Nghiem and Alberts & Ors
[2020] FamCAFC 187
•6 August 2020
FAMILY COURT OF AUSTRALIA
| NGHIEM & ALBERTS AND ORS | [2020] FamCAFC 187 |
| FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Where the primary judge declined to make the orders sought by the appellant to have the children returned to live with her – Where the primary judge declined to disqualify himself – Whether the primary judge should have disqualified himself – Where the primary judge’s reasons for judgment are adequate – Weight and assessment of considerations under s 60CC of the Family Law Act 1975 (Cth) and the single expert’s opinions – Appeal dismissed – Appellant to pay the respondents’ costs in fixed sums. |
| Family Law Act 1975 (Cth) ss 60CC, 94(1AA), 94(1A) Family Law Rules 2004 (Cth) rr 1.14, 22.03 |
| Antoun v The Queen (2006) 224 ALR 51; [2006] HCA 2 Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7 Collu & Rinaldo [2010] FamCAFC 53 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Donnell & Dovey (2010) FLC 93-428; [2010] FamCAFC 15 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 Hall and Hall (1979) FLC 90-713; [1979] FamCA 73 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 Slater v Light (2011) 45 Fam LR 41; [2011] FamCAFC 1 Smith and Smith (1994) FLC 92-488; [1994] FamCA 167 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 |
| APPELLANT: | Ms Nghiem |
| FIRST RESPONDENT: | Mr Alberts |
| SECOND RESPONDENT: | Mr Thach |
| THIRD RESPONDENT: | Ms Hoang |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 679 | of | 2017 |
| APPEAL NUMBER: | EAA | 117 | of | 2019 |
| DATE DELIVERED: | 6 August 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge, Kent & Austin JJ |
| HEARING DATE: | 7 July 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 October 2019 |
| LOWER COURT MNC: | [2019] FamCA 704 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr O’Ryan QC with Mr Richards |
| SOLICITOR FOR THE APPELLANT: | Harris Freidman Lawyers |
SOLICITOR FOR THE FIRST RESPONDENT: | Godden Lawyers |
COUNSEL FOR THE SECOND RESPONDENT: | Mr Fermanis |
| SOLICITOR FOR THE SECOND RESPONDENT: | Phillip A Wilkins & Associates |
COUNSEL FOR THE THIRD RESPONDENT: | Mr Coleman SC |
SOLICITOR FOR THE THIRD RESPONDENT: | Forshaw Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Ward |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
The appeal be dismissed.
The appellant is to pay the costs of:
(a) the first respondent fixed in the sum of $4,000;
(b) the second respondent fixed in the sum of $4,060; and
(c) the third respondent fixed in the sum of $4,410.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nghiem & Alberts and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 117 of 2019
File Number: SYC 679 of 2017
| Ms Nghiem |
Appellant
And
| Mr Alberts |
First Respondent
And
| Mr Thach |
Second Respondent
And
| Ms Hoang |
Third Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
Ms Nghiem (“the appellant”) appeals against final parenting orders made by a judge of the Family Court of Australia in relation to her two children, which she sought to have returned to live with her.
X was born in 2016. At the time of the hearing before the primary judge, he was living with his father, Mr Alberts (“the first respondent”), pursuant to earlier interim orders.
Y was born in 2010. Her father is Mr Thach (“the second respondent”). At the time of the hearing before the primary judge, Y was living with her paternal grandmother, Ms Hoang (“the third respondent”), also pursuant to earlier interim orders.
The primary judge declined to make the orders sought by the appellant to have the children returned to live with her. Instead, his Honour ordered that X was to remain living with the first respondent, who was to have sole parental responsibility for him. X was to spend unsupervised time with the appellant increasingly over seven stages. Initially, it was to be for two hours each Saturday and Sunday. Thereafter, the time that X was to spend with the appellant gradually increased so that ultimately, from the commencement of Term 1 of 2021, X was to spend time with the appellant in a two week cycle, from the conclusion of school on Friday until the commencement of school on Monday in Week 1 and, from after school on Wednesday until the commencement of school on Thursday in Week 2. Generally speaking, X was to spend a substantial part of the school holidays with the appellant and, from 2022, X was to spend half of the school holidays with the appellant.
