Lovett & McGregor
[2019] FamCAFC 253
•18 December 2019
FAMILY COURT OF AUSTRALIA
| LOVETT & MCGREGOR | [2019] FamCAFC 253 |
| FAMILY LAW – APPEAL – PARENTING – Where the primary judge ordered that the children live with the appellant and spend six nights a fortnight with the respondent during school term – Where neither party nor the ICL sought that the Court make that order – Where the parties were not informed that the primary judge contemplated making such an order – Where the order was found to be a significant deviation from the parameters of the proposals contended for by the parties and the ICL - Where the primary judge denied the appellant procedural fairness – Where the appellant further complains that the primary judge failed to give proper, genuine and realistic consideration to the risks posed by the respondent and given those risks, the primary judge failed to adequately explain why the orders were made – Where the Court finds that these grounds have no merit – Where, given the denial of procedural fairness, the appeal is allowed and the order for the amount of time the respondent is to spend with the children during school term be set aside – Where there is a deficit of evidence relevant to what interim parenting arrangements should apply between now and the rehearing of this matter – Where the order which is set aside is restated as a default position – Where it is imperative that the matter receive judicial attention as soon as practicable. |
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 65AA, 65D(1), 93A(2) Federal Proceedings (Costs) Act 1981 (Cth) s 9 |
| Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Bondelmonte v Bondelmonte (2016) 259 CLR 662; [2017] HCA 8 Concrete Pty Limited v Parramatta Design & Developments Pty Ltd and Anor (2006) 229 CLR 577; [2006] HCA 55 Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346 Guthrie and Guthrie (1995) FLC 92-647; [1995] FamCA 134 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; [1987] FCA 457 Kioa v West (1985) 159 CLR 550; [1985] HCA 81 Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142 Tickner v Chapman (1995) 57 FCR 451; [1995] FCA 1726 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 U v U (2002) 211 CLR 238; [2002] HCA 36 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 |
| APPELLANT: | Mr Lovett |
| RESPONDENT: | Ms McGregor |
| INDEPENDENT CHILDREN’S LAWYER: | Joliman Lawyers |
| FILE NUMBER: | AYC | 209 | of | 2015 |
| APPEAL NUMBER: | SOA | 14 | of | 2019 |
| DATE DELIVERED: | 18 December 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Watts, Tree and Bennett JJ |
| HEARING DATE: | 10 September 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 8 February 2019 |
| LOWER COURT MNC: | [2019] FamCA 49 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Coleman SC |
| SOLICITOR FOR THE APPELLANT: | Rama Myers Family Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Litigant in person |
Orders
The appeal against Order 6.1 of the orders made 8 February 2019 be allowed.
Order 6.1 of the orders made 8 February 2019 be set aside.
The matter be remitted to the Family Court of Australia for rehearing by a judge other than Justice Cleary as to what time the two children of the marriage should spend with the mother and on what terms (if any).
The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.
Pending further order, the children spend time with the respondent each alternate weekend from after school Thursday to before school Wednesday, consistently with the pattern of time the children have previously been spending with their mother under Order 6.1 made 8 February 2019.
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 Lovett & McGregor 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 MELBOURNE |
Appeal Number: SOA 14 of 2019
File Number: AYC 209 of 2015
| Mr Lovett |
Appellant
And
| Ms McGregor |
Respondent
REASONS FOR JUDGMENT
By Amended Notice of Appeal filed on 6 September 2019, the appellant (“the father”) appeals one parenting order (Order 6.1) made by the primary judge on 8 February 2019, in respect of two children of the marriage, X (“the elder child”) born in 2008 (aged 11) and Y (“the younger child”) born in 2011 (aged 8) (collectively, “the children”). The parenting orders moved the children, who had lived with the respondent (“the mother”), to live with their father (Order 5) and spend time with their mother six nights a fortnight during school term (Order 6.1). During the proceedings, the father had sought the children spend time with their mother four nights a fortnight on certain conditions including that the mother attend therapeutic counselling.
On 7 May 2019, the mother filed an application for a stay of the parenting orders. That application was dismissed by the primary judge on 24 May 2019.
The parties commenced cohabitation in 2001, married in early 2004 and separated in October 2012. The children, who were at that time aged four and almost two, remained living with their mother. The parties divorced in November 2015. Both have re-partnered.
Until January 2015, the children spent time with their father by agreement. At that time, the mother formed the view that the father had sexually abused the younger child (by digitally penetrating her when she was three) and that he had exposed both children to pornography. The mother ceased to make the children available to the father.
Following the involvement by the Centre Against Sexual Assault (NSW), the Centre Against Violence (Victoria), the Sexual Offences and Child Abuse Investigation Team (Victoria), Child Protection (NSW), the Joint Investigation Response Team (NSW) and Community Services (NSW), the allegations against the father were found to be unsubstantiated.
The proceedings were initially commenced by the father in the Federal Circuit Court of Australia in May 2015. By the time the final hearing commenced in the Family Court of Australia before the primary judge in November 2017, the children were spending supervised time with the father each alternate weekend from Friday to Sunday and each alternate Thursday night.
The hearing of this matter took place in three tranches; four days in November 2017; four days in March 2018 and one day in December 2018.
