MASIH & EL SAEID
[2020] FamCAFC 152
•25 June 2020
FAMILY COURT OF AUSTRALIA
| MASIH & EL SAEID | [2020] FamCAFC 152 |
| FAMILY LAW – APPEAL – PARENTING – Competing applications as to children’s primary living arrangements and time – Views – Where children resist relationship with the appellant – Assessment of Risk – Children not at risk – Expert opinion as to outcome in favour of the appellant not considered – Reasons for judgment –Inadequacy of reasons – Applications to adduce further evidence dismissed – Appeal allowed – Matter remitted for rehearing – Costs certificates awarded. |
| Family Law Act 1975 (Cth) Pts VII, VIII, ss 60CC, 69ZN Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9 |
| AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 De Winter and De Winter (1979) FLC 90-605 DL v The Queen (2018) 356 ALR 197; [2018] HCA 26 House v The King (1936) 55 CLR 499; [1936] HCA 40 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 |
| APPELLANT: | Mr A Masih |
| RESPONDENT: | Ms El Saeid |
| INDEPENDENT CHILDREN’S LAWYER: | Phillip A Wilkins & Associates |
| FILE NUMBER: | SYC | 2986 | of | 2012 |
| APPEAL NUMBER: | EAA | 42 | of | 2019 |
| DATE DELIVERED: | 25 June 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan, Watts & Austin JJ |
| HEARING DATE: | 13 November 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 April 2019 |
| LOWER COURT MNC: | [2019] FamCA 234 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Duane |
| SOLICITOR FOR THE APPELLANT: | Diamond Conway Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Friedlander |
| SOLICITOR FOR THE RESPONDENT: | Sharah & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Fermanis |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Philip A Wilkins & Associates |
Orders
The Application in an Appeal filed by the respondent on 25 October 2019 is dismissed.
The Response to an Application in an Appeal filed by the appellant on 11 November 2019 is dismissed.
The appeal from the orders made on 16 April 2019 is allowed and those orders are set aside.
The proceedings are remitted to the Family Court of Australia for rehearing by a judge other than the primary judge.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to this appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the cost incurred by her in relation to this appeal.
The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of the costs incurred by the Independent Children’s Lawyer in relation to the appeal.
The Court grants to each party and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the rehearing of these proceedings.
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 Masih & El Saeid 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: EAA 42 of 2019
File Number: SYC 2986 of 2012
| Mr A Masih |
Appellant
And
| Ms El Saeid |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Ryan J
I have had the advantage of reading the reasons for judgment of the majority with which I generally agree.
The primary judge was faced with a most difficult situation. The children, who were aged 12 and eight years of age at the time of trial refused to see the appellant and, by their words and actions, they demonstrated that they would not tolerate any outcome from the proceedings other than being able to continue to live with the respondent and not be forced to see him. It was the appellant’s case that the respondent had “actively sought to undermine that relationship” (appellant’s Case Outline filed on 24 May 2018, p.8 paragraph 32) and that the only way the children could have a continuing relationship with both their parents was for them to live with him and have limited time with the respondent (and half‑sibling). The respondent denied undermining the children’s relationship with the appellant and pointed to the years during which she supported the children dividing their time equally between the parties. According to the respondent, the children’s opposition to an ongoing relationship with the appellant was driven by their lived experiences with him. She believed that the children’s views were genuine and, given their ages, it was appropriate that they be respected. Thus, she supported the children spending time with the appellant but only if this is what they wanted.
The children were nearly six and three years of age when their parents separated. It appears uncontroversial that prior to separation, the respondent was primarily responsible for the children’s care and that at separation the children had loving relationships with both their parents. Upon separation the respondent and children remained in the family home and the appellant moved out. Within weeks, the appellant commenced parenting proceedings which resulted in the parties’ agreement, pending further order, to divide the children’s time almost equally between them. The agreed arrangement saw the children live with the appellant from Sunday morning until Wednesday at 8.00 pm when they were returned to the respondent and where they remained until the following Sunday morning and so on.
The appellant has always maintained that “an equal parenting regime is the optimal outcome for the children” (appellant’s Case Outline filed on 24 May 2018, p.8 paragraph 34) and the interim orders reflect his deeply held conviction about the best arrangement for the children. The agreement also reflected the parties’ desire to facilitate and encourage the children’s relationship with their other parent [127]. It is not clear why the proceedings took as long as they did to come to trial and it is unlikely that the parties contemplated in 2012 that those interim arrangements would still be in place six years later. In any event, between September 2012 and April 2017, the parties complied with the interim orders and few complaints were made about the children’s care. The children attended school regularly and were doing well academically. They had good social and family relationships.
