Malburon & Waldlow
[2013] FamCAFC 191
•29 November 2013
FAMILY COURT OF AUSTRALIA
| MALBURON & WALDLOW | [2013] FamCAFC 191 |
| FAMILY LAW – APPEAL – CHILDREN – Appeal from orders that the child live with the respondent father and spend time with the appellant mother to be supervised by the second appellant maternal grandmother – Where the appellants complain the Federal Magistrate did not consider evidence – Where the appellants assert the Federal Magistrate failed to ensure the child had a meaningful relationship with the appellant mother – Where the appellants contend the Federal Magistrate failed to consider factors in s 60CC – The Federal Magistrate did consider the evidence and all relevant matters – Where the appellants asserts they were not afforded procedural fairness – No merit in these complaints. FAMILY LAW – APPEAL – CHILDREN – LONG-TERM SUPERVISION ORDERS – Where the appellants complain about the indefinite supervision order – Where the Federal Magistrate did not make orders specifying the appellant mother’s time with the child – The Federal Magistrate erred in not making orders specifying times and should not have delegated the decision making to the respondent – Where the Federal Magistrate gave only the respondent liberty to apply in relation to implementation of the orders – The Federal Magistrate erred in not giving all parties liberty to apply in relation to implementation – The Federal Magistrate erred in failing to give the appellant mother liberty to apply for unsupervised time with the child and allowing the respondent to determine if the requirement for supervision would ever be lifted – Appeal allowed in part – Orders varied. FAMILY LAW – APPEAL – CHILDREN – COSTS – Appeal allowed in part – Directions made for filing of costs submissions. |
| Family Law Act1975 (Cth) s 60CC Federal Proceedings (Costs) Act 1981 (Cth) |
| Champness and Hanson (2009) FLC 93-407 Moose & Moose (2008) FLC 93-375 Slater v Light (2013) 48 Fam LR 573 |
| FIRST APPELLANT: | Ms K Malburon |
| SECOND APPELLANT: | Mrs M Malburon |
| RESPONDENT: | Mr Waldlow |
| INDEPENDENT CHILDREN’S LAWYER: | Browns Family Lawyers |
| FILE NUMBER: | PAC | 4429 | of | 2009 |
| APPEAL NUMBER: | EA | 144 | of | 2012 |
| DATE DELIVERED: | 29 November 2013 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Thackray, Ainslie-Wallace and Aldridge JJ |
| HEARING DATE: | 26 July 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 3 October 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 1064 |
REPRESENTATION
| COUNSEL FOR THE FIRST APPELLANT: | Self represented litigant |
| COUNSEL FOR THE SECOND APPELLANT: | Self represented litigant |
| COUNSEL FOR THE RESPONDENT: | Ms Druitt |
| SOLICITOR FOR THE RESPONDENT: | Matthews Folbigg Pty Ltd |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Snelling |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Browns Family Lawyers |
Orders
The appeal be allowed in part.
Order 14 made by Federal Magistrate Henderson on 3 October 2012 be varied to provide as follows:
14.That all parties have liberty to apply in relation to the implementation of these orders and to seek orders:
(a) specifying the time the mother is to spend with the child;
(b) relating to handover, both as to venue and cost; and
(c) relating to costs of time spent at a contact centre pursuant to Order 13.
The orders made by Federal Magistrate Henderson on 3 October 2012 be varied by the addition of the following order:
15.The mother have liberty to apply for the discharge of the requirement for supervision contained in Order 6, such liberty not to be exercised until the child attains the age of seven (7) years.
Within twenty-one (21) days the parties file and serve submissions in support of any application for costs or any application for costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth).
Within twenty-one (21) days thereafter any party wishing to respond file and serve submissions in response to the submissions in support of any application for costs or costs certificates.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Malburon & Waldlow has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 144 of 2012
File Number: PAC 4429 of 2009
| Ms K Malburon |
First appellant
And
| Mrs M Malburon |
Second appellant
And
| Mr Waldlow |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
On 3 October 2012, Federal Magistrate Henderson (as her Honour then was) made parenting orders concerning the child T, then aged three.
The orders provided for the child to live with her father, who was also given sole parental responsibility.
The Federal Magistrate made orders which allowed the mother to have only supervised time with the child. In particular:
·Order 6 permitted visits “as agreed between the mother, the father and the maternal grandmother, … to be supervised by the … grandmother being no more than 2 occasions each month unless otherwise agreed”;
·Orders 7 and 8 provided for the child to spend specified times with her mother around Christmas, on the child’s birthday and on Mother’s Day, under the supervision of her maternal grandmother; and
·Order 13 allowed the child to “spend time with her mother as otherwise agreed between the parties including time at a contact centre”.
Order 14 gave the father “liberty to restore the matter to the list at any time with 7 days notice in relation to the implementation of these orders …” No such liberty was given to the mother or the grandmother, nor was there any mechanism to allow the mother to apply for the time to become unsupervised.
By Notice of Appeal filed 31 October 2012, the mother challenges these orders. She seeks equal shared parental responsibility and a week-about care regime. The maternal grandmother joins in the appeal and seeks the same orders.
The appeal is opposed by the father and by the Independent Children’s Lawyer.
Brief background
At the time of judgment, the mother, Ms K Malburon, was 35 and the father, Mr Waldlow, was 36 years of age. For convenience, we will refer to them in these reasons as “the mother” and “the father”.
The maternal grandmother, Mrs M Malburon, who has been a party to the proceedings since 2010, will be referred to as “the grandmother”.
The mother and father appear to have commenced cohabitation in about 2007. They have one child, T, who was born in April 2009.
There were many problems in the relationship, but these became more evident after the child’s birth. The police were called to the home many times.
In September 2009, the father sought a recovery order, claiming the mother had threatened to kill herself and the baby. The recovery order, which was granted ex parte on 23 September 2009, resulted in the police removing the child from the mother. The child has lived with the father ever since.
On 25 September 2009, interim orders were made that the child remain with the father and for the mother to have supervised time with the child.
Notwithstanding the efforts of the Federal Magistrate to expedite the hearing, the trial did not commence until August 2011. During the long wait, the mother continued to have only supervised time with the child. Supervision was provided either by the grandmother, the mother’s sister or by a contact service.
The lengthy trial was spread over an extended period (August 2011 to June 2012). After the first tranche of the trial, the Federal Magistrate acceded to the mother’s request for increased time with the child. The orders her Honour made on 16 September 2011 allowed the mother to have each alternate weekend with the child, as well as one day each week. The orders required the grandmother to be present for the overnight part of the visits. The father opposed these orders, claiming they were “too much, too soon”.
In the concluding stage of the trial, evidence emerged of what the mother had done during the time she had spent with the child without supervision. This involved her filming the child in the toilet, questioning the child about sexual abuse and making allegations to the police and the child protection authority.
On 24 April 2012, after viewing what the Federal Magistrate described as the “distressing video”, and after hearing other evidence, her Honour suspended the orders for unsupervised time. This occurred before the last tranche of the trial. Thereafter, the mother was only able to see the child during times she was spending with the grandmother.
The trial concluded in June 2012 and judgment was delivered in October 2012. In her reasons, the Federal Magistrate said she had been inclined to order that the child not have any time with her mother. However, noting that the father and the Independent Children’s Lawyer both sought a continuation of supervised visits, her Honour said she would “be guided by the father who was correct that the time I ordered the mother to have with the child in September 2011 was too much too soon” (Reasons [554] and [555]).
Her Honour then went on to make the orders the subject of this appeal. In explaining her proposed orders, the Federal Magistrate expressly contemplated the possibility that, at some time in the future, the mother may no longer require supervision, but said that would be for the father to determine (Reasons [552]).
