the consideration of the best interests of the children.
Importantly, the Full Court in Marra held that not only is it necessary for the court to determine whether a parent has a genuine concern about the welfare of the child in the care of the other parent but it is also necessary to determine whether the concerned parent’s parenting capacity will be “discernibly impaired”. ‘Discernibly’, or similar expressions that have been used in the relevant authorities to which we have referred, means no more than being an evident or detectable impairment in parenting capacity such that there is an unacceptable risk that the child’s welfare will be adversely impacted.
We respectfully agree with senior counsel for the father that the Full Court in Blinko did not intend to modify the principles adumbrated in the relevant authorities that have considered whether, on the facts of each particular case, the primary judge did or did not err in finding that a primary carer’s parenting capacity had been adversely impacted by the emotional and/or psychological consequences of orders being made for a child or children to spend time with the non-resident parent. What the Full Court did in Blinko was draw upon the line of authority commencing with Russell v Close and, at [83], usefully summarised the relevant principles adumbrated in those authorities as follows:
[83]It may be taken as well established by a line of authorities generally acknowledged to commence with Russell & Close (Unreported Full Court, 25 June 1993) that the following are correct statements of principle:
•If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child;
•If the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent’s belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt. However where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent’s capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the parent;
•Further, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent’s capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child: see Sedgley & Sedgley (1995) FLC 92-623.
Also of assistance is the decision of the Full Court in Helbig & Rowe [2016] FamCAFC 117 which explained, at [214], the correct approach in considering what the mother, in this case, has described as “the Re Andrew Principle”, as adumbrated in A v A (1998) FLC 92-800 where the Full Court said at 84,996, [3.29]:
The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party’s capacity as the resident parent and so impinge on the best interests of the children. The Court then needs to take steps proportionate to that circumstance.
(Emphasis added)
In undertaking the task of considering what steps are “proportionate to the degree of risk”, the decision of Blinko makes it clear that the mere finding that a child may be at an unacceptable risk as a result of spending time in the care of another parent does not conclude the task before the primary judge. A necessary consequence of that finding, having regard to the totality of matters that the court is required to consider pursuant to s 60CC of the Act, is for the court to contemplate whether steps can be taken to ameliorate or mitigate against that risk such that the child can maintain a meaningful relationship with the other parent.
The primary judge made it clear that he accepted “that the mother is genuinely very distressed of the prospect of the child having time with the father and being exposed to the wider parental family” (at [360]). However, for reasons which we have explained, we are satisfied that his Honour correctly applied relevant authorities and, in the absence of adequate evidence to the contrary, it was reasonably open to his Honour to conclude that the mother’s parenting capacity would not be discernibly impaired by orders providing for the child to spend time, including unsupervised time, with the father. This was particularly so in circumstances where the mother indicated that she was prepared to obtain therapy to assist her to cope with that situation if that became necessary.
There is, therefore, no merit in Ground 1.
Ground 2
The mother’s submissions in respect to this ground, omitting references and citations, was set out in her Amended Summary of Argument filed 13 November 2020 at paragraphs 35– 45, as follows:
Particulars A and B
35. The [mother] repeats the matters raised in paragraphs 19 to 34 herein.
Particular C and D- Failing to consider import of Family Violence.
36. Having found the [father] had perpetrated Family Violence the effect of that Family Violence and import on the prospective orders to be made needed to be critically considered. His Honour failed to do so.
37. A fair reading of the evidence provides ample insight into the impact of the Family Violence on the [mother’s] emotional disposition and how it informed the [mother’s] belief the [father] presented a general risk to the child.
38. The opinion of the Family Reporter was the [mother] was a vulnerable person. This was not challenged and clearly supported by the found family violence the [mother] had been subject to physical assaults, intimidating messages, stalking and surveillance; and coercive and controlling behaviour some occurring post separation
39. Though His Honour finds “”it is difficult to avoid the conclusion that the parties' relationship has been characterised by a significant level of family violence perpetrated upon the [mother] by the [father](Authors emphasis) His Honour fails to critically consider the impact, both situationally and cumulatively, the family violence had on the [mother’s] emotional disposition and her perception the [father] posed a general risk of harm.