Prior to the commencement of the hearing, the parties engaged Ms C (“the Single expert”) who prepared a report dated 6 May 2016 (“the 2016 report”). The recommendations contained in the 2016 report were conditional upon whether or not the Court found there was an unacceptable risk to the children arising from the allegations of sexual abuse against the father. The Single Expert recommended that in the event that the Court found substance to the allegation of risk, then the children should be permitted to spend only supervised time with their father, one day each week in a public setting.
In the event it was found there was no unacceptable risk, the Single Expert:
·Opined that the children “would be considered at appreciable risk of psychological harm in [the mother]’s care” and that:
199.… In that scenario, the children should spend more than three nights per week with [the father] to reduce the risk of the children’s relationship with their father being white anted and them potentially reject him. However, given that the children's primary carer has been their mother, that they have an established routine with her, that the children have expressed a wish to remain in her care, a change of residence would likely be experienced as highly distressing for the children and so not in their best interest. Furthermore, given the conflict between the parties, an equal shared care arrangement would not be in the children's best interest.
·Recommended that the children should spend time with their father on alternate weekends (Friday until Monday) plus an additional night or two in the other week (four or five nights a fortnight) as well as half school holidays. In addition, the Single Expert recommended that the parties formally communicate in writing either by email or in a communication book in relation to their children. No recommendation was made in relation to parental responsibility.
At the commencement of the hearing, the father sought, pursuant to his Amended Initiating Application filed 29 August 2017, that:
a)The parties have equal shared parental responsibility for the children; and
b)The children live with the mother and spend time with him each alternate weekend from Friday to Monday, half of the school holidays and for other special occasions.
The mother proposed, pursuant to her Amended Response filed 2 August 2017, that she have sole parental responsibility for the children; the children live with her and spend time with the father for seven hours each alternate Sunday and on special occasions, with such time to be supervised by named paternal relatives.
Important evidence emerged during the first tranche of the hearing which the primary judge discussed in the Reasons for Judgment (“the Reasons”) at [56] to [58] as follows:
56.Harrowing recorded evidence, introduced by the mother herself during cross-examination, gave rise to concern about the welfare of the children in the household of the mother due to the method and intensity of the questioning of the children by the mother and her partner. In a variety of incidents the films revealed bewildered tearful children trying to understand what the mother wanted from them.
57.On 22 November 2017 an order was made restraining the mother from questioning the children about past issues of perceived misconduct.
58.Enquiries were made about the availability of the Single Expert to prepare an updating report. Fortunately for the parties and children the Single Expert was able to view the recorded material, attend Court to give evidence about the material, and to arrange to see the parties urgently.
(Footnotes omitted)
On 22 November 2017, which was the third day of the trial, the Single Expert was provided with the mother’s recordings of the children in respect of the abuse. The next day, the Single Expert gave oral evidence that she had concerns that the children were “being pressured to give some kind of false narrative to appease the mother” (Transcript 22 November 2019, p.229, lines 30-31) and that if the mother’s behaviour continued that there would be “a real risk” (Transcript 22 November 2019, p.229, line 46) that they may reject one parent or the other. The Single Expert was of the view that a further assessment should be undertaken and that there should be an increase of time between the children and the father. The Single Expert recommended that time be increased in the interim to five nights a fortnight so as to relieve the children from, what she saw to be, the “significant pressure” (Transcript 22 November 2019, p.231, line 13) being placed upon them by the mother. She opined that the father’s time should still be supervised until the Court made a determination in respect of the sexual abuse allegations.
On 23 November 2017, the primary judge made an interim order that the children live with the mother and spend time with the father five nights a fortnight and for half of the school holidays (with such time to be supervised by named paternal relatives).
On 14 February 2018, prior to the second tranche of the hearing in March, the Single Expert provided an updated report to reflect her further assessment (“the 2018 report”). She expressed the following opinions:
a)The children are at risk of psychological harm in the care of the mother due to her intense questioning and abusive practices which she has perpetrated in order to confirm her beliefs that the children have been abused;
b)The children are not at appreciable risk in the care of the father and would benefit from spending more time with him; and
c)The children are now capable of adjusting to a change in parenting arrangements reasonably quickly.
In the 2018 report, the Single Expert recommended that the children live with the father and spend time with the mother on a supervised basis for the first six months, whilst she underwent intensive, reportable counselling. The Single Expert recommended that the mother’s therapist be provided with a copy of the updating report, so as to be aware of the delusional level of the mother’s beliefs. The Single Expert went on to recommend and opine that:
… If [the mother] and [the mother’s partner] are able to demonstrate improved insight and capacity in 6 months time, supervision could be relaxed and the children could spend one day per week with her for 3 months, then one overnight per week for another 3 months, then alternate weekends (Friday to Sunday) for another 3 months. In 15 months, assuming that [the mother] and [the mother’s partner] demonstrate insight and understanding about what is in the children’s best interest, additional nights could be added in so that the children spend alternate weekends (Thursday to Monday) and Thursday night in the other week with [the mother] and half of the school holidays.
It is my view that an equal shared care arrangement is unlikely to be in the children’s best interest unless the allegations have ceased, and [the mother] gains and maintains insight and understanding about the children’s need to have a positive relationship with their father. An equal shared care arrangement would only work if the parties engage in mediation and are able to work through any issues that arise. To my mind, that seems unlikely in the foreseeable future.
