KIPLING and SAMUELS
[2016] FCWA 72
•19 AUGUST 2016
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: KIPLING and SAMUELS [2016] FCWA 72
CORAM: THACKRAY CJ
HEARD: 22 JUNE 2016
DELIVERED : 19 AUGUST 2016
FILE NO/S: PTW 1409 of 2012
BETWEEN: MS KIPLING
Applicant
AND
MR SAMUELS
Respondent
Catchwords:
APPEAL - CHILDREN - With whom a child lives - Appeal against an order for the child to live with the father who had been largely absent from the life of the child for some years - The Magistrate did not err by treating the importance of establishing a meaningful relationship with the father as a determinative factor, but his Honour did err by failing to consider other important factors and failing to provide adequate reasons - The Magistrate failed to evaluate the qualifications of the single expert - The Magistrate failed to consider the impact of the delay in delivery of judgment - Appeal allowed - Matter remitted for rehearing.
APPEAL - COSTS - No order as to costs - Discussion of the unavailability of costs certificates in appeals from proceedings under the Family Court Act 1997 (WA).
Legislation:
Family Court Act 1997 (WA), s 66C
Federal Proceedings (Costs) Act 1981 (Cth)
Category: Reportable
Representation:
Counsel:
Applicant: Ms Farmer
Respondent: Mr Jones
Solicitors:
Applicant: Lavan Legal
Respondent: Klimek & Co
Case(s) referred to in judgment(s):
CDJ v VAJ (1998) 197 CLR 172
CDW v LVE (2015) FLC 93-683
Champness & Hanson (2009) FLC 93-407
House v The King (1936) 55 CLR 499
Jurchenko & Foster (2014) FLC 93-598
McCall & Clark (2009) FLC 93-405
Rollings & Rollings (2009) 230 FLR 396
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1On 8 June 2015, Magistrate Kaeser made an order for an 8-year-old girl to move from the care of her mother to live with her father. The child had only spent short periods of supervised time with the father following her parents’ separation in January 2012, and even those visits had effectively come to an end three years prior to the making of the order.
2The mother appealed and his Honour granted a stay of his order before the child moved to live with the father. By the time the appeal came on for hearing before me, another year had elapsed. In that time, there had been no contact or communication between the girl and her father, save for one brief meeting in March 2016.
3If the mother’s appeal succeeds, she proposes that the matter be remitted for hearing before another magistrate. The father opposes the appeal, but his submissions allow for the possibility that I might leave the primary order intact, while making further orders to ensure an easier transition of the child into his care. Alternatively, the father invites me to remit the matter to Magistrate Kaeser for orders to be made facilitating that transition.
4For the reasons that follow, the mother’s appeal should be allowed and the entire matter should be remitted for rehearing before another judicial officer.
Jurisdiction and appellate principles
5The mother and father never married and the proceedings were therefore dealt with under the Family Court Act 1997 (WA). It was originally anticipated that the mother’s complaint would be heard by the Western Australian Court of Appeal; however, as a result of the decision in CDW v LVE (2015) FLC 93-683, it transpires that her appeal must be heard by a single judge of the Family Court of Western Australia. The appeal proceeds by way of rehearing and the principles relating to appellate intervention laid down in House v The King (1936) 55 CLR 499 apply.
The essential facts
6There was one child of the parties’ relationship, [S],1 who was born in March 2007. S was therefore 7 years old at the time of the trial.
7The relationship between S’s parents came to an abrupt end on 23 January 2012. Up until then, the mother, the father and S had been living together with the mother’s four children from an earlier marriage. The father of those children died in 2003, when the youngest was just six weeks old.
8On 23 January 2012, the father awoke and “in a half-asleep state” reached out to touch the person next to him in the bed. He said that he believed that person was the mother, who had been next to him when he went to sleep. During the night, however, the mother had moved to the bed of one of her other children, and her place had been taken by the youngest daughter from her previous marriage. In any event, the father caressed the girl over her underclothing before realising who he was touching. The child had no recollection of what had occurred.
9The father said he was horrified when he realised what he had done, and it was common ground that he immediately went to the mother to explain what had transpired. The Magistrate accepted that the father’s behaviour was entirely innocent, although the mother interpreted it as sexual abuse. The mother thereafter was not only fearful that the father might sexually abuse S, but also came to believe he had done so during the relationship.
10The father commenced proceedings in March 2012, seeking regular time with S however, in March 2014, he sought that S live with him and that he have sole parental responsibility. The mother sought that S remain with her and originally proposed that she have sole parental responsibility, but in May 2014, she proposed that parental responsibility be shared equally. At trial, the father’s proposal was for the mother to have time with S on alternate weekends for a period of six months, and thereafter for the time to increase until the mother was having her for six nights each fortnight.
11His Honour’s reasons contain no details of the amount of time S spent with the father following the separation in January 2012, other than to observe at [98] that the “time that has been attempted between the father and [S] has simply not worked”; at [101] that “[S] has made a conscious decision to stop seeing the father”; at [147] that “the father has no significant relationship with [S] at the moment”; and at [178] that “different supervisors have sought to assist [S] in spending time with the father since early-2012”.
12Examination of the father’s evidence reveals the following important matters about the time he had spent with S in the years leading up to the trial:
•the father did not spend time with S following the separation until April 2012;
•on 16 April 2012, an order was made by consent for the father to spend two hours of supervised time with S on three nominated Saturdays;
•on 7 June 2012, orders were made by consent for the father to spend three hours of supervised time with S each alternate week;
•the father had no contact with S for six months prior to two short, problematic visits in late January 2013, pursuant to an order made on 22 January 2013;
•the father last saw S on 24 February 2013 and last spoke to her by telephone on 28 March 2014 (although see transcript, 10 November 2014, p 89, where it was suggested the last call was on 5 April 2014).
13In other words, the father’s visits with S ended in the middle of 2012, save for a few unsatisfactory visits in early 2013. His Honour correctly, albeit somewhat vaguely, found that the father “has spent very little time with [S] over the past few years”. His Honour made no findings about the frequency of telephone contact or other forms of communication.
The trial and the orders made
14The trial commenced in August 2014, but was adjourned, and did not conclude until 11 November 2014. When the trial finished, his Honour said he would deliver judgment on 28 November 2014. At the time, there was an order in place for telephone contact with S, but his Honour invited the father to consent to the order being suspended for the short time that was expected to elapse before judgment was to be delivered. That consent was forthcoming and an order made accordingly.
15As it turned out, the judgment was not delivered until 8 June 2015. In the opening paragraph of his reasons, his Honour said:
This decision has been outstanding for longer than is normal. Part of the delay is due to workload issues, but part is also due to the need to very carefully consider the detailed evidence in what has been an extremely difficult decision.
16His Honour gave lengthy reasons explaining why he intended to order that S live with the father from the last day of the second school term in 2015. The orders provided that the mother would not spend any time with S for three weeks. Thereafter, for a period of six months, the mother was to spend time with S each alternate week from after school on Friday to before school on Tuesday. Then, for a “minimum” of three months, the time was to be extended until before school on Wednesday. After that “minimum” period had expired, the time was to be further extended to before school on Thursday.
17An order was made requesting that a Family Consultant, who had been involved in the matter, explain the orders to S. The Magistrate also ordered that S attend counselling with a psychologist she had previously seen, at times to be determined by the psychologist. His Honour gave the parties “liberty to apply to relist in the event difficulties arise in relation to the changeover from the mother’s residence to the father’s residence”.
