Lane & Nichols
[2016] FamCAFC 234
•25 November 2016
FAMILY COURT OF AUSTRALIA
| LANE & NICHOLS | [2016] FamCAFC 234 |
| FAMILY LAW – APPEAL – CHILDREN – INTERIM PARENTING ORDERS – where the mother appeals against interim orders for the child to spend limited time with the father supervised at a contact centre – where disputed issues of fact surrounding allegations of sexual abuse of child by the father unable to be resolved in interim proceedings – mother alleging abuse and father contending allegations fabricated – where interim issue for determination whether even limited time supervised at a contact centre posed any unacceptable risk to the child – whether any procedural unfairness or inconsistency in approach of the primary judge in the conduct and outcome of two interim hearings – whether primary judge misapprehended or failed to give sufficient weight to evidence of a sexual assault counsellor and a family consultant – where no procedural unfairness or inconsistency on the part of the primary judge established – where subject evidence of sexual assault counsellor and family consultant did not meet the requirements of s 55 of the Evidence Act 1995 (Cth) – where no weight could legitimately be given to such evidence – primary judge did not misapprehend the subject evidence but even if such an error were established no substantial miscarriage could be founded upon the subject evidence – where primary judge legitimately placed weight upon the family consultant’s observations in the report process in determining the question of unacceptable risk – no error established – reasons given by primary judge for orders not inadequate – appeal dismissed. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Federal Court of Australia Act 1976 (Cth) |
| Australian Coal and Shale Employees’ Federation and Anor v Commonwealth and Ors (1953) 94 CLR 621 Banks & Banks (2015) FLC 93-637 Balenzuela v De Gail (1959) 101 CLR 226 CDJ v VAJ (1998) 197 CLR 172 Chamberlain v The Queen [No 2] (1984) 153 CLR 521 Conway v The Queen (2002) 209 CLR 203 Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd & Penrith Pastoral Co Pty Ltd (1983) 3 NSWLR 378 Makita (Australia) Pty Ltd v Sprowles (2001) NSWLR 705 Metwally v University of Wollongong (1985) 60 ALR 68 |
| APPELLANT: | Ms Lane |
| RESPONDENT: | Mr Nichols |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Lismore Family Law |
| FILE NUMBER: | LEC | 562 | of | 2015 |
| APPEAL NUMBER: | NA | 44 | of | 2016 |
| DATE DELIVERED: | 25 November 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Ainslie-Wallace, Kent & Cronin JJ |
| HEARING DATE: | 7 November 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 10 June 2016 |
| LOWER COURT MNC: | [2016] FCCA 1506 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Linklater-Steele |
| SOLICITOR FOR THE APPELLANT: | O’Reilly & Sochacki Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Galloway |
| SOLICITOR FOR THE RESPONDENT: | Crane Paskins Law | |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms McDiarmid | |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Lismore Family Law | |
Orders
The appeal against the orders of Judge L. Turner made on 10 June 2016 is dismissed.
There be no order as to costs of the appeal.
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 Lane & Nichols 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 BRISBANE |
Appeal Number: NA 44 of 2016
File Number: LEC 562 of 2015
| Ms Lane |
Appellant
And
| Mr Nichols |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Serious and disputed issues of fact surrounding allegations of sexual abuse of the subject child, Y (born in 2011), incapable of resolution in circumscribed interim proceedings, pervaded the determination by Judge L. Turner on 10 June 2016 of interim parenting orders to operate pending a trial, foreshadowed to occur in June 2017.
The child’s mother, Ms Lane, advanced a case including that the child, by words and conduct, had made disclosures to the mother and others of the father having sexually abused the child.
The child’s father, Mr Nichols, expressed adamant denials of any inappropriate conduct whatsoever on his part. The father advanced a case including that any statements or disclosures of the child were the product of coaching of the child by the mother to make false statements or disclosures in the context of, amongst other things, financial issues between the parents.
The sole issue which crystallised for the primary judge’s determination at the conclusion of the interim proceedings was whether or not there should be an interim order, pending a trial about 12 months hence, for the child to spend weekly time with the father, supervised at a contact centre.
The father sought that order. The mother opposed it. As will be further discussed, the Independent Children’s Lawyer appointed to independently represent the child’s interests in the proceedings (“the ICL”) ultimately made no submission to the primary judge about whether or not that order ought be made.
The primary judge made interim orders on 10 June 2016 for weekly time of two hours supervised at a contact centre.
The mother appeals against those orders. The father opposes the appeal. On appeal, the ICL purports to support the mother’s appeal notwithstanding the way in which the ICL’s case was conducted before the primary judge.
Central issues on appeal
Seven grounds of appeal are contained in the mother’s notice of appeal filed on 8 July 2016. However, the gravamen of the mother’s complaints on appeal, in the manner in which the appeal was argued, is that the primary judge in making orders for supervised time, misapprehended, or failed to give appropriate weight to, the evidence of the child’s counsellor Ms F, and a family consultant, concerning the risk of psychological harm posed to the child by spending even supervised time with the father.
Part of the error on the part of the primary judge contended for on appeal, is that the primary judge failed to provide adequate reasons for ordering supervised time in the face of that evidence concerning potential risk to the child said to be posed by even supervised time with the father.
