Mallory & Mallory
[2019] FamCAFC 221
•28 November 2019
FAMILY COURT OF AUSTRALIA
| MALLORY & MALLORY | [2019] FamCAFC 221 |
| FAMILY LAW – APPEAL – PARENTING – Where the primary judge made orders reversing the children’s residence so that they live with the mother rather than the father – Where the appellant father contended that the children were at risk in the care of the respondent mother – Where the mother contended that the father’s behaviour was unreasonable towards her, and the children were at risk in the father’s care –Where the father asserts that there were fundamental differences between two findings of the primary judge – Where the primary judge’s findings are different but not inconsistent – Where multiple expert witnesses were engaged in different circumstances during the proceeding – Where the father contended that it was not open for the primary judge to rely on the evidence from one of the expert witnesses – Where the father did not challenge the contented expert’s evidence at trial – Where it was open for the primary judge to consider this evidence – Where the primary judge appropriately considered the relevant sections under Part VII of the Family Law Act 1975 (Cth) and weighed the risk as alleged by each party – No appealable error – Appeal dismissed. FAMILY LAW – COSTS – Where the appeal was wholly unsuccessful – Order made seeking a schedule of costs and submissions responding to the costs. |
| Family Law Act 1975 (Cth) Part VII |
| A v A (1998) FLC 92-800; [1998] FamCA 25 B and B (1993) FLC 92-357; [1993] FamCA 143 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Greer & Mackintosh [2013] FamCAFC 16 M v M (1988) 166 CLR 69; [1988] HCA 68 |
| APPELLANT: | Mr Mallory |
| RESPONDENT: | Ms Mallory |
| INDEPENDENT CHILDREN’S LAWYER: | Victorian Legal Aid |
| FILE NUMBER: | MLC | 4927 | of | 2016 |
| APPEAL NUMBER: | SOA | 67 | of | 2018 |
| DATE DELIVERED: | 28 November 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Alstergren CJ, Ainslie-Wallace & Austin JJ |
| HEARING DATE: | 26 March 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 August 2018 |
| LOWER COURT MNC: | [2018] FCCA 2335 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Dr Ingleby |
| SOLICITOR FOR THE APPELLANT: | Aitken Partners |
| COUNSEL FOR THE RESPONDENT: | Ms Harris |
| SOLICITOR FOR THE RESPONDENT: | Geelong Family Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victorian Legal Aid (Did not participate) |
Orders
The appeal SOA 67 of 2018 against the orders of the primary judge made on 30 August 2018 in the Federal Circuit Court of Australia is dismissed.
Within seven (7) days of the date of this order, the respondent shall file and serve an itemised schedule of her costs of and incidental to the appeal, calculated at party/party scale rates.
Within seven (7) days thereafter, the appellant shall file and serve any submission objecting to the respondent’s itemised 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 Mallory and Mallory 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 67 of 2018
File Number: MLC 4927 of 2016
| Mr Mallory |
Appellant
And
| Ms Mallory |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Alstergren CJ & Austin J
This is an appeal brought by the father against final parenting orders made on 30 August 2018 under Part VII of the Family Law Act 1975 (Cth) (“the Act”) by a judge of the Federal Circuit Court of Australia. The orders relate to the parties’ four children, born between July 2006 and January 2013.
The appealed orders essentially provided for: the parties to have equal shared parental responsibility for the children (Order 3); the reversal of the children’s residence so that they live with the mother instead of the father (Order 4); and for the children to spend substantial time with the father (Orders 15 to 23), but only after moratorium periods of six months for the two older children and at least eight weeks for the two younger children (Orders 5 to 14).
The orders made by the primary judge were generally in conformity with those proposed by the mother and the Independent Children’s Lawyer (“ICL”). The father had sought orders for the children to continue living with him, for him to have sole parental responsibility for them, and for only the two younger children to be compelled to spend time with the mother. His final proposal about whether the two older children should spend time with the mother prescriptively or only subject to recommendations made by their counsellor and to any agreement between the parties was left unclear (at [77] – [78]; Appendix B).
Background
The background and procedural history of this matter is complex and was set out in the primary judge’s reasons (at [6] – [71]). For context, we provide a brief summary of key events below.
