Langley & Tarelli (No. 4)
[2021] FamCAFC 107
•5 July 2021
FAMILY COURT OF AUSTRALIA
Langley & Tarelli (No. 4) [2021] FamCAFC 107
Appeal from: Tarelli & Langley (No. 4) [2020] FamCA 1095 Appeal number(s): EAA 1 of 2021 File number(s): PAC 4311 of 2014 Judgment of: AINSLIE-WALLACE, ALDRIDGE & TREE JJ Date of judgment: 5 July 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal against final parenting orders which provided for the first respondent mother to have sole parental responsibility for the child and for the appellant father to spend limited supervised time with the child – Failure to consider the effect on the child of a move from the father’s care to that of the mother – Consideration of expert evidence – Best interests of the child – Delivery of judgment – Inadequate notice – Principles of open justice – Unfairness – Appeal allowed – Further submissions sought as to interim parenting arrangements – No order as to costs.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Reopen proceedings – Supplementary submissions filed by the parties – Where none of the issues the focus of the reopen application are new – Application dismissed.
FAMILY LAW – APPEAL – PROPERTY – Appeal against final property settlement orders – Arguments against initial and post-separation contributions – Considerations of family violence, the parties’ earning capacity and their respective financial positions – No error of law – Re-determination of parenting proceedings may impact on the property settlement orders – Unjust for the property settlement orders to stand – Appeal allowed.
Legislation: Family Law Act 1975 (Cth) ss 60CC(3), 75(2), 90SF(3) Cases cited: Boensch v Pascoe (2019) 375 ALR 15; [2019] HCA 49
Langley & Tarelli and Anor [2019] FamCAFC 30
Langley & Tarelli and Anor (No 2) (2020) FLC 93-963; [2020] FamCAFC 126
Tarelli & Langley and Anor [2017] FamCA 708
Tarelli & Langley and Anor [2018] FamCA 522
Tarelli & Langley (No. 2) [2020] FamCA 196
Tarelli & Langley (No. 4) [2020] FamCA 1095
Tarelli & Langley (No. 5) [2021] FamCA 26
The Hon Sir Frank Kitto KBE, “Why Write Judgments?” (1992) 66 Australian Law Journal 787
Division: Appeal Division Number of paragraphs: 147 Date of last submissions: 28 June 2021 Date of hearing: 12 April 2021 Place: Sydney Counsel for the Appellant: Mr Shaw Solicitor for the Appellant: F W Ewart & Ewart Counsel for the First Respondent: Mr Page QC Solicitor for the First Respondent: Adam Jones Solicitor Counsel for the Second Respondent: Ms Mahony Solicitor for the Second Respondent: Crown Solicitors Office Counsel for the Independent Children’s Lawyer: Ms Eldershaw Solicitor for the Independent Children’s Lawyer: Legal Aid NSW ORDERS
EAA 1 of 2021
PAC 4311 of 2014APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR TARELLI
Appellant
AND: MS LANGLEY
First Respondent
DEPARTMENT OF COMMUNITIES AND JUSTICE
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
AINSLIE-WALLACE, ALDRIDGE & TREE JJ
DATE OF ORDER:
5 JULY 2021
THE COURT ORDERS THAT:
1.The Application in an Appeal filed by the appellant on 24 March 2021 is dismissed.
2.The Application in an Appeal filed by the second respondent on 29 March 2021 is dismissed.
3.The Application in an Appeal filed by the first respondent on 7 June 2021 is dismissed.
4.The appeal against the orders of a judge of the Family Court made on 18 December 2020 is allowed.
5.The orders made on 18 December 2020 are stayed pending further order of the Full Court.
6.Within twenty-one (21) days of the date of these orders, the Independent Children’s Lawyer file and serve any written submissions addressing the interim parenting orders to be made in light of Order 4 herein.
7.The appellant, first respondent and second respondent may file any submissions in reply to those of the Independent Children’s Lawyer within a further twenty-one (21) days of their receipt.
8.There be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Langley & Tarelli has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE, ALDRIDGE & TREE JJ:
Mr Tarelli (“the father”) and Ms Langley (“the mother”) are the parents of D who was born in 2013 (“the child”). The father appeals against parenting and property settlement orders made by a judge of the Family Court on 18 December 2020.
Before dealing with the appeal and the issues that arise, we observe that this case is a tragedy for the parents and most acutely for their child because, notwithstanding that parenting proceedings between the parties commenced in 2014, there has yet to be an end to them.
In September 2017, when the child was a little more than four and a half years old he was, by interim orders pronounced mere weeks before a final hearing, removed from the care of his mother who had been his principal carer and placed in the care of his father. But for a few, brief periods, the mother has not seen the child since.
The orders of September 2017 were made on the application of the Department of Family and Community Services, as the second respondent was then styled, (“the Department”) who expressed itself as having “significant concerns” for the child living with his mother because of the mother’s apparent emotional distress and because she was not making the child available to see the father.[1] In the reasons for judgment on the removal of the child from his mother, the judge referred to the Department’s evidence that the mother said she could not facilitate the child’s time with the father because to do so would cause the child to “lose his mummy”. She was further quoted as saying that the Department did not believe her allegations against the father.[2]
[1] Tarelli & Langley and Anor [2017] FamCA 708 at [53]–[54].
[2] Tarelli & Langley and Anor [2017] FamCA 708 at [54].
The mother’s allegations were that throughout the relationship with the father, she had been subjected to extreme and unremitting violence from the father and as a result she had been left with Post-Traumatic Stress Disorder (“PTSD”). Whatever value these allegations were then said to have, rather than waiting the few weeks until the final hearing when her evidence of violence could be considered, a judge of the Family Court, by interim orders, removed the child from her care.[3]
[3] Tarelli & Langley and Anor [2017] FamCA 708 at Orders 6 and 7.
It is tolerably clear that the father’s denials of the allegations of violence were accepted by the Department. However, as it emerged, the father’s denials were demonstrably false and in June 2020 he pleaded guilty to a number of serious assaults on the mother.[4]
[4] Tarelli & Langley(No.4) [2020] FamCA 1095 at [70].
The first final hearing of the parenting matter commenced in October 2017, orders were made and reasons delivered in June 2018 which provided for the child to live with the father and spend time with the mother.[5]
[5] Tarelli & Langley and Anor [2018] FamCA 522.
The mother’s appeal from those orders was heard in February 2019 and conceded by the father, the Department and the Independent Children’s Lawyer. The orders of June 2018 were set aside and the matter remitted for re-hearing by a judge other than the primary judge. Pending that re-hearing, the challenged orders remained in force.[6]
[6] Langley & Tarelli and Anor [2019] FamCAFC 30.