40. The behaviour including the trenchant denials rationally exacerbated the [mother’s] sense of isolation, disempowerment and anxiety.
Particular E- Not relied upon
Particular F- Failing to give weight to the Appellant's genuine belief
41. Though His Honour was cautious in accepting the [mother] with regard to a number of the allegations at no point does he doubt the [mother’s] fear is genuine. Further he makes no finding (express or implied) that the [mother’s] belief system is “irrational or baseless”.
42. Other than two incidents His Honour was careful to limit his finding to simply the evidential failure to discharge the burden of proof.
43. It follows His Honour -despite not making a positive finding- was required to give weight to the genuine belief of the [mother] both the purpose of her fear of the [father] posed a risk but also such belief impacted on her anxiety.
Particular G- Placing too much weight on section 60CC (3) (1)
Particular H-Failing to consider the transition to unsupervised time
44. The construct in which the Court was considering the matter was ostensibly “supervised time”. This is readily apparent from the transcript with the focus of the cross examination being on the [mother’s] capacity to cope with supervised time. Little if any cross-examination or questions from the Court related to the component of unsupervised time
45. Though there was cross-examination exploring moving to unsupervised time it was in the context of the safety to the child not the impact on the [mother]. This is despite there being cross-examination of the experts as discreet risk issues
As previously noted, the primary judge found that the mother had, during the course of the parties’ relationship, been the subject of family violence and, regrettably, that conduct continued after the cessation of the parties’ relationship particularly by way of stalking and intimidating behaviour on the part of the father. His Honour also found that the mother would be distressed by the prospect of the child spending time with the father. His Honour held, however, that those findings did not, on the facts presented to him, justify him concluding that the parenting capacity of the mother would be adversely impacted by orders providing for the child to spend time, in the future, with the father such that it could not be addressed by her obtaining appropriate therapy.
The role of an appellate court in reviewing a primary judge’s factual findings is constrained by the following principles:
(a)The onus is held by the appellant to show that there is some error in the decision under appeal: see Allesch v Maunz (2000) 203 CLR 172 at 180, [23]; McDonald v Queensland Police Service (2017) 269 A Crim R 585 at [47];
(b)Appeal courts do not lightly interfere with the findings of fact made by a primary judge, “unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences”: see Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43];
(c)There are particular challenges for an appellant in appeals relating to a primary judge’s findings of fact where those findings “are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence”: see Lee v Lee (2019) 266 CLR 129 at [55] (“Lee”); and
(d)Authorities also recognise that the advantage enjoyed by a primary judge extends to “inferences drawn by a trial judge from findings of fact, as distinct from findings of fact”. That advantage by a primary judge “includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts”: see FJ & PN Curran Pty Ltd v Almond Investors Land Pty Ltd [2019] VSCA 236 at [203] referring to Lee at [55].
By way of reasoning by analogy to potentially comparable cases, the primary judge referred to the decisions of Tree J in Gallagher & Gomez [2017] FamCA 944 at [142]-[157], in Hollister & Gosselin [2016] FamCA 759 at [193] and in Smithson & Lorenzo [2018] FamCA 578 at [153]. His Honour’s discussion of those cases is set out as follows:
[91]Gallagher & Gomez [2017] FamCA 944, [142]-[157] (Tree J) provides a more recent illustration of circumstances where the substantial evidence of the impact that allowing the children supervised time with the father would have upon the caregiving capacity of the mother was such that her ability to care for the children would be severely impacted and orders that the children spend no time with the father were made. In Gallagher & Gomez the evidence disclosed that the father had been jailed for attempted arson of the mother’s brother’s car, and given a suspended sentence for repeated acts of unlawful stalking of the mother. The mother’s treating psychologist gave evidence in terms that were the father to spend time with the children or be in communication with them, the mother’s poor mental health would deteriorate further, and this would negatively affect her parenting capacity. The mother’s psychologist considered that it was likely that the mother’s fear of the father could not be reduced by treatment. Evidence to like effect was given by the mother’s treating medical practitioner. On the basis of this evidence Tree J considered that the mother’s fears of the father would likely lead to her reduced emotional availability to the children, which would reduce her capacity properly to care for them, and that even if the mother engaged with appropriate supports and therapies he had no confidence that they would affect any real benefit to her.
