Partington v Cade (No.2)
[2009] FamCAFC 230
•22 December 2009
FAMILY COURT OF AUSTRALIA
| PARTINGTON & CADE (NO.2) | [2009] FamCAFC 230 |
| FAMILY LAW - APPEAL – FROM A DECISION OF A FAMILY COURT JUDGE – CHILDREN – Allegations of unacceptable risk for children with father – Mother sought to be allowed to ‘relocate’ to the state in which she had been living with the children since shortly after separation – Trial judge found the father was an unacceptable risk but had a meaningful relationship with the children – Mother was found to have actively discouraged the father-child relationships FAMILY LAW - UNACCEPTABLE RISK – No party sought a positive finding of sexual abuse – In finding the father posed an unacceptable risk the trial judge made other significant findings such that the risk was highly relevant to the questions of the father’s parenting capacity and likely nature of long term father-children relationships – Trial judge did not consider, and ought have considered, the significance of the risk findings in relation to capacity, time spent with father and how time may progress beyond supervision – Trial judge’s failure to consider the impact of the risk findings on the father’s parenting capacity rendered his considerations of benefit of time with father and future progress of time inadequate FAMILY LAW - RELOCATION – Mother argued that the trial judge allowed the mother’s non-compliance with orders to remain in a specified state to overwhelm the relocation considerations – No merit in argument that trial judge decided the relocation issue on a single factor FAMILY LAW – APPEAL - APPEAL ALLOWED – Interim orders in terms of Independent Children’s Lawyer’s proposal – Submissions sought from parties as to re-exercise or remittal – Independent Children’s Lawyer proposed that the matter requires remittal to properly consider recent events – Mother sought re-exercise – Issues of findings of fact will need to be determined – Remission is the appropriate course – Flowing from allowing the primary appeal, remaining appeals can be dismissed |
| Family Law Act 1975 (Cth) s 60CC; s 61DA |
| B & J [2009] Fam CAFC 103 Hall & Hall (1979) FLC 90-713 Hayman & Hayman (1976) FLC 90-140 Napier & Hepburn (2006) FLC 93-303 Potter & Potter (2007) FLC 93-326 Sampson & Hartnett (No.10) (2007) FLC 93-350 |
| APPELLANT: | Ms PARTINGTON (AKA BANDE) |
| RESPONDENT: | Mr CADE |
| INDEPENDENT CHILDREN’S LAWYER: | LOUISE MOLLROSS |
| FILE NUMBER: | HBF | 1989 | of | 2004 |
| APPEAL NUMBERS: | SA | 100 | of | 2008 |
| SA | 45, 47, 48 | of | 2009 |
| DATE DELIVERED: | 22 December 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Warnick, Boland JJ |
| HEARING DATE: | 17 June 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 31 October 2008 |
| LOWER COURT MNC: | [2008] FamCA 945 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Goodchild |
| RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDRENS LAWYER | Mr Turnbull |
| SOLICITORS FOR THE INDEPENDENT CHILDRENS LAWYER | Ogilvie Jennings |
Orders
That the appeal be allowed.
That orders 2, 3, 6, 8, 10 and 12 of the orders of Burr J made 31 October 2008 be set aside.
That the mother’s application for permission to relocate with the children of the mother and father from Hobart, Tasmania to New South Wales and for consequential parenting orders, be remitted for rehearing by a judge other than Burr J.
That until further order, the children, F born December 1999 and C born April 2001 live with the mother.
That until further order, subject to the father being able to travel to W that the father spend time with the children for such period of time as can be provided by Catholic Care Children’s Contact Service and if possible for not less than two hours per fortnight supervised at the Catholic Care Children’s Contact Service.
That until further order, the father be at liberty to include members of his extended family in his time with the children at times and on dates solely within his discretion.
Each party must:
(a)contact the Contact Service within 7 days and arrange an appointment for assessment for suitability for supervised time with the child;
(b)attend the assessment;
(c)comply with any appointments made by the Contact Service for supervised time;
(d)comply with all reasonable rules of the Contact Service; and
(d)comply with all reasonable requests or directions of the staff of the Contact Service.
