Lainhart & Ellinson

[2023] FedCFamC1A 200

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Lainhart & Ellinson [2023] FedCFamC1A 200

Appeal from:

Lainhart & Ellinson [2023] FedCFamC2F 931

Appeal number:

NAA 214 of 2023

File number:

SYC 4512 of 2018

Judgment of:

MCCLELLAND DCJ, ALDRIDGE & AUSTIN JJ

Date of judgment:

20 November 2023

Catchwords:

FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from final parenting orders – Where the primary judge ordered the father to engage in cognitive behavioural therapy with a qualified clinical psychologist as the pre-condition for the child to progress to spending expanded unsupervised time with the father – Where no finding was made about the nature of the father’s psychological condition which the therapy is designed to defeat – Where the orders do not specify how long the therapy must be administered – Where the orders do not specify how the presumed success of the course of therapy will be measured – Where the primary judge ordered the father to provide the mother with a progress report from his psychologist – Where the report must confirm the father’s achievement of several milestones – Where the operation of the orders is tantamount to the divestiture of judicial power and the unlawful conferral of such power upon a third party to determine the proper future parenting arrangements for the child – Where the orders are aspirational and unenforceable, not prescriptive and enforceable – Appeal allowed – Matter remitted for rehearing, but confined to the orders which regulate the time the child will spend with the father – Costs certificates granted.

Legislation:

Family Law Act 1975 (Cth) Pt VII and Pt VIII, ss 64B, 65D, 65LA

Federal Proceedings (Costs) Act 1981 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 7.1

Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

B and B (1993) FLC 92-357; [1993] FamCA 143

Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221

Boyle & Zahur & Anor (2017) FLC 93-814; [2017] FamCAFC 263

Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96

Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32

Harrington v Lowe (1996) 190 CLR 311; [1996] HCA 8

Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9

House v The King (1936) 55 CLR 499; [1936] HCA 40

Moose & Moose (2008) FLC 93-375; [2008] FamCAFC 108

Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66

Rader & Rader & Ors (No 2) [2019] FamCAFC 227

Re C and J (1996) FLC 92-697; [1996] FamCA 86

Re David (1997) FLC 92-776; [1997] FamCA 48

Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84

Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23

Slater & Light (2013) 48 Fam LR 573; [2013] FamCAFC 4

Surridge & Surridge (2017) FLC 93-757; [2017] FamCAFC 10

U v U (2002) 211 CLR 238; [2002] HCA 36

Vass v Vass (2015) 53 Fam LR 373; [2015] FamCAFC 51

Number of paragraphs:

60

Date of hearing:

20 November 2023

Place:

Sydney

Counsel for the Appellant:

Ms Mooney SC

Solicitor for the Appellant:

Broun Abrahams Burreket

Counsel for the Respondent: 

Dr Barnett SC

Solicitor for the Respondent:

Ramsden Family Law

Counsel for the Independent Children’s Lawyer:

Ms Stolier

Solicitor for the Independent Children’s Lawyer:

Kathryn Renshall Lawyers Pty Ltd

ORDERS

NAA 214 of 2023
SYC 4512 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS LAINHART

Applicant

AND:

MR ELLINSON

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	MCCLELLAND DCJ, ALDRIDGE & AUSTIN JJ
DATE OF ORDER:	20 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.Orders 4(b), 4(c), 4(d), 4(e), 4(f), 4(g), 5, 6, 7 and 8 made by the primary judge on 27 July 2023 are set aside.

3.Orders 4(a) and 9 made on 27 July 2023 are set aside as and from the first return date before the Federal Circuit and Family Court of Australia (Division 2) following remitter pursuant to Order 4 hereof.

4.The proceedings are remitted to the Federal Circuit and Family Court of Australia (Division 2) for re-hearing by a different judge to determine the orders which should be made in respect of the subject child under s 64B(2)(b) of the Family Law Act 1975 (Cth).

5.The Application in an Appeal filed on 20 October 2023 by the appellant is dismissed.

6.The Application in an Appeal filed on 14 November 2023 by the respondent is dismissed.

7.The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of her costs incurred in relation to the appeal.

8.The respondent is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of his costs incurred in relation to the appeal.

9.The Independent Children’s Lawyer is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of the costs incurred by her in relation to the appeal.

