Mahoney & Dieter

[2019] FamCAFC 39

FAMILY COURT OF AUSTRALIA

MAHONEY & DIETER [2019] FamCAFC 39

FAMILY LAW – APPEAL – PARENTING – Appeal against dismissal of application for parenting orders pursuant to the principles of Rice and Asplund – Where the parenting orders were made in New Zealand and registered in Australia – Where the appellant adduced evidence about her mental health – Where the parenting orders were not predicated on the appellant suffering a mental illness – Where the appellant misconstrued the basis of the parenting orders – Where the appellant sought to challenge the New Zealand judgment – Use of New Zealand judgment –  Risk of harm – Errors of fact – Where the errors of fact are immaterial to the order made – Appeal dismissed.

Evidence Act 1995 (Cth) s 91
Family Law Act 1975 (Cth) ss 60CA, 60CC, 69ZT
Family Court Rules 2002 (New Zealand) r 204

Carriel & Lendrum (2015) FLC 93-640; [2015] FamCAFC 43
Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lane & Nichols (2016) FLC 93-750; [2016] FamCAFC 234
Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296; [1984] HCA 29
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42

APPELLANT: Ms Mahoney

RESPONDENT: Mr Dieter

FILE NUMBER: MLC 11835 of 2017

APPEAL NUMBER: SOA 49 of 2018

DATE DELIVERED: 7 March 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Melbourne

JUDGMENT OF: Alstergren DCJ, Ryan & Kent JJ

HEARING DATE: 14 November 2018

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 27 June 2018

LOWER COURT MNC: [2018] FamCA 532

REPRESENTATION

THE APPELLANT: In person with a McKenzie Friend

COUNSEL FOR THE RESPONDENT: Ms Harris

SOLICITOR FOR THE RESPONDENT: Melbourne Family Lawyers

Orders

1. That the application in an appeal to admit the appellant’s supplementary appeal book be allowed.

2. The appeal be dismissed.

3. There be no order as to costs.

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 Mahoney & Dieter 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 49 of 2018
File Number: MLC 11835 of 2017

Ms Mahoney

Appellant

And

Mr Dieter

Respondent

REASONS FOR JUDGMENT

1. By amended notice of appeal filed on 6 September 2018, Ms Mahoney (“the mother”) appeals against an order of Austin J dismissing her initiating application for parenting orders.  Mr Dieter (“the father”) is the respondent to the appeal.

2. The parties have one child, X, who was born in 2011 and is currently seven years old (“the child”).  Final parenting orders relating to the child were made in New Zealand on 7 April 2017 and registered in Australia on or about 29 January 2018.  Those orders provide for the child to live with the father (as she has since December 2015) but in Australia and spend supervised time with the mother during school holidays in New Zealand where the mother lives with her husband (“the mother’s husband”).  Orders were also made for Skype contact between the mother and child.  

3. By her initiating application, the mother sought to have the Family Court of Australia make parenting orders such that on an interim basis the child would return to New Zealand and spend time with the mother during school holidays but without supervision.  The mother sought, on a final basis, that the child would return to New Zealand and live with her and spend time with the father in New Zealand as determined by the court. 

4. The matter was listed before the primary judge for a threshold hearing to determine “whether or not the mother can demonstrate the existence of changed circumstances to warrant re-consideration of the orders” [5]. In other words, resolution of what is often described as the Rice and Asplund (1979) FLC 90‑725 (“Rice and Asplund”) question.  Having found that no such change in circumstances exists, the mother’s application was dismissed.    

5. The father opposes the appeal and seeks that the order dismissing the mother’s application be upheld. 

Background

1. So as to provide context to the appeal, it is necessary to set out some background facts.  Much of this is taken from the reasons delivered in relation to the final parenting orders on 7 April 2017 by the Family Court Division of the District Court of New Zealand.  Those reasons were amended pursuant to r 204 of the Family Court Rules 2002 (New Zealand), the “slip rule”, a matter which assumed some significance in the appeal and to which we will return.   