The parties commenced a relationship in the late 1990s and were married in January 1999. The mother ceased her employment just before the first child’s birth in 2006. The mother remained the primary carer of the children until April 2014, when the father assumed the role of primary carer and the mother returned to full-time work. During the latter years of the parties’ relationship, altercations occurred between the mother and the children, though what exactly happened on those occasions was the subject of some controversy between the parties at trial.
The parties separated in May 2016 and each obtained an interim intervention order restraining the other from committing family violence. Upon separation, the father removed the children from the former matrimonial home to live with him at the paternal grandmother’s home. The father alleged that, some weeks later, the mother tried to remove the children from the paternal grandmother’s care and so he subsequently obtained a more extensive intervention order against the mother to include the children as affected family members.
The mother commenced proceedings in the Federal Circuit Court in May 2016. By that point, the children were only spending one hour per week with her under the supervision of a person chosen by the father and, according to the mother, the father himself.
Interim orders were made with the parties’ consent on 14 July 2016 providing for the children to live with the father and for the family to confer with Dr J for intensive family therapy.
On 18 August 2016, further interim orders were made with the parties’ consent providing for the children to spend time with the mother. The orders were prescriptive in respect of the two younger children, but the orders provided that the time spent by the two older children with the mother was subject to recommendations by Dr J.
In October and December 2016, two more suites of interim orders were made with the parties’ consent, each providing for the time spent by the children to be subject to recommendations made by Dr J.
In June 2017, the mother began consulting her psychologist, Dr S.
On 19 July 2017, further interim orders were made with the parties’ consent providing for the two older children to spend supervised time with the mother at a contact centre and for the two younger children to spend unsupervised time with the mother at prescribed times. An order was also made appointing Dr B, a psychologist, to prepare a family report for use in the proceedings.
The last suite of interim orders was made on 21 December 2017, again with the parties’ consent. They provided for the two younger children to continue spending substantial amounts of unsupervised time with the mother and for different arrangements in respect of the two older children. The orders required the eldest child to forthwith re-commence spending supervised time with the mother in accordance with the previous orders made on 19 July 2017 and for the second eldest child’s time with the mother made on 19 July 2017 to only re-commence when recommended by that child’s therapist.
The trial before the primary judge commenced in December 2017 and concluded in June 2018. The appealed orders were pronounced on 30 August 2018.
The father’s appeal was resisted by the mother and the ICL elected not to participate in the appeal proceedings.
Reasons of the primary judge
Each party constructed a case at trial that the other was liable to have caused some form of physical or emotional harm to the children.
The father asserted the children were at risk of physical and psychological harm in the mother’s care for a variety of reasons, including her subjecting them to physical abuse and her lack of parental capacity. The primary judge summarised the father’s assertions in the reasons for judgment (at [181]).
The mother asserted that the father had deliberately alienated the children from her and, if they remained in the father’s residential care, they would lose their relationships with her, thereby causing them emotional harm. Likewise, the primary judge summarised the mother’s assertions in the reasons for judgment (at [115], [142] - [145]).
Her Honour then reviewed the evidence as it pertained to those asserted risks and made several salient findings.
Her Honour did not find it probable that the children would be at risk of harm in the mother’s care (at [356]). In reaching that conclusion it is evident that her Honour considered the mother’s concessions that “she overreacted with the children in the pre-separation period” and that the children would “remember the incidents of physical assault that she perpetrated on them” (at [346]), and balanced those concessions against her acceptance of evidence that the mother had addressed and improved her parenting capacity (at [348] – [352]).
As for the alleged risk posed to the children by the father, her Honour noted the concession made by the father’s counsel’s that the father would not likely be able to ensure the two older children continued to receive counselling and the loss of their relationships with the mother was almost certain (at [359]). Her Honour found it was highly probable that the two younger children’s relationships with the mother would also come to an end if they remain living with the father and some, or all, of the children may then suffer the “predicted long-term emotional and psychological effects of rejection of the mother” (at [361 c)], [382]).
The primary judge acknowledged she faced a “difficult dilemma” because whatever orders were made would present “difficulties” for the children (at [371]).