That the father in the first instance pay the Contact Service fees in respect to assessment and services provided from time to time, but be at liberty to seek a determination from a judge of the Family court of Australia of responsibility as between father and mother for such fees, paid and/or to be paid.
That until further order, the father communicate with the children by telephone at 7.00pm each Wednesday on the following basis:
(a)The father will telephone the children on the mother’s landline telephone number and, if the children are not available on this number, the father will telephone the children on the mother’s mobile telephone number;
(b)The mother will ensure that either the landline or mobile telephone is accessible and available to the children at the ordered time;
(c)The father will call the telephone number at the ordered time;
(d)That within 7 days of the date of these orders the mother will provide to the father, in writing details of her landline and mobile telephone numbers.
That until further order, each party keep the other informed at all times of their residential address.
That until further order, the father be at liberty at his expense to obtain copies of the children’s school reports, school photographs, newsletters and the like and to attend all parent/teacher interviews (provided they are arranged at times separate to those to be attended by the mother), school functions, concerts, events and extra-curricular activities arranged by the children’s school(s).
That until further order, each party be entitled to any and all information from any medical practitioner, other health professional or hospital which the children attend for the purposes of treatment.
That until further order, each party be restrained and an injunction is hereby granted restraining each of them from denigrating the other to, or in the presence of, the children and from permitting any other person to do so.
That until further order, the mother enrol the said children in and ensure that they complete a protective behaviours program nominated by the Independent Children’s Lawyer.
That the appeals SA45/2009, SA47/2009 and SA48/2009 be dismissed.
That each party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the appeal by filing such submissions at the Eastern Appeals Registry of the Family Court and serving them on the other parties within 21 days of the date hereof.
That the other parties have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Eastern Appeals Registry of the Family Court and serving them on the other parties.
That each party be at liberty to reply to an answer by way of written submissions by filing such reply at the Eastern Appeals Registry of the Family Court and serving it on the other parties within a further 7 days.
That each party endorse on the cover sheet the date on which a copy of that submission was served on the other party.
IT IS NOTED that publication of this judgment under the pseudonym Partington & Cade (No.2) 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 SYDNEY |
Appeal Number: SA 100 of 2008
SA 45, 47, 48 of 2009
File Number: HBF 1223 of 2008
| Ms PARTINGTON (AKA BANDE) |
Appellant
And
| Mr CADE |
Respondent
REASONS FOR JUDGMENT
By orders made 31 October 2008, the Honourable Justice Burr determined a dispute between Ms Partington and Mr Cade about the parenting arrangements for their children, F, born in December 1999 and C, born in April 2001. Among the issues which his Honour decided, was whether there was an unacceptable risk that the father had sexually abused the children or either of them and/or that he might, and whether the mother ought (in effect) be made to return from New South Wales to Tasmania, where the family had lived for some years leading up to the separation of the parents. Final separation, on the mother’s evidence, was in December 2004, the father claiming reconciliation between February and April 2005.
The position taken by each of the father and mother at trial was, in Burr J’s words in his reasons for judgment:
163.The mother’s application is for the children to live with her and that she have sole parental responsibility for the children. The mother takes the position that given the children’s disclosures of sexual abuse, it is in their best interests not to spend any time at all with the father.
164.The father contends that the mother intends to ensure that there is no relationship between the children and himself and thus it is only if the children live with him and the parents share parental responsibility for them that he will be able to have a relationship with the children and they with both parents.
Burr J found:
·that there was an unacceptable risk to the children if unsupervised time was spent by the father with them;
·that there were “clearly significant and meaningful relationships which exist between the father and his two daughters”;
·that the relationship between each child and the father was “critically important [to each] and to their development and proper nurturing”;
·that the mother had “actively discouraged the relationship [between father and children] both by word and action” and
·that “the children’s significant and improved relationships with their father can only be maintained by regular physical contact with him”.
His Honour ordered that the mother’s application to live in New South Wales with the children be refused; that, at her expense, she return with the children to Hobart in Tasmania; that the children live with the mother; and, that she have sole parental responsibility for them.