2. The mother and father had a clandestine relationship in the sense that it was kept secret from the mother’s husband at least until sometime after the child was born. With the concurrence of the mother, the father had regular contact with the child until, in early 2012, the father ended their relationship.  By then he had returned to live in Australia.  From that point his attempts to maintain a relationship with the child were increasingly rebuffed by the mother.  Her stance was supported by her husband and they went so far as to cause the child to believe that the mother’s husband was her father.

3. Unable to establish an ongoing relationship with the child, in 2014 the father commenced proceedings in New Zealand to have contact with the child.  The application was opposed by the mother who made allegations of sexual and physical violence against him.  The court found against the mother and determined that she “has not been abused by the [father]” and that “her behaviour has amounted to psychological abuse of the [father]”.  

4. In June 2015 the child was placed under the guardianship of the court, and from July 2015 she lived with foster carers before moving into the care of the paternal grandmother in November 2015 and to the father in December 2015.  

5. In describing the reason for the child’s removal from the mother’s care, in the trial reasons given for the final parenting orders, the New Zealand court explained that:

   [1]…The transfer was necessary for the welfare and safety of [the child] because of the mother’s intense fixed and wrong beliefs about the father’s behaviour in her relationship with him. These beliefs are not related to his parenting of [the child]. If [the child] learns about these beliefs the damage to her will be adverse and lifelong.

   (Footnote omitted)

6. Since December 2015 the child has lived with the father and spent time with the mother under supervision.

7. At the final parenting hearing the mother attributed the cause of her parental difficulties which led to the child’s removal from her to be a result of a brain injury and hypothyroidism, which she had addressed.  However, the evidence before the New Zealand court revealed that the mother continued to hold fixed and wrong beliefs about the father’s behaviour towards her (including that the child was conceived through rape).  The New Zealand court conceptualised the situation thus:

   [5] The Court does not have the power to require the mother to not mention these matters.  A solution needs to be found to protect [the child] from the effect of the repetition and escalation of allegations.  In part, the effect is related to [the child’s] own security of ego and safe personal development. In part, the effects of the escalating allegations are to prevent the father beginning to develop a collaborative and informative relationship…

8. Ultimately, the opinion of that court’s expert that the child’s relationship with the mother was “inadequate to meet her psychological needs” and the child’s attachment to her was “insecure” was accepted. 

9. As to the question of whether the child would live with the mother or the father, the court said:

   [71] Taken as a whole, the evidence over two years of litigation persuades me that [the child’s] welfare and best interests will be better secured by remaining in the primary care of her father. At the point that she left her mother’s primary care her physical and cognitive skills were well developed, but her personal maturity, independence, self-care, and masteries of skills required to be ready to go to school were all at a markedly reduced level. This led the initial assessing psychologist, […], to describe the parenting approach as neglectful.  [The court’s expert] recorded the need for insightful parenting and she needed consistent approach to her social and language skills, and her mastery of age appropriate independence.

   (Footnote omitted)

10. In relation to the relocation issue and the child’s contact with the mother the court said:

    [91] Within this complex matrix, however, is that fact that clearly [the child] has a warm and loved and loving relationship with her mother. This has been observed exhaustively. The Ministry social worker and [court expert], have formed the conclusion that this contact needs to be professionally supervised in order to enable [the child] to enjoy the warmth and love of her mother, but be protected from the subtle undermining by the mother of [the child’s] increasingly secure relationship with her dad, and also protect against impulsive but damaging disclosure or outburst by the mother. As recorded earlier, supervision is also necessary to avoid [the child] having the confusion and anxiety which follow from her mother’s [sic] becoming emotionally overwhelmed and therefore unavailable for a period.

    [92] The psychological evidence from two expert witnesses is consistent in recommending that the child should only see her mother with professional supervision.  Nothing which the mother proffered in evidence countered that conclusion. I have considered the evidence which underpins that conclusion, and consider the opinion is well‑based. Appendix 1 details substantial problematic interactions at contact which both pursue the mother’s unfounded beliefs and also convey negative and dependent interactions, which will tend to undermine [the child’s] security with her dad.

    [93] I am satisfied that whatever contact the mother will have with [the child], it will need to be professionally supervised for the foreseeable future.

11. Thus, the final parenting orders allowed for the child to live with the father, for him to be permitted to relocate to Australia with the child, the guardianship order to be discharged and for the child to spend time with the mother under professional supervision twice each school holidays in New Zealand.