On 15 March 2018, during the second tranche of the hearing and the seventh day of the trial, the Single Expert gave oral evidence, confirming that she stood by the recommendations made in the 2018 report.
The Single Expert explained that she changed her recommendations from the 2016 to the 2018 report, not only because of the recordings (which she opined were strong evidence that the children had been coached and interrogated by the mother on sexualised behaviours and that this was tantamount to psychological abuse) but because the children were now older, at a different stage of development and had a stronger and more stable relationship with their father. Whilst the Single Expert conceded that there would likely be some feelings of loss experienced by the children if they were removed from their mother’s primary care, she opined that the loss would not be so significant as to outweigh the risk of harm to which she was satisfied the children were exposed to by continuing to live with their mother.
The Single Expert confirmed in oral evidence that the children were at risk of “serious psychological harm” (Transcript 15 March 2018, p.82, line 6) with the mother and that the mother required “significant intervention” (Transcript 15 March 2018, p.82, lines 25-26) before she would be able to have an insight into her behaviour and the impact of it on the children.
At [63] to [65] of the Reasons, the primary judge records that when the trial resumed in March 2018:
a)The position of both the parties had changed;
b)The father now proposed that the children live with him; and
c)The mother proposed equal shared parental responsibility and for the children to spend alternate weekends with the father unsupervised (three nights per fortnight). The mother also proposed that the children spend half school holidays with the father and other times as agreed.
Further, the father’s Minute of Proposed Order (Exhibit 33) proposed that the parties have equal shared parental responsibility, that the children spend time with the mother from Friday night to Monday morning each alternate week and overnight on Wednesday nights in the off week (four nights a fortnight). The father sought that this time be conditional upon the mother’s compliance with various injunctions restraining her from discussing proceedings and allegations of sexual or other abuse with the children, interrogating the children, presenting the children for counselling, stalking/surveillance and denigration. The father also sought a requirement that the mother attend counselling with a psychologist “recommended by the single expert in consultation with the ICL” for defined purposes aimed at therapeutically improving those behaviours of the mother the Single Expert had identified created a risk for the children. The father proposed that the children be with their mother for half of the school holidays, Mother’s Day and other agreed times.
In March 2018, the Independent Children’s Lawyer (“the ICL”) made submissions that the father have sole parental responsibility and that the children live with the father and spend unsupervised time with the mother each alternate weekend from after school Friday to before school Monday (three nights a fortnight), plus time on special occasions and half of the school holidays. Further, from Term 1 2019 and subject to the mother’s psychologist giving an indication to the ICL that there is no appreciable risk that the mother will continue to question the children, the ICL submitted that time should increase to after school Thursday to before school Monday and each alternate Thursday overnight (five nights a fortnight in total). It is to be noted that although the Single Expert recommended the children’s time with the mother be initially supervised, neither party nor the ICL included that requirement in their proposals.
On 16 March 2018, the previous parenting orders were varied to dispense with the requirement that the father’s time with the children be supervised.
On 4 October 2018, the mother filed an affidavit in which she said she had continued to see her psychologist fortnightly until May and since then had seen her monthly or every six weeks. She reported that she felt confident in working with her psychologist; valued the support which she gave her and that her psychologist challenged her about the way she thought about things and made her re-evaluate things. The mother also reported that her partner had engaged with his psychologist on a regular basis.
At the resumption of the hearing in December 2018, the mother gave some further oral evidence about her involvement with her psychologist. The father indicated that he sought the same orders as he did in March 2018. Neither the mother nor the ICL altered the orders that they had previously sought.
Accordingly, at the close of the case the parameters of the proposals were:
·The father sought that the children move to his primary care and spend four out of each fourteen nights during school term with the mother, subject to the restraints set out at [21] above including that the mother attend therapeutic counselling;
·The mother sought that the children remain in her care and spend three out of every fourteen nights during school term with the father; and
·The ICL recommended that the children live with the father and initially spend three nights a fortnight with the mother during school term. The ICL supported an increase in the children’s time with the mother, to five out of fourteen nights during school terms, commencing in the second year of the children living in the father’s household and subject to positive assessment by the mother’s psychologist that there was no appreciable risk of the children being interrogated by the mother.
Notably, at the close of the case, none of the parties adopted the Single Expert’s recommendation that there be a moratorium on the children spending unsupervised time in the care of the mother pending consolidation of the regime of psychological treatment described by the Single Expert. None of the parties adopted the Single Expert’s recommendation regarding the graduated time to be spent by the children with the mother or the rate at which that time would increase. All parties sought that the children spend one half of each school term holiday and the long summer school vacation with the mother. This was also in contrast to the recommendation of the Single Expert that an equal sharing of holiday time would not commence for a further 15 months and be subject to the mother and her partner having demonstrated insight and understanding of what is in the children’s best interests. There was no dispute between the mother and the father about parental responsibility being shared equally between them regardless of what proportion of time the children spent in the mother’s household. The ICL sought the contrary order that the father have sole parental responsibility.
Final orders of the primary judge in February 2019
On 8 February 2019, the primary judge ordered that the father have sole parental responsibility for all long term decisions involving the children, subject to an order that he comply with a detailed regime of consultation with the mother about those decisions. This was consistent with the position of the ICL.
Consistently with the position of the father and the ICL, the primary judge ordered that the children live with the father commencing forthwith.
