MERRITT & MERRITT
[2018] FamCAFC 88
•10 May 2018
FAMILY COURT OF AUSTRALIA
| MERRITT & MERRITT | [2018] FamCAFC 88 |
| FAMILY LAW – APPEAL – CHILD ABUSE – Unacceptable risk of sexual assault and emotional harm – Findings of fact – Adequacy of reasons – Appeal allowed. FAMILY LAW – APPEAL – COSTS – Application for costs dismissed – Costs certificates issued pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| APPELLANT: | Mr Merritt |
| RESPONDENT: | Ms Merritt |
| INDEPENDENT CHILDREN’S LAWYER: | Jennifer Boulton Solicitor |
| FILE NUMBER: | BRC | 7783 | of | 2013 |
| APPEAL NUMBER: | NA | 53 | of | 2017 |
| DATE DELIVERED: | 10 May 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Pascoe CJ, Ryan & Aldridge JJ |
| HEARING DATE: | 3 May 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 September 2017 |
| LOWER COURT MNC: | [2017] FamCA 694 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Galloway and Ms McLennan |
| SOLICITOR FOR THE APPELLANT: | ALF Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Downes |
| SOLICITOR FOR THE RESPONDENT: | Hogan Stanton Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Cameron |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Jennifer Boulton Solicitor |
Orders dated 3 may 2018:
The appeal is allowed.
The orders made by Forrest J on 12 September 2017 are set aside.
The matter is remitted to the Family Court of Australia for rehearing by a judge other than Forrest J.
pending further order it is ordered:
The respondent mother shall have sole parental responsibility for the children E born … June 2007 and D born … August 2009.
The children live with the mother.
Orders dated 10 May 2018:
The application by the father for costs against the mother is dismissed.
The Court grants to the appellant father 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 father in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (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 mother in respect of the costs incurred by her in relation to the 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 her in relation to the appeal.
The Court grants to the appellant, the respondent and the Independent Children’s Lawyer costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the appellant, the respondent and the Independent Children’s Lawyer in respect of the costs incurred by them in relation to the rehearing.
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 Merritt & Merritt 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: NA 53 of 2017
File Number: BRC 7783 of 2013
| Mr Merritt |
Appellant
And
| Ms Merritt |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed 10 October 2017, Mr Merritt (“the father”) appealed a suite of parenting orders made by Forrest J on 12 September 2017. The father and Ms Merritt (“the mother”) have two children together, E, who was born in 2007 and D, who was born in 2009 (“the children”). The effect of the orders is to give the mother sole parental responsibility for the children, for them to live with her and for the children to not spend any time or communicate with the father other than as arranged by the mother.
It was the mother’s case that the father had sexually abused D. As a consequence, she refused to facilitate contact between the children and the father and successfully opposed applications by him to do so. In practical terms, the effect of his Honour’s orders was to exclude the father from the children’s lives.
The primary judge was satisfied “that it is more likely than not that the father did perpetrate abuse of [D]” [173]; see also [176]. The effect of this finding was that unsupervised time was found to involve an unacceptable risk to D of being sexually abused and for E of emotional harm [178], [183]. Any advantages of long term supervised time between the children and the father were outweighed by the emotional distress this would cause them [195].
Self-evidently the appeal was of real consequence to the children and the parties. Of the 11 grounds of appeal prosecuted in support of the challenge to the judgment, before us the focus was very much on grounds 3 and 4 and his Honour’s findings concerning risk of sexual assault. After oral addresses by counsel for the father and counsel for the mother were completed, counsel for the Independent Children’s Lawyer (“ICL”) was granted a short adjournment to consider whether the ICL would maintain her position that the appeal should be dismissed.
In the event, counsel for the ICL submitted that the decision of the primary judge could not stand. Having said everything that could possibly be said against the appeal, counsel for the mother also conceded that many of the arguments advanced by counsel for the father had been made out and the judgment could not stand. We agreed, and so as to progress the remitted rehearing as quickly as possible, ordered that the appeal be allowed and the orders of the primary judge set aside. It was agreed that by way of interim order, the mother should continue to have sole parental responsibility for major long term issues concerning the children and the children continue to live with her. Those orders were made as well.
Did the primary judge err?
By way of explanation, we agree with the father that his Honour’s findings that the father had sexually abused D [173], [176] are inconsistent with statements that he could not, on the balance of probabilities, “make a positive finding that sexual abuse of [D] actually occurred” [129], [172].
Furthermore, his Honour failed carefully to consider and evaluate the significance of a number of matters which weighed against the findings of abuse made against the father and which had the potential materially to affect the assessment of risk, including:
·Uncontroverted expert evidence that an injury of the type said to have occurred would usually be accompanied by bleeding and the mother’s evidence that there was no bleeding;
·The full extent of the inconsistencies in evidence about what the child said, the child’s demonstrations of what the father did and notes taken by the mother, including in the mother’s statements to police;
·Inconsistencies between remarks attributed to the child by the mother (for example, six times);
·What it is that the child told police the father did six times; and
·The full extent of leading questions asked by police and the effect on the integrity of that interview of their “corrections” of statements made by the child.
In short, the father established that the primary judge failed to take into account important matters of fact and, in relation to the allegation of sexual assault, that his Honour’s process of reasoning was flawed.
Costs
This is not a matter in which an order for costs could properly be made against the mother. Although some of the matters which justify the appeal succeeding were ventilated in the summary of argument, it was only during the course of oral addresses that the full force of the challenges made to the judgment became evident. The mother’s stance in seeking to uphold the orders for as long as she did was not unreasonable and the application by the father that she pays his costs will be dismissed.
In our view it is appropriate that the parties and ICL receive certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and rehearing. Orders will be made accordingly.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Pascoe CJ, Ryan & Aldridge JJ) delivered on 10 May 2018.
Associate:
Date: 10 May 2018
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