The orders made by the primary judge provided for Y to live with the third respondent, who was to have equal shared parental responsibility for her along with the second respondent. Y’s time with the appellant was to commence only after they completed six family therapy sessions together. Initially, that time was to be supervised for two hours per week. Thereafter, that time was to increase in stages until Y spent each alternate weekend with the appellant, from after school on Friday until the commencement of school on Monday, provided that X’s school was within a 10 kilometre radius of Y’s school. If not, Y’s time with the appellant was to occur from the conclusion of school on Friday until 5.00 pm on Sunday. Y’s school holiday time with the appellant was to match the orders that applied to X from the commencement of school in 2021.
The appeal is opposed by each of the respondents and the Independent Children’s Lawyer (“ICL”).
Background
The appellant and the second respondent commenced a relationship in 2006 and married in 2007. They separated in either September 2009 or early 2010. Y was born in 2010, and shortly after, according to the appellant, the appellant and the second respondent reconciled.
Later that year or early 2011, the appellant and the second respondent again separated. They were divorced in 2013.
In February 2011, Y commenced living with the third respondent on weekdays and returned to the appellant’s care on weekends.
The appellant commenced a relationship with the first respondent in September 2014.
In March 2015, Y moved to a new school, as agreed between the appellant and the third respondent.
Shortly thereafter, in June 2015, the appellant and the first respondent separated.
Y returned to the appellant’s care in July 2015 and she moved to a new school.
X was born in 2016. From March to June of that year, the first respondent spent time with X in the evenings, whilst the appellant worked. From June to September 2016, the first respondent cared for X from after work on Friday until Sunday.
In mid-September 2016, the first respondent and the third respondent agreed that the third respondent should assist with X’s care, however when the appellant found out about this arrangement, she removed X from the first respondent’s care.
On 14 September 2016, police officers took the appellant to a mental health facility due to threats of suicide. The police became concerned about the appellant’s care of the children and the Department of Communities and Justice became involved.
X returned to the care of the first respondent on 9 October 2016, pursuant to an agreement between him and the appellant.
Y was in the care of the third respondent for the school holidays in January 2017, she then passed into the care of the second respondent.
On 6 February 2017, the appellant commenced separate proceedings in the Federal Circuit Court of Australia seeking the recovery of both children.
On 9 February 2017, interim orders were made for X to return to live with the appellant and for him to spend time with the first respondent.
Interim consent orders were made on 13 February 2017, which provided for Y to return to live with the appellant and for her to spend two nights per week with the second respondent.
It seems that these interim orders were not complied with, leading to a recovery order in favour of the appellant being made on 19 July 2017. The interim consent orders were discharged and orders were made for Y to live with the appellant and to spend time with the second respondent for two nights per week. That time was, by consent, extended to three nights per week on 31 August 2017 and then adjusted on 20 September 2017, by consent, to three nights each alternate weekend.
On 25 October 2017, the separate proceedings in relation to Y and X were consolidated.
The appellant slapped Y on the face on 28 November 2017. Ultimately, the appellant was convicted of assault and placed on a good behaviour bond. An Apprehended Violence Order for the protection of the children was put in place for a 12 month period. The children were removed from the appellant’s care on 1 December 2017, with X being placed with the first respondent and Y with the second respondent.
Interim orders were made on 11 December 2017, which suspended the earlier parenting orders and provided for the children to live with their respective fathers. That position was continued after a contested interim hearing on 15 January 2018, with orders made on 17 January 2018, which provided for the appellant to spend supervised time with X but not Y, and for Y and X to spend time together. The matter was then transferred to the Family Court of Australia.
On 16 November 2018, a Registrar joined the third respondent as a party to the proceedings and made orders for Y to live with the third respondent and to spend time with the second respondent and X. X remained in the care of the first respondent and the orders provided for him to spend supervised time with the appellant.
The Appeal
Grounds 1 to 8 assert that the primary judge erred by failing to disqualify himself when asked to do so by the appellant. Grounds 9 to 14, 16 and 17 challenge the adequacy of his Honour’s reasons for judgment. As Grounds 1 to 8 challenge the integrity of the trial process itself, it is necessary to deal with them first (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [117] and Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10]). Ground 15 was withdrawn in the Amended Notice of Appeal.