In February 2020, the primary judge before whom the remitted hearing was listed, vacated the final hearing dates pending the determination of the father’s criminal proceedings.[7] The mother successfully appealed this order and upon the re-exercise of the decision by the Full Court, the father’s application to stay the final parenting proceedings was dismissed.[8]
[7] Tarelli & Langley (No. 2) [2020] FamCA 196.
[8] Langley & Tarelli and Anor (No 2) (2020) FLC 93-963.
The remitted hearing commenced in August 2020 and judgment was delivered on 18 December 2020. The orders provided that the child be immediately returned to his mother’s care and that the father have limited, supervised time with the child.[9]
[9] Tarelli & Langley (No. 4) [2020] FamCA 1095.
Another appeal was filed, this time by the father. The primary judge’s orders were never given effect because on the father’s application, her Honour stayed her orders pending the determination of the appeal.[10]
[10] Tarelli & Langley (No. 5) [2021] FamCA 26.
The father’s appeal was heard on 12 April 2021. We have concluded that the primary judge’s reasons are attended by such significant error that we are left with no option but for the appeal to be allowed and, again, the hearing of the parenting issues remitted for another re-hearing.
The result is a continuation of the tragic position in which this child and his parents find themselves. Tragic because the child has neither lived with nor seen his mother in any significant way since September 2017 and because he and his parents have not been relieved of the anxieties and uncertainties of continuing litigation about proper arrangements for his and their future.
APPLICATIONS IN THE APPEAL
Before turning to the primary judge’s decision and the grounds of appeal we will first deal with the Applications in the Appeal filed by the father, the mother and the Department.
On 24 March 2021 the father sought to adduce further evidence from a number of people which concerned events that occurred since the orders were made. It was contended that this evidence demonstrated the risk of harm to the child in being compelled to leave his home with the father. Ultimately this application was withdrawn and we will order it be dismissed. So too will the mother’s Response to the Application in an Appeal filed on 8 April 2021 be dismissed.
On 29 March 2021 the Department sought to adduce further evidence following the making of the orders of the primary judge on 18 December 2020. This evidence sought to be adduced was said to be relevant only if the father’s application to adduce evidence was allowed. As it was withdrawn this application will be dismissed.
THE DECISION OF THE PRIMARY JUDGE
The parties met in April 2012 and commenced living together in September 2012. In early 2013 the child was born. Up until 14 September 2017 the mother was the child’s primary carer. As we have indicated, from September 2017, the child has lived with his father and, while orders provided for the mother to spend time with the child, that time has not eventuated.
It was the mother’s position from the outset, well before the child was removed from her care, that because of the father’s extreme violence towards her, she suffered from PTSD and, among the many aspects of emotional distress brought on by this condition, the mother said that she could not tolerate the prospect of the child spending time with the father. Thus, she was unable to make him available to spend time with the father while the child lived with her and, after his removal to live with the father, for the same reasons, neither could she bring herself to see him (at [404]). The maternal grandmother too, who it seems had a good and close relationship with the child in the past, has not seen the child apparently in deference to the mother’s emotional fragility (at [460]–[461]).
In the time in which the child has been living with his father, the father has re-partnered and he and his new partner have a child who was born in late 2018. The child, the subject of these proceedings, commenced school in early 2018.
The primary judge, over many, many paragraphs, set out the mother’s allegations of violence against the father. Her Honour said in conclusion:
334.It is patently clear that the father convinced all in authority that he was blameless and his mendacity has resulted in significant injustice to his son and the mother as authorities accepted what he said and not even the possibility the mother may have been correct, and traumatic events followed.
335.Had the father been truthful and accepted his part in what was an unsafe and toxic relationship, their son and his mother would not have been subjected to further trauma under the guise of the mantra of “child protection.”
336.He has been believed and the mother not believed when the truth is his behaviour is unacceptable at every level and the mother is the witness of truth in relation to his treatment of her.
Neither the primary judge’s findings about the father’s violence to the mother nor her findings as to his general credibility was challenged on the appeal.
Her Honour said that the mother’s resistance identified by the Department in 2017 to providing the child to see the father was justified and that her assertion of suffering from PTSD was correct (at [350]–[355]).
She said:
361.Ultimately I will find, for the reasons that follow, [the child] was removed from the mother’s care without justification as the risk of harm to him at that time was low and was, in reality, that he was not spending time with his father. I accept from the evidence that will follow the mother had behaved in a chaotic manner at times and had failed to comply with the Department’s recommendations, however [the child] was not at risk of harm in her care and the greatest harm to him was his brutal removal from his primary carer at the age of four and a half years without any supports being put in place.
Her Honour explained the decision to be made thus:
776.If the child remains living with his father there will be no change to his living circumstances whatsoever. He will continue to live with his father, [the father’s new partner] and [his half-sister]… and it is anticipated he will continue on the pleasing trajectory he currently is on. He will continue to spend no time with his mother.
777.If the child moves to his mother’s care there will be a significant, if not monumental, change in his care arrangements. He will be living in a home he is not familiar with, however he may still have some memories of, as his [maternal] grandmother gave evidence that the mother has kept his room as it was, waiting for him [to] return. He will be separated from [the father’s new partner], [his half-sister] and his father on a day-to-day basis, will have limited time with his father being four hours supervised once per month initially and will spend some two hours once a week with his sister… He may ultimately be required to change schools although his mother agrees to maintain him at his current school, and his living environment will be entirely different. Such a fundamental change to his living arrangement will have a negative impact upon him in the short term and may play out for some time.
Referring to a recommendation that the child have therapeutic assistance to help him navigate any change, her Honour said:
787.If I was not as confident as I am of the mother’s capacity to assist her son with these huge changes and engage fully in the therapeutic process with Mr [M], my decision may have been different, for it is [the child’s] best interests that is my impeller and not righting a wrong for his mother. [The child] has already been hurt by poor adult decisions and I am most conscious to not hurt him again by my orders.
…
793.The mother is well aware of the difficulties for her son and is well supported by her psychiatrist Professor [LL] and Mr [M] and will use those resources to assist in managing her son’s behaviours and providing for his needs.
…
796.I cannot predict whether, in the future, he will be able to restore his current meaningful relationship with his father whilst in his mother’s care. I am confident that he will re-establish the benefit to him of the meaningful relationship he had with his mother upon his return to her care. I am confident he can maintain a relationship with his father whilst in his mother’s care although it will not be as fulfilling as it should be for him if time remains at four hours a month supervised. However, it is a relationship with his father and there is a prospect of an increase in time down the track. Remaining in his father’s care quashes any chance for [the child] of a relationship with his mother into the future.