As to time to be spent between father and children, Burr J ordered that the father spend supervised time with the children each alternate weekend, for a period of six months, for such a period of time as could be provided by the Hobart Children’s Contact Service, but for no less than two hours. At the conclusion of six months, a report process was to commence and until any change of arrangements consequent upon that report, the father was to spend time with the children for a period of six hours on one day of each alternate weekend, such contact to be supervised and take place at the Contact Centre for the first and last hour of the periods “to the effect that the balance of the period of time may be spent outside of the Hobart CCS premises UPON CONDITION that such time is supervised at all times by any of, …”. Orders also provided for the father to have telephone contact each Wednesday.
The report referred to was (as expressed in the orders) to provide information to the independent children’s lawyer (ICL), the parties and if necessary the court, about how the children responded to time spent with the father and whether or not it was appropriate to move to unsupervised periods of time or different forms of supervision.
The mother was required to enrol the children in and ensure that they completed a protective behaviours program. The orders also provided that the mother and children be entitled to the use of a house for a period of twelve months from the date of return to Tasmania.
The mother appeals those of Burr J’s orders for time to be spent between the children and the father, related orders, and the orders requiring her to return to Tasmania. His Honour also made orders for property settlement. There is no appeal against those orders.
As indicated by his Honour’s orders, an ICL participated in the trial. The position of the ICL then, was that the mother and children ought be allowed to continue living in New South Wales, although Burr J described the ICL’s support for that proposal as “reluctant” and on a “somewhat tenuous basis”. However, the ICL’s position on appeal was that, in deciding as he did, Burr J made no appealable error and consequently the appeal should be dismissed.
Each of the mother and the ICL sought that we receive further evidence. That which the mother proferred went to the likely impact on the children, in the context of their disclosures, of continued time with the father.
The ICL deposed to events, in particular in respect to the father’s attempts at enforcement, since the primary orders, but also to the mother’s behaviour on an occasion, subsequent to the orders, when the children spent time with the father.
For reasons which we gave at the hearing, we refused both applications to adduce further evidence.
The mother relied upon twelve grounds in her Amended Notice of Appeal. However, we think it unnecessary to set out those grounds, as we are of the view that, within the grounds, there is merit, such that the appeal succeeds.
We will shortly summarise why that is so, but wish at this stage to acknowledge the patently careful, diligent and substantially thorough approach that his Honour Justice Burr applied to the matter before him. It is only after anxious consideration that we conclude that a relevant aspect of the matter was not given proper regard or sufficient weight.
Our view of the matter, in short, is this. As to the mother and children’s circumstances at trial, having, as seen, separated from the father in late December 2004, in late 2005 the mother entered into a relationship with a Mr Bande. On 22 December 2006, the mother and Mr Bande moved from Tasmania to New South Wales, with the children. Mr Bande had a son, J (nine years old at trial), who lived in New South Wales and with whom he had regular contact. The parties’ children commenced school at B Public School at the end of January 2007. The mother and Mr Bande married in March 2007. The mother was ordered to return to Tasmania on or before 7 March 2007. Although she did subsequently return, she did not remain continuously, moving back to New South Wales for periods. In March 2008, the mother gave birth to a daughter, Z, of whom Mr Bande is the father.
The hearing commenced before Burr J on 29 April 2008. On 2 May 2008, after four days of hearing, he adjourned the trial, part-heard. He made orders for the father to spend some supervised time with the children. Shortly after, he set the date for final addresses and ordered more supervised time. He gave the mother leave to remain living in New South Wales with the children, pending the final determination of the court. As seen, that determination was on 31 October 2008.
Thus, from the end of 2006, for nearly two years, the mother and children had been primarily resident in New South Wales, with some significant features of “re-settlement”. The mother had remarried and there was a child of that relationship.
As to the trial judge’s conclusion of “unacceptable risk”, no counsel at the trial asked Burr J to make a positive finding that the father has sexually abused either of the children. His Honour said:
110.As I indicated earlier, neither Counsel for the mother nor the Independent Children’s Lawyer urged upon me a finding of sexual abuse against the father. They indicated that they were of the view that the evidence did not support such a finding at the relevant standard of proof. I agree with their assessment.