Further, the primary judge made final orders which, amongst other things, provided that the children spend unsupervised time with the mother each alternate weekend from after school Thursday to before school Wednesday (six nights a fortnight), commencing two weeks after the date of the orders. This order was not sought by either party or the ICL.
The primary judge also made orders for the parties to spend time with the children for half of the school holidays and other special days.
The mother was restrained from taking the children for counselling or therapeutic assistance without the father’s written consent and from questioning the children about past events which occurred when the children were spending time with their father.
The primary judge did not make the children’s time with their mother conditional upon her obtaining therapy but gave leave to the mother to provide a copy of the Orders, the Reasons and the Single Expert’s reports to the mother’s psychologist.
Grounds of appeal
The mother had filed an Amended Notice of Cross Appeal, but on 8 August 2019, she filed a Notice of Discontinuance. She confirmed during the hearing before us that she sought the father’s appeal be dismissed and that the primary judge’s orders remain in place.
In the father’s Summary of Argument, filed 23 July 2019, the father foreshadowed that leave would be sought to amend the grounds of appeal. The mother did not object and leave was granted to the father to rely upon the Amended Notice of Appeal which had been filed out of time.
In Ground 1.3, the father complains that he has not been afforded procedural fairness. We shall first deal with that Ground (Concrete Pty Limited v Parramatta Design & Developments Pty Ltd and Anor (2006) 229 CLR 577 at [117]). Notwithstanding that that Ground is successful, we shall also deal with the other grounds which have been argued (Kuru v State of New South Wales (2008) 236 CLR 1 at [12]).
Ground 1.3 – Procedural Fairness
Ground 1.3 is in the following terms:
1.3The exercise of discretion was vitiated by a failure to afford procedural fairness in that the learned trial judge made orders that neither party sought without giving them the chance to be heard.
The father submits that he was denied procedural fairness because neither party, nor the ICL, sought orders in the terms made by the primary judge and there was no indication that the primary judge was considering the arrangements which were ordered, nor did her Honour give the parties a chance to be heard in respect of the orders which were made.
It is uncontroversial that the primary judge, during the second and third tranche of the hearing, did not indicate that she might consider a possible proposal whereby the children would spend eight nights with their father and six nights with their mother each fortnight during school term.
In proceedings for a parenting order, the Court has the power, subject to certain restrictions, to make such parenting order as it thinks proper (s 65D(1) of the Family Law Act 1975 (Cth) (“the Act”)) and in making that decision, the Court must regard the best interests of the child as the paramount consideration (s 60CA, s 60CC and s 65AA of the Act).
Gaudron J in U v U (2002) 211 CLR 238 (“U v U”) commented at [30] that:
… That power is not restricted solely by the provisions of Div 6 of Part VII of the Act. More fundamentally, it is restricted by the requirements of procedural fairness – which requirements are an indispensable feature of the exercise of judicial power.
(Footnotes omitted)
Kirby J said in Allesch v Maunz (2000) 203 CLR 172 that:
35.It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”…
36.… It is inherent in the proper conduct of judicial proceedings in a court of law.
(Footnotes omitted)
The parameters of a parenting case are ordinarily defined by the respective proposals of the parties and the ICL, if there is one. However, it is clear that a court is not restricted by the parameters of those proposals.
Gummow and Callinan JJ stated in U v U that:
70. … There will, however also be cases, and not a few of them we suspect, in which it will simply not be possible for a judge to adopt exclusively or perhaps even substantially, a proposal of either party. In such a case the final order will evolve out of the evidence as it emerges, and submissions as they are developed …
…
80. … the Court is not, on any view, bound by the proposals of the parties. The Court has to look to the matters stated in s 68F [now s 60CC(2) and (3)] and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child's best interests.
Also, Hayne J in U v U stated:
171.In these circumstances, it would be quite wrong to treat the decision that is to be made as confined to a choice between whatever may be the particular "proposals" that the parents may make for the residence of, and contact with, the child … it would confine the Court's inquiry to what the parents suggested would be in the best interests of the child, regardless of whether those suggestions were informed, even wholly dictated, by the selfish interests of one or other of the parents. To confine the inquiry in this way would, therefore, disobey the fundamental requirement of the Act that the Court regard the best interests of the child as paramount. Those interests may, or may not, coincide with what one or both of the parents put forward to the Family Court as appropriate arrangements for residence and contact.
172.That is not to say that the Family Court is to embark upon some roving inquiry about the matter, unfettered by any regard for the evidence led and the matters which the parties seek to contest. Due account must be taken of the fact that proceedings in the Family Court are conducted in a framework of adversarial procedure familiar to the common law. (I do not stay to consider how or to what extent that adversarial model has been modified by the Act or rules of court made under it.)
What constitutes procedural fairness is to be judged by the nature of the decision that is being made. There is a flexible and chameleon-like quality to the principle (see Brennan J in Kioa v West (1985) 159 CLR 550 at 612).
Whether or not there is a lack of procedural fairness may depend upon the extent to which a primary judge’s order deviates from the parameters of the proposals of the parties and the ICL. As Fogarty J said in Guthrie and Guthrie (1995) FLC 92-647 at 82,545:
… Frequently in practice parties or those representing them leave their proposals about access remarkably vague and incomplete and it is a daily exercise of trial judges in this Court to be expected to fill in the detail. Other orders which are necessary extensions implicit in the proposals put forward by the parties fall into much the same category. That is, it would be unrealistic and burdensome for a trial judge to have to go back to the parties for detailed discussion about every one of those matters.