The first sign that there may be difficulties with the children’s living arrangements occurred in August 2016. Both children became very upset at school and told school staff they did not want to go home with the appellant. This resulted in a notification to the then Department of Family and Community Services (“FACS”) and, notwithstanding the children’s upset, they went home with the appellant. The following day the children told FACS they wanted to live with the appellant and the elder child explained that he was very tired of living between two places [42]. FACS officers noted the children’s dilemma [43] and, after they spoke with the respondent, it would seem they had no concerns for the children and no further action was taken.
Notwithstanding what the elder child said against living between two places, the parents continued that arrangement until, the children having spent Easter 2017 with the appellant, they refused to see him any further. From then until the trial they spent three days with him, including on 5 June 2017 and an additional two days from 23 June 2017. On neither occasion did the children go willingly. The first occasion required police intervention [52] and the second occasion required prolonged intervention by a family consultant [55].
A vast array of strategies were then utilised in an attempt to re-establish contact between the children and the appellant, without success. These comprised:
·active police involvement [56]–[57];
·the appellant attending the respondent’s home and trying to persuade the children to leave with him [58] and [63];
·the appellant attending the children’s school and attempting to persuade them to leave with him [67];
·the use of a third party known to the children to facilitate changeover [60];
·engagement of a mental health professional and development of a mental health plan for the children [69]; and
·engagement of a clinical psychologist for family therapy [72].
Orders were also made for changeover to take place at a contact centre, however the contact centre did not agree to facilitate changeovers [66].
The children’s meeting with the appellant with Dr AD, who is a child and family psychiatrist (“the single expert”) in 2018 was similarly unsuccessful. The elder child cried in distress [87] and both children refused to engage with the appellant [86]. By comparison, the single expert observed joyful and warm interactions between the children, the respondent and their half‑sibling.
The primary judge did not find, as the appellant said he would, that the respondent sought to alienate the children from him. The respondent’s case that the children were at risk of physical and emotional harm by the appellant was also rejected. Having rejected these risk factors, the conundrum is obvious. As to the future, his Honour determined:
174.… The children would benefit from having both parents in their lives and what they need/can get from those relationships will change over time. However, I am not prepared to sanction the loss of one of those relationships and the parties’ proposals run that risk.
The appellant’s inability “to win the [children] over since April 2017” weighed heavily against the orders he sought and as proposed by the Independent Children’s Lawyer (“the ICL”) [172] as did the loss of “the close and loving connection the [children] have with the [respondent]” [173]. Thus, the children would remain with the respondent and have substantial and significant time with the appellant. Orders were made for the children (but not the parties) to attend therapy, presumably so that the therapist could persuade the children that they should cooperate with the orders. The assumption being that this could be achieved without any improvement in the hostile parental relationship or bridging the gap between totally different parenting styles. It asked a lot of the therapist and the children and is a fragile scaffolding for a different outcome to earlier therapeutic intention which failed to achieve an improvement in the children’s relationship with the appellant.
The single expert gave evidence that “the best model for any individuals’ behaviour under certain circumstances is how they would behave if placed in the same circumstances again” and, that if the children were “placed in a similar situation they would behave in the same manner again” (Transcript 31 May 2018, p.969 lines 24–28). This evidence was unchallenged and worthy of weight. It seems to have been overlooked but even so, with history as a guide, the primary judge needed to explain the basis upon which it was considered that for so long as the children lived with the respondent, it was safe to proceed on the basis that they would have any contact or a relationship with the appellant. This is not to attribute blame to the respondent for the breakdown in the children’s relationship with the appellant, but to highlight the inconsistency between maintaining the status quo and postulating an entirely different outcome qua the children’s relationship with the appellant.
The conclusion that it was in the best interests of the children to remain in the respondent’s primary care and, to at least notionally, have substantial and significant time with the appellant, is a comparative conclusion made after weighing the evidence. His Honour’s reasons do not demonstrate the basis upon which he was satisfied that the children would have both parents significantly involved in their lives and is a failure in the reasoning process (Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267).
Furthermore, I agree with the majority that the weight of expert opinion was against the orders made. Yet, the single expert’s opinion as to the ultimate outcome went unremarked in the trial reasons and forms no part of the primary judge’s determination of the ultimate issue. The failure to address this evidence and to then explain why it was or was not accepted and to then weigh it along with other relevant facts is an error in fact finding and the process of reasoning sufficient to establish error (House v The King (1936) 55 CLR 499 at 505).
