Langley & Tarelli (No 5)

[2023] FedCFamC1A 208

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Langley & Tarelli (No 5) [2023] FedCFamC1A 208

Appeal from:

Tarelli & Langley [2023] FedCFamC1F 386

Appeal number:

NAA 160 of 2023

File number:

PAC 4311 of 2014

Judgment of:

HARPER, CARTER & BRASCH JJ

Date of judgment:

27 November 2023

Catchwords:

FAMILY LAW – APPEAL – Parenting – Where appellant sought to appeal final property and parenting orders – Where the appeal against property orders was abandoned – Where the appellant’s grounds of appeal confined to those addressed in her Summary of Argument – Where this is the third appeal from final parenting and property orders –
Where child has been the subject of litigation for close to the duration of their life – Where primary judge made orders for the child to live with the respondent and for the respondent to have sole parental responsibility – Where the appellant granted leave to communicate with the child by way or letters, cards or gifts and electronically at the child’s instigation – Where child lives with the respondent and stepmother and has spent no time with the appellant for six years – Where the respondent perpetrated egregious family violence against the appellant between 2012 and 2015 – Where as a result of the family violence the appellant was unable to spend time with the child if they remained living with the respondent – Whether primary judge erred in failing to consider potentially significant evidence – Whether primary judge failed to have consideration to family violence – Weight placed on the views of the child – Whether primary judge failed to consider the appellant’s proposed amended spend-time with order – Whether the primary judge failed to appropriately consider s 60CC(2)(a) of the Family Law Act 1975 (Cth) – No error established – Appeal dismissed – Appellant ordered to pay the Independent Children’s Lawyer in the fixed amount of $5,000.

Legislation:

 Family Law Act 1975 (Cth) Pt VIII, ss 60CC, 60CC(2)(a), 60CC(2)(b), 79

Cases cited:

Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165

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

Baghti & Baghti [2015] FamCAFC 71

Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

French & Fetala [2014] FamCAFC 57

Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84

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

Langley & Tarelli (No. 4) [2021] FamCAFC 107

Langley & Tarelli [2019] FamCAFC 30

Newett and Newett (No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11

Saltern & Mink [2020] FamCAFC 320

Tarelli & Langley (No. 4) [2020] FamCA 1095

Tarelli & Langley [2017] FamCA 708

Tarelli & Langley [2018] FamCA 522

Tibb v Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142

Walpole & Secretary, Department of Communities and Justice (2020) FLC 93-950; [2020] FamCAFC 6

Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; [2003] HCA 48

Number of paragraphs:

100

Date of hearing:

1 November 2023

Place:

Sydney

The Appellant:

Litigant in person

Counsel for the Respondent:

Mr Shaw

Solicitor for the Respondent:

F.W.Ewart & Ewart

Counsel for the Independent Children's Lawyer:

Ms Shea

Solicitor for the Independent Children's Lawyer:

Legal Aid NSW

ORDERS

NAA 160 of 2023
PAC 4311 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS LANGLEY

Appellant

AND:

MR TARELLI

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	HARPER, CARTER & BRASCH JJ
DATE OF ORDER:	27 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.Within 60 days of the date of these orders, the appellant is to pay the costs of the Independent Children’s Lawyer fixed in the amount of $5,000.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

HARPER, CARTER & BRASCH JJ:

INTRODUCTION

1. This is an appeal from parenting and property orders made on 18 May 2023, brought by the appellant mother (“the mother”).

2. Although the Amended Notice of Appeal filed on 13 September 2023 sought an order for the re-exercise of discretion under s 79 of Pt VIII of the Family Law Act 1975 (Cth) (“the Act”), no grounds of appeal or submissions were directed to the property orders of the primary judge. The mother conceded that she could not sustain any challenge to the property orders made by the primary judge.

3. The appeal was therefore limited to challenges to the parenting orders. The Amended Notice of Appeal alleged in total some 51 grounds of appeal, through a combination of paragraphs and subparagraphs, challenging the parenting orders.

4. The mother also filed four Applications in an Appeal. The first, filed on 25 September 2023 sought leave to submit some further documents into evidence in the appeal. No objection was raised by the respondent father (“the father”) or the Independent Children’s Lawyer (“the ICL”), and leave was granted.

5. The other three applications each sought an extension of time for the filing of the mother’s Summary of Argument. The most recent application was filed on 30 October 2023, the day before the appeal was heard, seeking an extension up to 30 October 2023. The mother filed an affidavit in support annexing her most recent iteration of her Summary of Argument. The father and the ICL raised no objection to the Court receiving this version as the mother’s Summary of Argument. The Court acceded to her application filed on 30 October 2023, and dismissed the earlier two applications because they had been superseded.

6. However, this most recent iteration of the Summary of Argument addressed none of the grounds articulated in the mother’s Amended Notice of Appeal. It addressed only seven grounds, which appeared to have some overlap with the grounds in the Amended Notice. These seven grounds were those addressed by the father and the ICL. The appeal was therefore conducted on the basis of the seven grounds of appeal set forth in the Summary of Argument provided on 30 October 2023. The mother accepted that her appeal was confined to those grounds. The grounds in the Amended Notice of Appeal were otherwise abandoned.

   BRIEF BACKGROUND

7. As the primary judge observed, these proceedings have an extremely sad history. He adopted the procedural and historical chronology set out by Henderson J in Tarelli & Langley (No. 4) [2020] FamCA 1095 (“Tarelli & Langley (No. 4)”). We consider it unnecessary to repeat that history in full. We will refer to aspects of it as necessary in the course of these reasons. In that regard, the following matters should be specifically mentioned here.

8. The child and the parties have been involved in litigation for almost the child’s entire life.

9. The parties commenced a relationship in about April 2012. The child was born on 5 February 2013. The relationship ended in either December 2013 or February 2014. Parenting proceedings were commenced in 2014 by the father.

10. On 8 July 2015, the Department of Family and Community Services (“the Department”), as it was then known, was granted leave to intervene in the proceedings.

11. On 8 September 2017, interim orders were made for the child to be immediately placed by the Department into his father’s care and for the mother to spend time with the child as directed by the Secretary or his delegate (Tarelli & Langley [2017] FamCA 708). The child was collected from his preschool that afternoon by a member of the Department and placed in the father’s care. As the primary judge observed, this was a “pivotal” court event (at [7]).

12. The first trial took place between October and November 2017. It appears the child and the mother spent some time together after 8 September 2017 but contact ceased after 8 November 2017. Judgment in the first trial was then delivered on 27 June 2018 (Tarelli & Langley [2018] FamCA 522). The father and the Department were given sole parental responsibility and the child was ordered to live with the father and spend supervised time with the mother as directed. The mother appealed. The first appeal was conceded on 21 February 2019, the final parenting orders were set aside and the proceedings were remitted for rehearing (Langley & Tarelli [2019] FamCAFC 30). Consequently, the interim orders of 8 September 2017 continued to govern the parenting position.

