Miyajima & Mikkelsen
[2024] FedCFamC1A 208
•7 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Miyajima & Mikkelsen [2024] FedCFamC1A 208
Appeal from: Miyajima & Mikkelsen [2024] FedCFamC2F 720 Appeal number: NAA 167 of 2024 File number: NCC 749 of 2016 Judgment of: ALDRIDGE J Date of judgment: 7 November 2024 Catchwords: FAMILY LAW – APPEAL – PARENTING – Allegations of family violence perpetrated by the father – Primary judge accepted the father posed a risk of harm to the children – Primary judge made orders for the father’s time with the children to be conditional on his engagement in psychological therapy and completion of courses – Application of Lainhart & Ellinson (2023) FLC 94-166 – Order uncertain – Order constitutes an improper divestiture of judicial power – Appeal allowed – Costs certificates issued. Legislation: Federal Proceedings (Costs) Act 1981 (Cth) Cases cited: Lainhart & Ellinson (2023) FLC 94-166; [2023] FedCFamC1A 200 Number of paragraphs: 25 Date of hearing: 16 October 2024 Place: Sydney Counsel for the Appellant: Mr Othen SC Solicitor for the Appellant: ALJ Legal Counsel for the Respondent: Mr Tregilgas Solicitor for the Respondent: Peter Evans & Associates, Solicitors Counsel for the Independent Children’s Lawyer: Mr Guyder Solicitor for the Independent Children’s Lawyer: Wooi Legal ORDERS
NAA 167 of 2024
NCC 749 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS MIYAJIMA
Appellant
AND: MR MIKKELSEN
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
7 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed by the respondent on 15 October 2024 seeking leave to rely on their late filed Schedule of Costs is allowed.
2.The appeal is allowed.
3.Orders 13 to 20 of the orders made 6 June 2024 are set aside.
4.The question of what time, if any, the children are to spend with the respondent and the circumstances under which any such time is to take place is remitted for rehearing before a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.
5.The appellant is granted a costs certificate pursuant to 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 her in the appeal.
6.The respondent and Independent Children’s Lawyer are granted costs certificates pursuant to 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 them in respect of the costs incurred in the appeal.
7.The appellant, the respondent and the Independent Children’s Lawyer are granted costs certificates pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred by them in relation to the rehearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Miyajima & Mikkelsen has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
This is an appeal from parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 6 June 2024, relating to the parties’ three children who were born in 2009, 2012 and 2015.
The orders provided for the children to live with the appellant, Ms Miyajima (“the mother”) who was to have sole parental responsibility for them. The orders also provided for the respondent, Mr Mikkelsen (“the father”), to have increasing time with the children, starting with supervised time for three hours per fortnight, increasing ultimately to overnight unsupervised time, and for time during school holidays. That time with the children, however, was not to commence until Order 13 had been complied with by the father. This order was the focus of the appeal and provided:
13.It is a pre-condition to the children spending any time with the father or communicating with the father pursuant to these Orders that the father will have:
(a)Engaged in psychological therapy to address and manage his depressive disorder, and for the purposes of this order the father will inform the mother of the name of and contact details for his psychologist, and authorise his psychologist to provide to the mother at her request confirmation that the father is currently undergoing, or no longer requires, psychological therapy; and
(b)Completed either an accredited face to face Men’s Behavioural Change Program or an accredited face to face Anger Management program provided by either [D Service] or [E Service], and has furnished a certificate or letter of completion of such program to the mother; and
(c)Completed for the second time an accredited face to face Parenting after Separation program, with such program to be provided by either [D Service] or [E Service] and has furnished a certificate or letter of completion to the mother.
APPLICATION IN AN APPEAL
On 15 October 2024, the respondent filed an Application in an Appeal seeking leave to rely on their Schedule of Costs which was filed late.
At the hearing, neither the appellant nor the Independent Children’s Lawyer took issue with that document. Leave will be granted accordingly.
THE APPEAL
The parties separated on 25 January 2016. On 21 March 2018 final parenting orders were made by consent which provided for the children to live with the mother and spend significant and substantial time with the father. The parties had equal shared parental responsibility for the children.
