Kovac & Hurst (No. 2)
[2021] FamCAFC 138
•4 August 2021
FAMILY COURT OF AUSTRALIA
Kovac & Hurst (No. 2) [2021] FamCAFC 138
Appeal from: Kovac & Hurst [2020] FamCA 1033 Appeal number(s): EAA 171 of 2020 File number(s): SYC 2405 of 2016 Judgment of: AINSLIE-WALLACE, ALDRIDGE & WATTS JJ Date of judgment: 4 August 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – RELOCATION – Appeal against final parenting orders and dismissal of relocation application – Unacceptable risk of sexual abuse – Adequate reasons – Weight challenges – Decision by the primary judge not plainly wrong – Findings open on the evidence – Appeal dismissed – No order as to costs – Order made in accordance with Minute of Order received from the parties in respect of payment for the expert report. Legislation: Family Law Act 1975 (Cth) s 60CC Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lenova & Lenova (Costs) [2011] FamCAFC 141
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Appeal Division Number of paragraphs: 95 Date of hearing: 24 May 2021 Place: Sydney Counsel for the Appellant: Mr Sansom SC Solicitor for the Appellant: Walter & Elliot Family Lawyers Counsel for the Respondent: Mr Givney Solicitor for the Respondent: Lama Family Lawyers Counsel for the Other: Mr Fermanis Solicitor for the Other: Phillip A Wilkins & Associates ORDERS
EAA 171 of 2020
SYC 2405 of 2016APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS KOVAC
Appellant
AND: MR HURST
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
AINSLIE-WALLACE, ALDRIDGE & WATTS JJ
DATE OF ORDER:
4 AUGUST 2021
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 12 May 2021 is dismissed.
2.The appeal against an order of a judge of the Family Court of Australia made on 3 December 2020 is dismissed.
3.There be no order as to costs for the appeal.
IT IS FURTHER ORDERED, NOTING THE CONSENT OF THE PARTIES:
That within sixty (60) days of the date of these orders the father pay to the mother the sum of $6,875.
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 Kovac & Hurst has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE, ALDRIDGE & WATTS JJ:
On 3 December 2020 a judge of the Family Court made final orders determining competing parenting applications brought by Ms Kovac (“the mother”) and Mr Hurst (“the father”) in relation to their two children X and Y (“the children”). The parties were in an intermittent relationship between 2010 and March 2016 in which the two children were born.
The mother sought orders that she have sole parental responsibility for the children; that they live with her; that she be allowed to relocate with the children from Sydney to City C in Victoria and that the children spend limited, supervised time with the father. The mother alleged that the children would be placed at an unacceptable risk of sexual abuse in the unsupervised care of the father.
In summary, the primary judge ordered that the mother have sole parental responsibility for the children and they live with her and spend unsupervised time with the father to begin after a period of supervised time. The mother’s proposal to relocate the children’s residence to City C was refused.
The hearing before the primary judge concerned a number of contentious issues, the resolution of some of which laid the foundation for the mother’s appeal against her Honour’s orders.
ALLEGATIONS OF SEXUAL ABUSE
In March 2016, the director of the older child’s day care told the mother that he had taken another little boy into the bushes and was encouraging him to “kiss his willy” (at [12]). This was reported to the Department of Communities and Justice (“the Department”).
Thereafter there occurred a number of instances in which the older child encouraged or sought to encourage another child or his sister to touch his penis. The mother deposed to incidents of a similar nature in 2017 and incidents involving the older child attempting to persuade the younger to remove her pants. The mother said that the children would display angry and defiant behaviour. So too the younger child was reported to have engaged in inappropriate play with another child at her pre-school. After hearing of this incident, the mother notified the Department and removed the younger child from that pre-school.
In September 2019 the mother had a conversation with the younger child who was touching her bottom and in answer to the mother’s question the younger child said that she and the older child did it to each other and their father did it to them and she said they “massage each other’s bums” (at [30]).
The mother deposed that the child said, in response to the question whether they massaged anywhere else (at [30]):
30. …
“Our hair, our eyes… and [the older child’s] willy and Daddy’s willy. Daddy’s willy gets all gooey and sticky”.
In answer to the question from the mother whether it was a game that “you tell other people about” the child said that it was a secret and “[i]f you tell anyone you will go to gaol” (at [31]).