13. The rehearing took place in August 2020 and judgment in the second trial was delivered on 18 December 2020, ordering the immediate return of the child to the mother’s care and supervised time with the father (Tarelli & Langley (No. 4)).

14. Pursuant to the orders made on 18 December 2020, there was an attempt on 1 January 2021 to transition the child from the father to the mother’s care. This was abortive and disastrous. When the mother came to collect the child from the father’s residence, she became extremely distressed. This frightened and upset the child. No transition took place. There was video evidence of this incident before the primary judge to which we will return. The father then appealed, and the orders of 18 December 2020 were stayed pending appeal.

15. The second appeal was allowed on 5 July 2021, setting aside the orders made on 18 December 2020 (Langley & Tarelli (No. 4) [2021] FamCAFC 107). The matter was remitted for a further hearing and interim parenting orders were made pending re-determination. The Full Court commented at [13]:

    13. 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.

16. The third trial took place between July 2022 and April 2023 before the primary judge. He delivered judgment and made final orders on 18 May 2023, being the orders the subject of this appeal.

17. The primary judge allocated sole parental responsibility to the father, ordered the child to live with him and made no order for time with the mother. But the primary judge made provision for the father to inform the mother if the child expressed a wish to see her, and facilitate communication, either electronically or by letters cards or gifts from the mother. The father was directed to authorise the child’s school to provide information such as school reports to the mother, and imposed restraints on each party from attending within 100 metres, or entering upon or remaining in any place of residence or employment of the other.

18. Consequently, the child presently lives with the father, and has done so since 8 September 2017. The father has re-partnered with Ms S. They have been in a relationship for about seven years, and have, a daughter, BD, who is the child’s half-sister.

19. A central part of the mother’s case, at all times since the proceedings began, has been allegations of serious family violence perpetrated against her by the father during the course of their short relationship, including pushing, shoving, threatening statements, sexual assaults, denigration and name calling on numerous occasions between October 2012 and March 2015. This has resulted in material psychological damage to the mother. As the primary judge recorded:

    12. Critical to the mother’s presentation was an assertion by her that during the relationship with the father, she was the victim of entrenched and grievous family violence perpetrated by him. The mother asserted that the consequences of the father’s egregious conduct was that she suffered from Post-Traumatic Stress Disorder (“PTSD”) with the distressing sequelae that she was not able to spend time with the child if he lived with the father.

20. The father consistently denied allegations of family violence during the proceedings until August 2020. One reason for the child being removed from the mother’s care in 2017 appears to have been the perception by the Department, which was conveyed to the Court, that the mother’s allegations were unfounded. However, the father eventually conceded some of the allegations were true. He pleaded guilty to three counts of common assault of the mother and entered into a statement of agreed facts which was presented to the sentencing court as the basis for the charges against him. He was sentenced in August 2020 to an 18 month Intensive Correction Order (“ICO”). The father did not spend any time in prison but rather served the ICO within the community. The ICO was discharged on or about February 2020. The mother was also successful in obtaining an Apprehended Domestic Violence Order (ADVO), naming her as the protected person and which expired in July 2022.

    THE PRIMARY JUDGMENT

21. At the time of the hearing before the primary judge the child had turned 10 years old and had not spent any time with the mother for nearly six years. By the time this appeal was heard, the child was closer to eleven years old and had not spent time with his mother for more than six years.

22. At trial, the father proposed that the child live with the father, that he have sole parental responsibility, and the child spend time with the mother in accordance with his wishes, but that any such time be supervised for the first six months and thereafter as recommended by Professor TT.

23. The mother initially proposed a reversal of primary care, for the child to live with her and spend four hours each month with the father. By the end of the trial the mother proposed, in addition to the child living with her, an initial six week period of therapeutic assistance to prepare the child for the transition to her care followed by weekly therapy sessions with the mother to assist with the reunification and stabilisation of the relationship with her. Thereafter the child should spend such time with the father as the Court determined to be in the child’s best interests. By the conclusion of the hearing the mother’s proposals appeared to contemplate overnight visits.

24. It is important to note that his Honour explained:

    53. The mother considers that the choice for the Court is limited to the following options:

    (1) That the child live with the father and spend no time with the mother; or

    (2) That the child live with the mother and spend time, albeit limited, with the father.

    (Footnote omitted)

25. In other words, the mother could not countenance a parenting outcome whereby the child continued to live with the father and spend time with her. The primary judge recorded at [54] that “[the mother’s] diagnosis that she suffers from PTSD was as direct result of the violence inflicted upon her by the father. As a result, the mother is not able to contemplate an outcome other than the two options that she puts forward”.

26. His Honour continued:

    55. If the child remains in the primary care of the father, then it is the mother’s contention that the child will never have a relationship of significance with the mother irrespective of whether the Court finds that the father’s home is an environment where the child is exposed either to negative views of the mother or the lack of any commitment to foster the child’s relationship with her.

    56. It is further argued that whilst a transition from the father’s care to the mother’s would be difficult and distressing, if appropriately managed such an outcome could be achieved with appropriate therapeutic assistance for the child.

    57. The mother’s proposal is predicated upon consideration that the child had a primary attachment with her in the early years of his development and as such, that relationship could be rekindled if done in a sensitive and considered approach. Moreover, the mother considers that her diagnosis of PTSD arising from the father’s violent and abusive conduct resulting in the tragic outcome that the mother cannot now countenance the child remaining in the father’s care, should not be used as a barrier to the Court making an order that restores the child’s relationship with the mother.

27. The father gave oral evidence. The primary judge found him to be an unreliable witness. His partner Ms S also gave oral evidence. The primary judge found she was a reliable and credible witness. He also found:

    104. Ms S demonstrated good insight into the needs of the child. She was responsive to the therapeutic needs of the child and it is apparent from her evidence that she has formed a close emotional attachment to the child. Her evidence enables a finding that her continued involvement with the child is integral to his welfare and development.

28. The ICL relied upon two single expert reports of Professor TT, dated 30 July 2020 and 25 July 2022. Professor TT also gave oral evidence. His Honour discussed Professor TT’s evidence at length at [106]–[137]. He found her to be “an impressive witness who brought considerable skill and expertise to her evidence” (at [137]). A number of elements of Professor TT’s evidence should be noted, as recorded by the primary judge.

