LANKESTER & CRIBB
[2018] FamCAFC 60
•6 April 2018
FAMILY COURT OF AUSTRALIA
| LANKESTER & CRIBB | [2018] FamCAFC 60 |
| FAMILY LAW – APPEAL – PARENTING – Where the primary judge made orders changing the child’s primary residence, providing for a six-month moratorium on the time the child spends with the mother and providing for a supervised time regime ultimately leading to unsupervised time – Adequacy of reasons – Whether the primary judge properly applied s 60CC of the Family Law Act 1975 (Cth) – Whether the orders were not supported by the evidence – Where Order 7 was made in error and will be set aside – Whether the primary judge’s failure to make specific orders for changeovers made the orders for time unenforceable – Where orders as to changeovers are consequential or machinery orders – Whether, in light of the mother’s poor financial circumstances, the primary judge erred by ordering the mother to pay for supervision – Where the mother did not adduce any evidence nor provide any submissions to show she was not in a position to meet the costs of supervision – Appeal allowed in part – Application for costs dismissed. |
| Family Law Act 1975 (Cth) ss 60CC, 65DAA |
| Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Kaljo and Kaljo (1978) FLC 90-445; [1978] FamCA 46 McDonald and McDonald (1976) FLC 90-047; [1976] FamCA 29 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Molier & Van Wyk (1980) FLC 90-911; [1980] FamCA 85 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Ravasini and Ravasini (1983) FLC 91-312; [1982] FamCA 62 SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42 |
| APPELLANT: | Ms Lankester |
| RESPONDENT: | Mr Cribb |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 11371 | of | 2010 |
| APPEAL NUMBER: | NOA | 35 | of | 2017 |
| DATE DELIVERED: | 6 April 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Aldridge JJ |
| HEARING DATE: | 9 February 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 10 July 2017 |
| LOWER COURT MNC: | [2017] FCCA 1629 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr George |
| SOLICITOR FOR THE APPELLANT: | James Noble Law |
| COUNSEL FOR THE RESPONDENT: | Mr Linklater-Steele |
| SOLICITOR FOR THE RESPONDENT: | Parker Family Law |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Did not participate |
Orders
The appeal is allowed in part.
Order 7 of the orders made by Judge Purdon‑Sully on 10 July 2017 is set aside.
The appeal is otherwise dismissed.
The Application in an Appeal filed on 29 January 2018 is dismissed.
The respondent father’s application for costs is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lankester & Cribb has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 35 of 2017
File Number: BRC 11371 of 2010
| Ms Lankester |
Appellant
And
| Mr Cribb |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Lankester (“the mother”) appeals against parenting orders made by Judge Purdon-Sully on 10 July 2017 in proceedings between her and Mr Cribb (“the father”).
The parties have a child, B (“the child”), who was born in mid-2009 and who had lived primarily with the mother since the parties’ separation in December 2009. The primary judge’s orders effected a considerable change in the parenting arrangements for the child, because they provided for her to live with the father, who was to have sole parental responsibility for her.
The mother was prohibited from seeing the child at all for a period of six months.
Thereafter, the child was to commence spending time with the mother for three hours each alternate weekend supervised by a qualified supervisor. After six months of such time, the period of time was to increase to take place between 9.00 am and 5.00 pm on one day each alternate weekend, again supervised and again for a period of six months.
Unsupervised time was then to commence with the child spending each alternate weekend from 9.00 am to 5.00 pm on Saturday and Sunday for a period of 12 months. Thereafter, the child was to spend from 9.00 am Saturday to 5.00 pm Sunday on every alternate weekend with the mother. Orders were also made for the child to spend time with the mother on “alternate Christmas Eve/Day/Boxing Day” and on Mother’s Day. The child was to spend “[b]lock time in holidays as may be agreed”.
The primary judge made these orders because her Honour considered that the mother had imprinted on the child her belief that the father has sexually abused the child, notwithstanding that belief lacked evidentiary support. Thus her Honour found that “the existing cycle of [the child]’s behaviour which is played out in her mother’s primary care is unhealthy and emotionally damaging to her” (at [146]).
Her Honour also found:
195.However the mother has evidenced an inability to focus on [the child]’s needs as opposed to her own needs, cloaking her lack of capacity to support the child’s relationship with the father under the mantle of the need to protect the child from distress, distress largely caused and/or contributed to by her.
It is necessary to note that the mother does not appeal against the order that the child live with the father, the order that provides for him to have sole parental responsibility for her or the order preventing her from seeing the child at all for a period of six months. Rather, the appeal is only against the orders that provide for the mother initially to have supervised time and then unsupervised time with the child. Contrary to what is contained in the mother’s Summary of Argument, in his oral submissions counsel for the mother clearly indicated that there was now no suggestion that the orders as to parental responsibility and that the child live with the father should be set aside, even if the remaining grounds were successful.