Nonetheless, in the course of assessing the question of “risk”, his Honour made some significant findings. Indicative of those findings, he said:
118.Whilst I am satisfied that the typed transcript of [F’s] interview by the police on 28 July 2005 of itself provides compelling support for such a finding, it is the video tape (Exhibit 1) which plays the largest part in my finding. … What is witnessed is a young, open and engaging little girl relating a totally believable and persuasive account of inappropriate sexual behaviour by her father. …
…
130.All of the above matters to which I refer, are extremely persuasive and I am comfortably satisfied on the applicable burden that [F] and [C] would be at an unacceptable risk of abuse by the father if they remained in his unsupervised care. (emphasis added)
The point we seek to make here is that, in our view, the nature of the findings underpinning the conclusion of “unacceptable risk” was highly relevant to both the question of the father’s parenting capacity and that of the likely nature of the longer term relationship between children and father, in particular, to the degree of uncertainty surrounding the future time that the father might spend with the children.
Neither in addressing the father’s parenting capacity, nor the benefit to the children of time to be spent with the father, did his Honour consider the significance of the finding that the father constituted an “unacceptable risk” to the children.
Had he done so, and arrived at the conclusion – certainly one open in our view – that the father possibly suffered limitations on his capacity to promote the welfare of the children, that in turn might well have affected his assessment as to when, if at all, and if so to what degree, time spent by the father with the children might be able to advance beyond closely supervised contact.
Again, in turn, that might have impacted upon his conclusion about the balance of factors for and against ordering that the mother and children return from New South Wales.
Thus, in effect, the mother was required to relocate from a well established situation, when the prospects of regular and unsupervised time between father and children, and more particularly, the benefits of such time, were not adequately assessed by the trial judge.
In what follows, we will expand considerably on this summary, not only to give a fulsome explanation of our reasoning to the parties, but to recognise the complexity of the matter, to avoid over-simplification of it, and in deference to his Honour’s judgment which, notwithstanding our conclusion, can only be described in the terms earlier used.
In the course of expansion of our reasoning, it will be convenient to deal with, mostly briefly, other arguments in the appeal against Burr J’s orders.
The appeal books did not include transcript of the hearing before Burr J, although some parts of it had been printed and were available to the Court and the parties. The mother had applied for Court assistance in acquiring transcript, an application which remained “alive” and in respect of which we indicated we would give further consideration in the event we formed a view that transcript would assist consideration of any of the arguments, of any party.
In the end we do not think further transcript would assist.
Three other appeals by the mother are before us. One challenges a refusal on 9 December 2008, by Benjamin J, to stay Burr J’s orders appealed. The other two attack orders of Benjamin J in relation to the mother’s attendance in person in Tasmania, upon a contempt application brought by the father. We will turn to those additional appeals after our further discussion of the primary appeal.
That further discussion is addressed under the following headings:
(i)The findings as to the allegations of sexual abuse.
(ii)The father’s parenting capacity.
(iii)The future course of time to be spent by the father with the children.
(iv)The conclusion as to relocation.
The findings as to the allegations of sexual abuse
We briefly outline some background to, and further details of, these allegations and some further detail of Burr J’s conclusions.
When the mother left the relationship at the end of December 2004, she went to Sydney. The father obtained a recovery order and subsequently the mother and children returned. Issues raised by the mother at the time, in relation to parenting orders, included drug use by the father and at the least, some volatility, if not violent behaviour.
Interim orders were made for the children to spend time with the father, in a fortnightly period, one week, 5.00pm Thursday until 5.00pm Sunday and in the other week, from Thursday after school until the commencement of school on Monday.
The mother said that the first statement by a child about inappropriate behaviour by the father toward that child was made in June 2005.
Some statements were attributed to C which may have disclosed inappropriate conduct by the father towards her, but it was F to whom most of the evidence related.
