Manesh and Manesh (No. 3)
[2021] FamCAFC 113
•16 July 2021
FAMILY COURT OF AUSTRALIA
Manesh & Manesh (No. 3) [2021] FamCAFC 113
Appeal from: Manesh & Manesh [2020] FamCA 792 Appeal number(s): SOA 86 of 2020 File number(s): MLC 8955 of 2019 Judgment of: ALDRIDGE, WATTS & AUSTIN JJ Date of judgment: 16 July 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal against interim parenting orders – Father to have no time with the child – Allegations of family violence – Where the primary judge did not err in finding an unacceptable risk – Where supervision would not ameliorate the unacceptable risk – No evidence put before the primary judge as to details of proposed supervision – Finding of unacceptable risk was open on the evidence – Where significant weight was given to the child’s views – Unchallenged evidence as to the child’s age and maturity – Where the father chose not to participate in the Family Report interviews – Appeal dismissed – Written submissions to be provided as to costs. Legislation: Family Law Act 1975 (Cth) s 60CC(3)
Family Law Rules 2004 (Cth) Sch 3
Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Marvel v Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101
Meadows & Meadows (2019) FLC 93-883; [2019] FamCAFC 1
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Redmond & Redmond [2014] FamCAFC 155
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
SS & AH [2010] FamCAFC 13
Tallant & Kelsey (2016) FLC 93-742; [2016] FamCAFC 207
Division: Appeal Division Number of paragraphs: 64 Date of hearing: 26 April 2021 Place: Heard in Melbourne, delivered in Sydney The Appellant: Litigant in person Counsel for the Respondent: Mr Goddard Solicitor for the Respondent: Freeman Family Law The Independent Children's Lawyer: Did not participate in the appeal ORDERS
SOA 86 of 2020
MLC 8955 of 2019APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR MANESH
Appellant
AND: MS MANESH
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE, WATTS & AUSTIN JJ
DATE OF ORDER:
16 JULY 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.Costs are reserved.
3.The appellant is to file and serve written submissions dealing with the issue of costs within fourteen (14) days of these orders, with the respondent to file submissions in response within a further fourteen (14) days. The appellant to have the option to file submissions in reply within a further seven (7) days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Manesh & Manesh has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, WATTS & AUSTIN JJ:
INTRODUCTION
This is an appeal by Mr Manesh (“the father”) from interim parenting orders made by a judge of the Family Court of Australia on 23 September 2020 in proceedings between him and Ms Manesh (“the mother”). The parties’ child, who is the subject of the proceedings, was born in 2007 and was 13 years old at the time of the hearing. The orders provided that, pending the determination of the proceedings, the father was to have no time with the child, who was at that time living with the mother.
The mother made a series of allegations of family violence from as far back as 1998. Her evidence was that the father had struck her on several occasions causing her to bleed, hit her in the face, put his hands around her neck, dragged her along the floor by her hair and punched her in the face. It was said that some of these events took place in the presence of the child.
The mother also contended that the father had been violent to the child. The primary judge recorded those allegations at [22]:
22.So far as the father’s violence towards [the child] was concerned, the narrative commenced at paragraph 18 of the mother’s affidavit. Relevantly paraphrased, the mother stated as follows –
a)between October 2018 and June 2019 the father physically and psychologically abused [the child] by –
i)setting unrealistic or unachievable homework requirements for [the child] to follow;
ii)the father did one or more of the following – removing the seat of [the child’s] bicycle, hiding her school bag, deflating her bicycle’s tyres, pushing [the child], pulling her hair, squeezing her hands and twisting her fingers if [the child] to meet the father’s expectations;
b)on 27 April 2019 the father and [the child] became embroiled in a physical altercation over an iPad during which the father pinned [the child] to a bed and put his foot on her face;
c)upon [the child] attempting to retrieve her iPad from the father after he seized it, the father kicked [the child] in her face then chased her from the house and down a street only stopping his pursuit of [the child] once [the child] was approach [sic] by a bystander;
d)[the child] often heard the father swearing at the mother using appalling language such as “fucking idiot”, “stinking shit” and the father, in the presence of the [elder son] and [the child] described the mother as a parasite, a useless idiot, fit for nothing, a beggar, worthless, a dog, a scavenger and damaged; and
e)the father called the children, variously, “stupid idiots”, “dumb” and that each was “a shit”.
The mother alleged that in 2015 the father made the child stand under a cold shower as punishment.
