Millwood & Millwood (No. 2)

[2020] FamCAFC 266

FAMILY COURT OF AUSTRALIA

MILLWOOD & MILLWOOD (NO. 2) [2020] FamCAFC 266

FAMILY LAW – APPEAL – PARENTING – Where the appellant father appeals from final parenting orders – Unacceptable risk of harm – Adequacy of reasons – Whether the primary judge failed to take into account material considerations – Whether the primary judge “elevated” opinions of the single expert – Decision of the primary judge not unreasonable or plainly unjust – No error in exercise of discretion – No error of fact or law established – Appeal dismissed – Costs ordered against the father.

FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Written and oral applications by the father to adjourn the appeal hearing – Application by the respondent mother to dismiss the appeal – Where the father did not file his Summary of Argument as directed by the Appeal Registry – History of father’s conduct in prosecuting the appeal shows little prospect of him complying with directions – Procedural fairness – Father afforded the opportunity to make oral submissions on the appeal – Applications dismissed.

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) r 22.45

Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301; [2018] FCAFC 93
Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61
B and B (1993) FLC 92-357; [1993] FamCA 143
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
M v M (1988) 166 CLR 69; [1988] HCA 68
Millwood & Millwood [2020] FamCAFC 246
N and S and the Separate Representative (1996) FLC 92-655; [1995] FamCA 139
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

APPELLANT: Mr Millwood

RESPONDENT: Ms Millwood

INDEPENDENT CHILDREN’S LAWYER: Blumberg Family Lawyers

FILE NUMBER: MLC 9337 of 2014

APPEAL NUMBER: EAA 92 of 2019

DATE DELIVERED: 6 November 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney (via video link)

JUDGMENT OF: Ainslie-Wallace, Ryan & Tree JJ

HEARING DATE: 6 October 2020

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 23 August 2019

LOWER COURT MNC: [2019] FamCA 594

REPRESENTATION

THE APPELLANT: Litigant in person

COUNSEL FOR THE RESPONDENT: Mr Weightman

SOLICITOR FOR THE RESPONDENT: Barry Nilsson Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Stapleton

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Blumberg Family Lawyers

Order made on 6 October 2020

1. The Application in an Appeal filed on 2 October 2020 to adjourn the appeal hearing is refused.

It is further ordered

1. The Response to an Application in an Appeal filed on 29 September 2020 to dismiss the appeal hearing is dismissed.

2. The oral application to adjourn the appeal hearing is refused.

3. The appeal against orders made in the Family Court of Australia on 23 August 2019 is dismissed.

4. The appellant father to pay the respondent mother’s costs of and incidental to the appeal fixed in the sum of $5,000 to be paid within twenty-eight (28) days of the date 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 Millwood & Millwood (No. 2) 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 92 of 2019
File Number: MLC 9337 of 2014

Mr Millwood

Appellant

And

Ms Millwood

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On 23 August 2019 a judge of the Family Court made final parenting orders in proceedings between Mr Millwood (“the father”) and Ms Millwood (“the mother”) in relation to the child of their relationship, Y who was born in 2011.  Those orders provided for the mother to have sole parental responsibility for the child who is to live with her and the child will spend no time with the father.  The father appeals those orders.

Application to adjourn the appeal hearing

1. A number of procedural applications were before the Full Court.  Before dealing with them, it is important to understand that at the hearing before the primary judge the father was represented by counsel as a direct brief and a solicitor who withdrew prior to the final hearing.  It seems too that at least for a time afterwards the father was legally represented, or at least legally assisted because the Amended Notice of Appeal filed on 9 October 2019 was drawn by counsel who appeared for the father before the primary judge.

2. Following the filing of the appeal, the usual directions were made for the preparation of the Appeal Book and the filing of Summaries of Argument.  While there was some little delay in the provision of all of the relevant transcript material, by 27 July 2020, the transcript and the Appeal Book were available and complete.