Having reported this conversation to the Department, two attempts were made to interview the children by the Joint Investigation Response Team but neither child would speak to the interviewing officers.
As a result of these allegations, interim orders were made on 12 September 2019 that suspended the father’s time with the children. On 22 October 2019 further orders were made that the children spend four hours each Sunday with the father and that this time be supervised.
A single expert, Dr O, prepared a report for the Court having interviewed the parties. Dr O gave oral evidence. He acknowledged the children’s reported “sexualised” behaviour and he said that the parents had not given “directions” to the children about those behaviours (at [49]). He noted that the older child had begun behaving in this way some years ago and the younger child had recently begun engaging in sexually inappropriate behaviour both with her peers and with her brother.
Having reviewed the evidence, Dr O came to the conclusion that there was “minimal identifiable risk posed by [the father] to [the children]… (once unsupervised contact resumed)” and, if he ensures “appropriate respectful personal boundaries are observed” by the older child towards the younger (at [49]). He said that the father should not allow the children to bathe, shower or change together.
Dr O said that “nothing gave [him] any sense that [the older child] has been sexually interfered with by the father” nor had he observed anything of concern in the interactions between the children and the father (at [50]).
Having been asked to comment on the younger child’s reference to the father’s penis becoming “gooey and sticky” he said that if the child had used those words, it would raise his “level of vigilance and concern as to possibility of sexual abuse” (at [54]). Dr O was asked whether the conversation between the younger child and the mother about the father’s “willy”, “puts the matter in all the circumstances within the range of it being a real possibility of having occurred?”, to which Dr O replied:[1]
[DR O]: I’m not sure I can go that far, because the difficulty we have within that – and your client needs to understand this carefully – is because of the way that conversations have been recorded about these disclosures, I am absent information as to what adult language and questions took place around that disclosure as to whether there were any prompts, any additional words, any choice options prevented, as opposed to be given that sentence. So yes, I will accept that sentence, but I’m being very guarded as to how much confidence the court can have in it.
[1] Transcript 3 September 2020, p.264 lines 16–23.
Dr O commented in relation to the way in which the questions were asked that “children will readily acquiesce to parents” and further said “So the only thing I can say to the Court given the snap shots that we’ve got is the Court needs to be really, really guarded about relying on any of it…”.[2]
[2] Transcript 3 September 2020, p.264 line 28 and lines 41-42.
In explanation of the children’s behaviour, Dr O, after observing that none of the investigations based on the children’s behaviours had produced substantiation of sexual interference and he was not able to obtain “additional clarity” through his assessment, he considered the possible reason for the children’s sexualised behaviour and aggressive “act[ing] out” and recommended that both parents attend parenting courses to give them guidance on “how to place firm boundaries on their children’s behaviour and the skills in which to manage their negative outbursts when they occur”.[3]
[3] Dr O’s report dated 5 February 2020, paragraph 100.
He further said that while the older child for the most part engaged in “normal, age relevant and inquisitive play” he added that if he continued to engage in this behaviour he would be concerned that it may become “entrenched” and “move outside the age range” of typical behaviour. He also thought there was a strong possibility that the younger child’s behaviour was learned from her brother. Dr O recommended that both parents provide the older child with clear instruction about the inappropriateness of the behaviour and he recommended that the parents obtain professional assistance in how to have the conversation with the child.[4]
[4] Dr O’s report dated 5 February 2020, paragraph 101.
The primary judge accepted and relied on Dr O’s evidence in coming to the view that the children would not be exposed to an unacceptable risk of harm in having unsupervised time with the father (at [55]). Her Honour also found that Dr O had provided a “convincing and innocent explanation for the sexualised behaviour” of the children (at [57]).
The primary judge said after referring to this evidence:
56.Additionally, the mother is the only person to whom either of the children has made a statement which could be construed as a complaint of sexual abuse. Dr O considered that the mother asked leading questions of [the younger child], which seems self-evident to me on the face of her account of the conversation. As Dr O observed, the mother was well disposed to believe that the father is a child sexual abuser in the climate of conflict and suspicion between the parties. There was no evidence that [the older child] has made a statement to any person, including the mother, which could be construed as a complaint of sexual abuse by the father.