In December 2021 the father, in the presence of the other children, assaulted the middle child on two separate occasions. One was a serious assault which involved the father putting his fingers and thumbs around the child’s throat. The father pleaded guilty to a charge of common assault. These two assaults caused the mother to withhold the children from spending time with the father. It was her case at the hearing before the primary judge that the father’s unresolved anger management issues meant that he should not spend any time with the children.
The primary judge clearly accepted that the father posed a risk of harm to the children and that the assault on the middle child was serious. The primary judge described it in this way:
154The Family Consultant expressed her view that it is reasonable to believe that the father was not in control of himself when he grabbed the middle child around the throat. I accept [Ms C’s] evidence that there is “potential for lethality” in that circumstance. Apart from the obvious physical risk to a child of having an adult with two hands around the child’s throat, [Ms C] identified other risks to the child arising from the father’s conduct, including psychological risks such as the loss of trust in the father to keep him safe, the undermining of the child’s relationship with his father, and the sadness for the child if he believes that the father thinks less of him, and the low self-esteem this may create for the child.
Despite the father attending upon both a consulting psychologist and counsellor, the father conducted the hearing on the basis that his conduct was not as bad as alleged. Her Honour found:
·“The father has been less than frank about his conduct towards the middle child, who does not deserve to be verbally abused and assaulted” (at [140]);
·When asked about his rude, aggressive and disrespectful messages to the mother, the father could not resist the temptation to impugn her, rather than answering the question directly (at [78]) – this was after he had completed a parenting after separation course (at [79]);
·The father “misled the Family Consultant in relation to several important matters” (at [87]);
·The father did not provide a truthful or accurate account of the incidences in December 2021 when interviewed by the police or when interviewed by the Family Consultant (at [91]);
·The father conceded he lied to the Court in relation to the second assault in his affidavit evidence (at [94]);
·The father “repeatedly and emphatically denied” any physical contact between himself and the middle child and denied that he called the child derogatory names (at [95]);
·The father was not prepared to concede that his actions would have been scary for the other children (at [103]);
·The father attempted to deflect responsibility for his own conduct onto the middle child, who was eight years old when he was assaulted by the father (at [109]);
·The father tried to deflect responsibility to the mother, devoting a lengthy section of his affidavit to the topic “Attempts by [Ms Miyajima] to Alienate the Children from Me, My Family and the [Town B] Community” and “Attempts by [Ms Miyajima] to discredit Me” (at [109]);
·The father denied he had a problem with anger and aggression and said he did not need help to manage those (at [111]); and
·The father did not own up to the full extent of his violent and abusive conduct towards the middle child (at [131]);
This led her Honour to conclude:
110The father’s attempt to shift responsibility for his aggressive and unlawful conduct is particularly egregious given that he was not prepared to not provide an honest account of his own actions until he was finally forced to concede the full extent of this conduct under cross examination at the trial.
The evidence was taken in the matter in May 2023 with submissions being made on 11 August 2023. During that break the father changed his approach to the orders sought by him and no longer sought immediate unsupervised time with the children. Rather, he proposed that he not commence seeing the children until he had undertaken counselling with a counsellor for four sessions, he had continued engaging with his current psychologist to understand his own mental health and issues which led to the events of December 2021 and the parties had attended a parenting after separation course. He sought this time be supervised, progressing to unsupervised.
In the light of the findings to which I have just referred, which would entitle any person to treat comments made by the father as to any change in his behaviour with a very healthy dose of scepticism indeed, the primary judge, who had the considerable advantage of having seen him throughout the hearing, found that the father had “expressed genuine remorse for the children, including the middle child” (at [167]). There was no challenge to that finding, although it must be accepted that part of the evidence relied upon was a statement of remorse made by the father to the Family Consultant who he had misled previously. One would have thought that statement by the father was therefore attended by some doubt.
