Lancefield & Lancefield (No 2)
[2020] FamCAFC 312
•22 December 2020
FAMILY COURT OF AUSTRALIA
| LANCEFIELD & LANCEFIELD (NO. 2) | [2020] FamCAFC 312 |
| FAMILY LAW – APPEAL – PARENTING – RESIDENCE – With whom the children should live – Findings that the father was coercive and controlling led to a change in children’s residence – Misstatement of evidence – Errors of fact influenced findings adverse to the father – Children’s views – Consideration of “impressions” of views compared with stated views – Relevant considerations overlooked – Appeal allowed – Certain orders set aside – Matter remitted for rehearing – Costs certificates issued to parties and the Independent Children’s Lawyer. |
| Family Law Act 1975 (Cth) Pt VII Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9 |
| Boensch v Pascoe (2019) 375 ALR 15; [2019] HCA 49 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 |
| APPELLANT: | Mr Lancefield |
| RESPONDENT: | Ms Lancefield |
| INDEPENDENT CHILDREN’S LAWYER: | Acorn Lawyers |
| FILE NUMBER: | WOC | 562 | of | 2018 |
| APPEAL NUMBER: | EAA | 105 | of | 2020 |
| DATE DELIVERED: | 22 December 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney (via video link) |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Aldridge JJ |
| HEARING DATE: | 7 October 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 June 2020 |
| LOWER COURT MNC: | [2020] FCCA 1674 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Levick |
| SOLICITOR FOR THE APPELLANT: | Powe & White Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Wong |
| SOLICITOR FOR THE RESPONDENT: | Rossi Simicic Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr White |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Acorn Lawyers |
Orders
The appeal be allowed in part.
Orders 6, 7, 8, 9, 10, 21, 22, 23 and 25 of the orders dated 29 June 2020 be set aside.
The proceedings be remitted for rehearing by a judge other than the primary judge.
The appeal be otherwise dismissed.
There be no order as to costs.
The Court grants to the appellant a costs certificate pursuant to the provisions of 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 the costs incurred by him in relation to this appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of 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 the costs incurred by her in relation to this appeal.
The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of 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 the Independent Children’s Lawyer in relation to the appeal.
The Court grants to each party and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 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 each party and the Independent Children’s Lawyer in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party and the Independent Children’s Lawyer in relation to the rehearing of these proceedings.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lancefield & Lancefield (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 105 of 2020
File Number: WOC 562 of 2018
| Mr Lancefield |
Appellant
And
| Ms Lancefield |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 24 July 2020, Mr Lancefield (“the father”) appeals from all orders made in relation to the parties’ children on 29 June 2020 pursuant to Pt VII of the Family Law Act 1975 (Cth) (“the Act”). However, as none of the grounds of appeal asserts error in relation to Orders 1, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 24, 26, 27 and 28, and nothing more was said in relation to them, we need to say nothing more other than the appeal from these orders will be dismissed.
The father and Ms Lancefield (“the mother”) have two children namely, X, who at the time of the trial was 11 years of age and Y, who was then nine years of age (“the children”). The effect of the orders was that the parties have equal shared parental responsibility for the children (Order 1), and until 23 December 2020 the children are to live with the father and spend time with the mother some weekends and weekdays, as well as half school holidays (Orders, 2, 3 and 4). On 23 December 2020 the children will move to live with the mother (Order 6). The children will then spend three weekends during school term and half school holidays with the father and on various special occasions (Orders 7, 8 and 10).
The children have been in the primary care of the father since the parties separated in late 2017. Upon separation, the mother, who was mentally unwell, had a period in hospital. She left Town P, New South Wales where the family lived (near Town R, Victoria) and moved in with her parents at Town K, New South Wales. Town K is approximately 1,000 kilometres from Town P and the logistics involved in the children maintaining regular contact with the mother were not easy. After the mother was discharged from hospital, the father did not agree that the children could have time with the mother unless it was supervised. She thought he was unreasonable and there was a stand-off which lasted about four months when the children did not see the mother. More will be said about this and all that needs to be said at this stage is that from mid‑2018, the children have had regular unsupervised contact with their mother. The father and children then moved to Town J, New South Wales, which is closer to the father’s family. Thus the parties still lived quite some distance apart but not as far apart as when the mother moved to Town K.
The primary judge was satisfied that the children could live safely with either of their parents [236] and that the elder child had a clear view against changing residence [239]. However, the younger child wanted to change his primary residence [239]. Because the children would cope living with either parent and they are relatively close in age, their views were given equal weight and thus did not favour either parent [241]. Furthermore, the primary judge was satisfied that each child has an excellent relationship with both their parents [242] and that those “good relationships” allow the children to live or spend significant and substantial time in each household [243].
