MARRIOTT & DRAPER
[2017] FamCAFC 163
•16 August 2017
FAMILY COURT OF AUSTRALIA
| MARRIOTT & DRAPER | [2017] FamCAFC 163 |
| FAMILY LAW – APPEAL – CHILDREN –Where the father appealed a finding of unacceptable risk and supervised contact orders – Weight given to experts’ reports – Where the primary judge assessed the experts’ opinion against the whole of the evidence – Challenges to findings of risk of harm – Where the findings were open on the evidence – Weight given to the objects and principles of the Family Law Act 1975 (Cth) – Application of s 60CC considerations – No appealable error – Where the father contended other orders were open to the primary judge – No error as per House v The King (1936) 55 CLR 499 made out – Appeal dismissed – Costs ordered. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 94AAA(7) Crimes Act 1900 (NSW) s 91K(1) |
| Edwards v Noble (1971) 125 CLR 296 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 Maldera & Orbel (2014) FLC 93-602 Marsden & Winch (2013) FLC 93-560 Muldoon & Carlyle (2012) FLC 93-513 |
Wacando v The Commonwealth (1981) 148 CLR 1
| APPELLANT: | Mr Marriott |
| RESPONDENT: | Ms Draper |
| INDEPENDENT CHILDREN’S LAWYER: | Helen Volk Lawyers |
| FILE NUMBER: | WOC | 984 | of | 2013 |
| APPEAL NUMBER: | EA | 133 | of | 2016 |
| DATE DELIVERED: | 16 August 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Forrest JJ |
| HEARING DATE: | 10 August 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 July 2016 |
| LOWER COURT MNC: | [2016] FCCA 1677 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Ford |
| SOLICITOR FOR THE APPELLANT: | Williamson Isabella Lawyers & Public Notaries |
| COUNSEL FOR THE RESPONDENT: | Ms Gillies |
| SOLICITOR FOR THE RESPONDENT: | Hansons Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Anderson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Helen Volk Lawyers |
Orders
The appeal against the orders of Judge Altobelli made on 27 July 2016 is dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal, such costs to be agreed or assessed and paid within twenty-eight (28) days of agreement or assessment.
The appellant pay the Independent Children’s Lawyer’s costs of and incidental to the appeal in the sum of $4,056, such costs to be paid within twenty-eight (28) days of these orders.
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 Marriott & Draper 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 SYDNEY |
Appeal Number: EA 133 of 2016
File Number: WOC 984 of 2013
| Mr Marriott |
Appellant
and
| Ms Draper |
Respondent
and
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
This is an appeal against parenting orders made by Judge Altobelli on 27 July 2016. The appellant, Mr Marriott (“the father”) is the father of X born in 2012 (“the child”) to whom the orders relate. Ms Draper (“the mother”) is the respondent to the appeal.
The parties commenced their relationship in 2007 or 2008 and separated in March 2012, not long after the birth of the child.
The primary judge ordered that the mother have sole parental responsibility for the child, and that the child live with her. His Honour made orders that the father spend time with the child on four occasions each year for three hours, such time to be supervised by a professional agency and at such other times as the parties agree.
The father appeals those orders.
The central issue in the hearing before the primary judge concerned the father’s criminal offending. In December 2011, while the parties’ relationship was still ongoing and while they were staying with the mother’s father, the father set up a camera positioned to capture images of people showering in the bathroom. The mother’s sister and step-sister were victims of this criminal activity. It is not to be overlooked that at that time there were also children staying in the house who could have been, but it seems were not, filmed whilst naked.
On finding the camera, the mother’s family contacted the police. In April 2012 the father was arrested and charged with two counts of “film a person in a private act without consent to obtain sexual arousal or sexual gratification” pursuant to s 91K(1) of the Crimes Act 1900 (NSW). The father pleaded guilty to those offences in 2013 and was eventually sentenced to perform 250 hours of community service and placed on a good behaviour bond for a period of three years. It was a condition of the bond that he attend a sexual offenders program.
Unsurprisingly then, the father’s criminal offending, its circumstances and, most importantly, his account of that offending, were matters central to the primary judge’s decision.