The difference, however, lies in cases where the orders which the trial judge has in mind significantly deviate from the parameters of the submissions expressed or implicit at trial. This is very much a question of degree and may vary from case to case …
In this case, there is a significant deviation between the parameters of the proposals contended for by the parties and the ICL on the one hand, and on the other hand, the order that the children spend unsupervised time with the mother for six nights a fortnight during school term and without any condition which involved the mother’s psychologist. Given the assertions by the father and the ICL about the risks of emotional abuse to the children (which the primary judge found existed), it was incumbent upon the primary judge to indicate to the parties and the ICL what her Honour was contemplating and to afford them the opportunity to lead further evidence and/or make further submissions about that arrangement. This is particularly so, in circumstances where the Single Expert, in both reports, had opined that an equal shared care arrangement (and the orders are only one night short of that) would not be in the children’s best interest given the conflict between the parties. Accordingly, the father has been denied procedural fairness.
Given the denial of natural justice in this case, the father seeks that the order about the time the children spend with the mother be remitted for rehearing. Not every departure from the rules of natural justice during proceedings entitles the aggrieved party to a new trial. However, all that the father needs to demonstrate is that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it would be necessary for us to find that a properly conducted trial could not possibly have produced a different result (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147). We are unable to conclude that, had the parties and the ICL been alerted to the possibility that the primary judge might make the orders that her Honour did and had the parties and the ICL been afforded the opportunity to bring further evidence and/or make submissions about that proposal, that a different result could not possibly have been produced.
Accordingly, there is merit in Ground 1.3 so far as it relates to the time the children spend with their mother during school term and it follows that there will need to be a retrial on that issue.
Ground 1.1
In Ground 1.1, the father asserts that the primary judge erred in the exercise of her Honour’s discretion because it was based upon a material error of fact, namely, that the 2018 expert report recommended against altering the children’s primary residence with the mother.
The father submits that the primary judge made a material factual error in recording and misunderstanding the recommendations of the 2018 report.
The primary judge states at [204] of the Reasons:
204. I also note that in the same report the Single Expert advised that the children wanted to stay with their mother and would experience a change of residence as highly distressing and so not in their best interest. I also accept that evidence.
(Emphasis added)
The immediately preceding paragraph of the Reasons at [203], contains a quote from the 2018 report and a footnote which refers to that report. It is consequently not controversial that “the same report”, read in context, means “the 2018 report”.
It is also uncontroversial that the content of [204] is a reference to the opinion of the Single Expert as expressed in the 2016 report and not the 2018 report. As set out in the 2018 report above, whilst the Single Expert conceded that there might be some feelings of loss experienced by the children if they were removed from their mother’s care, she opined that this would not be so significant as to outweigh the risk of them continuing to live with their mother.
Paragraph [204] sits in a discussion about the benefit of the children having a meaningful relationship with both their parents. Senior counsel for the father submits that this error of fact in that [204] is a material error because it led the primary judge to give greater weight to considerations under s 60CC(2)(a) of the Act rather than properly assessing the magnitude of risk when considering matters under s 60CC(2)(b) of the Act.
However, given the subject matter of [204], the question arises as to whether or not the primary judge has misunderstood the Single Expert’s evidence in relation to the children’s views in 2018 and the evidence in respect of the effect of a change in the children’s living arrangements in 2018. The error, on the face of [204], would be material if the primary judge had been mistaken as to the changed opinion of the Single Expert in 2018 in respect of the children’s views and the effect of a change of residence upon the children.
The primary judge discusses both the children’s views and the effect of change when considering those matters under s 60CC(3) of the Act.
In respect of the elder child’s views, there was no suggestion that by the end of the hearing she was expressing the view that she wished to stay with her mother. The primary judge observes at [227] that:
227. [The elder child] expressed herself as happy to continue with the new arrangement (five nights per fortnight). She initially did not know how she would feel about week about or living primarily with her father. Ultimately she denied having any preference for one arrangement over the other.
The primary judge discusses the difference in the views of the younger child as set out in the 2016 report when compared to that of the 2018 report. In respect of the 2016 report, the primary judge records that there was an inconsistency between the younger child’s expressed view that she wanted no time at all with her father and the Single Expert’s observation of her spontaneous emotional response when with her father. The Single Expert had observed that the younger child was excited and asked her father, as did her sister, to join in their game ([242]); she made eye contact with her father; sought affection and attention from him; and that there were no signs of tension or nervousness observed at all ([243]). The primary judge found that no weight could be placed on the expressed views of the younger child contained in the 2016 report. The primary judge was well aware, however, that:
246. For the second report [the younger child] was six, almost seven years. She too enjoyed the new arrangement for time with her father. She was looking forward to staying in her father’s home and sleeping in the room set up for her there.
When discussing the effect of changing the amount of time the children spent with their father (which at that time had increased to five nights a fortnight), the primary judge commented that the change “will provide a benefit for the children” (at [274]) and that the “children will come to understand that there is involvement by both parents in their lives” (at [277]).