His Honour examined evidence concerning the mother’s mental health and determined that from 2009 onwards, the mother suffered with a major depressive disorder with co-existing anxiety, which is compounded by intermittent post traumatic symptoms [223]. There was a low to moderate risk of recurrence [223] and, notwithstanding that risk, the mother had the capacity to provide for the children’s physical, educational and general emotional needs [262].
As will be discussed, findings that the father monitored the mother’s private information over a lengthy period and because of this, he was an “unacceptable” role model to the children of “controlling behaviour” [105], [262] were pivotal to the decision to change the children’s living arrangements. In this respect, considerable weight was given to the opinion proffered by the Family Consultant in his second report that (at [188] of the trial reasons):
25.It remains difficult for this Family Report writer to draw any further conclusion with regards to what is optimum for the children’s living arrangements, other than the Court will be faced with the decision as to whether the stability which [the elder child] has spoken about overrides the nurtured environment which is seemingly provided by the mother. There is no doubt that children of [the children’s] ages and circumstances do require a nurturing approach to their development given that the children are still in the pre-pubescent phase of their development and such a parenting approach is likely to be significant in the children’s overall psychosocial development.
26.As indicated in my Family Report of 25th April 2019, the critical factor in the Court’s final determination will be whether the Court finds that the father has demonstrated controlling behaviour with regards to the mother and if it does make this finding, the consequences are likely to have negative implications for the children’s long term relationship with their mother if they continue to reside in the primary [care] of their father.
(Family Report dated 19 May 2020)
In deciding what weight should be given to the risks arising from the mother’s mental health issues, the primary judge continued:
225.Having weighed the risks inherent in [the mother’s] mental health history as best I can, together with the risks to the children’s development and relationship with [the mother], given the likelihood that [the father] will continue to act in the same way as he has done since separation, and also considering the children’s views, the benefit of the existing known stability against the risks inherent in a move, and the probable but not certain benefits of a more nurturing environment at [the mother’s] residence, I have formed the view for the reasons given by [the Family Consultant] and also considering [the mother’s] mental health, that the greatest weight should be given to the risks to the children from [the father’s] established conduct in seeking to exercise sole parental responsibility and to control and minimise [the mother’s] involvement in the children’s lives, and in failing to actively promote their relationship with her.
226.The factors relating to [the father’s] coercion or control and failing to support the children’s relationship with [the mother] support a change of primary residence.
Consistent with those findings and having decided that the father also has the capacity to provide for the children’s physical, educational and general emotional needs, the primary judge said:
262.… [The father’s] inability or unwillingness to facilitate or promote [the children’s] relationship with [the mother], or to allow that relationship to occur without attempting to control it, and the problems inherent in him modelling a controlling domestic relationship with [the mother] through surveillance of her personal electronic communications deeming it as appropriate behaviour, constitutes a deficit in his capacity to provide for their emotional needs.
Alive to the fact that a change of residence was likely to be “particularly difficult” for the elder child [252], the children’s change of residence was deferred for six months so that this child could finish primary school where he was doing well and enjoying his year as Vice Captain. His Honour reasoned:
256.The benefits of stability are not to be treated lightly nor the risks associated with a move underestimated.
257.However, as set out above, given my findings relating to [the father’s] conduct above this factor though supporting no change of residence is outweighed by the factors which support such a change.
The mother seeks to uphold the decision.
An Independent Children’s Lawyer (“ICL”) was appointed to represent the children’s interests and the position of the ICL is that the appeal should be dismissed.
Brief Overview
So as to provide context to the appeal, it is necessary to refer to some brief background facts.
The father was born in 1979.
The mother was born in 1979.
The father’s partner with whom he now resides (“Ms H”) was born in 1984.
The parties are public servants and were based at City A when their relationship commenced in early 2008. The father works at Town J, which is up to a three hour drive north-west of Sydney. He lives with Ms H who also works. The mother works at Town K, which is about a one and a half hour drive south of Sydney. The mother lives with her parents.
X was born in 2009 following which the mother took a period of maternity leave.
The parties married in 2009.
The mother returned to work on a part-time basis in November 2009. X commenced day care two days per week. Whilst on maternity leave, the mother was referred to a Health Service in relation to her mental health. She commenced but did not continue with the service.
Y was born in 2011, following which the mother took a period of maternity leave. The mother returned to work part-time in September 2011. The children attended day care three days per week.
In 2012 the mother was a key witness in a trial against another employee who, the mother said, indecently assaulted her in 2009. The father also gave evidence about what the mother told him. However, the trial miscarried and a retrial was ordered. The mother was not comfortable with the prospect of giving evidence a second time and, she elected not to do so. Thus, the matter was no billed. Following this, the mother commenced seeing a psychologist in Sydney and then a different psychologist in City A.