The orders must be set aside and the proceedings remitted for rehearing. The idea that these children will be embroiled in further litigation is very troubling. Litigation is highly stressful for children and their parents, particularly when the proceedings are about the children. In 2016, FACS officers entreated “that one of the parents needed to ‘be an adult’ and focus on the well-being of the children and put the children’s needs first” [43]. These were wise words and for the children, the great pity is they went unheeded. It is hoped that the parties will decide to put the children’s needs first and if they do so, that the children can be spared the stress of the remitted rehearing.
Finally, the discussion at [144] of the trial reasons cannot be allowed to pass unremarked. There can be no doubt that parties to family law litigation may permissibly face questions which are personal, perhaps embarrassing and of a nature not often seen in ordinary civil litigation. However, there are limits. Here cross‑examination was used to question the respondent about her sexual life following separation. This had nothing to do with her parenting capacity. It is inconceivable that in a jurisdiction focused on the well-being of children, counsel considered that questions of this nature were appropriate. Cross‑examination in parenting proceedings is not an opportunity to indiscriminately pry into the lives of parents or to humiliate them. It should be informed by the principles for conducting child related proceedings contained in s 69ZN of the Family Law Act 1975 (Cth) and must, like all questions, be relevant to a fact in issue. Measured against these principles, the questions to which the respondent was subjected failed in every respect. They should not have been asked and having been asked, they should have been disallowed.
Watts & Austin JJ
Introduction
Mr A Masih (“the appellant”) and Ms El Saeid (“the respondent”) are the parents of two children who are currently 14 and 11 years of age (“the children”).
On 16 April 2019, a judge of the Family Court of Australia made orders between the parties under Part VII of the Family Law Act 1975 (Cth) (“the Act”) providing for the children to continue living with the respondent and to spend substantial and significant time with the appellant. Those orders are challenged by the appellant to which his appeal enjoyed the support of the Independent Children’s Lawyer (“the ICL”).
It was common ground at the trial that the children were alienated from the appellant. He and the ICL both contended such alienation was caused by the respondent, which she denied. The appellant and the ICL both proposed that the children live with the appellant and their proposals were, ultimately, supported by Dr AD (“the single expert”).
The appellant’s complaint in the appeal, in the main, is that the primary judge paid insufficient heed to the single expert’s evidence and gave insufficient reasons for the appealed orders. For the reasons which follow, the appeal succeeds.
The appellant’s initial position was that, if the appeal succeeds, this Court should re-exercise discretion and make a very detailed set of parenting orders in his favour to substitute those made by the primary judge. However, at the commencement of the appeal hearing, the appellant instead proposed that the proceedings be remitted for re-hearing if the appeal succeeds, which we regard as appropriate when the trial before the primary judge concluded more than two years ago.
In circumstances where this Court would not be asked to re-exercise discretion, the parties respectively withdrew their pending interlocutory applications to adduce further evidence. Those applications will be formally dismissed.
Background
The parties married in 2005 and ceased living in the same household in 2012, when the appellant vacated the family home. There was a factual dispute about whether their marriage effectively ended before that in 2010, but the primary judge did not determine that dispute. It did not matter.
The appellant commenced proceedings in 2012.
Interim consent orders were made in respect of the children in September 2012, providing for the parties to have equal shared parental responsibility for the children and for the children to effectively live with the parties for equal time.
The parties’ allied property dispute under Part VIII of the Act took a much more tortuous course, but the interim parenting regime was relatively stable. It continued undisturbed for well over four years until 2017, though it began to show signs of strain in 2016. The primary judge found the eldest child said “it was very tiring living between two places” (at [42]). In August 2016, the children made inconsistent statements to staff members of the child welfare authority about their preference for residence with the parties (at [41]–[43]).
The respondent bore a child to Mr P in December 2016 and the primary judge found that, by April 2017, there were “significant problems” concerning the children’s partial residence with the appellant (at [47]). The point was finally reached where the children refused to go with the appellant and he then filed an application for further interim parenting orders, resisted by the respondent.
The period between April 2017 and June 2017 was chaotic. The police were summoned to quell disputes over the children and the Court made numerous injunctions and recovery orders, but the underlying long-standing arrangement of equal time was not disturbed, even though by then it was not being faithfully implemented. Interim orders were made in July 2017 for the children to instead be exchanged at a contact centre, but the contact centre declined its involvement (at [48]–[66]). The children then ceased seeing the appellant altogether.
In August 2017, the children made allegations of their physical abuse by the appellant (at [67]–[69]) and, pursuant to more interim orders made at around that time, the children were taken to a clinical psychologist for the purpose of addressing the breakdown in the children’s relationships with the appellant (at [64] and [71]). The psychologist found the children were unwilling to see the appellant and, to avoid them suffering further stress, ultimately recommended in January 2018 that they not be forced by court order to see the appellant until the situation was reviewed by the single expert (at [74]).