Further evidence in the appeal
The mother sought to introduce further evidence on the hearing of the appeal. Although this was initially opposed, the father and the Independent Children’s Lawyer ultimately consented, given that the further evidence showed that, although there had been communication difficulties, the mother had in fact been able to see the child, notwithstanding the lack of specificity in the orders.
Orders agreed during the hearing of the appeal
The grandmother had sought orders at trial allowing her to spend time with the child, independently of time the mother might be permitted to spend with the child (Transcript 26 June 2012, p 58). This application was seemingly overlooked by the Federal Magistrate, but the parties were able to resolve this issue during the hearing of the appeal.
Immediately after the conclusion of oral argument before us, one member of the bench, sitting as a single judge, entertained an oral application by the grandmother for orders in terms of an agreement reached between her, the father and the Independent Children’s Lawyer. The mother was not a party to the agreement but advised that she did not oppose the orders being made.
The orders, made on 26 July 2013, provided for the grandmother to spend time with the child on one Saturday each month, from 9 am to 5 pm, on condition that the time not be spent in the presence of the mother.
The grounds of appeal
The mother and grandmother relied upon five grounds of appeal, some of which were interrelated. We will begin with Ground 5 as it deals with specific issues, whereas the other grounds were more generally stated.
Ground 5 – Failure to consider specific evidence
By this ground it was contended that the Federal Magistrate had failed to take into consideration a variety of matters. These were listed in various sub-grounds, with which we will deal in turn.
Ground 5(a) The mother’s statements as to violence inflicted by the father
This complaint is misconceived, since it is clear that the Federal Magistrate did consider the mother’s statements about the father’s alleged violent behaviour.
The fact the Federal Magistrate considered the mother’s claims about family violence appears from many parts of her reasons, including:
·at [165], where she found the particulars provided by the mother in her Notice of Abuse were not supported by the evidence and further observed that the claims were inconsistent with the mother’s orders in which she proposed that the child live half the time with the father;
·at [167], where she said:
I have no doubt the parents … pushed and yelled at each other and that their relationship was unhappy and tumultuous. However, for the mother to … assert … that she was in a violent relationship [and] suffered domestic violence at [the father’s] hands … is not supported on the evidence. The evidence is so far from supporting the mother’s many and disturbing allegations that I am concerned that there is an air of unreality when it comes to recalling her past history … ;
·at [373], where she said the mother had “at every opportunity … reminded the Court … [that the father] was a domestically violent man”;
·at [384], where the Federal Magistrate recorded that the mother had said she was a “domestic violence victim” but found that “apart from her saying this there is no objective evidence of physical, controlling, manipulative or coercive violence and behaviours”; and
·at [385], where she rejected as untrue the mother’s evidence of the father’s violent and controlling nature.
The mother’s real complaint, therefore, is not that her statements were overlooked, but rather that they were wrongly rejected. This complaint too must fail, since the mother’s submissions failed to demonstrate that the findings were not open on the evidence.
Ground 5(b) Police records of family violence perpetrated by the father
This complaint is also misconceived, as the Federal Magistrate did consider the police records. Although the mother contended the police had not acted on her complaints, her Honour correctly found, at [175], that the records showed the mother had told police she had no fears for her safety and was not frightened of the father. In any event, the making of a complaint to police does not establish the accuracy of the allegation.
In her submissions in relation to Ground 5(a), which we have earlier discussed, the mother’s only reference to a specific allegation of violence was that the father had “delivered Domestic Violence” on 21 September 2009. However, the police report indicates that the mother put her complaint no higher than that the father had “pushed at [her] in an attempt to avoid [her] getting near [the child]”, and she had pushed back. The police report stated there was no “prior history of violence” and recorded there had been “two previous verbal argument[s] only relating to the same issue – custody of child”.
In other submissions, the mother appeared to complain that only two police reports had been tendered in evidence, notwithstanding the police had been to the home on many occasions. We do not know how many reports were provided to the Federal Magistrate, but we note that her Honour carefully recorded all of the documents she had taken into account. Amongst these was “Father’s Exhibit 11”, which was described, at [78], as being:
COPS entry for various dates from 2001 to 2009 including the mother and father’s criminal histories and various reports of behaviour and conduct of each of them and brought to the attention of the police.
Her Honour’s overall interpretation of the police reports was unfavourable to the mother, as can be seen from the following extract:
197.Dr [V] has correctly assessed the police reports which are in evidence before me. The police had formed the view that there was a “preoccupation with the mother in establishing a case for the father as an unsuitable caregiver for the child”.
We are not persuaded there was error in this analysis of the police reports.
Ground 5(c) Dr V’s report dated 21 February 2012
Dr V was appointed as a single expert witness. She provided two reports, the second being dated 8 March 2012. It is this report to which this complaint is directed (the interviews for it occurred on 21 February 2012).
The mother submitted that the Federal Magistrate had not sufficiently considered Dr V’s recommendation that the child should spend “substantial time [with the mother] akin to that which is currently in place”. At the time that recommendation was made, the child was spending time with the mother each alternate weekend from Saturday morning until Sunday afternoon and from 9 am to 5 pm each Wednesday.
Although the Federal Magistrate referred at length to Dr V’s reports, she did not mention this recommendation. However, matters had moved on after Dr V provided her second report. It was only after the report was published that evidence emerged about the mother’s conduct during her unsupervised time with the child. It was this conduct which persuaded the Federal Magistrate that she had been wrong, in September 2011, to increase the mother’s time with the child and allow some time to be unsupervised.
It should also be understood that Dr V was cross-examined after she published her second report. It is important to read the recommendation in that report together with all she said in her oral evidence, during which she agreed that the benefit to a child of having a meaningful relationship with one parent “could be contraindicated when you look at all the other matters” and that one possibility was “either no contact or supervised contact” (Transcript 14 March 2012, p 100).
Ground (5)(d) Dr W’s report dated 18 May 2010
To understand this complaint, and others that follow, it is necessary to appreciate that the mother has a plate inserted in her head as a result of injuries she sustained in an accident in 1999, which left her in a coma for some weeks.
In advancing this complaint, the mother relied on a report from Dr W, which stated that the mother’s injuries had “not had a significant long term impact on [her] cognitive and neuropsychological function”. The mother contends that the Federal Magistrate overlooked this statement and believes she was “discriminated against” in the proceedings because of her brain injury.
There is no basis for these concerns. Dr W’s assessment of the impact of the mother’s injuries was clearly accepted by the Federal Magistrate, albeit her only reference to Dr W’s report was in a citation from a report of another doctor. This second doctor, who had quoted Dr W’s report, agreed that such impairment as the mother might have would be likely to impact only to “a minor degree” on her everyday functioning (Reasons [252]).
The fact her Honour did not regard the mother’s injury as being of real significance can be seen at many points in her judgment. For example:
·at [189], where she said that “the reality is that the motor vehicle injury and significant head injury the mother sustained has little to do with the child being in the father’s care. It is the mother’s behaviour that has brought about this circumstance”;
·at [250], where she referred to the mother’s “remarkable recovery”;
·at [254], where she concluded that “the reality is the injury has little bearing” on the outcome, save that the mother should refrain from consuming alcohol above certain levels; and
·at [263], where her Honour found that “poor impulse control was a natural characteristic of [the mother’s] functioning even before the accident and injury. Thus the injury as such has no weight upon the decision I make”.
Ground 5(e) D Hospital and Tresillian reports
There is no basis for the complaint that the Federal Magistrate did not consider the documents relating to the mother’s time at D Hospital. Her Honour specifically referred to the hospital records and commented, at [73], that they showed the mother’s treatment had been “remarkably successful”.