Interim proceedings – interim hearings on 2 February 2016 and 6 June 2016
Before dealing with the mother’s central complaints on appeal, it is necessary that we engage with some of the oral arguments of counsel for the mother directed to the feature that two interim hearings occurred.
The interim proceedings comprised two interim hearings. The first occurred on 2 February 2016 in respect of which the primary judge delivered orders and extemporaneous reasons for judgment. The second hearing occurred on 6 June 2016, in respect of which the primary judge made the subject orders on 10 June 2016 and delivered further reasons on 21 June 2016.
At the outset of his oral argument of the appeal counsel for the mother advanced propositions seemingly as complaints about procedural fairness, or about the manner in which the second of the interim hearings which took place on 6 June 2016 proceeded. It appeared to be at least suggested that the mother and/or her legal representative on that occasion may not have anticipated an interim hearing proceeding.
As counsel’s argument developed it appeared that the complaint about the second hearing on 6 June 2016 was about asserted failures of the primary judge to approach the issues consistently with the approach her Honour had taken in respect of the hearing on 2 February 2016, as reflected in her Honour’s orders and reasons then delivered.
There was important context to the interim hearing on 2 February 2016, given the sole issue which ultimately fell for determination in the interim proceedings.
Taken from, and referenced to, paragraphs of her Honour’s reasons for judgment delivered on 2 February 2016, as at the time of the February hearing:
a)From the time of the parties’ separation in September 2013 (when the child had just turned two years of age) the child had a restricted and irregular relationship with the father, consisting of daytime visits only, and even that time ceased in January 2015 (when the child was three and a half years of age) with the onset of the allegations of sexual abuse (at [36(a)]);
b)The child had not seen her father since January 2015 (at [36(b)]) and telephone contact also ceased in October 2015 (at [36(c)]);
c)The child did not have a meaningful relationship with the father (at [36(d)]);
d)The child’s sexual abuse counsellor, one Ms F had formed a strong view that there has been sexual abuse of the child by the father (at [36(f)]); and Ms F reported that the child is “angry” with the father (at [36(h)]); and Ms F raised concerns as to the negative impact upon the child of reintroduction of even supervised time with the father (at [36(g)]).
As to the allegations of sexual abuse the primary judge recorded the following chronology of events at [14] of her Honour’s reasons:
14(g)In February 2015 the child made several disclosures to the mother which the mother interpreted as sexual in nature regarding the father’s touching of the child’s vagina.
14(h)The disclosures were reported to the Department of Community Services (DOCS) who then referred the disclosures to the Joint Investigative Response Team (JIRT).
…
14(j)In February 2015 JIRT noted that no disclosures had been made by the child as to the sexual abuse by the father and the investigation was therefore closed.
14(k)In March 2015 the child and the mother were referred by JIRT to the [V] Sexual Assault Service (a government service) as “[the mother] was highly anxious about the situation and requires counselling and support” and “to engage [the child] around protective measures”.
…
14(m)From June 2015 until January 2016 the child and the mother attended six sessions with Ms [F] who is the sexual assault counsellor at the sexual assault service.
14(n)On 18 September 2015 the child made disclosures to Ms [F] of a sexual nature.
14(o) From that date forward the nature of the counselling changed.
14(p)This was subsequently reported to DOCS who then again involved JIRT.
14(q)In October 2015 JIRT and DOCS interviewed the child at the day care.
14(r)In October 2015 it was determined by JIRT that it was developmentally and procedurally inappropriate for [the child] to be engaged in sexual assault counselling.
14(s)In November 2015 the father attended an interview with JIRT whereby the father was informed for the first time of the disclosures made by the child.
14(t)In November 2015 JIRT closed their file on the child as the interview and assessment process has been inconclusive in determining sexual harm in respect to the child.
…
14(w)In November 2015 the mother filed a Notice of Risk alleging that the father had sexually abused the child and the father had been violent towards the mother in front of the child.
…
14(z)In January 2016 the father filed a Notice of Risk raising concerns to [sic] the mother’s propensity for violence and the mother’s mental health.
(emphasis as in original)
Also at [14(aa)] of her reasons the primary judge recorded that on the day of that interim hearing Ms F produced a short written report which contained the following:
i) “My recommendation would be for no contact at this point with the father in order to allow [the child] to mature further in a safe environment with her mother.”
ii) “Based on the information provided in therapy by both [the child] and her mother, the worker believes that contact now with her father may traumatise her.”
iii) “If [the child] can feel safe until she has greater language skills, she may reach a developmental stage where her disclosures of sexual abuse have enough context to satisfy legal requirements.”
iv) “If this is not possible, any contact with her father should be in a supervised contact centre in order to protect [the child] as much as possible from possible grooming behaviours by her father.”
(emphasis as in original)
The primary judge recorded a finding at [37] that it was in the child’s best interests “on an interim basis for time not to recommence between the father and the child until such time as an ICL has been appointed and a family report has been prepared.”
At [38] of the reasons the primary judge recorded:
38. I make this finding based on the following:-
a)The child has not seen the father for over 12 months and before that had only spent limited time with the father. How the child is going to react to spending time with the father after having such a long period of time in the sole care of the mother is unknown.
b)Whether there is any basis for the allegations of sexual abuse, whether there is any basis for Ms [F’s] belief that sexual abuse has occurred, whether the child’s disclosures have been true, exaggerated or coached, the reality is that the child over the last 12 months has been involved in processes surrounding the child and her relationship with the father. The impact of these processes on the child and how it might play out if the child’s time is now reinstated with the father is an unknown.
c)The child has expressed anger to Ms [F] in respect to the father. How to then reinstate the child’s time with the father if these feelings exist is also an unknown.