Although her Honour referred to the expert opinions in the evidence before her that any restoration of the child to his mother’s care would require a lengthy and slow process, she preferred to adopt the view of the mother’s psychiatrist, Professor LL who her Honour quoted as saying: “it’s like jumping into a swimming pool, you just jump”. Her Honour concluded that to wait would exacerbate the mother’s PTSD symptoms (at [804]). The primary judge continued:
806.A quick transition, although perhaps not the best option for [the child] in the short term, is ultimately the best option as it will maximise, not diminish, the mother’s capacity to provide for his needs as that will be her priority in the near future and for some time.
Thus her Honour ordered that at the end of two weeks from the date of the orders, the child be returned to live with the mother and, thereafter the father spend four supervised hours each month with the child (Orders 2 and 4). Other orders were made which concerned the mother and father seeking “therapeutic assistance and advice as to the transition, age appropriate communications with the child in relation to the child’s parental circumstances and his change in living circumstances” (Orders 6 and 7). The parenting orders also provide for the child to spend time with his half-sister (Order 5).
THE PARENTING APPEAL
Some 14 grounds of challenge were raised by the father against her Honour’s orders. However we propose only to deal with the first ground because, as we have indicated, we agree that in determining that the child should immediately move to live with his mother, the primary judge failed to take into account a relevant consideration, namely the effect on the child of such a move and what, if any, measures could be put in place to address those identified effects.
The success of this ground dictates that the appeal be allowed. We do not propose to deal with the remaining grounds for two reasons; first, since it is inevitable that the matter be returned for re-hearing we do not wish to express views on matters of evidence which may ultimately fall to be determined by the next judge who hears the matter and, secondly, judicial economy persuades us that it is not necessary that we continue and determine each remaining ground of challenge.[11]
[11] See Boensch v Pascoe (2019) 375 ALR 15 at [8].
Ground 1 is as follows:
That her Honour in reaching a decision that [the child] would be able to cope with the dramatic change in his custodial care to be effected by her Honour's orders failed to have sufficient regard to the expert evidence of Professor [TT] in her report dated 30 July 2020, that a withdrawal of the child from his current family consisting of his father, [the father’s new partner] and [the child’s half-sister] would have long term implications of attachment disruption for [the child] “who has already experienced one significant disruption in his care” that being the loss of his relationship with his mother and grandmother three years ago so that a second grievous loss would have a serious effect on [the child’s] future development…
This ground as argued contended that in determining that the child should move from his father’s to his mother’s care, the primary judge failed to take into account or have sufficient regard to the effect on the child of that change.
In determining what is in a child’s best interests, s 60CC(3)(d) of the Family Law Act 1975 (Cth) (“the Act”) requires a court to consider:
(d)[T]he likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living…
Principal to her Honour’s decision and peppered throughout the evidence and indeed her Honour’s discussion of it, were expressions of concern by the experts as to the effect on the child of a move from his father’s household where he was, on all the evidence, well settled and doing well, to that of his mother from whom he had been separated for years.
It is useful to set out in brief the expert evidence before her Honour.
The expert evidence
The primary judge had the benefit of a number of expert opinions. Professor TT, a consultant psychiatrist, was appointed as the single expert in the matter and she interviewed the parties, the child and other, relevant people. She also observed the child with the father, his new partner and the child’s half-sister, and the child in the company of the mother and maternal grandmother. Professor LL, a specialist child and adolescent psychiatrist, has been treating the mother since 2017 and Mr M, a Child and Family Consultant and an accredited mental health social worker, had been consulting with the mother since 2015. Each prepared a report and each gave oral evidence. Other professionals who had been engaged with the mother over the years provided reports but were not required to give oral evidence.
It was the overwhelming view of the professionals with whom the mother had contact that she suffered from PTSD which caused her to experience high levels of distress and anxiety.
Professor TT
Apart from conducting interviews with the parties, the child and other relevant people, Professor TT was provided with the reports from other professionals who had dealings with the mother.
Professor TT’s record of her discussion with the father notes his concerns for the mother’s mental health and his denial of the allegations of violence, although he conceded that there had been “significant conflict, verbal abuse and tension”[12] between them. The interviews conducted for the preparation of the report took place on 17 and 24 July 2020. On 12 June 2020 the father, having been charged in October 2019 with serious criminal offences arising from the mother’s allegations of violence, pleaded guilty to three counts of assault on her and in August 2020 he was sentenced to a period of imprisonment for 18 months, although he was not in fact required to serve any time in prison. The father made no mention of these circumstances when he was interviewed by Professor TT who became aware of them shortly before she gave evidence. That information did not cause her to change her opinion.[13]
[12] Exhibit 1, Professor TT’s report dated 30 July 2020 at page 10.
[13] Transcript 13 August 2020, p.716 lines 21–42.
The father and his new partner told Professor TT that when the child was first placed in their care he asked to see his mother although over time his requests lessened.
Professor TT reported the mother as saying that she could not tolerate any contact with the child even indirectly while he was living with his father because of the effect of the father’s conduct on her emotional functioning and thoughts of the child being with the father triggered “acute experiences of panic and anxiety”.[14] Professor TT said that the mother presented as anxious and distressed when discussing her experiences.
[14] Exhibit 1, Professor TT’s report dated 30 July 2020 at page 12.
Professor TT commented that the mother may benefit from further therapy focussing on improving her “parental reflective capacity and appreciation of the needs of the child” because, Professor TT said that people like the mother who were preoccupied with trauma may find it difficult to have an empathetic understanding of the needs of the child.[15]
[15] Exhibit 1, Professor TT’s report dated 30 July 2020 at page 19.
Professor TT thought that the mother had a “particularly rigid narrative and has put herself in a position where she feels unable to see the child unless she has full custody of him and he essentially has no contact with his father”. This raised concerns for Professor TT as to whether the mother would be able to contain her emotions if the child was living with her.[16]
[16] Exhibit 1, Professor TT’s report dated 30 July 2020 at page 21.
This view that the mother had a “particularly rigid narrative” became something of a distraction in the evidence and much time was taken up in questions of Professor TT and the other professionals about the “rigid narrative”. Her Honour expressed the view that the opinion was in some way pejorative of the mother’s lived experience and which sought to deny the reality of her claims of violence (at [386]–[387]). In our view it was little more than a semantic distinction on which nothing turned.
As to the child, Professor TT assessed him as being slightly anxious, very much settled into his current place of living and seemed motivated by a need for safety and stability. The child told her that he did not know why his mother and grandmother did not see or speak to him and he found it confusing and upsetting. He said he wanted to see his mother but continue to live in his father’s house. Professor TT thought this was developmentally understandable for a child who wishes to have an intact extended family and to have contact with those who are important to him. She said that the child was settled in his current living arrangements and had a strong connection with his half-sister who he sees as important in his life and has a positive relationship with the father’s new partner.