Should the primary judge have disqualified himself? (Grounds 1 to 8)
The hearing before the primary judge commenced on 1 July 2019. On 9 July 2019, the parties and the ICL gave their closing submissions. Counsel for the ICL addressed the Court first, followed by counsel for the first respondent, counsel for the second respondent, counsel for the third respondent and then counsel for the appellant. In the course of the submissions by counsel for the third respondent, the primary judge described a position held by the appellant as “laughable”. We shall return to the detail of that shortly.
Counsel for the appellant commenced his address by asking the primary judge to disqualify himself. His Honour refused and made an order to that effect on 9 July 2019. His Honour, with the consent of the appellant, indicated that his reasons for doing so would appear in the final reasons for judgment.
A Notice of Appeal was filed on 31 October 2019 and an Amended Notice of Appeal was filed on 23 April 2020 challenging the final parenting orders made on 3 October 2019 and asserting that the primary judge erred by failing to disqualify himself.
This raises a minor procedural issue. In most jurisdictions, appeals against a judge’s refusal to recuse himself or herself form part of an appeal against the final orders (Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478), subject to an application for leave to appeal earlier being granted. The position is different under the Family Law Act 1975 (Cth) (“the Act”) because s 94(1AA) provides that an appeal lies from such a refusal. Section 94(1A) of the Act requires that any appeal under s 94(1AA) “be instituted within the time prescribed by the standard Rules of Court or within such further time as is allowed in accordance with the standard Rules of Court”.
Thus, applying r 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”), any appeal against the primary judge’s refusal to recuse himself should have been filed within 28 days of 9 July 2019. Unfortunately, such a course would result in two separate appeals, since the final parenting orders are also the subject of an appeal.
The appellant did not follow that course but instead included her grounds of appeal challenging the primary judge’s refusal to disqualify himself on 9 July 2020 in her Notice of Appeal and Amended Notice of Appeal. In order to challenge that order, an extension of time in which to appeal must be granted to the appellant under r 1.14(2) of the Rules.
Recognising this, the appellant filed an Application in an Appeal on 1 April 2020 seeking such an extension of time in which to appeal and, to the extent necessary, leave to appeal. The extension of time was not opposed by the other parties and we made the order sought by the appellant at the commencement of the hearing of the appeal. Leave to appeal is not required given the express terms of s 94(1AA) of the Act.
We propose to deal with Grounds 1 to 8 together, much as the appellant did in her Summary of Argument filed on 23 April 2020. Indeed, it is not at all apparent why there are eight grounds of appeal dealing with this issue since one would have sufficed.
It is helpful to set out the context in which his Honour’s remarks were made before turning to them.
In the appellant’s trial affidavit filed on 5 June 2019 at paragraph 307, the appellant raised concerns that the third respondent had made derogatory comments about her to Y and that the third respondent did not respect the appellant’s role as Y’s mother.
The appellant alleged that in 2013, the third respondent said that she needed to have Y in her care so that she could stay on Centrelink payments (Appellant’s affidavit filed on 5 June 2019, paragraph 38). The appellant also said that on 17 August 2017, Y said to her that the third respondent wanted Y to say that she wanted to live with the third respondent (Appellant’s affidavit filed on 5 June 2019, paragraph 155).
The appellant told the single expert psychiatrist who prepared a report for the benefit of the Court, that the third respondent was brainwashing Y and wanted her to hate the appellant and love only the third respondent (Single expert’s report dated 7 May 2019, p.20). The single expert said in her report dated 7 May 2019 at page 27 that the appellant “appeared determined to make a case for ‘parental alienation’” and that the appellant believed that some video clips provided “strong evidence” of this.
At paragraph 4 of her case outline document before the primary judge dated 25 June 2019, the appellant submitted that “at least since [Y] has been removed from [the appellant’s] care, the [third respondent] and the [second respondent] have actively sought to negatively interfere with [Y’s] previous close relationship that she has had with the [appellant]”.
In opening the appellant’s case at the hearing before the primary judge, counsel for the appellant said that “[i]t’s the [appellant’s] case, and she maintains that [Y’s] current view has been influenced by both the [second respondent] and the [third respondent]” (Transcript 1 July 2019, p.3 lines 9–11).