10.The Court grants to the appellant, the respondent and the Independent Children’s Lawyer costs certificates pursuant to s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to the appellant, the respondent and the Independent Children’s Lawyer in respect of their costs incurred in relation to the re-hearing.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. Following a trial, which started in October 2021 and finished in June 2022, a judge of the Federal Circuit and Family Court of Australia (Division 2) made orders over a year later in July 2023 to determine causes of action between the parties in relation to their daughter and their property interests pursuant to Pt VII and Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) respectively.

2. For the reasons which follow, the mother’s appeal from a selection of the parenting orders should succeed and the proceedings remitted for re-hearing to determine the parties’ competing applications for orders which will regulate the time the child must spend with the father.

   Background

3. The parties met in 2006, commenced their relationship in 2013, married in 2015, and finally separated in 2018.

4. Their only child was born in 2017 and is now aged six years.

5. For several months following the parties’ separation, they were able to informally implement arrangements for the child to spend time with the father.

6. The mother commenced proceedings in July 2018 seeking relief under both Pt VII and Pt VIII of the Act. Interim parenting orders were first made in July 2018, providing for the child to live with the mother and to spend supervised time with the father each week (at [19], [104] and [114]). Those orders were varied by more interim orders made in August 2020, providing for an expansion of the child’s weekly visits with the father, but preserving the requirement for supervision (at [22]).

7. The time spent by the child with the father was interrupted at times during 2020 and 2021, due to public health restrictions imposed during the national pandemic emergency (at [115]). There were also some interruptions in late 2021 and early 2022 for other reasons (at [116]–[117]).

8. At trial, the child’s continuing primary residence with the mother was not contentious. The dispute was confined to the allocation of parental responsibility for the child and the manner in which she would spend time with the father. The mother contended the father posed a risk of harm to the child by reason of an inability to manage his anger and his propensity for violence (at [7]), which he denied (at [8]).

9. The primary judge ordered that the child should live with the mother and conferred sole parental responsibility for the child upon her. Those orders are not now contentious.

10. The focus of the appeal was upon the suite of orders governing the manner in which the child must spend time with the father, which orders were conceived by the primary judge and are not reflective of any proposed by the mother, the father, or the Independent Children’s Lawyer (“the ICL”). Nor do they correlate with the recommendations of the single expert. That is not necessarily problematic, because the primary judge was duty-bound to make orders which promoted the child’s best interests even if they differed from those proposed (U v U (2002) 211 CLR 238 at 284–285), though it might help explain how his Honour fell into error.

    The appealed orders

11. In summary, the primary judge ordered that, pending certain conditions being met by the father, the time the child spends with him is confined to 3.5 hours every Saturday under professional supervision at a contact centre (Orders 4(a) and 9).

12. After the stipulated conditions are fulfilled, supervision is dispensed with and the time the child spends with the father gradually escalates over a period of around 15 months to include alternate weekends (Orders 4(b) to 4(g) inclusive), parts of the school holidays (Order 5), and other special occasions (Orders 6, 7 and 8).

13. The conditions which qualify the child spending more expansive unsupervised time with the father are central to the appeal and were expressed in these terms:

    4.        [The child] spend time with her Father as follows:

    …

    (b)Upon the Father engaging in a course of cognitive behavioural therapy with a qualified clinical psychologist and that Father’s therapist providing to the Mother a report confirming in the therapist’s view that:

    (i)The father has understood and accepted that during and after their relationship he had significant anger management problems that led to him perpetrating physical and psychological family violence upon the Mother; and

    (ii)The father has gained understanding of the need to manage his anger so as to eliminate any unacceptable risk to [the child] of outbursts of anger by the father while she is in his care for any period of time

    then for a period of 3 months …

14. Despite best intentions, Order 4(b) creates more problems than it solves.

15. For the child’s time with the father to ever move beyond 3.5 hours per week under professional supervision at a contact centre, he must accomplish several tasks.

16. First, he must engage in a course of cognitive behavioural therapy.

17. But no finding was made about the nature of the father’s psychological condition which the therapy is designed to defeat. He was not diagnosed with any condition by the single expert psychiatrist, who simply recommended the father be assessed by a clinical neuropsychologist (at [148] and [157]). The desirability and suitability of “cognitive behavioural therapy” as treatment for the father lacked any vindication by the single expert and the idea was apparently plucked by the primary judge from the father’s concessions in cross-examination of having experienced that form of therapy in the past and his willingness to do so again. The orders do not specify for how long the therapy must be administered or how the presumed success of the course of therapy will be measured, which is significant since the father’s past engagement in cognitive behavioural therapy was evidently found by the primary judge to have failed him.