At the end of June 2005 the mother saw a doctor about the disclosures. Various steps were then taken and other medical practitioners saw the children, as did a case worker from a domestic violence service. F was interviewed by police on two occasions, the first being 28 July 2005. A bed sheet from F’s bed was found to be stained with the father’s semen.
C was interviewed by police on 1 August 2005, but made no disclosures of sexual abuse. The father was interviewed the same day. He denied the allegations that he had sexually abused his daughters. However, Burr J identified and discussed a statement by the father in the interview that was “of concern”.
The orders for the father to spend time with the children were suspended on 19 August 2005. The father was again interviewed by police in December 2005 and the parties were interviewed by child and adolescent psychiatrist, Dr A, in December 2005. The father was charged by police in January 2006 with maintaining a sexual relationship with F but in December that year the charges were withdrawn. In July 2007, an application by the mother to remove the children from Tasmania on an interim basis was dismissed and she was restrained from removing the children from Tasmania.
The trial judge had before him a family report by a Ms S and a number of reports from Dr A. Of Dr A’s evidence, Burr J said:
99.Dr [A], who is a highly experienced and widely regarded expert Child and Adolescent Psychiatrist and whose expertise was not challenged by any of the parties, formed the view in February 2006 that the evidence he had seen was highly suggestive of the father having sexually abused at least [F] and that thereby placed [C] also in a situation of risk of future abuse by the father. … (emphasis added)
…
102.Dr [A] did not resile from his view that there was strong evidence to suggest that [F] had been sexually abused by her father. … (emphasis added)
…
112.As Dr [A] expresses it at page 5 of his report of 1 June 2007:-
“… I am conscious of the serious ramifications of maintaining this opinion but there are equally serious consequences of dismissing the possibility that one or both girls have been sexually abused.”
…
121.… Neither of the parties nor the Independent Children’s Lawyer questioned or challenged his [Dr A’s] qualifications and expertise. … It is his expert opinion that [F] and [C] would be placed in a position of unacceptable risk if in the unsupervised care of their father.
His Honour extensively reviewed the factors which might militate against a finding of “unacceptable risk”. His Honour said:
111.There are a number of reasons why in this matter it might be inappropriate to make a finding that the father presents as an unacceptable risk to his two daughters, not the least of which is the seriousness of the allegation and the significant detrimental consequences for the father and his relationship with his children.
Nonetheless, his Honour concluded:
116.Thus, despite the many reasons identified by me above which would require me to exercise great caution before making a finding that I am satisfied that the father presents an unacceptable risk to his two children, I am nonetheless satisfied that that is the case. …
…
131.… I am satisfied that the evidence leads not only to a finding that the children are at risk in the care of their father, but that such risk is an unacceptable one. I am conscious of the need to be satisfied as to that level or degree of risk.
His Honour’s examination of the evidence and arguments bearing on the sexual abuse allegations was meticulous. No one criticised it before us. In our view, having regard to the passages quoted in our summary at the outset and those just quoted, particularly the parts emphasised, the strength of his Honour’s findings about the allegations of sexual abuse is apparent. Nonetheless, as seen, the “enquiry” was restricted to the question of “unacceptable risk”.
Not surprisingly, given the position taken at trial, no challenge has been made on appeal to that approach. We therefore say only this.
We are conscious that in this case, as earlier set out in the quote of paragraph 110 of his Honour’s reasons, his Honour agreed with the legal representatives’ proposition that the evidence did not support a positive finding of abuse. There was no discussion before us about this conclusion of his Honour, most likely because no party had contended otherwise at trial. In the circumstances, our following remarks are not in respect of the absence of discussion, but are merely to draw attention to the need for circumspection by parties, their legal representatives and judicial officers, in deciding what questions ought or ought not be addressed, when allegations of sexual abuse by a party of a child require determination.
A finding that abuse has occurred (assuming the evidence supports it to the appropriate degree of persuasion) might nonetheless be avoided if the best interests of a child can be determined without the need to make such a finding. In such a case, a finding of “unacceptable risk” may be sufficient to found orders directed to the paramount consideration. However, a finding of “unacceptable risk” has an inherent imprecision, which may impede progress to any arrangement beyond strictly supervised time. For one thing, a parent the subject of such a finding and who has denied any basis for it, is unlikely to admit misbehaviour, or seek any pertinent treatment.