She further said that the child’s distress and anxiety on being removed from his mother without explanation in 2017 has contributed to him having a degree of anxiety.
The letter of instruction to Professor TT asked her to consider and comment on a number of propositions. Of particular relevance are her answers to two of those propositions, 16 and 18.[17]
[17] Exhibit 1, Professor TT’s report dated 30 July 2020 at pages 2–3 and 23–24.
Proposition 16 was: “The impact on the child of not living or spending time with the father, maternal grandmother [sic], the father’s partner and the child’s sibling”.
Professor TT said:
In the event that [the child] were to be separated from his father, the father’s [new] partner, and [his half-sister], it is likely that he would again suffer a further loss of significant attachment figures. [The child] has been very focussed on maintaining stability and has benefitted from having stable living circumstances. In my view, it would be a significant loss if these relationships were disrupted. He would also suffer the loss of extended family connection, which appears to be very important to him.
At proposition 18, Professor TT was asked to consider: “The capacity of the mother to have the child living with her on a full-time basis”.
She said:
In my view, given the difficulties and that [the mother] demonstrates in her mood, emotional regulation and ongoing post-traumatic symptoms… it would be difficult for her to focus on the needs of [the child] if he were to be returned to her on a full time capacity. In my view, if this were to be contemplated, it would be important to have a program initially of supervised contact and counselling for [the mother] around dealing with her symptoms. It would be important to monitor [the child], from the point of view of his capacity to rebuild trust in his relationship with his mother and to protect him from ongoing confusion and anxiety.
The mother proposed that if the child returned to live with her she would be prepared for the father to spend four hours per month with the child in a supervised setting.[18] It was clear from the evidence that this time was as much contact between the child and the father as the mother could tolerate.
[18] Exhibit M14, Mother’s Minute of Order dated 14 August 2020, Order 4.
Professor TT said:[19]
[PROFESSOR TT]: ... the other point I would make is that it’s – there is a distinction to be made between making these proposals that the mother probably feels that she could tolerate with how she actually feels in the event that [the child] is having contact with his father, no matter how much. Given that she has been, at least when I assessed her, very clear that it’s an utterly overwhelming situation, that it makes her non-functional and she really was not up to living a normal life when she’s overwhelmed by that anxiety, it’s not clear to me why that would suddenly not be an issue for her so I think that would need very close monitoring.
[19] Transcript 13 August 2020, p.719 lines 20–28.
She continued and said that the mother’s continuing anxiety would be a risk for the child as to whether the mother would be able to support him:[20]
[PROFESSOR TT]: … is about what support can be available for the child who has already suffered attachment disruption very significant in the separation from the mother. Prior to that he had traumatic exposure to conflict between the parents and now it has been an outcome – one possible outcome would be separation and loss with regards to his father and [the father’s new partner] and [the child’s half-sister]. So I think independently the child has really complex emotional needs for support in this scenario, whilst whatever ongoing conflicts between the parents seem to maybe continue.
[20] Transcript 13 August 2020, p.721 lines 12–19.
Professor TT said:[21]
[PROFESSOR TT]: … So all of those experiences have made [the child] very vulnerable to separations in the future, if he were to experience them, or things that he interprets as a breakdown of relationships… It would no doubt be experienced by him as a separation. He has found, in my opinion, a degree of stability in his current arrangements and both his – he’s close to both [the father’s new partner] and to [the child’s half-sister] and that’s been very important for him. He feels he has that family. It would depend. His response to it would depend on what arrangements were in place, obviously, for ongoing contact and maintenance of important relationships and in my view, if there were very limited contact with his father’s family that would be potentially difficult for him, although he would obviously be pleased – sorry, I was just going to say he would be pleased to have time with his mother and grandmother.
[21] Transcript 13 August 2020, p.727 lines 11–44.
Whether or not there were orders for a gradual transition to his mother’s care and/or orders for more time with the father than contemplated by the mother, Professor TT believed that the child would still suffer a “significant loss” at being removed from his father’s household.[22]
[22] Transcript 13 August 2020, p.731 lines 18–19.
Mr M
Mr M has counselled and provided support to the mother over many years, since before the child was removed from her care. He too spoke about the impact on the child of his abrupt removal from his mother’s care without warning. He said that this traumatic loss amplified the mother’s symptoms of PTSD:[23]
She is unable to try to process this loss. When she has attempted to do so she becomes flooded with overwhelming feelings of sadness and so chooses to avoid the subject of [the child’s] removal. For the same reason she [is] unable to spend time with [the child]. When she has spent brief periods of supervised time with him she found that the visits precipitated uncontrollable distress for both herself and [the child] - who said such things to her as (words to the effect of) “you were supposed to protect me” and “why didn’t you pick me up” (from school) and “I am scared”.
[23] Exhibit “Mr M1” to Mr M’s affidavit filed 16 July 2020 at page 4.
His opinion was that if the child was not restored to the mother he is likely at some stage into the future to experience depression underpinned by feelings of abandonment, rejection and associated feelings of low self-esteem.
Mr M said the mother maintained that it was “a psychological impossibility” for her to see the child while he was living with the father even though she was aware of the impact on the child of her not seeing him.[24]
[24] Transcript 11 August 2020, p.656 lines 19–23.
He believed that if the child was removed from living in his father’s household it would possibly be highly traumatic. He said:[25]
[MR M]: … The central issue, and I think Professor [TT] identified this as well, is how do we get this little boy to begin to believe that the adult world is not full of people that come to love him and then disappear. He needs a long – a long period of a stable environment with a relationship with both of his parents…
[25] Transcript 11 August 2020, p.662 lines 38–41.
He too suggested that if the child was to be moved away from his father, there should be a “gradual… regime of time” in place to give it effect.[26]
[26] Transcript 11 August 2020, p.665 lines 40–41.
Mr M said that for the child to spend four hours each month supervised with his father would be upsetting for him, he having lived with the father for three years and then experiencing a separation from him. He was asked whether it would be “catastrophic” to which he said that it would not be as catastrophic as going to school and being removed from his mother’s care, however, he said that the time would not be a rewarding or satisfying relationship for the child nor would it satisfy his need for his father.[27]
[27] Transcript 11 August 2020, p.663 lines 22–46.
He said:[28]
[MR M]: … four hours once a month is probably not quite enough and it would be up to [the mother] to be able to manage a little more than that for the sake of [the child] because the other issue is – of course, is this reattachment to his father’s household now, his father and [the father’s new partner] and [half-sister]. And the sister issue is going to be difficulty enough to manage, you know. Like, this is why I say this little boy can’t win because it’s hard for me not to imagine him thinking, “My [half-sister] has now got my father and [the father’s new partner] and I haven’t.”…
[28] Transcript 11 August 2020, p.671 lines 20–27.