Further evidence on appeal
18No application was made to introduce further evidence in the appeal concerning what had transpired in the period of a year since the Magistrate made his orders. When I enquired what had been happening, I found it was common ground that there had been no contact between the father and S, save for a very short visit in March 2016. A subsequent attempt to arrange a contact visit was unsuccessful.
19I was also told that the Family Consultant had declined to explain the orders to S, as had the psychologist who was to provide counselling to S. The single expert, who had recommended that S live with her father, was prepared to explain the outcome to her, but this did not occur because the orders were stayed.
The grounds of appeal
20The mother relied on five grounds of appeal.
Ground 1 – Elevation of the importance of a “meaningful relationship”
21The first ground of appeal asserts that:
1.The Trial Magistrate erred in law in elevating the consideration of “meaningful relationship” pursuant to section 66C(2)(a) of the Family Court Act 1997 (WA) to a determinative factor without real consideration of the primary and additional factors as required, and in consequence further erred in law by failing to provide adequate reasons or consideration to support the change of residence for the child determined by him.
Particulars
a)The Trial Magistrate considered it was in the child’s best interest to have a meaningful relationship with her father and thereafter became concerned only with how that may be achieved.
b)The Trial Magistrate identified that the father’s proposals for the care of the child involved the Court taking a “large leap of faith” yet did not accurately discuss or weigh those proposals.
c)The Trial Magistrate identified the very close relationship between the child and her mother, and her four siblings, yet did not adequately consider or weigh up the effect upon the child of the orders he proposed in that context or at all and further did not provide any orders for her to spend time with her siblings on their birthdays or special occasions to them.
22This ground contains three complaints. The first is that his Honour treated as determinative one of the many factors he was obliged to take into account. The second is that his Honour failed to consider other factors adequately. Allied with these is the third complaint, namely that his Honour failed to give adequate reasons.
Treating the “meaningful relationship” factor as determinative
23The first complaint is that the Magistrate “elevat[ed] the consideration of ‘meaningful relationship’ … to a determinative factor without real consideration of the primary and additional factors as required”. It was submitted that his Honour therefore made the same error he made in Jurchenko & Foster (2014) FLC 93-598, where his decision was overturned because of his treatment of the equivalent factor in the federal legislation. In response, the father submitted that his Honour had done nothing more than apply the law as laid down in McCall & Clark (2009) FLC 93-405.
24His Honour dealt with McCall & Clark in this passage of his reasons (emphasis added):
135 It is clear that meaningful means a relationship that is important, significant and valuable to the child. The Full Court in McCall & Clark (2009) FLC 93-405 made this finding and set out what it considered to be three possible interpretations of this subsection:
(a) One interpretation is that the legislation requires a Court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
(b) a second interpretation is that the legislature intended that a Court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
(c) the third interpretation is that the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
136The Full Court concluded that the prospective approach was preferred, but depending on the circumstances of the case, the present relationship approach may also be relevant. The Court accepted that if only the present relationship approach were followed, the Court would be limited in making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of the trial. It is therefore necessary to consider the evidence before reaching a conclusion as to how orders may be framed to ensure the children have a meaningful relationship with both parents (if that is in their best interests).
25This statement of the law was expressed in identical terms to [77] and [78] of his Honour’s judgment in Jurchenko & Foster. In discussing his treatment of the law in that case, the Full Court of the Family Court of Australia said:
123. … We recognise that his Honour, at [78], spoke of framing orders for the child to have a meaningful relationship with both parents “if that is in their best interests”. However, having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
124. His Honour correctly recited the relevant provisions of the Act; accurately explained the terminology; and posed the right issue in the heading to the relevant part of the discussion (“The benefit to the child of having a meaningful relationship with both parents”). The difficulty is he did not discuss, but rather assumed, there was benefit to the child in having such a relationship, without saying why, or what weight he placed on that factor. That this is an error can be seen from the following passage from the decision of the Full Court in Champness & Hanson (2009) FLC 93-407 at [103]:
103.The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. (See Bennett J’s analysis in G & C [2006] FamCA 994.) (original emphasis)
…
126.We observe that this is the same error as was identified in Mulvaney & Lane where the Federal Magistrate boldly posed the question, “[w]hat outcome will best ensure that [the child] has a meaningful relationship with his mother?” Although the Acting Magistrate here did not pose the question so starkly, his overwhelming focus on the maintenance of a “meaningful relationship” with both parents led to failure to carry out a proper evaluation of the competing proposals.
26In my respectful opinion, his Honour’s persistence in paraphrasing McCall & Clark in the way he did at [136] has the potential to lead him into the same error that was identified in Jurchenko & Foster. The careful placement of the phrase “if it is in a child’s best interests” in subparagraph (c) in the passage from McCall & Clark provides a clear indication that a court should frame orders to ensure a child has a meaningful relationship with both parents only if such orders themselves are in the child’s best interests. On the other hand, the rearranging of the placement of the same phrase in his Honour’s reasons at [136] gives rise for concern that he again proceeded on the basis that orders had to be framed to ensure the child has a meaningful relationship with one of her parents once he was satisfied that such a relationship was in the child’s best interests. This concern is strongly reinforced by what his Honour immediately went on to say after his paraphrase of the dicta of the Full Court in McCall & Clark (emphasis added):
137.In broad terms, it is in [S’s] best interests to have a meaningful relationship with the father. In more precise terms, I am concerned as to how that might be achieved.
27This approach is reminiscent of his Honour’s approach in Jurchenko & Foster, and therefore potentially runs afoul of what the Full Court said in that case and in Champness & Hanson (2009) FLC 93-407, since the benefit to the child of having a meaningful relationship with both her parents is just one factor, albeit a very important one, that has to be weighed along with all of the other relevant factors in deciding what orders will be in the child’s best interests. It is therefore erroneous to move immediately, as it might be thought his Honour did at [137], from a finding that it is in a child’s best interests to have a meaningful relationship with both parents to a discussion of the orders needed to achieve that outcome.
28In deciding what orders are in a child’s best interests, a court will routinely need to reflect on the many interests of the child, some pointing toward one outcome as being in her best interests and others pointing to an alternative outcome. Regrettably, in many cases, it proves impossible to accommodate all of the interests of the child. The task of the judge then is to consider the benefits and detriments of each of the competing proposals, and to frame the orders which are most likely overall to promote the child’s best interests.
29In some cases, this process will lead to an outcome where a child is denied a meaningful relationship with a perfectly good parent who has much to offer the child. In other cases, the importance of establishing such a relationship is such that orders designed to bring it about will be made at the expense of an arrangement which is otherwise catering well for the needs of the child. The breadth of the discretion conferred on the judge is such that appellate intervention is unwarranted, provided it can be seen that the judge weighed the pros and cons of the competing considerations, without preconceived notions that one is more important than the legislation and case law indicates is appropriate.
30In considering whether the Magistrate erred in the present matter, it is important to bear in mind what was said in the High Court in CDJ v VAJ (1998) 197 CLR 172 at [152]:
The evidence in residency cases is often such that the same body of evidence may provide opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions. …
31The discretion, although wide, is nevertheless not without limits. If his Honour approached the matter on the basis that the need for a meaningful relationship with the child had to be determinative, then he would have been in error. However, the mother’s assertion that this was what happened here is undermined by what his Honour said in these paragraphs at the outset of his reasons:
5 The father suggests in his Papers for the Judicial Officer that:
The ultimate issue for the Court to resolve in this case revolves around the straightforward question of whether it is likely that [S] would have a future relationship with both parents if she continues to live with the respondent mother.
