Moose & Moose
[2008] FamCAFC 108
•17 July 2008
FAMILY COURT OF AUSTRALIA
| MOOSE & MOOSE | [2008] FamCAFC 108 |
| FAMILY LAW - APPEAL - CHILDREN - Trial judge's final orders for children to live with mother and spend supervised time with father - Whether trial judge gave proper consideration to the s 60CC matters relating to the best interests of the children – Obligation to “consider” the s 60CC matters – Meaning of “consider” in s 60CC(1) FAMILY LAW - APPEAL – ADEQUACY OF REASONS - Whether the trial judge failed to give adequate reasons for accepting or rejecting the proposals of the father FAMILY LAW - APPEAL – CHILDREN – Sexual abuse – Unacceptable risk – Trial judge’s observation that he would have grave concerns as to any court being satisfied on the evidence before him that sexual abuse of the children by the father took place – Trial judge’s finding there is not an unacceptable risk of father sexually abusing the children – Whether the trial judge erred in his application of the Russell and Close principle FAMILY LAW - APPEAL – Rice & Asplund principle – Whether the trial judge failed to treat the matter as one where there had been no significant or substantial change since the consent orders were made FAMILY LAW - APPEAL – INDEFINITE SUPERVISED ORDER FAMILY LAW - APPEAL – CHILDREN – Appeal allowed and orders made for trial judge’s orders to be set aside and for a rehearing - Whether appropriate for Full Court to order that trial judge’s final orders set aside on appeal nonetheless should “continue” as interim orders until fresh trial – Order not made because Full Court not in position to consider the matters relevant to the exercise of the discretion relating to interim orders as set out in Goode & Goode |
| Family Law Act 1975 (Cth) ss 60B(1),(2), 60CA, 60CC,(e),(f),(g), 60CC(1), 60CC(2),(a),(b), 60CC(3),(a),(b),(c),(d),(e),(f),(g),(h),(i),(j),(k),(l),(m) (1), 65DAA(1)(a), (b) Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) |
| A & J (1995) FLC 92-619 Bennett & Bennett (1991) FLC 92-191 Bolitho & Cohen (2005) FLC 93-224 D v Y (1995) FLC 92-581 Fitzpatrick & Fitzpatrick (2005) FLC 93-227 Godfrey & Sanders (2007) 208 FLR 287 Goode & Goode (2006) FLC 93-286 Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Mazorski & Albright (2008) 37 Fam LR 518 Rice & Asplund (1979) FLC 90-725 Russell & Close [1993] FamCA 62 SPS & PLS [2008] FamCAFC 16 and Hungerford & Tank [2007] FamCA 637 Taylor & Barker (2007) FLC 93-345 U & U (2002) FLC 93-112 W & W [Abuse allegations: unacceptable risk] (2005) FLC 93-235 |
| APPELLANT: | MR MOOSE |
| RESPONDENT: | MRS MOOSE |
| FILE NUMBER: | BRF | 7403 | of | 2001 |
| APPEAL NUMBER: | NA | 53 | of | 2007 |
DATE DELIVERED: | 17 July 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Boland & O'Reilly JJ |
| HEARING DATE: | 7 November 2007 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 July 2007 |
| LOWER COURT MNC: | [2007] FamCA 714 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Galloway, with Ms McLennan |
| SOLICITOR FOR THE APPELLANT: | Simonidis Shoebridge |
| SOLICITOR FOR THE RESPONDENT: | Mr Pellandine, Jensens Solicitors |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Hammond, Legal Aid Commission of New South Wales |
Orders
That the appeal against the orders of the Honourable Justice Bell made 12 July 2007 be allowed.
That subject to Order 3, the orders made 12 July 2007 be set aside.
That setting aside of the orders made 12 July 2007 be stayed until the matter is listed before a Judge at first instance.
That the matter be listed before a Judge in the Brisbane Registry as soon as possible to determine any application for interim parenting orders or other procedural directions necessary for a re-hearing of the parenting applications.
That the Court grants to the appellant father a costs certificate pursuant to s 9 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 appellant 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 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) 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 in respect of the costs incurred by him in relation to the appeal.
The Court grants to each of the parties and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 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 each of the parties and the Independent Children’s Lawyer in respect of the costs incurred by them in relation to the re-hearing referred to in Order 4 of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Moose & Moose is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 53 of 2007
File Number: BRF 7403 of 2001
| MR MOOSE |
Appellant
And
| MRS MOOSE |
Respondent
REASONS FOR JUDGMENT
may j
I have had the benefit of reading the judgments of Boland and O’Reilly JJ. There is no need for me to set out the facts or the matters of law to which they have referred.
I agree that the appeal should be allowed. I agree also with the orders proposed by Boland J.
There is one matter to which I wish to particularly refer in agreeing that the appeal should be allowed.
These proceedings are concerned with orders made by a trial judge having the effect that the time a father spends with his children must be supervised. No provision was made for when such supervision would end or how the father could ask the court to make different orders.
The reasons provided by the trial judge were largely consistent with the evidence contained in a Family Report and by its author, given orally. In paragraph 75 of the report by the family consultant said:
It is the report writer’s opinion that [J] and [S] believe that their father has sexually abused them. They appear unclear of the timing of events; however, this is not inconsistent with their age and level of development. [J] and [S] present as clear in their wish not to spend time alone with their father due to their fears that he will sexually abuse them.
In paragraph 93 she recommended:
It is recommended that [J] and [S] spend time with their father at a Contact Centre six times a year.
The orders were also those as submitted by the Independent Children’s Lawyer at the trial to be consistent with the children’s best interests. At the commencement of the submissions Counsel instructed by the Independent Children’s Lawyer said that nothing in the trial had changed their view other than to be in accordance with the family consultants report. (Transcript, p139).
The Independent Children’s Lawyer now asks that the appeal be allowed for the reasons as summarised in paragraph 81 of Boland J’s judgment.
Should the father bring a further application asking for the provision in relation to supervision at the Contact Centre be removed, his case doubtless would be met with an assertion that he may not do so because there have been no change in circumstances (Rice & Asplund).
As Boland J has discussed these issues commencing at paragraph 113 it is not necessary for me to add anything further in relation to the evidence.
In my view, where an order is made that the time a parent spends with a child be under supervision indeterminately, there would need to be cogent reasons to support such orders. Apart from expressing, quite properly, a concern about the mother’s emotional reaction to the children seeing their father which was consistent with the evidence (T/s p135) his Honour did not provide reasons to support these orders. In addition, his Honour should have made orders which would allow for some review of the situation in the future as suggested by the family consultant. For those reasons I would allow the appeal and order a rehearing.
boland j
Introduction
On 12 July 2007, shortly after the conclusion of defended parenting proceedings under Part VII of the Family Law Act1975 (Cth) (“the Act”) between the father, Mr Moose and the mother, Mrs Moose, Bell J delivered ex tempore reasons for judgment, and made orders in respect of the parties’ children, J and S. In summary, the orders provided for the children to live with the mother, and that she have sole parental responsibility for them. The orders also provided for the father to spend two hours supervised time on either a Saturday or Sunday each month with the children in a children’s contact centre. It is from those orders that the father filed this appeal.