Consequently, in so far as the primary judge incorrectly states at [204] that the Single Expert said in the 2018 report (as opposed to the 2016 report) that the children wanted to stay with their mother and would experience a change of residence as highly distressing, it is clear from the other parts of the Reasons referred to, that the primary judge well understood that that was not the situation as at 2018.
The primary judge was alive to the difference in the recommendations in the 2016 and 2018 reports. In relation to the former, at [39], her Honour says that, “A change of residence for the children was nonetheless described as likely to be experienced as highly distressing and therefore not in their best interests.” In relation to the latter, at [61], her Honour says that, “Among many recommendations, one was for intensive therapy for the mother, another was a change of residence for the children to the father.”
For those reasons, we are of the view that the word “same” in [204] of the Reasons is used infelicitously and to the extent that it is an error, it is not a material one.
There is no merit in Ground 1.1.
Grounds 1.2, 2 and 3
The father asserts in Grounds 1.2, 2 and 3 that:
1.2 The learned trial judge failed to give proper, genuine and realistic consideration to the issues of risk posed by the [mother];
2. That the learned trial judge failed to determine the matter in accordance with the evidence; and
3. That the learned trial judge erred in principle and law by failing to give any, or in the alternative, adequate reasons for her decision, or in the alternative, to give genuine, proper and realistic considerations to the matters required under s 60CC.
It is convenient to deal with these three grounds together. Senior counsel for the father made it clear that these grounds are not about the weight the primary judge gave to particular considerations, but rather the challenges are:
a)That there was an asserted failure by the primary judge to give proper, genuine and realistic consideration to the risks posed by the mother; and
b)Given those risks, the primary judge failed to adequately explain why the orders were made.
In respect of the first of these two challenges, senior counsel for the father made clear that the expression “proper, genuine and realistic consideration” is drawn from the High Court’s decision in Bondelmonte v Bondelmonte (2016) 259 CLR 662 (“Bondelmonte”) at [43]. In that case, in circumstances where the views of the children were known, the father argued that the primary judge failed to take into account the views of the children. In rejecting that argument, the High Court said of the requirement in s 60CC(1) and (3)(a) of the Act at [43] that:
… It requires that the views which have been “expressed” by a child be considered. The term “consider” imports an obligation to give proper, genuine and realistic consideration [Khan v Minister for Immigration and Ethnic Affairs (“Khan”) (1987) 14 ALD 291 at 11 per Gummow J] but this cannot affect or alter the terms of the provision so as to require a child’s views to be ascertained.
The plurality in Tibb & Sheean (2018) 58 Fam LR 351 expressed the view at [79] that the High Court “does not purport to define or interpret “consider”” and expressed the opinion that, “A definition or interpretation of the meaning of “consider” could not reasonably include a derivation of the very word sought to be defined or interpreted”. At [82], the Full Court preferred the “ordinary” meaning of “consider” as a transitive verb, namely, “to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of”. This was a definition adopted by Black CJ from the Oxford English Dictionary (2nd ed) in Tickner v Chapman (1995) 57 FCR 451 at 462. This meaning had previously been found by the Full Court in Goode and Goode (2006) FLC 93-286 at [64] to be not “entirely apposite”.
Senior counsel for the father submitted that the High Court in Bondelmonte had clearly endorsed a meaning of the word “consider” which found its first iteration in the judgment of Gummow J in Khan and which had repeatedly found favour with the Court of Appeal of New South Wales and the Federal Court of Australia. Senior counsel for the father specifically referred to the decision of Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 where Basten JA (with whom Beazley JA agreed) said at [9]:
On occasion, the function of the decision-maker (which should include a court) has been identified as being to “give proper, genuine and realistic consideration to the merits of the case”: Kahn [sic] v Minister for Immigration & Ethnic Affairs (1987) 14 ALD 291 (Gummow J). (The language probably derived from its use in equity to describe the proper exercise by a trustee of a discretionary power in relation to the trust.)
In our view, the debate is a sterile one. Even if the word “consider” is given its “ordinary” meaning to contemplate, reflect and bestow attentive thought upon, it would be risible to suggest that a judge could do so improperly, insincerely and unrealistically.
We accept senior counsel for the father’s submission that this Court can proceed on the basis that the High Court intended to say what the word “consider” imports when used in s 60CC(1) of the Act, namely, an obligation to give proper, genuine and realistic consideration to the matters in s 60CC(2) and s 60CC(3) of the Act.
Simply expressed, the father’s argument is that the primary judge, in making the orders that her Honour did, failed to give proper, genuine and realistic consideration to the evidence about the appreciable risk which the mother posed to the children.
Three paragraphs of the Reasons are particularly relevant:
214. The course which appears to most promote and protect the welfare and interest of the children is to increase their time with the father but in a way that allows substantial time with their mother. Eight days with their father and six days with their mother in each fortnight.
…
306.One course would have been to provide limited time only with the mother, for example two night alternate weekends. That would have afforded greater protection for the children from questioning, the mother’s sniping criticism of the father and her established tendency to take matters into her own hands, and out of the hands of relevant authority, when she believes the children are at risk. She may again question the children to prove what she fears or believes has happened to them.
307.I have not taken that course, in order to avoid suffering for the children as a result of having their time with their mother radically reduced or even supervised. The words of the father ring true “these children have had enough.”