12. There was no appeal from these orders.

13. At the end of school term in April 2017, the father and child moved to live in Australia.

14. The mother filed her initiating application on 14 November 2017 which was a mere seven months after the final parenting orders were made.  As has already been mentioned, she sought orders that the child live with her in New Zealand, pending which the child would have extensive and unsupervised time with the mother in New Zealand during school holidays. 

15. On 1 May 2018 the mother’s application was listed for hearing on 26 and 27 June 2018 to determine the threshold issue of whether or not she could establish changed circumstances sufficient to justify reconsideration of the orders.

16. In support of her application the mother filed evidence by Dr B, who is a forensic psychiatrist, and who opined that the mother “is … unlikely to have a delusional disorder” and that “on interview there is no other evidence of psychotic process”.  Based on his assessment he saw “no grounds to have concern from a psychiatric perspective, for [the mother]’s capacity to parent the child” (see affidavit Dr B filed 27 April 2018).  This evidence was the primary plank of the mother’s claim to changed circumstances.

17. Having determined that the New Zealand final orders were not based on whether or not the mother had a mental illness or was delusional, the primary judge concluded:

    32. The reasons given for the parenting orders were efficacious then and remain just as valid now.    

The grounds of appeal

1. The mother presented eight grounds of appeal.  Before considering the grounds in detail, it needs to be understood that this is an appeal against the exercise of discretion to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. A different view by an appellate court only on matters of weight by no means justifies a reversal of a decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519).

2. The mother also sought to adduce further evidence in the form of a supplementary appeal book.  This supplementary appeal book contained various documents related to amendments to the New Zealand judgment published on 7 April 2017 made pursuant to the slip rule, including the revised judgments of 27 March 2018 and 28 August 2018.  The father did not object and the documents were admitted as sought.

3. There is no challenge to his Honour’s statement of the rule in Rice and Asplund, and for present purposes the scene can be set by reference to the trial reasons as follows:

   7.The determination of whether there has been a change of sufficient magnitude to warrant review of existing orders may be made either by preliminary inquiry or by more comprehensive hearing (see Marsden & Winch at [46]-[47]; Miller & Harrington (2008) FLC 93-383 at [80]-[83]). At whichever stage the determination is made, application of the Rice & Asplund principle is merely a manifestation of the broader principle that the subject child’s best interests are the paramount consideration and procedural fairness should always be observed (Marsden & Winch at [55]-[56]; Miller & Harrington at [101]).

Procedural fairness – Ground 6

1. We think it is appropriate that Ground 6 is considered first.  By this ground the mother contends that the primary judge conducted the hearing in a procedurally unfair manner.  Specifically, she argues she was disadvantaged by the New Zealand judgments (in particular an earlier decision dated 29 October 2015) being admitted into evidence and should have been given a further opportunity to make submissions arising therefrom.

2. It is useful to record that in National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296 at 312 Gibbs CJ explained that:

   [T]he authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise…

3. Ultimately, questions of procedural fairness turn on their own facts.

4. The issue of whether the New Zealand decisions would be received into evidence was engaged prior to the hearing. In her written submissions in support of the hearing, under the heading “Not necessary to consider the New Zealand decisions”, the mother argues that they should not be admitted in accordance with s 91 of the Evidence Act 1995 (Cth). However, at the hearing counsel for the father pressed to have the judgments attached to the father’s trial affidavit admitted as well as that of 29 October 2015.

5. During the hearing the primary judge clarified the position with the mother and the following exchange took place.   

   HIS HONOUR:   Well, [counsel for the father] would like that to form part of the body of evidence before me.  Do you have any objection to that?

   [THE MOTHER]:   I – I object.  I haven’t had a chance to read over it again and check if there’s anything - - -     

   HIS HONOUR:   Why does it make it inadmissible, given that it’s from 2015 and you would have got it shortly after it was published?

   [THE MOTHER]: I have thought – I thought that things from – from there were excluded under – under section 91 of the Evidence Act.

   HIS HONOUR:   No.

   [THE MOTHER]:   No. 