18. Secondly, he must undertake such therapy with a qualified clinical psychologist.

19. But the orders do not specify who will choose the psychologist. Presuming it is the father’s choice, the orders do not accommodate the resolution of any dispute if the mother does not trust the expertise or independence of the psychologist.

20. Thirdly, he must ensure his psychologist provides a report to the mother about his progress.

21. The orders therefore require the father to forfeit the usual confidentiality which attends his medical treatment. The orders also create a professional conflict for the psychologist, who is simultaneously appointed by the orders as a treating therapist, owing a therapeutic duty of fidelity to the father, and an expert witness, owing a forensic duty of impartiality to the mother. If further proceedings eventuate, will the therapist then be a compellable witness as the single expert or as the father’s adversarial expert? If the former, why is that so when the mother has been given no say in the choice of psychologist. If the latter, fairness dictates that she then be able to engage her own adversarial expert, leaving open the prospect of further litigation degenerating into a tussle between experts, which eventuality Pt 7.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) strives to avoid.

22. Fourthly, the psychologist’s report must confirm the father’s achievement of these milestones:

    (a)his understanding of his past “significant anger management problems”;

    (b)his understanding that such condition led him to perpetrate “physical and psychological family violence” upon the mother;

    (c)his acceptance of both of the above propositions; and

    (d)his current understanding of the need to “manage his anger so as to eliminate any unacceptable risk” to the child of her being exposed to any of his outbursts of anger while she is spending time with him.

23. As already noted, the orders do not specify how the achievement of any of those objectives will be measured or established. Should the psychologist rely upon the father’s assurances of his acquired understanding, acceptance and contrition, or should the psychologist exercise his own professional judgment? If the former, why should the father’s assurances be accepted as truthful and accurate when the primary judge had already rejected his sworn assurances that he had no need of any further treatment? If the latter, how would such a subjective opinion be formed and by what means could the validity of the opinion be verified if challenged?

24. The orders presume that the psychologist’s opinion will be dispositive of the issue and, hence, govern the expansion of the time the child spends with the father and the dispensation of their professional supervision. But why should a psychologist, chosen by the father, be vested with power to determine when it is safe for the child to spend more unsupervised time with the father? Will not more litigation ensue if the mother doubts the reliability of the psychologist’s opinion and refuses to act upon it – in which event the orders will have encouraged, rather than deterred, further proceedings? In that event, the orders would have caused exactly the mischief the primary judge said they were designed to avoid.

25. All of these questions, which are incapable of being satisfactorily answered, are the manifestation of legal error.

    Legal error

26. Order 4(b) is a parenting order within the meaning of s 64B(2) of the Act because the conditions it imposes are tethered to and qualify the time which the child will spend with the father under the subsequent orders (Oberlin & Infeld (2021) FLC 94-017 at [51]–[52] and [59]), which necessary nexus the primary judge explicitly addressed (at [210]–[212]). Hence, the legal error imposing anterior conditions upon the expansion of the child’s interaction with the father is not the absence of power to impose them.

27. Rather, the orders are beset by two other defects: first, their operation is tantamount to the divestiture of judicial power and the unlawful conferral of such power upon a third party to determine the proper future parenting arrangements for the child; and secondly, the orders are aspirational and unenforceable, not prescriptive and enforceable.

28. Courts exercising jurisdiction under the Act must decide justiciable disputes, by conventional adversarial procedure, between imperfect litigants on the available evidence according to law by making prescriptive and enforceable orders within statutory power to quell the controversy. That is the unique and essential function of judicial power (Rizeq v Western Australia (2017) 262 CLR 1 at [52]; Fencott v Muller (1983) 152 CLR 570 at 608; Harrington v Lowe (1996) 190 CLR 311 at 325). The judicial function cannot be delegated to others, apart from to registrars in limited circumstances, and only then subject to the right of de novo judicial review (Harris v Caladine (1991) 172 CLR 84 at 95, 120–122, 145, 150–151, 160 and 163–164).

29. Courts must take the litigants as they find them when determining causes of action under Pt VII of the Act. Courts are not, and cannot operate like, therapeutic agencies, using litigation as the vehicle to meddle by making aspirational directions about how litigants should improve their parenting capacity in the hope of enhancing their children’s familial experiences.