[92]By contrast, in Hollister & Gosselin [2016] FamCA 759, [193] (Tree J) there was little evidence, “beyond the mother’s inevitable devastation and horror, to suggest that she could not continue to successfully parent the children”. Notably there “was no evidence from her psychologist or counsellor, much less a psychiatrist, as to her likely being unable to continue to function effectively so as to adequately care for the children”. Similarly, in Smithson & Lorenzo [2018] FamCA 578, [153] (Tree J), although the mother had “some rational basis” for some fear of the child spending unsupervised time with the father, the evidence was not such as to enable the Court to conclude that there would be any unmanageable impact on the mother’s parenting capacity.
Clearly, the existence of evidence from a treating psychologist or psychiatrist may be of assistance to a primary judge in determining the extent to which a party’s emotional or psychological wellbeing would be so affected by orders providing for their child to spend time with the other parent such that it would adversely impact upon the concerned parent’s parenting capacity. That is not to say that such evidence is necessarily essential in every case. Each case must be decided on its own facts and, as noted by the primary judge, despite the absence of such evidence in the present case, his Honour’s task was nonetheless to “analyse carefully the evidence led on behalf of the mother in relation to the impact that allowing the child supervised time with the father would have on her caregiving capacity” (at [93]). We are satisfied that the primary judge did just that.
To provide the opportunity for the mother to expand upon Ground 2, counsel for the mother was asked, during the course of the appeal, to identify the evidence that the mother relied upon at the hearing to establish that:
a) the mother’s parenting capacity would have been affected or discernibly impacted by orders for the father to spend time with the child;
b) the extent to which the mother’s parenting capacity would have been affected or discernibly impacted; and
c) to what extent appropriate treatment would have rectified or mitigated such effect.
Counsel for the mother contended that the primary judge, having regard to the totality of evidence, should have inferred that the mother’s parenting capacity would have been adversely affected by the child spending time with the father. When pressed to identify the relevant evidence from which the primary judge should have drawn such an inference, reference was made to page 33 of the report of Dr E dated 15 July 2019, where the report writer opined:
Additional Terms of Reference
(a) If it is determined there is no unacceptable risk or the level of risk can be mitigated, and it is appropriate that the child have time with the father, what treatment, if any, the expert recommend the mother undertake to ensure that she has the capacity to safely and adequately care for the child, both emotionally and physically, including to support and facilitate the relationship between the child and the father and develop any capacity to co-parent with the father
…
In the present circumstances the only contact with the Father that can safely be recommended is supervised visits at the Contact Centre. Supervision by members of the Father’s family of origin would not be acceptable to the Mother and possibly not inherently safe, and supervision by other Church members may create conflict of interest and be unduly subject to influence in support of either parent. Some assessments appear to suggest that the paternal grandmother may have been at times the driving force behind the Father’s pursuit of contact or care of the child. If so it may be that an application for grandparent parental contact might be made. The Mother will require counselling on the need for contact with the Father no matter how limited and as to what can be explained to the child in the future.
That paragraph, however, must, with respect, be read in the context where, at the time of writing his report, Dr E expressed the view, in the immediately preceding paragraph, that, “it cannot be determined that there is no unacceptable risk [to the child]” in spending time with the father.
The primary judge dealt with the significance of that statement (at [385]–[393]) and noted that, during cross examination, Dr E clarified that sentence by stating that it should be construed “as meaning that he cannot determine whether there is an unacceptable risk” (at [393]). The primary judge clearly explained his reasoning, (at [394]–[397]), in concluding that:
[397]Dr E’s evidence is of assistance, particularly insofar as the following opinions are concerned:
•neither of the parties is psychologically disturbed to an extent that would affect their reliability in relation to the key matters in dispute;
•the mother does not show signs of any psychiatric disorder;
•the child ought to have time with the father if the Court determines that the risk of doing so is not unacceptable;
•if the Court orders that the child have time with the father the mother will need therapeutic assistance to manage her anxieties, but ultimately she will be able to cope.