The appeal was opposed by the father. The Independent Children’s Lawyer (“ICL”) did not appear in the appeal.
Background
In order to understand the primary judge’s reasons and the mother’s submissions, it is helpful to outline some of the history of the matter.
As we have said the parties separated in December 2009 when the child was six months old. Thereafter the child lived with the mother and spent limited time with the father. Parenting proceedings were commenced in 2010.
The primary judge recorded the early history of the matter as follows:
31.On 2 January 2011, a Child Concern Report noted that the child was becoming distressed during handover to the father for contact visits and that the father was an alleged sexual abuse victim with his father (the paternal grandfather) as perpetrator.
32.On 5 April 2011, it was further noted that the child disclosed to the mother a “sore wee-wee” after a three hour visit with the father. A later police record recorded “victim child questioned by mother” and “mother stated that she discussed this with the subject person on 5 April 2011 and tape-recorded the conversation, stated that subject person became defensive and denied washing the victim child.”
33.On 7 and 9 April 2011, it was noted that the mother asserted that the child demonstrated abuse on a doll using a white eraser, pushing it into the crotch area of the doll repeatedly. A subsequent police record noted:
Mother questioned child and video recorded it.
34.On 10 April 2011, it was noted that the mother asserted that the child complained of a “sore area”. A later police report noted:
Again demonstrated on doll and questioned by mother in presence of friend of mother’s – [Ms E]”
35.On 11 April 2011, the mother presented at the S Emergency Department alleging that the child had been abused by the father during access visits.
36.On 11 April 2011 a colposcopy was performed on [the child] at the K Clinic.
37.A colposcopy, according to the Macquarie Dictionary, is an examination of the cervix and vaginal walls using an instrument which allows magnification of the area.
38.[The child] was then about 22 months old. There was no visible injury, abnormality or trauma.
39.On 18 May 2011, Ms [C] conducted a Child Inclusive Conference in the context of the ongoing parenting proceedings. In her evaluation, she noted as the one key issue the parent’s ability to engage in constructive communication with each other about [the child]’s parenting needs.
40.With regard to [the child]’s separation anxiety, Ms [C] said:
…[The child] appears to exhibit initial separation anxiety. This is developmentally normal for a child [the child]’s age. [The child] appeared to settle quickly in her father’s care during the observation period and he reported the same after changeovers at [the mother]’s home. I sense that [the mother] herself becomes distressed when separating from [the child] in response to her anxiety. This is likely to further compound the problem. Further, [the child] might also sense her parent’s apprehensiveness with each other, which may also heighten her uneasiness. If [the child] is exposed to and picks up on the parental conflict, then this might also in part explain her unsettled behaviour.
(Emphasis in original) (Footnotes omitted)
Notwithstanding these allegations the proceedings were resolved. Consent orders were made in the Federal Magistrates Court on 18 July 2011 and provided for the child to live with the mother and to spend time with the father in a graduated regime of time over six months. By the end of that six month period the child was to spend every second weekend with the father from 8.00 am Saturday to 5.00 pm Sunday and each Wednesday from 4.00 pm to 8.00 am Thursday. From June 2012 the weekend time was extended to incorporate overnight time on Sundays.
Shortly after these orders were made, between 20 July 2011 and 4 August 2011 the mother recorded complaints by the child of a “sore wee wee”, “daddy touched, bottom sore”, “daddy touched me” and that the child had a red inflamed vaginal area (at [43]).
A number of notifications were made to the Queensland Department of Child Safety (“the Department”) that year as to possible sexual abuse of the child. There were at least two referrals to the Police and on 9 September 2011 the mother provided an audio recording of the child to the child’s general practitioner, who then questioned the child as to possible sexual abuse.
On 10 September 2011 the mother and the child attended Suburb L Police Station where the Police recorded:
The Mother has stated that she would ask questions of the victim child when the victim child would disclose and discuss. Due to the frequency of this approach, it could be argued that it is suggestive and leading – convoluting evidence.
(Exhibit 34, p.12)
The Police also noted several attendances at doctors and that no medical examination supported signs of a sexual abuse. The Police took no action other than to refer the matter to the Department.
On the same day, on 10 September 2011, the mother suspended the time the child was to spend with the father. The child was referred by her general practitioner to a psychologist under a mental health plan.
The child attended the psychologist for the first time on 6 December 2011. The child’s unprompted greeting to the psychologist was “Daddy touched my bottom” and the psychologist recorded that there was “no reason for this disclosure”.
On 16 September 2011 the mother filed an application in the Federal Circuit Court of Australia alleging that the father had sexually abused the child and seeking orders for sole parental responsibility and that any time between the child and the father be supervised.
The Department conducted an investigation into these allegations in October and November 2011. Its assessment was that there was insufficient evidence to support the concerns that the child had been sexually abused.