30. As the High Court of Australia recently said in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 at [19]:

    The normative structure of the Australian legal system is that it is adversarial in nature. … The independence and impartiality of [the court] is protected, in part, by the confining of [the court’s] role to deciding the case on the basis of the evidence which each party elects to tender … The adversarial system … does not permit the judge to engage in “an inquisitorial role in which [the judge] seeks … to remedy the deficiencies in the case on either side”. The judge “hear[s] and determine[s] the issues raised by the parties” and does not “conduct an investigation or examination on behalf of society at large”.

    (Footnotes omitted)

31. In this instance, the primary judge did not confine his role to simply deciding the case on its merits by reference to the evidence which the parties elected to adduce. His Honour tried, but failed, to formulate orders which would remedy the deficiencies in the evidence about the child’s future safety in the father’s care and dictate via the use of an intermediary how the child would be prospectively protected from the risk of harm, undoubtedly hoping that would prove beneficial for the child and the parties. However, orders of this type have been identified and criticised by the Full Court in the past (Re David (1997) FLC 92-776 at 84,575–84,576; Rader & Rader & Ors (No 2) [2019] FamCAFC 227 at [53]).

32. Nevertheless, the father contended in the appeal that there was no devolution of power to the psychologist, submitting this:

    22.It is contended that there is no improper delegation of duty of the Court in the form of the orders. It is not for the therapist to determine if there is no longer an unacceptable risk of harm to the child but for the therapist to determine that the Father has understood and accepted significant anger management problems that led him to perpetrating physical and psychological family violence, and that the Father had gained an understanding of the need to manage his anger …

    23.It is for a clinical psychologist to provide a report and make an assessment regarding the Father’s understanding and acceptance of his anger management and the need to manage his anger, which is contended is within the purview of a clinical psychologist, and for a letter indicating as much being provided. The task for the psychologist is not an assessment of unacceptable risk of harm, because his Honour had undertaken that assessment and found that if the Father was able to do these things then the risk was sufficiently ameliorated …

1. The submissions are rejected. The future provision of the psychological report certifying the father’s understanding and acceptance of certain stipulated concepts (including the elimination of “any unacceptable risk”) marks the point at which the child’s time with the father expands and professional supervision is dispensed with. The operation of Orders 4(b) to 4(g) (as well as Orders 5, 6, 7 and 8) depends exclusively upon the supposedly unimpeachable decision of a third party. The psychologist judges when it is safe for the child to spend time with the father without the safeguards presently considered necessary by the primary judge.

2. Moreover, Order 4(b) is not prescriptive because it neither commands the father to do something nor restrains him from doing anything. It is merely an invitation for the father to participate in further therapy, incentivised by his then greater involvement in the child’s life. But if litigants are genuinely motivated to improve their parenting capacity, they will do so without the need for any order to regulate their decision. On the other hand, if they do not genuinely desire any such improvement, any order intended to cajole such an outcome is likely to be unsuccessful at best and disregarded at worst.

3. Even if the father accepts the invitation within Order 4(b) and fulfils all of the conditions it imposes, there is still no way for him to enforce the ensuing orders enabling the child to spend more expansive unsupervised time with him. If the mother refuses to comply with the extended orders then, in determining any contravention application brought against her by the father, the Court could not conceivably reject her defence of “reasonable excuse” for the breach because she is denied any way of verifying the reliability of the psychologist’s opinion that the father no longer poses any risk of harm to the child. The orders unreasonably compel the mother to accept and act upon the subjective opinion of an unknown therapist chosen by the father.

4. If, as the primary judge found on the available evidence, the father currently poses a risk of harm to the child which could only be satisfactorily attenuated by professional supervision, then his Honour ought have made orders to that effect and no more. While orders for long-term or indefinite supervision are generally discouraged as being undesirable (Slater & Light (2013) 48 Fam LR 573 at 583–584; Champness & Hanson (2009) FLC 93-407 at [209]–[215]; Moose & Moose (2008) FLC 93-375 at [119]; B and B (1993) FLC 92-357 at 79,780), such orders have never been prohibited when the only unpalatable alternative is the complete elimination of a parent from a child’s life (Champness & Hanson at [216]; Re C and J (1996) FLC 92-697 at 83,341–83,342 and 83,351–83,352). Every case must be decided on its own facts (Bielen & Kozma (2022) FLC 94-123 at [67]).

5. If the evidence was insufficiently probative to permit his Honour to confidently make definitive orders regulating the child’s future arrangements beyond the point of supervision, the problem was not solved by making additional orders designed to procure or manufacture the necessary expert evidence to help an unknown psychologist then make the decision about the child’s longer-term future.