For his part, the father denied most of the allegations made by the mother and said that he and the child had a loving relationship. He did however, agree that he had removed the child’s bicycle seat and hidden her school bag. The latter was to “ensure that [the child] completed her homework, takes her reading books [sic], gets her diary signed by me, puts her meal, snacks and drink in the bag” (at [31]).
The Court had the benefit of a Family Report prepared by a single expert psychologist on 26 November 2019. The father did not participate in the interviews for the Family Report because, as he informed the single expert, his priority was to assist the parties’ elder son (who is not the subject of the proceedings) to prepare for his Victorian Certificate of Education exams.
The primary judge set out the child’s comments to the single expert as follows:
41.…
b)he raised with [the child] the prospects of her seeing the father to which he reported as follows –
6.4She seemed to have warmed to the discussion and so I said directly that we should talk about ‘you seeing Dad’. She became quite coy again, and I noted this aloud and asked what was wrong. [The child] said: ‘I don’t want them to make me see him’. I reassured her that it was alright for her to tell me what she wanted, and that, at her age, a lot of emphasis would be given to what she wanted. I also repeated that it would help if she told me why.
6.5[The child] said: ‘I’m worried that it might happen again [“It?”] … him being violent … [“You saw that?”] … I saw it and I heard it and it happened to me’.
6.6I enquired whether it would help to have other people there, “maybe your grandparents”. [The child] said: ‘I don’t really have a friendship with them’.
I persisted, asking if she could perhaps talk with her father on the phone or using an iPad: ‘No … and I don’t want to see him at all … it just reminds me about what happened’.
6.7She became a little teary, so I reassured her that I would report accurately what she said, and that it would shape my recommendations. Noting that she was upset, I asked if she had someone she could talk to about how she felt. [The child] said: ‘I’ve got a counsellor now … and that’s good’.
In addition, the single expert suggested to the child that she speak to him again, after she had spent some time with her father. The child answered, adamantly accordingly to the single expert: “I don’t want to see him at all … I don’t want to do that” (at [42]).
The single expert opined that the reasons given by the child were clear, consistent, age-appropriate and that the child was “of an age and relative maturity where predominant weight should be given to her autonomous views” (at [43]).
The primary judge recognised that on an interim application such as the one before him, findings of fact should be made with only great circumspection, as not all of the evidence that bears on the relevant question may be available to the Court at that time; and because none of the evidence has been tested. Nonetheless, the Court acts protectively towards children and where the evidence reveals serious allegations, as in this case, of family violence, the nature of the allegations of themselves may be such as to give rise to a possible risk of harm to the child. (at [15]).
Such an approach is clearly in accordance with established authority (Marvel v Marvel (2010) 43 Fam LR 348; SS & AH [2010] FamCAFC 13; Deiter & Deiter [2011] FamCAFC 82; Redmond & Redmond [2014] FamCAFC 155; Eaby & Speelman (2015) FLC 93-654).
Taking these matters into account, his Honour concluded:
79.I take the view that an unacceptable risk exists that [the child] will be exposed to or subjected to family violence if the father’s application succeeds. As no details of supervision were proffered, the proposal for supervised time was not made out. But even with supervised time, it is contrary to [the child’s] wishes as conveyed to [the single expert].
The appeal was opposed by the mother. The Independent Children’s Lawyer (“the ICL”) did not participate in the appeal.
THE APPEAL
The father’s Amended Notice of Appeal, which he says was prepared by him with the assistance of a lawyer he obtained through Airtasker, contains some 33 grounds. However, it emerges from the father’s Summary of Argument, and in particular, his oral submissions, that the main complaint was that the primary judge could not or should not have made the findings of unacceptable risk. In particular, he submitted that even if there was a risk of harm to the child, that risk would be completely ameliorated by the supervision of any time the child spent with him and that the orders he had proposed for such time should have been made. The father said that in such a setting there could be no risk to the child whatsoever and that the child could not or would not be fearful. The father also challenged the reliability of the single expert’s findings and opinions.
Did the primary judge display apprehended bias?
Allegations of bias and lack of procedural fairness must be dealt with first as they go to the integrity of the trial process itself (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [117] and Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]).
The allegation of bias is simply that “[a]ll fair-minded layperson’s who heard the current state of the family where the son chose to live with the father while the child was denied any contact with the father for 15 months have expressed concerns on procedural fairness” (the father’s Summary of Argument filed on 2 March 2021, paragraph 29). That submission is, in reality, a submission to the effect that the outcome is unreasonable. That is not sufficient to raise any issue of apprehended bias (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337).