Ultimately, the primary judge concluded that the children should live with the mother because, in summary, meaningful relationships between her and all the children was “absolutely essential” for their future emotional and psychological welfare (at [377]), the father had no current capacity or willingness to facilitate relationships between the children and the mother (at [376 b)]), the mother did not pose the risk of harm to the children as the father had alleged (at [376(a)]), and the mother would probably promote the children’s relationships with the father at the expiration of the imposed moratorium periods (at [383]).
Due to the father’s alignment of the children, the ICL and the mother proposed and her Honour accepted, that moratorium periods would be necessary to enable the children to settle into the mother’s residential care without the father undermining the transition.
The appeal
The father’s Amended Notice of Appeal, filed on 6 February 2019, contained only one ground of appeal. He asserted the primary judge erred by finding “the mother does not pos[e] a risk to the children”, contrary to the case he mounted at trial.
The challenged finding was stated in these terms by the primary judge:
376.Having regard to the evidence referred to in these reasons, I have determined that:
a)the mother does not pose a risk to the children as alleged by the father;
…
Although there was only one ground of appeal, the solitary alleged error was particularised by four separate contentions, namely:
a)her Honour made no specific findings in relation to the risks he alleged the mother posed, which were cited in the reasons for judgment (at [181]);
aa)her Honour made inconsistent findings (at [356] and [376]) as to the level of risk presented by the children being in the mother’s care;
b)it was not open to her Honour to prefer the evidence of Dr B to that of Dr J (as her Honour said she did at [335]) when Dr J was not required for cross-examination; and
c)it was not open to her Honour to rely on the evidence of Dr S, because he did not observe the mother with the children.
We shall address those particulars sequentially, but not in the same order they were argued.
Particular 1(aa) – Inconsistent findings as to risk
The father sought to contrast the finding stated at [376(a)] above with the finding made at [356].
Earlier in the reasons for judgment, her Honour found:
356. Having considered all of the evidence referred to in the above paragraphs and throughout the trial, I do not find that it is probable that the children will be at risk in the mother’s care.
The father submitted in the appeal there was a “fundamental difference” between the two findings. While we agree there is a difference, unlike the father, we discern no necessary inconsistency.
The finding at [356] is that the children are probably not at risk of harm in the mother’s care. The finding is expressed in terms of probability. Her Honour did not find the mother posed no risk of harm at all, since the possibility of her causing the children harm could not be entirely ruled out in the face of the mother’s proven past physical abuse of the children.
The finding at [376(a)] was only that the mother does not pose the risk of harm to the children as was alleged by the father. Again, the primary judge did not rule out the existence of any risk of harm at all; only that the risk in the nature alleged by the father was not established. It will be remembered that the father alleged the mother posed multiple risks of harm: physical harm from abuse; emotional and psychological harm; lack of parental capacity; poor parenting skills; and the chance of the children absconding from her (at [181], [344]).
The father submitted in the appeal that it was not possible to qualify the finding made about risk at [376(a)] by reference to it only being the risk of the type he asserted, because the primary judge failed to make findings about all of the different factual allegations he made which were said to be the genesis of such risk. We reject the submission. The primary judge did not find that no risk existed at all. It was open to the primary judge to find the existent risk was not as serious as the father alleged without settling every factual controversy between the parties.
Both findings can stand together compatibly. The risk that the mother might cause the children some harm still existed, but its eventuality was improbable and, in any event, the nature of the multitudinous risk alleged by the father against the mother was not vindicated.
Having made findings about the risks to the children alleged between the parties, the primary judge then had to weigh them. More specifically, the possibility the mother might harm the children in future had to be balanced against the probability that the father would achieve the destruction of their relationships with the mother by his alienation of them from her. In final oral submissions at trial, the father’s counsel admitted that this was the crux of the case (Transcript 15 June 2019, p.65 line 38 to p.66 line 2) and that balancing the risks on both sides was a difficult decision for her Honour (Transcript 15 June 2018, p.67 lines 42-45).
No error in either of the two identified findings is demonstrated and so there was no distortion to the factual premise upon which the primary judge exercised discretion.