6 Whilst that is one of the issues for the Court to determine, I would not agree with the description of it being the “ultimate issue”. This Court must consider that factor, together with many other factors in order to determine what orders are in the best interests of [S].
32It will thus be seen that his Honour was alive to what the Full Court had said in Jurchenko & Foster and Champness & Hanson. Although I consider it unhelpful to attempt to compare in detail the way his Honour arrived at his decision in Jurchenko & Foster with the way in which he went about his task in the present matter, I am satisfied there are important differences which indicate that his Honour was also alive to the fact that it was necessary for him to find, rather than assume, that it was in the best interests of the child for her to have a meaningful relationship with her father.
33This can be seen from the following passage, where his Honour set out his conclusions. Although it is true that the Magistrate initially focuses on the importance of S having a relationship with her father, his Honour then made the findings that he was required to make that the orders proposed were in her best interests.
190Having weighed all the evidence in this matter I have formed the view that it is in [S’s] best interests to have a meaningful relationship with both of her parents. Given my findings in relation to the mother and her beliefs and her actions to date, it would be impossible for [S] to have a meaningful relationship with her father if [S] remains living with her mother. The only way to ensure that [S] has a meaningful relationship with her father is to order that she live with him…
191 The best option, in my view, is for [S] to live with the father and for the mother to support [S’s] relationship with him. In my view, the father would support [S’s] relationship with the mother and then she would have the best of both worlds. She would be able to have a loving relationship with her father, a loving relationship with her mother, and a loving relationship with all of her siblings. She would not live primarily with her mother and her siblings, but she would be able to maintain close ties with all of her important family members. At the end of the day, my role is to determine what is in [S’s] best interests. In my view, the above represents her best interests. The mother is not likely to be able to be that supportive.
192 I accept that a change of residence may cause some degree of trauma to [S] in the short term. She may find it difficult to understand why she is being moved from the home to which she has been accustomed and why she has to live with the father. She might also be uncertain as to when she will see her mother again and be upset that she does not see her every day as is currently the case. She will also no doubt miss her mother and her siblings a great deal, especially in those early days.
193 With a supportive set of parents saying and doing the right things, however, she will become accustomed to her new environment and will benefit from it. In the longer term, in my view, it is what is best for her.
34Although I accept there is room for concern, I am not persuaded that the Magistrate proceeded on the basis that the importance of S having a meaningful relationship with her father was automatically to be given precedence over other factors, and that orders therefore had to be framed to achieve that outcome. It is true that this factor can be seen as ultimately having been determinative, but that is only because of the considerable weight his Honour afforded to that factor after considering other significant factors, including references to the impact on S of being separated from her mother and siblings.
35Counsel for the mother also submitted that the Magistrate did not address the issue of S having a meaningful relationship with her mother, and how that may be affected if she was removed from her mother’s primary care. I do not accept the submission, as his Honour found at [138] that S would be able to maintain a meaningful relationship with the mother if S were to live with the father. That finding was well open to his Honour in circumstances where his orders contemplated that the mother would soon begin to spend significant periods of time with S, and where his Honour had found that the father would encourage the child’s relationship with the mother.
Failure to consider other factors
36The second complaint was that his Honour failed to consider other important factors. The mother asserts in particular that the Magistrate failed to discuss adequately, or properly assess, the father’s proposals in circumstances where his Honour had recognised that acceptance of those proposals involved the court taking a “large leap of faith”. This “leap of faith” arose from his Honour’s findings that “the father is an unknown quantity in some respects, in terms of his ability to provide for all of [S’s] needs” and had “not given much thought to the practical arrangements for caring for [S] on a full-time basis”.
37This submission relates to [158] and [159] of the reasons, but in order to provide context, I will also set out some other findings and observations (emphasis added):
91 At the time of the [single expert’s] report, the father was living with his cousin, [T], and her husband, [I], who worked one week on one week off as a [boilermaker] in [Suburb B]. He said at the time, and continues to say, that he intended to buy a house to live near [S] once the proceedings were completed.
…
142 The father says that [S] is at risk of psychological harm in the mother’s care. The single expert witness supports that contention. I accept that this is a distinct possibility in the future. Certainly, [S] is at risk of never having or enjoying a meaningful relationship with the father whilst she lives with the mother. [S] is currently able to function reasonably well. The “black hole” in her life is the absence of any relationship with the father.
…
153 A change in residence will at least not result in a change of school. The father accepts that [S] should remain at her current school that she attends with [E]. The issue will be, however, that both parents will need to attend the school for drop offs and pickups and activities such as assemblies. That will bring them potentially into contact with each other on regular occasions. This will create enormous difficulties, especially for the mother, and potentially for [S], given the mother’s firm views about the father. It will be difficult for the mother to watch [S] going to the father’s care from school, when she continues to believe that [S] is at risk.
…
155 The father’s suggestion in cross examination was to restrain the mother from attending the school to either deliver or pick up her children. That is not an appropriate order in the circumstances.
…
157 The father has not given much thought to the practical arrangements for caring for [S] on a full-time basis. His proposals are that [S] live with him. She is currently attending school at [Suburb H Primary School].
158 The father has said that he intends to buy a house once the proceedings are finalised. He therefore expects the Court to make an order that [S] live with him when the Court does not know precisely where he would live or what the circumstances are, or has any idea about his financial circumstances or his work commitments. He said in his oral evidence that he would start his own business or would be able to cope with caring for [S] and alter his work arrangements to suit. There is, however, no independent evidence that any of that could actually be achieved. The father asks the Court to take a large leap of faith if it was to place [S] in his care.
…
159 The mother is capable of providing for all of [S’s] needs, save for the “black hole” to which I referred. She is distinctly unable to accept the need for the father to be a part of [S’s] life and the benefits that will flow to [S] by having a meaningful relationship with him. The father is an unknown quantity in some respects, in terms of his ability to provide for all of [S’s] needs. He has spent very little time with her over the past few years.
…
195… The changeover between households should be done at the end of second term in 2015. This will enable the father to settle his accommodation issues and provide, hopefully, time for the Family Consultant to speak to [S] about the Court’s decision. In my view, the father should collect [S] from school on the last day and spend the entire holiday period with her. This will provide the immersion recommended by the single expert witness. The time that [S] spends with the mother should commence on the first weekend after the start of third term.
38Although the Magistrate recognised the “enormous difficulties” that would flow from both parents attending at the same school to collect children, his Honour rejected the only suggestion that had been made to deal with that issue, and did not propose any alternative. The reasons are therefore silent as to how, for example, the parents would be able to manage the scenario likely to unfold on the first days of the third school term, when the mother would still not be entitled to spend time with S, but S would potentially see her when she came to the school to collect the other children. Similar scenarios could unfold over the coming months when S would see some of her siblings going home to her mother’s residence, whereas she would only be able to see her each alternate weekend. The potential for these “enormous difficulties” to end badly had to be considered in light of the history of difficulties the father had experienced in even ensuring that S went on short contact visits. Nevertheless, I assume that his Honour anticipated that the period of “immersion” in the father’s home over the school holiday would be sufficient to ensure that S would not try to abscond or become distraught at seeing her mother and siblings go home each day without her.