The primary judge recorded that:
59.The assessment noted that [the child]’s disclosures may have described her experience of typical parenting tasks, such as meeting her hygiene needs, were made in her mother’s presence, and that her behaviours could not be exclusively attributable to sexual abuse and were considered to be within the realms of appropriate play for her age group.
60.The assessment raised a concern in relation to [the child] potentially experiencing emotional harm as a result of repeat interviews with the mother in relation to her concerns and having repeat medical examinations, however it was assessed that there was insufficient evidence available to suggest [the child] suffers significant harm as a result.
On 31 October 2011 the matter was transferred to the Family Court of Australia. In preparation for the final hearing a family consultant produced three reports for the assistance of the Court. The Court also had the benefit of a psychiatric assessment of the parties which was dated 8 June 2012.
The hearing commenced on 30 July 2012. On 2 August 2012, before the conclusion of the hearing, the Court ordered that a number of visits take place between the child and the father, supervised by the family consultant. The parties were also required to attend therapeutic support to assist them in the implementation of that process.
In a report dated 12 November 2012 the family consultant said at paragraph 13:
It was my opinion that [the mother] did not encourage [the child] to separate. As examples, [the mother] held [the child] to her, stroking her back and uttering soothing words, or she would sit motionless and unresponsive as I attempted to take [the child] from her lap. At the conclusion of the fourth visit [the child] excitedly told [the mother] that she had been to the park and showed her chocolate bars. [The mother] responded negatively to [the child] being given chocolate by [the father], telling [the child] “Chocolate’s bad for you”.
Those and other observations made by the family consultant led her to make the following recommendations in her report at paragraphs 28 and 29:
In my opinion [the child] will be exposed to continuing distress and confusion about her relationship with [the father] whilst she lives with [the mother]. [The mother] does not possess the reflective functioning necessary to assist [the child] to successfully navigate the transition into her father’s care. Consequently every changeover will be a highly stressful experience for [the child]. This will affect [the child]’s emotional and social development. It is also likely to impact upon [the child]’s capacity to connect positively with [the father].
It is my opinion that [the mother] has demonstrated that she is unwilling to support [the child] forming a relationship with [the father]. [The mother] continues to ardently express the belief that [the father] sexually abused [the child]. [The mother] presented as anxious and reluctant to separate from [the child], and she was unable or unwilling to consider how her behaviour might have contributed to [the child]’s presentation. Further, it is my opinion that from [the child]’s presentation and a number of her statements, [the mother] has overtly influenced [the child] or that [the child] has picked up on and is reacting to [the mother]’s negative construct of [the father].
On 16 April 2013, shortly before the hearing resumed, the mother filed an affidavit rejecting the views of the family consultant, asserting factual errors by her and claiming that her therapist had regarded the family consultant as being unprofessional and not independent.
According to the primary judge:
76.The mother went on to depose to [the child]’s extreme distress at even the mention of the father’s name, extreme fear of his attendance at kindy, bed wetting after contact with the father, her being inconsolable after each contact visit, screaming nightmares about the father, locking the house doors in fear of the father, suggesting the mother and she ([the child]) move to the [Town P] or [Town W] so that the father cannot find her, statements to third parties that, “my mum is trying to keep me safe”, pleading with the mother not to be taken to see her father, statements that she hated him and he is “not my family” and alleged statements of support from others such as kindy staff. In relation to the latter, in response to a kindy teacher’s question, “There is something not right here, is there?” the mother replied, “No, but no one believes her or anything I have said she said.”
(Emphasis in original)
Again, notwithstanding these views of the mother, during the course of the resumed hearing on 29 May 2013 the parties agreed to final orders.
In the course of presenting the consent orders to the court, counsel acting for the mother said:
[M]y client has instructed me to place on the record that she does not consider that [the father]’s behaviour constitutes an unacceptable risk to [the child]. I can’t be clearer than that, and it is made on specific instructions.
In response, counsel for the ICL said:
[T]he Independent Children’s Lawyer retains genuine concerns about whether or not the mother genuinely accepts that the child would benefit from having a meaningful relationship with the father and also concerns regarding her ability to foster a meaningful relationship.
The consent orders relevantly provided:
1.The child, [B] born … 2009 (the child), live with the mother.
2.Except as otherwise provided for by these Orders, the parties are to have equal shared parental responsibility for the major long-term parenting issues of the child of the parties, including decisions regarding the child’s:
(a)Education, both current and future;
(b)Religious and cultural upbringing;
(c)Health;
(d)Names; and
(e)Living arrangements, in terms of any changes thereto that would make it significantly more difficult for the child to spend time with the other party.