Particular 1(a) – no specific findings of all risks alleged by the father
The father contended it was not open to the primary judge to make the finding expressed at [376(a)] when her Honour had failed to make anterior findings in respect of each and every factual allegation he made against the mother.
While the father’s allegations against the mother covered a wide range of misconduct and incompetence, primarily, he alleged that numerous past episodes of the mother’s physical abuse collectively constituted the evidentiary basis for the risk of harm she posed to the children. The primary judge did not make factual findings in relation to each one of those incidents and so, in the appeal, the father conscientiously tabulated for us: the allegations the mother admitted and which her Honour recorded; the allegations the mother admitted but which her Honour did not record; and the allegations which were contested on the facts but in respect of which her Honour made no finding.
While the father and his representatives may be commended for their attention to the evidentiary detail, the fixation on such detail tended to distract from the wider context. The father may have desired the determination of every factual conflict, but it was unnecessary for the primary judge to descend to that level of specificity for several reasons.
First and foremost, the proper application of legal principles did not require it. It is a mistake to think the Court is under the same duty as a court exercising criminal jurisdiction to resolve in a definitive way disputed factual allegations of abuse, since proceedings for child-related orders under Part VII of the Act are not disputes inter partes in the ordinary sense of that expression. The Court is not enforcing parental rights, but is concerned to make such orders as will in the opinion of the Court best promote and protect the interests of the child, so the resolution of an allegation of abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child (see M v M (1988) 166 CLR 69 at 76-77). The High Court was there referring to contested allegations of sexual abuse, but the situation with contested allegations of physical abuse is no different (see A v A (1998) FLC 92-800 at 84,994 – 84,996).
The primary judge’s task was to decide whether the children’s interests were best served by them living with the father or the mother and, in the context of that wider enquiry, her Honour was required to consider the evidence which bore upon the risk of harm posed to the children in each household.
The mother admitted she had engaged in physical assaults of the children and at times she had been aggressive and reactive with the older children, which the primary judge recorded (at [94], [155], [346]). In reliance upon her admissions, the primary judge accepted the mother had been physically abusive to the children on numerous occasions. It was inessential for the primary judge to determine whether that occurred more frequently than the mother admitted. In qualitative terms, multiple episodes of abuse may be no worse than a single episode of acute abuse, so cases of this ilk are not resolved by superficially calculating how many times a parent has been abusive, aggressive, reactive or grumpy with children. Here, it could not be reasonably contended the primary judge failed to grapple with the father’s contention that the mother had been an abusive parent and continued to pose a risk of harm to the children.
The important question at hand was what the future held for the children, not the resolution of every factual dispute about what they had allegedly endured in the past, though what occurred in the past was liable to influence predictions about the future. Self-evidently, findings of past abuse will usually assist in assessing the risk of harm that might exist into the future. In this instance, regardless of whether the mother abused the children on many or fewer occasions, the primary judge made several other findings which ameliorated the risk said to arise from those past episodes of abuse.
The mother expressed remorse about her past behaviour and took steps to improve her parenting performance, as was confirmed by Dr B and Dr S (at [156], [350] – [352]). In final oral submissions at trial, the father’s counsel conceded the following: the mother’s engagement in ongoing therapy with Dr S (Transcript 15 June 2018, p.62 lines 36 – 40) ; Dr B’s confirmation that the mother had dealt with the children in a “far better way” (Transcript 15 June 2018, p.63, lines 19 – 22); and that it was a question for her Honour as to whether the mother was now equipped with the skills to cope with the children (Transcript 15 June 2018 p.64 lines 25 – 30). It was not contended by the father at trial that it was not open for the primary judge to find the mother’s parenting capacity had markedly improved.
Apart from those considerations, the case conducted by the father at trial relieved the primary judge of the need to undertake the intricate factual analysis the father asserted in the appeal was necessary. That is because he proposed parenting orders at trial which were difficult, if not impossible, to reconcile with his contention that the mother posed such a pronounced risk of harm to the children. The father applied for orders that required the two younger children (then only seven and five years of age) to spend substantial amounts of time with the mother without the need for any supervision. Such time included alternate weekends and one evening each week during school terms and portions of the school holidays (at [77]). There was, and still is, no persuasive explanation for how the father could sensibly maintain his contention that the mother posed a material risk of harm to the two younger children when he persisted with an application for orders in those expansive terms. Surely he would not have sought orders he truly believed put the children at risk of harm.