The elder child started school in 2014 and the younger child went into preschool five days a week.
In April 2015, the family moved to Town W, New South Wales which is near Town R, Victoria. It is uncontroversial that the mother’s mental health deteriorated (in the context of workplace bullying) and, later that year, she took time off work. The mother was assessed and diagnosed with post traumatic stress disorder and major depression. In late 2015, the mother commenced antidepressant medication and at more or less the same time, she began to experience suicidal ideation [17]. The father continued to work full‑time and various young people were employed to assist with the care of the children.
The mother returned to work in mid-2016. At about the same time the father had a period of depression and anxiety.
The parties separated on 11 November 2017. The mother was threatening suicide and although the parties gave different versions about the mother’s decision to seek admission to Town R Hospital, it is uncontentious that she was suicidal and was admitted voluntarily to the mental health unit. The mother was an inpatient for 10 days, following which she transferred to Town S Hospital, where she remained for four days. On 23 November 2017, the mother was discharged from Town S Hospital and admitted to Region T Hospital. The mother remained at Region T Hospital for about three weeks and was discharged on 20 December 2017. Upon discharge, the mother moved in with her parents at Town K.
The mother commenced outpatient treatment in relation to her mental health in January 2018 and began consulting Mr O, who is a psychologist. The mother continues regular psychological therapy with Mr O and takes antidepressant medication.
The parties were unable to agree about the children’s living arrangements and the amount of time and the circumstances under which the children would spend time with the mother. The father had taken the children to see the mother while she was hospitalised. However, upon her being discharged, not only were the parties unable to agree about where the children would live but also whether the children needed to be supervised in the mother’s care. The father said supervision was necessary and the mother said it was not.
When the mother was unable to reach an agreement with the father about the children, on 19 January 2018, she sent the children a letter which is set out below (at [115] of the trial reasons):
Dear X and Y,
I am so sorry I have not written or phoned you for a while. Daddy has made mummy very sad by not allowing me to come up and take you away for some mummy, X and Y time, which is not very grown up or fair for you. Mummy loves you both very much and I need more than just letters or phone calls with you. Daddy has been mean to mummy and that’s why I haven’t called you or come up to see you. Daddy has scared mummy for a little while. I’m scared he will open this letter and he won’t give it to you. I had hoped that your dad would be a little bit more grown up and would allow us to be together now that I am a lot better. I know [the children’s cousin] would have loved to have had you around so you could all play. That won’t happen these school holidays and I’m very sorry for that as I know you were both looking forward to me taking you to Canberra and down the Region T. It should have been an enjoyable time and a very important time for u, especially since mum and dad separated.
My doctors have encouraged me to write this letter and I want you to know just how important I am to be included in your lives. It does not matter what your dad tells you about me, his words are words and I try not to let him get to me. Your mum is much stronger now and quite possibly much stronger than she has ever been. I want to prepare you, but mum has help to get you back. I have listened to what you both want. I won’t stop you from time with your dad or time alone with him when you talk on the phone.
I do want to know how you are going and what you are doing with your time if you write or give me a call, I know you have got this letter and would love that very much. Hope to hear from you soon!!
All my love Mum xxooxx
(As per the original)
As the letter reveals, the mother chose not to telephone the children or see them under supervision. The primary judge said of the letter to the children that it was “entirely inappropriate” [116] and showed the mother to be “in a highly emotional state” with a “reduced parenting capacity” [117]. It supported the father’s concerns about the children spending time with the mother unsupervised in the period following her discharge from hospital [120].
Under the sub‑headings “Did [the father] engage in family violence, or coercive and controlling behaviour” and the sub-heading of “Monitoring of electronic devices and communications during the relationship and post separation”, the mother’s evidence that the father monitored her private information and engaged in controlling and coercive behaviour was discussed. In this regard, it was common ground that in 2011 the father accessed the mother’s emails. They were password protected and the issue was whether the mother gave the father permission.
The next such occurrence arose on 19 February 2018 when, after a period of lying dormant, the family iPad was activated. The iPad operated on the mother’s iTunes account and was part of a family sharing application. The mother’s messages and internet search history popped up, including the use of her phone. The father saw searches which showed that the mother had researched:
79.…
(a) How to tie a hangman’s noose.
(b) How to disappear without a trace;
(c) How to completely change your appearance; and
(d) How to disappear from your husband.
The father was concerned about what he saw and contacted Mr F. Mr F moved quickly and the same day, police visited the mother at her parents’ home to check on her welfare. The mother immediately arranged for her brother to check her devices and asked him to disable family sharing, which she believes he did. On his advice she created a new iTunes account, established a new password and email address which she used from then on. The mother regarded the father having read her information on the iPad as stalking her and intimidating. Thus, she requested that the police obtain an apprehended violence order (“AVO”) against the father. They declined to do so [82].