39There was little discussion in his Honour’s reasons of how the father planned to care for S on a full-time basis. There was no mention of the location of the father’s residence, or the place or hours of his current employment. It is important here to note that S lives in the former family home in [Suburb H] and attends the local primary school, whereas the father gave his address as being in [Suburb B] and his employment as being “[boilermaker]” (transcript, 12 August 2014, p 8). Although the father went on to give oral evidence of options that were available to him in relation to obtaining alternative work and moving closer to S’s school (transcript, 12 August 2014, p 48), the Magistrate did not find that he would or could do so, thus requiring the Magistrate to take the “leap of faith” mentioned. In this context, it is noteworthy that although the father told the single expert in November 2012 that he was proposing to buy a home nearer to his daughter “after the proceedings were completed”, no substantive steps in that direction had been taken by the time he was giving his evidence almost two years later.
40The orders the subject of the appeal were not expressed to be dependent on the father moving to live close enough to the mother’s home for S to continue to attend the school his Honour assumed she would be attending (remembering that his orders anticipated that, in due course, there would be a shared care arrangement). The orders were pronounced on 8 June 2015 and were to be put into effect by the end of the second term in 2015 (i.e. 1 July 2015). There was therefore not much time for the father to finish his job at the goldmine, obtain a new home, and put himself in a position to care for a child who everyone agreed would be distressed.
41Notwithstanding the misgivings that his Honour expressed about the uncertainty in the father’s proposals for the care of S it is apparent that he was prepared to make the “leap of faith” which his decision undoubtedly involved. His Honour accepted that the father could make the arrangements that were needed to obtain accommodation in the short space of time available, because he said that having the changeover occur at the end of the second term would “enable the father to settle his accommodation issues”.
42Although his Honour can be seen as accepting that the father would be able to make suitable accommodation arrangements in the short period allowed to him, his Honour failed to find that the father would be able to make the other major changes in his life needed for him to be able to care for S and to be available “to attend the school for drop offs and pickups and activities such as assemblies” which he assumed the father would have to do. In my respectful opinion, this is a deficiency in his Honour’s analysis of the father’s proposal, especially in circumstances where his Honour failed to record in his reasons that the father’s employment at the time of trial was [as a boilermaker], and where the father had been working on a fly-in, fly-out style roster since S was six months old (father’s trial affidavit at [209]).
43I accept that the father gave evidence at [268] to [277] of his trial affidavit of the way he anticipated being able to provide full-time care for S but it seems his Honour was doubtful about these plans, given that he said he had “[no] idea about [the father’s] financial circumstances or his work commitments”, and that there was “no independent evidence” that the father could actually achieve the change of arrangements he had foreshadowed.
44When the father was cross-examined about his proposals, he said that although he was working week-on/week-off, he had “18 weeks paid holidays … that I have up my sleeve before I have to make a decision”, but that he had to give a month’s notice if he was going to terminate his employment (transcript, 12 August 2014, p 47 et seq). He also acknowledged that it was going to take time to establish the business he hoped to operate, as appears from the following extract:
[Counsel for the mother:] Would it be fair to say … that you haven’t really thought, in fine detail, about how these arrangements would work?‑‑‑I think, at this stage – I know I will set the business up quite easily. But it does take a while to build a rapport with the – like, to build a client base. So I’m being realistic that I’m probably going to have to, for the interim, create measures until such times as that is set up sufficiently. So I understand that it’s not going to happen overnight.
45It seems the “measures” the father had in mind were jobs working for others using a variety of trade qualifications and experience he had. At [276] of his trial affidavit, he said these jobs could be “easily” obtained and would accommodate school hours (although he did not expressly say the jobs could accommodate school holidays). It was open to his Honour to find that the father would be successful in setting himself up in this fashion, but he conspicuously refrained from making that finding. On the contrary, his Honour’s remarks at [158] indicate that he was sceptical of the father’s ability to bring his plans to fruition, yet the father’s ability to provide proper care for S depended on such arrangements.
46In the absence of a finding that the father could and would extricate himself from his longstanding week-on/week-off employment (indeed in the absence of a finding that this was the work the father had at the time), the appeal court is left in doubt as to whether the father actually had a viable arrangement for the child’s care. Without such an arrangement, the entire foundation for the father’s proposals would fall away.
47This deficit in the Magistrate’s reasons could potentially have been cured had his Honour made the change in residence dependent upon the father obtaining a dwelling in the Suburb H area, giving up his week-on/week-off employment, and finding work that would allow him to drop-off and pick-up at school. However, this was not done, and his Honour’s reasons are silent on what would occur if the father could not put these major changes in his life into place.
48Although it was not part of the father’s proposals to have someone else undertake the work involved in caring for S, he did mention in his evidence that he might seek advice from a person he knew about how to handle the issues that were likely to arise when S came to live with him. In my view, the father’s responses to questions about this, which are set out below, ought to have caused his Honour to reflect on the type of arrangements that would become necessary if the father was unable to put his planned arrangements in place (transcript, 12 August 2014, p 49 et seq):
[Counsel for the mother] And who was this person that you were talking about before lunch who might come to help you with [S]?‑‑‑I just said, in the very short term, that I have a family friend, [Ms B], that has had a lot of time with – they’ve got like nine foster kids that the – State wards. About three are their own and the rest are wards – ex-wards of State or whatever, and they’ve had – taken them on quite traumatised. So I think she would be quite useful, and I realise - - -
And are you proposing that she would live in the house with you?‑‑‑No. No. No. Just for the interim – immediate handover I think a bit of assistance and guidance, from my perspective, would be very beneficial because I’m – I will be dealing with a distressed child, and I want to know the best way to – I would like assistance with the best way to go about it. And the ‑ ‑ ‑
And what ‑ ‑ ‑?‑‑‑I don’t think there’s any ‑ ‑ ‑
‑ ‑ ‑ qualifications does this friend of yours have?‑‑‑Yes. To be honest, I’m not sure, exactly. But she has, obviously, been through all the checks to be given custody like she has, and I would say she would have done quite a bit of training to get – to being given those provisions to take on children like that. I would say there would be quite an extensive criteria that would – to be met.
49Counsel for the mother was also critical of the Magistrate for failing to make any mention of precisely how the handover of S from the mother’s care to the father’s care was to be managed at the end of the school term. This was surely a matter of great significance, especially in circumstances where previous attempts to have the child attend on short contact visits with the father had been unsuccessful. The Magistrate paid no apparent attention to this issue, as he said nothing more than what was contained in [195] of his reasons, which I have set out above.
50The Magistrate did recognise the potential for difficulty in the proposed ‘cold turkey’ handover, because he gave “liberty to apply to relist in the event difficulties arise in relation to the changeover”. However, the reasons arguably pay insufficient regard to the trauma likely to be experienced by this young child if she was simply picked up from school at the end of term by a father with whom she had not spent regular time for some three years, and to whom she had not spoken for more than a year, and then deprived of contact with her mother for three weeks.
51His Honour failed to record that the father’s proposal for the handover was to carry the child to his car, lock the doors, pull out the fuses so the windows could not be opened, and tell her, “Look, this is how it’s going to be. You’re going to have to get used to the situation” (transcript, 12 August 2014, pp 43–44 and 57). Having failed to record that this was the father’s plan, his Honour therefore also did not record the evidence of the clinical psychologist, [Ms C], on this topic. This is of significance, since his Honour said at [78] that Ms C was a “very good witness [who] thought carefully about the propositions put to her [and] displayed significant insight into the issues at hand”.
52Ms C said this during her cross-examination about the way the father proposed to handle the handover (transcript, 10 November 2014, p 38):
[Counsel for the mother:] [The father] has said that, if he was to do that again, he would use a different car and he would put [S] into the car and then use the remote central locking so that she couldn’t get back out again, and he might remove the fuses from the vehicle so that the electric windows wouldn’t go down. What would you say about that as a means of getting [S] from one house to another?‑‑‑It’s a very aversive-sounding process to me, and I don’t think that would be appropriate for a child with anxiety.