He concluded by agreeing that the restoration of an attachment figure is going to have more positives than negatives because the child would be feeling that he has been rejected by important people in his life.[29]
[29] Transcript 11 August 2020, p.668 lines 20–23.
Professor LL
Professor LL, the mother’s treating psychiatrist reflected on the mother’s emotional state and said:[30]
[PROFESSOR LL]: … So these are serious, aggressive insults on my patient and they would be expected to have a long impact. The trauma, which directly does relate to the PTSD, was exacerbated because she felt not believed by a large number of people. Those is [sic] diagnostic labels were applied. So both the trauma itself, perpetrated by [the father], the fact that she was not believed and the fact that her son was removed from her care for reasons beyond her control, understandably made a sizable impact on [the mother] in terms of eliciting trauma symptoms that were consistent with PTSD…
[30] Transcript 13 August 2020, p.682 lines 33–39.
He said that the mother may now feel believed (in relation to her allegations of violence by the father) but added that for a long time she had not been believed. That she is now believed may change things going forward, however, he said that the mother’s view was that unless the child was not living with the father it would be difficult to make progress.[31]
[31] Transcript 13 August 2020, p.682 lines 10–45.
As to the mother not seeing the child, Professor LL said of his therapy with her:[32]
[PROFESSOR LL]: …The aim was also to discuss with her, which I did on several occasions, the likely response of [the child] to his situation of being removed from [the mother’s] care. How that may impact on [the child], we discussed on many occasions the role of parents, plural, in a child’s upbringing and, you know, not uncommonly I’ve discussed with [the mother] her seeing [the child] again but it was her inability to do so. But she emphasised her inability to do so, again, given the triggering of trauma symptoms…
[32] Transcript 13 August 2020, p.687 lines 15–21.
He agreed that the mother’s proposal that if the child lived with her she would agree to him spending four hours per month with his father was to meet the mother’s needs not those of the child.[33]
[33] Transcript 13 August 2020, p.688 lines 27–29.
Professor LL thought that if the child was returned to his mother’s care he would need counselling and therapy to deal with the anxiety of the transition. He later said that a transition would work best if the child knew that there would be ongoing contact with the father’s household.[34]
[34] Transcript 13 August 2020, p.692 lines 18–35.
The primary judge’s consideration of the evidence
At a number of places the primary judge referred to the trauma of the child’s removal from his father’s household. For example she accepted that Mr M’s opinion that such a move would quite possibly be traumatic for the child (at [637]). She further said:
777.If the child moves to his mother’s care there will be a significant, if not monumental, change in his care arrangements. He will be living in a home he is not familiar with, however he may still have some memories of, as his grandmother gave evidence that the mother has kept his room as it was, waiting for him return. He will be separated from [the father’s new partner], [the child’s half-sister] and his father on a day-to-day basis, will have limited time with his father being four hours supervised once per month initially and will spend some two hours once a week with his [half-sister]. He may ultimately be required to change schools although his mother agrees to maintain him at his current school, and his living environment will be entirely different. Such a fundamental change to his living arrangement will have a negative impact upon him in the short term and may play out for some time.
Her Honour then considered the evidence of Mr M that, in his view the advantages of the child being restored to his mother outweighed the “clear negative impact upon him of being removed from his stable, well settled and nurturing environment of his father, [the child’s half-sister] and [the father’s new partner]” (at [778]).
She concluded:
783.Despite the clear upheaval for [the child] of a change of residence to his mother, he will be reunited with his primary carer, and his grandmother with whom he clearly has a close and attached relationship.
As to how the “negative impact” and the “clear upheaval” for the child of being removed from his father’s household would be managed, the primary judge observed that the mother provided for the child’s needs from his birth until he was moved to live with his father and she has the support of her mother and Mr M to assist her and the child. Her Honour continued and said that such was her confidence in the mother’s capacity to assist the child and engage in therapy with Mr M, she proposed to remove the child from his father’s care to that of his mother (at [787]).
The primary judge was unable to predict whether the child would be able to “restore” his current meaningful relationship with the father, but she said that he would have the benefit of a reintroduction of the relationship with his mother (at [796]).
Ground 1
Turning now to the arguments on this ground, it was argued that Professor TT’s evidence having squarely raised significant emotional consequences for the child if he was to be moved and that he would “suffer a further loss of significant attachment figures”, the primary judge was obliged to take that evidence into account in determining whether a move to live with his mother was in the child’s best interests. It was argued that instead, the primary judge made but “passing acknowledgment of the risk” without considering “the matters that militated against such a removal”.[35]
[35] Father’s Summary of Argument filed 11 March 2021 at paragraphs 6 and 9–10.
It was further submitted that her Honour having accepted the evidence that the child was settled and progressing well, had a strong attachment to his half-sister and the father’s new partner and enjoyed a good relationship with the father, failed to take into account the effect on the child of this move other than to say that it will have a “traumatic” effect and made no attempt to evaluate the effect on the child of being removed from that settled regime. This is especially so, it was contended, given the overwhelming evidence from the experts that his earlier disruption having been moved away from his mother has had effects on him which were still observable as Professor TT said.
It was contended that the “significant loss[es]” to which Professor TT referred as occurring if he was moved were undiscussed by the primary judge.
We agree.
While her Honour’s reasons indicate an acceptance that the move of the child to the mother would be “negative” or “traumatic” (at [777] and [637]), her reasons do not indicate in what way this negative or traumatic response might be realised for the child and what, if anything, would be put in place to ameliorate that effect.
Nor do her Honour’s reasons address why, notwithstanding her findings that the effect of the move would be “negative” and “traumatic” for the child, the move was nonetheless in the best interests of the child. Put another way, her Honour’s reasons do not demonstrate that she took into account the effect of the move on the child in any meaningful way so as to understand why she nevertheless considered the risk to the child one worth taking.
The appeal against the parenting orders must succeed and the primary judge’s orders will be set aside.
It was agreed that if the appeal was successful, the matter must be remitted to another judge for re-hearing.
The Independent Children’s Lawyer submitted that in the event that the appeal succeeded, she would wish to be heard on the form of parenting orders to be made pending the re-hearing. We will therefore make orders for the provision of written submissions as to the form of interim parenting orders to be made.
THE PROPERTY SETTLEMENT APPEAL
Before the parties commenced a relationship, in 2004, the mother purchased a property in Suburb CC paying $475,000 using funds she received on her father’s death and a mortgage loan of about $250,000. Around September 2012, after the parties commenced their relationship they lived together in that property. The mother became pregnant with the parties’ child shortly after they met and for a period of months between June and September 2012 the mother moved in to live with her mother who assisted her through what was a difficult period in her pregnancy. During that time, the father remained living in the mother’s Suburb CC property.