As previously noted, the primary judge determined that the child was not at an unacceptable risk of harm in the event of orders being made for the child to spend time with his father. On the evidence presented to him in the trial, it was reasonably open to his Honour to find that the premise upon which Dr E responded to the relevant term of reference had not been established.
Counsel for the mother also made reference to the cross examination of Dr E by senior counsel for the father, where Dr E responded to a question as to whether, if there is concern that the mother had fabricated the sexual abuse allegations and that she is unable to promote a relationship between the child and the father, the mother would require some sort of therapeutic assistance. Dr E agreed with the proposition put to him that the mother would, even in those circumstances, require “some sort of therapeutic assistance to help her adopt a different path” (Transcript 14 August 2019, p.663 lines 5–16).
Dr E agreed that, in those circumstances, the mother would benefit from attending a parenting course which involved interaction with other parents undergoing a similar situation and to better understand “the impacts on the child and so on” (Transcript 14 August 2019, p.663 line 36).
We respectfully agree with the submission of senior counsel for the father that the exchange, as referred to directly above, in respect to the mother engaging in appropriate therapeutic assistance, related to therapy serving an educative function to assist the mother to promote the child’s relationship with the father rather than to address the mental or emotional state of the mother. It does not support the contention that the evidence should have resulted in the primary judge inferring that the mother’s parenting capacity would be adversely impacted by orders for the child to spend time, including unsupervised time, with the father.
Counsel for the mother also made reference to cross examination by senior counsel for the father of Dr E concerning “a scenario where supervised contact is ordered” but with that time moving to unsupervised time as proposed by the father (Transcript 14 August 2019, p.663 lines 45–46). Dr E stated in response to a series of questions that, “if the mother had a continuing belief that abuse was likely to occur in contact with the father then she would need very considerable assistance and reassurance” (Transcript 14 August 2019, p.664 lines 22–23). Dr E elaborated that the mother “would need good psychological help” if she maintained the belief that the father had abused the child (Transcript 14 August 2019, p.664 lines 31–32). Dr E further elaborated that it would be desirable if the psychologist had “some experience with family law disputes” and was provided with a copy of the judgment and, “if necessary, the parties’ materials filed” in the proceedings together with the report of Dr E (Transcript 14 August 2019, p.664 lines 36–43).
Counsel for the mother stated in respect to the mother’s appeal that “the nub of our submission is Dr E was giving that opinion in the construct of supervised time only” (Transcript 30 November 2020, p.11 line 46). With the greatest respect, that submission is not open to the mother. The questioning by senior counsel for the father of Dr E, referred to above, makes it clear that the scenario that was the subject of that particular line of questioning was one whereby the child’s time with the father commenced as supervised but “building as the father proposes” (Transcript 14 August 2019, p.664 line 2). A reading of the transcript prior to this exchange makes it clear that senior counsel for the father questioned Dr E about potential risk in the context of several possible findings that may be made as a result of the evidence in the trial. One of those possibilities was a finding that the father had engaged in acts of physical violence towards the mother. Dr E expressed the view that provided the exchange of the child between the parents could be managed such that the changeover was supervised, which was referred to as “bookend” supervision, Dr E could foresee that the child’s time could move to unsupervised time away from the professional contact centre in circumstances where the primary judge may find that the nature of family violence perpetrated by the father against the mother was “at the lower level”.
In that respect, senior counsel for the father appropriately acknowledged that all family violence was a “scourge” and clarified that he intended to differentiate between conduct that was in the nature of pushing as opposed to anal rape which had been alleged by the mother (Transcript 14 August 2019, p.655–656 lines 45–8). In that context, that is, in responding to questions regarding a finding of family violence at the lower level, the following exchange occurred:
[SENIOR COUNSEL FOR THE FATHER]: Right. And – but you’re saying that, really, as long as the changeovers, even with a positive finding – as long as changeovers can be managed properly … are you saying that, again, with properly managed process that supervised contact can occur at the centre: should occur at the centre?
[DR E]: Yes.