The mother telephoned the elder child for his birthday in early 2018. This is the first time she had spoken with the children since 9 January 2018. Thereafter, the mother maintained weekly telephone contact.
The father and Ms H deposed to starting an intimate relationship in November 2017 and in April 2018, Ms H began living with the father and the children.
After mediation, the parties entered into a parenting plan dated 13 April 2018 which provided for the children to live with the father and spend time with the mother, one weekend per month on the Saturday and Sunday from 9.00 am to 5.00 pm under supervision. Telephone contact with the children would take place at least twice a week [129]. In accordance with the plan, the children spent time with the mother in Town R in mid-April 2018 in the company of the mother’s brother [130]. This was the first time the children had seen the mother since the father took them to see her a few days before she was discharged from hospital.
During the mediation it became apparent to the mother that the father knew about a relationship she had with a man named Mr V. As she had not said anything about this to the father, the mother deduced that the father found out about it through the iPad. Thus the mother made a second request that police obtain an AVO for her protection. The police declined to do so.
The mother returned to work part-time in May 2018.
With the parties unable to reach agreement about the children’s long term arrangements, the mother commenced proceedings in the Federal Circuit Court of Australia on 8 June 2018. Interim orders were made by consent on 24 July 2018, which provided that:
·the parents have equal shared parental responsibility for the children;
·the children continue living with the father;
·during school terms, the children would have two weekends with the mother, one in Town R and the other in Melbourne;
·during shorter school holidays the children would have 10 nights with the mother (and her parents) and, for one half of the long school holidays in similar circumstances;
·regular communication for the children with the mother at all reasonable times; and
·for the mother to continue to attend and abide the recommendations of her treating mental health practitioners.
Subject to the mother not having the full 10 days at Easter 2019, the children spent time with the mother in accordance with the orders.
In August 2018, the mother returned to work full-time.
The father decided to seek a transfer to the Town J area where he would be closer to his family. He did not tell the mother of his plans and the first she knew this was happening was his letter to her dated 15 January 2019. In the letter, the father advised that he would be commencing a new position in Town J on 20 January 2019 and that he and the children were moving. Although the move meant the children would be living much closer to the mother, she was angered by the father’s failure to consult her. The father’s failure to discuss the issue with the mother was treated by the primary judge as “concerning behaviour” [143] and showed his disregard of the interim order as to parental responsibility [144], [147].
Consistent with the father’s failure to involve the mother in the decision to move the children to Town J, he enrolled the children in Town J Public School without discussing this with the mother first and in similar breach of the orders.
Problems then arose because the children had moved into the New South Wales education system which has different holidays to the Victorian system. The parties each had approved leave for the Easter school holidays, but based on the Victorian system. The father managed to rearrange his, but the mother could not. Thus, she asked the father to agree that the children be with her for 10 days on dates which suited her. The father declined and, although the children had time with the mother, they did not have the full 10 days. Although the father did not breach the interim orders, the primary judge saw him as acting contrary to their spirit and failing to promote the children’s relationship with their mother [161].
The children have continued to live with the father at Town J and to spend time with the mother during school holidays (in accordance with the interim orders) and, during school terms, every third weekend. They have free and easy telephone contact with both their parents.
The Grounds of Appeal
Before considering the grounds in detail, it needs to be understood that this is an appeal against the exercise of discretion to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. A different view by an appellate court only on matters of weight by no means justifies a reversal of a decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519).
No challenge is made to the statement of principles by which the decision was reached, and it is to the application of those principles that the appeal is primarily addressed.
The father presented 10 Grounds of Appeal but abandoned Grounds 4, 8, 9 and 10. This distilled the challenges raised against the orders to assertions that the primary judge erred:
·in finding that the father probably had access to and continued to monitor and collect information from the mother’s iTunes account for at least some time in the months prior to July 2019 (Ground 1);
·in finding that the father failed to support the children’s relationship with the mother (Ground 2);
·in failing to take into account a raft of matters when considering whether the father had supported the children’s relationship with the mother (Ground 3);
·in failing to take into account an observed interaction between the children and their father which was “nurturing” when finding that the children would have a more nurturing environment in the home of the mother (Ground 5);
·in failing to take into account evidence that the mother had exposed the children to her negative views and attitudes towards the father and evidence from the Family Consultant about the potential effect of this on the children (Ground 6); and
·in equating the strongly expressed view by the elder child against changing residence with inferred preference from the younger child in favour of change (Ground 7).