The mother said that while ever the father lived at her Suburb CC flat he made no payments towards the outgoings. The mother said that while she was living with her mother, the father commenced some renovations to her flat in Suburb CC although, she said, she did not ask him to do so and he refused to stop when she asked him to. Nonetheless the property was renovated by him. The mother eventually moved back into her flat in Suburb CC in September 2012.
In December 2012 the mother sold the Suburb CC property and using the net proceeds together with a loan from a bank, purchased a property at Suburb C for $750,000. The maternal grandmother lent the mother about $66,000 towards the purchase. This property was purchased in the father’s name, the mother explained that as she was not then working the bank advancing the mortgage required the property to be held in the father’s sole name.
When the parties separated in March 2014 the father moved out of the Suburb C property and the mother remained living there.
The father made no financial contribution to the purchase of the Suburb C property. However from its purchase until early 2015 he made the mortgage repayments although the mortgage fell into arrears. The mother said that this occurred notwithstanding that in about March 2015 the father received a redundancy payment of about $45,000 and from July 2015 was in receipt of workers compensation payments as a result of being injured at work. It was undisputed that the father applied those funds to his own purposes.
In April 2017 the mother became aware that the bank was seeking to repossess the Suburb C property because of mortgage default and she negotiated with the bank to rectify the position. The mother has continued to pay the mortgage on the property.
After the parties separated and the father moved out of the Suburb C property, he continued to pay the mortgage until early 2015, albeit insufficiently to cover the monthly repayment leading to the mortgage being in arrears. He also continued to pay the outgoings on the property, council rates and water charges for six years.
The mother is a lawyer. She commenced her working life in 1996 and for 10 years worked in marketing and commenced studying law part time, later studying full time. On becoming admitted the mother worked as a solicitor until 2010 when she successfully completed the Bar exam and commenced practice as a barrister in chambers in Sydney. Although the mother continued to work as a barrister during her pregnancy she eventually gave up work on the birth of the child. In late 2012 she moved out of her chambers and although she was able to secure a licensee of the room from time to time, by September 2017 she owed the chambers about $49,500 in fees.
The primary judge found that the father made no direct financial contribution to the acquisition of the Suburb CC property however found that he had made a small indirect contribution through his renovations to the property. In all, the primary judge assessed the father’s financial contributions both direct and indirect to the Suburb CC property as being insignificant (at [809]–[811]).
Turning to the Suburb C property, the primary judge found that the father lived there for some 15 months and during that time paid a portion of the mortgage and rates and taxes. Her Honour found that he had maintained the property and did some improvements to it. She also found that after he moved out of the property the father continued to pay the mortgage for about 12 months and for a period of six years after separation he paid the council and water rates on the property (at [813]–[814]). During submissions, the primary judge observed that although the father made payments to the mortgage and rates after separation, he paid little or no child support to the mother.[36]
[36] Transcript 14 August 2020, p.818 lines 42–45.
The primary judge took into account that during the course of the relationship the father remitted significant sums of money to Country BF where his family lives which included the funds received by him by way of a first home owner’s grant (at [818]).
The primary judge accepted that the father owns property in Country BF including an apartment which he had not earlier disclosed and in which the father’s brother or sister lived for a period of time. The father asserted its value to be $200,000 which her Honour took into account (at [823]–[824], [847] and [869]).
The primary judge referred to the significant financial contributions made by the maternal grandmother both to the purchase of the mother’s barristers chambers and to the purchase of the Suburb C property. Her Honour concluded that without the financial contribution by the maternal grandmother to the payment of the mortgage after the father left the property, it would have been sold by the bank.
After setting out a balance sheet of the assets and liabilities of the parties, the primary judge concluded that the father made no contribution to the proceeds of sale of the Suburb CC property and that he contributed by paying the mortgage and outgoings on the Suburb C property while he lived there and after separation in paying the mortgage and the outgoings on the property. The primary judge found that after the father stopped paying the mortgage, the mother took responsibility for it.
Her Honour concluded that the mother’s financial contribution to the Suburb C property was superior to that of the father, he having made no financial contribution, however she accepted that he had made a contribution towards the maintenance and conservation of the property (at [858]).
Taking into account then the father’s receipt and retention of the redundancy payment and his remittance of money to Country BF, her Honour assessed the mother’s contribution based entitlement as being 90 per cent (at [860]).
Turning to the future, the primary judge considered that the father’s violent behaviour towards the mother made her contributions as parent and homemaker harder during the relationship and after separation, and the father’s violence with the concomitant PTSD has impacted her capacity to work. The primary judge was unable to say whether on the evidence, the mother will be in a position to work again. The mother’s future needs were assessed at 10 per cent (at [867]).
In concluding that the mother was, in effect, to retain 100 per cent of the Suburb C property, the primary judge took into account that the father’s property in Country BF was worth $200,000. Further, the primary judge took into account that the father would retain his superannuation interests then in the sum of about $83,000, he having removed $20,000 from that fund shortly before the hearing (at [868]).
Grounds of appeal
Eleven asserted grounds of appeal were raised in challenge to her Honour’s property settlement order. Grounds 1, 8 and 10 are not proper grounds of appeal as they are framed as submissions.
Ground 2 asserts:
2.Her Honour touched on section 90 SF(3) at paragraph 867 with a reference to what appears to be sub-paragraph (r) finding that what is commonly called the Kennon factor which was dealt with more recently in Britt and Britt (2017) FLC93-764 favoured the mother and to the extent that the father’s contributions as a parent and homemaker since [the child’s] birth should be annihilated. Her Honour thereby fell into error by adopting a punitive approach.
(Emphasis in original)
No oral submissions were advanced to support the property appeal neither did the Summary of Argument on which the father relied. In fact, the father’s Summary of Argument on this and the other grounds of challenge to her Honour’s property orders was said to be “sufficiently self revealing not to require a summary of argument”.[37]
[37] Father’s Summary of Argument filed 11 March 2021 at page 6, paragraph 2.
Regrettably we do not find them to be so. As our summary of her Honour’s reasons make plain, her Honour’s decision that the mother’s contributions of all kinds resulted in her receiving 100 per cent of the value of the Suburb C property took into account many of the factors to which s 90SF(3) of the Act speaks. True it is that her Honour took into account the clear (and now unchallenged) findings as to the father’s violence towards the mother, however she was entitled to.
Next, the father contended that in coming to her conclusion about the contributions of the parties the primary judge failed to take into account the father’s contribution to the care of the child since September 2017 made without financial contribution by the mother (Ground 3).