   HIS HONOUR: That’s what section 91 of the Evidence Act says in relation to ordinary proceedings but - - -

   [THE MOTHER]:   Okay.

   HIS HONOUR: - - - these are proceedings under Part 7 of the Family Law Act because they relate to parenting orders and section 69ZT(1) excludes from operation in these proceedings certain sections of the Evidence Act and section 91 is one of those sections of the Evidence Act which is expressly excluded, and, more to the point, section 69ZX of the Family Law Act expressly allows me to take into account the judgments and findings of other courts.

   [THE MOTHER]:   Okay.  I was unaware of that, your Honour.

   HIS HONOUR:   Sure.  I understand.  That’s why I’m explaining it slowly.  More to the point, this case is all about whether or not there has been a change of circumstances since the final orders were made in April 2017, so I can hardly make a determination as to whether there has been a change in circumstances - - -      

   [THE MOTHER]:   I completely understand that.

   HIS HONOUR: - - - unless I know what the circumstances then were.

   [THE MOTHER]:   Yes.  Yes, your Honour.

   HIS HONOUR:   So, you see, it seems to me it’s relevant and admissible, so is there anything else you would like to say?

   [THE MOTHER]:   Okay.  Yes.  Well, we will let it – we will let – let – sorry, what are the – what’s the correct wording for me to - - -  

   HIS HONOUR:   I’m asking you if you maintain your objection or whether you withdraw your objection.

   [THE MOTHER]:   I withdraw my objection.

   (Transcript, 27 June 2018, page 13 line 39 to page 14 line 42)

6. It is clear that the primary judge took the time to provide an entirely correct explanation to the mother why the reasons were admissible and gave her ample opportunity to make submissions on the point.  The mother’s decision to withdraw her objection was appropriate and now prevents any complaint by her on appeal that she was denied procedural fairness.

7. The mother further contends that she was disadvantaged by the primary judge’s refusal a short time later to grant her a five minute adjournment before she commenced her closing submissions, in particular because of the recently admitted reasons for judgment.  However, review of the trial transcript confirms that the mother’s request for a short adjournment was based on her desire to have a few minutes respite between the close of the evidence and starting oral submissions.  It was not based on her needing to consider the reasons for judgment.  In circumstances where the mother had already filed a closely typed 42 page summary of argument, the decision to proceed without an adjournment was unremarkable.  As to the opportunity to consider the reasons for judgment, the mother was unable to tell us what submissions she might have made had she had she been given the short adjournment and in this respect it was a complaint which lacked substance.    

8. There was no want of procedural fairness and this ground has not been made out.

The ratio of the New Zealand judgment – Grounds 5 and 7

1. These essence of these grounds is that the primary judge misunderstood the ratio of the New Zealand decision; the consequence of which is that he erred in the exercise of his discretion by failing to find that the mother had established a relevant change in circumstances.

2. According to the mother the ratio decidendi of the New Zealand decision(s) is that she posed a risk to the child because she was mentally ill (“[the judge] states I’m a psychopath”) which finding permeates the judgment(s) and taints the final parenting orders.  The mother contends that the primary judge failed to understand this and at [26] of the trial reasons he misstated the ratio of the New Zealand decision (Ground 5).  Further, the evidence adduced from Dr B that she does not have a mental illness demonstrated changed circumstances which should have led the primary judge to find that there was a relevant change in circumstances (Ground 7).  

1. Paragraph 26 of the trial reasons is as follows:

   Despite extensive cross-examination, the New Zealand court’s expert adhered to her opinions in that litigation. The New Zealand court properly accepted the court expert’s opinions were not diagnostic of any psychological or psychiatric condition in the mother, but rather an assessment of the extent to which the mother could meet the child’s emotional needs. The court expert found the child’s relationship with the mother was “inadequate to meet her psychological needs”. The child’s primary attachment was with the father and the child’s secondary attachment with the mother was found to be insecure. The court expressly noted it was “not central to [its] task” to find whether the mother’s beliefs or allegations about the father were delusional. Rather, the central task was assessing which parent could best meet the child’s psychological needs and the Court found it was the father.