(emphases added)
At [39] and [40] the primary judge recorded:
39.Before consideration can be given to reinstating time, the Court would be greatly assisted by the following:-
a) The appointment of an ICL; and
b)Preparation of a family report which can then address if it is in the best interests of the child for time to resume with the father and, if so, how it would be best for that time to resume.
40.After the release of the family report, then consideration can be given to the father’s application for supervised time.
Self-evidently the primary judge was concerned, legitimately, with the potential reaction of the child to seeing or spending time with the father not least because the child had not seen her father for more than 12 months (since she was three and half years of age) and, according to Ms F, the child was “angry” with the father.
It is clear that the primary judge did not embrace Ms F’s assessment as to risk because if she had, there could be no utility in a family report and the further listing of an interim hearing. For reasons shortly to be discussed her Honour was correct to take this approach.
Consequently, as will be further discussed, the observations later recorded by the family consultant of the child’s interaction with the father when that occurred on 19 May 2016 for the purpose of the family consultant’s report, as contained in that report dated 23 May 2016, was fundamentally important evidence considered by the primary judge in the further hearing which took place on 6 June 2016.
As will be further discussed it was legitimate, in the context of a circumscribed interim hearing, for the primary judge to take this approach notwithstanding that Ms F was cross-examined at the February hearing. That is, it was not incumbent upon the primary judge to express concluded findings, one way or the other, as to Ms F’s evidence given that the evidence overall was not tested. For example, neither the mother nor the father were cross-examined about centrally disputed and fundamental issues of fact surrounding the allegations. Ms F’s short written report made reference to, but did not particularise the specific content of the “information provided in therapy by both [the child] and her mother” upon which she said she based her views. Without full elucidation by Ms F as to the “information” she referred to, and consideration of all circumstances relevant to the imparting of that information, and the testing of the mother (and perhaps other witnesses) in cross-examination to consider its accuracy, legitimate concluded findings were unattainable.
With respect to any complaint about the procedure adopted by the primary judge, the orders made on 2 February 2016, apart from orders for a family report to be prepared pursuant to s 62G of the Family Law Act 1975 (Cth) (“the Act”) and for the appointment of an ICL, included orders (2) and (13) in these terms:
2.That the father’s interim application for spending time with the child be adjourned for hearing until after the appointment of an Independent Children’s Lawyer and the preparation of a Family Report.
13.That this matter be adjourned for Mention/possible Interim Hearing at 9:30am on 6 June 2016 in the Federal Circuit Court of Australia in Lismore.
(emphasis as in original)
Given those orders, no party could have legitimately been in any doubt about the prospect of the father’s then adjourned application being the subject of a further interim hearing on 6 June 2016. As the transcript of what occurred on 6 June 2016 confirms, no party then opposed, or sought an adjournment of, the further hearing which took place on that occasion. Moreover, the transcript confirms that on 6 June 2016 the matter was first mentioned before the primary judge at 11:18 am. That mention concluded at 11:25 am with the primary judge confirming that an interim hearing would be conducted at 3:00 pm that day, which is what occurred.
We do not perceive any irregularity in the conduct by the primary judge of the interim hearings referred to.
Moreover, it is clear from the transcript of what occurred on 6 June 2016 that at the mention of the matter in the morning the primary judge made specific reference to her earlier judgment and to the recommendations of the family consultant as both were referred to and discussed in the context of the primary judge considering the further interim hearing that was to occur that day.
We do not find any substance in the submissions by counsel for the mother, if these be properly interpreted as complaints about procedural fairness or complaints about the approach taken by the primary judge to the conduct of the interim proceedings.
Position of the ICL
Review of the transcript of what occurred in the interim hearing on 6 June 2016 gives rise to a question about the legitimacy of the ICL’s active support of the mother’s appeal, given the manner in which the ICL’s case was conducted before the primary judge.
The transcript confirms that early in the hearing, after the primary judge had clarified with the mother’s legal representative what orders the mother sought, there was then this exchange between her Honour and the ICL’s representative:
HER HONOUR: And the order by the independent children’s lawyer, if any?
MS DUNBAR: Your Honour, none at this stage.
HER HONOUR: So you’re not holding a position in any ---
MS DUNBAR: Your Honour, I do apologise. I have ---
HER HONOUR: I know you don’t have the conduct of the matter normally.
MS DUNBAR: Thank you, your Honour. My only position would be whether or not this matter is suitable to go to the Magellan list or to the Family Court, given the allegations of what has occurred. I understand there have been ---
HER HONOUR: Well, if the parties want to have a two year delay, I can send them to the Family Court. But I think that would be ridiculous, given how far we have got and how old this matter is.
MS DUNBAR: Your Honour, the other alternative would be in some other courts, they conduct short final hearings in relation to risk issues. I am not sure if that’s something your Honour does or is prepared to do.
HER HONOUR: All right. All right, thank you. I will take submissions. Thank you.
Thereafter, following submissions from each of counsel for the father and the legal representative for the mother respectively on their competing proposals, the primary judge afforded the ICL’s representative a further opportunity to make submissions, which was not availed of (see transcript of proceedings 6 June 2016 page 21 lines 10 to 15).