3. The father was directed to file and serve his Summary of Argument by 21 April 2020.  He did not comply with that direction.

4. On 14 September 2020, the father was notified of the hearing date of the appeal on 6 October 2020. Shortly afterwards, on 15 September 2020, he was notified that pursuant to r 22.45 of the Family Law Rules 2004 (Cth) (“the Rules”), given his failure to comply with the direction to file a Summary of Argument, on 6 October 2020 the Full Court would consider whether or not the father’s appeal should be dismissed for failure to comply.

5. On 22 September 2020, the solicitor then acting for the father contacted the Appeal Registrar noting the impending hearing date and confirming that the father’s Summary of Argument had not then been filed.  The solicitor while saying that he was “progressing the preparation and filing of the Summary of Argument and List of Authorities” he further said that neither he nor counsel briefed (both senior and junior counsel) was available on the date of the Appeal hearing.  The email foreshadowed the filing of an Application in an Appeal for an extension of time in which to file the ordered documents.

6. Ultimately on 25 September 2019 an application for an extension of time was filed together with an application to adjourn the hearing date of the appeal.  Those applications were heard by Ryan J on 29 September 2020.  The father was granted an extension of time in which to file the Summary of Argument and List of Authorities to 4.00 pm on 30 September 2020, with the mother and the Independent Children’s Lawyer to file their Summaries of Argument and Lists of Authorities by 9.00 am on 6 October 2020, the hearing date of the appeal.  The application for adjournment of the hearing was refused (Millwood & Millwood [2020] FamCAFC 246).

7. Her Honour’s reasons are relevant to the instant application.  As to the father’s failure to file the directed documents, her Honour said:

   9.The significance of these dates is that notwithstanding the father’s explanation for not filing documents by April 2020, in accordance with the procedural orders dated 11 February 2020, there has been no impediment, whether COVID-19 related or otherwise, which explains his failure to file and serve his Summary of Argument and List of Authorities within a reasonable timeframe from late July 2020.

   10.The father seeks to explain his failure to do so because of difficulties he had with making contact with Mr Gardiner who appeared for him at trial and to otherwise make contact with solicitors. He blames the pandemic and, in his affidavit filed on 25 September 2020, the father explains in broad terms but lacks particularity about attempts he has made to secure legal representation. In exchanges this morning it became clear that the father made contact with his solicitor now retained in the appeal on at least 7 April 2020. It is accepted that the father did not formally engage his current solicitor until just over a week ago, however, no explanation is given by the father for not retaining his current solicitor sooner.

8. Her Honour continued and observed that the father had previously been in default of procedural steps necessary to prosecute his appeal.  Her Honour concluded that there was no reasonable explanation for the father’s failure to comply with the procedural orders.

9. Justice Ryan too noted the effect of continuing litigation on the mother and, through her, the child, and said that an adjournment of the appeal would result in it not being heard for some six months, which her Honour said “would place an intolerable burden” on the mother and child (at [15]).

10. None of the ordered documents was filed by the father.  However on 2 October 2020 he, by application, sought the vacation of the hearing date of the appeal.  That application was supported by an affidavit.  Both documents appeared to have been prepared with the assistance of a lawyer but presented by the father acting for himself.  The father’s former solicitors filed a Notice of Ceasing to Act in the matter on 30 September 2020.

11. Thus on the morning of the hearing of the appeal, the father appeared unrepresented and sought an adjournment of the appeal so that his lawyers could prepare the ordered documents.  That adjournment was refused.  Given the history of his conduct of the appeal, his dilatory approach to procedural orders and his obtaining an extension of time in which to file the ordered documents but failing to do so, persuaded us that however much time was afforded him, there was little prospect of his ever complying with those directions.

12. It is not to be forgotten that procedural fairness is not the father’s sole preserve.  Whilst he might have a leisurely attitude to prosecuting his appeal, the mother has continued to retain counsel and solicitors and, no doubt lives daily with the anxiety that pending litigation brings.  It would be an affront to fairness for this appeal to have been adjourned.