Surveillance and role modelling
By Ground 1, the father challenges findings that he “continued to monitor and collect information from [the mother’s] account until at least some time until the months prior to July 2019” [96]. This finding provided a platform for his Honour to go on to accept that in 2011, the father accessed the mother’s email account without her permission [77], [101]. And, notwithstanding that the primary judge said that it was not necessary to decide that this monitoring and surveillance behaviour amounted to family violence “within the meaning of the Act” [102]–[103], it was “family violence and/or controlling behaviour” [104]. This behaviour was “unacceptable” and treated by the Family Consultant and the primary judge as of “critical importance… in considering where [the] children should primarily reside” [105]. If the findings at [96], which pick up findings made at [94], misconstrue the evidence, a serious issue arises as to related findings concerning the father as a role model [101] and as to where the children should live [262].
Three witnesses gave evidence about the father’s access to the mother’s data and its use, namely the father, the mother and Ms H. In order to understand this challenge, it is helpful to set out the findings which lay at its heart. The primary judge said:
94.[Ms H’s] evidence when considered in its totality is consistent with [the mother’s] case that [the father], with the assistance of [Ms H], had continuing access to and was continuing to monitor [the mother’s] messages and internet searches without her knowledge, and [they] were collecting that information for the purposes of these proceedings, until at least the months leading up to July 2019. If the connection had stopped in February or April 2018 there would have been no need for ongoing monitoring.
95.If this conduct finished in April 2018 it was inappropriate for the reasons given below.
96.However, given [Ms H’s] candid evidence, which I prefer over [the father’s] as there was no reason for [Ms H] to give this evidence if it were not true, I find that on balance [the father] probably had access to and continued to monitor and collect information from [the mother’s] account until at least some time until the months prior to July 2019.
97.The evidence does not establish whether [the father] took some active steps to re-establish family sharing as [the mother] suggests, or whether [the mother] merely failed to properly turn it off when she thought she had disconnected it. [The mother] bears the onus on that issue and has not discharged it. Accordingly, I proceed on the basis that [the mother] failed to properly disconnect family sharing and that [the father] took advantage of that fact to monitor her communications.
The mother agrees that these findings are important and “informed his [Honour’s] reasoning” (mother’s Summary of Argument filed 15 September 2020, paragraph 16). Although the mother’s Summary of Argument does not say how the finding informed the trial reasons, as the submission was made in response to the father’s Summary of Argument, it is inferred that the mother agrees that:
·the finding of a continuation of the monitoring of the mother’s electronic device was an indivisible component of the trial reasons (father’s Summary of Argument filed 28 August 2020, paragraph 7); and
·that finding was seminal to the primary judges’ overall finding that the father engaged in controlling and coercive behaviour which became a dominant issue in the judgment (father’s Summary of Argument filed 28 August 2020, paragraph 8).
Counsel for the mother wrongly categorised the findings in [96] concerning the evidence given by Ms H as inferences drawn from the evidence. As the opening words to [96] demonstrate, the primary judge there accepted evidence purportedly given by her. Counsel for the father was able to demonstrate that Ms H did not give evidence that the father “had continuing access to and was continuing to monitor [the mother’s] messages and internet searches without her knowledge… until at least the months leading up to July 2019” [94].
Turning then to the evidence. As we have already mentioned, the family iPad was connected to the mother’s iTunes account and thus, the iPad mirrored the use the mother made of those accounts on her mobile phone. Whatever might have been the situation with the iPad before separation, the issue in the case was whether, post‑separation, the father used the iPad to stalk and monitor the mother. And, if he did, what this said about his attitude towards the mother and his behaviour as a role model to the children.
It is uncontroversial that the mother did not raise the father’s access to and use of the iPad until after he informed Mr F of what he saw on it on 19 February 2018. Contrary to the trenchant criticisms made by counsel for the mother and the ICL that the father failed to disclose that he accessed the data, the inconvenient truth is that he did disclose it, and the disclosure was made almost immediately after the iPad was switched on and the mother’s information popped up.
As the primary judge said in a slightly different context, given the mother’s history of threats of suicide, it was reasonable for the father to be concerned about what the mother’s searches suggested about her mental health and the risk she might abscond with the children [118]. It should be observed that his Honour appears to have overlooked messages between the mother and Mr V of the mother’s discussion about how they might snatch the children (Transcript 6 September 2019, p.113 line 7 to p.114 line 6). In any event, his Honour should have gone on to find that the father acted promptly, appropriately and with obvious concern for the mother’s welfare when he contacted Mr F and reported the most troubling aspects of the searches. And, that the father knew that by disclosing those matters to Mr F, the mother would be made aware that the father could see on the iPad how she used her mobile phone. Which is precisely what occurred.