That the primary judge was led by the ICL’s representative to understand that the ICL (unhelpfully it must be observed) had “no position” as to orders one way or the other is reflected in the reasons delivered by the primary judge on 21 June 2016. At [5] to [8] of those reasons the primary judge records the orders sought by each party. As to the ICL the primary judge records at [8]:
The ICL is voicing no opinion, although has again raised the issue of the matter being transferred to the Family Court, an issue that was already canvassed and dealt with in the February 2016 interim judgment.
With limited exceptions of no relevance here, a party to litigation is, on appeal, bound by the party’s manner of conduct of the case at first instance. That principle usually operates to deny to such a party the raising of arguments or contentions on appeal which were not advanced at first instance (see Metwally v University of Wollongong (1985) 60 ALR 68).
Whilst no formal objection was taken to the ICL advancing written submissions and oral argument in support of the mother’s appeal, and those submissions were received by us, it is obviously relevant to the central contentions now joined in by the ICL that the primary judge fell into error, that the ICL appointed to independently represent the child’s interests in the proceedings (and having the statutory obligations expressed in s 68LA of the Act) mounted no active opposition to the orders sought by the father, or those ultimately made by the primary judge.
Moreover, in the course of argument of the appeal, the ICL adopted the position (remarkable in view of the ICL’s erstwhile support of the appeal), that in the event that this Court were to re-exercise the discretion the ICL would not seek to be heard in opposition to the making by this Court of precisely the same orders as were made by the primary judge. This appeared to have resulted from the ICL’s acknowledgement of the difficulties with the evidence of Ms F and the family consultant, now to be discussed.
Evidence of Ms F and of the family consultant
Central to the mother’s complaints on appeal as to asserted error on the part of the primary judge is the evidence of the family consultant. As will be discussed, the opinions expressed by the family consultant concerning the allegations of sexual abuse are founded in large part, if not wholly, upon the opinions expressed by the sexual assault counsellor Ms F. Thus a useful starting point is to examine the evidence of Ms F.
In the course of argument of this appeal we raised with counsel for each of the mother and the ICL questions as to the admissibility of, and alternatively the weight which the primary judge could legitimately place upon, the expressed opinions of each of Ms F and of the family consultant.
Whilst s 69ZT(1) of the Act excludes the applicability of certain provisions of the Evidence Act 1995 (Cth) (“the EA”) to child-related proceedings (unless under s 69ZT(3) the Court decides to apply them); and Part 3.3 of the EA dealing with opinion evidence is one of the parts so excluded; s 69ZT(2) draws emphasis to the weight to be applied to evidence admitted as a consequence of, inter alia, Part 3.3 of the EA not applying.
More fundamentally, s 69ZT(1) does not exclude s 55 of the EA containing the statutory definition of relevant evidence. Section 55(1) provides:
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
Each of Ms F and the family consultant hold qualifications as social workers. It is not apparent that such qualification, taking into account also their respective work experience as outlined in their respective reports, identifies them as experts qualified to express admissible expert opinion on whether the subject allegations of sexual abuse are likely to be true; or opinions of an expert kind as to whether or not the child spending time at a contact centre with the father poses some risk of psychological harm to the child.
But even accepting, for present purposes, that the respective opinions of these witnesses were tendered as being based on specialised knowledge, that does not put an end to the question of admissibility of these opinions under s 55.
As the learned author Stephen Odgers SC of “Uniform Evidence Law” Twelfth Edition Lawbook Co. 2016 notes (at page 328):
If an opinion is purportedly based on specialised scientific knowledge, failure to demonstrate validity of the “scientific knowledge” involved may mean that the opinion does not meet the test of relevance. In Quick v Stoland Pty Ltd (1998) 87 FCR 371; [1998] FCA 1200 at 374 (FCR), Branson J observed that:
[t]he position may be that, in the circumstances of a particular case, a bare expression of opinion could, if accepted, rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding. In the circumstances of most cases, however, a bare expression of opinion is likely to be incapable of affecting the assessment of the probability of the existence of any fact in issue in the proceeding.
Similarly, in Makita (Aust) Pty Ltd v Sprowles, Heydon JA stated at [85]:
[T]he opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded.
Although this was said in relation to s 79, the proposition that an opinion must not be a bare “ipse dixit” (Heydon JA at [87]) has application in this context. For example, where an “expert” purports to “match” two items, there must be evidence capable of rationally supporting the existence of the knowledge upon which the examiner relies to make the “match” and to assist the tribunal of fact to assess the applicable risk of error – otherwise the tribunal of fact cannot make rational use of the evidence of a “match”.
(footnotes and citations omitted)
In Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Heydon JA at page 729 cited with apparent approval the following statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 at 39-40:
Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the jury or Judge sitting as a jury, any more than a technical assessor can substitute his advice for the judgment of the Court ... Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.
(emphasis as in original)
Apart from what is quoted from Heydon JA at page 744 in the text referred to, Heydon JA also said at that paragraph:
If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v The Queen (at 428 [41]), on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise”.
The short written report of Ms F already referred to, taken with her relatively brief oral evidence under cross-examination at the hearing on 2 February 2016, does nothing to dispel the conclusion that her expressed opinions are no more than expressions of opinion “incapable of affecting the assessment of the probability of the existence of any fact in issue in the proceedings”.