Prior to the proceedings before the trial Judge the parties were involved in extensive litigation in respect of the children both in the local Magistrates Court, and in this Court, in which the mother raised allegations that the children had been sexually abused by the father. I will later chronicle relevant aspects of the litigation.
On 3 February 2005 consent orders (“the consent orders”) were made which provided for the children to spend alternate weekends and school holiday periods with the father on an unsupervised basis. However, after the mother asserted S raised an allegation of inappropriate sexual behaviour by the father, contact ceased, and the mother commenced the proceedings heard by the trial Judge in which she sought orders that the children live with her, that she have sole parental responsibility for them, and that they spend no time with the father. The father ultimately sought orders that the children live with him, and that for six months any time spent with the mother should be supervised.
The Notice of Appeal contained seven grounds of appeal. At the hearing of the appeal, the father’s counsel sought, and was granted, leave to rely on three additional grounds of appeal.
The appeal was argued before us by the father’s counsel addressing five areas of complaint. First, it was asserted that the trial Judge had failed to give adequate reasons for his orders, with particular reference to his Honour’s consideration (or lack of consideration) of the children having a meaningful relationship with the father (s 60CC(2)(a)), and being protected from abuse (s 60CC(2)(b)). Secondly, it was asserted his Honour erred in failing to properly assess the father’s proposals (with particular reference to s 60CC(3)(c) and (d)). Thirdly, it was asserted that the trial Judge erred in his application of the principles discussed Russell & Close [1993] FamCA 62 (as explained in A & A (1998) FLC 92-800).Fourthly, it was argued that the trial Judge had failed to treat the case as one to which the “rule” in Rice & Asplund (1979) FLC 90-725 should apply, it being asserted there had been no significant or substantial change since the consent orders were made. Finally, it was asserted that the trial Judge erred in making orders for indefinite supervised contact in a children’s contact centre.
The father’s counsel submitted that, in the event that the appeal succeeded, on a re-exercise of discretion, we should reinstate the consent orders, or in the event of a re-trial, that those orders be implemented pending the re-hearing.
Mr Hammond, solicitor-advocate from the Legal Aid Commission of NSW, appeared at the hearing of the appeal on behalf of the Independent Children’s Lawyer (“the ICL”). The ICL supported the father’s appeal, but sought in the event the appeal succeeded, that an order discharging the trial Judge’s orders should be stayed pending the matter coming before a Judge at first instance. (Transcript, 7 November 2007 at p 39).
I propose in these reasons to consider the issues raised in the appeal in the same categories as the appeal was argued. I will commence by setting out relevant background material, then consider each topic identified, and discuss the parts of his Honour’s reasons for judgment relevant to that topic. I will then, in the event I discern appealable error by the trial Judge has occurred, consider whether there are sufficient factual findings and it is otherwise appropriate to re-exercise the discretion, or whether a re-trial is necessary. In the course of this consideration, I will deal with the orders which should pertain pending a re-trial. I will deal finally with the costs of the appeal.
Background
Some relevant history of the parties is found in his Honour’s reasons. A helpful chronology was prepared by Mr Hammond on behalf of the ICL. There was no suggestion anything in that chronology was inaccurate.
The parties met in about February 1994 and they were married in October 1995. They separated in August 1999.
J and S were born in September 1997.
The mother has a child from a previous relationship, namely B.B who was born in October 1987. B lived with the mother until she moved from the Gold Coast area in 2005.
Following separation the father spent time with the children in the parties’ former matrimonial home.
In August 2000 the mother asserted the father had sexually abused the children and contact ceased.
In October 2000 the father commenced proceedings in the Southport Magistrate’s Court, and orders were made by consent for the father to have unsupervised contact.
At Christmas 2000 the mother alleged the children made further allegations of sexual abuse, and in January 2001, the mother notified the then Department of Families, Youth and Community Care (“the department”) of the allegations. The children were interviewed by the department and made no disclosures.
On 31 January 2001 the father again commenced proceedings in the Magistrate’s Court, and on 16 February 2001, the mother consented to orders that the father have unsupervised contact with the children.
In August 2001 the mother filed an application seeking orders that the children’s contact with the father be supervised.
In July 2002 the mother alleged J made further allegations about the father, and in October 2002, it was asserted that J made allegations to a kindergarten teacher.
On 7 November 2002 the father filed a further application in the Magistrate’s Court.
On 13 December 2002 the mother filed a notice of risk of abuse and a response to the father’s application, in which she sought orders that the father have no contact.
In December 2002 orders were made in the Magistrates Court for the appointment of a child representative and the proceedings were transferred to the Family Court.
In January and February 2003 the mother alleged J made further disclosures.
On 27 March 2003 interim orders were made in the Family Court for the father to have supervised contact with the children.
In September 2003, and again in November 2003, the mother alleged the children made further disclosures.
On 16 April 2004 consent orders were made for the father to have unsupervised contact with the children.
In September 2004 the children were interviewed by staff of the department. At this time the mother had ceased to provide the children to the father for contact.
On 17 September 2004 the mother filed an application seeking orders the father have supervised contact, and orders for supervised contact were made by consent.
On 3 February 2005 the consent orders were made (I have already referred to these orders which provided for the father to have unsupervised contact with the children each alternate weekend and for school holiday periods).
In June 2005 the mother and children moved from the former matrimonial home in the Gold Coast Hinterland to a location near Lismore, New South Wales.
On 19 April 2006 the mother alleged that S said, “Daddy plays with his penis”. The mother ceased the children’s contact with the father.
On 12 May 2006 the mother commenced the proceedings which were eventually heard by the trial Judge.
On 29 May 2006 Bell J made interim orders for the father to have supervised contact at a children’s contact centre.
On 28 August 2006 the mother was found to have contravened orders and ordered to perform 80 hours community service.
At the date of the hearing the father was living in the Gold Coast Hinterland, Queensland and the mother remained living near to Lismore. The father was seeing the children at the Children’s Contact Centre.
Asserted failure to give consideration to the father having a meaningful relationship with the children
Asserted lack of adequate reasons
Before commencing my discussion of the identified topics it is necessary that I record that the complaints raised have substantial areas of overlap, and that the principal challenge to his Honour’s orders, namely lack of adequate reasons, permeates each of the identified topics.
The father’s submissions
In his written submissions in support of this challenge counsel for the father asserted error by the trial Judge in finding there was no meaningful relationship between the children and the father on the basis the children believed they had been abused by him. It is asserted “There was evidence that in fact their relationship was good” (Father’s submissions, paragraph 13, p 5).