THE APPEAL
Before turning to the grounds of appeal, the father filed an Application in an Appeal on 12 May 2021 to adduce further evidence. This application was not pressed by the father and it will be dismissed.
Unacceptable risk of sexual abuse (Ground 1)
The first ground of appeal challenges her Honour’s conclusion about the existence of unacceptable risk of sexual abuse. Four particulars of error were articulated. It was said that her Honour failed to:
·give adequate reasons;
·take into account certain evidence of Dr O;
·take into account the “historical evidence” of the father’s son, Mr D; and
·take into account other factors that may corroborate the issue of abuse.
Inadequate reasons
The obligation on a judge to give adequate reasons is well-known.[5] The reasons must enable the parties to understand the basis of the judge’s decision and the extent to which the parties’ arguments have been accepted.[6]
[5] Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267.
[6] Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [58]–[59].
Here it was argued that while the primary judge set out excerpts from Dr O’s opinion and from the evidence, there was “no proper analysis of the factors” in s 60CC(2) and s 60CC(3) of the Family Law Act 1975 (Cth) to assist in understanding the reasoning process and it was said that this was particularly so in light of the unchallenged evidence of Mr D, the father’s son by a prior relationship, the mother’s evidence about her observations of the children’s behaviour and what they have told her and the evidence of Dr O.
Mr D’s evidence
Turning then to the evidence of the father’s adult son. Her Honour referred to it at [4] noting that it was regrettable that the mother sought to involve the young man in the proceedings, that he was not required for cross-examination and said that his evidence was of “little assistance” in determining the issues in the matter.
Mr D’s evidence was well characterised by the primary judge. He said that when he visited his father at aged around 11 (some ten years earlier) he had slept in bed with his father who would be naked. Mr D continued:[7]
22.I clearly remember that on one or two occasions when I was going to sleep Dad would press his naked body against me. At the time I thought that Dad was giving me a hug goodnight.
[7] Mr D’s affidavit filed 16 October 2019, paragraph 22.
He further said that he “clearly remember[ed]” that the following mornings he would consciously block what had happened out of his mind. He made no complaint to anyone about this conduct but said that now he “felt that I could simply not deal with any further emotional damage being inflicted on me by Dad”.[8]
[8] Mr D’s affidavit filed 16 October 2019, paragraphs 23 and 25.
In argument on the ground, senior counsel for the mother was unable to say in what way this evidence would have informed the decision about whether the father posed an unacceptable risk of sexually abusing the children, nor can we.
We note that as a further, discrete particular, it was alleged that the primary judge erred in failing to take Mr D’s evidence into account. Apart from the matters to which have just referred, it was not specified which part of Mr D’s evidence ought to have been taken into account nor what effect it would have had on her Honour’s determination.
The mother’s evidence
Next it was argued that the primary judge failed to make findings about the mother’s allegations.
This argument cannot be sustained. The primary judge’s reasons clearly outline the mother’s evidence of the children’s behaviour, their comments to her and her concern that the father had sexually interfered with them. Her Honour did not accept the mother’s articulated concerns. She did however accept the fact of the behaviour and it is tolerably clear that the primary judge and indeed Dr O accepted that the children had made the statements as the mother recounted them.
Her Honour, accepting the opinion of Dr O, was satisfied, and found, “that unsupervised time with the father will expose neither child to an unacceptable risk of sexual abuse” (at [55]). Her reasoning process is clear.
The oral evidence of Dr O
It was argued that while the primary judge accurately referred to the expert’s written report, she failed to take into account significant concessions made by him in oral evidence, in particular where Dr O said that had the younger child used the words attributed to her about her father’s penis, it would heighten his level of vigilance and concern. While Dr O did give this evidence, it was not the end of his evidence on this issue. When pushed by senior counsel for the mother to agree that if the younger child had used that language, would it raise his level of concern to “a real possibility”, Dr O said he was guarded in accepting that proposition because he was unsure what leading questions had been asked by the mother leading up to that particular disclosure.[9]
[9] Transcript 3 September 2020, p.264 lines 16–41.
Dr O’s evidence on this point was referred to by the primary judge at [54]–[57] as part of her reasoning to conclude that there was no unacceptable risk to the children of sexual abuse from the father.