The primary judge’s reserved judgment contains many insightful and concise findings and observations about the evidence of the parties and the witnesses. Some of the findings by the primary judge relevant to her Honour’s assessment of the risks the mother posed to the children are:
19. … Next, it could only have been the mother who told the child information which frightened and upset her in this way. [This finding was made by the primary judge after accepting the maternal grandmother’s evidence that she had heard the younger child screaming “I am not going back to Daddy’s house. He’ll hurt me Mummy. No Mummy don’t send me back.”]
…
21.By doing what she did the mother created a dramatic and traumatic experience for [the younger child].
31.The reaction of the mother was to conflate what the children were doing with each other in the bath, with a subsequent statement by [the younger child], probably made to distract the mother and perhaps to get herself out of immediate trouble.
…
41.I have concluded that the mother has taken a course of attempting to diminish the children’s relationship with the father. She did so in 2017 by gathering, and in fact, generating evidence of abuse of the children by interrogating the children through questioning, and, warmly receiving and encouraging from the children complaints about the father and members of his family.
42.I do not consider that the mother understood her own actions as harmful. She filmed herself questioning the children and brought the evidence to this trial in the confident expectation that it would assist her case by proving that the father was an abusive parent.
43.The expert evidence given by the Single Expert in November 2017 was a very clear analysis of how and why the mother’s actions had been harmful.
44.I have finally concluded that the mother by December 2018 had still not fully accepted that expert opinion.
45.The mother is of course entitled to her own opinions. The difficulty is that her adherence to the belief that the father is abusive and that it is her role as the children’s mother to protect the children from the father by proving what she believes to be true has indeed harmed the children. [The younger child] came to doubt her father’s love for her. She accepted that her father had hurt her because her mother told her so.
…
88.There is an obsessive, edgy character to the mother’s disapproval of the father and her documenting of his perceived shortcomings.
…
100.The statements made by [the younger child] would have been upsetting for the mother to hear.
101.It is hardly surprising that [the mother] had the emotional reaction she did nor that she was unable to contain her feelings. She concluded the worst, that sexual abuse had been perpetrated. The mother agreed in response to a question by me that she had never considered any other explanation, an innocent one, for what the child had said.
…
119.I conclude that the mother felt confirmed in all her negative views of the father as a parent and was desperate to avoid providing the children for time with their father.
…
137.[The mother] also presented as blinkered. She was willing to believe that the father, his partner, the paternal grandparents and other friends and family would be cruel and neglectful of the children and would lie to the mother to protect each other from the scrutiny of the mother…
…
198.There is risk associated with this course [to make an order for sole parental responsibility in the father’s favour]. The mother may experience levels of distress and resentment if the father has sole parental responsibility which would adversely impact on the children. In particularly in the form of close questioning of them, given her recent past history of doing so, and overt criticism of the father in their presence.
…
203.The Single Expert concluded that the children were at risk of psychological harm in the care of the mother because she was “perceiving benign behaviour in a malevolent way.” She assessed the beliefs of the mother as having “a delusional intensity because they are impervious to contrary information”. I accept that evidence. The mother’s intense, repetitive questioning of the children was abusive in effect though not by intention.
…
208.In an attempt to “get to the truth” the mother pursued the possibility of abuse through Child Abuse Services in Victoria and NSW. She also focused in on what she apparently believed was concealed information and withheld memories in the children. She allowed her partner to become equally over involved.
209.Something as innocent as a child in the bath touching her own genitals, or a child hungry and tired after a period with the father, became a source of anxiety for the mother. She did not hold back in trying to link such matters to the past.
…
213.There is a risk that the mother could again become triggered by some innocent remark or piece of behaviour by a child into seeking interventions for the children and questioning them herself.
…
226.Likewise, [the elder child] … found it annoying having to do “reports” about her time with her father to her mother. She described this as the “mother asking questions about the father and the children then having to “explain the weekend.”
…
241.[The younger child] explained to the Single Expert that she was not allowed to be alone with her father because “he might hurt me again.” This was not an expression of her wishes but evidently something she had been told as an explanation for supervision.
…
259.The mother appears to have no insight into how excluded the father is by the way she organises the lives of the children and tells him what she perceives he needs to know.
…
280.The mother developed a style of parenting … which was intrusive and ultimately became abusive.
…
283.The intentions of the mother were to both show to the children her interest in their lives and also to reassure herself that she was not missing any significant event. The mother is probably still attuned to the possibility of disclosure by the children of wrong doing by the father or a member of his family and friendship circle.
284.This practice, in my view, was most unhelpful to the children, especially [the elder child] who at nine should have been accorded some respect for the privacy of her thoughts and reactions.
…
286.The Court considered after hearing the relevant evidence that the mother was unlikely to voluntarily cease using this questioning method in the short-term future.
(Footnotes omitted)
Given the passages set out above, it is clear the primary judge gave proper, genuine and realistic consideration to the risks that the mother’s behaviour posed to the children and contemplated at [306] the advantages to the children of them spending limited time with the mother.
On the other hand, the primary judge made findings about the depth of the relationship between the children and their mother, who had been the primary carer for the children until the final orders were made. The primary judge made reference to the mother’s relationship with the children in the following paragraphs of the Reasons:
36. Overall the Single Expert took the view that the children had positive relationships with both parents and extended families, and were at no physical risk in either household…
…
136.The mother presented as a loving, caring parent, vigilant about the safety and wellbeing of the children.