Similarly, her Honour referred to evidence about the attendance by both parents at Tresillian, albeit noting that the “good advice” given at Tresillian had not been followed by either parent. Her Honour also discussed the view expressed by Tresillian staff that “the mother had exhibited poor behavioural inhibition and impulse control” (Reasons at [144] and [183]).
In advancing this complaint, the mother referred to her solicitor’s failure in 2009 to tender reports from the Hospital and Tresillian. We are not concerned in this appeal with the conduct of the mother’s solicitors. Our task is to determine if there was error on the part of the Federal Magistrate and error cannot arise from a failure to take into account documents that were not in evidence.
The mother also complained of the unfairness of her having to undergo a psychiatric assessment by Dr R in circumstances where the medical staff at the Hospital had spent far more time with her than Dr R did. Save for the concern about the father not being required to undergo a similar assessment (which we will discuss later), we cannot understand the basis of the complaint, given that Dr R gave what can only be seen as a favourable report.
Finally, we should record there is no basis for the complaint advanced here that the Federal Magistrate failed to consider a report from Dr M. This report was included in the appeal books but was not attached to an affidavit and does not appear to have been made an exhibit. Perusal of correspondence from the mother’s solicitors to Dr R suggests that while the mother had originally intended to rely on a report from Dr M, it was instead decided to obtain a report from Dr R.
Ground 5(f) Affidavit of Ms H
This complaint also lacks merit, since the reasons clearly demonstrate that the Federal Magistrate did consider the evidence of Ms H (the mother’s psychologist). See Reasons [172] and [433] to [449].
The mother’s real complaint must therefore be that her Honour erred in rejecting Ms H’s evidence, having found it to be “unsatisfactory, disturbing, and of real concern”. Her Honour was particularly critical of Ms H for having “accepted as true all that the mother told her”. Indeed, the Federal Magistrate went further in saying that:
436.… if this is the quality and level of counselling the mother has received in the last two years and continues to receive it is not surprising she has been unable to resolve her significant grief and distress as the mother has not been pressed to look at reality and why she is in this sad situation.
Although we will refrain from commenting on the force of the language employed in judging the quality of the work of a professional person, nothing put to us in argument persuaded us that it was not open to the Federal Magistrate to form the unfavourable view she did of Ms H’s evidence.
Ground 5(g) The responsibility of the grandmother to supervise time with the child for the next 15 years
This complaint raises significant issues to which we will return after we have disposed of the balance of the mother’s complaints.
Ground 5(h) Failure to reject false allegations
The mother asserted that the Federal Magistrate erred by failing to reject “false allegations”, claiming there was evidence to show the claims were false and that the claims were shown to be false in cross-examination.
In advancing the complaint, the mother contended that the evidence provided by the father in 2009 (when he sought the recovery order) was false. Otherwise, there was no particularisation of the complaint.
We are not concerned in this appeal with proceedings before another Federal Magistrate in 2009. In the absence of any particularisation of the complaint, we can do no more than observe that her Honour made strong, adverse credit findings against the mother. See, for example, Reasons [168], [172], [336], [438] and [532]. It is unnecessary for us to comment on the vigour with which those findings were made, it being sufficient to say that we were not persuaded that her Honour erred in preferring the evidence of the father, and hence in not rejecting whatever allegations the mother now contends were false.
Ground 5(i) Failure to properly consider the content of the communication book
The mother asserts that the Federal Magistrate failed to take into consideration “evidence in the communication book which gave weight to the [father’s] inability to communicate and co-parent appropriately with the [mother]”.
The Federal Magistrate recorded that various pages from the communication book had been tendered as exhibits. Her Honour paid close attention to the mother’s complaints about the father’s entries in the book (Reasons [234] and following). Ultimately, however, her analysis of the book was unfavourable to the mother. This can be seen, for example in these paragraphs:
303.I absolutely reject the mother’s assertion that the father did not keep her informed of the child’s milestones. He does. The communication book is testament to that. He will write sometimes two pages of information, what she has been eating, steps she has been taking, teeth coming through and get back very short compass from the mother. That is an erroneous position for the mother to take.
304.The father communicates regarding her sleeping and eating habits, how she was feeding, the phrases she has used, how she is getting into bed and going to sleep and he said “I put all this in the book,” which I find he does.
Her Honour referred to the book in other parts of her reasons. For example, at [501], she found the father had “been positive about the mother” in the book, whereas the mother could not “be positive of anything the father does”.
Her Honour’s reading of the communication book accorded with that of Dr V, as will be seen from the following paragraph:
477… Dr [V] said she examined the communication book and although there was conflict in the book, there was [sic] also positives:
The father makes a concerted effort to fill in the mother on the child’s progress.
But the mother has little respect for the father as [the child’s] father, and she’s on a surveillance mission in relation to her child and the relationship with the father …
The mother also complained to us that the father had not supplied the court with the communications book for a three month period in 2012. We were not taken to any part of the transcript to show that the mother sought to make an issue of this, nor to anything her Honour said which would indicate error.
There was, however, one aspect of the submissions which contained what may be a legitimate complaint about the Federal Magistrate’s reading of a few pages from the book. This concerns her Honour’s summary, at [241], of the pages comprising “Mother’s Exhibit 5”, which ended with implied criticism of the mother for not getting back to the father about the choice of childcare centre.
Our reading of this exhibit, which we called for in the course of preparing these reasons, would indicate that both parents were engaged in an entirely appropriate, child focussed discussion about the choice of childcare centre, which ended with the mother enquiring of the father whether he had had “further luck” in his investigation of suggested centres. Although we acknowledge we may not have been taken to all relevant material, there appeared little basis in “Mother’s Exhibit 5” for criticism of either parent. It must be said, however, that this was a very minor issue in the proceedings.
For all of these reasons, we consider that Ground 5 should fail, save for the one issue we have reserved for later discussion.
Ground 1 – Failure to consider other relevant evidence
By this ground it was asserted that the Federal Magistrate had “failed to consider all relevant material and evidence”.
We have already, when discussing Ground 5, addressed the specific evidence which it was said the Federal Magistrate had failed to take into account. However, in her submissions in support of Ground 1, the mother referred to other evidence she contended had not been properly considered.
Photographs of the child’s bruises
In her oral submissions, the mother said the Federal Magistrate had failed to take account of “all the affidavits submitted to the court”, but especially the photographs of “[the child] with the bruises”.
The first part of the proposition is too vague to consider, but it is not correct to say that the Federal Magistrate failed to consider the evidence relating to the the child’s bruises, as can be seen from this paragraph:
375.The mother complained about a bruise on the child’s forehead in a tendered photograph, reported it in her affidavit but under cross-examination admitted the bruise had come about from a fall. The mother was asked:
Well, why did you put it in the affidavit?
Because I wasn’t told of the injury and my brain injury is a big issue in this case. And so any injury to my daughter’s head is important.
Evidence relating to Ms G
The mother also asserted the Federal Magistrate had failed to take into account “a few things in relation to [Ms G], who did the referral to Tresillian”.
As we understood her submission, the mother is concerned about what she considers is a “contradiction” in two letters authored by Ms G, who was a psychologist to whom the mother and father were referred in 2008.
In a letter of referral Ms G sent to Tresillian on 9 June 2009, she noted that the mother’s “cognitive functioning has been impaired” as a result of the accident. (She also expressed concerns about the mother’s “limited or rather basic parenting skills” and noted that “her temperament can be unpredictable”).