…
9.The child spend time and communicate with the father at all times as may be agreed between the parties and failing agreement as follows:
(a)Commencing Sunday, 9 June 2013 weekly for two visits from 9.00 am until 12.00 noon;
(b)Commencing Sunday 23 June 2013 for 2 visits from 9.00 am until 4.00 pm each Sunday;
(c)Commencing Saturday 6 July 2013, from 3.00 pm Saturday to 10.00 am Sunday each week for four (4) weeks;
(d)Commencing 3 August 2013, from 9.00 am Saturday until 4.00 pm Sunday for four (4) weeks;
(e)Commencing Friday 6 September 2013 each alternate weekend from 4.00 pm Friday until 4.00 pm Sunday;
(f)Commencing Friday 6 December 2013 each alternate weekend from 4.00 pm Friday (or after school/daycare) until before daycare/school Monday;
(g)Commencing after the Easter school holidays in 2014, each alternate weekend from 3.00 pm (or after school/daycare) Friday until before school Tuesday.
(h)On Father’s Day from 4:00 pm the day before Father’s Day to 4:00 pm on Father’s Day (where she is not otherwise in the Father’s care on such weekend.)
(i)On the Father’s birthday as agreed in 2014.
…
20.That within seven (7) days, the mother arrange a referral for both herself and the child to attend upon Dr [T].
21.That the parties facilitate their and the child’s attendance upon Dr [T] for as long as therapeutically indicated to assist the child to negotiate the incongruent evidence in her behavioural, emotional and cognitive responses to contact with her father and subsequent changeovers.
22.That the parents do all acts and things necessary to arrange for their attendance upon a counsellor or other health care professional for as long as therapeutically indicated to support them in implementing the terms of these Orders.
23.That the therapy as referred to in Orders 21 and 22 is to be non‑reportable.
24.That the parents provide the Independent Children’s Lawyer with the name and contact details for their therapist within seven (7) days of the date of these orders.
25.That the Independent Children’s Lawyer be granted leave to publish to each parent’s therapist/s and the child’s therapist:
(a)The Family Consultant Memorandum to the Court by [Ms C] dated 18 March 2011;
(b)The Family Report of the Family Consultant, [Ms C] dated 19 December 2011;
(c)The Magellan Report dated 11 November 2011;
(d)Dr [Q]’s report dated 8 June 2012;
(e)The updated Family Report of the Family Consultant, [Ms C] dated 21 June 2012;
(f)Section 65L report prepared by Family Consultant, [Ms C] dated 12 November 2012;
(g)Report of [counselling centre] dated 3 May 2013; and
(h)Orders and Reasons for Judgment delivered 29 May 2013.
The orders also provided for the child to spend time with the father during school holiday periods and on special occasions.
In accordance with the orders Dr T commenced to see the parties and the child in a therapeutic role.
On the child’s first day at school, difficulties arose. Both parents attended school in the morning and an argument ensued. The child became distressed. She told her teacher’s aide that she did not like the father “because he puts his finger right up there” and pointed towards her bottom. These disclosures were reported to the principal, which in turn triggered a mandatory report by the school of suspected child sexual abuse leading to the child being interviewed again by the Department and the Police attending the school. The child did not wish to talk to the Police and when asked if her father had put a finger up her bottom, shook her head. On 24 February 2014 the child was interviewed at the school by child welfare officers.
The primary judge recorded that:
83.On the evidence of Dr [T], [the child] uses extreme behavioural strategies to control situations which she finds stressful (the situation with which she was confronted on the first day of school being one). On her evidence, in a heightened state of anxiety, [the child] can default to the idea of saying to others that her father has done something nasty to her.
On 21 April 2014 while the child was in the care of the father, the mother asked the Police to undertake a welfare check. The Police did so, but noted nothing of concern.
Three days later on 24 April 2014 the Department informed the mother that they had found that the child had experienced harmful behaviour at the hands of the mother over a period of time. The mother’s response was to inform the Department that she did not accept that finding.
Between 10 November 2014 and 22 December 2014 three further notifications of alleged sexual abuse of the child by the father were made. One was made by the mother of a student at the child’s school who had received an anonymous letter from the mother of another child at the school. The writer of the letter recorded that her own child had been informed by the child the subject of these proceedings that she did not like her father because he touches her bottom.
On 19 January 2015 Dr T informed the Department that the mother had failed to attend a booked appointment with her and despite having left several telephone messages for her had not received a response.
On 9 April 2015 the father commenced parenting proceedings in the Federal Circuit Court of Australia.
On 19 May 2015, a new family report writer was appointed at the request of the mother. At the time of her interviews with Mr N, the second family report writer, the mother informed the writer that she was seeking an order that the father spend alternate weekend time with the child from Saturday morning to Monday morning (at [112]).
After considering the evidence, including that of Dr T and Mr N, the primary judge made the findings to which we have earlier referred. Her Honour also found:
208.What risks exist for [the child] centre on the mother, not on the father.
209.They centre on the mother’s primary care of the child.
210.They centre on her lack of insight into [the child]’s behaviour, her inability and/or unwillingness to address the emotional manipulation and harm she is causing her and her inability to support the child’s relationship with her father, demonstrated time and again in various contexts and scenarios, be it in or out of the school environment, reported on time and again by court experts and others independent of the mother and father.