Taking all these matters into account her Honour found that the episodes in December 2021 were incompatible with safe parenting and “the father must take appropriate steps to manage his anger” (at [170]). Her Honour added:
170… I consider that there is sufficient proof of his willingness to engage in rehabilitation to permit a rational conclusion that the level of risk he poses to the children is relatively low provided that he engages in appropriate further rehabilitation, and that any time the children spend with the father during the months after he has proved that he has completed further rehabilitation is supervised so that the success or otherwise of such further rehabilitation is able to be assessed by the professional supervisors in consultation with the mother.
(Emphasis added)
Again, her Honour said:
172Overall, I consider that it is not necessary for the children’s protection, or in the best interests of the children, that the father is eliminated from their lives. I consider that upon the father demonstrating that he has taken the steps required to address his issues, then the children’s relationships with him can be safely resumed under supervision and that there is no need for the children’s time with the father to be supervised on an ongoing basis. Curtailment of the length of the time that the children spend in the unsupervised care of the father is sufficient to ameliorate the risk that the father’s coping capacity might be exceeded.
This was repeated at [239] where her Honour also took into consideration “that the children will not resume spending time with the father until he has provided evidence of completion of the relevant therapies and courses”.
The ultimate conclusion was:
224I am satisfied that the children will not be placed at an unacceptably high risk of physical and psychological harm if they spend time and communicate with the father with the following safeguards in place:
(a)That before there is any time for the children with the father, he must demonstrate that he is or has engaged with psychological counselling, and that he has successfully completed an accredited face to face men’s behaviour change program or similar Anger Management program, and that he has successfully completed a second accredited face to face Parenting after Separation program.
Whilst there is some doubt as to whether Order 13 in fact achieved the aims set out by her Honour in the above quotations because that order did not require satisfactory completion, there are two more fundamental difficulties.
The first is that the father is required to have “engaged in psychological therapy” and at the request of the mother is to provide “confirmation that [he] is currently undergoing, or no longer requires, psychological therapy”.
It is quite unclear what the word “engaged” means in that context. Presumably, from the form of the orders, it is different to successfully completing such a treatment, because that is encompassed in the words, “no longer requires psychological therapy”. Thus, the order is satisfied if the father engages in therapy, albeit entirely unsuccessfully. Further, does “engage” simply mean employ a psychologist? Attend for a few minutes? Or something else? Its very uncertainty brings into play the principles identified in Lainhart & Ellinson (2023) FLC 94-166. The difficulty can be identified by postulating enforcement proceedings taken by the father who has asserted that he is “engaged” with a psychologist and the mother does not accept that to be so.
In Lainhart, relevantly for the present case, Austin J, with whom McClelland DCJ and Aldridge J agreed, said:
19.But the orders do not specify who will choose the psychologist. Presuming it is the father’s choice, the orders do not accommodate the resolution of any dispute if the mother does not trust the expertise or independence of the psychologist.
…
29.Courts must take the litigants as they find them when determining causes of action under Pt VII of the Act. Courts are not, and cannot operate like, therapeutic agencies, using litigation as the vehicle to meddle by making aspirational directions about how litigants should improve their parenting capacity in the hope of enhancing their children’s familial experiences.
…
31.In this instance, the primary judge did not confine his role to simply deciding the case on its merits by reference to the evidence which the parties elected to adduce. His Honour tried, but failed, to formulate orders which would remedy the deficiencies in the evidence about the child’s future safety in the father’s care and dictate via the use of an intermediary how the child would be prospectively protected from the risk of harm, undoubtedly hoping that would prove beneficial for the child and the parties. However, orders of this type have been identified and criticised by the Full Court in the past (Re David (1997) FLC 92-776 at 84,575–84,576; Rader & Rader & Ors(No 2) [2019] FamCAFC 227 at [53]).
…
34.Moreover, Order 4(b) is not prescriptive because it neither commands the father to do something nor restrains him from doing anything. It is merely an invitation for the father to participate in further therapy, incentivised by his then greater involvement in the child’s life. But if litigants are genuinely motivated to improve their parenting capacity, they will do so without the need for any order to regulate their decision. On the other hand, if they do not genuinely desire any such improvement, any order intended to cajole such an outcome is likely to be unsuccessful at best and disregarded at worst.