Was the father denied procedural fairness?
The father submitted that he was denied procedural fairness because he did not have the opportunity to participate in the Family Report, and that before any report was used, he should have been given the opportunity to obtain a new report. He also submitted that procedural unfairness arose from being denied contact with the child, thus leading to the child being disadvantaged at the trial, the ICL not complying with court orders or focusing on the best interests of the child, and the primary judge being biased, acting punitively and in an intimidating manner towards him in making indemnity costs orders.
The first of the submissions is simply incorrect. The father was not denied any opportunity to attend the interviews for the report. Rather, he decided, for reasons of his own, not to participate. Whether the father was justified in taking that course, as he contended, is irrelevant as it remained his decision not to attend.
The second point fails for two reasons. First, the father did not seek a new report so he can hardly complain that one was not ordered. Secondly, the repeated exposure of the child to the dispute between the parents by having to attend repeated family interviews is most undesirable. That is particularly so when the father asserted that he had made the choice to prioritise an alleged need of the elder brother over his obligation to attend the interview for the Family Report without adequate explanation as to why both could not be accommodated.
The effect of the orders is that, pending the final determination of the matter, the child will not spend time the father. Whether or not that puts him at a disadvantage at that final hearing is not an instance of procedural unfairness that led to the making of those very orders.
There was no identification of the asserted ‘unfair’ work of the ICL or bias and we cannot therefore take it further. In any event, no issue seems to have been taken to it at the hearing.
Finally, the two indemnity costs orders to which the father’s submissions referred were made after the interim parenting orders (namely on 28 October 2020 and 19 November 2020). The orders were not the subject of any appeal and we are not aware of the circumstances in which they were made, save that one was as to the costs of the interim hearing itself and the other was the costs of a stay application. However, whatever the motivation may have been for the making of those orders it cannot impugn the earlier parenting orders.
There is no merit in these submissions.
Should the proposed order for supervision have been made?
It is helpful to set out the orders that the father had sought at the interim hearing and which he says was erroneously not made.
3.That within 3 business days, all parties do all things necessary to contact the supervised contact service provider [at X Supervision Centre] mailto:and complete a telephone intake session.
4.That within 5 business days [the child] attend a 30-minute supervised video session with the father from 6:00 pm to 6:30 pm on Tuesdays and Thursdays with [X Supervision Centre].
5.That the following weekend after the completion of telephone intake session as in Order 3 above, [the child] spend time with the father at the father’s expense supervised at [X Supervision Centre] as agreed between the parties for a period of two (2) hours every weekend and at times as agreed between the parties. [The father] on first meeting [the child] if he so wishes, take a gift to [the child] for her belated 13th Birthday.
6.Time in Orders 4 and 5 to continue until such time as Ordered by the Court.
(The father’s Application in a Case filed 14 September 2020) (As per the original)
The short answer to this challenge lies at [79] of the primary judge’s reasons, which we have already quoted. The two matters relied upon by his Honour to deny the proposed supervision were the absence of any evidence as to the suitability of the proposed supervisor and express wishes of the child not to see the father.
The father accepted, as he had to, that he had provided no evidence whatsoever as to the details of the supervision that he proposed. The father’s response was that the proposal itself was sufficiently detailed to enable the orders to be made. That may be so, but it entirely ignores the issue of the suitability of the proposed supervisor.
The evidence did not disclose whether the proposed supervisor, the “X Supervision Centre”, was a recognised contact centre with the appropriate protocols and facilities in place to ensure the privacy and protection of the parties and the child. The qualifications, if any, of the proposed individual supervisor are not known. There was no evidence of the address of the centre, nor was a description given of the premises at which supervision would take place. Neither the father nor the proposed supervisor said whether there were vacancies at the centre, whether there was any waiting list and if so, how long the parties would have to wait before supervision could commence.
In short, the mere fact that a contact centre described themselves as the “X Supervision Centre” does not establish that they are a recognised and appropriately qualified contact supervisor with appropriate premises, staff and protocols in place to ensure the safety and protection of the parties and their child and maintain their privacy.
In our view, his Honour was entirely correct in making the finding that he did.
It is also unquestionably correct, as appears from the evidence of the single expert who we have already quoted, that even supervised time was contrary to the child’s wishes.
The father’s response was that the primary judge gave too much weight to the child’s views, but such submissions face a high bar (see Gronow v Gronow (1979) 144 CLR 513). In any event, given the unchallenged evidence as to the child’s age and maturity, the primary judge was well justified in giving significant weight to the child’s wishes.