Ms F does not particularise “the information provided in therapy by both [the child] and her mother”, as appears in her report, upon which she expresses her “belief” that contact now between the child and her father “may traumatise her”. Ms F does not demonstrate the scientific or intellectual basis of the conclusions expressed by her or how those conclusions are reached allowing for, as but one example, the matters sworn to by the father if some or all of those matters are ultimately established at a trial.
As but a further simple example of Ms F’s opinions as expressed not taking into any account relevant information Ms F, understandably, had no opportunity to observe any interaction of the child with the father, but expressed her opinions nonetheless. Ms F was not asked to review her opinions in light of the subsequent observations which were made by the family consultant of such interactions for his report process.
The same observations apply perhaps with even greater force to the opinions expressed by the family consultant as to any risk posed by supervised time. Whilst the family consultant emphasised in his report that he did not interview the child (at paragraph 51), it is tolerably clear that his report and opinions proceed on the footing that the allegations of sexual abuse are true with that opinion, in turn, being substantially, if not wholly, based upon the conclusions of Ms F (see, for example, paragraphs 13 to 15; 50; and the section “[e]valuation”).
For the family consultant to express pejoratively as he does at paragraph 13 that “… the father remains in complete denial with regards to the sexual abuse allegations”; and at paragraph 14 “given … no evidence to suggest that the allegations have been fabricated” is to entirely disregard the father’s sworn evidence, not only as to his denials of the allegations but as to facts which, if ultimately established at a trial, may well give pause to any conclusion that the allegations are established or likely to be true.
The family consultant’s opinion (at paragraph 55) of his report that the child spending time with her father at a contact centre “may only inflict psychological damage upon the subject child” does not meet the criteria for admissibility of evidence under s 55 of the EA, even if it were assumed (wrongly) that the family consultant has the expertise to express such an opinion.
It is to be noted in passing that whilst at paragraph 14 the family consultant recorded an opinion that supervised time “will” have adverse effects, whilst at paragraph 55 he identified this as a possibility (“may”), it can be assumed that the opinion as to possibility only was that actually held by this witness, as otherwise his decision (with the mother’s consent) to bring the child into contact with the father for the purpose of his observations for the report is inexplicable.
Whilst the opinions referred to of each of Ms F and the family consultant were tendered into evidence without objection before the primary judge, where it is now asserted on appeal that the primary judge erred in failing to adopt, follow or give sufficient weight to the subject opinions, it is integral to the assessment of such asserted error that the opinions were not admissible or, at the least, were opinions as to which little or no weight could legitimately be attached.
Was there any error by the primary judge concerning the evidence of Ms F and/or the family consultant?
In her reasons for judgment delivered in February 2016 the primary judge noted the cross-examination of Ms F (at [10]) and, as earlier discussed, set out at [14] not only the chronology of events concerning the allegations of sexual abuse, but there set out an extract from Ms F’s report. Also at [14] the primary judge recorded, as to Ms F, her belief that the father has sexually abused the child and her belief that it would not be in the child’s best interests to spend time with the father; and Ms F’s evidence that the child had told her that the child is angry with the father.
There could be no suggestion that [14] reflects any misapprehension or error on the part of the primary judge as to Ms F’s evidence.
Notably, after recording (at [16]) the disputed facts and at [18] and following, the law to be applied in the context of an interim hearing, the primary judge said, correctly with respect, at [28] to [35]:
28.I will now turn to the issue as to whether or not the father should spend time with the child.
29.In this matter I have, in effect, being [sic] requested by both parties to make findings on very serious issues on an interim basis where there is limited evidence before the court and where that evidence has not been tested.
30.The mother is seeking that firstly I make a finding of the existence of risk due to the sexual abuse and that secondly I make a finding that the risk is of such a level that no time should occur between the father and the child.
31.The father is seeking that I make findings that sexual abuse has not occurred, that the mother has coached the child that any risk is manageable and the father is to have supervised time to enable the father to re-establish a relationship with [the child].
32.I find that I am unable in the context of an interim hearing to make any of the findings as sought by the parties due to the lack of evidence and insufficient testing of the evidence available.
33. It is not my role to speculate or assume.
34.It is my role on the facts and evidence before the Court to make a decision which reflects what is in the child’s best interests.
35.In this matter, the relevant agreed facts upon which to make such a determination are scant.
As we have earlier noted, it is clear from the transcripts of the mention and interim hearing which took place on 6 June 2016 that the primary judge was then cognisant not only of her February 2016 reasons but of the recommendation of the family consultant that there be no order for time. The following statements of the primary judge, in exchanges with counsel for the father, leave no room for doubt about this:
HER HONOUR: You see, the recommendations of the family
report-writer is it would seem to the family consultant that a no-contact order should be put in place on an interim basis until a final hearing in these proceedings.
…
HER HONOUR: But is this an appropriate – you see, if I’ve got an expert and you’re disputing the expert and the time to put that to test will be at the final hearing, if I’ve got an expert saying “no time,” I’ve got mum who is proposing ---
…
HER HONOUR: And I have a family report prepared which you’re questioning, but the family report clearly states there should be no time.