There can be no real doubt, in the face of the findings and reasons for judgment we have summarised, about the factual basis upon which the primary judge exercised discretion. This case was quite unlike the situation in Greer & Mackintosh [2013] FamCAFC 16, which the father urged upon us as being analogous, where the absence of findings by the primary judge left the appellate court quite unclear about the factual premise upon which discretion was exercised.
We are satisfied the overall assessment by the primary judge about the risk of harm allegedly posed by the mother was well open despite her Honour not deciding every factual conflict presented to her by the parties.
Particular 1(b) – the evidence of Dr B and Dr J
The father submitted it was not open to the primary judge to prefer the evidence of Dr B to that of Dr J, when Dr J was not required for cross-examination.
Before analysing the complaint, it is necessary to recall the roles played by Dr B and Dr J in the proceedings at first instance.
Pursuant to the interim consent orders made on 14 July 2016, Dr J was engaged by the parties as a therapeutic expert with a view to restore the children’s relationships with the mother. Although Dr J was expected to subsequently produce a report about the family’s therapeutic experience, her role within the family and in the litigation was confined to that task and was then overtaken by the appointment of another expert. Dr J last conferred with the family in March 2017, which was some nine months before the trial began and 15 months before the trial ended.
By consent interim orders made on 19 July 2017, Dr B was appointed as the expert psychologist to prepare a report for use in the proceedings. His role was entirely forensic. He had no hand in providing any therapy to the parties or to the children. Pursuant to that appointment, Dr B prepared expert reports dated 16 November 2017 and 12 April 2018, both of which formed part of the body of evidence before the primary judge. He was cross-examined at the trial.
Dr J’s report, prepared beforehand in May 2017, was Annexure B to her affidavit affirmed on 3 November 2017 and also formed part of the evidence before the primary judge. Dr J was not available for cross-examination for the first week of the trial and, while initially required by the parties and the ICL, the position changed during the trial and Dr J was no longer required (Transcript 9 May 2018, p.89 lines 31 – 36)
Importantly, and contrary to the implication contained in the ground of appeal, Dr J’s evidence was not rejected by the primary judge in its totality. Her Honour simply preferred the evidence of Dr B when their expert evidence differed (at [335]). The reasons given by the primary judge for such preference were:
· Dr J was last involved with the family in March 2017 (at [331], [353]);
· Dr B had knowledge of, and therefore inferentially took into account, Dr J’s earlier opinions when he prepared his first report (at [332]);
· Dr J failed to consider the hostile family environment, which was not conducive to the children’s maintenance of their relationships with the mother (at [333]);
· Dr J did not witness the father’s “rigid and intransient [sic] views about the children’s relationship with the mother” (at [334(a)]);
· Dr J was unaware of the extent of the mother’s psychological treatment sought and obtained from Dr S (at [334(b)(i)]);
· Dr J was unaware of the two older children’s escalating behaviour towards and rejection of the mother (at [334(b)(ii)]); and
· Dr J “did not address whether the reaction of the father and the children” to the mother’s conduct was proportionate and appropriate (at [334(c)]).
At this point, it may be observed that the reasons given by the primary judge for reconciling the expert evidence in that way were logical. Indeed, the father did not attack the accuracy of any of those reasons in the appeal. Rather, he argued the primary judge erred by preferring Dr B’s evidence for two reasons: first, the “tentative nature” of Dr B’s second report; and secondly, there was “no proper basis on which to challenge any opinion of Dr J” because she was not tested in cross-examination (Father’s Summary of Argument filed 6 February 2019 at [27]).
The first challenge is misconceived because it seeks to undermine the weight reposed by the primary judge in Dr B’s documentary and oral evidence. No challenge was made in this appeal to the efficacy of Dr B’s expert opinions or the weight reposed in them by the primary judge. The complaint was confined to the depreciated value attributed to Dr J’s expert evidence when it conflicted with that of Dr B. Nevertheless, the point can be addressed satisfactorily.