Other corroborative evidence
Finally, it was argued that the primary judge failed to take into account other evidence which may have supported the mother’s assertions of sexual impropriety. The identified evidence was the mother’s account of the older child crying and saying that the father had hit him and the mother seeing three red marks on the child’s back. Senior counsel for the mother was unable to say what the corroborative effect of this evidence, even if it be accepted, was on the determination of whether there existed an unreasonable risk of sexual abuse. This evidence thus has no work to do in considering whether the primary judge erred in her determination.
None of the challenges to the primary judge’s conclusion about inadequate reasons given to the finding of no unacceptable risk has been made out and this ground will be dismissed.
Family violence
The mother alleged that following the parties’ separation in 2016 and during the earlier interregna in the parties’ relationship, the father embarked on a campaign of harassment both in writing and in shouted, abusive arguments in public and in front of the children. Reams of documents were in evidence before the primary judge in which the father harangued and harassed the mother.
The primary judge set out excerpts from those emails and text messages in her reasons. Their abusive and insulting content make for unhappy reading.
Her Honour said:
85.The father indulged in correspondence of this nature to the mother on frequent occasions for a period well in excess of twelve months. Paradoxically, he urged the mother to reconcile their family unit and at the same time offered trenchant criticisms of her as a person and a parent. In my view, this behaviour reflects poorly on his attitude to the responsibilities and duties of parenthood.
86. In cross-examination the father said:
I do not deny that I sent text and emails. I was looking for ways to repair the relationship and to make amends for what had happened.
The father appeared to be oblivious to the stress which his unwarranted and unwelcome communications placed upon the mother.
In addition to bombarding the mother with abusive messages, the primary judge set out the occasion on which the father attended at the mother’s house even though he had been asked not to attend.
The primary judge at [88] sets out Dr O’s opinion on the father’s communications with the mother:
88. …
The father did not get it or he did not want to get that he should not have tried to reconcile. I will accept that [this behaviour] is coercive certainly ...
At [89] her Honour quoted Dr O who said in his report:
89. …
115.… [The father] would also benefit from gaining insight into the very negative impact his post-separation behaviours had on [the mother] and subsequently the children. Although he was able to acknowledge that he should have accepted [the mother’s] decision that she did not want to continue their relationship, it is apparent that he continued to push her and influence her to such a degree that it caused her considerable distress and also served only to create further conflict in their already severely distressed co-parenting relationship.
Her Honour concluded:
90.In my view, family violence does not play a significant role in the outcome of these proceedings. I have referred above to the reprehensible conduct of the father toward the mother, in terms of his coercive communications with her after the separation. It would appear, however, that this behaviour of the father has abated in recent times.
This however, was not the end of her Honour’s consideration of family violence. When considering the issue of parental responsibility, she noted and clearly rejected the father’s submission that the parties’ relationship had improved to the point that it would be possible for them to share parental responsibility. Her Honour said “[i]t seems to be the case that [the father] has ceased his intense level of hostile communication with the mother in recent times.” (at [93]).
However, her Honour continued and said that the father’s negative and derogatory tone in his affidavit, “provides a window” into his “critical and negative attitude toward the mother” (at [94]). Her Honour also referred to a letter issued by the father’s solicitor on the eve of the parenting proceedings, demanding that the mother make a “public apology” to him (at [95]).
The role of family violence in the outcome of the proceedings (Ground 2)
The challenge in this ground was that the primary judge erred in concluding that family violence did “not play a significant role in the outcome of these proceedings”.
Two issues were argued under this this ground; first it was contended that the primary judge did not give sufficient weight to the father’s conduct in harassing the mother with abusive emails and the like. Secondly, it was argued that her Honour was wrong in finding that the harassment of the mother had “abated in recent times”.
The apportionment of weight or importance to evidence is a matter quintessentially for the trial judge and an appeal court will be slow to intervene where error in weight is asserted.[10] To successfully invoke appellate intervention, it must be shown that in weighing the evidence the primary judge made one of the errors to which the well-known passages of House v The King (1936) 55 CLR 499relates. No error has been demonstrated.
[10] Edwards v Noble (1971) 125 CLR 296.
As to the second point, it was argued that the primary judge failed to have regard to the father’s recent conduct in seeking a public apology and failed to consider the father’s more recent harassing emails. It was argued that had her Honour taken those matters into account she would not have concluded that the father’s conduct had abated.