Mother’s application that the father’s appeal be dismissed

1. In response to the father’s first application to adjourn the appeal, the mother sought an order that the appeal be dismissed by reason of his failing to prosecute it diligently. Justice Ryan stood that application over to the hearing of the appeal. In the result we decided to hear the appeal on its merits rather than peremptorily dismiss it under the Rules and thus this application will be dismissed.

2. The appeal proceeded with the father appearing for himself.  Although he had filed no outline of his argument, we afforded him the opportunity of making brief oral submissions, which he did.

Background

1. As we have said, the case before the primary judge concerned parenting arrangements for the parties’ child.  The parents separated in 2014 when the child was some three years old and from that time have been in dispute about what are the proper arrangements for her care.  The primary judge said:

   2.… Their dispute has caused the child to become involved with police, doctors and various public authorities including hospitals, behavioural scientists and lawyers. There was a final hearing over nine days in the Federal Circuit Court. The present hearing in this Court continued over six days.

   3.The mother has formed what appears to be an unshakeable view that [the child] has been sexually abused by the father. She seeks orders that the child live with her and spend no time with the father. The father denies that he has abused the child in any manner and seeks orders that the child live with him either primarily or in a shared equal time arrangement.

2. After the parties separated in July 2014, the child spent time with the father for five hours each day on three days per week.  However, at the end of July, the mother said she noticed marks and redness on the child’s thighs and her genitals and thereafter allegations that the father had sexually assaulted the child developed.

3. In October 2014, the mother took the child to the hospital on advice from her general practitioner however the child was not examined.  The child was interviewed by the Joint Investigation Response Team in which she made no disclosures.  She also commenced sexual assault counselling.

4. Subsequent comments made by the child caused the mother to make further reports to the relevant authorities.

5. Nevertheless, in December 2014, orders were made for the child to spend time with the father to be supervised by a professional service.  Supervised time with the father continued until July 2016.

6. The child continued to make disclosures and the mother continued to seek assistance from the relevant authorities.

7. Parenting proceedings were heard in the Federal Circuit Court and on 8 July 2016 final orders were made that the parties have equal shared parental responsibility, the child live with the mother and spend time with the father from 10.00 am until 4.00 pm on three of four Saturdays and Sundays.

8. The mother appealed those orders and the appeal was conceded, the orders of

   
   

   8 July 2016 set aside and the further hearing of the matter remitted to the Federal Circuit Court.

9. In April 2017, consent orders were made to the effect that the father spend supervised time with the child every Wednesday for three hours between 3.00 pm until 7.00 pm and each Sunday for six hours between 9.00 am and 5.00 pm.  The parenting proceedings were transferred to the Family Court.  The supervised time took place although it seems that it was not without its difficulties and according to the primary judge’s reasons, a number of supervision services commenced supervising the father’s time with the child but later declined to continue.

10. In December 2018, the parenting proceedings were heard by the primary judge.

Sexual abuse of the child

1. The mother asserted that the father had sexually abused the child and made numerous complaints to that effect, all of which were denied by the father.  The child was, as his Honour said, medically examined and interviewed by the relevant authorities.  None of those complaints was established.

2. The mother’s case that the father had sexually abused the child was in part sought to be supported by allegations that the father had sexually assaulted a young boy, Mr F, a neighbour of the father, between the years 1987 and 1992.  Some years later the father was charged with the sexual assault of this young boy and stood trial.  He was discharged when the jury was unable to reach a verdict and it seems that he was not re-tried.

3. The boy, now a young man, gave evidence in the proceedings before the primary judge.  The primary judge accepted his evidence and concluded that his account is what occurred.