The reason for care in deciding what question to address in cases such as this rests on a footing similar to that to which Burr J himself referred, namely comments of Warnick J in Napier & Hepburn (2006) FLC 93-303 (adopted with approval in Potter & Potter (2007) FLC 93-326). Though Justice Warnick’s remarks were directed to the extent explanation for a finding of “unacceptable risk” was desirable, we think his Honour’s observations relate also to the circumstance of a trial judge deciding whether or not to address the question of whether or not abuse occurred, and to the optimal extent of explanation for that decision.
Warnick J said (at paragraph 114 of Napier):
I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to provide a platform, for any future consideration of the family’s circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can illuminate paths by which a family (or a court making decisions for a family) might subsequently explore options for change.
That said, for present purposes, in our view, the further detail (set out above) of the trial judge’s findings, underpinning the conclusion of “unacceptable risk”, reinforces our earlier statement that their nature needed to be taken into account when assessing the father’s parenting capacity, consequently the benefit to the children of time with the father, and in turn, when assessing the future course of time between father and children.
The father’s parenting capacity
When Burr J came to address the factor described in s 60CC(f)(i) namely:
The capacity of:
(i)either of his or her parents; … to provide for the needs of the child, including emotional and intellectual needs,
all that he said, in respect to the father’s capacity, was:
231.Throughout his observed sessions in which he has spent time with the children, the father has been appropriate in his behaviour and responses to the children, particularly in light of their infrequent time together since separation. …
As earlier stated, there was no discussion of the significance to the father’s parenting capacity of the findings relating to the conclusion of unacceptable risk.
We acknowledge that, in reviewing the evidence and addressing issues such as the benefit to the child of having a meaningful relationship with the father, the views of the children and the nature of the children’s relationship with the father, Burr J made positive findings in the father’s favour. Further, we acknowledge that from those findings, positive inferences about the father’s parenting capacity may well have been available and even have been implicitly drawn by his Honour.
However, no inference about the father’s parenting capacity drawn from the finding of unacceptable risk is expressed or, in our view, otherwise apparent.
When assessing the consequence of the finding of unacceptable risk, Burr J said:
133.I am further satisfied that the degree of risk that the father presents to his two daughters is not such as to dictate that they be completely shielded from him. The expert evidence is that the children are not at any emotional risk by being in the company of their father as is often the case in proceedings of this nature. I am satisfied that the risk arises from physical opportunity. I am satisfied that the risk that he presents can thus be eliminated by his time spent with them being supervised for some time into the future. (emphasis added)
While in that paragraph, his Honour addressed the question of emotional risk to the children arising from being in the company of the father, his Honour limited his consideration to that risk of emotional harm directly connected with the prospect that the father had sexually abused at least F. In our view, his Honour’s remarks do not amount to a consideration of the implications for the father’s parenting capacity arising from the findings of “unacceptable risk”.
Later, in addressing what orders ought be made in respect of “parental responsibility”, Burr J said:
244.Given my finding that the father presents as an unacceptable risk to his children in an unsupervised environment, it is my view that the father has thereby forfeited his entitlement to exercise parental responsibility in relation to his children. Given too the intensity of ill-feeling between the parties and their inability to communicate, there seems little point in obstructing the appropriate development of the children by placing their parents in a situation of needing to share such an important responsibility and hence decisions in relation to the future development and wellbeing of the children. The mother is best placed to discharge that responsibility on her own.
Nothing in the above passage amounts to a consideration of the impact of the finding of “unacceptable risk” on the father’s parenting capacity.