This aspect of the appellant’s case was explored with the single expert in cross- examination, who accepted that Y had been influenced by the second respondent and the third respondent. The single expert also accepted that if Y had said some of the things that the appellant alleged, such as the third respondent saying to Y that if she went to live with the appellant, the appellant would kill her, that would be very serious indeed. The single expert was sceptical as to whether that was so, but correctly said that such matters of fact were for the primary judge to decide (Transcript 5 July 2019, p.511 to p.516).
In the course of cross-examination, the appellant said:
[THE APPELLANT]: … [Y] stay with me only for one month in February, and during that time, because she was with – [the third respondent] had [Y] for up to four years old and she missed [Y]. She wasn’t – she didn’t cope without [Y], so she keep asking me to send [Y] back to her.
(Transcript 2 July 2019, p.150 lines 33–36)
[THE APPELLANT]: … [The third respondent’s] different. Because [the third respondent], she was very lonely, and that was she want – and [Y] – I know she had [Y] for three years, four years – three years. That’s why she feel lonely and she want [Y] with her.
[COUNSEL FOR THE ICL]: And is that – so you believe that’s her motivation to care for [Y]? To - - -?
[THE APPELLANT]: --Yes.
[COUNSEL FOR THE ICL]: - - - satisfy her own loneliness, is that right?
[THE APPELLANT]: --- Yes. See, [Y’s] like an asset, her personal asset.
[COUNSEL FOR THE ICL]: Sorry, [Y] is like an asset?
[THE APPELLANT]: --- Her personal asset.
[COUNSEL FOR THE ICL]: Are you saying “asset”?
[THE APPELLANT]: --- Her personal property.
(Transcript 3 July 2019, p.224 lines 35–46)
This allegation that the third respondent wanted to have Y live with her to assuage her loneliness and that she regarded Y as her property had not previously been made. It was not put to the third respondent when she gave evidence. It was simply suggested to the third respondent that she wanted Y to stay with her because the third respondent believed that Y could not protect herself from the appellant, as the following shows:
[COUNSEL FOR THE APPELLANT]: Because you think that my client is a bad mother, don’t you?
[THE THIRD RESPONDENT]: Yes.
[COUNSEL FOR THE APPELLANT]: And you’ve always thought that she was a bad mother, haven’t you?
[THE THIRD RESPONDENT]: Yes.
[COUNSEL FOR THE APPELLANT]: And you’ve always wanted [Y] to stay with you, haven’t you?
[THE THIRD RESPONDENT]: I want [Y] to live with me because I can predict how the [appellant] will treat her when she unable to protect herself.
(Transcript 8 July 2019, p.564 lines 15–27)
With that history in mind, counsel for the third respondent made the following submission, which led to the comment made by his Honour, which is the subject of this challenge. The relevant passage is:
[COUNSEL FOR THE THIRD RESPONDENT]: Your Honour, in respect of my client’s evidence under cross examination, perhaps best being described by the [ICL] as brutally honest, when asked questions about what she thought of the [appellant], her capacity to care for the child, she said, effectively, that she thought she was a bad mother. That was accepted. And, your Honour, there were two issues that I wish to address in the evidence that was given through the cross-examination. Firstly, there was an admission by my client that she mentioned to [Y] to tell the court that she wanted to live with the [third respondent]. And on that point, your Honour, when asked in re-examination what was the reason for doing that, and, your Honour, the answer given is:
Because every time [Y] always come, “When can I come back to you, Grandma?” “If you want to come to Grandma, you shall tell the court.”
So, your Honour, what my submission on that matter is, is that [Y] is saying that “I want to live with you, Grandma”, and Grandma has said to her, “Well, you will need to tell the court that evidence.” That was admitted, your Honour.
HIS HONOUR: Yes.
[COUNSEL FOR THE THIRD RESPONDENT]: Perhaps not the wisest thing to have said.
HIS HONOUR: No. Well, not the wisest thing to think too.
[COUNSEL FOR THE THIRD RESPONDENT]: Yes.