The single expert conferred with the family and compiled his report in March 2018 (at [77]). In their interviews with the single expert, the children were grossly critical of the appellant (at [83]–[87]).
The final hearing of the parenting dispute between the parties was heard over five days in late May and early June 2018.
During the hearing, the appellant sought orders for the children to reside with him and to spend no time with the respondent for approximately six weeks, so they could settle in his care. He proposed that the children then begin spending increasing periods of time with the respondent, culminating, if the orders were complied with, in alternate weekends and half of school holidays (at [4], [9], [94]). The ICL supported the appellant’s application (at [11], [97]).
On the other hand, the respondent sought orders for the children to reside with her and to spend time with the appellant, but only if the children were “comfortable” doing so and only if the visits were supervised (at [4], [10], [95]). Given the recent history, the probable effect of orders made in those terms would be the children’s continuing rejection of the appellant and an absence of personal contact between them, as the primary judge recognised (at [135]–[136]).
The appealed orders were pronounced in April 2019. They provided for the children to continue living with the respondent and, via a graduated escalation, to spend substantial and significant time with the appellant. The respondent was vested with sole parental responsibility for the children.
The essential reasoning behind the decision to order that the children’s primary residence be with the respondent, despite the asserted risk of her alienation of the children from the appellant, was expressed in these terms:
131.In the context of these proceedings, this is a very important criterion. The orders proposed by the [appellant] would greatly interfere with what have been very close relationships between the [children], their primary care giver and their [younger half-sibling]. Under those proposed orders there would be no time or communication for a period of six weeks after the orders were made and thereafter greatly reduced time compared to the uninterrupted access they have had to the [respondent] throughout their lives. [The single expert] predicted that in those circumstances, the [children] would initially react in a distressed and oppositional manner. Their experience of the loss of daily contact with [the respondent] will be amplified by their separation from their [younger half-sibling]. Such interference would also occur if the orders proposed by the ICL were imposed.
…
134.I am concerned that harm will be done to the [children] by the loss of all contact with their primary care giver, even for only six weeks and that the [appellant] will not able to adequately provide what they need by way of parenting.
…
173.I am concerned that harm will be done to the [children] by removing them from [the respondent] and that the [appellant] will not be able to take up the parenting load. I am also concerned that the close and loving connection the [children] have with [the respondent] will be denied to them and that despite loving them and being able to provide for their physical needs, the [appellant] will not be able to provide enough of what the [respondent] gives the [children] as their primary care giver. That could leave the [children] in a very vulnerable and unsatisfactory position.
The appeal
The appeal was initiated by the Notice of Appeal filed on 13 May 2019, which contained 27 grounds of appeal, but the grounds were refined to only four in the appellant’s Summary of Argument.
Ground 1
This ground alleged the primary judge erred by failing to consider the oral evidence of the single expert or the recommendations in the single expert’s report.
The single expert’s evidence-in-chief was contained within his report dated 28 March 2018. It was based upon interviews with the parties and the children earlier that month, together with telephone interviews conducted with the children’s school principal, the eldest child’s clinical psychologist, and another psychologist who had limited contact with the family. The single expert was then cross-examined at length during the trial. The appellant submits, and we agree, that the evidence of the single expert was important because it went to the heart of the dispute about the reasons behind the children’s staunch resistance to the appellant.
The single expert made the following even-handed recommendations in his report:
228.Should the Court accept that the account of the [respondent] and the children is factual, despite the many inconsistencies identified in both their current presentation and in the documentation perused, I would recommend that the children remain in the [respondent’s] care, with sole parental responsibility and no Orders for contact with [the appellant].
229.Should the Court find that the [appellant’s] account is substantively factual as supported by the documentation perused and the findings of this assessment, I would respectfully recommend to the Court the following:
1.Sole parental responsibility to the [appellant].
2.Transfer of the children’s residence to the [appellant].
3.Weekly supervised contact with [the respondent] and younger [half-sibling].
4.An undertaking by all parties to desist from denigration or criticism of the other parent and their extended family.
5.Attendance at a single general practice.
6. Maintenance of the children’s current schooling and extracurricular activities.
(As the per the original)
Clearly enough, the single expert made alternate recommendations, depending upon the ultimate factual findings of the primary judge. But the single expert’s views were explored in more depth during his cross-examination and his opinion firmed up considerably in favour of the appellant.
When asked about the extra material with which he had been furnished after compiling his report and before presenting for cross-examination, the single expert said:
[COUNSEL FOR THE ICL]: And as a consequence of your review, do you wish to make any addition or take anything from your report or otherwise make any change?