211.I find that [the child] needs to be protected from the continued likely escalation of that emotional manipulation and harm and the likely destruction of her relationship with her father in the primary care of her mother.
212.I accept the evidence of Dr [T] that the risks to [the child] include mental health problems such as anxiety, depression, difficulties with sense of self, the development of her identity, how she sees herself and then going into adolescence, the consequences might be in severe cases if she does not learn to manage the situation, substance abuse, self-harm or other strategies. I find that the risks have impacts for [the child] socially, educationally and opportunity for her to achieve her full potential.
….
245.I accept the evidence of Mr [N] at trial that [the child] is not a well-functioning child.
246.I accept his evidence questioning how long [the child] will be able to cope in a resistance/refusal dynamic situation that has her balancing and juggling her relationship with each of her parents and managing transitions from one parent to another in a highly conflicted parenting dynamic.
247.Mr [N] accepted the proposition that it was a burden simply too much for this child to bear at her age. I concur.
248.I accept the further oral evidence of Mr [N] that it is a “hard emotional state for her to continue with.”
249.The impact on [the child] of the mother’s conduct is not only a destruction of her relationship with her father but emotional harm, as the objective evidence is that [the child] does have a relationship with her father but one she is unable to express or articulate in the care of her mother other than in negative ways.
250.Further, on the expert evidence, whilst [the child]’s at times extreme behaviour is utilised by her in the hope it will in some way meet her emotional needs or provide a solution for her and whilst it may provide short-term relief, she is unable to manage the situation to ultimate success.
Whilst the primary judge recognised that a move to the father’s care would “likely involve grief, loss, confusion, a high level of stress, intrusive thoughts about her mother and missing her mother constantly” (at [279]), these considerations were outweighed by “the risks that present for her in the mother’s primary care including the need for [the child] to conform to the mother’s view that presents as psychologically and emotionally damaging to her” (at [270]).
The Appeal
The Notice of Appeal was filed by the mother herself and raised seven grounds which were vague and very general in terms. On 11 December 2017 an Amended Notice of Appeal was filed. This had been drafted by counsel. It abandoned the earlier seven grounds and raised seven new ones. It is those new grounds that were addressed in the parties’ summaries of argument.
At the hearing grounds 8, 13 and 14 were abandoned.
The appeal is primarily directed against the primary judge’s orders governing the time the child is to spend with the mother. The orders relevantly provide:
(4)That there be a moratorium on the child seeing the Mother at all for six (6) months.
(5)That the moratorium period be followed by a period of twelve (12) months during which the Mother’s time with the child is supervised by a suitably qualified supervisor from [a specified counselling centre] (or other agreed supervisor if it not available) with such supervision to be reportable and to be at the sole cost of the Mother.
(6)That the child spend time with the Mother as follows:
(a)Supervised for three (3) hours on one day each alternate weekend for six (6) months subject to the availability of the supervision service;
(b)Thereafter supervised from 9.00am to 5.00pm on one day each alternate weekend for no less that a further period of six (6) months subject to the availability of the supervision service;
(c)Thereafter unsupervised on each alternate weekend from 9am to 5pm on Saturday and 9am to 5pm on Sunday for a period of twelve (12) months;
(d)Thereafter:
(i)From 9am Saturday to 5pm Sunday on every alternate weekend;
(ii)9am to 5pm on Mother’s Day (on the proviso the child spend Father’s Day with the Father);
(iii)Alternate Christmas Eve/Day/Boxing Day; and
(iv)Block time in holidays as may be agreed.
(7)That the Mother is to pay the costs of any reports to be provided by the Supervisor.
Did the primary judge fail to give adequate reasons for the making of orders 5(b)–(d) and did the primary judge fail to properly apply s 60CC of the Family Law Act 1975 (Cth) in relation to those orders? (Ground 9)
There are no Orders 5(b)–(d). We presume the reference in this ground is intended to be a reference to Orders 6(b)–(d).
As can be seen, there is no appeal against Order 6(a). We were informed that this was because the period referred to in that order has substantially elapsed.
In her Summary of Argument the mother submitted:
23.[The primary judge] however, respectfully, did not apply that law in determining that, ultimately the child would spend every second weekend 9am Saturday to 5pm Sunday and ‘block time in holidays as agreed’.
24.She did not, anywhere in the Reasons set out her findings as to why that Order, and not another Order or configuration of time, met the best interests of the child.
25.Her Reasons are almost entirely, with respect to her, focused on the issue of unacceptable risk and why the child should live with the Respondent, but there is no consideration as to why she made the Orders she made in relation to the time Orders.
In her counsel’s oral submissions it was also submitted that there was no evidence to support orders for supervised time.
Before turning to the primary judge’s reasons it is useful to examine how the proposals for supervised time emerged.