It will be recalled that the mother, with her brother’s assistance, immediately disabled family sharing on her devices and created a new iTunes account and email address which were protected by a new password. This was all completed in February 2018. According to the father, it follows that the finding that he continued to monitor the mother’s messages and internet usage until the months leading up to July 2019 was not available.
As far as the mother knew, the father could no longer access her private information via the iPad. However, the mother gave evidence that on 20 June 2019, in a phone call with X, the child said to her (at [85] of the trial reasons):
…“Dad’s reading Mr V’s text messages between you and him.” I then heard [the father] yell at [the elder child] “Mind your own business!” I am concerned that [the father] has access to the text messages between Mr V and I and also that he is reading them in the presence of the children and they are aware of this.
(As per the original)
The father gave evidence that there was a folder on the father’s laptop called “Messages from [Mr V]”, but that the child could not see what the father was reading and the texts themselves were not open. He denied yelling.
It is uncontroversial that the mother had a brief relationship with Mr V in about January 2018. The mother did not tell the father about this relationship and, it is understood that the father learned about Mr V via the iPad.
Again, there was no challenge to the father’s evidence that he transferred the data/messages from the iPad which were saved onto his laptop. He did this because he “thought there may have been some evidence in there for the proceedings” (Transcript 20 February 2020, p.144 lines 36–37); which there was.
As to when the father’s access to the mother’s phone via the iPad ceased, as the primary judge recorded at [88], under cross-examination by counsel for the mother, the father said:
Do you still have access to [the mother’s] phone through the Family Sharing app or any other mechanism?---No.
When did that cease?---Months and months ago, I believe, if not over a year – a year ago. It – it ceased, I believe, about the time that the welfare check was done.
Well, the welfare check was done in February 2018; we’re two years on from that. I suggest to you that you’ve had access to her electronic devices after that time?---No.
How long after you became aware of the searches - - -
HIS HONOUR: Can I ..... say – what date range do the messages between the mother and [Mr V] that you had on your, or have on your, computer relate to?---Your Honour, from memory, I know they went through till about April, as I said, when the welfare check was done, and it was probably a couple of months before that. The iPad was flat and has been for some time – the boys don’t use it – and then we plugged it in, and these were starting to pop-up.
(Transcript 20 February 2020, p.146 line 40 to p.147 line 8)
Notwithstanding the confusion in the answer, the gist of the father’s evidence is that access to the mother’s messages and searches stopped when the welfare check was done. Although the father mistakenly thought this was about April 2018, it was established that the welfare check took place in February 2018.
Ms H’s evidence is extracted at [91] of the trial reasons. Her evidence established that:
·she was present when the father transferred the data from the iPad to his laptop;
·the transfer took place in or before July 2019 and in preparation for the trial; and
·at some stage Ms H put a new pin code on the iPad to prevent the father looking at the mother’s messages and internet searches.
The evidence as extracted at [91] continued:
And it’s not only those messages – well, I withdraw that. At the time you went to transfer the messages and in the months leading up to it, you were continuing to monitor what was on that iPad, weren’t you?---From time to time, yes.
How is – well, I withdraw that. Can I ask, do you still have access to that laptop?---The laptop?
Sorry, I withdraw that. The iPad?---Yes. I do.
And you’re still getting [the mother’s] messages and emails and internet searches up on there, aren’t you?---No.
When did that stop?---When she disconnected it from her end.
(Transcript 20 February 2020, p.186 lines 35–47)
The primary judge said this witness gave evidence as summarised at [94]. Those findings misstate the evidence and provide no foundation for the findings the primary judge went on to make at [96] and at [97].
The primary judge should have found that the father retained copies of the material that popped up on 19 February 2018 and that after the mother changed her iTunes account, password and email address in February 2018, there was no evidence that any new information of the mother’s appeared on the iPad. In this regard it should be noted that the mother’s relationship with Mr V was “brief” and there was no evidence that she was still seeing him in April 2018.
The effect of the mistaken findings as to Ms H’s evidence is that not only was the primary judge satisfied that the father engaged in coercive and controlling behaviour but his Honour also recognised a pattern of behaviour in the father accessing the mother’s private emails which enabled a finding that the father accessed the mother’s emails and electronic searches during their relationship without permission [101].
The approach to whether this “stalking” behaviour is family violence is difficult to follow and it appears that although the conduct was categorised as family violence, it was not necessary to specifically make that finding. Particularly given the parties’ occupations and their agreement that an order for equal shared parental responsibility could be made. However, the gravamen of [104]–[105] and [268] is that the conduct was coercive and controlling behaviour and amounted to family violence. Reference has already been made to [226] of the trial reasons which show how important the findings of “coercion or control” were to the decision to remove the children from the father’s primary care. It is a recurrent theme throughout the trial reasons and it does not overstate the point to say it is pivotal to the outcome.