2. His Honour’s analysis of the New Zealand decision(s) is entirely correct.  Furthermore and contrary to the mother’s submissions, the pivotal findings are contained in the following paragraphs where his Honour said:

   30.The court ultimately concluded in April 2017:

   [71] …taken as a whole, the evidence over two years of litigation persuades me that [the child’s] welfare and best interests will be better secured by remaining in the primary care of her father…

   31.Consequently, the mother’s submissions about her normal cognitive process, the abatement of her PTSD symptoms, and her absence of delusional thoughts make no tangible difference to the findings made by the New Zealand court between 2015 and 2017. 

3. The difficulty for the mother, as we explained during the appeal hearing, is that for this argument to be made good it was necessary for her to establish that the final parenting orders were predicated on findings that she suffered a mental illness, including a delusional disorder.  The mother was invited to show us where those findings were made but was unable to do so.  In fact she did no more than take us to the New Zealand judge’s summary of the expert evidence in which the experts discussed various alternate diagnosis.  The asserted findings upon which the mother’s contentions rested were not findings actually made.

4. A proper reading of the New Zealand judgment demonstrates that in relation to the mother’s mental health, the decision turned not on whether or not the mother had a mental illness, but that the fixed beliefs of the mother, whatever their genesis or label, posed a risk of harm to the child.  So much so is apparent when one considers the New Zealand judgment, which, while canvassing the evidence of three experts (the court’s expert, social workers and the mother’s own psychologist), ultimately centred on the risks that the mother’s behaviour, her parenting style, lack of attunement and insecure attachment posed to the child.  This was the court’s focus both in considering the mother’s application that the child live with her and, after it was determined that she would continue to live with the father, the question of whether the child’s time with the mother should be supervised:

   [49] I accept also [the court’s expert’s] opinion that the mother’s variable attunement, lack of attachment, and state of becoming overwhelmed by her own needs are all likely to contribute to [the child] experiencing the relationship as less than satisfactory.  I accept it may provoke in [the child] an anxious state. I adopt the conclusion of [the court’s expert] that the mother’s combination of lack of insight, rigid beliefs in the narrative which the Court does not accept, capacity to escalate allegations and use information from that to her benefit, all contribute to the mother being such a risk to [the child] that it is not proper to consider contact being anything other than professionally supervised.

5. Thus it is clear that the focus of the New Zealand court was not upon the mother’s diagnosis, but the mother’s behaviour and how it impacted on the child, in the context of diametrically opposed parenting proposals where the evidence (which was accepted) was that the child was thriving in the father’s care.  This was the starting point for the primary judge in determining the Rice and Asplund question, and he was correct in determining that:

   24.Contrary to the mother’s interpretation, the decisions of the New Zealand court up to and concluding in April 2017 did not turn critically on her diagnosis with any psychological or psychiatric condition. 

6. As such, there is no merit in the suggestion that the primary judge misunderstood the ratio of the New Zealand decision and Ground 5 is not established.

7. Ground 7 argues an alternative: that if the New Zealand judgment did not turn on the question of whether or not the mother suffered from a mental illness, the evidence of Dr B that she was not mentally ill was nonetheless a material change in circumstances.  As such, the primary judge’s discretion in applying the Rice and Asplund principles erred by considering whether the findings of the New Zealand court should stand, rather than doing that which was required. Namely, consider the past circumstances, the evidence on which the decision was based and whether there is a likelihood of orders being varied in a significant way as a result of a new hearing (Marsden & Winch (2009) 42 Fam LR 1 (“Marsden & Winch”) as cited by the primary judge at [6]).

8. At the risk of unfortunate repetition, the New Zealand court came to no conclusions about the genesis of the mother’s behaviour and was focussed on the mother’s escalating allegations and accusations against the father and the risk of harm this posed to the child, the child’s developmental delay while in the care of the mother and her husband and other deficiencies in the mother’s parenting capacity.  Once again the premise of the challenge has not been established.  The presence or absence of a mental illness did not drive or influence the final parenting orders.   The orders of the New Zealand court were made to protect the child from emotional harm stemming from the mother’s behaviour and because the father was better able to meet the child’s needs.  The mother’s evidence that she did not have a mental illness (including delusional beliefs) said nothing about the manner in which she would parent the child and did not negate the risk factors identified in the New Zealand judgment.  We discern no error in the application of Marsden & Winch.