The nature and context of the father’s criminal offending are reflected in the parenting orders made after separation. In March 2014 consent orders were made which provided for the father to spend time with the child, supervised by the mother, for two hours each week. Further, slightly fuller orders were made in December 2014 which provided for the father to spend time with the child each alternate weekend for two hours, such time to be supervised by the mother. In the other week, the father could spend two hours with the child provided the father arranged and paid for professional supervision. The father did not take up that opportunity, preferring apparently to see the child each alternate weekend when the time was supervised by the mother.
Before the primary judge the father sought orders for equal shared parental responsibility, and that the child live with the mother and spend time with him. The father sought that his time originally be supervised by his mother, but progress to unsupervised time within a few months. Thereafter the time with the child was to be gradually increased until six months after the child began school, at which time she would spend alternate weekends with the father, and two hours on Wednesday in the other week.
The mother and the Independent Children's Lawyer contended that the father posed an unacceptable risk of harm to the child both by reason of his sexual offending, but also because the child’s relationship with him was tenuous and he did not have sufficient capacity to assist her to develop a meaningful relationship with him.
Risk of harm
It is helpful, given the issues to be agitated on the appeal, to consider the primary judge’s reasons and conclusion on this issue.
Sexual offending
It is to be observed that the charge to which the father pleaded guilty contains as an element the obtaining of sexual arousal or sexual gratification. Nonetheless, the father maintained before the primary judge that his actions were not motivated by sexual arousal but by wanting revenge on the mother’s family who, he said, did not like him. The primary judge did not accept the father’s evidence and found that it reflected an ex post facto attempt to rationalise his conduct (at [122]).
Whether or not the father was likely to re-offend was an important issue for the primary judge. Dr D, a psychologist, provided sexual offending counselling for the father after sentence over 14 sessions between October 2013 and April 2014. He also provided five individual sessions to the father between January and June 2015.
Dr D expressed the opinion that the father presented in the low risk range for sexual re-offending based on the work he had done with the father and the father’s self-reporting to him. He further said that he did not consider the father to pose a risk to the child (at [82]).
A family consultant also provided a report to the court. The consultant,
Ms C, relying on Dr D’s opinion, said that there was nothing in the material before the court that suggested that the father was a risk to the child in respect of his risk of committing further, similar crimes (at [51]).
However, as his Honour explained, the father’s account of his offending to
Dr D was very different to that he gave in court. Equally, he did not tell Ms C of matters which, on hearing them, she said led her to re‑evaluate her findings (at [60]). Ms C also commented that she found that father’s lack of frankness “absolutely concerning” (at [67]).
Principal of these matters was the father’s concession that on hearing that the police had been informed of his covert filming, he asked the mother to take her laptop to her parents’ home, and removed a computer hard drive and computer discs from the home and took them to a friend’s house.
His Honour set out the father’s evidence under cross-examination by counsel for the mother at [136]:
… you did that so that those items would not be present in the home should the police come there looking for computer devices? --- That’s correct.
Because you didn’t want them looking at them? ---No.
I’m going to suggest to you the only feasible explanation for you reacting in that way is because there was other material held on that computer that you know – well, that you didn’t want the police to see? --- Correct, yes.
His Honour said:
137. The Father plainly agrees that the only feasible explanation for his actions was that there was other material held on that computer that he did not want the police to see. Whilst the Father is to be given credit for his honesty in making this admission, it also enhances the risks that are sought to be assessed and managed, as part of the present proceedings. The Court is left to infer that there was other material that would have exposed the Father to criminal liability, but the Court does not know whether this includes recordings of adults, minors or any other pornographic or inappropriate material. The Father could have sought to explain this in re-examination, or in some other way, but no attempt was made. In the circumstances, all the Court can do is to draw an inference adverse to the Father and to take this into account in assessing the risk to [the child].
The primary judge concluded, having found the father’s evidence to be unreliable:
142. In the circumstances, the risk of the Father re-offending with, or in the presence of [the child], simply cannot be discounted. The Mother’s concerns about the Father have a solid foundation. If he cannot be relied on as an accurate historian of past events, then neither can his representations about the future be accepted.