In his oral submissions the father’s counsel referred to what, on its face, appears to be a contradictory statement by his Honour at paragraph 37 of his reasons to his earlier finding set out in paragraph 12. At paragraph 12 his Honour explained:
Insofar as s 66CC(2)(a) is concerned I am more than aware that a meaningful relationship between both of the children’s parents and the children is of great advantage to the children of any relationship. Regrettably in this case it cannot be said that there is a meaningful relationship with both of the children’s parents because of the matters that I have briefly touched upon and which I will now incorporate as being particularised in exhibits 1 and 2. The children have, over a period of five years or thereabouts - they are only 9 now and will be 10 [later in the year] - have complained to various people on a consistent basis of sexual abuse and emotional abuse and physical abuse upon their person by their father. Consequently I do not believe that, on that fact alone, there could be a meaningful relationship where the children - and I emphasise that once again - the “children” - believe that they have been assaulted or abused by the father.
Later at paragraph 37 his Honour said:
I make it quite clear, however, that the children do have a relationship with their father and such relationship, in my opinion, should not be severed, should not be cut off, should be allowed to develop in a manner which will enable them, as they get older, to be able to have more and more time with their father and look upon him as a person who can advance their welfare. As a result therefore I am persuaded that there should be some time spent by the father with the children in accordance with the provisions of [the family consultant’s] report. I think that once every two months is not enough. I think it should be once a month. I recognise that, of course, there is a comparatively small tyranny of distance, with the father living at [the Gold Coast hinterland] and the mother living in the Northern Rivers of New South Wales. He has seen fit to be able to purchase motor bikes for his sons.
It was also submitted that the general reference by the trial Judge to Exhibits 1 and 2 failed to expose the trial Judge’s reasoning leading to the finding in paragraph 12, that the children did not have a meaningful relationship with the father.
Exhibits 1 and 2 are records from the department. They were not included in the appeal book, and neither counsel, nor Mr Hammond, suggested it was necessary for us to read them on the basis the records were extensive, and it was impossible, because of the lack of reference to specific parts of these records by the trial Judge, to assess those parts of the records on which he had placed weight.
Because of the importance of the complaint that the trial Judge failed to adequately expose his reasoning in dealing with s 60CC(2)(a), one of the “primary considerations”, it is appropriate I set out the pivotal submission of the father’s counsel’s on this topic. He said:
14.If the children did believe abuse occurred but, as his Honour has found, it was not likely to have occurred and that there was no unacceptable risk that it would occur, then the belief is not well founded and the construction of a meaningful relationship by the Court’s order is mandated. Furthermore, the provision in s.60CC(2)(a) cannot be read as merely descriptive of the relationship that exists at the time of the trial (as a reading of the Reasons would seem to suggest). It is submitted that the words have a much broader application than that apparently understood by the learned Trial Judge. A meaningful relationship with both of the child’s parents is something towards which orders must tend on the basis that it is for the benefit of the child. Even if there was not presently a meaningful relationship (and, with respect, if his Honour has found this he is wrong as the report of [the family consultant] […] and following makes plain) then his Honour was bound to construct an order which would provide if possible for such a meaningful relationship to develop. (Father’s submissions, paragraph 14, pp 5-6)
The trial Judge’s discussion of the “primary considerations”
After setting out brief background material and acknowledging the assistance he received from the Family Report prepared by the family consultant, the Family Consultant, the trial Judge turned to consider amendments to the Act following the coming into operation of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the amending Act”).
His Honour first considered the question of whether or not the presumption of shared parental responsibility applied and, at paragraph 10, found that the presumption was rebutted on the basis that the children believed they had been sexually abused by the father.
His Honour then discussed the “primary considerations”. To aid understanding of his Honour’s reasoning it will be helpful if I again set out paragraph 12, and as well set out paragraph 13:
12.Insofar as s 66CC(2)(a) [semble s 60CC(2)(a)] is concerned I am more than aware that a meaningful relationship between both of the children's parents and the children is of great advantage to the children of any relationship. Regrettably in this case it cannot be said that there is a meaningful relationship with both of the children’s parents because of the matters that I have briefly touched upon and which I will now incorporate as being particularised in exhibits 1 and 2. The children have, over a period of five years or thereabouts - they are only 9 now and will be 10 [later in the year] - have complained to various people on a consistent basis of sexual abuse and emotional abuse and physical abuse upon their person by their father. Consequently I do not believe that, on that fact alone, there could be a meaningful relationship where the children - and I emphasise that once again - the “children” - believe that they have been assaulted or abused by the father.
13.Naturally, of course, what I have touched upon comes within the province of s 66CC(2)(b) [semble s 60CC(2)(b)] wherein it is necessary to protect the child, or children in this case, from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. There has been some allegations of family violence during the period of cohabitation. But, in particular - and this is a question of going to credit - the mother has indicated that she looked upon the father as being uncaring. The father denies that.
Immediately prior to his discussion of the primary considerations his Honour had explained that it was necessary for him to consider the provisions of s 66C [semble s 60CC], and because it was necessary to give adequate reasons, he would consider “every one seriatim”.
As I have already noted when recording the father’s submissions on this topic, his Honour appeared to return to the topic of how the children could develop a meaningful relationship with the father at paragraph 37 of his reasons (which paragraph I have previously set out).
The relevant legislation
Section 60CA, which was not changed by the amending Act, provides:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC(1) which was introduced by the amending Act, provides:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Sections 60CC(2)(a) and (b), which were also introduced by the amending Act, provide as follows:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
It is also relevant that I set out s 60B(1) of the Act. It provides as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The Act contains no definition of “meaningful involvement” or “meaningful relationship”.
Relevant legal principles – necessity for adequate reasons
The law in respect of adequacy of reasons is well settled. In Bennett & Bennett (1991) FLC 92-191, the Full Court considered that the test as to the adequacy of reasons propounded by Gray J in the passage appearing hereunder was a useful one and one which applies to discretionary judgments. The Court observed at 78,266:
In Sun Alliance Insurance Ltd v Massoud (1989) VR8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principle judgment, said, at 18:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will in my opinion, be inadequate if:
(a)the appeal court is unable to ascertain the reason upon which the decision is based; or
(b)justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
The decision of the New South Wales Court of Appeal in Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 is also relevant. There Mahoney JA considered the function to be served by the giving of reasons. His Honour said the function included the fact that reasons may be necessary to enable a party to exercise his or her right of appeal, and that the requirement should be seen as an incident of the judicial process. Further, his Honour noted limits to the function:
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear...
He concluded:
But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.
In A & J (1995) FLC 92-619 at 82,230-82,233, the Full Court comprehensively reviewed a number of decisions dealing with adequacy of reasons, specifically to discretionary judgments involving the welfare of a child and said at 82,232:
[where] competing proposals are evenly balanced, [it is] important to avoid an overly critical analysis of the reasons of the trial Judge. This is not to detract from the requirement to give adequate reasons. It simply means that there should be not a microscopic analysis of, for example, words used by a trial Judge, if, in all the circumstances, it is clear that the trial Judge has considered and evaluated all the relevant evidence, taken into account all relevant factors and, importantly, has considered the ultimate welfare of the child as the paramount consideration.