When faced with these propositions the father directly attacked the Family Report itself, again on a number of grounds. He submitted that the Family Report was “relatively weak in reflecting the family dynamics” because it was superficial, disregarded the facts provided by the father and was given excessive weight by the primary judge (the father’s Summary of Argument filed on 2 March 2021, paragraph 23).
We accept that the Family Report was limited in scope, but that was because the father chose not to attend. The single expert, therefore, did not have the opportunity of observing the child interact with the father. There is, however, no reason to think that the attendance of the father at the interviews would have changed the views of the child in any way. It was that aspect of the Family Report that was particularly relevant to his Honour’s consideration.
The father also submitted that the evidence of the single expert relied on by the primary judge, as to the views of the child occupied but two pages and, therefore, in relying upon those two pages, both the single expert and the primary judge failed to consider all of the evidence. The mere fact that the father’s evidence was that he had a close relationship with the child and that his active presence in the child’s life was beneficial to her, did not oblige either the single expert or the primary judge to accept that this was actually the case.
In any event, given that those two pages identified by the father are devoted solely to what the child told the single expert, we do not know what other evidence could have been taken into account that bore on that issue. However, it is plain from reading both the Family Report and his Honour’s reasons that all of the mother’s allegations as set out in her evidence, and the father’s denials, were recorded by the single expert. So understood, the father’s complaint is ultimately and simply that his evidence and contentions should have been accepted. Such a submission does not identify error.
Finally, the father challenged the primary judge’s finding that the child would be exposed or subjected to unacceptable risk of harm if the father’s application succeeded, because the phrase “unacceptable risk” does not appear in the single expert’s report. That is so, but finding of unacceptable risk was a finding made by the primary judge himself based on all of the evidence and not by adopting an opinion of the single expert.
These aspects of the father’s grounds do not succeed.
Was the finding of unacceptable risk open on the evidence?
The father submitted that the finding of unacceptable risk was not available on the evidence, that the primary judge did not explain why the evidence gave rise to an unacceptable risk of harm, did not consider all of the evidence, and gave excessive weight to it which again were expressed in a variety of ways.
The mother’s evidence, summarised above, raises allegations of serious family violence that, at times, occurred in the presence of the child. The child told the single expert of her experience of violence involving the father. If accepted, this evidence establishes that the father engaged in serious violence towards the mother and the child.
The primary judge then took into account the father’s denials and, without deciding whether or not the mother’s and the child’s allegations were correct, found that, having regard to the nature and extent of the allegations, for the purposes of an interim hearing, a case of unacceptable risk was established and that the Court should act protectively towards the child. We see no error in his Honour’s approach.
It is well established that a trial judge must give adequate reasons for their decision so that the parties might understand why they were made (Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267, Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [58]–[59]). It is clear from his Honour’s reasons why he considered there was an unacceptable risk of harm and why the proposed orders for supervision were not made. It follows that the reasons are adequate.
It was submitted that some of his Honour’s findings were couched in terms of final findings. For example, his Honour said:
36.The father made another affidavit. It was dated 5 June 2020. He prepared the affidavit. By occupation he is a [consultant] who I presume has no legal training. Yet his use of legal phrasing such as “I join issue with [the mother’s] allegation” suggests he may have had help preparing the affidavit. Even if he did, it is the substance of the evidence he gave that is important. In it the father deposed to financial matters, for the most part. To the extent that matters relevant to [the child] were introduced by the father in that affidavit, he again took issue with [the single expert’s] report. He said [the child] became upset upon learning that the father had met with the vice principal of [the child’s] school. He also revisited the 27 April 2019 incident. He said the following –
Given the input I have received from programs attended by me, I feel that I am in a good position armed with the necessary insight to address [the child’s] behaviour.
37. He missed the point – it was his behaviour that required addressing.
…
61.The definition of family violence under the Family Law Act is very broad. That was deliberate. The family consultant’s evidence from [the child] was unmistakable. To my mind it told of the existence of an unacceptable risk of family violence. Under s 60CC (2) I am required to given greater weight to the need to protect [the child] from family violence than I am to give to the benefit of [the child] having a meaningful relationship with both parents.