[SENIOR COUNSEL FOR THE FATHER]: Yes. And do you also foresee that it could move to unsupervised booking contact that has been - - -? --- It could move to that.
[DR E]: Yes.
[SENIOR COUNSEL FOR THE FATHER]: It could move to that?
[DR E]: Yes.
(Transcript 14 August 2019, p.656 lines 13–23)
Subsequent questioning of Dr E confirms that point of distinction — that is, the distinction between the child spending unsupervised as opposed to supervised time with the father. In that respect, senior counsel for the father moved into questioning Dr E about potential repercussions if the primary judge were to find that the mother’s allegations that the child had been abused by the father, in whole or in part, had occurred. Dr E agreed that, even in those circumstances — that is, a finding of sexual abuse of the child by the father — the unacceptable risk of further abuse to the child could be “mitigated” by “long-term supervised contact at a contact centre” (Transcript 14 August 2019, p.666 lines 5–6). As noted, no such finding of sexual abuse was made by the primary judge.
In further support of his contention that the questioning of Dr E focused on the prospect of supervised rather than unsupervised time, counsel for the mother referred to what he contended was a summary of the totality of cross examination of Dr E in a question asked of Dr E by counsel for the Independent Children’s Lawyer. This is in circumstances where we note that cross examination of Dr E by all three counsel, who appeared in the proceedings, filled 52 pages of transcript. The question and response referred to by counsel for the mother was as follows:
[COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER]: - - - taking into account your understanding of the mother, and following from the questions my learned friend was asking about how the mother would cope with her being required to provide the child to the father, your view, as I understand it, is that, well, maybe the mother would have to cope because, on balance overall, limited supervised time may, on the seesaw, tipped towards that. Have I understood what you’ve said correctly, or have I got that wrong?
[DR E]: ---- No. That’s about – about it. Yes.
(Transcript 14 August 2019, p.698 lines 29–33)
The reference to that question by counsel for the mother should have, with respect, included a reference to the question immediately preceding that question which made it clear that the question was being asked in the context of the primary judge finding that there “had been a significant number of incidents of family violence by the father to the mother of a serious nature”.
As we have set out, the primary judge did not accept the mother’s contentions in respect to a number of allegations of family violence. Section 4AB of the Act does not categorise acts of family violence into those which are serious and less serious and his Honour, appropriately, in our view, did not purport to make findings in terms of any such categories. It was nonetheless reasonably open to the primary judge to conclude that the number of incidents of family violence which his Honour found the father to have perpetrated against the mother and the nature of those incidents was not such that it justified orders for the father to have limited supervised time with the child.
Having regard to the totality of Dr E’s evidence, we are not satisfied that the primary judge erred in failing to infer that Dr E was of the opinion that the risks to the child in spending time with the father could only be mitigated if that time was supervised. Dr E was clearly of the view that, in the absence of a finding that the child had been abused by his father or that the father had engaged in “a significant number of incidents of family violence by the father to the mother of a serious nature”, the distress on the part of the mother could be mitigated by appropriate therapy from the psychologist (Transcript 14 August 2019, p.698 lines 25–34).
This was in fact made clear by Dr E to a question by counsel for the mother where counsel for the mother questioned Dr E as to the potential reaction to the child spending time with the father in circumstances where she believed she had seen the father sexually abuse the child even in circumstances where there was no finding to that effect. The relevant exchange occurred as follows:
[COUNSEL FOR THE MOTHER]: Would – is it fair to suggest that when you say there would need to be significant – correct me if I’m wrong, but fairly concentrated therapy given to the mother up to the point of the first contact - - -?
[DR E]: Yes.
[COUNSEL FOR THE MOTHER]: - - - even then, in circumstances where she believes what she saw with her own eyes, as she says - - -?
[DR E]: Yes.
[COUNSEL FOR THE MOTHER]: - - - that might not – even that might not be sufficient; would that be fair to say?--- It - -Well, I’m really asking - - -?
[DR E]: Yes, it would
[COUNSEL FOR THE MOTHER]: - - - is it possible to overcome that - - -?
[DR E]: It is
[COUNSEL FOR THE MOTHER]: - - - to the stage where it’s not going to impact upon the child?