[THE SINGLE EXPERT]: … [T]he comment that I would make is that the additional material to my mind provided a great deal of additional detail and supporting documentation for the [appellant’s] case. He – in the additional documentation there is a huge amount of additional cross-referencing and evidence to support the [appellant’s] assertion of the chain of events, the behaviour of the various parties, and in particular the children’s experience…
(Transcript 31 May 2018, p.967 line 45 to p.968 line 4)
When answering questions by the ICL, the single expert gave the following evidence :
… Under those circumstances, it is likely that [the children] will both settle down in the context of the established transfer of care…
(Transcript 31 May 2018, p.969 lines 39–41)
… I am very concerned about the children’s exposure to the enduring parental conflict, the children’s exposure to the various allegations, their inclusion previously by the [appellant] when they were reporting [the respondent’s] misdemeanours, or now, in the current circumstances, where they have been, in my view, enlisted by the [respondent] to represent aspects of their experience, such as issues around, you know, there being no utilities at the family home, there being no electricity and gas and hot water and so on over an extended period of time where I think it’s highly unlikely that that was the case – certainly, the [appellant] provides significant data to support his view that that was a misrepresentation – and other aspects of their experience, such as their changing statements about Mr [P]. I am very concerned about the nature of the children’s experience. If the children have contact with [the respondent], it is likely that they will be – their opposition to [the appellant] will be reignited, and if there is to be a successful transition into [the appellant’s] care, it is likely that that will require a period of suspension of contact from [the respondent]. It would be my view that that should – should not be for an extended duration. A period of time of six weeks should – should suffice to establish the new environment with [the appellant] before the establishment of weekly supervised contact as identified in paragraph 229 of my recommendations, should the – the children’s care be transferred to [the appellant].
(Transcript 31 May 2018, p.970 lines 8–26)
Given the single expert’s apparent inclination to favouritism for the appellant’s proposal, the primary judge sought clarification as to how long the children’s time with the respondent should then be supervised, as this excerpt of the transcript reveals:
[HIS HONOUR]: You wouldn’t have a situation where it went on indefinitely?
[THE SINGLE EXPERT]: ---That is correct, your Honour, and certainly I would see that that would be how things would progress in the context of the [appellant’s] proposal. What concerns me about the [respondent’s] proposal for the [appellant] to – for the children to have no time with [the appellant] is that the [appellant] provides for the [children] a model of, as I was saying previously, application and application in a responsible manner to academic studies, respecting the – the teaching staff, application to sporting and extracurricular activities, application in a more broader sense to becoming a – a upstanding citizen in – first of all, in school, secondly, within the sporting and broader community, maintaining their connection with their established [faith] and – and within the extended community – family community…
… [The principal at the children’s school] had observed [the eldest child] to have a decline in his – in his engagement at school, a decline in his academic performance, a decline in his respect for the educational staff at the school, to have a increase in – a reduction in his capacity for resilience and – and to be hyper-reactive to any form of feedback and criticism…
… Thus, my concern is that in the context of the [respondent’s] proposal, that not only will the children experience a loss of contact with the [appellant] and the [appellant’s] extended family and community and the structure that they offer to these two young men, and I think the issue of them going into adolescence is significant…
… It is, in my view, unlikely that if [the eldest child] is provided with the environment that [the respondent] is likely to provide him with, that he would become less focused on his studies and less likely to achieve his academic and social potential under such circumstances.
(Transcript 31 May 2018, p.972 line 25 to p.973 line 7)
The single expert then went on to say:
… The model that [the children] would be provided with is that men have no responsibility, play no role in the lives of children, and they will have lost [the appellant]…
(Transcript 31 May 2018, p.974 lines 30–32)
… Considering, then, the pathway forward, I think that the [appellant’s] proposal provides less risk to the children moving forward, and the reason for that is as follows – first of all, I think that the [appellant’s] proposal will provide the children with a more stable environment in which their developmental needs as they go into adolescence will be met. It is more likely that they will consistently attend school, sporting, extracurricular activities, and to participate in a more consistent manner within the – within their community. And under those circumstances, it will not just be within the [appellant’s] home but within the broader community that they will be likely to rise to the challenge. The school principal used the term resilience, and I think that that is a key issue. I think the children are likely to become more resilient in the care of [the appellant], in the context of them being provided with a stable environment with the [appellant]…
(Transcript 31 May 2018, p.975 lines 27–38)
… I think the [respondent] is likely to struggle in providing effective management and effective guidance for the [children] as they go into adolescence… And the concern that I have with regard to the [respondent’s] care of the children is that it is very high on care and very low on control. And one could argue that the problem with the [appellant’s] environment is that it’s very high on control and lower on care.