The mother filed a Case Outline on 16 August 2016. In it she proposed orders that the child live with her and spend time with the father every alternate Saturday from 9:00 am to 5:00 pm. However, under the heading “A list of issues requiring determination” the mother raised the following:
Whether it is in [the child]’s best interest to change her primary living arrangements and primarily live with the father and if so what time ought [the child] spend with her mother.
Thus prior to the hearing the mother was well aware that the nature and extent of the time the child would spend with her, in the event that there was a change in the child’s primary care, was a live issue in the proceedings.
In his Case Outline filed on the same day, the father proposed orders that the child live with him and spend time with the mother as determined by the Court. He raised as an issue for determination:
In the event that a change of residence is ordered such that the child live with the Father, whether a moratorium of time between [the child] and her Mother is necessary and if so, for how long and how is this to be managed...
Thus the issues of a moratorium on time and how it was to be implemented were squarely raised.
There were no oral submissions made to the primary judge and instead her Honour received lengthy written submissions from each of the parties and the ICL.
The ICL’s submissions were delivered first. In addition to proposing orders that the father have sole parental responsibility for the child and that she live with him, the following orders were proposed:
e.A moratorium on the child seeing the mother for four months;
f.The moratorium period should be followed by a period of three months during which the mother’s time with the child is supervised by a suitably qualified supervisor (such as [a specified counselling centre]) with such supervision to be reportable;
g. The supervised time should commence for three hours on one day each week-end for one month, moving to 9am to 5pm on one day each week-end for a further three months, subject to the availability of the supervision service;
h.Following this period, a report be sought from the supervisors of time about the progress of [the child’s] time with the mother and further orders to be considered at that time.
The mother’s submissions followed. The mother persisted in pressing the orders sought in her Case Outline but also sought, as an alternative, that the child spend time with the father every second weekend from Friday to Monday.
Almost all of the mother’s written submissions were in support of her contention that the time the child spent with the father should be reduced. In the course of dealing with the s 60CC considerations the mother submitted that the effect of the ICL’s proposed orders on the child would be devastating. The ICL’s proposals were the subject of the following submissions:
d.Practical difficulty and expense:
…
ii.As to the issue of expense, if the Court were to make the Orders that the Independent Children’s Lawyer seeks, and it is submitted that they most definitely should not, there is no reason given why the Mother should solely bear the costs of supervision. The Father is in a far stronger financial position than the Mother. Either the Father should pay the costs or they should be shared.
e.An Order least likely to lead to the further institution of proceedings:
i.On the Independent Children’s Lawyers case the Orders proposed would be interim in nature.
ii.Whilst it is conceded that if the Court made an Order reducing the time between the child and the Father (either every second weekend Friday to Monday or day time on Saturday as the Mother seeks) and made Orders for family therapy, the Court may want to review that arrangement with the benefit of an updated Family Report, it is also open to the Court to make that Order on a final basis and the Mother urges that on the Court.
iii.The proceedings have to stop. The experts tell the Court that the conflict is the main issue in this case. Hopefully with the final Orders made by the Court the parties and [the child] in particular can move on with their lives.
The father’s submissions were delivered last. The orders that the father proposed as to supervised time and its progression to unsupervised time were those that were ultimately made by the primary judge.
The mother did not then seek to re-open her case to make further submissions, either orally or in writing.
Thus it was that the father’s proposals were the only proposals for unsupervised time.
It can immediately be observed that the father’s proposed orders in relation to the time the child was to spend with the mother were, generally speaking, more favourable to the mother than those of the ICL.
Thus the issues for determination by the primary judge, at least as proposed by the parties and the ICL, were clear. Whilst the mother opposed the orders sought by the father and the ICL she did not, other than as we have already described, deal with the detail of those proposals. She did not address the specific terms of the proposed orders for time or propose any alternative orders for time in the event that the primary care of the child was moved to the father.
Turning first to her Honour’s reasons, it is clear from what we have already recorded that the primary judge decided to move the primary care of the child to the father, provide for a moratorium on the child seeing the mother for six months and then for a staged reintroduction of time on the basis that the mother posed an unacceptable risk of harm to the child while the child was in her care.
That determination followed a meticulous discussion of the considerations set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”) (see [135]–[342]).
Her Honour then devoted another 24 paragraphs detailing her conclusions upon those considerations. Included in those paragraphs is the following:
361.However, based on the court’s assessment and findings, a change in [the child]’s primary care would be in her best interests. It is a proposal which provides at least some scope for [the child] to have a normal relationship with both her parents and I place particularly significant weight on that finding.
362.These findings support the proposal of the father.
363.Save for the issue of the length of the moratorium on time and how the matter should be managed thereafter, the father’s position accords with the position of the ICL seized with the serious responsibility of representing [the child]’s interest in these proceedings.
