Maclean & Greenwood

[2022] FedCFamC1A 200

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Maclean & Greenwood [2022] FedCFamC1A 200

Appeal from:

Greenwood & Maclean [2022] FedCFamC2F 855

Appeal number(s):

NAA 141 of 2022

File number(s):

BRC 7133 of 2020

Judgment of:

mcclelland DCJ, RIETHMULLER & Strum JJ

Date of judgment:

1 December 2022

Catchwords:

FAMILY LAW – APPEAL – PARENTING – Adequacy of reasons – Ex tempore judgment – Where the appellant maternal grandparents appeal from orders providing contact only as agreed by the respondent father – Child’s mother deceased – Appellants harbour unfounded allegations of father’s involvement in mother’s death – Risk to the child in being exposed to the appellants’ views of the father – Whether the primary judge provided adequate reasons for discretionary decision – Appellate courts slow to overturn discretionary judgments – Appeal dismissed – Costs ordered in fixed sum.

Legislation:

Family Law Act 1975 (Cth) s 60CC

Cases cited:

Babett & Falconer (2015) FLC 98-067; [2015] FamCAFC 124

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

Blinko & Blinko [2015] FamCAFC 146

DL v The Queen (2018) 266 CLR 1; [2018] HCA 26

Greenwood & Maclean [2022] FedCFamC2F 855

Gronow & Gronow (1979) 144 CLR 513; [1979] HCA 63

Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

L v P [2022] WASCA 40

Maviglia v Maviglia [1999] NSWCA 188

Perdicari & Perdicari (2019) FLC 93-914; [2019] FamCAFC 147

Rahal & Rahal [2022] FedCFamC1F 605

Number of paragraphs:

37

Date of hearing:

31 October 2022

Place:

Brisbane

Counsel for the Appellants:

Mr Tonge

Solicitors for the Appellants:

Wilsons the Family Lawyers

Counsel for the Respondent:

Mr Gordon

Solicitor for the Respondent:

O’Neill Family Law

ORDERS

NAA 141 of 2022
BRC 7133 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS MACLEAN

First Appellant

MR MACLEAN

Second Appellant

AND:

MR GREENWOOD

Respondent

order made by:	mcclelland DCJ, RIETHMULLER & Strum JJ
DATE OF ORDER:	1 December 2022

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the respondent’s costs fixed in the sum of $13,388.90.

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

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

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

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

REASONS FOR JUDGMENT

mcclelland DCJ, RIETHMULLER & Strum JJ:

Introduction

1. The appellants appeal against orders made on 30 May 2022 by a judge of the Federal Circuit and Family Court of Australia (Division 2) which provided for them to spend time with their nine year old grandson born in 2013 (“the child”), “only as consented to by the father”.

   Background

2. The child’s mother (the daughter of the appellants) died early in the morning on a day in 2020 as a result of heart failure due to an illness. The mother had lived with this condition for a long time. At the time she died, she was sleeping in her bed with the child, who was then only six years old. Whilst the respondent father was present in the house at the time the mother died, he was not sharing a room with her and did not realise that she had died until later that morning. The mother and father had separated and, at the time of the mother’s death, it appears they were attempting to reconcile.

3. The appellants are convinced that the father played “a role” in the mother’s death: see Greenwood & Maclean [2022] FedCFamC2F 855 (“Greenwood & Maclean”) at [62]. At the trial, however, they were unable to provide particulars of what they alleged against the father. At its highest, their case appears to be that the father was in some way negligent in failing to obtain assistance for the mother, as they contend the child had said that his mother was “wobbly on her feet the night before she died” (at [59]). There was no evidence that the father knew the mother was in need of assistance that day. There was no forensic evidence to indicate that the mother’s death was anything other than a tragic cardiac arrest during the night or early morning. The appellants are unable to accept that the father is not in some way blame worthy, despite the coroner’s report (following a post mortem examination of the mother’s body) and a police investigation into the death. For example, at the trial, the appellant grandmother said that she now wished to seek a toxicology report with respect to the mother, however no such report was produced.