4. Dr D, a clinical psychologist, was appointed as a single expert to interview the parties, child and other relevant people.  Having regard to the history of the allegations and the interventions of the various authorities and medical practitioners, at [142] his Honour set out Dr D’s conclusion:

   … [T]his young child has been chronically and repeatedly exposed to vigorous and intense scrutiny and questioning by her mother and ongoing forensic medical examinations. She experienced a counselling process which, in my view, was highly suggestive and leading at an age when she was vulnerable and impressionable. The more recent (2017) disclosure appears to be highly improbable (that the father put his fist in her vagina up to his knuckles) as is the idea that a 6-year-old child could spontaneously recall sexual abuse from when she was a baby, or even as a 3-year-old. The most likely explanation, in my mind, is that [the child] has become sensitised to such matters and intuitively understands that they generate much emotion and attention with her mother and she responds to these emotional cues.

   However, and as foreshadowed above, I cannot be entirely confident that [the child] has not experienced sexual abuse.

5. His Honour continued and said:

   143.[Dr D] went on to discuss risk factors. She said that the father’s criminal history is relevant. She said that if the father was guilty of the alleged offence against [Mr F], this “would elevate slightly the risk that he would pose to any other minor”. But she noted that “the alleged incidents with [Mr F] involved oral sex between an adolescent or young adult and a male child”. She said that there is no particular known link between this sort of offending and digital penetration of an infant or toddler female. In addition, she said that the statistical risk of a biological father sexually abusing his own child, particularly if that father has had ongoing care of that child is relatively low, compared to the risk of sexual offending against a person who is not related to him biologically.

   144.[Dr D] said that the father has a number of personality features, most particularly narcissistic traits, which may be associated with a sense of entitlement which is seen in perpetrators of sexual abuse. But she said this in and of itself is not an indicator of likelihood of sexual abuse.

6. In relation to whether the evidence permitted a finding that the father had sexually abused the child or whether, in the absence of such a finding, his Honour was nevertheless of the view that there existed an unacceptable risk to the child of sexual abuse from the father, his Honour said:

   235.Turning again to the allegations of sexual abuse of [the child], [Dr D], at the end of her very detailed analysis and consideration of this, said as follows:

   Ultimately, I cannot make a definitive conclusion to assist the Court with respect to the sexual abuse allegations which are the heart of this matter. However, I think that there is a very low likelihood that [the child] has been sexually abused by the father. As mentioned previously, I think it highly likely that [the child’s] normal play and utterances have been contaminated and that she herself is highly confused with respect to her own memories.

   Unfortunately, [the child] is now at current and ongoing risk of sexual harm. This is because it is almost impossible for any forensic examiner to make sense of what she says. She has been so significantly contaminated in terms of her view, behaviours and expressions, that if she does experience adverse sexual events, it will be unclear if future disclosures are true, distortions, or a mixture of both. This places her at risk of all types of sexual offending.

   236.Having read and heard the very considerable amount of evidence about the sexual abuse allegations, and notwithstanding the view I have about the allegations by [Mr F] against the father, which on [Dr D’s] expressed opinion would “slightly elevate” the risk, I have the view that the evidence does not permit a finding one way or the other about alleged sexual abuse of [the child].

7. That, however, was not the end of his Honour’s considerations.

8. His Honour considered the proposals of the parties.  He observed that the father sought orders that the child live primarily with him and spend substantial and significant time with the mother.  The benefit to the child of this proposal was said by his Honour to offer the child an opportunity to develop her close relationship with the father and his family.  However, his Honour rejected this proposal on the basis that the child, having lived her entire life with her mother, would “likely suffer ‘significant attachment distress’” (at [238]).  His Honour accepted that the effect on the child would be of grief, loss and confusion about why she was no longer living with her mother (at [239]).

1. The primary judge referred to the father’s past conduct during supervision which was described as “angry outbursts” which, Dr D thought, might possibly cause the child to be frightened and if living with the father, they might occur again (at [239]).