HIS HONOUR: But we’re sort of stuck with your client because, as you say, the parents have invested her with this role, probably for good reason - - -
[COUNSEL FOR THE THIRD RESPONDENT]: Yes, your Honour.
HIS HONOUR: - - - that she was a safe pair of hands but, I mean, you end up with a counsel of perfection about these things and we would want her, if she can, to come off the fence a little bit. You know, this idea that “I didn’t want to interfere because I didn’t want to say the wrong thing”, she – it might be worth her while getting some advice about what to say and what to do, because we don’t want something awful said to the child and no help being given at hand, you know.
[COUNSEL FOR THE THIRD RESPONDENT]: Yes.
HIS HONOUR: And there are ways of, you know, “you know your mother loves you”, and we know that’s true and everybody seems to agree that that’s true, otherwise we’re not going through this – we’re going through this exercise for no reason. So there are things that she can say, without interfering with her own concerns about the [appellant], that leave this little girl in a better position, so that she doesn’t have to feel as though somebody is attacking her or against her or would hurt her or whatever. So in a perfect world, you know, we would have your client come off the fence. And she has shown herself to be independent of both the [second respondent] and the [appellant], and, you know, [Y] is a lucky girl to have your client. As [the single expert] said, short of that, we’re into a very ugly place in terms of where [Y] would be, so all credit to her. Somebody who puts their life on hold, gives up time. I don’t buy into this is all a plot by your client to seize the young child. I just – that’s just laughable.
[COUNSEL FOR THE THIRD RESPONDENT]: Thanks, your Honour.
HIS HONOUR: Insulting. But, you know, I mean, you always want a bit more for a child, so if your client can step in a little bit more and provide the psychological protection that she’s also providing as a physical – in a physical way, I think that would be good.
(Transcript 9 July 2019, p.725 line 46 to p.727 line 11) (Emphasis added)
It is clear that what was described as “laughable” was the suggestion that the third respondent had plotted to obtain the care of Y. That suggestion had only been raised by the appellant in answers given in cross-examination, it had not been accepted by the single expert nor put to the third respondent.
Nonetheless, it is submitted by the appellant that:
37.In this matter what the primary Judge said was not the mere expression of a tentative view. It was an expression of opinion in relation to a significant matter in very strong terms. Further, it was expressed prior to the conclusion of the hearing and prior to hearing the submissions of the Appellant’s counsel.
(Appellant’s Summary of Argument filed on 23 April 2020) (As per the original)
The test to be applied is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide” (Johnson v Johnson (2000) 201 CLR 488 (“Johnson”) at [11]) (Footnote omitted). The observer is taken to be reasonable and the judge to be a professional “whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial” (Johnson at [12]) (Footnote omitted).
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”), the plurality explained that the application of this principle requires two steps:
8.… First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
In Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, the plurality referred to this test and said:
63.… the bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making.
The articulation of the connection between the primary judge’s comments and the deviation from judicial impartiality that appeared in the appellant’s Summary of Argument filed on 23 April 2020 was of limited assistance (outlined above at [47]). It does not come to grips with the essential question.
The point was not developed further in oral submissions at the hearing of the appeal.
As we have already explained, the appellant’s assertion that the third respondent had sought the care of Y for the third respondent’s benefit, as opposed to Y’s benefit, was only a very small part of the appellant’s case and not the significant plank that was asserted.
His Honour’s comment was made after the evidence had closed and towards the end of submissions but before counsel for the appellant was to make his address.
In Johnson, the plurality said:
13.… Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given the opportunity to deal with them.
His Honour’s comments did not prevent counsel for the appellant from making the submissions that he sought to make on the issue of the third respondent’s motivations in an unrestricted manner. We are unable to infer any suggestion that his Honour was not open to persuasion on the point.
It is to be remembered that “the expression by a judge of tentative views during the course of argument as to matters on which the parties are permitted to address full argument manifests no partiality or bias” (Bienstein v Bienstein (2003) 195 ALR 225 per McHugh, Kirby and Callinan JJ at [34]).
This was the case here.