There was no contest as to the form of the ICL’s proposed orders, at the least, in the event that the mother did not succeed in obtaining the orders sought by her. In the light of the issues proposed by the parties in their Case Outlines and written submissions and given the mother’s strong exhortation for the proceedings to be finalised, it is not surprising that the primary judge focused on the issue of unacceptable risk and not on the precise form of the spend time orders. Her Honour provided concise but cogent reasons as to why the father’s proposal on this issue was preferred to the ICL’s. There were no submissions from the mother and as such, subject to her entitlement to formulate orders herself, her Honour was only required to consider the issue of the time the child would spend with the mother in the light of the evidence and submissions put to her (SCVG & KLD (2014) FLC 93-582).
Her Honour said:
367.Whilst the court respects the experience of the ICL and her Counsel’s thoughtful contribution to the discussion and has given considerable weight to those views as to how the matter should be managed into the future, the court’s findings support the proposal of the father on balance, which places the onus on the parents to fix [the child]’s issues and their own. Relevantly, the proposal of the father seeks to avoid further assessment, at least in the context of the current proceedings. It provides for final orders, as best they can be made, one of the few areas on which the parents agree.
When read as a whole, her Honour’s reasons for making orders for supervised time are clear. The mother posed a risk of harm to the child which required a change of primary care. In order to allow the child to build a relationship with the father and to break the cycle of harm when she is with the mother, on balance it was necessary for there to be a break from the mother followed by a graduated re-introduction of time with the mother so that, hopefully, the child would end up with a meaningful relationship with both parents.
The obligation to give reasons is well-known: Bennett and Bennett (1991) FLC 92-191 at 78,266. The reasons must allow the parties to understand the basis of the decision and the extent to which their arguments have been understood and accepted: see, for example, Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [59] and the cases cited therein.
The primary judge’s reasons as to the making of the orders for the mother to spend time with the child, in the circumstances to which we have already referred, meet those standards and no error has been demonstrated.
For the avoidance of any doubt, however, given the primary judge’s extensive examination of the s 60CC considerations in the reasons, we reject the submission that the primary judge was required again to traverse all of the s 60CC considerations in relation to each order or to each aspect of each order.
Turning finally to the mother’s complaint that there was no evidence to support the orders from which the mother appeals, it is correct to say that there was no extensive expert evidence directed to the issue of supervised time or its desirability.
The family consultant did suggest that there should be a moratorium on time with the mother if there was a change of primary residence “to effectively let that change to bed down” (Transcript 19 May 2017, p.573). The following exchange then occurred:
Right. And then, depending upon the court’s findings about the mother’s capacities, you would envisage some period of supervised time for a while?---Yes, some therapeutic supervision, essentially.
(Transcript 19 May 2017, p.574)
The mother submitted that this evidence was not sufficient and that if the primary judge was considering supervised time her Honour needed to re-list the matter for further evidence and submissions as part of her obligation to act in the best interests of the child.
That was, of course, not a course suggested by the mother at any time until this appeal and is indeed quite contrary to her strong preference for the matter to be finished as set out in her written submissions.
As we have said, the reasons for the supervision emerge clearly from her Honour’s reasons and we do not see how that issue would be advanced by expert evidence. However, if there was in fact expert evidence that opined against supervision then such evidence was a matter for the mother to call.
Order 7, for which the mother asserts the primary judge also failed to give reasons, is anomalous. There are no orders that require the supervisor to provide reports so there is no need for an order requiring the mother to pay for them. It may be that this order was erroneously included from the ICL’s proposed orders.
In his oral submissions counsel for the father accepted the difficulties with it. We shall set it aside.
This ground otherwise does not succeed.
Did the failure of the primary judge to identify changeover points for the child once unsupervised time with the mother is to commence make the orders unenforceable and therefore erroneously made? (Ground 10)
Is the failure of the primary judge to make orders for overseas travel, Christmas Day, other special days and school holiday time and the failure to give reasons for not making these orders an error of law? (Ground 11)
It is convenient to deal with these grounds together as they raise the same issue.
The mother submits that the failure to provide any mechanism for changeovers, particularly given the high conflict between the parties, means the orders are unenforceable. It is submitted that this failure is an error of law. Similarly, the mother submits that failure to specify the times and dates for Christmas and school holiday time justifies those orders being set aside.
There is some force in the submission of the mother that it will be difficult for the parties to be able to discuss and agree on a place for changeovers because, as the primary judge found, “the parties have not communicated by either email or telephone for a number of years and are unable to speak to each other” (at [372]).
No doubt the primary judge envisaged that despite the parties’ difficulties in communication they would be able to agree on these relatively simple and straightforward issues. There are many well-known formulae that provide for children to spend Christmas Eve, Christmas Day and Boxing Day with both parents equally sharing that time but with the precise dates and time alternating each year.
However, if the parties, whether directly or through their lawyers, cannot agree on a place for changeover or the Christmas and school holiday times, it is perfectly open to either or both of them to apply to the court for further orders.