(Transcript 31 May 2018, p.976 lines 23–32)
The single expert was then asked for his view about the appellant’s ability to primarily care for the children in these terms:
[COUNSEL FOR THE ICL]: Have you taken into account any risk that may flow to the children as a consequence of being with [the appellant] in circumstances where his capacity to care for the children solely for an extended period of time is untested?
[THE SINGLE EXPERT]: I think the – it is – it is an important question that it is untested, his capacity to care for the [children] on his own. I did form the view that he had – was – would have the capacity to do so. However, I do acknowledge that that is a question as the [appellant’s] - - -
HIS HONOUR: Didn’t he have half time for five years?
[THE SINGLE EXPERT]: He – he did have – he did have significant and substantive contact. He is very well supported by family, by friends, by members of his local community. His – his brother in particular, who is a GP, he and his family have offered to provide support. So I think it is unlikely that that will be problematic. And certainly there was – there was nothing to suggest that the [appellant] lacked the capacity to do so.
(Transcript 31 May 2018, p.980 line 41 to p.981 line 6)
The single expert was asked about his recommendations not being in accordance with the expressed views of the children and he gave the following evidence:
[COUNSEL FOR THE ICL]: Do you see that there would be any consequence, an adverse consequence for the children if out of these proceedings their wishes were not honoured?
[THE SINGLE EXPERT]: ---There are always difficulties when children’s wishes are not honoured. It is challenging for children to have the experience of not being heard and not being respected. We live in a society which prioritises the importance of children being heard and validated with regard to their emotional experience. If the children’s experience is broadly factual, as stated, it would be particularly problematic for the children to be not heard and not respected. Children will commonly complain these days, and when I say “these days”, I mean in the context of the current social milieu about their experience in views not being respected. And one could anticipate, under those circumstances, that the children would feel frustrated and angry with regard to the court, with regard to society, with regard to the [appellant], with regard to the extended community who they have seen supporting [the appellant], and – and indeed, with professionals such as myself because they have not been respected. And so if, however, they come to realise that actually what they had been espousing was a part of the truth but not the whole truth of their experience, they may feel a sense of relief that it is not their decision because they are still children.
(Transcript 31 May 2018, p.985 line 36 to p.986 line 5)
As will be apparent from that evidence, the single expert tended to favour orders in the nature of those proposed by both the appellant and the ICL. We accept the submission that the primary judge failed to properly engage with the single expert’s evidence.
The primary judge referred extensively to parts of the single expert report (at [75]–[88], [105]–[108], [115], [118]–[119], [122]–[124], [163]) and also to some excerpts of the single expert’s oral evidence (at [109], [116], [131]–[132], [150], [154]) but, as the appellant submitted, made no significant findings in relation to acceptance or rejection of such evidence. It is not implicit from the reasons for judgment that the recitation of such evidence amounted to an acceptance of it.
Relevantly, the primary judge only found that the evidence overall was generally consistent with the single expert’s expressed views that the appellant’s parenting strength was in his control of the children rather than in his care for the children (at [154]) and there was no independent, reliable evidence of the appellant having physically assaulted the children (at [163]).
The central feature of the case was the children’s alienation from the appellant and what orders should be made in response thereto, given the accepted importance of both parties’ meaningful involvement in the children’s lives. There is no reference in the reasons for judgment to the single expert’s evidence as to how the problem of the children’s alienation from the appellant should be best addressed. Given the single expert’s evidence was not rejected, either in whole or in part, his opinions were liable to be persuasive. He was the only witness capable of giving expert insight into the cause, effect and remedy of the problem.
Self-evidently, parenting cases are not decided by the simple and unconditional acceptance of opinions expressed and recommendations made by a single expert, but if orders are made in significantly different terms from those suggested by a single expert, at the very least, the reasons for judgment should explain why. That did not occur in this instance.
The reasons for judgment do not reveal the primary judge’s consideration of the overall tenor of the single expert’s opinions and recommendations. That constitutes a failure to take into account material considerations, thereby causing the exercise of discretion to miscarry, in which event Ground 1 succeeds.
Ground 2
This ground alleged the primary judge erred in finding that “the orders had been adhered to for [four] years” and that the children “had not seen the [appellant] in nearly [three] years” (appellant’s Summary of Argument filed 26 September 2019, p.4).
The primary judge found (at [120]) that the arrangements for the children imposed by the interim orders made in 2012 remained in place and were adhered to for four years. The appellant alleged the mistake was finding the orders were complied with for four years instead of for “nearly [five] years” (appellant’s Summary of Argument filed 26 September 2019, paragraph 1.25). Clearly, the primary judge was counting full years, but to the extent that the difference of a year can be properly considered factual mistake, we reject it as being immaterial, particularly when the primary judge elsewhere referred to the implementation of the shared care arrangements for “five years” after the parties separated (at [162]).