In submissions to the primary judge, counsel for the father submitted that depending on the outcome of the hearing, if the child remained in the care of the father, he would have the ongoing care and financial responsibility for the child.[38]
[38] Transcript 14 August 2020, p.817 lines 37–40.
Her Honour indeed took it into account as her observation that the father’s care of the child was a s “75(2) factor and probably a post-separation contribution given non-financial contribution”.[39]
[39] Transcript 14 August 2020, p.817 lines 43–44.
In oral submissions to the primary judge counsel for the father submitted that were the child to remain in his care it would reflect itself in a contribution of 10 per cent of the net property on top of the 15 per cent that counsel proffered would reflect the father’s non-financial contributions to the property and other contributions.[40]
[40] Transcript 14 August 2020, p.820 lines 28–43.
Clearly then the father’s assertion that his contributions to the welfare of the child after he was removed from his mother’s care and over the next 10 years was said to be reflected in a 10 per cent adjustment. At the date of her Honour’s orders however, she had determined that the child would be immediately returned to live with his mother. Given the narrow reach of the adjustment sought over the next 10 years, it is little surprise that she made no adjustment to the father for his contribution to the child over the three years the child had been living with him.
We see no error in her Honour’s approach.
Next it was argued that the primary judge failed to take into account the father’s responsibilities to maintain himself and his new family (Grounds 4 and 5).
The father is in a stronger financial position to that of the mother. His Financial Statement filed in June 2020 shows him in receipt of JobKeeper allowance of $750 per week and he then had about $93,000 in superannuation. The father’s partner’s Financial Statement filed in June 2020 shows that she owns a property which she values at $850,000 and on which she apparently owes $197,000. She had, at the date of swearing the statement, about $50,000 in savings.[41] Her Honour found that the father has a capacity to work which he was exercising at the date of the hearing. She further concluded that the relationship with the mother had made no impact on his earning capacity (at [866]).
[41] Financial Statement of the father’s new partner filed 10 June 2020 at page 6.
The mother by comparison receives an average of $330 per week by way of employment assistance benefits and she values the total value of property owned by her at $2,000. The primary judge found that the mother was not then working and was unable to say when or indeed whether she would be able to re-enter the workforce (at [864]).
The evidence demonstrated that the father was in a significantly superior position to that of the mother both as to his weekly income and his capacity to earn money to support himself and his family as can be seen from her Honour’s reasons in which she set out the parties’ relative financial positions (at [847]). Principal of those reasons were her Honour’s conclusion that the father was then working and earning money and there was no evidence that he could not continue to do so. It is apparent then that her Honour took into account the father’s financial responsibilities and no error has been demonstrated.
Curiously it was next submitted that her Honour erred in failing to “take judicial notice of” and take into account that because the father had allowed the mortgage on the Suburb C property to fall into arrears, he was now regarded as a debt defaulter and proceedings were taken against him by the bank, with the result that his credit rating is impaired and subsequently it is difficult for him to obtain a home loan or other credit (Grounds 6 and 7).
We say “curiously” because the Suburb C property was in the father’s name, and he and he alone was responsible for the mortgage until about 12 months after he left it. The evidence before the primary judge was to the effect that despite the mother’s requests, the father refused to provide her with information about the mortgage or its balance even though he was not paying it (at [827]). Any detriment to his credit rating and capacity to obtain a loan arising out of his default results from his considered actions. We see no basis on which this could have properly formed part of her Honour’s assessment of the relevant contributions and no error is made out.
Next, it was argued that notwithstanding the input of significant funds to the acquisition and maintenance of the Suburb C property by the maternal grandmother, it had not resulted in a significant reduction in the mortgage balance and thus the contributions of both the mother and her mother should be seen as doing no more than preventing the bank from taking possession of the property (Ground 9). We do not understand the error being asserted and the written argument leaves us no better informed.
Finally, the father argued that her Honour erred in the making of Order 18 which required the father to transfer to the mother all of his right, title and interest in the Suburb C property and remove any caveat lodged on the title, and that the mother simultaneously refinance the mortgage secured on the title “such that the father is removed as a borrower or mortgagor”. The issue with this order, it was said, was that her Honour “failed to impose a time frame for the mother to pay out the mortgage debt and left the father in [a] situation of being indebted to the Bank indefinitely” (Ground 11). We do not understand this argument as the order provides for simultaneous compliance, that is the property is to be transferred to the mother once she has refinanced the mortgage. While it was submitted on the appeal that there was no indication by the mother that she can refinance the mortgage, it was pointed out that compliance with this order is in the father’s hands in that he needs to assign his beneficial interest in the Suburb C property to the mother, in order to be released from any liability from the debt. There is no error in the making of this order.
We are unpersuaded that, on the facts taken into account by her Honour, any challenges to property settlement orders are made out.
However, we are conscious that, given the outcome of the appeal, the parenting orders are to be set aside and the parenting proceedings will be re-heard by another judge. The outcome of that hearing may be different to her Honour’s decision. The primary judge declined to make the adjustment of 10 per cent in favour of the father, as sought by him, because the child would henceforth be living primarily with the mother and not him. Indeed part of the reason given for making an adjustment of 10 per cent in favour of the mother was that that she would have almost sole care of the child which would adversely impact upon her capacity to work (at [864]). That may not be the position after the re-hearing.
In short, the factual basis for the determination of this issue will now be re-considered and it would be unjust for the property settlement orders to stand in circumstances where a significant fact relevant to their determination is again in issue. The property settlement issues too will be remitted for re-hearing.
DELIVERY OF JUDGMENT
The submissions of the Independent Children’s Lawyer identified significant concerns that attended the delivery of her Honour’s judgment generally and in particular in relation to Orders 2, 6 and 7 within the suite of orders her Honour made. Those orders are as follows:
2.At the expiration of two weeks from the date of these orders, the child… shall live with the mother and the mother shall have sole parental responsibility for the child.
…
6.Within 48 hours of the date of this order the mother, and the maternal grandmother if she wishes, is to make an appointment with Mr [M] to receive therapeutic assistance and advice as to the transition, age appropriate communications with the child in relation to the child’s parental circumstances and his change in living circumstances from the father’s primary care to the mother’s primary care.
7.Within 48 hours of the date of this order the father, and [the father’s new partner] if she wishes, is to make an appointment with Mr [M] to receive therapeutic assistance and advice as to the transition, age appropriate communications with the child in relation to the child’s parental circumstances and his change in living circumstances from the father’s primary care to the mother’s primary care.
Order 17 provided that the Independent Children’s Lawyer be immediately discharged.
The parties and particularly the Independent Children’s Lawyer were notified by her Honour’s chambers at 5.12 pm on 18 December 2020 that judgment would be delivered three minutes later, that is at 5.15 pm. The email notifying the parties and the Independent Children’s Lawyer contained a Microsoft Teams link to enable the lawyers to attend delivery of judgment if they chose.