And is it your view that she still has anxiety issues today?‑‑‑As of the last time I saw her. I haven’t seen her for quite – for a while now. Yes.
53His Honour also made no reference to the following passage from the evidence of the single expert, who had recommended the change of residence (transcript, 10 November 2014, p 87 et seq; emphasis added):
[Counsel for the mother:] There was an occasion which we’ve heard evidence about during this trial where the parties tried that and … [the mother] followed the advice of the – of [Ms C], that she should behave in a business-like manner and the parties got [S] to a car and she refused to remain in the vehicle and ultimately she wasn’t moved on. [The father] has said in his evidence that if that was to – if there was to be a change of residence he would use a different vehicle and use a remote central locking vehicle so that once she was in the car she stayed in it and “we would disable the windows so that she couldn’t get out that way”. Is that the sort of level of forceful removal of the child that you would advocate?‑‑‑When I wrote this report it was approximately two years ago and the child had only recently started displaying this anxiety. I don’t think it’s appropriate to potentially traumatise a child to achieve – I mean, it’s counterproductive. It would just, I think, make things very difficult. When I recommended a more forceful approach – I prefer the word, you know, “responsible parenting” to take control of the situation, reassure the child and I reiterate what I said in the initial report. The viability of that, I expected and still consider, hinged on each party’s capacity to understand how important it was for this to happen for [S] and to be equally firm and cooperative in encouraging and supporting the child to make this happen, as it had done a few times, as I recall, with the supervising agency. So I – yes, what I was imagining might be helpful was certainly not to remotely lock the child into a vehicle and cause her such intense distress, no. I think that would be counterproductive to the relationship with her father.
54Counsel for the father properly conceded in his oral submissions that the Magistrate’s orders did not provide the “clarity” that had been hoped for about how the transition would be managed. It was on this basis he acknowledged that there might be a need for a partial remitter of the matter to the Magistrate; however, my concern about this is that the way in which the transition is to be managed is part and parcel of the entire dispute, since if the transition cannot be successfully managed then it should not be ordered.
55Although his Honour said at [200] that S “should continue counselling with [Ms C], in particular to manage the transition from the mother’s house to the father’s house”, I do not consider this to be an entirely adequate response to the distress S would face in being removed from her mother. While I accept that the order for counselling was appropriate, the child would be left entirely dependent upon the father making the necessary arrangements with the psychologist, and there was no formal requirement for him to do so, even if that can be inferred from the order. In this context, it must be noted that although there had been an Independent Children’s Lawyer appointed earlier, that lawyer was not funded to appear at the trial (a most unfortunate outcome, given the orders that were being contemplated). Accordingly, there was not even the prospect of an Independent Children’s Lawyer ensuring that the psychologist was undertaking the work with S that the Magistrate obviously considered to be necessary (and in this context I note that his Honour’s orders included the discharge of the Independent Children’s Lawyer).
56Counsel for the mother was also critical of the Magistrate for failing to adequately discuss the nature of the relationship between S and her mother, and between S and her siblings. She pointed out that when discussing the s 66C factor pertaining to the nature of the relationship of the child with each of the parents and “other persons (including any grandparent or other relative of the child)”, all that his Honour said was this:
147The father has no significant relationship with [S] at the moment. The mother is very overprotective in relation to [S] spending time with the father. She has embarked on a course of conduct, no doubt borne out of a genuine belief that [S] is at risk in the father’s care, but which clearly is designed and has the effect of ensuring that [S] does not spend time with the father whilst conveying the impression by the mother that she wants such orders to work and is cooperating with that process.
57What is missing from this part of the reasons is any reference to S’s relationship with her mother and siblings. This oversight was, however, remedied to some considerable extent by other parts of the reasons in which his Honour recognised that S:
•had a “close relationship” with her siblings and that the relationship was a “doting and loving one and that they all help her get ready for school and otherwise look after her” (at [151]);
•“has a warm and loving relationship with all her sisters and her brother” (at [180]);
•was “part of a close family unit” (at [181]); and
•will “no doubt miss her mother and her siblings a great deal, especially in those early days” (at [192]).
58While therefore recognising the important relationships that S had with her mother and siblings, his Honour considered that the negative impact on S of being removed from their home would be felt by her only in the “short term” (at [151]) and in the “early days” (at [192]). This finding stands to be considered in light of the expert evidence.
59For example, [Ms W], a counsellor who had seen S in 2012, said this when asked about the proposal for a change of residence (transcript, 14 August 2014, p 100):
So, generally speaking, no. I wouldn’t recommend taking the child from one residence and transferring them to another residence. And I base that on a query about whether or not the anxiety had been resolved and also an understanding that this child also has brothers and sisters and is part of – it’s not just about one parent, one child versus another parent, another child. She would be losing quite a lot of her support in losing her brothers and sisters because I’m assuming that they wouldn’t be transferring to the other parent either. It would just be her. …
60Ms C was also asked about this subject (transcript, 10 November 2014, p 38):
[Counsel for the mother:] If it’s the case that the other children don’t want to have a relationship with [the father], what would the impact be on [S], do you think, of being separated from her siblings if she goes to live with [the father]?‑‑‑I don’t – I don’t – it’s hard for me to comment on that.
I think your evidence when you were speaking with my learned friend [counsel for the father] was that, “We’ve tried everything else, so a transfer to dad now might have to be the next thing.” So is that your recommendation?‑‑‑I wouldn’t say it’s a recommendation. It was something I was putting out there as a suggestion. Obviously, if she has got a close relationship with her siblings, it would have an impact on her.
61Ms C had earlier said in evidence-in-chief (transcript, 10 November 2014, p 25):
[Counsel for the father] If there’s to be an immediate placement without any further therapy, say, between [S] and her dad what levels of distress might be anticipated for [S]?‑‑‑I think you would expect quite a lot of distress because her primary attachment figure currently is her mother and she has separation anxiety and fear. So you would expect a lot of distress.
And how would that distress be managed? Would there need to be some professional input?‑‑‑I would – I would say so. Yes.
From whom?‑‑‑A clinical psychologist.
All right. Would you be able to do that?‑‑‑If the family would like me to do that. Yes.
Are you able to say what level of psychological therapy would be needed at that stage?‑‑‑Hard to say really.
Daily, weekly?‑‑‑Hard to say, but I would imagine at least weekly.
Right. And ‑ ‑ ‑?‑‑‑And it would have to be properly guided by how – how the – how the child settled in that environment.
Right?‑‑‑What we know about separation anxiety, though, is that the more a person is exposed to their fear the more able they are to cope with the anxiety. It will go down eventually.
Right. You’re using the term separation anxiety, but you came to the view that perhaps the – that was – that descriptor may not be entirely accurate for ‑ ‑ ‑?‑‑‑It’s part of the picture, I think. It’s not all of it.
All right. So just remind us what the picture, as you perceive it to be ‑ ‑ ‑?‑‑‑I think there is separation anxiety, but I think there’s also a fear that [S] has of being with her dad.
Right?‑‑‑As a result of the events in 2012.
62The psychologist [Ms P], who was found by his Honour to be “credible [and] gave sensible evidence which appeared to be clinically based”, said this (transcript, 10 November 2014, p 74):
[Counsel for the mother:] What do you think might be the impact on [S] psychologically if she was moved to live somewhere other than with her siblings?‑‑‑I haven’t seen [S] since March [2014], so I’m not sure as to what progress she has made in that time. So it would be difficult for me to answer that question without knowing exactly what was happening right now, but, in general, removing a child from their siblings would be very difficult.