The primary judge found (at [187]) that the children had been denied regular and substantial time with the appellant “for nearly three years”. The appellant alleged the mistake was finding the denial lasted nearly three years instead of “at most [two] years” (appellant’s Summary of Argument filed 26 September 2019, paragraph 1.26). Again, assuming the difference between the approximated and actual time frame is properly regarded as a factual mistake, we reject it as being immaterial.
We reject the proposition that either of those findings “must undoubtedly have coloured” the primary judge’s determination of the orders best suited to the children’s needs (appellant’s Summary of Argument filed 26 September 2019, paragraph 1.26). It was a bare assertion, the substance of which was not shown. In order to warrant the disturbance of a discretionary decision, any proven error of fact must be material to the outcome (AMS v AIF (1999) 199 CLR 160 at 211), and these were not. Ground 2 is dismissed.
Ground 3
This ground alleged the primary judge erred by failing to give sufficient reasons as to how the appealed orders would restore the children’s relationships with the appellant.
The primary judge was clearly of the view that the respondent’s proposal to severely restrict the appellant’s engagement in the children’s lives was not in their best interests. His Honour found her proposal to be inappropriate because it offered no guarantee and little hope of the restoration of the children’s relationships with the appellant (at [136], [138]). His Honour said:
168.The important aim is to attempt to restore a situation whereby the [children] can have a fulfilling relationship with each of their parents. At the date of the hearing that had not been possible for more than 12 months and the [children] are of an age at which they may be increasingly more difficult to influence.
Given the uncontested findings of the primary judge to the effect that the children have meaningful relationships with the appellant and derive benefit from it (at [103], [174]), the children have been exposed to neglect in the respondent’s care (at [110]), nothing done by the appellant could explain the children’s strongly expressed views against him (at [116], [142]), the respondent’s proposal offered little hope of any restoration of the children’s relationships with the appellant (at [136]), the children would suffer significant harm if denied relationships with the appellant (at [136]), and it is likely the respondent has not fully supported the children’s relationships with the appellant (at [142]), the orders made by the primary judge appear to be an exercise in hope rather the experience of compliance.
The primary judge does not explain how the findings set out above are to be weighed against the countervailing considerations of the adverse effect upon the children of their removal from the respondent’s primary care (at [131], [134], [173]) and the appellant’s lack of insight (at [149]).
The primary judge’s explicit concern about the harm the children might suffer by removal from the respondent’s primary care and whether the appellant had the capacity to take up the parenting load (at [173]) were, first, posited by his Honour only as “concerns” rather than as positive findings, and secondly, were not apparently concerns shared by the single expert. If the primary judge harboured such concerns, despite the single expert’s contrary evidence, then one would expect the reasons for judgment to explain why. But they do not.
Since the respondent had demonstrated her inability to implement an “equal time” residential arrangement for the children over the preceding period of about two years, the reasons for judgment provide no answer to the question of how she would be able to instead comply with orders requiring her to immediately restore the children’s visits with the appellant, and furthermore, to ensure that after an introductory period of two months the children spend substantial and significant time with the appellant.
Reasons for judgment must refer to relevant evidence, state the primary judge’s findings upon material questions of fact and provide an explanation for the findings and the ultimate conclusions reached (DL v The Queen (2018) 356 ALR 197 at [130]). That obligation was not satisfactorily discharged in this instance. The appellant is left wondering how his case about the respondent’s alienation of the children, supported in large measure by the single expert’s evidence, was understood and squarely addressed by the primary judge (Bennett and Bennett (1991) FLC 92-191 at 78,266; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [59]). Consequently, Ground 3 succeeds.
Ground 4
This ground alleged the primary judge erred by failing to give reasons for the appealed orders, failed to make findings of fact in relation to material considerations prescribed by s 60CC of the Act, or alternatively made findings of fact which were not available on the evidence.
The first aspect of this ground has been adequately covered in the discussion of Ground 3 and no more need be said about the lack of reasons.
As to the asserted factual errors relevant to s 60CC of the Act, the appellant identified several, but to illustrate the merit of this ground it is only necessary to advert to two: the first being a mistaken finding and the second being a failure to make a finding when one was required.
At [132], the primary judge said:
[The single expert] notes that if the [appellant] and the school principal are correct, the [children] have the capacity to adapt to such a change. [The single expert] does not offer that opinion himself and the views of the [appellant] and the school principal do not have the same weight as those of the single expert on such a critical issue…
That was wrong and the respondent was impelled to admit the error in the appeal.