In saying that Burr J ought have addressed the significance of the “possibility” that the father had sexually abused F, to an assessment of his parenting capacity, we are conscious that courts are used to dealing with facts, found according to a standard of proof, such as, the balance of probabilities. Whereas, we are saying that his Honour should have taken account of implications arising from, on his findings, a possibility rather than a probability. Nonetheless, we think we are correct. As Thackray J succinctly said in the recent decision of B & J [2009] FamCAFC 103:
160.… Litigation about their [children’s] welfare is not focused on determining rights and obligations arising from past events, but rather is directed to finding the arrangement that will advance their interest in the future.
Such an observation built on statements such as Murray and Lusink JJ made in Hayman & Hayman (1976) FLC 90-140, at p 75,681:
… The one question and the only question in this case is what is best for [the children] for the immediate present and for so far ahead as any of us can foresee.
And, in Hall & Hall (Evatt CJ, Asche SJ and Hogan J) (1979) FLC 90-713, at p 78,824:
… It is permissible for any court to take a longer view of a child’s future than the immediate picture before it; but this must be done with caution. In the end the decision must accord with the overall welfare of the child. It might not always be legitimate to look so far into the future that a child should be taken from surroundings where he is well and happy, and placed in other surroundings, on some conjectural basis that in the ultimate he will prosper better in the later surroundings. Each case must depend on its own circumstances in this respect.
Immediately after the statement quoted from B & J above, Thackray J said:
161.However, as Mr Justice Wilson said in the 2002 Atkin Lecture to the Reform Club, London (“The Misnomer of Family Law”):
It is difficult for lawyers to look to the future. They do better at inquests into the past. Concepts like the burden and standard of proof, which are part of their alphabet, do not fit into an assessment of future benefits and risks. …
In our view, there is no reason that, in looking to the future, only “probabilities” (which in such a context are not “facts” even if so described) and not “possibilities” can be taken into account, though clearly the degree of likelihood may affect the weight given to any prediction, and the assessment of likelihood must be a reasoned one.
The future course of time to be spent by the father with the children
As to the future, in addition to his Honour’s observations in paragraph 133 of his reasons, set out a little while ago, that “the risk that he [the father] presents can thus be eliminated by his time spent with them being supervised for some time into the future”, his Honour said:
134.On the topic of supervision, it was Dr [A’s] view that the father’s time with the children need not be supervised in the fullest sense. He said that there was no evidence that the father was predatory. I agree that the evidence is that rather the father’s behaviour has been opportunistic.
135.However, he said that supervision by family members was not the starting point, but rather at CCS. Thereafter, different supervisors and a staged progression were recommended.
…
137.Dr [A] recommended that the children complete a Protective Behaviours Programme but that supervision thereafter need only continue for another 12 months at which time he was confident the children would be safe in the father’s care. However, a preliminary to any relaxation of supervision in his view was an indication from an objective supervisor that the father’s time with the children had progressed satisfactorily and was a good experience for the children. He recommended an updated assessment at that time.
…
264.The almost certain relaxation of a supervised environment over a number of years as the children grow older and are able to attend more to their own safety, is more likely possible near the father’s place of residence. In his report of 23 January 2008 Dr [A] recommended that the children undertake a Protective Behaviours Programme such that as they grow older, they will be increasingly able to protect themselves from any intrusions upon their safety. (emphasis added)
Something of the orders made, consequent upon his Honour’s reasons, as to the course to be taken in respect of time between father and children, was earlier outlined. As indicated, after a passage of a little over six months of supervised contact, there was to be:
6.… (b) …
(iii) …an updated family assessment with a view to being able to report to the Independent Children’s Lawyer, the parties and if necessary the Court, how the said children have responded to their time spent with the father and whether or not it is appropriate to move to unsupervised periods of time or different forms of supervision.
As to what might follow such a report, order 8 provided:
That upon the commencement of the periods of time spent by the father with the children consequent upon the report and recommendations contained in the updated assessment to be conducted by Dr [A] or some other person pursuant to paragraph 6(b)(iii) of these Orders, the appointment of the Independent Children’s Lawyer be discharged.
These orders do not provide that the report’s recommendations must become the arrangements for the father to spend time with the children. No doubt the ICL, the mother, or of course the father, could return the case to court but the orders themselves do not mandate further court involvement. In our view, the orders may imply a “trust” in the views of Dr A and may appear to place an onus on the wife should she disagree with them. However, no such concerns were raised before us.