…
77.No child should be exposed to family violence. No child should be subjected to family violence. Where a risk exists in either respect, then that should be assessed. If the risk is unacceptable, then the parent seeking time should be refused time. The father’s contention about the allegations against him not being proved proceed according to what appears to me to be his conception of a criminal standard of proof. For present purposes it seems to me that the father’s past behaviour up to the 27 April 2019 incident revealed or may have revealed indicia of family violence, such as the striking of the mother’s face causing her nose to bleed, putting [the child] under a cold shower, constant arguing, constant denigration, a large amount of which [the child] saw and heard. In some of it she was the victim. On one version of the evidence the father swore and yelled directly at the children, itself a species of family violence. The father says he has undertaken courses to alter his behaviour. Whether he is to be believed or not is a matter for trial.
78.Then there is the evidence of the event on 27 April 2019. While disputed, if the mother’s version of it is found at trial to be correct, a very concerning matter is raised. Exposing [the child] to a repeat of that incident represents an unacceptable risk, in my view.
79.I take the view that an unacceptable risk exists that [the child] will be exposed to or subjected to family violence if the father’s application succeeds. As no details of supervision were proffered, the proposal for supervised time was not made out. But even with supervised time, it is contrary to [the child’s] wishes as conveyed to [the single expert].
However, the primary judge’s reasons must be read as a whole. His Honour repeatedly emphasised that he could not and would not be making final findings (at [15]–[17], [50], [56]–[63] and [75]). His Honour said:
80.In my view the risk to [the child] is unacceptable that she will be subjected to or exposed to family violence if the father’s application for time is granted. I entertain no confidence whatsoever that the father will not engage in family violence as that term is broadly defined. Even recognising that all of the evidence of family violence has not yet been tested, I am required to act protectively towards [the child]. The father’s application for a parenting order necessarily invokes a consideration of the best interest of [the child]. I take the view that her best interests are not promoted by [the child] having time with the father at this stage. That may change after a trial.
When the judgment is so read, it is tolerably clear that his Honour was not making final findings of fact that the violence had occurred as asserted by the mother and the child, but rather that the allegations made by them justified a finding of unacceptable risk. No error has been established.
The father submitted that the primary judge mistook the facts when referring to the child and her relationship with the father. His Honour said:
64.The nature of [the child’s] relationship with the father is poor according to [the child] as conveyed through [the single expert]. The father seems to enthusiastically embrace a desire for him to help [the child] with her studies. Whether or not that is the case, [the child] does not appear at this interim stage of the case to have a harmonious relationship with the father. The evidence reveals that [the child] has a favourable relationship with the mother.
(Footnotes omitted)
The single expert said:
7.4[The child] told me clearly, consistently, and for age-appropriate reasons that she did not want to be made to spend time with her father or to communicate with him because she fears that she will again experience control and abuse.
7.5In my view, [the child] is of an age and relative maturity where predominant weight should be given to her autonomous views and wishes in determining parenting arrangements for her.
…
7.7I do not think a decision can be made now about any future time [the child] might spend with [the father], nor about future communication with him. Indeed, I think that a break in any pressure for her to do so might itself be therapeutic.
(Single expert’s report dated 26 November 2019, p.16)
The father submits that the last sentence of these passages was mistakenly taken by the primary judge as a concrete recommendation that there was no therapeutic benefit to the child seeing the father. Further, he contended that his Honour failed to evaluate the father’s proposed orders for family therapy.
The primary judge set out the quoted passages from the single expert’s report at [44] of the reasons for judgment. Thereafter there was no specific reference to or reliance upon the last sentence of paragraph 7.7 of the single expert’s report. There is therefore no basis for suggesting that the primary judge misunderstood or misapplied the sentence relied on by the father. His Honour acted on the basis of the found unacceptable risk and the child’s views, not on the basis of a recommendation that a “break” from the father would be therapeutic.
It is clear, however, that the passage as a whole, including the last sentence of paragraph 7.7 of the single expert’s report, supported his Honour’s interim orders.
We accept that the father had proposed an order for family therapy in his Application in a Case filed 14 September 2020 at Order 8, but again, as with the proposed supervision, there was a complete lack of evidence that would support the making of such an order. It is also difficult to see how family therapy might be approached in the absence of any observation of the interaction between the child and the father, her stated fear of him or any evidence that such therapy would benefit the child.
It was submitted that the primary judge failed to undertake a “risk assessment categorisation” and mistook the facts when finding that there was an unacceptable risk. As our reasons have made plain, we consider that the primary judge did indeed assess the risk. We are quite unable to identify any facts that were mistaken, as we explain elsewhere.