…
202. There is a clear benefit to the children maintaining their relationships with both parents. These are children who are well loved by both parents.
…
219.[The elder child] was positive about her mother and her mother’s partner and described an enjoyable predictable life in the household.
…
226. Likewise, [the elder child] said it had been good living primarily with her mother and denied anything negative...
…
235. [The younger child] spoke of her mother positively claiming that her mother did not shout or smack her and that she did not get into trouble at her mother’s house at all.
…
278.The mother is a loving and devoted mother. She supervises the children carefully herself or has her mother or partner do so. She provides a high level of daily care. She considers herself a good parent, a much better parent than the father.
Again, it can be seen that the primary judge gave proper, genuine and realistic consideration to the benefit to the children of having a meaningful relationship with their mother. At [307], the primary judge has weighed that benefit against the risks otherwise identified in the Reasons.
In relation to the second challenge of failure to give adequate reasons, the primary judge at [306] and [307], has revealed why she decided the case in the way that she did. The primary judge was not required to mention every argument that was relied upon (Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 at 385-386; Bennett and Bennett (1991) FLC 92-191; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [59]).
There is no merit in Grounds 1.2, 2 and 3.
Conclusion
The father has established that he was not afforded procedural fairness in relation to Order 6.1 and that order shall be set aside and the matter remitted for rehearing in respect of that issue.
In the event Order 6.1 was set aside, the question arose as to whether or not Order 2 (the order providing the father with sole parental responsibility) and Order 5 (the order providing that the children live with the father) should also be set aside so as not to create practical difficulties on the rehearing and potential tensions between unchallengeable orders and the living arrangements which the judge who rehears the matter finds to be in the best interests of the children.
The difficulty with setting aside Orders 2 and 5, however, is that although the mother initially, as noted above, filed a Cross Appeal seeking that those orders be set aside, she subsequently filed a Notice of Discontinuance in respect of that Cross Appeal and those orders remained unchallenged in the hearing before us.
Consequently, the only order that will be set aside is Order 6.1 of the orders made on 8 February 2019.
Interim order to apply pending the decision on remittal
Order 5 provides that the children will live with their father. Having set aside Order 6.1, the issue arises as to what order should be made, pending the rehearing of the matter, in respect of the time that the children spend with their mother during school term. Under the order to be set aside, the children are with their mother six nights a fortnight. Senior counsel for the father initially sought that that time be reduced from six nights to four nights a fortnight, a position that was consistent with the father’s unsuccessful proposal before the primary judge. However, at the conclusion of his submissions, senior counsel for the father indicated that the father would be content, pending further order, to adopt the ICL’s proposal at trial (which would have commenced in term 1 in 2019) of five nights a fortnight (except that the conditions placed upon that amount of time by the ICL would not be ordered).
The mother sought that, pending further order, the children spend time with her six nights a fortnight.
The basis upon which we were asked to make a decision about the interim orders is severally curtailed.
Senior counsel for the father honed his submission to rely upon the unchallenged evidence of risk, which the primary judge had accepted, and the description of that risk by the Single Expert as “inculcation” of the children by the mother in her delusional view that the father had sexually abused the younger child. The simple submission was that one night less was one night less scope for inculcation.
The mother’s position was that stability for the children was best maintained by retaining the existing arrangements that had been in place for the nine months since the primary judge made the final orders.
The only information we have about what has happened in the last nine months since the primary judge made the final orders is the agreed fact that those orders have been implemented. This means that since shortly after 8 February 2019, the children have lived eight nights with their father and six nights with their mother during school term, have equally shared holiday time, spent Mother’s Day with their mother and spent any other agreed time. The mother, who was unrepresented, made statements during submissions about her view as to the settled routine of the current arrangements for the children, her compliance with orders, her involvement with therapy and her focus on the future. Senior counsel for the father correctly pointed out that absent a receipt of further evidence, pursuant to s 93A(2) of the Act, we are unable to take into account those statements from the bar table.
The father, however, has not sought to adduce any further evidence in the appeal as to the behaviour of the mother in the last seven months. We simply do not have enough evidence to embark in any principled fashion on the pathway set out in the legislation to ascertain what outcome will best serve the interests of the children between now and the determination of the next stage of this case. We are unable to infer that the arrangements that have been in place in that period have not worked for the benefit of the children.
The interim arrangement, with which senior counsel for the father indicates that the father would be content, does not draw legitimacy from its similarity to the proposal maintained by the ICL before the primary judge. This is particularly so, when the ICL’s proposal did not attract support from either parent or the primary judge at that time. That arrangement would result in the children spending one night less per fortnight with the mother than they have been spending since February this year, absent any evidence of the advantage to the children of that change.
On the limited basis discussed, pending the rehearing, we conclude that it is in the best interests of the children to make an order in the terms of Order 6.1 made by the primary judge on 8 February 2019. Because this is very much a default position and based on consistency for the children, it is imperative that the matter receive judicial attention as soon as practicable.
Costs Certificate
Senior counsel for the father sought a costs certificate if the appeal was successful. The appeal has succeeded on a question of law. The father will be granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth). The mother did not seek any order in respect of cost.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Watts, Tree & Bennett JJ) delivered on 18 December 2019.
Associate:
Date: 18 December 2019
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