6. The evidence in this instance plainly did not satisfy the primary judge that definitive orders could be made to regulate the child’s interaction with the father beyond their initial supervision. His Honour quoted the father’s sworn denial of having “anger management issues”, but found sound recordings adduced in evidence contradicted his evidence (at [103]). The father deposed he completed an “anger management course” before the trial, but said he did not believe it was necessary (at [103]). The evidence also revealed how, in advance of the trial, the father was counselled for nearly five years in respect of “intense anxiety” (at [127]). In cross-examination, the father said he had “worked with two of the best psychologists in Australia” (Transcript 28 October 2021, p.376 line 41) and he had previously engaged in cognitive behavioural therapy and found it helpful (Transcript 28 October 2021, p.377 lines 19–21).

7. The primary judge accepted the mother’s evidence about the father’s perpetration of family violence (at [33] and [183]–[185]), thereby rejecting the father’s denial of it (at [30]). His Honour’s finding coincided with the opinion evidence of the single expert, who said there had been “significant family violence which has been traumatising to the [m]other” (at [140]).

8. In the face of the inculpatory findings made about the father’s perpetration of family violence and the adverse repercussions of it, which entailed rejection of his exculpatory denials, it must inexorably follow that the past therapy and courses in which he engaged were not enlightening for him. One is therefore left to wonder about the utility of making orders for the father to undertake even more therapy in the hope of him experiencing an epiphany by finally understanding and accepting how his “significant anger management problems” adversely affected the mother and why his behaviour is liable to pose an ongoing risk of harm to the child. The willingness the father expressed in cross-examination to engage in more therapy could hardly engender confidence it will be any more successful than the therapy which preceded it.

9. The reasoning behind the orders was explained by the primary judge thus:

   186.For there to be a benefit to [the child] in having a meaningful relationship with both of her parents, there must be circumstances where she is protected from the unacceptable risk of harm in the care of her Father by ongoing supervision of her time with her Father, until such time as the Father has undertaken a sufficient course of cognitive behavioural therapy with a qualified practitioner who is provided with a copy of these Reasons for Judgment, [the single expert’s] report, and the transcript of [the single expert’s] evidence in cross-examination, so as to enable a practitioner to approach the therapy with knowledge of the matters that lead the Court to find an unacceptable risk, as opposed to information received only from the Father’s telling.

   187.There is a benefit to [the child] of having a meaningful relationship with both her parents only in circumstances outlined in the last paragraph, of the Father undertaking the therapy to address his anger management issues. Once that has been successfully completed, and accepted by the Father, I find that the unacceptable risk to [the child] in the unsupervised care of her Father will have been adequately addressed so as to make it in [the child’s] interest to move to unsupervised time with the Father and to progress to an expansion of that time in age and circumstance-appropriate steps.

   …

   212.An order that the Father undertake the appropriate cognitive behaviour therapy will be a condition precedent to progression of [the child’s] time with him and would certainly be appropriately linked to parenting orders.

10. Suffice to say, that explanation does not cure the problems already identified with the orders.

11. If the appealed orders had been confined to simply requiring the child to spend supervised time with the father, then he would always retain the right to return to Court instituting fresh proceedings seeking a variation of the parenting orders (s 65D of the Act), provided he is equipped with enough evidence to demonstrate a material change in circumstances to surmount the threshold test for the revision of the orders and to prove the child should be spending more expansive unsupervised time with him (Rice and Asplund (1979) FLC 90-725).

12. That was the solution posited by the mother and the ICL, who were unable to say on the available evidence when the child’s supervision with the father should cease (at [16] and [18]). They agreed the orders should confine the child to spending only supervised time with the father. While they both proposed a stand-alone order compelling the father to attend a “Men’s Behaviour Change Programme” (at [16] and [18]), as was recommended by the single expert (at [148]), that was an order for which discrete power exists (s 65LA of the Act). In any event, the primary judge did not make such an order.

13. The single expert also felt unable to speculate about the necessary duration of the child’s supervision with the father and recommended that the court review the orders and consider any necessary variation at some later point in time (at [149], [155], [157] and [221]).

14. Significantly, nobody suggested the important decision about when the father ceases posing any material risk of harm to the child and the stepped progression of the child’s future interaction with him begins, should be left to a psychologist chosen exclusively by him.