Discussion
His Honour’s task was to make orders which were in the best interests of the children (s 60CA), and in determining those best interests to have regard to the matters set out in s 60CC(2) and (3) guided in his consideration of the provisions by the objects set out in s 60B(1) and the principles underpinning it contained in s 60B(2).
The provisions of the amending Act have been described as resting on “twin pillars” (see Mazorski & Albright (2008) 37 Fam LR 518 per Brown J at paragraph 3). The first pillar is the importance of a child having a meaningful relationship with both parents; the second pillar is the need to protect children from physical and emotional harm.
Brown J’s judgment in Mazorski contains, in my view, a well researched and thorough exposition of the amendments, with reference to the Explanatory Memorandum, and the legislation itself. Her Honour’s discussion is helpful and her conclusions about s 60CC(2)(a) are cogent.
At paragraph 24 of her Honour’s reasons she sets out the dictionary definitions of “meaningful”, and then explains her conclusions on the effect of the term “meaningful relationship”. I respectfully agree with her Honour’s conclusions at paragraph 26 where she says:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In Godfrey & Sanders (2007) 208 FLR 287 Kay J said, in the context of discussing a relocation proposal which involved the father spending less regular periods of time with his child than he was at the date of hearing, “even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.”
The question then raised in this appeal is - Did his Honour appropriately consider, give reasons and craft orders to enable these children to have a relationship with their father, which was, even if not optimal, important, significant and valuable to them, or were orders which would have fostered such a relationship, inappropriate because of risk of physical or emotional harm to them?
In Taylor & Barker (2007) FLC 93-345 Bryant CJ and Finn J at paragraphs 61 and 62 of their judgment examined the question of the appropriate order in which a court should consider the provisions of Part VII after the introduction of the amending Act. Their Honours’ explained at paragraph 62 and 63:
62. The legislation gives no express direction or guidance on this issue. However given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsection (2) (“primary consideration”) and subsection (3) (“additional considerations”) of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.
63. We make it clear, however, that a failure to follow what we see as the logical approach would not lead to appealable error unless such error arose from a failure to give adequate reasons or to have regard to the matters which the legislation requires must be considered.
In Mazorski Brown J dealt with the “additional considerations” (s 60CC(3)), prior to dealing with the primary considerations (s 60CC(2)). I consider in a case such as the present one, it may have focused the trial Judge’s attention on relevant matters to be determined under s 60CC(2) if his Honour had first considered and made findings about relevant factors under s 60CC(3), particularly the nature of the children’s relationship with each of the parties, the capacity of the parties to provide for the needs of the children who believed, perhaps erroneously, that they had been abused by their father, and against that background, the likely effect any change in the children’s circumstances, including the likely effect on the children of any separation from the mother who had been their undisputed primary caregiver.
It is necessary in answering the question which I posed to have regard to the trial Judge’s finding (which is not subject of challenge in the appeal) that on the material before him, that he was satisfied there was no unacceptable risk, if the father spent time with the children, he would sexually abuse them. He did however find the father acted in “a most inappropriate manner” with the children.
It is also not clear, reading his Honour’s reasons as a whole, whether he found that the father’s inappropriate behaviour (which he found included use of “baby talk”, failure to pay child support, and purchase of a motor cycle for the children) was such that the children were at risk of emotional harm if they were to spend unsupervised time with him.
I accept at paragraph 37 of his reasons his Honour does not describe the present relationship with the children as a “meaningful” relationship, but rather refers to “a relationship” thus, prima facie, negating the apparent contradiction referred to by the father’s counsel. However, his Honour does not, except for his brief passing comments in paragraph 37 of his reasons, discuss the oral evidence of the family consultant that the children “obviously, do enjoy seeing their father and they did have some good times with him”, and that a period of supervision fixed until the children were a certain age, “or something like that or therapy again” would assist the mother to accept the orders (Transcript, 10 July 2007 at p 135).
His Honour did not explain whether, if the children’s belief that they had been sexually abused was erroneous, their beliefs were incapable of reversal.
Further, the reasoning in paragraph 37 contemplates the children spending “more and more time” with the father, but this finding is not carried through to the orders.
In summary, I am satisfied that his Honour fell into appealable error in his consideration of s 60CC(2)(a) and (b) as, having found no unacceptable risk of physical abuse by the father, he failed to consider, (having found the children believed they had been subject of sexual abuse), if it was possible or appropriate to make orders to promote a meaningful relationship for the children with the father both in the shorter and more significantly the longer term.
Asserted failure to properly assess the competing proposals and give adequate reasons for accepting or rejecting those proposals
The complaints raised under this topic include the assertion that the trial Judge failed to consider adequately the parties’ respective proposals in his examination of relevant factors under s 60CC, erred in rejecting the father’s proposal that the children live with him and have supervised time with the mother for six months as “farcical”, and failed to take into account that in the mother’s care the children would continue to believe they had been abused, notwithstanding the trial Judge had found no unacceptable risk of sexual abuse of the children by the father if he spent time with them.
Mr Hammond dealt with these complaints in paragraph 2.3 of his submissions as follows:
2.3The Independent Children’s Lawyer shall submit that His Honour erred in failing to sufficiently disclose his reasoning and/or conduct a sufficient assessment of the competing proposals of the parties, failed to sufficiently identify the risks involved in each of those proposals, failed to sufficiently evaluate and assess the magnitude of those risks and failed to consider safeguards that could be put in place to ameliorate the risks, particularly the risk posed by the children being allowed to believe that their father has sexually abused them. M and M (1988) 166 CLR 69; (1988) FLC 91-979
The trial Judge’s treatment of the parties’ competing proposals
In paragraphs 12 to 18 of his reasons the trial Judge considered matters touching upon whether or not the father had sexually abused the children, and/or behaved inappropriately with B. He returned to that topic at paragraphs 21 to 23 of his reasons concluding there was no unacceptable risk of the father abusing the children. As I have already indicated, no complaint is raised by the father in respect of the trial Judge’s methodology in dealing with the sexual abuse issue.
At paragraph 20 of his reasons the trial Judge dealt with the question of psychological harm experienced by the children, with specific reference to paragraph 89 of the family consultant’s report which his Honour referred to as her concern “about the psychological harm which has been and will be perpetrated upon the children by what she generally says is the inability of both parents to submerge their own feelings and advance the welfare of the children.” In fact, the family consultant opined in paragraph 89 of their report as follows:
Whether the allegations are true or not, it appears that Mrs [Moose] is fixed in her belief that they are true, and as such suffers emotional upset whenever the children spend time with their father, and she feels that she is failing to protect them. It is the report writer’s opinion that Mrs [Moose] will continue to find it difficult to follow Court Orders which conflict with her primary goal to protect the children from their father. It is the report writer’s opinion that the children would be at risk of emotional harm, if their mother received a custodial sanction in relation to contravention of orders. This is likely to occur due to their belief that she is trying to protect them, and due to their emotional attachment and sensitivity to her.