35.Even if the father accepts the invitation within Order 4(b) and fulfils all of the conditions it imposes, there is still no way for him to enforce the ensuing orders enabling the child to spend more expansive unsupervised time with him. If the mother refuses to comply with the extended orders then, in determining any contravention application brought against her by the father, the Court could not conceivably reject her defence of “reasonable excuse” for the breach because she is denied any way of verifying the reliability of the psychologist’s opinion that the father no longer poses any risk of harm to the child. The orders unreasonably compel the mother to accept and act upon the subjective opinion of an unknown therapist chosen by the father.
36.If, as the primary judge found on the available evidence, the father currently poses a risk of harm to the child which could only be satisfactorily attenuated by professional supervision, then his Honour ought have made orders to that effect and no more. While orders for long-term or indefinite supervision are generally discouraged as being undesirable (Slater & Light (2013) 48 Fam LR 573 at 583–584; Champness & Hanson (2009) FLC 93-407 at [209]–[215]; Moose & Moose (2008) FLC 93-375 at [119]; B and B (1993) FLC 92-357 at 79,780), such orders have never been prohibited when the only unpalatable alternative is the complete elimination of a parent from a child’s life (Champness & Hanson at [216]; Re C and J (1996) FLC 92-697 at 83,341–83,342 and 83,351–83,352). Every case must be decided on its own facts (Bielen & Kozma (2022) FLC 94-123 at [67]).
37.If the evidence was insufficiently probative to permit his Honour to confidently make definitive orders regulating the child’s future arrangements beyond the point of supervision, the problem was not solved by making additional orders designed to procure or manufacture the necessary expert evidence to help an unknown psychologist then make the decision about the child’s longer-term future.
Secondly, to the extent that the psychologist is required to confirm that the father no longer requires psychological therapy, that must be a conclusion that the therapy has been such that the father no longer poses an unacceptable risk of harm to the children. It is to be recalled that the purpose of Order 13 is to cause the father to change his behaviour in order to ameliorate the risk of harm. Therefore, successful completion must be the same as no longer posing a risk of harm. So understood, that order to that extent is a devolution of the Court’s power to the psychologist, who is in effect making a finding, by necessary implication, as to the acceptability of the risk of harm posed to the children by the father. That is an improper divestiture of judicial power as explained in Lainhart at [26] and following.
Further, the following comments in that case are apt to the present:
40.In the face of the inculpatory findings made about the father’s perpetration of family violence and the adverse repercussions of it, which entailed rejection of his exculpatory denials, it must inexorably follow that the past therapy and courses in which he engaged were not enlightening for him. One is therefore left to wonder about the utility of making orders for the father to undertake even more therapy in the hope of him experiencing an epiphany by finally understanding and accepting how his “significant anger management problems” adversely affected the mother and why his behaviour is liable to pose an ongoing risk of harm to the child. The willingness the father expressed in cross-examination to engage in more therapy could hardly engender confidence it will be any more successful than the therapy which preceded it.
It may be accepted that the primary judge was in a difficult position. If, indeed, the father needed to demonstrate change before he should see the children, as seems to be the clear finding reading the judgment as a whole, then the father was faced with either orders for supervised time until he could show that his behaviour had changed or the primary judge could have adjourned the proceedings part-heard to enable the father to call appropriate evidence of that change. Whilst both may be unpalatable options, they are preferable to making an order that, respectfully, is not enforceable.
It is to be recognised that the order made in this case is in a different form to that made in Lainhart and one of the problems is less starkly obvious, but nonetheless the principles set out there require the appeal to be allowed. It is therefore not necessary to consider the remaining grounds of appeal.
Orders 13 to 20 of the orders made by the primary judge are set aside and the question of what time, if any, the children are to spend with the father and the circumstances under which any such time is to take place is remitted for further hearing to a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.
COSTS
The form of the orders is an error of law. In those circumstances it is appropriate that the parties and the Independent Children’s Lawyer, if qualified, have certificates issued under the Federal Proceedings (Costs) Act 1981 (Cth), for both the appeal and the rehearing.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 7 November 2024
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