[DR E]: I think it could be overcome to a substantial degree, yes.
(Transcript 14 August 2019, p.681–682 lines 38–6)
Ground 2 of the appeal contends that the primary judge should have found, by way of inference, that the mother’s parenting capacity would have been adversely impacted by the orders his Honour made for the child to spend unsupervised time with the father. The simple reality is that the mother, through her legal advisers, failed to adduce sufficient evidence to establish that fact. It is trite to say that, in order to make a positive finding of fact, the Court needs to be satisfied on the balance of probabilities as to the existence of those facts. The “degree of satisfaction required cannot be based on inexact proofs, indirect testimony and indirect inferences”: see Murphy & Murphy [2007] FamCA 795 at [480]. For such an inference to be drawn, from either direct evidence or from circumstances appearing in evidence, that evidence “must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture”: see Luxton v Vines (1952) 85 CLR 352 at 358.
In applying those principles in the context of Ground 2, we note that it was accepted by the primary judge that the mother had been the subject of the incidents of family violence to which we have referred. His Honour also accepted that the mother was in a position of some vulnerability as a result of living in Australia, away from her country of birth and away from her family. As noted, his Honour specifically found that the mother would be distressed by orders that the child spend time with the father.
However, the evidence presented by the mother rose no higher than establishing a speculative possibility that her parenting capacity may have been adversely affected by orders providing for the child to spend unsupervised time with the father. In that respect, the mother specifically denied that she suffered from poor mental health and the single expert opined that the mother did not suffer from poor mental health. The mother failed to call evidence from a treating psychologist, psychiatrist or treating therapist attesting to the impact upon her of orders providing for the child to spend unsupervised time with the father. Aside from stating that she would be very distressed by such orders, no evidence was placed before the primary judge to assist his Honour in making an assessment of the level of that distress. Finally, insofar as the primary judge found that the mother would be distressed by such orders, his Honour found that the mother would seek appropriate therapy if necessary. All of those findings were reasonably open to the primary judge on the basis of evidence presented to him.
We respectfully agree with the summary of the substance of the evidence in this case by the Independent Children’s Lawyer in the following terms:
…we had a trial that went for some 13 days. The only expert evidence was actually adduced through the single expert report and the family consultant. It was, as my learned friend [senior counsel for the father] has indicated, always part of the father’s case that he was seeking unsupervised time. There is no doubt the mother was distressed and that if orders were made for time, whether supervised or unsupervised, she would be distressed.
But the point that your Honour has made, particularly to my learned friend, [counsel for the mother], throughout this morning, is that it has to go from distress to how it affects her capacity to cope. In my submission there isn’t the evidence for that link, and in my submission on appeal it is very difficult to draw that inference.
(Transcript 30 November 2020, p.54 lines 21–32)
Further, while it is not necessary for a primary judge to refer to each and every item of evidence that they have taken into consideration in reaching their decision, the totality of evidence presented in a case is relevant to the consideration of whether the findings made by a primary judge were reasonably open. That relevant finding in the primary judge’s reasons is as follows:
[430] Having regard to the fact that Dr E has not been able to identify, in the particular circumstances of this case, a reaction on the part of the mother to an order that the child have time with the father that would be so extreme and so unmanageable that it would discernibly impair the mother’s care giving capacity, I am unable to accept that, notwithstanding the mother’s genuine concerns about the father, it is in the best interests of the child that she have no time with the father. To use the words of Tree J in Hollister & Gosselin, at [193], there is, in this case, little evidence “beyond the mother’s inevitable devastation and horror, to suggest that she could not continue to successfully parent the [child]”. The state of the evidence is insufficient for the mother’s submission to succeed.
Dr E opined that, at the age of approximately four (4) years, the child would have more sophisticated communication skills such that she would be able to vocalise concerns about the manner in which they have been treated by an adult (Transcript 14 August 2019, p.656–657). In that respect, Dr E agreed that the child’s ability to vocally communicate as she gets older after the age of four (4) years, “adds in another layer of protection” from being the subject of abuse.