Dr B conceded in cross-examination that his second report did not contain any “definitive recommendation” about the outcome of the litigation (Transcript 11 May 2018, p.366 lines 46 – 47). He instead set out a range of possible options in the second report dated 12 April 2018 (at [326]), which he adopted in preference to the recommendations in his first report dated 16 November 2016 (Transcript 11 May 2018, p.367 lines 1 – 2). The primary judge was alive to the “stark contrast” in recommendations between the two reports of Dr B (at [323]).
The upshot of Dr B’s evidence was that there were no easy solutions and the options available to the primary judge were all “imperfect” (Transcript 11 December 2017, p.380 lines 40 – 45). The options ranged between all children living with the father, all children living with the mother, and splitting the siblings between the parties. Although admittedly tentative, Dr B ultimately said in his report dated 12 April 2018 at paragraph 32:
It is ultimately a matter for the Court to determine which of these options will serve the children best. …the Court may be inclined to proceed with a more drastic approach, such as a moratorium on their time with their father, or indeed a change of residence. …Should the Court determine that [the father] is actively undermining these children’s relationship with their mother, I would posit that the trajectory will remain unchanged unless there is a more substantial response, such as removing these children entirely (at least for a period) from their father’s sphere of influence…
The father failed to explain in the appeal why the tentative nature of Dr B’s recommendations about the residential options for the children undermined the veracity of Dr B’s evidence overall. It was perfectly appropriate for him to defer to the primary judge’s determinations. Dr B was the expert witness and his evidence was not necessarily determinative, but there was no error in the primary judge accepting it once it was contrasted with all other available evidence.
Given Dr J ended her involvement with the family in March 2017 and Dr B did not even begin his involvement with the family until October 2017, their respective experiences with the family were temporally dissociated. The conflicts which existed between the evidence of Dr B and Dr J were:
· Dr J found the father managed the children well (Annexure B to the Affidavit of Dr J filed 14 November 2017) and did not comment upon the mother’s allegations that the father failed to support her parenting role and exposed the children to his negative feelings towards her (Annexure B to the Affidavit of Dr J filed 14 November 2017), whereas Dr B found the father had a tendency to assume moral authority over the children and was not genuinely supportive of the children’s relationships with the mother (at [322)]);
· Dr J found the fundamental problem was the mother’s difficulty in managing the children (Annexure B to the Affidavit of Dr J filed 14 November 2017), whereas Dr B found the mother handled the children well following his second observation session, despite the two older children dehumanising and being aggressive towards the mother (at [322]); and
· Dr J found the mother had significant deficits in her capacity to take responsibility for her own behaviour and did not benefit from close advice and support about how to change her behaviour (Annexure B to the Affidavit of Dr J filed 14 November 2017), whereas Dr B found the mother far more reasoned, willing to accept criticism and amenable to working with professionals when he met her the second time (at [322]).
Clearly enough, Dr B identified material improvements in the mother’s insight and parental capacity by the time he conferred with the family in April 2018. The more recent experiences of Dr B with the family logically gave his evidence greater credence, particularly since his professional experience and expertise was no less impressive than that of Dr J.
Turning then to the father’s second challenge, it too is rejected. The decision by the mother and the ICL to abstain from the cross-examination of Dr J simply meant her evidence was not the subject of any contest. It could be accepted as correct by the primary judge as at the time of her last involvement with the family in March 2017, as it indeed was. The preference for Dr B’s evidence mostly arose from his more recent engagement with the family and the changes he saw in the mother’s temperament, which overtook the more antiquated observations of Dr J.
The difference of opinion between Dr J and Dr B about the father’s role in the children’s alienation from the mother was identified by the primary judge to arise from Dr J’s failure to consider the hostile family environment, which was not conducive to the children’s maintenance of relationships with the mother, and the father’s “rigid and intransient [sic] views” about the children’s relationships with the mother (at [333], [334(a)]). If those limitations were not readily capable of inference from the text of Dr J’s report without the need to extract such concessions from her in cross-examination, then they were factual findings open to the primary judge in any event from other more recent evidence, including the father’s demeanour in cross-examination. The primary judge found his presentation problematic, rigid, uncompromising about his evidence, and lacking any desire or ability to facilitate meaningful relationships between the children and the mother (at [101]).