It was also submitted that the primary judge gave excessive weight to what was described as the “iPad incident”, which occurred on 27 April 2019. The “iPad incident” is referred to in the primary judge’s summaries of the mother’s and the child’s evidence which we have set out earlier. The primary judge noted the father’s competing version of events and recorded that although the father was charged over the incident, the police did not proceed with it when the matter reached court on 1 August 2019 (at [32]).
The father’s complaint is that the primary judge should have found that the incident occurred in accordance with his evidence. This is of course an invitation to fall into the very trap that the father complains of, that is of making a final finding at an interim hearing. In this matter such a finding could only be made at a final hearing, if it was to be made at all.
The father submitted that the primary judge erred by taking into account and giving significant weight to evidence from the Department of Health and Human Services (“the Department”). The Department first became involved with the family in 2015. His Honour said the following:
40.[The Department] provided a response in pursuance of s 67Z of the Family Law Act dated 7 November 2019. In it the writers recorded that Victorian Child Protection had provided four reports, that the case was closed because the father was not having any contact with [the child] and there was no role for Child Protection to intervene. The report recorded the following –
Given [the father] is not currently having contact with [the child], there is no role for Child Protection to intervene. However, it is assessed it would be highly concerning should [the father] have unsupervised contact with [the child], and should this occur, a notification to Child Protection would need to be made for consideration for an Investigation and Assessment given risk of harm this could pose to [the child]. It is assessed that at this time is (sic) insufficient evidence to warrant further Child Protection intervention, and the matter of [the child’s] care arrangement is best addressed within the Family Law Court where decisions in the bests (sic) interests of [the child] and further assessments of the family can be made.
Thereafter the primary judge did not refer to the report or the Department which leads to the reasonable inference that his Honour did not accord it much weight. It is appropriate to recall that the father was not seeking unsupervised time, in any event. It follows that no error has been demonstrated, even if, which we do not accept, the report should not have been taken into account at all.
The remaining grounds of appeal suggest that the primary judge gave little weight to other relevant considerations required to be taken into account by s 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”). Speaking generally, they are matters that may have more relevance at a final hearing than at the interim hearing where the two matters that attracted the most attention were the existence of any unacceptable risk of harm and the child’s views.
Further, some of the suggested considerations, for example, the need to reduce litigation between the parties and the effect of the change to the child’s circumstances, were mistaken because it follows axiomatically from an interim hearing, that the orders will not bring an end to the litigation. As to the effects of the change of circumstances, it was the father in fact, who was proposing a change in circumstances that the child spend time with him. The fact that the parties had previously separated and the child went to live with the mother is not a particularly relevant consideration.
It is true that considerations such as the child’s relationship with the paternal grandparents or with the elder brother are relevant (s 60CC(3)(b)(ii) of the Act) but, in the circumstances of this matter where no orders were proposed that would see the child spend time with either the paternal grandparents or the elder brother, they were not considerations of such weight to require specific attention.
Finally, the father submitted that it was plainly unreasonable or unjust not to make an order permitting the child to see the father if she wished. We do not see how that can be the case when the only evidence before the court was that the child did not wish to see the father, even in the presence of the single expert. Accordingly, there would be no point to making such an order.
It follows that the appeal against the interim parenting orders will be dismissed.
The direction to file submissions as to costs
At the time that the interim parenting orders were made, the primary judge directed the parties to file submissions on costs. The parties did so. Notwithstanding that, he father has appealed against that direction.
The direction is not an appealable decree (Commonwealth v Mullane (1961) 106 CLR 166 at 169; Tallant & Kelsey (2016) FLC 93-742 at [21]; Meadows & Meadows (2019) FLC 93-883 at [66]). Further, it is an interlocutory procedural order and leave to appeal is therefore required. However, it emerged in the oral submissions that the father’s main complaint was the costs orders that were subsequently made against him. As we explained to the father at the hearing, the father could not use any challenge to the direction to challenge the costs orders themselves, which were not the subject of this appeal. His appeal against this order is accordingly misconceived.
The appeal will be dismissed.
COSTS
The mother seeks an order that the father pay her costs of his unsuccessful appeal in the sum of $8,943.18 being costs sought at scale in accordance with Sch 3 of the Family Law Rules 2004 (Cth).
The father indicated that he wished to rely on letters that had passed between the parties after the Notice of Appeal had been filed. Accordingly directions will be made for written submissions and the issue of costs will be dealt with in chambers on the basis of those submissions.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Watts & Austin. Associate:
Dated: 16 July 2021
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