The mother subsequently contacted Ms G and asked her to confirm in writing that she had not performed a neuropsychological assessment. Ms G confirmed this in a letter dated 2 November 2009.
Ms G was not called to explain what the mother now says is an inconsistency between the two letters. In fact, there is no inconsistency – the second letter merely makes clear that in making reference, in her first letter, to the mother’s cognitive functioning, Ms G had not relied on any testing she had performed.
Although we understand the mother’s anxiety about any suggestion of ongoing impairment, we are unable to see how Ms G’s letters caused the Federal Magistrate to fall into error. Both letters were before her Honour, and the second made clear that Ms G had only seen the parties for therapy. More importantly, as we said earlier, the Federal Magistrate had no doubt the mother had made an excellent recovery from her injury and considered it of no significance in arriving at her decision.
Affidavits of the grandmother
The mother claims that various affidavits of the grandmother were not considered appropriately or sufficiently, but failed to provide any particulars. We assume the mother may have had in mind, in advancing this complaint, the evidence of the grandmother about her availability to supervise the mother’s visits. We will discuss that issue later when we return to Ground 5(g).
Affidavit of the mother
The mother claims the Federal Magistrate failed to consider her own trial affidavit, and she referred in particular to various attachments to that affidavit.
The first set of attachments comprised photographs of the child, which the mother provided in support of her concerns about the number of bruises and mosquito bites she had sustained. The Federal Magistrate did not overlook these concerns, as will be seen from the following paragraph:
391.The mother is obsessed about mozzie bites, normal childhood bruising and believes that the child is at risk of harm in the father’s care when the reality is nothing could be further from the truth. It is the mother who poses a risk to the child not the father.
The next attachment to her affidavit was the “blue book” (an official infant health record). It seems this document was relied upon to demonstrate that the last entry was for the child’s 12 month check and there was no entry for the 18 month check. We observe that the child was not yet 19 months when the mother obtained the copy of the book that she later placed before the court.
The mother next referred to a medical certificate concerning the child. The relevance of this was not explained, but the mother has been critical of the fact that the father’s occasional denial of her court ordered times with the child has sometimes been supported by medical certificates she considers deficient. In fact, she reported one of the doctors who provided such a certificate to his disciplinary body. The Federal Magistrate described the mother’s conduct in seeking “to implicate [the doctor] in her campaign to have her daughter returned to her care” as “odious behaviour” (Reasons [412] to [417]).
The final document to which the mother referred was one of her diary entries which had recorded that during a visit she found “what I believed to be, a pubic hair in [the child’s] nappy”. The complaint that the mother’s “evidence” about the pubic hair was not considered lacks merit, since it was discussed repeatedly in her Honour’s reasons, most notably at [441].
Affidavits of witnesses who observed the mother with the child
The mother asserts that the Federal Magistrate did not consider affidavits of Mr Y, Mr B, Mr X and Mr F who observed the time the mother spent with the child.
No basis was provided for the assertion that these affidavits were not considered, since her Honour expressly mentioned the affidavits and/or oral evidence of all these witnesses, save for Mr B – see Reasons [14], [32], [95], [96], [99], [266], [267], [269], [271] and [441]. Not only did her Honour refer to their evidence, she also accepted it, even describing one of the witnesses as “refreshingly honest” (Reasons [267] and [269] to [272]).
The affidavit of Mr B was not referred to by the Federal Magistrate because it was not received in evidence (Transcript 8 August 2011, pp 14-16).
Affidavits of professional witnesses
The mother also asserts that the affidavits of various professionals, namely Ms C, Dr W, Dr M, Ms L and Ms H, were not considered. Again, no basis was provided for this assertion, but it seems from the mother’s written submissions that she believes she would not have been found to be an “incompetent mother” if the evidence of these witnesses had been accepted.
This submission demonstrates a lack of understanding of the Federal Magistrate’s view of the mother as a parent. This view was expressed at [267] where her Honour said it was clear that “when focusing on her daughter’s needs, [the mother is] a competent, caring and loving mother who has much to offer her child”. The Federal Magistrate’s concerns revolved around the times when the mother was not “focussing on her daughter’s needs”.
In any event, the Federal Magistrate did not overlook the affidavits and or/reports of Ms C, Dr W and Ms H as she expressly referred to them – see Reasons [18], [89], [94], [97], [98], [455], [457] and [459] to [463].
Although there was an affidavit from Ms L, it did nothing more than annex a report from Ms H, so was properly not listed by her Honour as a document before her (Transcript 8 August 2011, p 10 and following).
We have already observed that Dr M’s report appears not to have been in evidence.
Ground 2 – Failure to ensure child had meaningful relationship
By this ground it is asserted that “the court failed in its obligation to the child that she should have a meaningful relationship with both her parents”.
Although the Federal Magistrate’s reasons were lengthy (94 pages), they failed to mention any of the provisions of the Family Law Act1975 (Cth), thus no reference was made to the primary and additional considerations in s 60CC. We therefore accept that her Honour did not acknowledge that s 60CC(2)(a) required her to take into account, as a primary consideration, “the benefit to the child of having a meaningful relationship with both of the child’s parents”.
Section 60CC(1) makes clear that it is obligatory to consider the primary and additional considerations. However, contrary to the suggestion implicit in this ground of appeal, there is no obligation to ensure that children have a meaningful relationship with both parents. Clearly, in some cases, it would be in the child’s interests for there to be no relationship, or for the relationship to be very limited. What the Federal Magistrate was required to consider was “the benefit to the child” of having a meaningful relationship with both parents.
Although Ground 2, as it is expressed, could therefore not succeed, we propose to deal with the mother’s complaint as if it asserted a failure on the part of the Federal Magistrate to properly consider s 60CC(2)(a).
Although it would have been desirable for her Honour to have acknowledged the existence of s 60CC(2)(a), it is clear that she did consider it and was aware of its importance. This emerges from, at least, these two paragraphs:
512.In Mccall v Clark [2009] FamCA 92 [sic] the Court considered the phrase “meaningful relationship” and the necessity to consider orders which prospectively would or may promote a child’s meaningful relationship with a parent.
…
516.A further reduction of time for [the child] due to her grandmother’s lack of availability to supervise time will have an impact upon her and will minimise the benefit to the child of a meaningful relationship with her mother.
We note also, from our own examination of the transcript of closing submissions, that her Honour was well aware of the need to consider the benefit to the child of having a meaningful relationship with the mother (Transcript, 26 June 2012, pp 71 and 81).
However, it is clear that while her Honour considered the benefit to the child of having a meaningful relationship with her mother, she correctly recognised that such benefit must be weighed against other matters impacting on the child’s best interests. Thus, early in her judgment, her Honour said:
49.The growing quandary for me as the matter proceeded and my involvement in [the child’s] life from five months to 3 years progressed was as follows.
50.[The child] and her mother share a close and loving relationship and there is a strong bond between them. [The child] obtains significant benefit from her relationship with her mother and the strength of the child’s relationship with the mother is all the more impressive when one considers the limited time she has spent in her mother’s care since 5 months of age.
51.However, that strong relationship has resulted in [the child] being burdened by her mother’s grief and loss at her child not living with her. The father says and Dr [V] reports of the child feeling responsible for her mother’s emotional health and wellbeing.
52.This burden is not a burden a 3 year old child or any child should have to carry. Sadly as the evidence unfolded it became clear this is a burden [the child] shoulders and over time this burden is increasing not decreasing. The consequences for [the child] in carrying this burden is part of the price [the child] pays for having relationship with her mother.