I discern his Honour meant to refer to paragraph 86 of her report where the family consultant said:
It is the report writer’s opinion that both parents appear fixed in their positions and highly resistant to change. It appears likely that the conflict will continue unless there is some significant intervention, to prevent continual allegations and notifications of child abuse, which involve ongoing interviewing of the children, and exposure to their mother’s emotional upset.
It appears from his discussion in paragraph 27 that his Honour was therein dealing with relevant matters under s 60CC(2)(b).
His Honour then appeared, at paragraph 28, to deal with the nature of the children’s relationship with the parties (s 60CC(3)(b)), and at paragraph 30 explained that the children “get on well with the father when they are at the contact centre” because they felt safe and “that they do not feel as though they would in any way be interfered with by their father because they have the protection of the contact centre”.
Thereafter, his Honour dealt with the willingness of each of the parties to facilitate and encourage a close and continuing relationship between the children and the other parent (s 60CC(3)(c)) and concluded that “there is little chance of the mother facilitating and encouraging [sic] close and continuing relationship between the child and the other parent”. However, his Honour did not consider the willingness of the father to facilitate and encourage a close and continuing relationship with the mother in the event his Honour acceded to the father’s proposals that the children live with him. Nor from my reading of his Honour’s judgment did he consider any other proposal which might have been in the children’s best interests (see U & U (2002) 211 CLR 238; (2002) FLC 93-112 and Bolitho & Cohen (2005) FLC 93-224).
In dealing with any likely effect of any changes in the children’s circumstances, his Honour said, at paragraph 33:
…I make it quite clear that the application of the father, wherein he submits that the interests of the children require their being removed from the mother and placed with him, that the mother have supervised contact for a considerable period and that the children undergo counselling is, with respect to Mr [Moose], farcical. There is no way, on the evidence - and I can only act on evidence - that I could be convinced, on the evidence before me that these children should be removed from their mother. I would think that I would not be doing my job properly if I did so. The children would suffer enormous trauma. There is already evidence that strong separation anxiety - more so with [S] than with [J] and that is referred to by the kindergarten director, and this is referred to in exhibits 1 or 2. I could never do it.
Discussion
Although his Honour had recorded at the commencement of his reasons he would deal with each factor under s 60CC(2) and (3) seriatim, he did not do so.
His Honour did not consider and assess the impact of the children’s belief, if erroneous, on their psychological development and how each party’s proposal would impact on that development. The family consultant at paragraphs 87 and 88 of her report said:
87.It is the report writer’s opinion that the allegations are extremely serious and if proved to be true would represent a serious risk to the children’s well being. In these circumstances, it is likely that no contact would be recommended. It is important for children’s recovery that they feel that their disclosures are listened to, and they see that action is taken by adults to protect them from future harm, especially by their primary caretaker. If the allegations are true then the fact that Mrs [Moose] believes the children and has taken steps to protect them would be viewed as positive in their recovery and protection from future harm.
88.If the allegations are not true then the children have suffered a major injustice in interference in the development of a safe and trusting relationship with their father, and possible effects on the development of their identity.
His Honour’s failure to undertake the task I have identified above is starker in this case because of his finding of no unacceptable risk of sexual abuse by the father, and although he made a finding of inappropriate behaviour by the father, he did not make a finding that the father posed a risk of emotional abuse to the children by reason of the behaviour he cited.
Further, although in paragraph 37 of his Honour’s reasons he discussed briefly the geographical distance between the parties’ respective residences, he did not consider and make findings about the practical difficulties and expense involved in the children spending time with each of the parties. I propose to discuss this failure later in my reasons when considering the order for continuing supervised visits in a children’s contact centre.
The failure to assess and make findings about these issues fundamental to children’s best interests, in my view, constitutes appealable error.
Asserted error in dealing with the principles in Russell & Close
This complaint of error by the trial Judge overlaps substantially with the complaints raised in respect of his Honour’s failure to consider the father’s proposals that the children should live with him, and his asserted capacity to provide for their needs including their emotional needs
It was asserted on behalf of the father that “his Honour was bound to consider [the father’s] proposals…..and in a tempered way measure them against the proposals of [the mother].” (Father’s submissions, p 11, paragraph 28). Earlier in his submissions the father’s counsel (at paragraph 16) submitted that his Honour’s enquiry “concerning the [mother’s] ideation did not go to whether her own capacity to parent the children would be compromised should they spend time with their Father”.
The father’s counsel further submitted:
…[i]t is submitted that, upon a true analysis, the Full Court in Russell v. Close did not express the bare proposition that a subjective belief in the existence of sexual abuse by the custodial parent would adversely affect that person’s capacity to parent the children. Were it so, then any irrational but genuine belief would be a trump to an application that the children spend time with the other parent. (Father’s submissions, pp 6-7, paragraph 16)
In the alternate, the father’s counsel submitted that if Russell & Close was authority for the proposition set out in paragraph 16, (which was doubted) then it was a case which should be construed on its own facts, or was no longer applicable after the introduction of the amending Act.
Although, as I will shortly discuss, it appears his Honour did not apply the principles in Russell & Close, the mother’s counsel submitted that the “case is one that clearly required the principle of Russell and Close be followed in the Final Orders” (Mother’s submissions, p 5, paragraph 17).
The trial Judge’s consideration of Russell & Close
At paragraph 36 of his reasons, his Honour referred to the decision in Russell & Close (albeit incorrectly referred to as Ryan and Close) and summarised the principles expounded by the Full Court in that decision as follows:
Ryan [sic] and Close is a principle which was enunciated some considerable years ago in a single judgment. It was for a considerable period, as far as I am concerned, overlooked. It is a particularly important principle applicable in this case and if I may just generalise upon it, it is that if, in fact, I am satisfied that a belief of - as it was in those days - the custodial parents as to the safety of the children is such, notwithstanding there may be no evidence as I have touched upon before, such that she cannot comfortably comply with any order of the Court, or that such compliance will cause her to be less of a parent, I could not make an order that will increase such a risk. In this case I am satisfied that she comes within the principle of Ryan and Close, though that is not necessary for my decision.