The email from her Honour’s chambers was not seen by the solicitor for the Independent Children’s Lawyer until 6.00 pm on that day although as counsel for the Independent Children’s Lawyer submitted, since but three minutes notice was given before judgment was delivered, it was improbable that the solicitor for the Independent Children’s Lawyer would have seen it in time to be present for the delivery of the reasons. In this case, the solicitor for the Independent Children’s Lawyer proposed to make an application to the court prior to the delivery of judgment, but of course, could not do that on three minutes notice.
A number of obvious difficulties arise when Orders 2, 6 and 7 are considered. First, the orders dictated that the child’s residence be changed within two weeks of the order, that is no later than 5.15 pm on New Year’s Day. Secondly, as the evidence before the primary judge made clear, such a significant change in the child’s life required him to have psychological support and assistance. The orders requiring the parents to contact Mr M within 48 hours of the date of delivery expired at 5.15 pm on Sunday 20 December 2020.
Given that the following week comprised three working days before the Christmas break, it was argued that on their face, it was unlikely that the orders about consulting Mr M would be able to be given effect.
The Independent Children’s Lawyer submitted that the notice of delivery of judgment was unreasonable and deprived the solicitor for the Independent Children’s Lawyer the opportunity of bringing to her Honour’s attention that it may be impossible to comply with the orders made given the shortness of time in which various events were to take place. Further, given the time of year, there was no reasonable possibility that any therapeutic assistance for the child could be put in place before the change of his residence was to take place, with the obvious consequence that the child would be removed from his present home to that of his mother with no professional assistance to him to manage the change.
The harsh reality of this was realised when Mr M, who was then on leave, had to tell the child about the move over a Zoom call on New Year’s Eve.
The Independent Children’s Lawyer submitted that had she received adequate notice of the delivery of reasons, she would have sought a stay of the orders for a few weeks in order for her to make arrangements to comply with the orders and to fulfil her legislated and professional obligations of meeting the child with Mr M to explain to him, face to face, the effect of the orders and what they meant for him, and to do whatever she could to ensure that the child and his parents received adequate and appropriate therapeutic assistance before the child was moved.
Unfortunately none of those things was done because the primary judge effectively gave the parties no notice of the delivery of judgment and, in our view the Independent Children’s Lawyer rightly complains about the unfairness of the process.
It is an essential characteristic of courts that they sit in public so that the proceedings may be subject to public and professional scrutiny. In this way public confidence in court is maintained. Further, open justice requires a court to publish its reasons. In his article “Why Write Judgments?”, Sir Frank Kitto said:[42]
… It is not enough that the hearing of a case has been in public. The process of reasoning which has decided the case must itself be exposed to the light of day, so that all concerned may understand what principles and practice of law and logic are guiding the courts, and so that full publicity may be achieved which provides, on the one hand, a powerful protection against any tendency to judicial autocracy and against any erroneous suspicion of judicial wrongdoing and, on the other hand, an effective stimulant to judicial high performance…
[42] The Hon Sir Frank Kitto KBE, “Why Write Judgments?” (1992) 66 Australian Law Journal 787, 790.
Of course, it is undeniable that if there is a public interest in the reasoning process being “exposed to the light of day” so too should the parties and those who supported them have the same opportunity. One can imagine that in this case both parents, whatever the outcome, would have needed to prepare themselves and perhaps have the support of their lawyers to explain the orders and the reasons for them.
Counsel for the Independent Children’s Lawyer powerfully set out the difficulties, both practical and legal, in her Honour giving no opportunity to the Independent Children’s Lawyer to attend to receive the judgment nor for that matter, no sufficient notice of delivery so as to allow any application either the Department or the Independent Children’s Lawyer may have wished to make before orders were made.
The unfair and impractical manner in which judgment was delivered affronted the principle of open justice. This practice, if it be a practice, ought be firmly discouraged.
POST SCRIPT – APPLICATION TO REOPEN
Following the conclusion of this appeal and while judgment was reserved on 7 June 2021 the mother applied to reopen the appeal to allow her to make further written submissions. The re-hearing was necessary because, the mother said, that on reading the transcript of the appeal she “identified two new matters that were raised by the Full Court”.
On 11 June 2021 directions were made that the mother file short submissions as to why the appeal should be reopened and further brief submissions on the application in the event that it was granted. Directions were made for the filing of submissions in response by the other parties. The father and the Department both responded, each opposing the application. The Independent Children’s Lawyer declined to make further submissions.
The thrust of the mother’s submissions is that neither of the two identified matters was the subject of a ground of appeal but, rather, arose during the oral argument. She said that as a result she was “caught by surprise” and had no opportunity to give instructions to her counsel on those issues. The “new matters” identified by the mother were identified as whether the primary judge took into account the likely effect of a change of living circumstances on the child and secondly, why the primary judge gave no weight to the child’s wishes.
The application is extraordinary for a number of reasons, not least of which is that the mother was represented by a Queen’s Counsel experienced in family law, who wrote and signed the Summary of Argument, who appeared before the Full Court and made submissions opposing the appeal.
We do not accept that either of these “new” issues was not comprehended in the grounds of appeal. Grounds 1 and 2 of the Amended Notice of Appeal squarely challenge the primary judge’s failure to take into account the effect on the child of a change of living circumstances. Indeed, to lay to rest any suggested ambush in this challenge being advanced, the mother’s Summary of Argument from paragraph 11 deals with just this issue and at paragraph 14 argues:
14.Her Honour engaged with the consequences of a change in [the child’s] living arrangements at [637], [696] & [712] identifying that a change to the live-with order would be traumatic and impact negatively on the child emotionally, as well as Prof. [TT’s] evidence and report at [685]-[734].
Paragraph 23 and following which deal with Ground 2 continue and argue the point that the primary judge took into account the various effects of change on the child.
Ground 4 in the Amended Notice of Appeal concerns the child’s expressed wishes and the primary judge’s treatment of them. No submissions were addressed to this ground in the mother’s Summary of Argument.
Neither of the issues was “new”.
Nothing in the affidavit in support of the application nor in the supplementary submissions adds anything to the issues argued on the appeal and we do not propose to take those submissions into account.
This application will be dismissed.
COSTS
The father did not seek an order for costs against the mother if the appeal was allowed, nor did any of the parties seek an order for costs certificates.
Therefore, there will be no order as to costs and no costs certificates will be granted for the appeal or the re-hearing.
I certify that the preceding one hundred and forty-seven (147) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Ainslie-Wallace, Aldridge & Tree. Associate:
Dated: 5 July 2021
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