143. The Court finds there is an unacceptable risk of harm to [the child] if she were to spend unsupervised time with her father. The matter does go further, however, because this risk of harm also reflects on his parenting capacity, which is related to the nature of his relationship with [the child]. The Father’s belief that his time with [the child] could be unsupervised, either in the short or in the medium term, is plainly misplaced.
The child’s relationship with the father
The quality of the child’s relationship with the father and the father’s capacity to nurture the development of a meaningful relationship with the child were issues of significance in the case.
His Honour noted that the father considered his relationship with the child to be “a very close bond” (at [38]). His Honour recorded the conclusions of the family consultant, having observed the child’s interactions with the father, at [46]:
… Under these circumstances, you would usually expect to find that the child would evince considerable affection for these familiar people, even if they were not actual attachment figures. [The child’s] response to her father, however, was observed to be largely a neutral one. This suggests that there may be some issues in the manner that [the father] has responded to [the child] over time.
The family consultant’s opinion was that the father’s lack of skills in responding in a “warm and attuned” way to the child has meant that the child has not developed an attachment to him (at [50]).
His Honour found that the father’s belief as to the nature of his relationship with the child was not supported by objective observations (at [99]) and said that the father needed to recognise that his present relationship with the child is not one of attachment but of a “friend or distant family member, rather than a parent” (at [102]).
The primary judge concluded that the shortcomings in the father’s relationship with the child were attributable to him (at [104]).
His Honour ultimately concluded that the tenuous nature of the relationship between the father and the child influenced his assessment of what orders would be in the child’s best interests. His Honour said:
158. The cumulative effect of the risk of harm issues in this case, the Father’s tenuous relationship with [the child], and the real concerns that the Court has about the Father’s ability to develop the parenting skills that would be required to address the relationship issues, all would justify the sort of order proposed by the Mother and the Independent Children’s Lawyer, as being orders in [the child’s] best interests. That conclusion becomes compelling, when practical considerations are taken into account.
Thus, the primary judge concluded that the child’s best interests required that she spend time with the father on four occasions each year, that time to be supervised. His Honour said:
159.The only realistic outcome for [the child] is that if her father can pay for the supervised contact through a professional, and independent service, and in all likelihood this means a frequency of 4, or at most 6, times per year. The Court believes that it is in [the child’s] best interests that the visits be 4 times annually. This would mean that, ideally, the visits would not be more than 3 months apart from each other. As [the child] grows older, it will be easier for her to keep the memory of her father in her mind, and hopefully look forward to the fun occasions that they can spend together.
160.Even though [the child] and her father’s relationship is starting from a low base, there is some reason to be hopeful about building on that relationship in the future. The Father may well gain further insight, and seek professional assistance to develop his parenting skills, which would ultimately be to [the child’s] benefit. The 4 visits a year will, hopefully, be something that the Father is able to reasonably afford, in terms of the costs of supervision.
161.The 4 visits a year should not be too difficult a burden for the Mother to sustain. The Court accepts, it will be quite a change for [the child] to only see her father once every 3 months, instead of every 2 weeks, but the nature of their relationship at the moment is not such that would contraindicate making this a change for the longer term benefit. Doing the best the Court can, it believes an order for sole parental responsibility, that [the child] live with her mother, and spend supervised time with her father 4 times each year would be in [the child’s] best interests.
The appeal
Having considered the grounds of appeal, and being of the opinion that they raise no question of general principle, and since we are unanimously of the opinion that the appeal should be dismissed, we propose, pursuant to s 94AAA(7) of the Family Law Act 1975 (Cth) (“the Act”) to deliver reasons in short form.
At the outset of the appeal, counsel for the father refined the grounds and framed the argument around two grounds; Ground 6, in respect of which Grounds 1 to 5 were to be argued as particulars, and Ground 9 taking up Ground 7 as a particular of that challenge. Ground 10 was not pressed, nor was Ground 8.
Ground 6 contends:
The Court erred in finding that there was an unacceptable risk of harm to [the child] based on all of the evidence.