29. Professor TT expressed the view that it would be difficult for the mother “to focus on the needs of [the child] if he were returned to her on a full-time capacity” and “she will have underlying vulnerabilities and a particular proclivity to identify her former ex-husband with her father, thus experiencing a re-enactment of early trauma” (at [108]). In her interviews with the child, for her report of 25 July 2022, he disclosed “he has been very upset and worried when he felt he might be returned to the care of his mother”, his “happiness with his current family arrangement and the connections he has with his stepmother’s extended family” and that he was “angry, and distressed and felt his wishes were not adequately taken into account” (at [110]). Professor TT found the child to be “intelligent and articulate and able to reflect on his situation” but observed that speaking to his mother and maternal grandmother “would make him very unhappy’ and he was angry that the “Court proceedings were unrelenting” (at [111]–[112]).

30. Regarding the father’s past violent behaviour, the primary judge summarised Professor TT’s evidence as follows:

    119. Professor TT was asked to consider the potential for the father to revert to his previous conduct of significant family violence. Whilst that has not been assessed, Professor TT considered that whilst there always remains a risk of a person who has engaged in significant and damaging family violence, sufficient time has passed without there being a regression on his part which is likely to be a relevant and possibly promising consideration.

31. Regarding the child, the primary judge recorded that Professor TT concluded:

    114. …       

    … [The child] appears to be very much supported in his current living arrangements and there are considerable risks involved in separating him from a stable network of relationships and the feelings of security that he experiences. It appears that his overall level of anxiety and his feelings of safety have increased more recently, and he is adapting to a new school environment.

1. The primary judge further noted Professor TT’s evidence as follows:

   (a)“The gravamen of the child’s presentation is that he could not tolerate not being in the home of his father, stepmother and sister” (at [120]);

   (b)“[T]he child could not understand his predicament in that he does not know, nor does he have the necessary skills, to balance the competing considerations of his mother and his father” (at [121]);

   (c)On the likely consequence of the mother’s proposal at [123]:

   123.… Professor TT was categorical in her evidence that the child would experience a high level of distress. She considered that the child positively interacts with the father and is very close to Ms S and his sister. Professor TT opined that the child sees Ms S as his mother and feels safe in his father’s home. In summary, the child cannot understand why that should be disrupted.

   (d)On the outcome of a change in the primary care arrangements at [124]:

   124.… a change in the current primary care arrangements may well result in the child risking depression and anxiety. The consequences would be serious and he would likely have feelings of loss and anger and not be able to understand why he is not being heard. …

2. The primary judge noted at [125] that in her oral evidence Professor TT:

   125. … further considered the consequence to the child leaving the father’s home and gave evidence as follows:

   … So things he values as a – as a young – young boy growing up and in their new living – living area, which he’s finding very, very positive. He also is very close to his stepmother and sees her as his mother, and in a very clear way. He has expressed views that they are very close, which is – which is true. That he feels safe there and he cannot understand why that would be disrupted. And I think there’s a real – I think, an inherent risk in that situation of great distress, feelings potentially longer term of depression, a grief reaction. I mean, children whose attachment relationships are abruptly severed, if they are very important and sustaining positive relationships for them, which children can develop even if things have been through very difficult periods, which is the fact in this situation. Disrupting those attachment relationships is a traumatic experience. I would be concerned from a – a clinical point of view that this is a vulnerable child who has already experienced disruptions, feelings of rejection, confusion, so he would have quite a significant risk of acute distress in the short term and, again, be at greater risk going forward of having unresolved feelings of loss, grief and also anger directed at those who he feels are making – attempting to control him, if you like, or put him in a position that he feels not involved in or not heard. He repeated that to me on several occasions in our – in our discussion.

   (Footnote omitted)

3. His Honour continued:

   127. It was the opinion of Professor TT that when children and adolescence get angry and are distressed, there could be a risk of self-harm and anger turned towards himself with a further possibility of oppositional behaviour.

   128. The concern is that the mother might have difficulty in dealing with the child’s anger and not be able to deal with oppositional behaviour if the child is placed in her care.

   129. A further risk is that any oppositional behaviour on the part of the child and expressions of anger may well trigger emotional dysregulation with the mother given her emotional fragility.

   130. Professor TT was asked to consider if there were to be a transition from the father’s care to that of the mother, how might this be best achieved. Her opinion was that it would be difficult and at least six months would be required to enable the child to be better prepared. At present, the child remains negative and highly resistant to a transition. A quick transition was considered by Professor TT to be the option that would most likely place the child at the highest risk of emotional harm.

   131. Having seen the vision of the ill-fated handover, Professor TT considered that the event had likely solidified the child’s feelings of uncertainty as he knew that the exercise was to take him from his father and require him to remain with his mother. It was considered to be a cruel procedure and the behaviour of the child in running away from the maternal grandmother was understandable in that the child was in such a state of distress that he had to take assertive action given he was not able to express himself.

4. Importantly, the primary judge noted the view of Professor TT that it is likely that any reunification with the mother could only be achieved, if at all, “if the child was able to spend significant and substantial time in the father’s home” (at [133]).

5. His Honour concluded:

   134. In evidence, Professor TT confirmed that she had looked at the video of the attempted handover and found the impact on the child to be traumatic and deeply concerning. It also had the potential or possibly the unfortunate outcome of having solidified the child’s negative perception of the mother.

   135. Professor TT also gave evidence that confirmed her stated position namely, that the transition of the child from the father’s primary care to the mother could not be effected in less than six months, if at all. The transition was considered to be made more complex by the child being angry and having expressed strong feelings about any possibility of removal from his father’s home.

6. The primary judge then turned to consider the evidence of Dr G and Dr AY. These experts were called by the mother. Dr G had observed the child and mother in 2017 but had not met or spoken with the child since. He expressed the view, which the primary judge accepted, that the mother did not present a risk to the child, and since 2017 she had gained significant benefit from the BY Clinic Program to help her understand her past traumas and put in place practical steps to prevent or minimise the prospect of PTSD symptoms.

7. Dr G was not cross-examined. There was an important limitation on his evidence as the primary judge observed:

   151. The evidence of Dr G is however, constrained by the submission expressed clearly by counsel, that it only applies if the child is placed in the primary care of the mother with the issue then being the extent to which the child would spend time with the father. The evidence does not assist in a consideration of whether the mother would be able to spend time with the child if he remains in the primary care of the father.

8. His Honour noted that Dr AY had not observed the child and “knows nothing more of his circumstances other than from the history provided by the mother” (at [153]). He was alive to limitations in the evidence of Dr AY:

   155.Consistent with the limitations placed on the evidence of Dr G, Dr AY confirms that whilst there can be some confidence that the mother could cope with the child spending time with the father beyond the four hours per month as initially proposed by her, it would be a bridge too far for the mother to be able to spend time with the child if he remained in the father’s primary care.