Orders designating a location for changeovers or with whom the child will spend Christmas and school holidays, in the light of the orders already made, would be “machinery” orders consequential upon the existing orders and would not change their substance: see Ravasini and Ravasini (1983) FLC 91-312 at 78,126–78,128 (“Ravasini”); Molier & Van Wyk (1980) FLC 90-911 at 75,768; Kaljo and Kaljo (1978) FLC 90-445 at 77,275; McDonald and McDonald (1976) FLC 90-047 at 75,021. These are, of course, property cases but we consider that the same reasoning applies to parenting orders. The authorities draw a distinction between substantive orders, which a court has no power to modify or vary, and consequential orders, which enable those substantive orders to be put into operation (Ravasini at 78,126). The difference in parenting cases is, of course, that parenting orders can be reconsidered whenever there is a change in circumstances that justifies such a reconsideration. This, however, does not prevent aspects of parenting orders being regarded as consequential or machinery.
In this case, the Court would not be re-exercising its discretion as to what orders are in the child’s best interests and thereby be varying a substantive parenting order, but rather would merely be adding dates and times to the existing orders to allow those orders to be given effect.
We also reject the submission of the mother that the determination of these places and times would be time consuming, involving an extensive hearing involving substantial affidavits. All that is needed is for the primary judge to flesh out the orders with some times and places, which can and should be done very briefly indeed.
A further relevant consideration is that unsupervised time is not to commence for a period of 18 months after the order and it may well be that an appropriate location for changeover would depend upon events that have occurred during that 18 months and, indeed, where the parties may be living at that time.
We do not consider that the failure to identify a location for changeovers or specify the times for Christmas and school holiday time amounts to an error.
Finally, given the limited time that the child is to spend with the mother and the delay before that time is to occur, it is readily understandable why the primary judge did not make orders for overseas travel. We do not see that, having regard to the issues of significance that are dealt with in her Honour’s reasons at considerable length, her Honour was obliged to deal with every aspect of the mother’s proposed orders when it was quite clear for the reasons given by her Honour that she was not prepared to make any of them. Again, of course, the mother is not precluded from seeking orders for overseas travel in the future.
This ground does not succeed.
Did the primary judge fail to take into account whether an order that the mother pay the costs of her supervised time with the child was reasonably practicable, having regard to the parties’ respective financial circumstances? (Ground 12)
The mother submits that the primary judge failed to consider whether the order that the mother pay the cost of supervised time was reasonably practicable within the meaning of s 65DAA(1)(b) and (2)(d) of the Act. However, s 65DAA does not apply other than where a parenting order provides that the child’s parents are to have equal shared parental responsibility for the child (s 65DAA(1) and (2)). The primary judge noted this at [375]. Thus the argument under s 65DAA does not succeed.
In order to determine whether the primary judge was in error in making the order because the mother could not afford to pay for it, it is necessary first to consider the primary judge’s findings and then the submissions that were made to her Honour.
The primary judge said:
384. It would be appropriate that the mother meet the costs of ongoing supervision following the moratorium on her time, given that the father will be assuming the bulk, and possibly all, of the costs of [the child]’s care during that period.
The extent of the mother’s submissions to the primary judge was “the Father is in a far stronger financial position than the Mother” and that either he should pay the costs or that they should be shared (Mother’s written submissions filed 2 June 2017, p.29). The mother did not adduce any evidence to show she was not in a position to meet the cost of supervision nor advance any detailed submissions to the primary judge that she could not afford to do so. In those circumstances it is now not open to her to suggest that the primary judge erred by making an order that she pay for costs of supervision (Metwally v University of Wollongong (1985) 60 ALR 68).
By an Application in an Appeal filed on 29 January 2018 the mother sought to adduce evidence in the appeal. At the hearing of the appeal she limited that application and sought to adduce only paragraphs 37–43 of her affidavit filed 29 January 2018. These paragraphs deal with the two occasions that the child had spent supervised time with the mother, its costs and some evidence as to the mother’s current financial position.
This evidence does not identify any error in the primary judge’s reasons. It is not relevant to any re-exercise of discretion as, save for Order 7, the appeal is to be dismissed. The application will be dismissed.
This ground does not succeed.
Conclusion
It follows that Order 7 will be set aside but otherwise the appeal will be dismissed.
Costs
The father sought an order for costs in the event the appeal was dismissed.
Notwithstanding that the appeal will be allowed to the extent that Order 7 will be set aside, the appeal failed on all issues of substance. That supports the father’s claim for an order for costs.
It was submitted by her counsel that the mother’s financial position was poor, given the significance of the orders made by her Honour, notwithstanding the failure of the appeal, we are not persuaded that the presumption in s 117(1) of the Act should be displaced.
The father’s application for costs will be dismissed.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) delivered on 6 April 2018.
Legal associate:
Date: 6 April 2018
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