The primary judge asked Dr E to provide his opinion as to whether, in the absence of the primary judge finding that the child would be at an unacceptable risk of physical harm in the father’s care, the child’s time could transition from supervised time to a more “normalised” arrangement of the child spending unsupervised overnight time with the father. Dr E responded to the primary judge’s questions that such a transition would be possible (Transcript 14 August 2019, p.657 lines 18–32).
As earlier noted, in subsequent questioning of Dr E by senior counsel for the father, Dr E clarified that, in the event of the child’s time with the father transitioning to unsupervised time, even in circumstances where the mother had a “continuing belief that abuse was likely to occur” such a transition was possible however, the mother would require, in those circumstances, “very considerable assistance and reassurance” including psychological therapy (Transcript 14 August 2019, p.664 lines 22–24).
In further clarifying his opinion, in response to questions from counsel for the mother, Dr E agreed with counsel for the mother that “whatever scenario” the primary judge decided in respect to parenting arrangements for the child, the mother’s reaction “needs to be monitored or perhaps further assessed” (Transcript 14 August 2019, p.682 lines 13–14). His Honour asked Dr E whether, even accepting that the mother would require therapeutic support, in the absence of a finding of the child being at an unacceptable risk of harm in the father’s care, it justified orders depriving the child of the opportunity of spending time with his father. That exchange was as follows:
HIS HONOUR: …But there’s a further question, isn’t there, which is of real potential use to me, which is, in effect, Dr E, should these matters be of such concern to me that they should cause me to approach the question of unacceptable risk in such a way as to effectively deny time that the father might have with the child, by reason of the difficulties that [counsel for the Respondent] has taken you to that the mother might encounter, then what do you – what’s your attitude to that?---Well, if the – presumably if there is a contact arrangement made, or an order made, that would mean that there’s a level of acceptability of the risk.
[DR E:] Yes.
[HIS HONOUR:] And am I take to take it from that that it would be your position that the difficulties that the mother might encounter, and that whatever consequential problems that might have for her relationship with the child, and for the child more generally, are matters which in the end would have to give way to the facilitation of the development of a relationship between the child and the father?---
[DR E:] Yes.
(Transcript 14 August 2019, p. 682 lines 16–30)
Additional to that evidence from Dr E, his Honour received evidence from the mother as to how she was likely to cope with orders providing for the child to spend unsupervised time with the father. Senior counsel for the father cross examined the mother in respect to the impact such orders would have upon her. Specifically, the mother was asked to respond to a statement at paragraph 386 in the report of Dr E where he said:
If the court should decide the child could spend time in the care of the father, the mother would require substantial assistance in accepting the decision and in managing her anxieties concerning the child.
In responding to questions from senior counsel for the father and also from the primary judge, the mother confirmed that, as at the date of the hearing, she was not seeing a psychologist.
The primary judge asked the mother whether, if he made orders that the child to spend time with the father, “would you be prepared to have some counselling assistance with a psychologist to assist you in coping with that” (Transcript 14 August 2019, p.705 lines 14–15). The mother initially responded through her interpreter saying “I don’t have mental issue, so why should I see a psychiatrist” (Transcript 14 August 2019, p.705 line 26).
Appropriately, in the context of that response on the part of the mother, through her interpreter, suggesting some lack of understanding of the question asked by the primary judge, his Honour took time to further enquire of the mother as to whether she would be prepared to seek therapy in the event of him making orders for the child to spend time with the father. That exchange was as follows:
HIS HONOUR: …If I find that – particularly in relation to the sexually inappropriate behaviour that you have alleged, if I were to find that that had not occurred, what Dr E is saying is that you would require a high level of support, and he means from a counsellor or a psychologist, to assist you – to help you – cope emotionally with any orders that the court might make for arrangements which would enable [the child] to spend time or communicate with her father. In other words, he’s saying that if there were to be orders made that [the child] have some interaction with [the father], that would be something that it would be difficult for you to cope with, and that you would need some support in order to cope with that. And it’s in that context that [senior counsel for the father] is asking you whether you would be prepared to see a psychologist if that were all to eventuate. Does that – do you understand what I’m saying?