9. We also note that in this, and a number of other grounds, the mother cited submissions made by counsel for the respondent so as to bolster her grounds of appeal.  For example, within this ground the mother took issue with a submission to the primary judge which suggested that the many hearing days and duration of the New Zealand proceedings was a factor in considering whether the parenting proceedings should be reopened, and that the mother would need to demonstrate that she had recanted her previous allegations against the father to demonstrate changed circumstances.   These submissions were not accepted in the trial reasons and could not establish error by the primary judge.

10. Error as contended for by these grounds has not been established.

Challenges against the correctness of the New Zealand judgment – Ground 4

1. As has become apparent, the question before the primary judge was not the correctness of the New Zealand parenting orders and the findings that underpin them, but whether or not there had been a sufficient change in circumstances since their making such that they warranted revisiting.  The mother did not appeal the New Zealand orders, so they, and their attendant findings, are undisturbed.  Despite this, Ground 4 was presented as an attack on the New Zealand judgment, with the mother, in effect, seeking to prosecute a quasi-appeal against it, either explicitly or by implication.

2. By Ground 4 it is asserted that the primary judge erred by finding that a fixed belief alone, absent of an underlying mental illness, could constitute a safety risk to the child.  As is apparent in both the mother’s written submissions and oral argument before us, while this may have been a feature of the controversy in the New Zealand proceedings, it was not a relevant matter before the primary judge, nor one that he made findings on. 

3. At its highest, the mother’s submission in relation to this ground can be found in her summary of argument as follows:

   23. It was foolish and unfair for the NZ judge to make assessments of credibility and reliability which were never revisited (because these were (supposedly) ‘findings of fact’) in the midst of such a highly charged situation. I cannot be blamed for my PTSD being triggered by being in the same room as my attacker. Just because the deadline for appeal expired before I could get medical evidence doesn’t make it any less a miscarriage of justice. As [Dr B’s] evidence confirms during the hearing I was suffering from PTSD and a thyroid condition which manifested itself as acute anxiety and distress. I am not mentally ill.

   24. There is nothing preventing a judge from using her judgment to paint me in the least favourable light possible (as the judge did in my case). I accept that. However, the Court must also accept my right to disagree with that decision, just as I have to accept that I will never get justice for what happened to me. I have dealt with the fallout from the abuse through extensive therapy and am now in remission. The biggest obstacle to my full recovery is my lack of access to my child. As the New Zealand judge admits, I have a right to disagree with her.

   25. The New Zealand judge’s reasons for supervision centre on the idea that my beliefs are “false’ and that holding a false belief (and not ‘recanting’ it) poses a risk to the child. the judge refers to “interactions […] which […] pursue the mother’s unfounded belief” and “the mother’s […] rigid beliefs in a narrative which the Court does not accept”.

   26. The Australian judicial officer was not bound to accept this reasoning (coming from a foreign jurisdiction) but did no, noting: “The reasons for the parenting order […] remain just as valid now”

   27. There was no evidence of harm or breach (by me) in this case. The onus was on the Respondent to provide this evidence. He did not do so. If there were any allegations of breach the onus was upon the Respondent to cross-examine me and put the allegations to me for response. He did not do so.

   28. As an appellate court, if this Court endorses the judicial officer’s decision, it will unleash upon the Australian legal system a dangerous binding precedent: namely, that any unsuccessful litigant who disagrees with a decision of the Court (or who does not obtain a successful criminal prosecution of their abuser); and who does not ‘recant’; is guilty of a ‘thoughtcrime’ which does not require evidence of harm, breach or mental illness but which makes them irredeemably ‘unsafe’ to their child. Such a proposition has no place in the law of any civilised society!

   (As per original; footnotes omitted)

4. Put simply, the mother’s argument in support of this ground is, in effect, that the primary judge was in error to rely on the New Zealand judgment because it was wrong.  This circular argument misconstrues the task that was before the primary judge and is a misunderstanding of the Rice and Asplund principles.  There is no merit in this ground.