9. Mr M, an experienced Family Consultant, also gave evidence in the mother’s case. He had a long involvement with the mother, conducting almost 100 consultations with her since 2015. In relation to the child moving to the mother’s care the primary judge recorded Mr M’s evidence:

   164. Mr M was asked to consider what would be an appropriate process to be undertaken in order to effect a transition of the child from the father to the mother. Mr M considered that at the very least, two months would be required and even with the best of intentions, the process would not be without its problems. It would require a uniformly supportive approach by all of those who are currently engaged with the child and even if that were to occur, the child may still question what would happen to his relationship with his father, his stepmother and BD.

   165. Mr M did not think that he could provide further assistance given his involvement with the child and moreover, it would be difficult to find another expert or therapist who could undertake and provide the necessary therapeutic support for the child.

10. The primary judge then addressed the mandatory considerations set forth in s 60CC.

11. In addition to the evidence given by Professor TT (above at [29]) the primary judge considered the question of risk in light of the family violence perpetrated by the father:

    185. Whilst the father did not support the full suite of allegations of family violence as made by the mother, he did plead guilty to three counts of assault. I found the evidence of the father to be unreliable and give no weight to his assertion that far from the mother being fearful of him, he remains in fear of the mother.

    186. The contention on behalf of the mother is that it would be egregious for the child to remain living in the care of the father in circumstances where the DCJ did not believe the mother’s allegations and interpreted her conduct as being abusive. The benefit that would enure to the child of having a relationship with his father. The more accurate position is that the father’s violence should have resulted in the child being in the mother’s primary care.

12. At [188]–[199] his Honour considered the benefit of a meaningful relationship with each parent. The fundamental context for this consideration was the fact that the child had been living with the father and had not seen the mother for nearly six years. His Honour noted the expert evidence of Professor TT that it would be practically difficult to facilitate the child leaving the father, Ms S and BD and that the child was strongly motivated to resist resuming a relationship with the mother, and even the maternal grandmother, leading to the possibility that the child no longer maintains a relationship with the mother. The primary judge recorded at [191]:

    191. Professor TT has emphasised the importance of the relationship between the child and Ms S and it was her evidence that a change in the primary care is likely to cause the child to experience extreme distress with the potential for the development of a deleterious mental health outcome incorporating the possibility of self-harm given it would be the third change of the child’s primary residence.

13. His Honour recorded that “Mr M was unequivocal in his view that if a transition is possible, then it must occur over a long period of time” (at [194]), and “conceded that the child would not react well to the idea of him leaving the security of his father’s home to live with his mother” (at [195]). Mr M expressed the view that “even after a sufficient amount of time to stabilise the child therapeutically, it still may not be possible to effect a handover” (at [196]), and “[g]iven that any further attempts to change the primary care would be considered by the child as a third traumatic occasion, the likelihood of a successful transition must be guarded” (at [197]).

14. The primary judge recorded that Mr M frankly admitted that:

    198. … there were no other people who are likely to be available to engage in a complex therapeutic relationship with the child and therefore the emotional bridge that needs to be built enabling the child to consider that there was a safe pathway from the father’s care to the mother’s is highly problematic.

15. The primary judge concluded:

    199. Even were there to be a reasonable chance of the child gaining sufficient therapeutic assistance to effect a transition to the mother’s care, the difficulty is that in her present frame of mind, the mother could not contemplate the extent of time that may be required to enable the child to maintain an appropriate relationship with the father.

16. His Honour then returned to consider the question of risk and the need to protect the child from harm by being exposed to abuse neglect or family violence. In light of the arguments made by the mother on appeal it is convenient to set out his Honour’s findings in some detail, which appear at [200]–[207]:

    200. The evidence supports a finding that in the father’s care, the child is not subject to physical or psychological harm, abuse or neglect. I accept the evidence of Ms S that any conduct by the father which might constitute family violence would be unacceptable to her. The evidence is that the father’s egregious and appalling conduct when he was with the mother, does not appear to have been repeated after separation.

    201. The point made by the mother is that her current compromised presentation is as a direct result of the family violence perpetrated by the father and the tragic result of her not being believed, resulting in the child being placed in the father’s care.

    202. The ICL accepted that the father was the perpetrator of significant family violence however, he considers that whilst family violence should not be minimised it is nonetheless but one of the factors that is to be considered in determining what it is in the child’s best interests.

    203. The orders sought by the mother do not give proper weight to the evidence of  and Mr M that the mother’s proposal would likely cause the child overwhelming distress with the potential for an adverse mental health outcome, the possibility of self-harm and even if the transition was able to be effected, the child would likely run away from the mother’s care.

    204. At present, the child remains fearful of the mother and the maternal grandmother (to a lesser extent) and has no confidence in Mr M being able to provide an appropriate and safe therapeutic foundation.

    205. There is always the risk that the father has a latent propensity to commit acts of family violence. He did so during the relationship with the mother and whilst he pleaded guilty to three counts of assault, his attitude has been to minimise his behaviour even to the point of suggesting that he is fearful of the mother.

    206. The linchpin to the stability of the child’s current environment is Ms S. As discussed, she was an impressive witness and I accept her evidence that the father has not demonstrated or displayed any conduct consistent with family violence. Professor TT considers that the child’s primary emotional attachment may well be with Ms S.

    207. Ms S’s continued involvement in the father’s home enables the Court to find, with a level of confidence, that the child is in a safe physical and emotional environment. It is an important factor that Ms S and the father facilitate the child undergoing therapeutic assistance to place into perspective the ongoing conflict between the parties.

17. His Honour considered the wishes of the child at [208]–[213]. He found that there was “no doubt” the child expressed a strong wish to remain living with his father and spend no time with his mother. Even a telephone conversation would cause him distress although he was prepared to have one. He recorded that Professor TT considered that significant weight can be placed on the child’s wishes and Mr M conceded that it may be difficult, if not impossible, to affect a safe transition from the father’s care to the mother’s if the child maintains his current position. He recorded the child’s position as follows:

    213. The child fears that if he went to live with the mother, he would not see his father, Ms S or his sister. Given the consequences of the mother’s PTSD, the reality is that the mother would find it difficult to promote or facilitate the child’s relationship with the father.

18. His Honour went on to find that the child had a strong attachment to the father, Ms S and his half-sister, BD, but “[t]here is no evidence presented as to any residual attachment between the child and the mother” (at [214]).  His Honour noted the child does not spend any time with the mother and concluded “it is difficult to see the circumstances in which a resumption of a relationship [with the mother] may be effected without causing the child overwhelming distress, upset and psychological and emotional harm” (at [215]).