It must be first said that a primary judge is not required to mention every piece of evidence, fact or argument relied on by the parties in the hearing.[11] However, her Honour did take into account the father’s demand for a public apology (at [95]).
[11] Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62].
It is important to note that her Honour’s findings about the father’s conduct, described by her as “reprehensible” were embraced by the mother, it was never articulated what other or different conclusion her Honour would have arrived at, had she referred to the father’s more recent conduct. We see no error in her Honour’s consideration of the evidence.
Whether the father’s harassing behaviour had abated
It was argued that her Honour erred in making that finding. To make good the challenge, the mother must demonstrate that her Honour’s finding was not open on the evidence. In coming to that finding, the primary judge had every piece of written correspondence between the parties, including copies of text messages, and the mother’s affidavit sets out the detail of conversations with the father in which he was abusive of her. Further the mother said that the father’s capacity to “intimidate, threaten and score points against” her had been “severely curtailed” by the imposition of supervision on his time with the children and that in the ten months preceding the hearing there had been a “near cessation” in correspondence which she described as an “enormous relief”.[12]
[12] Mother’s affidavit filed 21 July 2020, paragraphs 619–621.
Thus, her Honour’s conclusion was squarely supported by the evidence and no error is established.
The challenge is not made out.
Relocation of the children’s residence to City C (Ground 3)
In July 2012, the mother leased a property in Suburb G in Sydney’s Northern suburbs and, from September 2012 until May 2014, the father lived there with her except for a period of time in January 2014 when the parties moved into the father’s home in Suburb G. Although the parties separated very shortly afterwards, the mother returned to live in that house in July 2014. In June 2015 the mother separated from the father and leased a house for herself and the two children in Suburb G. In January 2016, the father sold his property in Suburb G and moved into the mother’s leased premises remaining there until March 2016 when the mother changed the locks.
The children thus have lived in Suburb G all of their short lives. The older child who is about to turn 10 attends the local primary school and is involved in local soccer and surfing. The younger child too attends the local primary school and, according to the mother’s affidavit, she has a group of friends and attends dance classes.[13] The mother’s evidence was that the children are happy and thriving.
[13] Mother’s affidavit filed 21 July 2020, paragraph 32.
The mother sought an order permitting her to relocate the children’s residence to City C in rural Victoria. She said that she would be closer to her family with whom she has close bonds and who could offer her support. The mother also said that it would be easier financially to find accommodation in rural Victoria and, she would be relieved by being distant from the father and his harassment of her. The mother proposed that if she was to move, the children would spend a total of 21 days with the father over the course of a year.
Dr O’s opinion was that if the move was permitted it would have the effect of the children losing “regular and ongoing contact with their father”, which would “be detrimental to their overall psychological wellbeing”.[14] The primary judge noted the expert’s further evidence that it was essential that the children are able to remain in regular contact with both parents.
[14] Dr O’s report dated 5 February 2020, paragraph 102.
The primary judge found that a relocation to City C would involve a major adjustment for the children including moving to another area and joining a new school. Her Honour said however that, “[s]ignificantly they would lose the opportunity to spend regular time with the father which, as noted, is considered ‘essential’ by Dr O” (at [75]). Her Honour considered the mother’s suggested 21 days of time spent between the children and the father as not representing “regular” time (at [76]). She further found that if the mother was to move to City C the children’s relationship with the father would only be supported by regular air travel (at [80]).
However, her Honour found that there was considerable evidence that the Suburb G community including a teacher at the older child’s school, had become embroiled in the parties’ dispute. Thus her Honour considered it in the children’s best interests that the mother be permitted to relocate their residence to another area in Sydney (at [79], [81] and [101]).
Ground 3 argues that the primary judge erred in refusing the mother permission to relocate the children’s residence to City C. A number of particulars were advanced and it was argued that her Honour:
·failed to give adequate reasons;
·failed to properly take into account the Dr O’s oral evidence about the father’s ability to appreciate the effect on the mother and children of his behaviour;
·erred in finding that the father’s harassing conduct had abated in recent times; and
·erred in finding that the mother had significant support in Sydney in the face of Dr O’s view that the support of family was superior to that of friends and failed to consider the mother’s financial stress which would be alleviated if she was allowed to move to City C.