63The only evidence to which I was referred that would have provided any evidentiary basis for his Honour’s findings about the “short term” nature of the distress associated with S’s removal from her mother and siblings was the father’s statement at [259] of his trial affidavit in which he said:
My proposal will inevitably result in distress for [S] in the short term. She will be displaced from [the mother], however she will continue to attend the same school and will not lose the association with her mother and siblings.
64The father had no qualifications that would have permitted him to give evidence about the likely duration of the distress for S which he himself acknowledged would occur if she was required to live with him. Accordingly, I do not consider it was open to his Honour to conclude that the trauma associated with S’s forced removal from her mother and siblings would be felt only in the “short term”.
65In light of all of the matters to which I have referred, and recognising all of the obstacles that stand in the way of complaints about “weight”, I find merit in the argument that the Magistrate failed to give sufficient weight to matters that were highly significant to the welfare of S. In other instances, his Honour failed to address relevant matters – for example, in failing to make a finding that the father could actually rearrange his affairs to care for S. And, as I have said, there was no evidentiary basis for a significant finding made by the Magistrate about the duration of the effects of the trauma S would experience.
Failure to give adequate reasons
66In view of what I have said already, it follows that I consider there is merit in the complaint that his Honour’s reasons were inadequate, even though it is clear that he reached his decision because of the great weight he understandably placed on the importance to S of having a good relationship with her father.
67His Honour also failed to explain why it was in S’s best interests, once she had her period of “immersion” with the father, to thereafter live the great majority of her time with him for six months, then spend more time with the father than with the mother. The only reason his Honour gave for this was what he said at [195]:
I consider the orders for times between [S] and the mother as suggested by the father are appropriate. [S] should live primarily with the father.
68As the mother was acknowledged as being a very good parent in every respect other than encouraging the child’s relationship with the father, there are insufficient reasons to explain why, for example, there ought not ultimately to have been, at the very least, an equal shared care arrangement, rather than one where S spent two nights more a fortnight with her father than with her mother and siblings. The assumption that seems to be implicit in the orders is that the mother’s influence over the child would be broken after an extended period of mainly living with the father. If that is so, it is difficult to see what more real influence the mother might be able to exert on the child in seven nights a fortnight that she could not exert in six nights.
69For all these reasons, I find merit in important elements of Ground 1.
Ground 2 – Relying upon the evidence of the single expert
70By this ground it was asserted that his Honour had erred in law in relying upon the evidence of the single expert, “in relation to considerations of the psychological aspects of the current and proposed future arrangements for the child, in circumstances where the single expert witness lacked the qualifications to provide such evidence”.
71[Mr M] was appointed as the single expert witness with the consent of both parties. He was asked to provide a report dealing with what might be described as the usual terms of reference. In arriving at his decision, his Honour accepted Mr M’s evidence on matters that counsel for the mother now argues were “of a psychological nature”. She submitted that his Honour erred in doing so because Mr M was not qualified to give a psychological opinion, since he was only a social worker. In this context, I observe that the Magistrate expressly recorded at [81] that Mr M was a social worker.
72The parts of Mr M’s evidence which the Magistrate accepted, and which the mother claims were outside his area of expertise, can be seen in the following extracts from his Honour’s reasons:
103 The single expert concluded that the relationship between [S] and the mother was strong and was of substantial significance to the child, but was beginning to cause [S] problems. He opined that this resulted from exposure to her mother’s anxiety. He predicted that it would likely impact on her future development if this persisted. It might impact on her capacity to participate in a myriad of activities such as school. Moreover, she might become habituated to experiencing anxiety and adopt an identity as “an anxious person”. This view was reiterated in cross examination where the single expert concluded that [S] will grow up thinking that she has an anxiety disorder when she does not. The expert’s opinion therefore changed slightly in that he predicted that she would become habituated to experiencing anxiety, but at trial suggested that she does not have an anxiety disorder. That latter opinion was based partly on his understanding of the evidence of [Ms P] who provided recent therapy to the child and in her view indicated no separation anxiety disorder was present.
…
152 Were I to leave [S] in the mother’s care, then there would be no significant worsening effect of being separated from the father. She is already in that situation. According to the single expert witness, this will adversely affect her emotional development in time. I accept that finding.
…
178 … The single expert witness has given his views and his insight into [S’s] issues and provided views as to how to handle her anxiety. Other professionals have also provided views and treatment based on their involvement with [S].
…
188 This is a case where I must give very serious consideration to removing [S] from the mother’s care and placing her in the primary care of the father. Were I to do so, I accept the single expert’s view that it must happen quickly. …
73Counsel for the father conceded that the relaxed rules of evidence applying in “child related proceedings” do not permit experts to give an opinion unless they are properly qualified, and he accepted that if they purported to give an opinion without being properly qualified, then their evidence should be excluded. However, counsel for the father pointed out that Mr M does have an Arts degree majoring in psychology, and I observe that Mr M said that in preparing his report he had drawn on his (undergraduate) degree as one of his qualifications. It may also be important to record that Mr M was not directly challenged on his expertise and that the agreed terms of reference invited him to report on “any other matter which is considered relevant to the psychological … well-being of the child”.
74Although Mr M was not challenged on his qualifications, counsel for the mother relied on the fact that the father’s own counsel had made a proposal about appointing another expert on the basis that that Mr M was not suitably qualified. However, counsel for the father argued that this related to one discrete issue concerning the way in which S’s transition from the mother’s home to the father’s home would be managed and ought not be seen as a concession that Mr M did not have expertise to provide the other evidence which the Magistrate accepted. Counsel for the father also referred to the fact that counsel for the mother had cross-examined Mr M on psychological matters.
75In considering these arguments, it is important to have a clear timeline of events. The mother herself had made it known, prior to trial, that she challenged Mr M’s qualifications to make the assessment he had, and continued to do so in her oral evidence (transcript, 13 August 2014, p 31 and 35; 14 August 2014, p 35). In her opening address, the mother’s counsel also made a pointed reference to Mr M as “the single expert social worker” (transcript, 13 August 2014, p 7). After the evidence in the first part of the trial concluded in August 2014, and prior to Mr M being called in the second part of the trial in November 2014, this exchange occurred between counsel for the father and his Honour (transcript, 14 August 2014, p 101):
JONES, MR: Sir, in relation to the way forward, I’m wondering whether these parties will need to confer and agree a report from a further specialist. And I’m just thinking about Mr M’s qualifications as a social worker. I’m wondering whether in this case it might be beneficial for the court to receive a report from a psychologist about two issues. One is, if the court on the basis of a therapeutic approach is considering the re-introduction of the child spending time with her father, how that is to be achieved. And I’m thinking, just to take up on your Honour’s suggestion yesterday about ARCS or some organisation – some mechanism where that could be achieved.
And secondly, in the event that the court is considering a change of residence, information about how that is best able to be achieved. And I’m thinking that a psychologist might be better placed to do that, rather than a social worker, subject to your Honour’s view. And my thought is that, if the parties can agree on the psychologist, we would provide that person with the specialist reports that we have and then each party be able to provide a letter of instruction limited to, say, five pages but dealing with those two issues, so that we can get some more information about the process with – in either or circumstance.
HIS HONOUR: Given the lateness of the hour, given that that’s, I presume and no disrespect intended, sprung on you ‑ ‑ ‑
[COUNSEL FOR THE MOTHER],: Yes.