19. The primary judge then concluded “[t]he position therefore is that there is no evidence that provides a basis for the mechanics of the process to effect a transition [to the mother’s care] or to deal with the psychological and emotional sequelae that would likely result” (at [220]).

20. At [221]–[228] the primary judge again addressed the issue of family violence. He acknowledged the father’s egregious family violence directed at the mother, of such significance to cause her PTSD. He accepted the mother feared the father. He made the following findings:

    222. I acknowledge my finding that Ms S is a beneficial influence in the father’s household and I accept her evidence that the conduct of the father whilst with the mother is not repeated.

    223. I cannot ignore the strength of the evidence from Professor TT, the considerations of Mr M and the demonstrable distress of the child as portrayed in the vision of the handover of 1 January 2021, to find that a disadvantage to the child of the mother’s proposal would be adverse to his interest and would place him at significant risk of psychological and emotional harm.

    224. I am not satisfied that the mother’s orders would ameliorate or minimise the risk to the child. The evidence of Professor TT was to reinforce the concern that orders which would see the change in the child’s primary care from the father to the mother, would likely result in damaging and ongoing harm to the child.

    225. Whilst there are advantages to the child spending time with the mother in particular, if it would serve to dispel any misunderstanding that the child has as to the mother presenting as a safe and caring parent, the evidence supports a finding that there is no viable process to effect a change in the child’s primary care.

    226. The child’s best interests are served by remaining in the father’s household, however there may be some basis for the child spending time with the mother if she is able to psychologically accept such an arrangement and the child can be satisfied that if he spends time with his mother, he will remain living with his father. At present, the evidence from Dr G and Dr AY as to the mother’s therapeutic progress is still predicated on the child living primarily with the mother. There is no evidence that the mother could cope with the child remaining with the father.

    227. It is a matter for the mother in terms of her capacity to accept that the child will remain living with the father and therefore to explore the extent to which she would seek to spend time with the child.

    228. Ideally, a process could be put in place which would see the child spending each alternate weekend and half school holidays with the mother but in the absence of evidence that would support such an outcome, it is very much a matter of speculation rather than evidence.

21. Finally, his Honour observed that the parties have been before the Court since 2014 and the Court should strive to make orders which minimise the institution of further proceedings, in the best interests of the child (at [229]–[230]).

    The Salient Conclusions

22. It is helpful then to summarise here the eight salient conclusions of the primary judge. First, the child has spent no time with the mother since 8 November 2017. Secondly, the child has no residual attachment to the mother, and a strong attachment to the father, his half-sister and Ms S in particular. Thirdly, the father’s household had brought stability to the child’s life. Fourthly, the father has not exhibited any violent behaviours since separation and poses no risk to the child. Fifthly, the expert evidence showed there was little prospect of any effectual method of transition for the child into the mother’s care. Sixthly, the child was strongly resistant to moving to the mother’s care or spending time with her. Seventhly, a transition to the mother’s care would be likely to cause the child severe distress and psychological harm. Eighthly, there was no prospect of the mother, because of the damage to her mental health, countenancing the child spending time with her while continuing to live with primarily with the father.

    THE APPEAL

1. The orders appealed from resulted from a discretionary judgment. The appellant must point to the type of error long recognised in House v The King (1936) 55 CLR 499 at 504–505:

   … It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

2. The appellant bears the onus of not only demonstrating error, but that a different result might have flowed had the error not occurred (Allesch v Maunz (2000) 203 CLR 172; Saltern & Mink [2020] FamCAFC 320).

3. It is convenient next to address the grounds of appeal as they were grouped by the mother in her Summary of Argument.

   Ground 1: That his Honour erred in failing to have regard to the mother’s potentially significant, evidence and/or his Honour failed to give reasons for not considering the evidence.

   Ground 2: His Honour erred in failing to give proper, genuine and realistic consideration to family violence by failing to consider the facts of the father’s offending that constitutes family violence.

4. The contention that the primary judge failed to have regard to “potentially” significant evidence is the same as alleging he failed to consider it.  

5. Section 60CC of the Act stipulates that, in determining the best interests of a child, the Court “must” consider the primary and additional considerations set forth in subsections (2) and (3). We understand that Ground 2 is specifically directed to an alleged failure to consider s 60CC(2)(b), the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

6. In Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [43] the High Court made clear the term “consider” “imports an obligation to give proper, genuine and realistic consideration” when used in s 60CC of the Act. Throughout her submissions the mother lent heavily on the collocation “proper, genuine and realistic” as qualifiers of the necessary consideration. She argued consistently that the primary judge’s consideration in numerous ways was not “proper, genuine and realistic”. However, the asserted impropriety can only justify appellate intervention if it rises to the level of a failure to take mandatory or relevant considerations into account (Bugmy v The Queen (2013) 249 CLR 571 at [53] (per Gageler J as he then was)). Grounds of appeal criticising the primary judgment as to proper consideration, or indeed weight, are only a valid justification for appellate intervention if the result achieved is unreasonable or plainly unjust (Hedlund & Hedlund (2021) FLC 94-065 at [37]).

7. The mother’s grounds put in issue how the process of consideration was manifested in the primary judgment. The Full Court (Murphy and Cronin JJ and Strickland J agreeing) pointed out in Tibb v Sheean (2018) 58 Fam LR 351 (“Tibb”):

   83. To “consider” is to engage in something that occurs inside the mind. Plainly enough however, an assertion that a judge has failed to consider cannot be directed to what did, or did not, occur within the judge’s mind. Rather, it must be an assertion directed to how that mental activity has, or has not, manifested itself objectively. In seeking to substantiate the assertion by reference to the presence or absence of any such objective manifestations of a judge’s thinking, it must be borne in mind that:

   It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case.

   Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty [to consider all of the evidence in the case] which rests upon him or her… [Mifsud v Campbell (1991) 21 NSWLR 725 at 728 (Samuels JA)].

   84. Similarly, by reference to a parenting case and the obligation to “consider” within s 60CC, the Full Court has said:

   50. When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations… [Banks & Banks (2015) FLC 93-637].

   (Footnotes inserted)

8. In Tibb the Full Court was discussing the obligation to “consider” in s 65DAA of the Act and at [85] cited with approval the earlier Full Court’s general comments in French & Fetala [2014] FamCAFC 57 at [48]:

   48. While a consideration of the section’s requirements is mandatory and, indeed, conditions the power to make parenting orders, the breadth and depth of the court’s consideration of the requirements will depend upon the issues joined between the parties … To borrow from Mahoney JA’s quotation of Lord Scarman in a different context, the nature and extent of the requisite consideration of s 65DAA might be to “merely salute it in passing” (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269-270, per Mahoney JA citing Scarman LJ in Shah v Barnet London Borough Council [1983] 2 AC 309). In a particular case, those same considerations might lead to the requisite consideration being inferred from what is otherwise said in the judgment.