2. Thus, his Honour found that to move the child’s residence to the father would be likely to cause the child to “experience emotional, behavioural and academic regression” in the medium term and “emotional and psychological consequences” in the long term (at [240]).

3. The primary judge concluded that to move the child would not spare the child from the ongoing parental conflict and hostility to which she had been accustomed.

4. The primary judge considered the mother’s likely reaction to the child being moved to live with the father.  His Honour accepted Dr D’s opinion that the mother was likely to become “overwhelmed by fear for [the child’s] safety” because the child would be living unsupervised with the father who “the mother almost certainly continues to believe has perpetrated acts of sexual abuse upon the child” (at [241]).  His Honour further accepted that this would probably lead to the mother continuing to have those fears investigated to the child’s detriment.

5. His Honour said:

   243.And placing her with the father would almost guarantee a continuation of the allegations of sexual abuse with their accompanying burden of visits to the doctors, hospitals and other professionals, not to mention possible further invasive physical examination. It is also unlikely that the father would desist from continuing to expose [the child] to his very negative views of her mother. So the toxic conflict between parents which has been so harmful to [the child] would continue.

6. Turning then to the mother’s proposal that the child live with her and spend no time at all with the father, the primary judge while acknowledging that that circumstance was not risk free, concluded that it would provide the child with the continuation of the stability of living with her primary parent with whom she had a close and loving relationship.  His Honour also concluded that for the child to live with the mother would reduce the incidence of allegations of sexual abuse and the attendant investigations and interviews although he observed that

   
   

   Dr D’s opinion was that it would not necessarily bring an end to allegations against the father.

7. Equally, his Honour considered that for the child to have no contact with her father would bring with it deleterious consequences as to her psychological development.

8. As to whether the father’s time with the child should be supervised in the event that the child continued to live with the mother, his Honour said:

   250.It might have been tempting to bring into consideration a possible compromise which could achieve for [the child] opportunity to have a relationship with each of her parents on the basis that time spent between her and the father be supervised. As indicated above the father made it very clear however, that given all the difficulties experienced by the parties and by [the child] over some four years of supervised time, that he is not prepared to submit to any form of supervised time with [the child]. In any event, supervision has not worked.

9. Thus the primary judge concluded:

   252. Dr D is extremely concerned about [the child’s] mental health. She said that [the child] has become highly embroiled in a complex parental dispute and is distressed and confused about it. She said that [the child] has become overly involved in the proceedings and is at psychological risk as a consequence.

   253.In my view, such is the toxicity between the parties that a parenting arrangement which would involve [the child] passing from the care of one parent to the other would carry with it ongoing opportunity for the parents to continue to indulge themselves in using her as an agent through which they can continue the conflict and hostility which has been so distressing and damaging for [the child].

   254.Accordingly, I have come to the view that in weighing the risks to [the child’s] psychological and emotional wellbeing if she was to live with the mother and spend unsupervised time with the father, the risks would be greater in such an arrangement than those if she was to live with the mother and not spend time with or communicate with the father.

10. Against this background, we turn to the grounds of appeal.

The appeal

Ground 3

1. We start with a consideration of Ground 3 which we set out in full:

   That the finding of the primary judge that [Mr F’s] “version of events is what occurred”:

   (a)amounted to an error of law because it was entirely against the weight of the evidence, and

   (b)was an error of law because it entirely lacked proper explanation by way of adequate reasons, and

   (c)was an error of law because it failed to take into account material considerations advanced by the [father] in respect of the “motive” of [Mr F] to lie.

2. Before dealing with each of the subheadings to the ground, it is useful to understand his Honour’s task in dealing with the evidence of the father’s past conduct in the context of determining whether the father had sexually abused the child in the past and in determining whether there exists an unacceptable risk of sexual abuse to the child in the father’s company.

3. In M v M (1988) 166 CLR 69 at 78 (“M v M”) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:

   Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations… [C]ourts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

   (Citations omitted)

4. It is to be remembered that the concept of “unacceptable risk” referred to in
   M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 77; B and B (1993) FLC 92‑357).