The amended New Zealand judgments – Ground 1

1. As we mentioned earlier, after the reasons for judgment for the final parenting orders were published on 7 April 2017 the judgment was recalled and reissued following the mother’s application pursuant to that court’s slip rule.  The judgment was reissued three times, once on 27 March 2018 (before the hearing before the primary judge occurred) and twice on the 28 August 2018.  The purpose of the revisions was to correct the same factual error, being that the mother’s expert recommended that the mother’s time with the child be supervised, where in fact the expert recommended that it should be unsupervised.  This error was repeated on a number of occasions in the judgment.  All references to this evidence were corrected in the third revised judgment. 

2. The primary judge had before him the original uncorrected version of the judgment, which appeared attached to the father’s affidavit as Annexure JD4.  The primary judge referred to this at [28], stating that “[the mother’s expert] thought it was important for the child’s contact with the mother to be supervised.”  

3. At the end of the hearing, following submissions and the primary judge’s delivery of his ex tempore judgment, the mother unsuccessfully attempted to bring the error to the attention of the primary judge.  The father, whose affidavit contained the unamended version of the judgment, did nothing to correct the record.

4. By reference to the amended judgment(s), his Honour’s finding at [28], is wrong. However, not every factual error will justify appellate intervention and the question to be answered is whether the error is material to the ultimate decision. In our view it is not. This is because in [29] of the trial reasons the primary judge correctly recorded that the New Zealand judge accepted evidence from the court expert that the child’s time with the mother should be supervised. As far as the final parenting orders regarding supervision is concerned, the critical findings are those at [49] of the New Zealand judgment, as set out earlier in these reasons at [39].

5. The point being, the error by the New Zealand judge as to the recommendation by the mother’s expert which was replicated in the trial reasons had no bearing on the ultimate decision in either setting. 

6. In Lane & Nichols (2016) FLC 93-750, a case concerned with expert evidence on the question of supervision, the Full Court considered the question of when appellate intervention and the granting of a new trial might be inappropriate even when error has been established. The Full Court said:

   72. Whilst it must be acknowledged that it will be a rare or exceptional case where an error of law established on appeal, comprising misapprehension of evidence on the part of a judge at first instance, does not lead axiomatically to an appeal from the decision being allowed there are, albeit limited, exceptions.

7. Their Honours continued, noting that s 94AAA(6) of the Family Law Act 1975 (Cth) (“the Act”) provides that “[o]n an appeal… the Family Court … may, if it considers appropriate, order a rehearing”. Reference was made to Conway v The Queen (2002) 209 CLR 203 (“Conway”) and at [78] their Honours cited [36] of Conway as follows:

   …Section 28(1)(f) of the Federal Court of Australia Act empowers the Federal Court to allow an appeal “on any ground upon which it is appropriate to grant a new trial”. This power is expressed in wide terms and should be given a liberal construction.  It is a power that must, of course, be exercised judicially. But there is nothing unjudicial, arbitrary or capricious in refusing to order a new trial when, although error has occurred, no miscarriage of justice has occurred …

   (Footnotes and citations omitted)

8. Ultimately, for this ground to amount to appealable error the error must be material and have occasioned a miscarriage of justice.  In this case it did not and it follows that this challenge has not been made good. 

Factual errors of the primary judge – Ground 3

1. Ground 3 relates to asserted factual errors made by the primary judge; the first being at [26] where he stated that “[t]he child’s primary attachment was with the father.”  This fact was extrapolated from an interim New Zealand judgment from 2015 that referred to the mother’s husband as “the father” whereas the father was described as the child’s “biological father” and who at that time had a limited relationship with the child.

2. Again, while we acknowledge that the primary judge misconstrued the interim New Zealand judgment and made a factual error, nothing turns on it.  It was not material to either the final parenting orders or the decision of the primary judge. 

3. The second aspect of this ground relates to the primary judge’s summary of the findings of the New Zealand court, including a finding that “[t]he mother’s husband admitted to the New Zealand court he did not believe the mother’s allegation of rape against the father” [25](d).  The mother contends that this finding is incorrect and adversely affected her credibility with the primary judge.