HIS HONOUR: ‑ ‑ ‑ what I suggest is that the – counsel can deal with that issue in my absence and away from today. And if there is a set of proposed consent orders, they can be provided to me in chambers and I will consider those. If there is no consent as to that method or the way forward, then an application can be filed and I will make it clear that such an application is to be listed before me. Mr Jones, comfortable with that?
JONES, MR: No – Yes. I am. Thank you, sir.
76On the day after the trial was adjourned part heard on 14 August 2014, the mother’s solicitors wrote to the father’s solicitors in these terms:
We do agree that [Mr M] is perhaps not the best qualified person to make recommendations about these particular proceedings, given that both Counsel at trial have focussed on the need for opinion to come from a suitably qualified professional.
Further, we consider that a Clinical Psychologist who was to provide opinion in relation to this matter would need to read all of the previous reports and possibly a transcript of part one of the proceedings. This would be an incredibly expensive exercise.
With great respect, we consider that the proposal is one which should have been made earlier, and we say is simply too late in the day to make that application.
What we think [may be] appropriate, would be to provide instructions to [Ms C] and [Ms P] to confer with [Ms D] and [Ms W], with a view to providing their recommendations. We note that both of those ladies are Clinical Psychologists and both are familiar with this family and the issues.
Given that [Mr M] is now agreed by both parties to be under qualified to provide opinion to the Court, we query whether his material should be relied upon by either party and whether his position as a Single Expert Witness should be reviewed?
77On 25 August 2014, the father’s solicitors wrote to the mother’s solicitors, saying:
At the conclusion of the part heard trial held before His Honour Magistrate Kaeser, counsel for the Father … submitted that it may be beneficial for a Clinical Psychologist to prepare a report as to how the party should approach the transition from the Mother to the Father, irrespective of whether it is for a spent [sic] time with order or live with order.
…
We consider that such a report would be beneficial to both parties, irrespective of which proposed orders are more likely to be adopted by the Court. We therefore, query whether your client will agree to a report being published by a clinical psychologist regarding the following:
1.If the Court considers a therapeutic reintroduction as proposed by your client, how is that to occur; and
2.In the event the Court was to consider a change of residence, how that will be best achieved.
…
It is evident, that the parties have exhausted, it seems, all options as to how handover is to successfully occur. Irrespective of the final orders that are made we consider the Court would benefit from having a report in relation to this particular issue and how that transitional period may be best managed.
We do not agree to [Ms C], [Ms P], [Mr D] or [Ms W] providing their recommendations with respect to this matter as we are doubtful that either one of them have ever managed a transition such as this before or otherwise dealt with family court matters.
We confirm that we shall continue to rely on the reports produced by [Mr M] and we do not agree that his position as the Single Expert Witness should be reviewed.
78Agreement having not been reached, the father filed an application on 8 October 2014 seeking to engage a clinical psychologist, [Mr] Cairns, to prepare a report to be used when the trial resumed. In his affidavit sworn in support of that application, the father said:
9.When the matter was last before the Court, my counsel … made submissions which were to the effect that [Mr M] might not be considered to be qualified to express opinions about such things as the likely psychological effects upon [S] were it to be ordered that she live with me and that it may be beneficial for a clinical psychologist to be engaged.
…
23.Given that the Court’s decision about the future of [S’s] future relationships with [the mother] and me will have psychological consequences for her and given that these consequences are within the province of an expert witness I consider it important that the Court have the benefit of the opinion of Mr Cairns when it comes to determine what is in [S’s] best interests.
79In her affidavit in reply, seeking the dismissal of the application for the appointment of Mr Cairns, the mother recited the content of the letter sent by her solicitors to the father’s solicitors dated 15 August 2014. She went on to say in her affidavit:
In the event the Court does agree to the appointment of another single expert then I would respectfully request that the Court appoint [Ms W] as she has an in depth knowledge of our family circumstances and has previously treated [S].
80The father’s application for the appointment of Mr Cairns was dismissed. I do not have the benefit of the submissions made at the relevant hearing, nor have I been provided with the reasons of the Magistrate for dismissing the application. However, when Mr M was called on 10 November 2014, counsel for the father asked him to state his “qualification”, to which he responded simply, “social work” (transcript, 10 November 2014, p 80).
81In light of the correspondence I have mentioned, the affidavit filed by the father seeking the appointment of a suitably qualified psychologist, and Mr M’s stated “qualification” in his oral evidence, I do not consider it is fatal to this ground of appeal that the mother’s counsel failed to challenge Mr M on his ability to give some of the expert evidence that he did, albeit I accept it may have been preferable if she had, or if she had sought formally to have his report or parts of it struck out. On the other hand, given all the background facts recited above, if the father’s counsel wanted to rely on Mr M to give evidence outside the expertise of a social worker, he arguably should have sought to lead further evidence of his expertise, if he had any.
82Counsel for the mother made (uncontradicted) submissions about Mr M’s lack of expertise in her closing address, as appears from the following extract (transcript, 11 November 2014, p 35 et seq; emphasis added):
HIS HONOUR: Sorry, are you suggesting I should for some reason prefer one of those witnesses’ evidence to the other?
[COUNSEL FOR THE MOTHER]: Yes, your Honour. I would say that [Ms W], who first raised the issue, and [Ms C] who is the continuing treating clinical psychologist, and who is treating [S] today, both have spoken about that mental health issue for [S]. And the – I think both parties agree that [Mr M] is perhaps not qualified to give a diagnosis one way or the other, and so therefore, in terms of those who can speak about separation anxiety having dealt with [S] directly, of the three psychologists two say there is an issue, one having seen it in the first place, the other having been the ongoing practitioner for [S].
83Although this submission was directed to only one element of Mr M’s evidence, I consider it should have served to highlight the fact that there was a real issue as to whether Mr M could, in fact, give any evidence that went beyond the expertise of a social worker. His Honour was not assisted by any submissions as to how far the expertise of a social worker extends, but it seems to me that it was incumbent upon his Honour to engage with this issue, even if only in relation to the issue of whether S had separation anxiety, since that was the subject of a specific submission.
84The evidence and recommendations of Mr M can be seen as having been highly influential, if not pivotal, in the ultimate outcome. There was a live issue as to the expertise underpinning some of his opinions. In my view, his Honour’s failure to grapple with that issue renders significant elements of his reasoning unsafe.
85For these reasons, Ground 2 also has merit.
Ground 3 – Relying upon conclusions not supported by the evidence
86This ground asserts that:
3.The Trial Magistrate erred in fact and law in relying upon conclusions which were not supported by the evidence, or inferences which were not reasonably open to him to draw on the evidence, namely:
a)That “there may be an element of the mother thinking that it is unfair for [S] to have an active father in her life when her other four children had their father taken from them.” (Reasons [183])
b)That “I do think that, perhaps subconsciously, [the mother] is prepared to believe that [the father] is a paedophile (despite all the evidence to the contrary) because [the mother] feels that her four children have survived and have coped without a father and that [S] would be in exactly the same position.” (Reasons [183])
c)That the older children may influence [S] about her relationship with her father as a result of them having lost their father (Reasons [182]).
d)Any impact from the change of residence for the child (including not seeing her mother and four siblings daily, and noting that the relationship with her siblings may be affected) will be in the short term only (Reasons [181], [192], [193]).
in concluding that the mother did not want a relationship between the child and her father and therefore would not foster that relationship in the future, and determining that these were relevant factors when assessing the child’s best interests pursuant to section 66A of the Family Court Act 1997 (WA).