4. Following the mother’s death in January 2020, the child lived with the appellant grandparents until interim orders were made on 23 June 2021 placing the child in the care of the father and limiting the time the child spent with the appellants to only telephone time.

5. So strong are the appellants’ views that at the mother’s funeral in 2020, the appellants did not afford the father a seat in the front row with the child. The primary judge found that the appellants had been speaking to the child about the relationship between the mother and father, including telling the child that his parents used to fight a lot and that he could see his father in a “safe house”, however the child never made an allegation to the family consultant that he had seen his parents fighting (at [91]–[96]).

6. The judgment in this matter was delivered orally the next working day following the conclusion of the final hearing on Friday 27 May 2022. The judgment given by the primary judge was brief. As the issues were narrow and the evidence would have been fresh in the primary judge’s mind, a detailed recounting of the evidence in the reasons for judgment was not required.

7. The primary judge summarised the issue in the case, saying:

   106. So the question for the court in relation to the father’s case is that the [appellants] present a risk … tied up with their views … of the father being involved in the mother’s death.

   …

   108. … their views were rigid. Their views were hard. Their views were their views without pointing to a great deal of evidence as to why they would have those views.

8. The primary judge noted that the single expert opined that the appellants’ conduct may be a “reaction to the death of [the mother]”, their daughter, and that no other explanation seems apparent (at [138]–[139]). His Honour noted that if this is the cause of their distress, it “is not to be visited on the child by accusations against the father” and that such “distress needs to be attended to, if it can be attended to, by professional help” (at [162]–[163]).

9. The primary judge was satisfied that the father would permit the child to spend time with the appellants if he were satisfied that the appellants would not withhold the child and “that they would not speak to the child on issues surrounding the mother’s death” (at [115]). It was not disputed that the father facilitates the relationships between the child and other members of his maternal family.

10. The issue at the end of the final hearing was balancing the potential impact upon the child of the appellants’ views about the father being involved in the mother’s death, against the potential loss to the child of a connection with his otherwise loving and supportive maternal grandparents. Given that the appellants’ views were fixed, the question of whether safeguards or “mitigation strategies” could be put in place to adequately protect the child from the appellants’ views became important (at [143]).

11. In his reasons, the primary judge found that:

    148. While I would accept [the single expert’s] expertise that safeguards could be put into place, safeguards will only work when there is a willingness of a party in circumstances which the court has here, or in fact, of two parties, being able to lessen their view, mitigate their view, ameliorate their views.

    149. But even three days ago the views were so strongly stated that I have real doubt as to the usefulness of subjecting [the child] to what would effectively be more counselling over and above the counselling he is getting in order to protect him from these wild, malicious and vicious statements of the [appellants].

    150. They are horrible views, and, again, I say that, not in terms of abusive criticism but so they stop and think about what they have caused because this is not the father causing this.

12. The primary judge concluded that the appellants would be unable to control what they say to the child and that it would be “an unacceptable risk to the development” of the child (at [158]). After noting that the child “may suffer because I am cutting that time between him and the [appellants]”, his Honour concluded that he was “really picking the path which seems to be less disastrous for [the child] in terms of his relationships” (at [164]–[165]).

13. When considering the reasons for judgment, it is important to note that the primary judge gave an ex tempore judgment in this case. It has long been recognised that an “ex tempore judgment should not be picked over” (Maviglia v Maviglia [1999] NSWCA 188 at [1]), and that it is generally appropriate to “make assumptions in favour of an ex tempore judgment”: see Perdicari & Perdicari (2019) FLC 93-914 at [25]. The underlying principle is founded upon recognition of a number of important considerations: first, that ex tempore reasons are given when the evidence is fresh in the judge’s mind; secondly, recognising that the expression of oral reasons (particularly by a busy trial judge) will not be in a form nearly as refined or detailed as reasons in written form that have been carefully structured and revised; thirdly, that ex tempore judgments meet the interests of litigants in having a decision as soon as possible; and fourthly, noting that the purpose of reasons as a necessary element of the exercise of judicial power is to provide an adequate explanation of the basis of the decision to the litigants, not a jurisprudential essay or royal commission report.