[THE MOTHER]: Probably because – I mean, sorry. The emotional support – like, any support, not the psychologic. Psychologic is just for the mental issues. So I’m not mental. I just – I may need a support for that, but not the psychologic because I’m not mental.
HIS HONOUR: No. You would need some support.
[THE MOTHER]: Yes.
HIS HONOUR: And I think his question really is whether you would be prepared to have some support. So are you saying you would be prepared to have some support?
[THE MOTHER]: Yes, sir.
(Transcript 14 August 2019, p.705–706 lines 45–23)
Further, in terms of considering the nature of the therapy that the mother would require, the primary judge was entitled to have regard to the mother’s evidence as to the nature of her concerns. In that respect, in response to a question from counsel for the Independent Children’s Lawyer as to the nature of the mother’s concern about the child spending time with the father and specifically whether she would ensure that such contact occurred, the mother expressed concern about “[the child] going to see the father who is abusive of her” (Transcript 15 August 2019, p.850 lines 4–5)
When asked to clarify that statement, counsel for the Independent Children’s Lawyer asked the mother, “Is it how you feel about [the child] that upsets you, or is it how [the child] [feels about him?]”. The mother responded that “this is concerning about [the child], not for me” (Transcript 15 August 2019, p.850 lines 6–13).
In his reasons for judgment, the primary judge noted that there was possibly some cultural issues at play in terms of the mother being unwilling to acknowledge the possibility that she suffered any mental health challenges. Nonetheless, his Honour noted the absence of evidence that the mother’s parenting capacity would be discernibly affected as a result of her distress at the prospect of the child spending time with the father.
In summary, we are not satisfied that, on the basis of evidence presented to the Court, the primary judge erred in failing to draw the inference, as contended by the mother, that the mother’s parenting capacity would be adversely impacted by such orders even in circumstances where his Honour accepted that the mother would be distressed by the making of such orders. This was in circumstances where his Honour found that the mother would likely obtain therapy to assist her if she found that to be necessary. That finding was, as we have stated, reasonably open to his Honour.
Accordingly we are not satisfied that Ground 2 establishes the existence of an appealable error by the primary judge.
Ground 3
This ground of appeal substantially overlaps with Ground 2.
Throughout his decision, the primary judge notes his acceptance of the fact that the mother would suffer real distress as a result of orders being made for the child to spend time with the father. For reasons which we have set out, however, his Honour was entitled to find that, on the basis of evidence presented to him, that finding of fact did not, in itself, justify a conclusion that the mother’s parenting capacity would be adversely impacted such that it was necessary for him to make an order for the child’s time with the father to be supervised in order to ameliorate the extent of the mother’s distress. This was particularly so in circumstances where it was reasonably open to his Honour to find that the extent of the mother’s distress could be ameliorated by appropriate therapy which she agreed she would obtain if necessary.
The evidence of the single expert, to which we have referred, formed an adequate basis for the primary judge to conclude that, to the extent to which the mother would be distressed by orders providing for the child to spend unsupervised time with the father, that distress could be ameliorated by such appropriate therapy. This was made clear by his Honour where he explained why, on the basis of the mother’s evidence to which he referred, “the mother would comply with any order that the child have time with the father, and that she would be prepared to undergo some program of psychological assistance if she felt this was necessary” (at [361]).
Accordingly, no error has been demonstrated and Ground 3 is also without merit.
CONCLUSION
The role of this intermediate appellate Court is not to provide another stage in the hearing process — it is to determine if appealable error has been made in the preceding first instance hearing. It is for the appellant to demonstrate and argue appealable error, it is not for this Court to embark on some inquisitorial process to find alternate outcomes.
The relevant factual determinations underpinning the primary judge’s exercise of discretion and the manner in which he exercised that discretion is absent error of the kind identified in House v The King being established, and is not susceptible to appellate interference. The mother has not established such any error and the appeal must therefore be dismissed.
COSTS
In the event that the appeal was dismissed, no party sought any order as to costs.
I certify that the preceding one hundred and thirty-three (133) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Alstergren, Deputy Chief Justice McClelland, and Justice Benjamin. Associate:
Dated: 18 January 2021
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