53.This burden comes about solely due to the mother’s inability to deal with what she regards as unfairness, a prejudice, a wrong done to her when her child was removed from her care at age five months. The mother has either chosen not to deal with this loss or is incapable of dealing with the loss. I accept the mother loves her child deeply, is committed to her care and particularly her education and advancement in life. However that love and commitment has not enabled the mother to look at her shortcomings and remedy them. This has resulted in the mother suffering from or displaying a significant failure in parenting namely an ability to protect her daughter from her own loss and grief.
…
55.The questions raised at the hearing and addressed by all the advocates centred on whether the benefit [the child] obtains from a relationship with her mother was outweighed by the emotional burden it places upon her. Colloquially put is the price [the child] pays to have her mother in her life to [sic] great a price to pay for [the child’s] ongoing emotional, psychological health and wellbeing?
It will be seen that the Federal Magistrate accepted there was “significant benefit” to the child in having a relationship with her mother and she therefore met the requirement in s 60CC(2)(a) to consider such benefit.
Her Honour, however, then explained why and how she proposed to consider whether or not it was in the child best interests to terminate all contact with the mother or restrict the contact to occasional, supervised visits, notwithstanding there was “significant benefit” to her of more extensive contact:
279.… If I find the mother cannot support [the child] happily living with her father, support the father’s care of the child and support the decisions he makes then the Court may be left in a position of making the most difficult of decisions, namely, a no time order.
280.To answer this pivotal question I must review in greater depth than I have hitherto the mother and father’s evidence as well as the expert’s evidence as my concern is this. [The mother] is a competent, vigilant, loving parent. [The child] and she have a close and attached relationship. However, [the mother’s] attitude towards [the child’s] primary carer, her father, is so divisive and potentially so catastrophic to the maintenance and fostering of her emotional health that the Court may be placed in the most invidious position of making an order for no time or such limited supervised time that the order has no practical or realistic effect in being able to maintain for [the child] the benefit of her relationship with her mother into the future.
281.[The child’s] maternal grandmother … said she could continue to supervise time for a while but not forever and the best she could do is once a month. Time once a month for this little girl and her mother is a small period of time when one has regard to the mother’s intensity in her relationship with the child as noted by Dr [V]. A consequence may be that due to the expectation the mother has of [the child] and her relationship pressure on [the child] to fulfil that expectation may be too burdensome and too high a price for [the child] to pay to exercise her right to this relationship. That is, the cost may outweigh the benefit.
282.That is the conundrum. Is the benefit to the child of maintaining a relationship with her mother outweighed by the risk of emotional and psychological harm to her both [sic] in so doing …
The Federal Magistrate discussed this “conundrum” and concluded that the benefit to the child of maintaining the relationship was outweighed by the harm:
541.When I weigh up the loss to the child of regular overnight unsupervised time with her mother and the cost to the child in having exercised such time the weight falls clearly against making any order for time that is not supervised as to do so would not be in the child’s best interests.
…
545.The child does receive benefit from time with her mother but the cost of that benefit comes at far too high a price being the potential fracturing of her all important relationship with her primary carer her father.
Our consideration of the whole of her Honour’s reasons demonstrates that she well appreciated the gravity of the decision she was required to make and understood that her decision had the potential for the association between mother and child to “never be more than a connection” (Reasons [551]).
As an appellate tribunal, we are not permitted to interfere with the exercise of her Honour’s discretion unless we are satisfied it was clearly wrong. Although we can sympathise with the mother, who has been found to be a loving and competent parent, we are not persuaded that the decision was erroneous.
Ground 3 – Failure to consider s 60CC factors
By this ground it is asserted that the court had “erred in its judgment of the s60cc factors of the Family Law Act 1975”.
We have already noted that the Federal Magistrate did not expressly refer to any of the legislative provisions, including the factors in s 60CC. However, we are satisfied that, in the course of her lengthy reasons, her Honour touched on all relevant matters arising under s 60CC(2) and (3). See also her Honour’s acknowledgement of the statutory provisions during the course of the closing submissions (Transcript, 26 June 2012, p 66-67).
When we pressed the mother as to which of the s 60CC factors had not been taken into account, she was initially able to refer us only to issues concerning family violence. But as we have explained, those issues were not overlooked, albeit the findings made were not those the mother wanted.
The mother then submitted that the Federal Magistrate had overlooked the effects of the father taking a 100 mg dose of antidepressant medication, whereas the mother’s use of a much lower dose had been taken into account. There is no substance in this complaint, since her Honour was not concerned about the mother’s use of medication, but rather about her having given false testimony about her use of that medication (Reasons [172] and [438]).
The mother finally submitted that the Federal Magistrate had overlooked the fact that the father had not complied with orders and that he had not offered make-up time for the periods she had unable to spend with the child as a result of the breach of orders. Again, this complaint lacks substance, since the Federal Magistrate did refer to the father’s actions in not offering make-up time, describing his actions as “callous and inappropriate” (Reasons [291]).
All complaints advanced under this ground therefore lack merit.
Ground 4 – Failure to accord procedural fairness
By this ground it was asserted that the Federal Magistrate failed to accord procedural fairness to both the mother and the grandmother.
As we understand the submissions, there are two limbs to the complaint. The first is that the Federal Magistrate failed to ensure subpoenas were issued to obtain evidence concerning the father’s criminal record, drug addiction and use of medication in circumstances where many subpoenas had been issued to obtain information about the mother.
All that need be said in disposing of this complaint is that the mother was represented during the proceedings and there was no suggestion her representatives were prevented from issuing subpoenas or otherwise adducing relevant evidence. Given the mother had legal representation, and given there was also an Independent Children’s Lawyer, it was not for the Federal Magistrate to divine that the mother considered more subpoenas were needed.
The second limb of the complaint relates to the fact that whilst the mother was referred for a psychiatric assessment, the father was not. Once again, this issue can be dealt with shortly. The Federal Magistrate was not asked to make an order for the father to undergo a psychiatric assessment. The mother did not dispute that she was represented on the occasion the order was made for the mother to undergo such an assessment. Had it been thought the father required a similar assessment, an application could have been made to that effect.
There is no merit in this ground.
Ground 5 (g) – Long-term supervision of the mother’s time
This complaint, which we have reserved for separate consideration, asserts that the Federal Magistrate failed to consider “the ongoing responsibility of the [grandmother] to supervise [the mother’s] time with the child for approximately the next 15 years”.
It will be remembered that, apart from special occasions, the mother has been allowed only to see the child at such times:
as agreed between the mother, the father and the maternal grandmother, … to be supervised by the … grandmother being no more than 2 occasions each month unless otherwise agreed.
The mother can also spend time with the child “as otherwise agreed between the parties including time at a contact centre”.
The child’s time with her mother has thus been left dependent upon agreement being reached by all parties. There is no specificity (save for special occasions), and no minimum times have been laid down. No provision has been made concerning costs associated with time that might be spent at a contact centre. And it will be recalled that only the father has been given liberty to apply to the court in relation to the implementation of the orders.
Before addressing the complaint, we will set out those parts of her Honour’s reasons which we consider of primary relevance, albeit this will, for ease of reference, involve some repetition of earlier citations:
274.[The grandmother] has been integral to this matter in her assistance to her daughter. Had it not been for [her] the Court would not have been in a position to make the orders for the child to spend overnight time in her mother’s care. There is no doubt from the father’s point of view he and the maternal grandmother have a reasonable relationship and he trusts her.
275.The father trusts the maternal grandmother implicitly and is of the view that when the maternal grandmother is present with [the child] and the mother the negative impact upon [the child] of her mother’s depressed emotional state and comments she may make are diminished. Since [the grandmother] has been supervising the time with [the child] and doing changeovers [the child] is much less anxious.