The appellant submits that the comments made were far from tentative. However, such views may be made in robust terms. In Antoun v The Queen (2006) 224 ALR 51 (“Antoun”), Gleeson CJ said:
27.So far as the first point is concerned, it is certainly true that the trial judge’s remarks were strong and forthright. In some circumstances, that will be a permissible expression to adopt, especially where the trial judge is conducting a trial as the sole judge of fact and law and the parties are legally represented by counsel able to respond with clarity and forthrightness. Judicial indignation at a particular course of action, or proposed action, may on occasion be understandable. Couched appropriately, at the proper time and in due sequence, it may give rise to no reasonable apprehension of bias. For centuries in courts of our tradition, judges have been telling parties and their lawyers, sometimes in quite robust terms, that they consider that a particular submission or course of action is hopeless, a waste of the court’s time or doomed to fail. I would not want to say anything that needlessly mollycoddled candid judicial speech addressed to trained advocates.
(Footnote omitted)
In Antoun, however, the judge persisted in his tentative view to the point of restricting submissions on the issue.
We do not consider that the comments made by the primary judge were “an impermissible indication of prejudgment that has the effect of disqualifying the judge from further conduct of the proceedings” (Antoun at [29]) (Footnote omitted), or that the case would not be decided on its merits.
The comments were made by the primary judge as to one small aspect of very complicated parenting proceedings, which had only been lightly and partially explored in the evidence. They do not suggest that the primary judge would proceed other than with the best interests of the children firmly in mind. The primary judge’s statement did not bear upon the vast bulk of the appellant’s case.
Further, counsel for the appellant was able to develop his submissions on the particular issue as he saw fit.
We are quite unable to see any connection between the primary judge’s comments and “the feared deviation from the course of deciding the case of its merits” (Ebner at [8]).
These grounds of appeal do not succeed.
Did the primary judge give adequate reasons? (Grounds 9 to 14, 16 and 17)
These various grounds of appeal challenge the adequacy of the primary judge’s reasons relating to parental responsibility (Ground 9), the resumption of equal shared parental responsibility (Ground 10), the credit of the appellant and the third respondent (Ground 11), the second respondent and third respondent coaching or influencing Y (Ground 12), the weight given to the need for a meaningful relationship between the appellant and the children (Ground 13), the change in the relationship between the appellant and Y after she was removed from the appellant’s care and whether the second respondent and the third respondent encouraged and facilitated that relationship (Ground 14), whether the third respondent was supportive of Y’s relationship with the appellant (Ground 16) and whether the second respondent and the third respondent actively sought to interfere with Y’s relationship with the appellant (Ground 17).
The appellant’s Summary of Argument filed on 23 April 2020 deals with all of these grounds of appeal in just two short paragraphs. After setting out general statements as to the necessity and importance of adequate reasons for judgment, the appellant simply said:
61.… In the circumstances of this case, inter alia, for the reasons submitted in relation to ground 20 the primary Judge failed to give adequate reasons.
(As per the original)
During oral submissions at the hearing of the appeal, senior counsel for the appellant confirmed that the above grounds of appeal were subsets of Ground 20, which asserts that the primary judge “failed to consider, weigh and assess the evidence” in each aspect of s 60CC of the Act. The appellant’s written submissions in relation to Ground 20, however, go beyond the terms of the ground and offer a running commentary of the s 60CC considerations undertaken by his Honour. Often they are merely critical of the comments made by the primary judge and do not identify an appealable error.
Such submissions are particularly unhelpful and do not provide any assistance in understanding or determining the grounds of appeal.
It is sufficient to say that, reading the reasons for judgment as a whole, we are satisfied that they are adequate because we can understand why the orders were made (Bennett and Bennett (1991) FLC 92-191 (“Bennett”) at 78,266–78,267 and Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 (“Pollard”) at [57]–[59] as discussed below at [75]–[76]). The primary judge identified the material that was taken into account and, accordingly, we reject the oft made criticism that findings had not been made by the primary judge. For example, it was suggested this was the case as to ss 60CC(2)(a), 60CC(3)(f) and 60CC(3)(i) of the Act. As the discussion of Ground 20 below makes plain, his Honour identified the relevant s 60CC considerations and the weight given to them.
We consider that no error by the primary judge has been identified.