    Grounds of Appeal

14. The appellants raised three grounds of appeal. The appellants argued Grounds 1 and 2 together in their Summary of Argument filed 16 September 2022. As such, we deal with those grounds together.

    Grounds 1 and 2

    1.That the learned Judge failed to properly consider the nature of the relationship that the child shared with the Appellants (s.60CC(3)(b)(ii) of the Act) and the learned Judge's failure to do so is an error of law.

    2. That the learned Judge erred by failing to place proper weight on the evidence of [the single expert] and the detriment suffered by the child making an Order that provided that the child spend time with the Maternal Appellants only as consented to by the Father.

    (Notice of Appeal filed 28 June 2022)

15. At paragraph 5 of their Summary of Argument filed 16 September 2022, the appellants summarised the argument pursuant to these grounds saying that “no sufficient weight has been given to relevant considerations”, being “the nature of the child’s relationship with the Appellants” and the risks of detriment to the child that were identified by the independent expert, as a result of the orders made by the primary judge.

16. It was not an issue in dispute at final hearing that the child had a relationship with the appellants. It was noted that the child “was having a great deal of time with his parents and the [appellants]” at the time of the mother’s death in January 2020 (at [26]). The primary judge clearly proceeded upon the basis that “the child has a relationship with the appellants” that needed to be balanced against the emotional risks of the appellants’ unfounded allegations against the father (at [144]). Even the primary judge’s conclusion to cease time between the child and the appellants was expressed to be “despite the child’s relationship with the appellants” (at [151]). It was a central feature of the case that the relationships were seen in the context of the child having lost his mother.

17. It is apparent that the primary judge did consider the nature of the relationship between the child and his maternal grandparents. It is also apparent that the importance of that relationship was not in issue at the hearing, rather, the issue was the impact of the appellants’ unfounded allegation that the father was involved in the mother’s death. As a result, Ground 1 cannot succeed.

18. Before turning to Ground 2, it is important to note that an appellate court will be slow to overturn a trial judge when the decision is a discretionary one depending upon the weight to be attached to various factors. As Stephen J said in Gronow & Gronow (1979) 144 CLR 513 at 519–520, this is because:

    … the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.

19. With respect to Ground 2, there is no question that the primary judge had regard to the single expert’s evidence, mentioning it a number of times in his reasons for judgment: see Greenwood & Maclean. The primary judge noted that ceasing the child’s time with the appellants may cause the child to “suffer”, and went on to say that he was “picking the path which seems to be less disastrous for [the child] in terms of his relationships” (at [164]–[165]). It is apparent that the primary judge was aware of the risks to the child of continuing contact with the appellants, as well as the risks of ceasing that contact.

20. At paragraph 19 of their Summary of Argument filed 16 September 2022, the appellants argue that the primary judge failed to place “proper weight” upon the “single expert’s warnings” of the potential harm to the child in ceasing his contact with the appellants. The appellants point to the opinion of the single expert that the loss of the appellants from the child’s life could have quite detrimental effects upon him, however, that was clearly considered by the primary judge at [164]. It was also argued that the primary judge failed to give proper weight to the views of the single expert that it would not be in the child’s interests to cease time with the appellants if “safeguards could be put into place”. However, this proposition was acknowledged by the primary judge at [141] and was addressed by his Honour in the reasons.

21. In the Family Report dated 17 June 2021 (“the Family Report”), the single expert explained what would be required of the appellants to manage the risk to the child:

    134.… a commitment to fully support the transition and cooperate with the Court Order. Likewise, appropriate obligations and restraints should be placed on [the appellants] to limit [the child’s] future exposure to conflict, mixed messages, and negative views and opinions relating to his father. [The appellants] should also be committed towards seeking support, processing their grief and loss, and resolving the existing barriers.