…
HER HONOUR: Well, I don’t know if we’re at cross-purposes. I mean, I’ve got the judgment here. [a reference to the February 2016 reasons]
…
HER HONOUR: No, but I am familiar with my judgment and I’ve said I – and this is just from the catchwords – that consideration cannot be given to any spend-time arrangement between the father and the child until an independent children’s lawyer has been appointed and a family report prepared.
At the outset of her reasons delivered on 21 June 2016 for the subject orders the primary judge observed (at [1]) that those reasons were “in essence a continuation of the interim ex-tempore judgment delivered on 2 February 2016.” There is no room for doubt that both iterations of reasons are to be read together in considering the errors contended for on this appeal, including as to the adequacy of reasons. The point to be emphasised in the present context is that the primary judge was, for the June hearing, cognisant of the issues articulated in her February reasons for judgment.
At [9] of the June reasons the primary judge recorded her ultimate conclusion as follows:
I find having considered all the evidence that is in the child’s best interests for the father to spend two hours a week with the child at the … contact centre, with such time to be supervised and to take place at times which can be accommodated by the centre.
At [10] the primary judge said:
I make this finding based on the following:-
a)The concerns of the mother as to the risk posed by the father due to allegations of family violence are adequately addressed by supervised time occurring at a contact centre:
i) where the father will be under strict scrutiny;
ii)where the contact centre notes will record the interactions between the child and the father; and
iii)where the contact centre can bring the supervised contact at an end in the event that there are concerns as to the spend-time-with arrangements.
b)The concerns flagged in February 2016 judgment as to how the child would react with the father, having not spent time with the father for nearly 18 months, is addressed by the family-report-writer, where the following is captured:-
i)“It appeared that [the child] was…prepared to enter the observation room, knowing that her father was present” [51]
ii)“During my observation of the father spending time with the subject child, [the father] greeted [the child], who initially appeared somewhat reticent when the father greeted her” [52]
iii)“[The father] had brought toys and gifts for [the child] and subsequently showed her photos of their past experiences. The father was sitting on the floor communicating with [the child] at her level” [52]
iv)“[The father] subsequently engaged [the child] in drawing while sitting on the floor with [the child], and over the duration of the observation period it was evident that [the child] became relaxed” [52]
v)“[The father] was appropriate and positive in his discussions with [the child], whilst the child told father that she went to ‘mini school and dancing school’” [52]
vi)“[The child] asked her father whether he liked Mummy, and [the father] replied by saying ‘yes I do’. [The father] then initiated a hug with [the child] prior to the child’s departure.” [52]
c)It is noted in the family report that “the mother did not oppose [the child] participating in an observation with her father whilst being supervised by the family consultant”. [51]
d)The mother told the family-report-writer that “at best the mother considered that [the child] could spend time with her father on a supervised basis, but only at a recognised contact centre”. [9]
e)The mother did not set out in her affidavit material or articulate in oral submissions reasons why supervised time could not occur.
f)The family-report-writer, while expressing concerns as to unsupervised time at [56], did not express a view that supervised time could not occur between the father and the child.
g)There is no evidence to support that the child would be stressed or negatively affected by a supervised order being in place, especially given how well the family report observations between the father and the child went at the family report interview.
(emphasis as in original)
It is contended on appeal that what appears at [10(f)] above is, by reference to the family report, an error or misapprehension as to the evidence of the family consultant on the part of the primary judge.
At paragraph 55 of his report the family consultant records:
The central question in these proceedings, is the [sic] not the historic dysfunctional dynamics in the parents’ relationship, but rather whether [the child] spending time with her father in the future, regardless of this being at a contact centre, is in the child’s best interests, given that children can clearly recall abuse and that this situation may only inflict further psychological damage upon the subject child.
Then at paragraph 58 of his report the family consultant records, under the heading “[r]ecommendations” the following:
It would seem to the Family Consultant that a no contact Order should be put in place on an interim basis until a final hearing in these proceedings.
On one view what the primary judge recorded at [10(f)] is an error. Indeed, counsel for the father conceded that to be an error when that proposition was put to him from the Bench during argument of this appeal.
However, for the reasons which follow, when the statement expressed at [10(f)] is placed into its full context, it would seem that the better view is that what is there expressed constitutes an infelicity of expression, rather than reflecting an error or misapprehension of the evidence on the part of the primary judge.
As we have earlier sought to demonstrate, when it is remembered that the sole issue for determination was whether or not supervised time should occur pending trial, a central focus of the primary judge commencing as at the February 2016 interim hearing was how the child might react to seeing her father. That is not only demonstrated by the February reasons to which we have referred (particularly at [38] quoted in full above), but by the emphasis the primary judge placed upon the observations the family consultant made of the father/child interaction, as is reflected in the primary judge’s June reasons.
Critically, there is nothing whatsoever in the family consultant’s report of those observations to suggest anything in the nature of anger, anxiety or distress displayed on the part of the child. Indeed, the family consultant’s report is devoid of any opinion or evaluation by the family consultant as to what could, or should, be drawn by way of conclusion from the observations made of the father/child interaction that he observed and recorded. That void includes no identified link between what actually occurred in the interactions between the child and her father, and the postulation as to risk of even supervised time.
Put another way, the family consultant did not identify anything, at all, based upon his observations of the interaction upon which he opined that supervised time “could not occur”. That finds reflection in what the primary judge recorded at [10(g)] quoted above, immediately following (f).