5. The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment.  As the High Court said in CDJ v VAJ (1998) 197 CLR 172:

   151. … Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order…

6. As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713–82,714, Fogarty J said of this determination:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.

7. Now, we must put Mr F’s evidence in context of his Honour’s determination.  True it is that his Honour accepted Mr F’s evidence that the father sexually assaulted him over the denials of the father.  However, having done that, his Honour placed no apparent reliance on that acceptance.  His Honour set out Dr D’s view of that evidence and her opinion that those events as between the father and Mr F would elevate slightly the risk that the father would pose to a child, however, his Honour found that the evidence did not enable him to form a view as to whether the father had sexually abused the child (at [236]).  Neither did his Honour conclude that there was an unacceptable risk of harm of sexual abuse to the child if she was in the father’s presence.

8. In that context, it is plain that the evidence of Mr F carried no weight in his Honour’s determination of the parenting issues and in his ultimate conclusion that the child should live with her mother and spend no time with her father.

9. We see then little point in giving extensive consideration to this ground.  However, Ground 3(a) contends that his Honour’s acceptance of Mr F’s evidence “was entirely against the weight of the evidence”.  We understand this to be a challenge to the primary judge’s preference of Mr F’s account over the father’s evidence which denied the allegations.  It is, quintessentially, the role of the primary judge to make these very determinations, to determine the weight or importance to be given to the evidence in the case and, ultimately, what conclusions flow from that evidence.  To successfully challenge findings of fact, the appellant must show that the finding was demonstrably wrong by reference to “incontrovertible facts or uncontested testimony” or were “glaringly improbable” or “contrary to compelling inferences” (Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at 558–559; Fox v Percy (2003) 214 CLR 118 at [29]; Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301 at [2]–[3]).

10. The point on appeal devolves to a complaint that the primary judge accepted

    
    

    Mr F’s evidence in preference to that of the father.  As Barwick CJ said in Edwards v Noble (1971) 125 CLR 296 at 304:

    … 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…

11. This challenge to his Honour’s finding is not made out.

12. Next, in Ground 3(b) it was contended that his Honour failed to give adequate reasons to support making that finding.  His Honour set out the evidence of Mr F in some detail noting concessions he had made during cross‑examination by counsel for the father.  That detail too included noting Mr F’s concession that he had “concocted” a story to explain what he was doing at the father’s house (at [95]).  The primary judge took those into account and concluded:

    97. Notwithstanding these concessions and differences, I have no hesitation in preferring the evidence of [Mr F] about this alleged behaviour over that of the father. As indicated above, in my view, [Mr F] presented as a much more impressive and credible witness and was more ready to make concessions than the father.

13. His Honour too noted inconsistencies in the father’s evidence about these same events, comparing his evidence in the earlier criminal trial with his later accounts (at [98]).

14. It is incumbent on a judge to give reasons for decisions made.  Those reasons are necessary to enable a party to understand how the judge arrived at their decision (Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [58]–[59]).

15. In our view, his Honour’s reasons make it entirely clear why he accepted the evidence of Mr F in preference to the father’s denials.  This aspect of the challenge is not made out.

16. Finally, in Ground 3(c), it was argued that the primary judge failed to take into account the arguments advanced by the father as to Mr F’s “motive” to lie.

17. It is difficult to understand the ground or the point being made especially in the absence of any written or, for that matter, oral argument on the point.  Certainly, it seems that during oral submissions before the primary judge, counsel for the Independent Children’s Lawyer argued that Mr F would not have “put himself through the hearing” if his account was untrue (Transcript 19 December 2018, p.390 lines 43–46).  His Honour agreed and found, in effect, that Mr F being prepared to be cross-examined in these proceedings enhanced his credibility (at [109]).