87Counsel for the father defended these parts of his Honour’s reasons by saying they were not findings, but rather speculations that had not been determinative. In any event, given the view I have reached in relation to other grounds, it is unnecessary to consider the complaints in Grounds 3(a) to (c), and it follows from what I have said earlier that I consider there is merit in Ground 3(d).
Ground 4 – Delay
88The mother’s next complaint was expressed in these terms:
4.In circumstances where:
a)[S] had not spent regular time with the Father since the parties separated [in] January 2012;
b)[S] had not spent any time with the father since July 2013;
c)the Trial Magistrate had suspended all contact between [S] and the Father, including telephone contact, since conclusion of the trial on 11 November 2014;
d) the Single Expert Witness had only consulted with [S] and the parties on 28 November 2012, prepared a report dated 29 November 2012 and letter dated 5 April 2013; and
e)there was a 7 month delay between the conclusion of the trial and the delivery of judgment
the Trial Magistrate erred in law by failing to consider the best interests of [S] in ordering the immediate change of residence and failing to consider the further issues arising in relation to the child given the delay in judgment (the judgment was delivered 7 months after the last day of hearing) having suspended all contact including telephone contact between the child and the father and in circumstances where the child had not spent any time with the father for in excess of a year, and there had been no regular time with the father since the parties separated [in] January 2012.
89After reiterating some of the factors mentioned in the ground, counsel for the mother submitted that:
The delay [in delivery of the judgment] was of such significance given the age of the child in her stages of development that the Trial Magistrate should have adequately discussed that in his judgment and addressed the impact of that. There was no evidence from any of the psychologists or the single expert social worker as to any potential effects for a change of residence taking place some 7 months after there was absolutely no contact between [S] and her father. A failure to do so and consequently assess the child’s best interests as the paramount consideration has led the Trial Magistrate into error.
90In my view, there is merit in this submission. The factual circumstances that presented at the time of trial were problematic enough, with his Honour having been invited to consider the abrupt handover of a young child to a person who had ceased to be a significant part of her life more than three years previously, and who she had not seen or spoken to for a long time. While I readily acknowledge the workload issues to which the Magistrate referred, and the importance of him taking time to consider his decision, the fact remains that his reasons are silent on the significance of the passage of a further seven months in which the father had been absent from S’s life, and the extent to which this would exacerbate the trauma associated with the child being forced to live with him.
91The Full Court of the Family Court of Australia said in Rollings & Rollings (2009) 230 FLR 396 at [67]:
The authorities … establish that if there is a delay between the conclusion of the hearing and judgment, presumably with contemporaneity of reasons, the delay is not in itself a ground of appeal and it is not … a denial of a fair trial and/or a miscarriage of justice. However the delay does mean that on appeal there has to be greater scrutiny of the findings made by the trial judge. As Giles JA said in [Monie v the Commonwealth (2005) 63 NSWLR 729] at [3]: “extensive delay may cause an appellate court to take a more stringent approach in determining whether error has been demonstrated in the trial judge’s findings or whether the trial judge’s reasons are adequate”.
92These observations are important here, given the degree of generality with which the Magistrate expressed his findings about the extent to which the father had been absent from S’s life following the separation. I have already recorded that his Honour did not seek to trace the history of the father’s time with S during the course of the proceedings, nor did he record when it was that S last saw and last spoke to the father. He contented himself with saying that the father “has spent very little time with [S] over the past few years”. The appeal court is left in doubt as to whether the Magistrate refreshed his memory about the full extent to which the father had been absent from S’s life, and this concern is exacerbated by his Honour not having discussed the significance of the fact that his delay in delivering judgment had extended that period by another seven months.
93His Honour also failed to mention a significant concession made by the single expert in the following extract (transcript, 10 November 2014, p 88):
[Counsel for the mother:] Would it be fair to say, [Mr M], that so much time has passed since the writing of this report that it would be difficult for you to be able to continue to make the recommendations you did without further information?‑‑‑Possibly. There are other alternatives but that’s certainly plausible.
94In her closing address, counsel for the mother specifically asked his Honour to take that admission into account when she said (transcript, 11 November 2014, p 33):
When [Mr M] was asked about the basis for his conclusions, he spoke about the fact that it was a very long time ago that he wrote this report, and he struggled, in my respectful submission, to give me any specifics about the basis of his report. He didn’t have his notes with him, and he conceded that it would be difficult for him to be able to give any firm recommendations now, because so much time had passed.
95Notwithstanding this submission, there was no mention in his Honour’s reasons of the fact that Mr M had only ever seen the parties once, more than two and half years before the judgment was delivered, and that Mr M had conceded that it was “certainly plausible” that so much time had passed it would be difficult for him to continue to make the recommendations he did without further information.
96In my respectful opinion, his Honour’s failure to recognise the potential impact of his delay in delivering judgment constituted appealable error.
Ground 5 – Parental responsibility
97The final ground of appeal was amended during the course of the hearing. With respect to counsel, neither of the two iterations of the ground were satisfactory, and the real complaint was better enunciated in her oral argument, in which she asserted that the Magistrate’s decision to award the father parental responsibility was based on the fact that S would be living with the father, which overlooked the fact that there would ultimately be an almost equal shared care arrangement.
98As the appeal is to be allowed, and the orders about residence discharged, it follows that the order concerning parental responsibility must also be discharged because the determination of that question will now clearly depend, at least to some extent, on whether S is to remain living with the mother. It is therefore unnecessary for me to consider this ground of appeal further.
The outcome and costs
99As I have found merit in some of the grounds, the appeal will be allowed and the Magistrate’s orders set aside. Regrettably, the matter will need to be reheard and it would be appropriate for the hearing to be conducted by a magistrate other than Magistrate Kaeser (or by a judge if that would be in accordance with the court’s case management practices).
100The mother sought costs if the appeal succeeded. The usual rule is that each party bears their own costs unless there are circumstances justifying an order for costs. One of those circumstances is that a party has been wholly unsuccessful. Although the father has been wholly unsuccessful, I am not persuaded that he should be responsible for meeting the mother’s costs, especially in light of some of the findings made by the Magistrate which have emerged unscathed in this appeal. I note also that the father has already expended $149,000 in attempting to pursue time with his daughter.
101Although counsel for the mother initially sought a costs certificate in relation to the appeal, I pointed out that certificates are not available, because the Federal Proceedings (Costs) Act1981 (Cth) does not apply to proceedings under the State legislation.
102The Western Australian Parliament has declined to refer power in relation to ex-nuptial parenting matters to the Commonwealth. As a result, litigants in this State are denied a benefit available to de facto couples elsewhere, who would be entitled to seek a payment from the Commonwealth to cover part of the costs of their appeal and part of the cost of any rehearing in circumstances such as these. It may be that the Western Australian Parliament would wish to give consideration to setting up a fund similar to that which exists in the federal arena to cover some of the costs of parties who have wasted legal costs as a result of an error of law made by a State judicial officer.
Orders
103For these reasons, I propose to make the following orders:
1.The appeal be allowed.
2.The orders made by Magistrate Kaeser on 8 June 2015 be set aside.
3.The matter be remitted for rehearing before a judicial officer other than Magistrate Kaeser.
4.There be no order as to costs.
I certify that the preceding [103] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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1 [S’s] name was incorrectly spelt throughout his Honour’s reasons, replicating a mistake made by the parties’ solicitors in a Minute provided near the outset of the proceedings.
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