9. In Tibb the Full Court continued:

   86. Thus, the challenge directed toward the objective manifestations of a judge’s thinking (ie the manifestations of what has been “considered”) must depend upon “the circumstances of the individual case” and a failure to refer to aspects of that subjective process, for example in the reasons, does not necessarily indicate that the judge has not complied with the obligation to consider.

   87. In a case without pleadings (as is the case here) the circumstances of the case and the overt manifestations of what has been “considered” will emerge from the proposals of the parties; their evidence; the manner in which they have run their case and, for example, matters canvassed during the trial. In turn, those matters will inform what is, and what is not, included in the reasons.

   (Footnote omitted)

10. It is clear that consideration can be inferred from the transcript, the issues joined, the submissions of the parties and the judgment as a whole. The first question is therefore whether or not consideration took place, either as required by s 60CC, or the issues, evidence and submissions of the parties, not whether it fell on some spectrum of propriety, unless it can be concluded consideration did not take place. The second question is whether any failure of consideration was an error which, if not made, may have led to a different result or did lead to a result that was unreasonable or plainly unjust.

11. We accept that the absence of reference to a matter in the reasons for judgment may support the inference it was not considered (Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165 at [7]). But it has been confirmed many times that a judge cannot be expected to “rummage through a large volume of documents on the off chance that the facts might emerge” (Walpole & Secretary, Department of Communities and Justice (2020) FLC 93-950 at [53]). A judge’s reasons are not required to mention every fact or argument relied upon by an unsuccessful party (Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at [62]). A judge is required to determine only those facts which are necessary to decide the issues between the parties (Baghti & Baghti [2015] FamCAFC 71 at [63]).

12. In the same way, unless an error is reasonably obvious, the onus is on the appellant to identify the error. An appellate court cannot be expected to hunt through the broadly expressed arguments that are set out in an appellant’s Summary of Argument with a view to distilling a concise ground or grounds of appeal, nor dig through many affidavits, transcripts and decisions in order to find material which may be relevant to the questions in the appeal (Newett and Newett (No 2) (2021) FLC 94-051 at [34] referring to Bahonko v Sterjov (2008) 166 FCR 415 at [3]).

13. The mother contended that the primary judge did not have regard to the following evidence:

    1.1.1.The affidavits of [the mother] deposed 22 July 2020, 3 August 2020, 4 January 2021 and 18 January 2021;

    1.1.2.The affidavits of Ms OO [(“the maternal grandmother”)] deposed 20 July 2020 and 11 January 2021;

    1.1.3.The affidavit of Ms AW deposed 12 July 2022;

    1.1.4.The affidavit of Dr BJ deposed 13 July 2020;

    1.1.5.The affidavit of Mr J deposed 23 October 2017;

    1.1.6.The affidavit of  Ms KK deposed 13 July 2020; and

    1.1.7.The affidavit of Dr G deposed 9 September 2022.

    (Mother’s Summary of Argument filed 30 October 2023, p.1)

14. It is important to note here that it was agreed by the parties in the trial before the primary judge that he should receive the transcript and evidence which had been before the judge in the second trial.

15. The material relied upon by the mother before the primary judge was listed in her Case Outline filed on 22 July 2022:

    Evidence

    The mother relies on the following evidence that is filed:

    (a) Affidavit of the mother, sworn on 22 July 2020;

    (b) Affidavit of [the maternal grandmother], filed on 20 July 2020;

    (c) Affidavit of Mr M, filed on 16 July 2020;

    (d) Affidavit of Dr G, filed on 16 July 2020;

    (e) Affidavit of Dr BJ, filed on 15 July 2020;

    (f) Affidavit of Ms KK, filed on 15 July 2020;

    (g) Affidavit of [the mother], filed 4 January 2021;

    (h) Affidavit of [the mother], filed 19 January 2021;

    (i) Affidavit of [the maternal grandmother] filed 19 January 2021;

    (j) Affidavit of Ms AW 12 July 2022; and

    (k) Affidavit of Dr G to be filed.

    In addition to other affidavits already filed...

16. In his reasons, the primary judge identified the following documents relied upon by the mother at [42]:

    42.      …

    (1) Affidavit of the mother filed 22 July 2020;

    (2) Affidavit of [the maternal grandmother] filed 20 July 2020;

    (3) Affidavit of Mr M filed 16 July 2020;

    (4) Affidavit of Dr G filed 16 July 2020;

    (5) Affidavit of Ms AW filed 12 July 2022;

17. As regards the mother’s affidavits, the primary judge mentioned her affidavit of 22 July 2020 specifically at [42]. This affidavit ran to some 609 paragraphs and 143 pages without exhibits. It gave considerable detail about the difficult and fractious relationship between her and the father, and particularly the continuous and serious abuse and violence suffered by her at his hands during the relationship. The mother gave details of the interactions with the Department and events leading to 8 September 2017. In responding to the claims of the Department, the mother emphasised how the father had damaged her mental health, and how she feared him, stating because of him she lacked:

    413.… any freedom or power to do anything different to what my feeling of terror allows. If it was my own free choice to see my son, of course I would not hesitate, but [the father] took away my own freedom, power or choice to do anything except escape him when he raped me and tried to kill us…

    (Mother’s affidavit filed 22 July 2020, paragraph 413)

18. She gave some details of her relationship with the child, such as statements by the child on 13 September 2017 indicating he wanted to return to her care. However, the mother also accepted she had not seen the child since 8 November 2017. She conveyed her understanding of the view of Mr M that “I had a very strong, loving, and secure attachment relationship with [the child] and I was his secure base” (Mother’s affidavit filed 22 July 2020, paragraph 509).

19. The affidavit of the maternal grandmother filed 20 July 2020 was specifically mentioned in the judgment at [42] and it too was directed to the father’s conduct including the background to the ADVO.

20. It was central to the mother’s arguments on appeal that the primary judge failed to give “proper, genuine and realistic consideration” to her extensive evidence of the family violence perpetrated by the father. We are unable to accept this argument. The mother clearly suffered greatly at the hands of the father. But this reality was quite plain from the evidence before the primary judge, and did not require exhaustive rehearsal of all the facts demonstrating its truth. The father pleaded guilty to three offences and the primary judge accepted his conduct was egregious. Nothing was to be gained by any extensive recitation of the detail of violence suffered by the mother, egregious as it was. Moreover, in light of the salient conclusions, further discussion of the mother’s evidence of violence could have led to no different outcome.