Did the primary judge err in accepting and adopting the opinions of the single expert, including her opinions on the ultimate issues? (Ground 18)
Did the primary judge fail to give any or any adequate reasons as to why his Honour accepted and adopted the opinions of the single expert, including her opinions on the ultimate issues? (Ground 19)
It is convenient to deal with these two grounds of appeal together.
The appellant submits that the primary judge:
·gave no reasons as to why the single expert’s opinions were accepted;
·failed to explain his Honour’s assessment of the single expert’s evidence and weigh it with lay evidence; and
·failed to explain what weight was given to the single expert’s evidence and why.
The suggestion contained within these two grounds of appeal, that the primary judge erred by permitting the single expert to express an opinion on the final issues and by accepting and adopting that opinion, was withdrawn in oral submissions at the hearing of the appeal so Ground 18 was effectively abandoned.
As for Ground 19, the obligation to give reasons is well known. In Bennett at 78,266–78,267, the Full Court of the Family Court of Australia adopted the principles expounded in Sun Alliance Insurance Ltd v Massoud [1989] VR 8, saying:
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, 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 principal 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 reasoning 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.”
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments. In Maday and Maday (1985) FLC 91-636, Fogarty J, in a judgment with which the other members of the Court (Emery and Murray JJ) agreed, took the view that these principles clearly did apply to discretionary judgments and, in particular, judgments in custody matters.
In Pollard, the New South Wales Court of Appeal said:
57.The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes “a sense of grievance” and denies “both the fact and the appearance of justice having been done”, thus working a miscarriage of justice.
58.The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.
59.The reasons must do justice to the issues posed by the parties’ cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted… it is necessary that the primary judge “ ‘enter into’ the issues canvassed and explain why one case is preferred over another”.
(Citations omitted)
As the High Court of Australia explained in Wainohu v New South Wales (2011) 243 CLR 181:
56.… the content and detail of the reasons to be provided – will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision.
This does not require a judge to “make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact” or to provide every link in the chain of reasoning. Rather, it is sufficient if the judge “apprises the parties of the broad outline and constituent facts of the reasoning” (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per Mahoney JA at 271–273).
The appellant did not object to the single expert’s written report or any part of her oral evidence at the hearing before the primary judge.
We are unable to locate any submission that was made to the primary judge that challenged the evidence of the single expert as to what she was told or observed. It was not suggested to his Honour that the single expert’s conclusions were not rationally derived having regard to her expertise or that they were wrong.
Accordingly, there was no need for the primary judge to explain why the single expert’s evidence, either generally or in relation to particular issues, was accepted or was to be given weight. It was simply not an issue that required determination and explanation by the primary judge.
It is apparent from his Honour’s reasons for judgment that considerable weight was given to the evidence of the single expert but it is clear from reading the reasons as a whole that the primary judge did not abdicate his Honour’s responsibilities to the expert (Hall and Hall (1979) FLC 90-713 at 78,819).
Not all of the single expert’s recommendations were accepted. For example, the single expert suggested that orders should be made for Y to live with the third respondent but that the second respondent should have sole parental responsibility for her.
His Honour did not agree and said:
205.When asked by counsel for the [second respondent], [the single expert] confirmed that her intention was that the child live with the [third respondent], but the [second respondent] was to have sole parental responsibility. However, she expanded on her recommendation in her oral evidence, noting that both the [third respondent] and the [second respondent] proposed shared parental responsibility and that if both parties were comfortable with such an order, she would not oppose it. She said:
I was just concerned if the [third respondent] and the [second respondent] might have issues about what should happen then it’s the [second respondent’s] decision that should be given more weight.
206.I will make an order that the [first respondent] have sole parental responsibility for [X] and that the [second respondent] and the [third respondent] have equal shared parental responsibility for [Y].
207.It is logical that the parent with whom the child mostly lives should have parental responsibility.
Not only did the primary judge not accept that evidence of the single expert but his Honour gave reasons as to why his Honour did not.
Thus, it is not entirely accurate to say, as was submitted by counsel for the appellant, that the findings and orders of his Honour mirrored the opinions of the single expert. However, even if they did, that does not bespeak error. A judge is entitled to accept and act on such evidence and all the more so when it is not seriously challenged.
These grounds of appeal do not succeed.