As we have demonstrated by the references already made, the primary judge was at the June interim hearing well aware of each of the family consultant’s “recommendation” for a “no time order”, and Ms F having raised the possibility of risk. Armed with the recorded observations of the father/child interaction, as part of the evidence overall, it was a matter for the primary judge to assess whether supervised time at a contact centre on an interim basis posed an unacceptable risk to the child.
At [10(a)(i), (ii) and (iii)] of her June reasons set out above, the primary judge specifically referred to the inherent safeguards supervised time at a contact centre would provide. In passing, the submission of counsel for the mother that the primary judge’s reference to “family violence” in [10(a)] was a reference to matters not including sexual abuse is rejected. That submission ignores the definition of “family violence” as it appears in s 4AB of the Act.
Whilst what appears in [10(f)] can thus be readily categorised as a matter of infelicity of expression, rather than reflecting an error as to misapprehension of evidence, even if the error contended for were established, in the circumstances of this case it does not follow that a rehearing, as sought by the mother, must be ordered.
Whilst it must be acknowledged that it will be a rare or exceptional case where an error of law established on appeal, comprising misapprehension of evidence on the part of a judge at first instance, does not lead axiomatically to an appeal from the decision being allowed there are, albeit limited, exceptions.
In Conway v The Queen (2002) 209 CLR 203 (“Conway”) the High Court considered the appellate jurisdiction of the Federal Court and in particular the meaning of “appropriate” in s 28(1)(f) of the Federal Court of Australia Act1976 (Cth) which relevantly provided that:
…the Court may, in the exercise of its appellate jurisdiction:
…
(f)grant a new trial … on any ground upon which it is appropriate to grant a new trial.
Section 94AAA of the Act which confers the appellate jurisdiction of this Court for this appeal, provides in subsection (6):
On an appeal … the Family Court … may, if it considers appropriate, order a re-hearing…
No definition or prescription is contained in either statute as to the meaning of “appropriate” and thus the High Court’s elucidation of its meaning with respect to the appellate jurisdiction of the Federal Court resonates also with s 94AAA of the Act given the similarities between the respective statutory expressions.
In Conway the plurality of the High Court (Gaudron ACJ, McHugh, Hayne and Callinan JJ) considered that what constitutes a ground “appropriate” for granting a new trial was to be derived from the history of the common law concerning the grant of new trials. Before discussing a number of authorities concerning both civil and criminal matters (as was Conway itself) to support this conclusion, their Honours said at [6]:
To construe s 28(1)(f) as authorising the dismissal of appeal on the basis that no substantial miscarriage of justice has actually occurred gives effect to the long established rule of the common law that a new trial is not ordered where an error of law, fact, misdirection or other wrong has not resulted in any miscarriage of justice…
Thereafter in the course of discussing numerous authorities on the topic their Honours referred to, with apparent approval, the following statement of Dixon CJ in Balenzuela v De Gail (1959) 101 CLR 226 at 234-235 (a case dealing with a common law claim for damages):
[T]he true view, it may be suggested, is that at common law it was necessary to grant a new trial unless the court felt some reasonable assurance that the error of law at the trial whether in a misdirection or wrongful admission or rejection of evidence or otherwise was of such a nature that it could not reasonably be supposed to have influenced the result or because, in any case, as a matter of law the same result must have ensued.
(emphasis as in original)
At [36] their Honours said:
…Section 28(1)(f) of the Federal Court of Australia Act empowers the Federal Court to allow an appeal “on any ground upon which it is appropriate to grant a new trial”. This power is expressed in wide terms and should be given a liberal construction. It is a power that must, of course, be exercised judicially. But there is nothing unjudicial, arbitrary or capricious in refusing to order a new trial when, although error has occurred, no miscarriage of justice has occurred…
(footnotes and citations omitted)
At [38] their Honours referred with approval to the following statement of Deane J in Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 615:
…“subject to the overriding power to dismiss the appeal in any case where it appeared to the Federal Court that, notwithstanding that a point raised in the appeal might be decided in favour of the appellant, no ‘substantial’ miscarriage of justice had actually occurred”.
For the reasons earlier given, the evidence of each of Ms F and of the family consultant postulating potential risks of harm to the child of even supervised time with the father, was inadmissible. Even if treated as admissible it was evidence upon which no weight could be legitimately attached. It follows that, even if it could be said that the primary judge had erred in misapprehending that evidence, or in failing to adopt it in making the orders her Honour made, such error would be incapable of providing the foundation for the conclusion that a substantial miscarriage of justice had occurred.
For these reasons it would not be “appropriate” within the meaning of s 94AAA of the Act to order a rehearing even if the error of law contended for by the mother was established.
Resolution – grounds of appeal
To the extent there remains any need to expressly say so, it will be clear from what we have already said that we consider there is no merit in grounds 2, 4, 5 and 6 of the appeal given that each of these challenges are founded upon the proposition that the opinions of Ms F and/or the family consultant postulating as to risk to the child of even supervised time, ought to have predominated the primary judge’s determination. We have explained why that foundation is misconceived.
As the balance of the grounds contain express or implicit challenges as to the adequacy of the primary judge’s reasons a useful starting point is to outline some important matters of principle on that topic.
The difficulties a challenge to a discretionary judgment confronts are
well-known and need not be restated here (House v The King (1936) 55 CLR 499; Australian Coal and Shale Employees’ Federation and Anor v Commonwealth and Ors (1953) 94 CLR 621 per Kitto J at 627; Gronow v Gronow (1979) 144 CLR 513).