The decision in Russell & Close and consideration of that decision in A & A
The decision in Russell & Close is a decision of the Full Court (Fogarty, Baker and Lindenmayer JJ). Their Honours recorded that the case before the trial Judge involved a mother who believed the father had sexually abused one of the parties’ two children. Medical examination of the child disclosed likely sexual abuse. The trial Judge was unable to make a positive finding that the father had perpetrated sexual abuse, and refused the father’s application for overnight unsupervised access (as it was then described in the Act). Having reviewed the authorities relevant to cases where allegations of sexual abuse were raised, their Honours then considered under the heading “Relevance of custodial parents beliefs” the authorities on that topic. At paragraphs 32 and 33 of their reasons, the Full Court said:
The responsibilities and obligations of courts exercising jurisdiction under the Family Law Act in relation to children were set out at length in B and B (1993) at page 79,799. In summary, it was stated by the Full Court that:
it can be seen that the obligation cast upon the Family Court by statute is not only to promote children’s welfare (the content of which varies with changing social values regarding children) but also to uphold children’s rights (including the fundamental common law right of personal inviolability and the right to protection from physical and mental abuse laid down in the Rights of the Child Convention and implied by s64(1)(bb)(va) and ss70BA and BB of the Family Law Act).
In upholding children’s right to protection from sexual, psychological and/or emotional harm, the court must take into account any anxiety on the part of the primary caregiver concerning the child’s exposure to potential harm where such anxiety is likely to impact adversely on that parent’s caregiving ability.
In taking into account the belief of the custodial parent of abuse by the non-custodial parent of the children and the effect of such belief on that parent as primary caregiver of the children, and consequent harm to the children, a subjective test is employed. However, it must be shown that such belief on the part of the custodial parent is genuinely held. Where it appears on the whole of the evidence that such belief is entirely irrational and baseless, the genuineness of the subjective belief of the custodial parent will clearly be open to doubt.
The issue of a primary parent of a child’s beliefs of sexual abuse was further considered in A & A.
At paragraphs 3.27 - 3.28 the Full Court (Fogarty, Kay and Brown JJ) said:
It is only in cases where the trial judge reaches a conclusion that objectively there was no unacceptable risk that that Judge would need turn to the separate question of the wife’s belief in the occurrence of the events in question as a separate matter, as the judgment of the Full Court in Russell and Close (25 June, 1993, unreported but frequently referred to in this area) demonstrated: see also, for example, Re Andrew (1996) FLC 92-692 , which has some similarities with this case.
If the wife had such a belief, it is not a necessary component that the belief should be reasonably and objectively based. What is required at this level of the inquiry is that it was genuinely held. The reason for that, as explained in Russell and Close and in cases which have followed that since, is that if the wife genuinely holds that belief that may so impinge upon her capacity as the primary carer of the children to look after them that the question arises whether in the interests of the children contact should continue and/or whether it should be supervised to allay those apprehensions.
In this case the trial Judge found no unacceptable risk. His Honour, at paragraph 29, referred to the mother’s beliefs, and made a finding her belief that the father had sexually abused the children was a genuine one, and later at paragraph 33 determined that, as a result of her beliefs there was “little chance” she would encourage a close and continuing relationship between the father and the children. His Honour then, at paragraph 36, summarised, the principles referred to above in Russell & Close, and determined that he was satisfied “that [the mother] comes within the principle of Ryan [sic] and Close” but went on, without further explanation, and said “though that is not necessary for my decision”. I am unable to discern, because of his Honour’s lack of reasons, what caused him to say the mother’s belief, and the effect of those beliefs, if any, on her capacity to parent the children as their primary caregiver was “not necessary” for his decision.
In summary, I accept that his Honour did, albeit in a truncated manner, refer to the principles set out in Russell & Close and A & A. If, as it appears from his Honour’s reasons, his discussion of the principles in Russell & Close played no part in his ultimate determination, then the challenge enunciated by the father’s counsel is irrelevant. If his Honour’s findings about the mother’s beliefs and her capacity to parent the children were pivotal to the orders ultimately made, it is impossible to determine the weight, if any, his Honour gave to those matters, after his apparent rejection of them, by reason of lack of adequate reasons.
As we did not have the benefit of any substantial argument before us, and it is not necessary for the determination of this appeal, I consider it unnecessary to discuss the effects, if any, of the amending Act on the principles referred to in Russell & Close.
Asserted error in failing to consider whether the principles in Rice & Asplund applied
In Ground 8 (being one of the additional grounds in respect of which we granted leave to amend the Notice of Appeal) it is asserted that his Honour erred in failing to consider the principles in Rice & Asplund. It is not in doubt that the principles enunciated in Rice & Asplund remain relevant post the amending Act (see SPS & PLS [2008] FamCAFC 16 and Hungerford & Tank [2007] FamCA 637).
We were also referred to D v Y (1995) FLC 92-581; 18 Fam LR 662. I discern reference to this decision of the Full Court was to support a proposition that the principles in Rice & Asplund could have been dealt with in the discretion of the trial Judge (or may be dealt with by us on the re-exercise of the discretion), as a “threshold issue” or at the conclusion of a defended hearing.
Before us, this challenge was principally mounted on the basis that his Honour should not have departed from the consent orders. The father’s counsel submitted that the trial Judge was “addressing a circumstance of no material change”, and further, the changes were “not the changes of a material nature that ...would call upon the Court to exercise again the powers that it has already exercised”. Thus, he submitted it was “a doctrine of law that his Honour was still bound to consider and ... ought to have” (Transcript, 7 November 2007, p 29-30). On this basis, the father’s counsel submitted that if we found error we could re-exercise the discretion, and on the basis of no material change, reinstate the consent orders. He further submitted that “his Honour ought to have applied the doctrine and dismissed [the mother’s] application” (Transcript, 7 November 2007, p 33).
During the hearing before us, in response to a question from the bench, the father’s counsel acknowledged another aspect of the complaint based on the principles in Rice & Asplund would be the difficulty faced by the father in seeking further orders in respect of the children (Transcript, 7 November 2007, p 48). This latter complaint is in my view one which falls more conveniently for discussion in addressing the complaint directed to his Honour’s order which provides for indefinite supervised periods in a children’s contact centre.
Counsel for the father readily conceded that the principles referred to in Rice & Asplund were not raised by the parties’ legal representatives, or the ICL at the trial. Nevertheless he submitted his Honour was bound to consider whether there had been a significant or substantial change of circumstance which would warrant revisiting the orders made by consent as recently as February 2005, and further, regard should also have been afforded to consent orders made after four hearing days before Warnick J in April 2004 at which time the mother had raised the allegations of sexual abuse.(Transcript 7 November, 2007 at p 8)
Before us, the mother’s counsel submitted that further allegations of sexual abuse had been raised by the mother after the consent orders, and the allegations were contained in Exhibits 1 and 2. I have already referred to the lack of discussion by the trial Judge about particular documents in Exhibits 1 and 2 save and except a brief reference to a statement by a kindergarten teacher (paragraph 33). As I have earlier explained, it is impossible to deduce from his Honour’s reasons the content of the documents, or the weight he gave to some, or any of them.
Although the trial Judge did refer at the commencement of his reasons to the long history of litigation in this matter, he did not consider whether there had been any significant or substantial change since the consent orders. Whilst the omission of consideration of the principles espoused in Rice & Asplund by the trial Judge may be considered explicable because of the manner in which the proceedings were conducted, his Honour should, in the circumstances of this case where allegations of sexual abuse were followed by the making of consent orders providing for unsupervised contact, have considered the earlier orders and whether there should be a departure from them. I accept his Honour failed to give any reasons to demonstrate why he determined he should depart from the earlier orders particularly in light of his no “unacceptable risk” findings, and this failure constitutes appealable error.