…
281.[The child’s] maternal grandmother … said she could continue to supervise time for a while but not forever and the best she could do is once a month. Time once a month for this little girl and her mother is a small period of time when one has regard to the mother’s intensity in her relationship with the child as noted by Dr [V]. A consequence may be that due to the expectation the mother has of [the child] and her relationship pressure on [the child] to fulfil that expectation may be too burdensome and too high a price for [the child] to pay to exercise her right to this relationship. That is, the cost may outweigh the benefit.
…
284.I am not of a view that band-aid methods employed on an interim basis are appropriate for the long term, that is, a continuation of supervised time. It is an impost upon the person doing the supervision. It is an unnatural arrangement for a child to have someone supervising their time with a parent they love and as [the child] grows older this will become more obvious to her.
285.The balance is, as I have indentified [sic], namely the clear benefit to [the child] of her ongoing relationship with her mum and the cost to [the child’s] emotional and psychological health from that ongoing relationship. If it is too great a price for [the child] to pay I will make an order for no time, and I foreshadowed that to all Counsel during the hearing.
286.Neither the father nor the Independent Children’s Lawyer could countenance such an order and both exhorted me to ensure I made some order for time for [the child] to spend with her mother. However, it is the discretion I must exercise after weighing and balancing all the evidence.
Her Honour then commented on the propositions put in closing submissions, commencing with the impact on the child of the (recent) return to supervised time:
506.I accept that [the child] missed the extra time with her mother. That her mother had found her reduced time with the child hard. [The grandmother] said, it had been very difficult for [the mother] to have such reduced time with the child, and there’s a sense of rushing, and [the child] is more anxious and more stressed, and not as settled as she was.
507.The grandmother did not understand that one of the reasons supervision and limited time was being considered was that is was it was [sic] improper for [the mother] to become upset in front of the child, tell the child repeatedly she missed her and loved her as this only increased the child’s stress. The grandmother said:
But [the mother] does love her and miss her. [The child] needs to know.
508.[The grandmother] can only commit to one weekend a month to supervise her daughter’s time with [the child].
…
514.Stability for [the child] is most important. Both the ICL and the father were of the view when the grandmother is present the mother’s behaviour with the child is improved as the grandmother provides a brake.
515.Presently [the child’s] time with her mother is much reduced from what it was from September 2011 to April 2012 and is a limited period of time when looking to the future.
516.A further reduction of time for [the child] due to her grandmother’s lack of availability to supervise time will have an impact upon her and will minimise the benefit to the child of a meaningful relationship with her mother.
517.The ICL’s proposal seeks overnight time once a month. The father seeks day time only which is extremely limited time in both its quality and length when one looks to the future. The ICL’s proposal is preferred as it provides for day and overnight time which is both quality and length of time in the one weekend.
518.However at the end of the day if I make an order for time to be supervised by the maternal grandmother the child’s time with her mother will be totally dependant [sic] upon her grandmother’s availability or the parents’ agreement to use a contact centre.
519.The orders sought by the mother or even reinstating the orders I made in September 2011 will expose [the child] to her mother’s continuous negativity towards her father, with a potential to white-ant the child’s relationship with her father, destabilise her usual routine and attachments, negatively affect her stability and ability to live a happy life with her father, all of which consequences will, as Dr [V] pointed out, have extremely negative consequences for [the child’s] right to healthy emotional functioning and forming her own relationships and other attachments into the future.
…
528.The unacceptable risk in this case is the mother’s inability to protect her child from her pathologically negative attitude towards the father. This spilling over of negativity to the child about her primary carer will fracture and ultimately damage [the child’s] important primary relationship with her father. For whatever the mother thinks and be it right or wrong, this child’s primary attachment is to her father and not to her mother. This was confirmed on several occasions by Dr [V].
…
534.I accept [the child] and [the mother] have a good time together, and this is the conundrum I face. [The child’s] mother has much to offer her particularly with her education and showing her new things. At one level she is a competent and caring mother. Those obvious benefits must be weighed up in the balance and when I have regard to the damage this woman has done to her child and will continue in order to achieve her ends, being her right to have her daughter in her care. The balance falls on protecting [the child] from her mother’s wrongly held beliefs, attitudes and conducts [sic].
In the final paragraphs of her judgment, the Federal Magistrate gave reasons for not only restricting the mother’s time to supervised visits, but also for not allowing the mother liberty to apply to remove the requirement for supervision:
551.The mother’s inability to be honest with any doctor or therapist is of concern as the mother may never recover from the trauma of her child being removed from her care. Thus she may suffer from this disability for all of [the child’s] formative years leading to the result that her time with her daughter may never be more than a connection as it will always require supervision. I will not make the mother’s time conditional upon her attending therapy as the therapy she has received has done little to assist her and I am concerned as to the mother’s lack of genuineness in wanting to be helped.
552.If the mother takes stock now, genuinely wants to recover from her traumas and no longer be the victim I hope a time will come when [the child] is aged 5 that on special occasions such as Christmas, birthdays and Mother’s Day the child’s time with her mother need no longer be supervised and perhaps from age 7 her regular weekend times may no longer need supervision. However that will be a matter for the father to determine and much depends on [the child’s] emotional strength and her mother’s functioning.
553.As the evidence now stands the mother has waged a war against the father and in so doing has ensured I can only make orders for supervised time or no time.
554.I was inclined after reviewing all the evidence to make an order for no time as I have formed a view that the mother’s behaviours have a serious capacity to destabilize her daughter’s healthy functioning into the future.
555.However neither the father nor ICL sought this order and seek time be ongoing and only exercised when the maternal grandmother is able to supervise. I will be guided by the father who was correct that the time I ordered the mother to have with the child in September 2011 was too much too soon.
556.Thus I will make the orders contended for by the ICL and father namely that any time the child spends with her mother to be supervised by agreement between the father and maternal grandmother on any occasion the grandmother can accommodate although on no more than 2 separate occasion [sic] each month together with time on special occasions, information regarding medical treatment education and the like.
Notwithstanding what her Honour said at [556], the orders ultimately made were not as proposed by either the father or by the Independent Children’s Lawyer. Their proposals were summarised at [39] and [40] of the reasons, but it is important to state precisely what they sought at trial.
The father’s proposed orders were as follows (excluding special occasions, for which the Federal Magistrate did make detailed orders):
3.[The child] shall spend time with the maternal grandmother as follows:
3.1Each alternate Sunday from 9.00am until 4.30pm …
…
5.The mother is at liberty to spend time with [the child] during periods that [the child] is in the care of the maternal grandmother provided that the maternal grandmother shall supervise the mother at all times.
…
7.Changeovers shall take place at the [Contact Service] and in the event that the Service is closed then at the [Police Station].
8.The father shall pay the whole of the cost of the [Contact Service] in relation to the changeover.
9.In the event that the maternal grandmother is unable or unwilling to spend time with [the child] as set out in Order 3 above then [the child] shall spend time with mother at the [Contact Service] for two hours each alternate week at dates and times nominated by the Coordinator of that Service and the parties shall equally meet the cost of the Service.
The orders relevantly sought by the Independent Children’s Lawyer were:
4.That [the child] spend time with the mother as follows:
a.On one weekend per month from 9.00am Saturday to 5.00pm Sunday and in the absence of agreement on the fourth weekend of the month…
…
6.That the mother’s time with [the child] shall be subject to the following conditions:
a.That the maternal grandmother be present during such time …
In her closing submissions at trial, counsel for the Independent Children’s Lawyer stressed that her proposal did not involve supervision but rather the presence of the grandmother (Transcript, 26 June 2012, p 67).