22. On appeal, it was argued the safeguards that could be put in place were: counselling for the child, counselling for the appellants, allocation of parental responsibility to the father and limiting contact between the appellants and the child. Whilst the allocation of parental responsibility to the father reduces the opportunity for conflict, it does not address the central issue that confronted the primary judge. The single expert identified in evidence that in substance, restraints upon the appellants sharing their views with the child and counselling for the child to hopefully minimise or offset the emotional harm of hearing such allegations were the relevant strategies, as was recounted by the primary judge at [142]. The oral evidence of the expert in cross-examination, which clearly informed the primary judge’s findings in this respect, was that:

    There definitely needs to be a strong commitment and undertaking from the appellants of not to be exposing [the child] to these kind of situations in the future. And I would like to see – and you can’t force people … because I was very concerned about the grandfather at the time I did the interviews, I would like very much to see them committing to, you know, ongoing counselling that’s specifically about resolving their grief and loss and understanding some of these things that we’ve been talking about today.

    (Transcript 27 May 2022, p.161 lines 8–16)

23. Neither of the matters specifically identified by the single expert were established by the appellants. The primary judge squarely addressed the capacity of the appellants to moderate or withhold their views of the father from the child, finding that the appellants’ views were “hard and immovable” (at [114]), and that there was no evidence that satisfied his Honour that the appellants “would withhold their views from [the child]” (at [136]). There was no evidence that the appellants had committed to counselling. Indeed, between the release of the Family Report and the final hearing, only the appellant grandmother had undertaken any counselling, however there was no evidence of the nature or length of that counselling and the counsellor was not called to give evidence. There was no evidence of any commitment to or arrangements for counselling of the appellants in the future. On the evidence and findings as to the appellants’ conduct, there was simply no evidence upon which the primary judge could conclude that the risks could be “managed” in the manner that the single expert considered sufficient.

24. The argument that the primary judge did not give adequate weight to the opinion of the single expert is not sustainable in the context of this case.

25. The appellants have not established that the primary judge has failed to properly consider the relationship between the child and the appellants, nor has it been shown that his Honour failed to place proper weight upon the evidence of the single expert. As a result, Grounds 1 and 2 of the appeal must be dismissed.

    Ground 3

    3. That the learned Judge erred by failing to provide adequate reasons for judgement in respect of Order 4 of His Honour's decision made on 30 May 2022 in making an Order for the child to spend time with the Maternal Appellants only as consented to by the Father, specifically in the context of the evidence of [the single expert] and evidence of the Applicant Father.

    (Notice of Appeal filed 28 June 2022)

26. The appellants argue two points under this ground in their Summary of Argument filed 16 September 2022. First, that the primary judge failed to identify specific subsections of s 60CC of the Family Law Act 1975 (Cth) and, secondly, that the rationale for the conclusion at [152] of the judgment (that supervised telephone contact with the appellants would cause the child distress in the long run) cannot be discerned from the reasons.

27. The ambit of this case was ultimately limited to the question of the child’s time with the appellants. At final hearing the appellants, in final addresses, did not identify any of the specific subsections of s 60CC of the Act: their case was not put on the basis of a close analysis of any particular s 60CC factor. The primary judge was clearly aware of the provision, noting the effect of the relevant provisions at [41] to [45] of his reasons in slightly more expansive terms than the appellants had referred to them in addresses, before turning to the narrow issue that remained to be decided in the case. It is not essential for a trial judge to traverse every subsection of s 60CC of the Act in every case, like some form of mantra: Rahal & Rahal [2022] FedCFamC1F 605 at [23]. It is, however, necessary to identify the relevant facts and circumstances that are determinative of the particular decision, having regard to how the case has been put: Banks & Banks (2015) FLC 93-637 at [48]–[53]; L v P [2022] WASCA 40 at [61]. Each of the matters relevant to the child’s best interests in the context of this case were addressed in the primary judgment after reference to the evidence of the parties and the single expert. In the absence of identifying any fact or circumstance that was not considered in the primary judge’s decision, the simple argument that the primary judge failed to specifically refer to any particular subsection of s 60CC of the Act is a sterile complaint that leads nowhere.

1. The relevant passage for the second argument under this ground, referring to the rationale for the conclusion expressed at [152], must be read in context:

   151. I am ceasing time because despite the child’s relationship with the appellants, to continue with telephone time really only puts into place a supervised order because the father would have to listen in.