21. As to the other affidavits of the mother, we observe that the affidavit of 3 August 2020 was not identified in her Case Outline, as she herself conceded. The mother did not explain why the primary judge should have had regard to it when she did not make clear she relied upon it. The affidavits of 4 and 19 January 2021 were mentioned in the Case Outline. They were not listed or referred to by the primary judge. The 4 January 2021 affidavit was referred to by the mother’s counsel on 25 July 2022 (Transcript 25 July 2022, p.95 line 44 to p.96 line 15) but only to identify an annexure. The 19 January 2021 affidavit was not referred to anywhere in the transcript. The transcript showed no submissions were made about either affidavit.

22. In any event, as the mother’s Summary of Argument makes clear, both affidavits primarily dealt with the events at the handover on 1 January 2021. This was the relevance also of the affidavit of the maternal grandmother sworn 11 January 2021 which was not mentioned in either the transcript or the judgment. What is clear from the judgment is that the primary judge had evidence before him of events on that date and took them into account. He specifically referred to a video recording made on 1 January 2021 (at [97]) and mentions the incident at several other places (at [71], [77]–[79], [93]–[98], [102]). We infer the primary judge did consider the affidavit of 4 January 2021, along with the other evidence of the incident on 1 January 2021. The absence of a specific reference to all the evidence concerning this failed transition does not support the inference it was not all considered. But in any event, in light of the salient conclusions, taken in its totality the evidence could not have led to any other outcome before the primary judge.

23. We also observe that one of the mother’s arguments is that the primary judge gave excessive weight to the events on 1 January 2021. This contention is not easy to reconcile with her argument that he also failed to have regard to evidence about those events. But in any event we do not accept the primary judge gave those events undue weight or elevated them above the primary considerations in s 60CC(2). In light of the salient conclusions, the mother has not demonstrated that the weight given by the primary judge to the unsuccessful transition on 1 January 2021 produced an unreasonable or plainly unjust outcome.

24. The affidavit of Ms AW filed 12 July 2022 was mentioned in the transcript and the judgment. The primary judge confirmed it was before him (Transcript 28 July 2022, p.292 lines 6–8) and it was the subject of discussion between him and counsel for the mother (Transcript 28 July 2022 p.348 line 40 to p.349 line 19). According to the mother, the affidavit was replete with praise of the mother’s nurture of Ms AW’s children which according to the mother was significant evidence in relation to her “maternal capacity”. We do not accept his Honour had no regard to this evidence. Put simply, the primary judge considered the mother’s parenting capacity and had extensive expert evidence on this very question. In those circumstances, Ms AW’s evidence, being merely observations of a lay witness, was not significant. Rather it was of limited relevance.

25. The evidence of Dr BJ, Mr J and Ms KK was not mentioned in the primary judgment.

26. The ICL informed the primary judge that the affidavits of Dr BJ and Ms KK were before him and accordingly he should have regard to them (Transcript 28 July 2022, p.293 lines 3–11). The ICL indicated that it was their position the affidavit of Ms KK was relevant, however they would not make any submissions regarding Dr BJ’s evidence (Transcript 28 July 2022, p.293 line 13 to p.294 line 6).

27. Ms KK was a domestic violence counsellor at the BQ Centre, which the mother described as “a specialist women’s domestic violence counselling centre that the mother attended for counselling from 2014 until late 2022”. In her submissions the mother argued that the evidence of Ms KK was significant because:

    10. … Ms KK gives detailed particulars of the domestic violence offending committed by the father, the mother’s reaction and the mother’s ensuing sense of safety for herself and her son. The significance of the particulars to the father’s violence has been discussed above and is equally adopted in regard to Ms KK’s evidence. Her affidavit also comprises complaint evidence and evidence of parenting courses completed by the mother, evincing the mother’s attitude to the responsibilities of parenthood and her parenting capacity. The mother was engaged with the BQ Centre during the trial, which was potentially an option for facilitating any handover had his Honour had regard to Ms KK’s evidence. The child was also familiar with the BQ Centre.

    (Mother’s Summary of Argument filed 30 October 2023, p.8)

28. We are unable to accept that his Honour did not consider the evidence of Ms KK. The absence of its mention in the primary judgment is objectively explained by its lack of utility when viewed against the salient conclusions. For example, we repeat our observations about the father’s violence and its effect upon the mother’s mental health above at [73]. The evidence of Ms KK added little of significance in that regard. The primary judge considered aspects of a possible transition to the mother’s care many times in the judgment (for example, at [38], [56], [59], [130], [133], [135], [164], [194], [197], [199], [203], [209], [217] and [220]). The possibility of the BQ Centre being used as a location for a transition to the mother’s care was of little moment when the evidence showed any transition could only be contemplated over a long period, the child was resistant to any transition and the mother could not contemplate the child remaining in the father’s care while spending time with her.

29. The relevance of the evidence of Dr BJ, and Mr J was not easy to discern. The mother submitted:

    9. Without having any regard to Dr BJ’s expert opinion and the complaint evidence given by Mr J of the mother’s disclosures to him on 24 February 2014, September 2017 and 11 October 2017, his Honour failed to take account of the evidence that potentially enabled him to make a positive finding that the allegation of sexual assaults was well-founded, as was sought from the mother’s Counsel. But, even if after having regard to this evidence, the Court declined to make a positive finding to the Briginshaw standard, his Honour still failed to consider the perverse nature of the father’s conduct, risk, the father’s disrespect of the child’s mother, the child’s exposure to family violence, the father’s attitude to the responsibilities of parenthood, the child’s potential reaction if he ultimately learns what occurred, and the mother’s sense of safety for herself and the child; that is potentially raised by this evidence. His Honour failed to have regard to the evidence that would enable a proper, genuine and realistic consideration of family violence…

    (Mother’s Summary of Argument filed 30 October 2023, p.7) (Footnotes omitted) (Emphasis in original)

1. Again, we repeat our comments above at [73]. The absence of any mention of Dr BJ, and Mr J in the primary judgment is objectively explained by its lack of utility when viewed against the salient conclusions.