The mother did not press Ground 3(e).
Reasons
On this point, it was argued that the primary judge did not weigh the advantages and disadvantages to the children of the proposed move. In particular it was argued that her Honour incorrectly found that the only advantage to the children in the move to City C was the effect on the mother of being supported by her family and being distant from the father. Further it was argued that the primary judge failed to weigh in that balance the mother’s “freedom of movement”.
Given that the mother’s position was that she would remain the children’s primary carer, wherever they would live, her freedom of movement was very much tied up in the children’s best interests.
As to the advantage to the children, it was contended that the fact that the mother was away from the father’s harassment would benefit the children in the move and this was her Honour’s error. We do not accept that the primary judge failed to take into account the effect of moving away from the father on the children. At [98] her Honour specifically refers to the benefits to the mother and the “flow-on effects for the children”.
It was suggested that her Honour’s reasons failed to take into account the more recent harassing behaviour of the father towards the mother. As we have earlier said, her Honour was clearly aware of his behaviour, including that of sending the letter of demand shortly before the hearing. It was not suggested that had her Honour recounted the particular incidents referred to in the Summary of Argument, she would have come to any other conclusion about his conduct.
In fact the thrust of this ground was that her Honour ought to have considered that the father’s conduct was such that it drove the determination that the children should move to live in City C. We do not accept that her Honour’s reasons are inadequate in exposing her reasoning process as to why she rejected the mother’s proposal to move to City C.
Oral evidence of Dr O
Next it was argued that the primary judge failed to give proper account to the evidence of the expert, in particular about the father’s apparent inability to understand the effect of his conduct on the mother and child and his inability to change that behaviour.
The challenge that her Honour failed to properly take into account this evidence, is a challenge to the weight her Honour gave to this evidence. It is clear that she had regard to this evidence. The point of this ground is that the primary judge did not conclude that because of this evidence the mother should be permitted to relocate to City C. No relevant error has been demonstrated.
The level of support available to the mother
In discussing the mother’s proposal that she move the children to live in City C, the primary judge referred to the mother’s reasons of being closer to family support and to distance herself from the father (at [98]). There was no dispute that the mother had the support of friends in Sydney. Dr O agreed that “there [is] a significant difference in the support that family can provide to friends and acquaintances”.[15]
[15] Transcript 3 September 2020, p.257 lines 37–38.
It was argued that her Honour placed too much weight on the mother having the support of friends in Sydney in rejecting the mother’s proposed move.
The decision whether the mother could move the children from where they had lived all their lives to a country town was both nuanced and difficult. The familial support to the mother was but one factor to be weighed.
There was no dispute that the children had a close and positive bond with their father and the mother’s evidence was that every day when they walked to school, the children would look for him at his place of work (at [69]).
Dr O’s opinion on the effect on the children of a relocation was quoted by her Honour at [70]:
70. …
102.When considering [the mother’s] application to relocate with the children to [City C], Victoria to be closer to her family there was sufficient evidence in the current assessment that they have close bonds with their father and there remains a concern that if the children lose the regular and ongoing contact with their father that it will be detrimental to their overall psychological wellbeing. Though given the extremely limited financial support provided by [the father] over time (currently $7.00 per child per day), her rationale for seeking to relocate is entirely understandable.
Her Honour relied on Dr O’s opinion that he considered it “essential” that the children are able to remain in regular contact with both parents (at [72] and [99]).
The impact on the children of moving away from their settled location, the loss of the opportunity to spend regular time with the father and her Honour’s view that the offered 21 days of time between the children and the father if they were living in City C fell well outside the parameters of “regular” time with the father. These factors as well as the possible long term effects on the younger child in having a break in the development of her attachment to the father, were all taken into account by the primary judge.
We reject the submission that her Honour placed too little emphasis on the difference in quality between familial relationships and friendships in determining whether the move was in the children’s best interests.
Finally, and seemingly unrelated to any particular of challenge to the relocation order, it was argued that the primary judge erred in finding that Dr O evaluated that regular and significant time with the father is “critical” and “essential at this stage in their lives” (at [99]). It was argued that this was not Dr O’s evidence. However, in oral argument it became clear that these words did indeed reflect his opinions as expressed in his written report and in his oral evidence. We pause to observe that even had her Honour misquoted Dr O’s exact words, the primary judge correctly captured the effect of his evidence.