   152.     That would cause the child distress in the long run.

   153. I said earlier words to the effect that whatever order I make, nothing is resolving these issues between the adults or the issues for the child.

2. As discussed by Mahoney JA in Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 and cited with approval in Babett & Falconer (2015) FLC 98-067 at 96,730–96,731, whilst:

   ... the basis of the decision of a trial judge … should be made apparent. This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.

3. The appellants argued that the primary judge failed to make a careful evaluation of other options before making an order that does not provide for contact. Whilst one would ordinarily consider even modest or limited contact options before making orders that provide for no contact, particularly with respect to parents (see Blinko & Blinko [2015] FamCAFC 146 at [30]), each case must be approached on its own facts. It is important to note, however, that the primary judge found that the father would facilitate contact if the appellants modified their behaviour when around the child. That is, the orders made in this case did not prohibit contact, rather the practical effect of the orders is to permit contact if the appellants modify those of their behaviours that are harmful to the child.

4. In the present case, the findings with respect to the appellants (as discussed above) demonstrate that the conduct of the appellants did not meet the requirements that the single expert considered necessary for contact (discussed above at [23] of these reasons) and the expert gave evidence that supervised time would also cause the child to “struggle in his resolution of the information that he has been exposed to”: see Transcript 27 May 2022, p.160 line 30. This evidence provides a clear foundation for the primary judge’s findings at [152]. Earlier at [151], the primary judge did consider supervised time and rejected this option for the reasons given in [152], with such reasons being supported by the single expert’s evidence as given at final hearing.

5. It was further argued that as the father had expressed confidence in professional supervisors when he was being cross-examined, this should have resulted in an order for supervised time. However, this concession by the father did not answer the difficulty for the child that was identified in the single expert’s evidence that “supervised ongoing time sends a very mixed message to [the child] and that would equally cause him to struggle in his resolution of the information that he has been exposed to”: see Transcript 27 May 2022, p.160 lines 28–30. The reason for rejection of supervised time was not dependent upon whether the father or another person was the supervisor, but the impact of supervised contact upon child. 

6. The appellants also argued that the orders made by the primary judge differed from the recommendations in the Family Report and therefore the primary judge was required to specifically address the original recommendation. A trial judge is not bound by the opinion of an expert, although often the opinion of an expert is evidence of such significance that it should be addressed in the reasons for judgment. This is not a case where the primary judge failed to have any regard to the expert evidence. On the contrary, the evidence of the expert was relied upon heavily by the primary judge. The recommendations of the single expert in the Family Report were subject to qualifications concerning the appellants’ behaviour, as discussed by the single expert when giving evidence, which the single expert considered necessary for the appellants to have contact with the child. The primary judge’s findings that the appellants did not meet those requirements is sufficient explanation for why the primary judge did not adopt the single expert’s original recommendations, as set out in the Family Report.

7. In all cases involving an exercise of a discretion, there is inevitably a leap from identifying relevant considerations to the outcome. More detailed reasons about findings of fact are required where there is competing evidence or inferences to be drawn from a variety of pieces of evidence (see generally see DL v The Queen (2018) 266 CLR 1 at [33]), however this was not such a case. When considering reasons for exercising discretion, it must be remembered that discretionary judgments are not a mathematical process where each factor may be assigned a value, and a total calculated, rather, discretion relies upon a judge forming a view after considering the relevant matters. The reasons for the primary judge’s decision are discernible from the reasons for judgment, and supported by evidence given at the final hearing.

8. We are not persuaded that the brevity of the primary judge’s ex tempore reasons in the circumstances of this case gives rise to appealable error. As a result, this ground of appeal must also be dismissed.

   Conclusion

9. As the appellants have not established any of their three grounds, the appeal must be dismissed.

10. The appellants agreed that in the event the appeal was dismissed, the respondent should have his costs fixed in the sum of $13,388.90. We therefore order that the appeal be dismissed and that the appellants pay the respondent’s costs fixed at $13,388.90.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland, and Justices Riethmuller & Strum.

Associate:

Dated:       1 December 2022