Two particular matters with respect to the subject judgment bear emphasis. First, it is a discretionary judgment involving the determination of parenting orders. Second, it is an interim orders judgment delivered out of the
well-known prescriptions to, and limitations of, interim hearings.
In CDJ v VAJ (1998) 197 CLR 172 the plurality of the High Court (McHugh, Gummow and Callinan JJ) observed of applications for parenting orders and of their determination as follows [at 218-19]:
…Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. The views of appellate judges about the proper order to be made will not infrequently conflict with those of the primary judge. Yet, absent legal error or a plainly unjust result, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge.
The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions…
The adequacy of reasons for making parenting orders is tested by reference to the nature of the discretion exercised, as referred to by the High Court. As noted, the plurality of the High Court in CDJ v VAJ referred to “perceptions, predictions and even intuition and guesswork” informing the exercise of discretion in the making of parenting orders.
The other member of the Court, Kirby J said at [186]:
…Every appellate judge knows that the reasons given for a decision can never express the entire range of matters which the decision-maker has taken into account. In matters of evaluation and discretion, this would be impossible to achieve and undesirable to attempt. Judicial reasons, whilst they must be adequate for the purposes of the exercise of any right to appeal cannot possibly catalogue all of the subtle considerations that lie behind a judicial decision.
(footnotes and citations omitted)
In an oft-cited judgment, in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd & Penrith Pastoral Co Pty Ltd (1983) 3 NSWLR 378 Mahoney JA said (at page 386):
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard [case citations omitted] … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear: see Selvanayagam v University of the West Indies [1983] 1 WLR 585, at 587, 588; [1983] 1 All ER 824, at 826.
This was not a case where, on an interim basis, there was any dispute about with whom the child should live or be cared for, or the exercise of parental responsibility for the child. It was not in dispute that the child should continue living in the mother’s primary care. Nor was it, in the end result, a case where issues about the amount of time, or the setting in which any time should occur (a couple of hours per week supervised at a contact centre) required resolution given the concession within the father’s proposal that any time take place on a limited basis supervised at a contact centre.
In the context of, and overlaid by, the centrally disputed allegations of abuse, incapable of resolution without a trial, the sole issue for the primary judge’s determination was whether or not, on an interim basis, supervised time at a contact centre posed an unacceptable risk to the child. That is, a risk not met by the strictures of limited supervised time at a contact centre. The converse potential risk on the father’s case, which likewise could not be resolved without a trial, was any risk to the long-term father/child relationship and otherwise to the child should the allegations prove to be the product of the mother’s influence or conduct.
Aside from the inability of the primary judge, in interim proceedings, to undertake the detailed fact-finding involved in reaching conclusions about the s 60CC considerations, the reality is that on the limited issue which ultimately fell for determination some, if not most, of the s 60CC considerations could not be determinative of, or inform, the determination the primary judge ultimately had to make on an interim basis (Banks & Banks (2015) FLC 93-637).
The approach of, and the reasons given by, the primary judge must be considered in the context delineated by these features.
It is tolerably clear that of the extremely limited amount of uncontentious evidence available, the primary judge predominated the evidence contained in the family consultant’s report as to the observations made of the interaction between the father and the child for the purpose of that report.
It is equally clear that absent anything contained within those observations to support any notion of the child being angry, distressed, anxious or fearful of the father (taking into account the hiatus that had occurred since the child last saw her father) that the primary judge was not persuaded that limited supervised time at a contact centre did not appropriately meet any risk potential.
Ground 3 proceeds on the footing that the primary judge only had in mind any risk of physical harm to the child. That proposition cannot be supported. What the trial judge referred to at [10(a)] of her June reasons already outlined foreshadows supervised time being brought to an end should any concerns arise. These are interim orders.
There is no substance in grounds 1 and 2 containing assertions of error of principle on the part of the primary judge; nor in ground 7 containing a specific challenge to the adequacy of the primary judge’s reasons. Her Honour correctly identified the issues in the February hearing and put in place, by orders, the mechanism by which a determination could be made on the limited issue of whether orders for supervised time posed any unacceptable risk to the child. The observations recorded in the family consultant’s report of the father/child interaction dispelled the proposition that the child would react adversely to seeing or spending time with the father on an interim basis. The primary judge’s approach was entirely correct and on the limited uncontroversial (and admissible) evidence available the determination the primary judge made was the only determination legitimately open to be made.
For these reasons we find no merit in any of the mother’s grounds of appeal. The appeal will be dismissed.
Costs
As is customary, we sought the parties’ submissions on the question of the costs of the appeal to save the time, trouble and expense of making those submissions after the appeal was determined.
While counsel for the father sought an order that the mother pay his costs of the appeal, because the appeal had been wholly unsuccessful, counsel for the father fairly conceded that the mother’s financial circumstances were significantly inferior to those of the father, she having no income other than by way of government benefits and she has no property of significance.
While we agree with the general submission of counsel for the father that impecuniosity is no bar to a costs order being made, it seems to us that given the frank disparity between the parties’ financial capacity that it is not appropriate to make a costs order in favour of the father.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Kent and Cronin JJ) delivered on 25 November 2016.
Associate:
Date: 25 November 2016
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