No error is revealed in the primary judge’s treatment of the expert evidence.
Particular 1(c) – reliance on the evidence of Dr S
The father’s contention was that it was “not open” for the primary judge to rely upon the evidence of the mother’s psychologist, Dr S, at least in so far as it touched upon her parental capacity, because Dr S did not witness any interaction between the mother and the children.
The effect of Dr S’s evidence was summarised by the primary judge in the reasons for judgment. He was the clinical psychologist whom the mother consulted for therapeutic purposes in June 2017. He saw her 17 times in the space of about four months – sometimes individually and sometimes in a group – and twice more before he was cross-examined at trial. He diagnosed she had no personality or clinical disorder. The therapy administered to that point had made her “emotionally resilient and better able to cope with emotional dilemmas and hurts” (Annexure SB-1 to the Affidavit of Dr S filed 1 December 2017 at page 8). He opined there was “no psychological impairment” to her resumption of a parental role (Annexure SB-1 to the Affidavit of Dr S filed 1 December 2017 at page 5).
The father elected not to cross-examine Dr S, leaving that to the ICL. During his cross-examination, Dr S elaborated on his evidence by offering an opinion that the mother was ready to “assume care of the children”, as the primary judge recorded (at [316(s)], [318(d)], [351]). Despite being privy to such oral evidence, the father did not revise his position and seek to cross-examine Dr S after the ICL, in which event he could not countermand his evidence. The best he could then do was contend it lacked weight because Dr S had not seen the mother with the children in her care, but the primary judge was well familiar with that limitation (at [318(b)], [351]).
While the failure to observe the children in the mother’s care was a limitation to the validity of Dr S’s evidence about the mother’s readiness to assume the children’s care, it was not an impediment which obstructed the attribution of any weight at all in his professional opinion. The father’s submission confused those two concepts.
It is also worth noting that the father’s submission in the appeal about it not being open for the primary judge to rely upon Dr S’s opinion evidence was contrary to his submission at trial. In final oral submissions before the primary judge the father conceded it was open for the primary judge to decide whether the mother was now equipped with the necessary skills to cope with the children by the therapy she received from Dr S (Transcript 15 June 2018, p.64 lines 25 – 30). He could hardly admit at trial it was open to the primary judge to make that finding, but then assert in the appeal it was not.
It was open for the primary judge to accept Dr S’s evidence. The only question could have been what weight should have been reposed in it, but this component of the appeal was not a weight challenge.
Conclusion and Costs
The appeal will be dismissed.
In that event, the mother sought costs against the father, which order he commendably conceded he could not resist.
As to the quantification of the mother’s costs, she claimed $20,650, though she admitted the calculation was not in accordance with the party/party scale.
On 7 December 2018, the Regional Appeals Registrar ordered the parties to file schedules of costs if they envisaged applying for costs at the conclusion of the appeal. Neither did so. With some reluctance, we shall allow the mother seven days within which to file and serve her schedule of scale party/party costs and allow the father another seven days thereafter to file and serve any submissions setting out his objections to the itemised costs. The costs order can then be made in chambers on the papers.
Ainslie-Wallace J
I agree with the orders proposed and generally with the reasons given for making them. However, I wish to add a few comments of my own as to the assessment of the existence of risk. Considerable time was taken up during the appeal in parsing her Honour’s reasons and in examination of whether a finding that a risk of harm was not probable could sit comfortably with the finding that the children, if they lived with the mother, were not at risk of harm of the type suggested by the father.
While the assessment of an unacceptable risk of harm has been expressed in terms of probabilities, it is helpful to recall what was said in M v M (1988) 166 CLR 69 (“M v M”) and those cases which followed it.
In M v M at 78 the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. …courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).
The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment. As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:
151. …Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. …
Her Honour’s task here was to determine whether the children, if living with their mother, would be exposed to an unacceptable risk of harm and that is what she ultimately concluded and for the reasons given by Alstergren CJ and Austin J, her Honour made no error.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Alstergren CJ, Ainslie-Wallace and Austin JJ) delivered on 28 November 2019.
Associate:
Date: 28 November 2019
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