4. The above reference can be traced to the July 2015 interim judgment of the New Zealand court attached to the father’s affidavit as Annexure JD2.  Paragraph 47 of that judgment states:

   The [mother’s husband] confirmed throughout his written evidence that he accepted his wife’s account that she had been raped… However by the time the [mother’s husband] gave evidence before me, orally, he no longer believed that the conception was a result of rape.  He accepted that the mother had had a consensual sexual relationship, as a result of which [the child] was born.  The [mother’s husband] did not tell the mother of his change of heart until he was giving evidence…

5. The mother contends that her husband now believes that the child was conceived through rape.  Be that as it may be, we were not taken to any evidence to this effect that was before the primary judge, and again, there is no nexus between this asserted error of fact and the primary judge’s determination that there were not sufficient changes to warrant a further hearing in relation to the parenting orders.

6. There is no merit in this ground.

The primary judge’s application of Rice and Asplund – Grounds 2 and 8

1. Grounds 2 and 8 (as well as Ground 7 which has been discussed) challenge the primary judge’s approach to Rice and Asplund.   

2. Ground 2 is a discrete ground in which the mother effectively argues that the primary judge erred by relying on the New Zealand judgments. This is because these judgments contain prejudicial hearsay evidence from experts who gave evidence in those proceedings in circumstances where the primary judge did not have the transcripts of the New Zealand proceedings or the expert reports.  The primary judge is said to have misused this hearsay evidence to distinguish the evidence of the mother’s expert in the proceedings before him, rather than considering whether the mother had demonstrated a material change in circumstances since 7 April 2017.

3. The mother’s complaint misconstrues the task before the primary judge. This was not a re-hearing or re-testing of the evidence given in the New Zealand proceedings, and contrary to the mother’s submission, the primary judge did not “re-weigh” this evidence. The primary judge’s starting assumption was the correctness of the New Zealand orders and the findings underpinning them, as shown by his summary of these findings at [25]. As we have already said, the final parenting orders did not turn on a diagnosis of a psychological or psychiatric condition in the mother. It follows that the primary judge was correct in determining that recent evidence of the mother’s mental health and the like “did not do the work the mother expected” [20]; namely show changed circumstances. This point is reinforced when it is recalled that the finding of risk of harm to the child in the mother’s care was her false and rigid beliefs about the father, and the unchallenged evidence of Dr B was that the mother could hold such false beliefs without being delusional.

4. As to Ground 8, it is contended that the primary judge erred by not considering ss 60CA and 60CC of the Act in determining whether the parenting orders should be revisited.

5. This ground can be disposed of quickly.  As the Full Court explained in Carriel & Lendrum (2015) FLC 93-640 (“Carriel”), in a case where Rice and Asplund arises for consideration, the terms of the existing parenting order reflect the best interests of the child at that time and it is presumed they still do. The fact that there are existing orders in turn affects the nature and extent of the examination of the factors set out in s 60CC (SCVG & KLD (2014) FLC 93-582) and “it will not be appropriate or necessary to discretely address many of the factors in s 60CC of the Act in determining where the best interests of the child might lie” (Carriel at [56]).

1. Nor is it necessary for a judge in the position of the primary judge to incant s 60CC to be able to see that those matters that have arisen subsequent to the operative parenting orders have been considered in the context of the provision. For example, in this case it had already been determined that the child could not have an extensive relationship with the mother and that the mother posed a risk to the child. These findings clearly engage s 60CC(2) and (2A) of the Act. Further that the mother was not able to meet the child’s emotional needs and the child was thriving in her father’s care; s 60CC(3)(a), (d), (f) and (l). There is no doubt that the primary judge examined the evidence adduced by the mother in the context of the undisturbed findings and considered whether that evidence was sufficient to justify reversal or variation of the current parenting orders. This exercise was implicitly and obviously undertaken by reference to the provisions as to how the court determines what is in the best interests of the child.

2. There is no merit in these grounds.

Conclusion

1. The mother has failed to show appealable error and the appeal will be dismissed.

2. In the event the appeal was dismissed the father did not seek costs and an order will be made to this effect.     

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Alstergren DCJ, Ryan & Kent JJ) delivered on 7 March 2019.

Associate: 

Date:  7 March 2019