18. However, importantly and, in our view determinatively, while the cross‑examination of Mr F by counsel for the father was that these events did not occur, it was not suggested to Mr F that he was lying and was motivated to lie for some reason.  Thus, there can be no basis for assertion of error in this regard.

19. This challenge is not made out.

Ground 1

1. This ground challenges the primary judge’s determination on the basis that it was “unreasonable and plainly unjust” to find that it was in the child’s best interests to live with the mother and spend no time with the father.  This ground further particularised that the finding was unreasonable and plainly unjust in light of the primary judge’s findings that the mother suffered from excessive obsessional anxiety and possible paranoid beliefs and in light of the primary judge being unable to make a positive finding of sexual abuse of the child.

2. The challenge seems to be a portmanteau claim which contends that the exercise of his Honour’s discretion erred in that the orders are manifestly unjust and unreasonable.  As we understand it, this ground is in effect a complaint that the result itself bespeaks an error in the exercise of discretion, the father being unable to identify where the error lies.

3. In Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419 at [8], Bathurst CJ and Leeming JA apropos a ground of appeal that contended the result to be “unjust or plainly unreasonable” said that those words taken in isolation may lead to error, and continued:

   9.It is one thing for the reasons given by the primary judge to disclose appellable error. If so, that is addressed by the formulations of principle in the first half of the passage from House v The King. That is not an end of the matter. There may be cases where the reasons do not disclose why the impugned orders were made. In such cases, even though no error of principle or other well-recognised basis for appellate intervention may be discerned on the face of the reasons, an appellate court may nonetheless intervene. The reason is that it may be inferred in light of the result that there was appellable error in the unstated reasons which led to the order. This is plain from the passage when read as a whole (House v The King at 505):

   “It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

   10.It is wrong to seek to apply the references to “unreasonable or plainly unjust” in that passage in isolation. The premise of this aspect of the test in House v The King is that the reasons do not explain the result reached.

   (Emphasis in original)

4. Thus, considered in this light, the ground must be that the primary judge’s reasons do not explain how the ultimate result was reached.  His Honour’s reasons make it entirely plain why he made the orders he did.  It was not the order for which the father contended and this ground, we apprehend, seeks to challenge the overall result.  It is misplaced.  No error is established and this challenge fails.

Ground 2

1. This ground contends that the primary judge “elevated the Chapter 15 expert’s views to a determinative status” and thus erred.

2. We imagine that this ground asserts that, rather than bring his own judgment to bear on the issues for determination, his Honour merely accepted, without more, Dr D’s opinion and that became his decision.

3. The evidence of an expert witness, is, as with every other witness, able to be taken into account by the primary judge in determining the matter in issue.  There is no doubt that the primary judge accepted much of Dr D’s evidence in the case.  It needs to be understood that significant issues going to the child’s long term emotional development and psychological welfare were to be determined.  The only voice speaking with authority on those issues was Dr D’s.  It would be ludicrous to suggest that a primary judge was not able to place significant reliance on that kind of evidence.

4. This ground is not made out.

Conclusion and costs

1. The appeal will thus be dismissed.

2. The mother sought an order for costs against the father in the event that the appeal failed.  The mother’s counsel filed a wide ranging schedule of costs which included claims for counsels’ fees where costs orders had already been made and also which sought to include work done in the case unrelated to the preparation of the appeal.

3. The father opposed a costs order on the basis that it was not fair because he was not represented.  The father is however in employment and owns a house.  He is not then totally impecunious.  His appeal however was wholly unsuccessful (s 117(2A)(e) of the Family Law Act 1975 (Cth)) and for that reason he should pay the mother’s costs.

4. As to the quantum, given the wholly unhelpful and irrelevant nature of the schedule of costs filed by the mother, we are unassisted by it.  We however are of the view that an order in the amount of $5,000 is an appropriate costs order.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan &

Tree JJ) delivered on 6 November 2020.

Associate:

Date:  6 November 2020