Did the primary judge err in failing to consider, weigh and assess the evidence of each of the relevant statutory considerations and then indicate the weight given to each and how those considerations balanced out? (Ground 20)
As we have already observed, this ground of appeal is limited to his Honour’s discussion of the considerations under s 60CC of the Act.
The appellant submits that the primary judge was obliged to but failed to consider, weigh and assess the evidence touching upon each of the relevant statutory considerations and then indicate the weight given to each of those considerations and how they balanced out (Smith and Smith (1994) FLC 92-488 (“Smith”) at 81,084). See also Collu & Rinaldo [2010] FamCAFC 53 at [343]–[346] and Slater v Light (2011) 45 Fam LR 41 at [50].
This does not, however, require a judge to create some kind of score chart recording the specific weight attached to each statutory consideration. It is sufficient if these matters emerge from the reasons for judgment taken as a whole. As the Full Court observed in Donnell & Dovey (2010) FLC 93-428:
103.On our analysis, the various factors contained in ss 60CC(2) and (3) may be seen as a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion. Some of the signposts will lead nowhere. In some cases one of the designated signposts will provide more assistance in pointing the court in the right direction than it will in another. Sensibly, the legislature has recognised that it cannot provide an exhaustive set of signposts as the destination is uncertain and the routes by which it may be reached are as infinite as the factual circumstances that present themselves in courtrooms every day.
The primary judge devoted some 62 paragraphs (at [134]–[196]) out of a total of 235 paragraphs to his Honour’s discussion of the s 60CC considerations.
The primary judge commenced the discussion by recording that the parties saw “the relationships between the children and their parents as having meaning” and his Honour agreed that was so (at [137]). Contrary to the appellant’s submissions, this is clearly a finding to that effect and one which is as much in favour of the appellant as the first respondent and the second respondent.
At [140], his Honour found that both the appellant and the first respondent had committed acts of family violence. The need for the Court to “prioritise the protection of the children over the importance of their relationship with their parents” was then recorded at [143]. This was an important consideration given the appellant had assaulted Y.
It is apparent from the discussion at [145]–[146] that weight was given to Y’s views but not to X’s.
At [148], his Honour quoted the opinion of the single expert that the third respondent was “probably [Y’s] most significant attachment figure”. That obviously weighs in favour of Y living with the third respondent.
On the other hand, X was said to be attached to both of his parents (at [150]).
The next consideration of significance undertaken by his Honour was that as to the capacity of each of the parents and the third respondent to provide for the needs of the children. There was a discussion as to the capacity of each of them at [157]–[179].
As to the appellant, the primary judge concluded:
171.There was no indication from the [appellant] that she appreciated any of the problems that have been caused by her behaviour. Indeed, the [appellant] challenged the opinions and interventions of child care workers. As to her not completing the intake forms for the child care centre for [X], the [appellant] variously said that she had previously completed the forms; that she had told the staff (what they needed to know); and that she needed to get to work.
172.[The single expert] noted the [appellant’s] failure to assist [X] with settling into his new child care, leading to [X] exhibiting “concerning behaviour” and leaving him in a situation that clearly challenged him.
173.[The single expert] did note that there were accounts from FACS and from the [appellant’s] former employer … that the [appellant’s] parenting had been reasonable.
The difficulties that the second respondent would have caring for Y were set out at [174]–[175].
The primary judge noted that all the parties appeared to have confidence that the first respondent and the third respondent could care for the children (at [157]).
The single expert’s opinion that the third respondent was a caring and committed grandmother was noted (at [176]), although some concerns about her were raised at [178]. Concerns about the first respondent’s parenting were noted at [179].
This is sufficient to demonstrate that the primary judge did fulfil the requirement set out in Smith. The weight given to the various s 60CC considerations is apparent and it can be seen how all these matters were weighed together.
This ground of appeal does not succeed.
Conclusion and Costs
It follows that the appeal will be dismissed.
In that event, it is appropriate that the appellant pay each of the respondents’ costs at scale. Counsel for the appellant made no submissions to the contrary or to challenge the quantification of the other parties’ modest costs. The ICL did not seek any order as to costs.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Aldridge, Kent & Austin JJ) delivered on 6 August 2020.
Associate:
Date: 6 August 2020
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