15. Despite the recommendation of the single expert and the position mutually adopted by the mother and the ICL, the primary judge instead decided to make the conditional final orders on this premise:

    223.This is a matter where there is a need for final orders, not an interim band-aiding and later review, so as to bring certainty into the lives of the parties and, most particularly, [the child]. Those final orders need to address the unacceptable risk to [the child] that I have found is presented by her being in the unsupervised care of her Father by mitigating that risk the appropriate orders until the risk has been addressed overcome by the Father’s engagement in appropriate therapy, completion of that therapy, and full understanding of the different behavioural reactions required him so as not to present such unacceptable risk.

    224.Accordingly, I find that it is preferable to make orders that would be least likely to lead the institution of further proceedings in relation to [the child], by making orders to provide a pathway through to the overcoming of the unacceptable risk. If the Father is prepared to do the work, and if it is so overcome, then it will result in a progression of time between [the child] and her Father that provides her the full opportunity to have a continuously developing meaningful relationship with her Father.

    …

    231.Once a report as described is issued by the Father’s therapist, I find that it will be appropriate to progress [the child’s] time with her Father to unsupervised time on a daytime basis for six months (progressing from four hours to eight hours) and then to commence overnight time progressing at three monthly intervals until it is as sought by the Father in his application – after school Friday until start of school Monday each alternate weekend during school term time and, by some stage increases that pair up to some degree with the time [X] spends with her Father during term time, ultimately half of each school holiday period.

    (Emphasis added)

16. If the father was genuinely “prepared to do the work” planned for him by the primary judge (at [224]), he could have been left alone to prove his intention by his subsequent conduct and to decide for himself when he is readily equipped with the evidence necessary to return and persuade the Court of the need to revise the orders.

17. The deficiencies identified in the orders were, in part, covered by Grounds 3 and 4 in the appeal. Those grounds should succeed.

18. Because the legal errors require that the subject orders be set aside, it is unnecessary to consider the residual grounds of appeal at length. Grounds 1 and 2 are not styled as competent grounds of appeal which lie from discretionary judgments (House v The King (1936) 55 CLR 499 at 504–505). Instead, they assert only that the primary judge failed to “properly” identify and consider risks of harm, which are really no more than complaints that the primary judge did not make the orders the mother wanted for the reasons she advanced, since his Honour plainly did accept and find the father then posed a material risk of harm to the child against which she required protection.

    Disposition

19. The appeal should be allowed.

20. The proceedings should be remitted for re-hearing, but confined to the orders which regulate the time the child will spend with the father (s 64B(2)(b) of the Act).

21. The appealed orders should be set aside, but Orders 4(a) and 9 should be temporarily retained to regulate the child’s supervised time with the father until the first return date of the proceedings before the Federal Circuit and Family Court of Australia (Division 2).

22. Remitter rather than the re-exercise of discretion is required. The trial concluded some 17 months ago and so the evidence then adduced is now stale. While both parties were ready to proffer updated evidence (Allesch v Maunz (2000) 203 CLR 172 at 183 and 191–192), the evidence was voluminous and controversial. Factual disputes over significant issues, requiring resolution by cross-examination of witnesses, are ill-suited to hearing before the Full Court (Vass v Vass (2015) 53 Fam LR 373 at [149]; Surridge & Surridge (2017) FLC 93-757 at [89]; Boyle & Zahur & Anor (2017) FLC 93-814 at [115]).

23. Additionally, despite their readiness with fresh evidence, the parties’ positions were irreconcilable. The mother proposed the re-exercise of discretion, foreshadowing her adoption of a quite different position in respect of the child’s future interaction with the father from that which she proposed at the trial. In contrast, the father only intended to adduce the updated evidence to support his application for interim orders to replace the discharged orders pending the dispute being re-heard by a judge exercising original jurisdiction.

24. The Application in an Appeal filed by the mother on 20 October 2023 concerning such evidence should be formally dismissed. So should the Application in an Appeal filed by the father on 14 November 2023.

25. Given the appeal should succeed due to legal error, partly covered by two of the four grounds of appeal prosecuted by the mother, as sought, the parties and the ICL should have costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) for both the appeal and the re-hearing.

    ALDRIDGE J:

26. I agree with Austin J.

    MCCLELLAND DCJ:

27. I agree with Austin J.

28. Therefore, the orders of the court will be those as proposed by Austin J.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Aldridge & Austin.

Associate:

Dated:       27 November 2023