Grounds 2, 3 and 4 assert error in failing to give sufficient weight to evidence. Ground 2 relates to the evidence of Dr D and Ms C. Ground 3 concerns the evidence of the observations of the professional supervisors from the contact agency which supervised the father’s time with the child. Ground 4 contends that the primary judge erred in not accepting the recommendations of Ms C.
Turning then to the challenges to the weight attributed to parts of the evidence by the primary judge, it must be understood that the weight or importance given to evidence in a trial is a matter quintessentially within the province of the trial judge. As Stephen J stated in Gronow v Gronow (1979) 144 CLR 513 at 519:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion …
In this case, to a significant extent, the grounds and the argument proceed on a misapprehension, certainly in the case of Ground 2, that “expert opinion” occupies some special place in the pantheon of evidence.
It was argued that both Ms C and Dr D concluded that the father represented a low risk of re-offending and his Honour ought to have accepted that opinion and was in error in not accepting that evidence. In particular it was argued that Dr D’s use of the “Static-99R” matrix to determine the risk of the father’s re‑offending was persuasive and his Honour was wrong to fail to accept that evidence.
We must first observe that there is a significant difference in a risk of re‑offending and an unacceptable risk to a child. As the Full Court said in Marsden & Winch (2013) FLC 93-560:
110. The assessment of the father’s risk of reoffending and the consequences to the child and the mother of him doing so was a matter entirely for the trial judge. It is important to observe that simply because other findings of fact may also have been open on the evidence before the trial judge does not demonstrate that a finding of fact complained of was thus not open or available to his Honour. That is not the test. The test is whether the finding of fact or findings of fact material to the exercise of discretion have been shown to have not been reasonably open to the trial judge; see Edwards v Noble (1971) 125 CLR 296 at 304. It will be immediately apparent that the test thus raised is one which is not lightly or readily satisfied.
Expert opinion is just that, an opinion, and its weight falls to be determined by the trial judge in light of all of the other evidence in the case (see for example, Muldoon & Carlyle (2012) FLC 93-513).
In this case is it important to understand that while Dr D and Ms C made reports which set out their observations and opinions, those opinions form but one part of the evidence before his Honour and, as is clear in this case, in both respects the father had withheld clearly relevant information from them. At least then to that extent, the expressed opinions had to be approached with some hesitation. Indeed, Ms C, when further informed of matters withheld by the father, said: “[w]hile my recommendations are fairly cautious, I would probably now have more caution in proceeding” (at [60]). Even though Dr D was not inclined to discount his conclusions by reason of the father withholding information from him, his Honour was perfectly entitled to cast doubt on the whole of the evidence concerning the father’s re-offending by reason of that lack of frankness.
Put shortly we do not accept the foundational premise to the ground. The determination of weight to be given to expert reports is no different from that given to lay evidence. The primary judge assessed the opinions of these expert witnesses against the whole of the evidence in determining the issues and no error has been established in these grounds.
To the extent that Ground 6 challenges the factual finding as to risk of harm, challenges to the primary judge’s fact finding face a considerable hurdle to appellate intervention.
As was said in Edwards v Noble (1971) 125 CLR 296 per Barwick CJ at 304:
The question is not whether the appellate court can substitute its view of the facts which, of course, it is empowered to do: but whether it should do so. In any appeal against a finding of fact, whether or not by way of rehearing, however much the appellate court may be in an equal position with the trial judge as to the drawing of inferences, in my opinion, the appellate court ought not to reverse the findings of fact unless it is convinced that it is wrong. If that finding is a view reasonably open on the evidence, it is not enough in my opinion to warrant its reversal that the appellate court would not have been prepared on that evidence to make the same finding. Merely differing views do not establish that either view is wrong.
It cannot be rationally suggested that his Honour’s finding as to the presence of an unacceptable risk to the child was not open to him on the evidence. Lest there be any doubt, in our opinion, not only was that finding well open to him on the evidence, the force of the evidence drove that finding.
It follows that this aspect of the challenge is not supported.
Ground 1 and Ground 5 assert error in that the primary judge did not give sufficient weight to the principles and objects set out in s 60B of the Act.