2. The submissions about the evidence of Dr G were somewhat confusing. The mother referred to his affidavit filed 16 July 2020 in her Case Outline and a further affidavit “to be filed”. At [141] the primary judge refers to an affidavit filed on 22 July 2022, in which Dr G expressed the view that the mother “impressed as a loving devoted and attentive mother, and [the child] in turn was very content in her company and thrived” (at [142]), although it was clear that this referred back to the time in 2017 when Dr G had observed the child. The mother’s argument was that the primary judge failed to give proper consideration to an affidavit “deposed 9 September 2022”. This affidavit simply annexes a letter addressed to the mother’s solicitor in which Dr G states, on the assumption the child is returned to the mother’s care, he is available to “to support the transition by offering therapy of approximately 6 weeks’ duration” to mother and child (Annexure A to Dr G’s affidavit filed 9 September 2022, p.5). As noted above, at [226] the primary judge explicitly recorded that Dr G’s evidence was predicated on the child living with the mother, but that there was no evidence she could cope with the child remaining with the father and spending time with her. Again, we are satisfied his Honour had regard to the evidence of Dr G. But it is clear that in light of the position taken by the mother, it was of limited utility to the primary judge and it could not materially affect the outcome.

3. We find no merit in Grounds 1 and 2.

   Ground 3: His Honour erred in failing to take into account factors relevant to the weight that ought to be given to the child’s views and/or his Honour failed to give reasons for placing weight on the child’s views.

4. The mother argued that giving proper, genuine and realistic consideration to a child’s views does not equate to affording decisive status to those views. This is correct. She continued that in light of his Honour’s findings that the child’s views of the mother were not based in truth or were based on false premises, he failed to consider why the child held negative views of the mother, and should have given them no weight.

5. We cannot accept these submissions. The mother did not contend that the child did not actually hold the views recorded by the primary judge. The mother’s argument really contends the primary judge should have ignored the actual views of the child, because they were based in falsehood. But this confuses the state of mind of the child with the genesis of that state of mind. The primary judge had no alternative but to consider the actual views of the child. He did not give those views decisive weight, as the eight salient conclusions demonstrate. But he clearly considered those views. It follows that the mother did not demonstrate any failure to give reasons for not considering those views.

6. We find no merit in Ground 3.

   Ground 4: His Honour erred in failing to take into account, on the reopening of the evidence, the mother’s proposed amended spend time-with orders and to give proper consideration to the evidence in support of those orders, including, the mother accepting that the child spend overnight time-with the father.

7. This ground relates to the leave granted by the primary judge for the mother to reopen the evidence and lead her further evidence. The mother argued this further evidence, from Dr G and Dr AY, “focused on the mother’s changed proposal allowing for the child to spend overnight time-with the father” (Mother’s Summary of Argument filed 30 October 2023, p.15 paragraph 41).

8. The mother submitted that those experts opined on whether the mother could cope with the child spending overnight time with the father, and criticised the primary judge because:

   42. … It is not an adequate consideration by his Honour, let alone a proper, genuine and realistic consideration of the further evidence, not to identify, nor to mention at all the possibility of the child spending overnight time-with the father should the child reside with the mother.

   (Mother’s Summary of Argument filed 30 October 2023, p.15) (Emphasis in original)

9. The orders of 19 April 2023 allowed the affidavit of Dr G filed 22 February 2023 and the affidavit of the mother filed 17 April 2023 which annexed reports of Dr G and Dr AY to be received into evidence without the need for cross-examination. In her affidavit filed 17 April 2023 at paragraph 12 the mother claimed “I am able to cope with [the child] having overnight contact with his father if [the child] was to live-with me”.

10. The mother emphasised she changed her proposal and offered to permit overnight time between the child and father if he transitioned to the mother’s care. She said this proposal was supported by expert evidence.

11. The problem with this argument is that, as set out at [39] above, his Honour specifically said there was “some confidence that the mother could cope with the child spending time with the father beyond the four hours per month” as she originally proposed (at [155]). He clearly gave consideration to the mother’s ability to cope with the child living with her and spending time with the father. More importantly, it is really the mother’s argument that his Honour’s consideration should have led to a different conclusion. However, in light of the overall context given by the eight salient conclusions we are unable to see how his Honour could have come to any different outcome. The evidence clearly supported the child continuing to live with the father but this was something the mother could not countenance. The fact that after the trial had completed, the mother introduced evidence that she could cope with the child spending overnight time with the father, if he lived with her, failed to confront this fundamental problem.

12. There is no merit in Ground 4.

    Ground 5: His Honour failed to give proper, genuine and realistic consideration to s 60CC(2)(a) of the Act.

    Ground 6: His Honour failed to provide adequate reasons for orders that the child has no relationship with his mother.

    Ground 7: His Honour misdirected himself on the law in respect of s 60CC(2)(a).

13. As explained above at [43], in our view, there can be no doubt the primary judge gave detailed consideration to the benefit of a meaningful relationship with each parent. The mother herself pointed out in her submissions that his Honour specifically considered the benefit to the child of spending time with the mother “to dispel any misunderstandings that the child has as to the mother presenting as a safe and caring parent” (at [225]).  Nonetheless, the mother argued the primary judge:

    58. … impermissibly elevated the child’s optimal relationship with his father at the expense of the child having any relationship with his mother. His Honour failed to consider whether orders could be fashioned to ensure that the child has a meaningful relationship with both parents.

    (Mother’s Summary of Argument filed 30 October 2023, p.21)

14. We do not accept this is a correct rendering of the primary judgment. His Honour did consider ways in which the child could have a relationship with the mother. As the salient conclusions make clear the fundamental obstacle to this outcome lay in the state of mind of the mother, the views of the child and the inability of the mother to countenance the child remaining with the father as his primary carer. The primary judge pointed out that:

    227. It is a matter for the mother in terms of her capacity to accept that the child will remain living with the father and therefore to explore the extent to which she would seek to spend time with the child.

    228. Ideally, a process could be put in place which would see the child spending each alternate weekend and half school holidays with the mother but in the absence of evidence that would support such an outcome, it is very much a matter of speculation rather than evidence.

15. We find no merit in Grounds 5, 6 and 7.

    CONCLUSION

16. The appeal should be dismissed.

    COSTS

17. The mother was self-represented. The father sought costs in the event the appeal was unsuccessful. He filed a Schedule of Costs quantifying his costs at $42,248.43, and $29,142 of this total was said to be for counsel’s fees. Counsel who appeared for the father in the appeal also appeared for him before the primary judge. The Court was not assisted by the written or oral submissions of the father. We are not satisfied that there is any circumstance justifying an order for costs in his favour.

18. On the other hand, the Court was greatly assisted by the submissions of the ICL, who sought costs of $8,976 against the mother in the event the appeal was unsuccessful. We consider that in the exercise of discretion, the mother should be ordered to pay the costs of the ICL in the amount fixed at $5,000. The mother will be allowed a period of 60 days to make such a payment.

I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Harper, Carter & Brasch.

Associate:

Dated:       24 November 2023