Counsel for the mother and the ICL point to other findings which support the finding as to controlling behaviour by the father. For example, making decisions for the children without consulting the mother qua the move to Town J, their enrolment at school once there and engaging a psychologist for the elder child. However, these submissions fail to recognise that this behaviour which was ultimately regarded as unsupportive of the mother’s relationship with the children is very different behaviour to the “stalking” behaviour under discussion. The unsupportive behaviour was not treated as family violence and it did not inform the important findings about the deficit in the father’s capacity to meet the children’s emotional needs and as a role model for the children [262].
We agree with counsel for the father’s submissions as to the significance of these findings in paragraphs 7 and 8 of his Summary of Argument and that this Ground is established. It is sufficiently significant to the decision to change the children’s living arrangements that those orders should be set aside.
The father’s support for the children’s relationship with the mother
The question of whether the father failed to actively promote the children’s relationship with the mother had been posed earlier and was answered at [174]. Grounds 2 and 3 were argued together and focus on the finding at [174] that the father “has failed to promote the relationship between the children and [the mother]”. The father contends that the primary judge should have found that “[i]n the circumstances where the mother had suffered significant mental health issues at the time of separation the father has appropriately supported the relationship between the children and their mother (father’s Summary of Argument filed 28 August 2020, paragraph 31). Furthermore, in forming that critical view of the father’s approach to the children’s relationship with the mother, the primary judge failed to take into account evidence which established the father’s support for those relationships.
The primary judge made a raft of findings critical of the father’s actions in relation to the mother’s involvement in the children’s lives. These include:
·the father’s instruction to Town J Public School that the mother “have restricted contact with the school” was done to limit her involvement in the children’s education and that aspect of their lives [155];
·that in relation to the Easter 2019 school holidays, the father should have been more flexible and, in refusing to accommodate the mother’s request for 10 days with the children when she had leave, the father failed to promote the children’s relationship with the mother [161];
·enrolling the children at Town J Public School without discussing this with the mother beforehand showed the father acting unilaterally in respect of a significant matter of parental responsibility and with disregard for the mother’s position [166]; and
·the father making arrangements for the elder child to see a psychologist in early 2020 without raising the issue with the mother first, forms part of an ongoing pattern of behaving as though he has sole parental responsibility for the children [167]–[168].
There can be no doubt that these undisturbed findings all support the conclusion reached at [174]–[175] and as to the father’s control and lack of regard for the children’s relationship with the mother.
However, the question to be answered, is whether the primary judge, as is asserted by the father, failed to take into account important evidence which demonstrated his continued support for the children’s relationship with the mother. If that be established, the contention is that the conclusions reached at [174]–[175] and to the contrary cannot stand.
At paragraph 39 of the father’s Summary of Argument, there is a list of factors which it is said the primary judge failed to take into account on this point. Stated broadly, they include that:
·between March 2018 and June 2018, the father facilitated regular FaceTime and telephone calls between the children and the mother;
·the orders as to time were reached by agreement;
·the elder child had his own phone, both children had free access to the father’s mobile phone and the children and the mother were able to speak to one another whenever they wished;
·the father agreed to additional time for the children beyond that provided for in the parenting plan;
·the children had been in the father’s primary care for just shy of three years and they had, and continue to have, an excellent relationship with the mother; and
·the children had contact with the mother as the parents agreed.
The mother concedes that these factors were not obviously taken into account in reaching the negative views about the father’s lack of support for the children’s relationship with the mother and as expressed at [174]–[175]. However, it is argued that these matters are insufficient to offset the objective seriousness of the unchallenged findings recorded above. Furthermore, that the primary judge was not asked to “take the granular approach” urged in the appeal (mother’s Summary of Argument filed 15 September 2020, paragraph 23). The ICL contends that the finding that the father failed to support the mother’s relationship with the children should not be construed as meaning that he failed at all possible times and in all possible ways. So much is true, but nonetheless both sets of submissions demand consideration of how the primary judge took into account what the father did to support the mother’s relationship with the children.
The facts extracted from paragraph 39 of the father’s Summary of Argument are not contentious but nor was it necessary for each and every one to feature in the trial reasons. However, in assessing the father’s support, or lack thereof for the mother’s relationship with the children, there can be no reasonable disagreement that the second, third, fourth and fifth items on the list were relevant and important considerations. The point being that on this matter, the conclusion required a comparison of the important factors, weighing those which supported the finding as made against those which pointed to a different conclusion.