Asserted error in making orders for indefinite time spent at children’s contact centre
The thrust of this complaint was that the trial Judge had made an order which was effectively for permanent supervision and that such an order was not practical or would become impractical.
The trial Judge at paragraph 31 discussed the issue of contact in a children’s contact centre and said:
The mother has grudgingly, I would say, conceded that the children should have contact with their father so long as it is at a contact centre. She is concerned that such supervised contact will lead to unsupervised contact and that is her great concern. She has this fear which, to an outsider, to a person standing on the sidelines, to the man on the bus, may seem wrong. But she has it and I believe it is genuine. She must realise that, in fact, it will not move from supervised contact to unsupervised contact without either:
a)her consent; or
b) the approval of the Court,
and I would sincerely hope that that is conveyed to her by the legal advisors.
His Honour had, in the immediately preceding paragraph, noted that the children felt “safe” at the contact centre.
Although in her report the family consultant recommended the children should only see the father at a contact centre six times per year (Family Report, paragraph 93), as I have already recorded in an excerpt from the transcript, she modified that view in her oral evidence.
In his final submissions to the trial Judge, counsel then appearing for the ICL submitted:
MR THEOBOLD: But - so it’s a matter, your Honour, in my submission, of putting the children in a situation that they feel safe, leaving them in that situation until they’re old enough, as their mother says, to go on contact. It’s not a matter of them being old enough to tell someone if something happens. It’s a matter of them being old enough to say “Don’t do it”. (Transcript 10 July, 2007 at p164)
Discussion
As I have already explained, at the commencement of his reasons, the trial Judge indicated he proposed to deal with s 60CC(2) and (3) factors seriatim, but did not do so. In particular his Honour did not consider in any substantial way factors relevant to s 60CC(3)(e) or consider factors relevant to s 60CC(3)(l) at all. That latter sub-section provides:
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The undesirability of, and the practical difficulties associated with long term supervision in a children’s contact centre are referred to in the Guideline for Family Law Courts and Children’s Contact Services January 2007, Part C 4.1.1 and 4.1.2 (published by the Attorney-General’s Department, the Family Court of Australia and the Federal Magistrates Court of Australia). In Fitzpatrick & Fitzpatrick (2005) FLC 93-227, May J, having found that the evidence in the case “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised…”, then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then explained “[w]hilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored”. (See also W & W [Abuse allegations: unacceptable risk] (2005) FLC 93-235, (2005) 34 Fam LR 129 at paragraph 114).
His Honour’s reasons omit consideration of the family consultant’s oral evidence, the recommendations of the ICL, or discussion of the practical long term effects on the children of an indefinite order for supervised contact in a children’s contact centre, nor do the orders reflect his Honour’s findings that the children should spend more and more time with the father as “they get older”. Thus, I am satisfied this complaint has merit.
Conclusions - issues raised in the grounds of appeal
As I recorded at paragraph 46 of these reasons, there was substantial overlap with the complaints raised by the father’s counsel, in relation to specific challenges and the overarching complaint of lack of adequate reasons. From the discussion of each of the complaints it is apparent I found merit in those complaints individually. As well, the submission that his Honour had fallen into appealable error by lack of adequate reasons to discern the path whereby he concluded the children should indefinitely only see the father twelve times per year in a children’s contact centre was, in my view, established.
Re-exercise of the discretion or remission for rehearing
I have already set out the submissions of counsel for the father and Mr Hammond on this issue. I am satisfied that the lack of discussion by his Honour about the content of Exhibits 1 and 2, together with the absence of consideration and findings by his Honour of relevant matters under s 60CC, means regrettably it is not possible for this Court to re-exercise the discretion and that there must be a retrial. That determination also means, in my view, that this Court could not determine the mother’s application on a “threshold issue” under Rice v Asplund, nor could we consider the principles in that case having reviewed all the evidence before the trial Judge on a “final” basis.
The consequence of the appeal being allowed is that the trial Judge’s orders will be set aside. If those orders are discharged immediately, there is uncertainty about the status of the interim orders made by Bell J on 29 May 2006, which in any case, it appears are not materially different to his Honour’s final orders in that they provide for the father to spend time with the children at a children’s contact centre.
It appears to me that this Court is also not in a position, by reason of lack of up to date evidence, to make appropriate interim orders applying the principles enunciated in Goode & Goode (2006) FLC 93-286 which are in the best interests of the children.
Mr Hammond submitted that the discharge of his Honour’s orders should be stayed until the mother’s application was relisted before a Judge at first instance who could determine appropriate orders (including orders for the preparation of an up to date Family Report). The consent orders were made over three years ago when both parties lived in the Gold Coast area. They may now not be in the best interests of the children. It is highly likely if those consent orders were now to be the operative orders on discharge of the orders of 12 July 2007 the result would be an urgent application to a court to vary the consent orders. In these circumstances, I see much practical merit in Mr Hammond’s submission that the discharge of the orders of 12 July 2007 be stayed until the matter is listed before a Judge at first instance which should occur as soon as possible. As this matter was originally heard in the Lismore Registry, the appropriate venue for the rehearing can be determined by that Judge.
Costs of the appeal
As I have determined that there has been an error of law, I accept it is appropriate that the parties and the ICL should receive a certificate under the relevant provisions of the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and the re-hearing.
O’REILLY J
I agree that the appeal must be allowed and agree also with the orders proposed by May and Boland JJ.
In matters concerning children, s 60CC(1) of the Family Law Act 1975 (Cth) (the Act) makes clear that in determining what is in a child’s best interests the Court must consider the matters set out in s 60CC(2) and (3).
In some cases, not all matters will be relevant. For example, s 60CC(3)(h) would not fall to be considered in cases concerning non Aboriginal or Torres Strait Islander children; and s 60CC(3)(j) and (k) would not fall to be considered in cases where there has been no family violence or family violence order of the type described. Each of these provisions however is prefaced by a word or words denoting only contingent applicability. Thus, s 60CC(3)(h) is prefaced with the word “if” and each of s 60CC(3)(j) and (k) is prefaced with the word “any”.
Otherwise, it is not for the individual judge to decide which matters are relevant or irrelevant to be considered (outside the ambit of s 60CC(3)(m), which invites the consideration of further matters that the court thinks are relevant). Rather, the statute mandates the list of matters which are relevant to be considered.
The principal question in the appeal, in effect, is whether the trial judge adequately “considered” the matters in s 60CC(2) and (3).
“Consider” is defined in the Australian Concise Oxford Dictionary (relevantly) as “contemplate mentally”, “weigh merits of”, “give mental attention to”.