Section 60B sets out the objects and principles of the Act. That section is subject to s 60CA which says:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The means by which a child’s best interests are determined are set out in
s 60CC of the Act.In our view, the father’s reliance on the principles and objects is misplaced. The role of such legislative statements was considered in Wacando v The Commonwealth (1981) 148 CLR 1. At 23, Mason J (as his Honour then was) said:
It has been said that where the enacting part of a statute is clear and unambiguous it cannot be cut down by the preamble. But this does not mean that a court cannot obtain assistance from the preamble in ascertaining the meaning of an operative provision. The particular section must be seen in its context; the statute must be read as a whole and recourse to the preamble may throw light on the statutory purpose and object. There is, however, one difficulty in seeking to restrict the generality of the operative provision by reference to a suggested restriction expressed in the preamble: it is that Parliament may intend to enact a provision which extends beyond the actual problem sought to be remedied. Recognition of this difficulty led Viscount Simonds in Attorney-General v. Prince Ernest Augustus of Hanover to say “that the context of the preamble is not to influence the meaning otherwise ascribable to the enacting part unless there is a compelling reason for it” …
(Footnote omitted)
Objects clauses, while they can be used as an aid to the construction of words in legislation, do no more than provide context to the legislative purpose. The opening words of s 60B, namely; “[t]he objects of this Part are to ensure that the best interests of children are met by…” do no more than reinforce the relationship between s 60B and s 60CC as to how the best interests are determined.
As the Full Court said in Maldera & Orbel (2014) FLC 93-602 at 79,466:
75. … Thus, in its current form, s 60B does no more than provide context, indicate the legislative intention or purpose of the Part and otherwise operate as an aid to construction of the Part and the Act. It follows that we do not agree that the current s 60B can be used to change the ordinary and clear meaning of s 60CC or that where the s 60CC deliberations do not enable the court to determine whether or not a parenting order is in a child’s best interests, s 60B may be decisive.
His Honour’s considerations of the best interests of the child were formed by reference to the s 60CC considerations in an orthodox and, in our view, entirely correct manner. Recourse to the objects and principles does not advance the father’s arguments and these challenges will fail.
Grounds 9 and 7 contend that the primary judge erred in making the orders he did providing for the child to spend time with the father. When the father’s submissions are considered in an effort to illuminate what in fact the error is said to be, it devolves to little more than a contention that other orders were open to his Honour. That is insufficient to engage appellate intervention. The principles relevant to such challenges are sufficiently well known that they should not bear repeating here, however, we do so.
This is an appeal from a discretionary judgment. Absent complaints about procedural fairness or adequacy of reasons, in order to succeed the father must establish that the primary judge acted upon a wrong principle, allowed extraneous or irrelevant matters to affect his decision, mistook the facts, failed to take into account a material consideration or reached a result that is unreasonable, unjust or plainly wrong (see House v The King (1936) 55 CLR 499).
Nothing put to us is persuasive of error of the kind referred to in House v The King. This challenge is not made out.
The appeal will thus fail.
Costs
As is customary, we sought submissions from the parties on the question of the costs of the appeal to save them the time, trouble and expense of returning to the Court to make submissions on costs once the judgment was delivered.
Both the mother and the Independent Children’s Lawyer sought that the father pay their costs in the event that the appeal failed, on the basis that the appeal had been wholly unsuccessful.
The father resisted the applications for costs on the basis of his financial circumstances, and sought to rely on two financial statements of the father, one filed on 30 September 2016 and one unfiled, but sworn on 9 August 2017. These reveal that the father has a regular weekly income, albeit that it matches his weekly expenditure, and owns a property in his sole name encumbered by a mortgage.
We are satisfied that the fact of the father being wholly unsuccessful warrants the making of a costs order. We are further satisfied that nothing in the father’s financial statements indicates that to order the father to pay the Independent Children’s Lawyer’s costs would cause the father financial hardship (s 117(4)(b)).
The Independent Children’s Lawyer indicated that they sought costs in the fixed sum of $4,056 (inclusive of GST) and costs in that amount will be ordered. Counsel for the mother was unable to quantify the party/party costs incurred and thus we will order that her costs be agreed or assessed.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Forrest JJ) delivered on 16 August 2017.
Associate:
Date: 16 August 2017
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