We agree with the submission by the father that the fact that the children had been in the father’s primary care for just shy of three years, the children had excellent relationships with the mother and spent time with her as the parties agreed, was highly relevant to an assessment of his support for the mother’s relationships with the children and role in their lives. This is not a matter of the approach taken to the various factors or weight, but whether relevant considerations were overlooked. There is no doubt that the primary judge understood the length of time the children lived with the father and the steps he took to facilitate contact between the children and the mother. However, these matters seem to have been compartmentalised, with the former treated as relevant to changing the status quo [217] and the latter as part of the factual matrix which counted against a finding that the father may have sought to alienate the mother from the children [192]. Restricting the relevance of these matters in this fashion skewed the assessment of the father’s support for the children’s relationship with the mother and means that the primary judge failed to take into account relevant considerations.
Although we agree that Grounds 2 and 3 are established, given that there will be a rehearing, we do not think it is appropriate that we adopt the finding proposed at paragraph 31 of the father’s Summary of Argument.
The children’s views
The gravamen of this challenge is that the primary judge erred in equating the elder child’s clearly expressed view against leaving his father’s primary care with the unstated view attributed to the younger child in favour of change. Furthermore, that as the younger child had not said he wanted to live with the mother, the primary judge erred in finding that “[the younger child’s] view is that he does wish to change primary residence” [213].
Although the mother and the ICL resist this challenge, it is noteworthy that neither of them suggests that the younger child said that he wanted to live with the mother.
The Family Consultant interviewed the children twice and on both occasions he sought to establish whether the children had preferred outcomes. In relation to the elder child, the primary judge said of his interviews with the Family Consultant that:
208.[The elder child] told [the Family Consultant] that he was proud to be house Vice-Captain at Town J Public School, stated that he was “happy the way it is” in terms of his living arrangements and wasn’t “in the mood for moving”. When asked why this was his position [he] “indicated because of the moves that he has already had.” If the parties lived close together [the elder child] would like an equal time arrangement. In response to questions from Senior Counsel to [the father], [the Family Consultant] stated that he thought that [the elder child’s] view was “clear” rather than “strong”.
In relation to the younger child, as the primary judge records at [209], in the second round of interviews, he told the Family Consultant that “I miss mum” and “we [rarely] see mum”. The Family Consultant said that in his view, the younger child’s preference is thus to live with the mother.
Contrary to the submission made on behalf of the father, it was open to the primary judge to accept the Family Consultant’s opinion concerning the younger child’s unstated preference. However, given the emphasis that was placed on the children’s views in the trial, it was important for the primary judge to consider whether it was significant that one child had a clearly expressed view that had been maintained across both sets of interviews and had endured for something like a year, compared to the Family Consultant’s impression about the younger child’s current unstated preference. The term “impression” is used advisedly and reflects the Family Consultant’s evidence about the nature of his opinion as to the children’s views.
It was no less important that when deciding how that evidence should be evaluated, consideration was given to the Family Consultant’s opinion that there was no suggestion the children were “more connected” to “either the father or the mother” (Transcript 21 February 2020, p.249 line 34). Also that the younger child, in his interviews with the Family Consultant, “scored both parents equally” (Family Report dated 25 April 2019, paragraph 106) and that in the observation session with the father “both children were relaxed and happy” and the father was seen to be “warm and nurturing with both children” (Family Report dated 25 April 2019, paragraph 109).
The primary judge had already decided that the mother’s case, that the father engaged in coercive and controlling behaviour and failed to promote the children’s relationship with her was made out, which probably explains why these additional matters were not considered when deciding the weight attributed to the Family Consultant’s “impression” of the younger child’s views and to treat both children’s views equally. Not only did these matters require consideration, but as counsel for the father said, his Honour’s decision to place greatest weight on those other factors, underpins the importance of the findings raised in relation to controlling behaviour and the significance of the challenges raised in Grounds 1, 2 and 3.
Ground 7 has been made out.
The remaining grounds
The other challenges raised against the orders are thus irrelevant to the disposition of the appeal. Having regard to the time pressures in the case and in the interests of judicial economy, the remaining grounds of appeal will not be addressed (Boensch v Pascoe (2019) 375 ALR 15 at [8]).
Conclusion and Costs
The father has established appealable error and the appeal will be allowed and various of the orders will be set aside. Some of the orders relate to the past and can be left undisturbed. The arrangements for the current school holidays say nothing about where the children live once school resumes and can continue. It is the orders which go to the children’s primary living arrangements and matters related thereto which should be set aside.
The parties agree that in those circumstances, there is no option other than to remit the proceedings for rehearing. It was common ground that in these circumstances an order for costs could not be justified. We agree and we also agree that the parties and the ICL should receive costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and rehearing.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) delivered on 22 December 2020.
Associate:
Date: 22 December 2020
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