In Goode & Goode (2006) FLC 93-286, the Court said that “consider” as used in s 65DAA(1)(a) and (b) of the Act suggests a need to consider “positively” the subject matter of those provisions. However, words necessarily must take their meaning from context. Thus, I do not suggest that “consider” in s 60CC(1) necessarily means to consider “positively”. Rather, in the context of s 60CC(1) “consider” should be interpreted as having its ordinary meaning, that is, not only to “give mental attention to” the subject matter to be considered but to “weigh the merits of” the evidence for and against the subject matter to be considered.
Despite stating an intention to deal with the s 60CC matters “seriatim”, unfortunately his Honour’s analysis of the s 60CC matters is incomplete, in that some of the s 60CC(3) matters are not referred to in his Honour’s progressive analysis of those matters, and do not appear to be dealt with elsewhere in the judgment. This is most clearly demonstrated by reference to paragraphs 33 and 34 of the judgment, at which point his Honour had dealt progressively with some (most) of the statutory matters through to s 60CC(3)(d), but then his Honour made no reference to s 60CC(e), (f) or (g) and jumped to s 60CC(3)(h), (i), (j) and (k). Thus, his Honour did not, at least at the “progressive analysis” part of the judgment, deal with the matters of practical difficulty and expense (s 60CC(3)(e)); the capacity of each of the children’s parents to provide for their needs, including their emotional and intellectual needs (s 60CC(3)(f)); and the maturity, sex, lifestyle and background of the children and the parties (s 60CC(3)(g)).
At the commencement of the s 60CC(3) exercise, his Honour omitted reference also to s 60CC(3)(a), namely any views expressed by the children and any factors such as their maturity or level of understanding the court thinks are relevant to the weight it should give to the children’s views.
It is relevant to mention also the circumstance that at the end of his Honour’s progressive analysis he stopped short of dealing with s 60CC(3)(l), namely whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.
The question then which arises is whether elsewhere in the judgment his Honour dealt with the matters omitted from his progressive analysis.
Regrettably, so far as is evident from the judgment, it appears that his Honour did not anywhere give proper consideration to the father’s capacity to provide for the needs of the children, including their emotional and intellectual needs. Indeed, it was central to the father’s case that he, more so than the mother, had the capacity to provide for the children’s needs because of the mother’s belief, which the father maintained to be an erroneous belief, that he had sexually abused them. The father’s capacity thus was a particularly important matter, having regard to the history of the mother repeatedly reporting allegations of sexual abuse and his Honour’s conclusion that he had grave concerns as to any court being satisfied on the evidence before him that sexual abuse of the children by the father took place (paragraph 22).
Mr Pellandine, for the mother, properly conceded that in his Honour’s judgment “there is nothing particularised under this heading”. It was urged however that in at least three discrete parts of the judgment his Honour nonetheless dealt with the father’s capacity to provide for the needs of the children thus sufficiently demonstrating a proper and sufficient consideration of the father’s parenting capacity.
The first part relied upon by Mr Pellandine comprises paragraphs 37 (last sentence), 38 and 39. Here, his Honour referred to the purchase by the father of motor bikes for the children, referred to earlier (paragraph 24) as a “pee wee 50cc for some $500” one or two years before the children’s birthday in December 2006 and another for their birthday in December 2006 which had cost $800. As to this his Honour said (expressly “in passing”: see paragraph 38) that this was “another sign of his total lack of caring for the children”, describing that the children saw the $800 bike on one occasion at the contact centre and adding “And since then they have not seen it again”. His Honour said “I am quite satisfied that it has been indicated to the children by him that they will get the bike when they get to live with him. I am quite satisfied of that and I think it is absolutely appalling. It is like an Indian-giver”. His Honour said expressly however (paragraph 39) that this “is something that I have taken into consideration”.
The second part relied upon by Mr Pellandine comprises observations by his Honour in relation to the father’s child support history (paragraphs 24 and 26). These include reference to the child support history evidencing “little caring for them”; reference to his Honour’s belief that there is “some psychological problem for the boys” arising out of this circumstance; and that his Honour did “not believe that he is thinking of his children in relation to that as much as he should, rather he is endeavouring to take it out on the mother”.
The third relates to the father’s use of “baby-talk” or talking to the children in “very baby-ish tones, notwithstanding the children are growing up” (paragraphs 23 and 35).
Mr Pellandine urged that these three examples showed that his Honour had the “overall perspective” of the father “not being an adequate parent” and one who did not have a “normal caring attitude” towards the children.
In my respectful view, the statutory task under s 60CC(3)(f) to “consider” the father’s capacity to provide for the needs of the children was not discharged in that his Honour (1) made negative observations as to the father’s capacity to provide for the needs of the children, being the three categories of matters referred to by Mr Pellandine; (2) did not refer to any positive aspects of the father’s capacity to provide for the needs of the children nor, if it be the case, observe that on the evidence there were none; and (3) thus, as far as may be taken from the judgment, failed to “weigh the merits of” the father’s capacity to provide for the needs of the children. In short, his Honour’s touching upon the three plainly negative matters relied upon by Mr Pellandine, in my respectful view, was an inadequate examination of the subject matter to show a proper consideration of it, amounting to a material error causing the exercise of the discretion to miscarry.
I would mention also his Honour’s s 60CC analysis in relation to s 60CC(3)(d), and his conclusion that the father’s proposal that the children live with him was “farcical”. The finding is in paragraph 33:
Insofar as 60CC(3)(d) is concerned, the likely effect in the changes of the child’s circumstances and including the likely effect on any separation from his or her parent, I make it quite clear that the application of the father, wherein he submits that the interests of the children require their being removed from the mother and placed with him, that the mother have supervised contact for a considerable period and that the children undergo counselling is, with respect to Mr [Moose], farcical. There is no way, on the evidence – and I can only act on evidence – that I could be convinced, on the evidence before me that these children should be removed from their mother. I would think that I would not be doing my job properly if I did so. The children would suffer enormous trauma. There is already evidence that strong separation anxiety – more so with [S] than with [J] (sic) and that is referred to by the kindergarten director, and this is referred to in exhibits 1 or 2. I could never do it. (emphasis added)
His Honour’s reasoning to support the determination that the father’s proposal was “farcical” was limited to the context of paragraph 33 which expressly dealt only with s 60CC(3)(d). His Honour made clear his determination (in effect) that there was “no way” he could be convinced to place the children with the father when considering s 60CC(3)(d), before he had completed his s 60CC analysis.
His Honour was required to consider all of the s 60CC(2) and (3) matters before determining the matter of the children’s best interests.
The approach his Honour took foreclosed the question whether the children’s best interests would be met by living with the father, by determining that it would not, before he had considered all of the matters he was required to consider, including the evidence in relation to them, in determining that very question.
In my respectful view this amounts to a further material error causing the exercise of the discretion to miscarry.
I would allow the appeal.
I certify that the preceding One Hundred and Fifty (150) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 15.07.08
55
7
3