No error is established in this challenge.
Accommodation
It appeared from Dr O’s report that the children had been used to sleeping in the same bed as their parents; “co-sleeping”. The older child told Dr O that the father’s accommodation was so small that there was only room for one small bed and they ended up all sleeping together.[16] In making his recommendations, Dr O said that, amongst other things, the children should not stay overnight with the father until he had accommodation sufficient that each child had a separate bed in which to sleep (at [47] and [49]).
[16] Dr O’s report dated 5 February 2020, paragraph 90.
Dr O said:[17]
122.Following a review of all documents provided, and extensive interviews and assessment conducted, there appears to be minimal identifiable risk posed by [the father] to [the children] presuming that (once unsupervised contact resumes) he provides a firm undertaking that he will not co-sleep with either child again, that when they are in his care he will ensure appropriate respectful personal boundaries are observed by [the older child] toward [the younger child], and that he will no longer allow them to change, bathe or shower together.
[17] Dr O’s report dated 5 February 2020, paragraph 122.
The primary judge in finding that unsupervised time between the children and the father posed no unacceptable risk of sexual abuse, quoted Dr O’s conclusion and accepted his opinion that the time between the children and the father should be supervised for a period to provide “some sort of security” for the mother (at [102]).
The father’s evidence before the primary judge was that he had, in light of Dr O’s recommendation purchased bunk beds for the children so that each would have his or her own bed. The bunks were set up in the bedroom of his single bedroom flat.[18]
[18] Transcript 1 September 2020, p.115 lines 10–18.
Adequacy of accommodation (Ground 4)
The error identified in this ground is that the primary judge did not “deal with these caveats” by which we understand Dr O’s recommendation for the recommencement of unsupervised time. It was further submitted that the primary judge did not “deal with” the father’s evidence of how he had addressed Dr O’s concern about him and the children sleeping together and she erred in not requiring the father to give the undertaking that Dr O recommended.[19]
[19] Mother’s Summary of Argument filed 9 April 2021, paragraphs 53–54.
It is important first to note that, despite the apparent importance of the adequacy or otherwise of the father’s accommodation, apart from a few questions asked of him in cross-examination, no submission was made to the primary judge as to whether the provision of bunks was or was not adequate to address Dr O’s concern about co-sleeping. It is hardly surprising then that the primary judge did not spend time discussing a topic not considered sufficiently material to be the subject of oral submissions.
In our opinion, given that the expressed concern of Dr O was that all three, father and two children slept in the same bed, the father’s evidence that each now had his or her own bed addressed that concern. Equally no submission was made to the primary judge that the father be required to give such an undertaking.
No error has been made out.
Payment of Dr O’s fees (Ground 5)
Apparently by oversight, her Honour did not order each party contribute equally to the costs of the expert report. The mother contends that this was an error.
It was not disputed that it was a clear oversight.
In argument on the appeal it was agreed that the parties would produce a Minute of Order by consent to the effect that the father would pay half of that fee. This minute was received by the Court on 27 May 2021 and orders will be made in accordance with that minute.
Thus with no ground of appeal being successful, the appeal will be dismissed.
COSTS
The father sought that the mother pay his costs of the appeal in the sum of $12,241.36.
The Independent Children’s Lawyer too sought an order for costs against the mother in the event that the appeal was dismissed. In this regard, we note that the Minute of Order relied on by the Independent Children’s Lawyer before the primary judge mirrored in significant detail the orders sought by the mother including the relocation to City C. However, in the appeal, the Independent Children’s Lawyer argued that the appeal should be dismissed.
Whilst it was open to the Independent Children’s Lawyer, their trial submissions having been rejected to a similar degree as those of the mother, to accept the decision and not support the appeal, it seems to us that the fairer course would be to file a Submitting Notice in the appeal or should they wish to appear, seek no costs.
However, it is apparent that the mother is impecunious and her evidence makes that plain. Indeed one of the reasons she advanced for moving to City C was financial. While impecuniosity is no bar to making a costs order where one is otherwise appropriate,[20] we are not persuaded it is appropriate here. We will make no order as to costs.
[20] Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12].
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Ainslie-Wallace, Aldridge & Watts. Associate:
Dated: 4 August 2021
0
6
1