In fact, the single expert gave evidence which corroborated that of the appellant and the school principal. The single expert said in his report:
206.It is predictable that [the children] will initially react in a distressed and oppositional manner should there be a transfer of care to [the appellant]. Their experience of loss on the discontinuation of daily contact with [the respondent] will be amplified by the separation from their [younger half-sibling]… That said, given their rapid adjustment when twice returned to his care, as reported by the [appellant] and school principal, they have the capacity to adapt to such circumstances. The [appellant’s] approach to parenting will result in a more optimal developmental outcome for the children given his balanced approach to care and control, academic and extracurricular activities. This was consistent with the observations of the school principal. Both [children] were identified to be conscientious and compliant students. Should the [children’s] account be factual, namely that they had been subjected to repeated physical violence and emotional abuse in his care, there is the potential for further escalation of behavioural problems. Use of corporeal punishment in such circumstances will undermine their reengagement with [the appellant]. Should it be held by the Court that the [respondent] had been acting in a manipulative manner as alleged by the [appellant], the [children’s] moral reasoning and personality development will be assisted by more limited exposure to such behavior.
Then, in cross-examination at trial, the single expert said this in respect of a question about the appellant’s capacity to help the children adapt to a change of residence:
[COUNSEL FOR THE ICL]: Have you taken into account any risk that may flow to the children as a consequence of being with [the appellant] in circumstances where his capacity to care for the children solely for an extended period of time is untested?
[THE SINGLE EXPERT]: ---I think the – it is – it is an important question that it is untested, his capacity to care for the [children] on his own. I did form the view that he has – was – would have the capacity to do so.
(Transcript 31 May 2018, p.980 lines 41–45)
That evidence was entirely consistent with what the single expert was told by the children’s school principal in relation to the children’s temporary restoration to the appellant’s care by the police in 2017. The single expert reported the school principal told him:
169.… Both [children] acted in a normal manner. When she asked them if they were OK, they informed her that everything was fine. There was no evidence of the traumatic response observed the previous day. They participated in school in a normal manner. Similarly, at the end of the school day, they returned to [the appellant’s] care without concern. She viewed this as highly unusual.
The primary judge’s error played into his Honour’s findings under s 60CC(3)(d) of the Act with respect to the likely effect upon the children of any changes in their circumstances. The primary judge described this statutory consideration as “a very important criterion” (at [131]), so the mistake about the nature of the single expert’s evidence on the topic was influential. It certainly could not be passed off as a factual mistake which had no bearing upon the result (De Winter and De Winter (1979) FLC 90-605).
Under s 60CC(3)(a) of the Act, the primary judge addressed the children’s views. His Honour correctly recorded it was common ground the children had expressed their wish not to spend any time with the appellant and went on to outline some of the factual background to that situation, including observations made by the single expert (at [112]–[115]).
The single expert said there was no doubt the eldest child’s adverse views of the appellant had been strongly influenced by the respondent and he did not regard the eldest child’s threat of suicide if forced to see the appellant as being credible. The single expert opined the youngest child was being strongly influenced by both the respondent and the eldest child. The single expert concluded that “limited weight” should be given to their views.
Consequently, the primary judge had clear evidence of what views had been expressed by each child and clear opinion evidence from the single expert that limited weight should be given to their views.
Section 60CC(3)(a) of the Act required the primary judge to take into account:
… [A]ny views expressed by the [children] and any factors (such as the [children’s] maturity or level of understanding) that the court thinks are relevant to the weight it should give to the [children’s] views.
Notwithstanding that injunction, the primary judge only observed that great care must be taken when not acting upon the strongly expressed wishes of a mature child (at [116]). His Honour noted the children’s adverse views of the appellant and observed such views were not objectively justified by any act or omission of the appellant. His Honour did not say what weight would be attributed to the children’s views, nor what weight should be given to the single expert’s opinion that the children’s views should carry “limited weight”.
There is merit in Ground 4.
Conclusion and costs
The appeal succeeds on Grounds 1, 3 and 4.
The primary judge’s orders will be set aside and the parenting proceedings will be remitted for rehearing.
In the event the appeal was successful for one or more errors of law, each party and the ICL sought costs certificates for the appeal and for the rehearing. The ICL is not an employee of New South Wales Legal Aid and so is not disentitled to such certificates. The appeal has succeeded on points of law and fact, and we are satisfied it is appropriate to grant costs certificates to the parties and the ICL in respect of the appeal and the rehearing pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth).
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Watts & Austin JJ) delivered on 25 June 2020.
Associate:
Date: 25 June 2020
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