As both sets of proposals involved the co-operation of the grandmother, it was appropriate for the Federal Magistrate to refer, as she did, to her availability. We note, however, that there was no discussion by her Honour of how this would be impacted by any orders made for the grandmother to spend her own time with the child, since that topic was seemingly overlooked.
The Federal Magistrate found that the grandmother could “only commit to one weekend a month to supervise her daughter’s time with [the child].” This was potentially a crucial finding but, with respect to her Honour, we do not consider it represents an entirely accurate summation of the evidence.
The grandmother’s evidence about her availability was given on the last day of trial. At that time, the orders provided for the grandmother to spend time with the child from 9 am to 5 pm on Saturday and Sunday of each alternate weekend, and the mother was allowed to be present during all the visits.
In cross-examination of the grandmother by counsel for the Independent Children’s Lawyer, the following exchange occurred (emphasis added):
MS SNELLING: … In the event some final orders were made by this court that provided that the current orders continue, would you be able or willing – willing and/or able to continue?---That’s an extremely difficult thing to put a timeframe on that, because – I mean, I don’t know what my future situation is, though. I mean, I’m still working. I have other obligations.
HER HONOUR: Yes?---I’ve been doing it for three years.
MS SNELLING: But in the event that were to be the only way that – or [found] to be the only way that [the child] could continue to see her mother, would that make any difference?---I can’t commit to a fortnightly ongoing thing for an indefinite time, I ---
What about monthly?
HER HONOUR: Is there any period of time you could commit to, on a regular basis, perhaps?---The thing is, your Honour, you put orders in place. If those orders are ongoing for five years, how can I make a commitment to that for five years?
Yes. Look, I’m not being critical?---No. No.
This is truly an inquiry. We’re just asking, because it’s - - -?---Yes, but it’s – it’s a very difficult situation to be put in.
It’s as Ms Druitt said, it’s a very big ask for anybody to do what you’ve been doing?---It is.
A very big ask?---I mean, I love [the mother] and I love [the child] dearly, but, I mean, I could get hit by a bus next week. Who is going to do it then?
Well, that’s an exigency we would have to deal with?---I know.
This is of the known factors that we have, that things stay as they are and we all stay as we are. Is there a period of time on a regular basis you could commit to, Ms Snelling said, once a month? Do you say it could be once every two months? Do you say it could be school holiday times---?---Well, even if I ---
--- or is there anything?---Sorry, your Honour. Even if I committed to once a month, that time is then reduced and, to me, as I said, this reduced time has impacted – I don’t know, any further reduced time would impact also.
So you’re saying that if it went down to once a month, that would of itself have a detrimental effect on [the child]? --- Yes.
Later, under cross-examination of the grandmother by the father’s counsel, this exchange occurred (emphasis added):
MS DRUITT: Just that one question. Ma’am, if the order that her Honour made was that your time with [the child] was on the Sunday that the contact centre was open for changeover, then you would know that weekend well in advance, wouldn’t you?---From the beginning of the month, you’re speaking about, if I knew from the ---
No. From the date of the order, you would know when that was?--- Date of the order. Yes, I would, but as I said ---
And then you would be able to make your plans around that?---Sometimes there are certain things that occur that you don’t know that far ahead ---
Sure ---? --- that you may wish to commit to elsewhere.
…
Right. And what you say is, if it’s once a month, you would try and utilise that time, but if it clashed with something else that had to be done, then you would either try and make some other arrangement with [the father], or it mightn’t happen?---Well, Ms Snelling said I could - at the beginning of a month I would probably know what was happening within that month, I could commit at the beginning of the month.
In our view, the better interpretation of the grandmother’s evidence is that she could not commit to a continuation of the existing regime (four full days a month) indefinitely. However, for the reasons the grandmother herself gave, it was unrealistic to expect her to make a firm commitment to any arrangement for an indefinite period. We do not read her responses as indicating that she could not, at least for the time being, if not the foreseeable future, continue to do what she had been doing, namely supervising time every alternate weekend.
Importantly, the grandmother did not, at any point, appear to say she would be unable to accommodate the specific proposals made by the father or those made by the Independent Children’s Lawyer. While we accept that the grandmother did acknowledge her ability to supervise a monthly visit, she did so in response to hypothetical questions put to her about such an arrangement.
There is at least a possibility that the Federal Magistrate may have became confused between the time the grandmother herself wanted to spend with the child and the times she would be available to supervise visits with the mother. We say this based on “Grandmother’s Exhibit 1”, which was tendered on the final day of trial, setting out the orders the grandmother proposed for her own time with the child. This involved the grandmother having the child one day a month, as well as special occasions, until the child turned five, and thereafter for a full weekend once a month.
The orders the grandmother considered appropriate for the mother’s time with the child were mentioned in an attachment to “Grandmother’s Exhibit 1”, in which she wrote:
due to the changes that had been displayed by [the child] with the reduced access from the previous Court Orders, I believe [the child] should be allowed to have more time with her mother overnight stay 9.00am Saturday to 5.00pm Sunday per f/n unsupervised and 1 day during the week also. It used to be a Wednesday.
We recognise that the grandmother proposed that the mother’s time be unsupervised; however, it is apparent that not only was she strongly supportive of the child spending significant time with the mother, she had also previously been willing to supervise the time as required by the court. From September 2011 until April 2012 this involved her being present overnight once a fortnight, and from April 2012 until the conclusion of the trial in June 2012, she had been supervising two full days every fortnight.
Although the Federal Magistrate found the grandmother could only commit to one weekend a month, we accept that the orders she made contemplated the possibility of her supervising visits on “no more than 2 occasions each month”. But as we have earlier stressed, the actual frequency and duration of visits was left entirely dependent upon the father’s agreement.
The Federal Magistrate was right to say, as she did in effect at [286], that her discretion was not limited by the proposals made by the father and the Independent Children’s Lawyer. However, at [555], she said she intended to be guided by the father, and at [556], said she would make orders as proposed by him. But she had also said, at [517], that the proposals of the Independent Children’s Lawyer were to be “preferred” over those of the father, and she had said, at [556], that she intended to make the orders contended for by the Independent Children’s Lawyer.
Given these findings, it is not immediately apparent why her Honour did not make orders either as proposed by the father or as proposed by the Independent Children’s Lawyer. Her Honour may, perhaps, have felt constrained in making orders for specific times because of uncertainty associated with the availability of the grandmother. However, in our view, that difficulty would have been overcome by making either the orders sought by the father, or by the Independent Children’s Lawyer, with such orders being conditional upon the grandmother being available. Orders in these terms would, in our respectful view, be more consistent with what her Honour said, at [556], about visits occurring “on any occasion the grandmother can accommodate”.
The issue which would then arise would be whether the specific times should be as proposed by the father (a full day each alternate Sunday) or as proposed by the Independent Children’s Lawyer (two days, including overnight, once a month). In considering those options, it will be remembered that her Honour said the proposal of the Independent Children’s Lawyer was to be “preferred” because it provided for “day and overnight time which is both quality and length of time in the one weekend”.
We recognise that, in leaving the times for the visits unspecified, her Honour may have had in mind the favourable impression she had formed of the father and anticipated he would agree to any proposals consistent with the child’s best interests. However, especially given that the orders allowed only the father liberty to apply in relation to implementation, we consider it was an error in the exercise of discretion to delegate the decision making authority on such an important issue to one of the parties. This is especially so in light of the submissions made to us by counsel for the Independent Children’s Lawyer that:
there had not been in almost three years the matter had been before the court demonstrated to her Honour any ability by the parents, the parties, to reach agreement on any substantive issue (Appeal transcript, pp 49-50).
It should also be recorded that the Federal Magistrate did not give reasons supporting Order 14, which gave only the father liberty to apply in relation to the implementation of the orders. Counsel for the father submitted to us that restricting the liberty to apply to the father was appropriate in light of the adverse conclusions the Federal Magistrate made about the mother and because “both parties had the opportunity to make fresh applications”. However, counsel for the father properly conceded that her Honour did not articulate these as the reasons for making Order 14 (Appeal transcript, pp 41-42).
We conclude that her Honour erred in allowing only one party liberty to apply in relation to implementation of the orders. We consider all parties should have been given such liberty, especially given the lack of specificity in the orders.
In this context, it is noteworthy that the Federal Magistrate did not explain why she did not make orders as proposed by the father dealing with the venue for handover (for which he was prepared to pay the whole cost) or the cost of any time spent at a handover service (for which he was prepared to pay half the cost). It may be that her Honour anticipated that these issues could be resolved by the parties themselves, but if dispute arose we cannot see why it would only be the father who would have liberty to apply to the court for a resolution.
We turn next to the Federal Magistrate’s decision not to give the mother liberty to apply for discharge of the requirement for supervision of her time with the child. In dealing with this issue, it will be remembered that her Honour herself contemplated, at [552], the possibility that when the child attained the age of seven, supervision may no longer be needed; however it was left entirely for the father to determine whether the supervision should be lifted.
The Full Court has, on a number of occasions, passed comment on long-term supervision of contact arrangements. For example, in Moose & Moose (2008) FLC 93-375, May J said at 82,628:
4.… No provision was made for when such supervision would end or how the father could ask the court to make different orders.
…
8.Should the father bring a further application asking for the provision in relation to supervision at the Contact Centre to removed, his case doubtless would be met with an assertion that he may not do so because there have been no change in circumstances (Rice & Asplund).
…
10.In my view, where an order is made that the time a parent spends with a child be under supervision indeterminately, there would need to be cogent reasons to support such orders …
In Champness and Hanson (2009) FLC 93-407, the Full Court said at 83,516:
219.… the Full Court has expressed concern about the absence of some kind of review mechanism when orders are made for long-term supervised contact. Part of the concern, expressed in cases such as Hv K [2001] FamCA 687, is that the parties are left with “no mechanism for moving forward” and that the parent seeking to remove the supervision requirement will have difficulty in meeting the “changed circumstances” test in Rice v Asplund (1979) FLC 90-725.
More recently, in Slater v Light (2013) 48 Fam LR 573, the Full Court said at 591:
69.… it is also relevant to the success of this ground that the orders did not at least provide an opportunity for the father to apply to vary the supervision arrangements at a later time. That the father could bring such an application is no solution given that on the basis of Rice and Asplund he would need to establish significant changed circumstances before being permitted to have his case heard on the merits.
In our view, while it is not necessarily erroneous to make an order for indefinite supervision, it is necessary for cogent reasons to be advanced to justify such an order. In circumstances where the Federal Magistrate herself contemplated the possibility of it being appropriate for the supervision to be lifted when the child turned seven, and in light of the comments her Honour herself made about the undesirability of long-term supervision, we consider that she erred in leaving the matter entirely in the discretion of one party.
In arriving at that view, we have not overlooked the submissions of counsel for the Independent Children’s Lawyer that the proceedings had been on foot for most of the child’s life – and that all parties were presumably hoping the trial would bring about a final resolution (Appeal transcript, p 61). While we accept finality is desirable, a decision which leaves major elements of the arrangements dependent upon agreement of parties does not, in fact, achieve finality. If anything, it leaves open the possibility of more conflict and rancour.
In determining that the Federal Magistrate erred in not making any provision for the mother to apply to have the supervision requirement lifted, we have had regard to the nature of the concerns which led her Honour to impose the requirement for supervision in the first place. These concerns did not relate to any likelihood of physical harm or abuse to the child in the mother’s care but rather were focussed on the likelihood of the mother seeking to undermine the child’s relationship with the father. These concerns were entirely legitimate and, in our view, provided an adequate basis for her Honour requiring the time to be supervised. However, there is at least a possibility, as the child matures, that those matters will become of less significance, particularly if “the mother takes stock now, genuinely wants to recover from her traumas and no longer be the victim” – to use the expression employed by her Honour at [552].
For these reasons we conclude there is merit in this part of the complaint and we propose to allow the appeal, albeit only in part.
Re-exercise or remitter?
Having found merit in the appeal, we must determine whether to re-exercise her Honour’s discretion or remit the matter (either to her Honour or to another judicial officer) to deal with the issues we have identified above.
In our view, whether we re-exercise or remit, the outcome should be the making of orders to ensure, if practicable, that the mother spends specified times with the child. As presently advised, those times should either be those proposed at trial by the father or by the Independent Children’s Lawyer, to be supervised by the grandmother if she is available. Orders should also be made dealing with arrangements for handover, the costs (if any) associated with handover and the costs of any time spent at a contact service. The orders proposed by the father at trial in relation to these latter topics, would appear to be appropriate.
We are, however, reluctant to make any orders without hearing further from the parties, since the detail we consider necessary in such orders would need to be synchronised with the arrangements contained in the consent orders relating to the grandmother’s own time with the child. Furthermore, now it is known that the challenge to the order for supervision has failed, the grandmother may be in a position to be more definite about her availability to supervise. This in turn may inform the decision as to whether the orders proposed by the father or the Independent Children’s Lawyer are to be preferred.
Given the parameters we have laid down, we do not consider it beyond the realm of possibility that the parties may be able to resolve these issues by negotiation, in which case consent orders could be made by a judge at first instance. But if agreement cannot be reached, we consider the most expedient course is for us to vary the “liberty to apply” provision so as to permit all parties to apply in relation to the implementation of the Federal Magistrate’s orders, on the basis that this would permit the parties to seek orders:
·specifying the time the mother is to spend with the child;
·relating to handover (both venue and cost); and
·relating to costs associated with any time spent at a contact service.
Given the Federal Magistrate’s extensive involvement in the matter, we do not consider it necessary to direct that any application made pursuant to the proposed expanded “liberty to apply” provision be listed before another judicial officer. However, if her Honour is not available to hear the matter or otherwise elects not to hear it, there appear to us to be more than sufficient findings of fact to allow another judicial officer to step in to resolve the issues left outstanding.
We will also make an order varying the terms of the orders made by the Federal Magistrate, so as to provide liberty to the mother to apply for discharge of the supervision requirement after the child attains the age of seven years. We should make very clear that this does not mean we are of the view that the supervision requirement should be lifted after the child turns seven. The prospects of success of an application to discharge the supervision requirement would depend on the circumstances at the time, including whether the mother is able to demonstrate that she has moved on from the position she has hitherto adopted concerning the father and can be trusted to behave in an appropriate way when she has the child in her care.
Costs
We did not take full submissions concerning costs at the conclusion of the hearing. The parties advised us that no orders for costs would be sought against the grandmother, but otherwise the matter was left on the basis that written submissions would be made after our judgment was delivered.
As presently advised, there would seem little basis for a costs order; however, there is a prospect of costs certificates being provided under the Federal Proceedings (Costs) Act 1981 (Cth), since the appeal has succeeded, albeit only in part, on a question of law. The mother and grandmother were self represented, but may have incurred some costs, including those related to preparing appeal books.
Our orders lay down a timetable for costs submissions.
I certify that the preceding one hundred and fifty three (153) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 29 November 2013
Associate:
Date: 29 November 2013
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