Order 12, which seems to have had immediate effect, provides that the father be at liberty to attend school functions, concerts, events and extracurricular activities arranged by the children’s schools. Surprisingly, given his Honour’s finding of “unacceptable risk”, there is no discussion by his Honour in his reasons, of risk associated with this order.
One of the supervisors named in the orders was Ms A Cade, the wife of the paternal grandfather. In relation to this, his Honour said:
209.The children’s extended family also includes the paternal grandfather and his wife, both of whom now reside in Tasmania. Whilst I have some concerns about the paternal grandfather undertaking a supervisory role on his own, I have no such concerns about the paternal grandfather’s wife. I develop these issues later in my reasons. However, I am satisfied that it is also important to the development of the two girls that they maintain an affectionate relationship with the paternal grandfather and his wife.
A ground of appeal is that, in finding that Ms Cade was a suitable supervisor, Burr J overlooked the evidence from Dr A that a person who believed that the abuse had not occurred would not be an appropriate supervisor and that Ms Cade held such a belief. We think that there may well be merit in this argument, but it is a specific point that, at best, goes to the possible deletion of Ms Cade as a supervisor.
Another argument bearing on the question of future arrangements relates to the order that the mother enrol the children in a Protective Behaviours Program. Ms Goodchild, counsel for the mother, said that Burr J had been informed that there were no Protective Behaviours Programs available in Tasmania. However, we accept that information before his Honour included that professionals were available in Tasmania who could deliver the equivalent of courses available elsewhere and styled as Protective Behaviour Programs.
A further ground of appeal is that in assessing the future course of time between father and children, Burr J failed to have regard to the evidence of the father’s marijuana use and any risk arising from that if the father’s time with the children was to become unsupervised.
Burr J said:
236.In her filed documents and evidence the mother made much of the father’s alleged drug use. The father acknowledged marijuana use during the parties’ relationship and gave conflicting evidence as to when he had ceased. The mother too relied upon the evidence of her husband Mr [Bande]. However, given my earlier expressed view that the creditworthiness of Mr [Bande] is worth little, I am unable to rely upon his evidence. I am satisfied that the father used marijuana in the past but that it is not now an issue of concern for the Court within the context of the Orders I propose to make for the father to spend supervised time with the children.
Thus, there is merit in the argument that his Honour did not address the significance of marijuana use, if the father’s time with the children becomes unsupervised.
Finally, Ms Goodchild criticised the weight given by Burr J to the children’s wishes to spend time with the father. Relevantly, his Honour said:
172.Given my finding that the father presents as an unacceptable risk to his children in an unsupervised environment and hence that his application that the children live with him must fail, any issue as to the expressed views of the children relevantly can only relate to the issues of the time that the children are to spend with their father and, to a more limited extent, the issue of relocation.
173.Despite lengthy separations from their father the children are emphatically of the view that they want to see him, want to spend time with him and want to do so regularly. …
Burr J then extensively reviewed the evidence of the children’s views and manifestations of them, in particular their attachment to their father.
However, there is nothing in his Honour’s discussion in this section of his reasons or elsewhere indicating that he placed any particular weight on the children’s views in deciding to order as he did. We therefore reject this criticism.
As seen then, in the orders for time between father and children, and his Honour’s reasons for them, there are some deficiencies. Some of these would only lead to confined adjustment to the orders and in so far as any, such as the failure to consider the implications of the father’s marijuana use in assessing the prospects of unsupervised time between father and children, might have more far-reaching consequences, we think it unnecessary to decide whether the result is that the appeal succeeds, because of the view of the merits of the appeal that we have already expressed. That is, the consequence of his Honour’s failure to address the significance of his findings in respect of the abuse allegations when considering the father’s parenting capacity was to render inadequate his consideration not only of the benefit to the children of time with the father, but, in turn, his assessment of the future course of time between father and children.
The conclusion as to relocation
As preface to this discussion, we note that the “relocation” in Burr J’s reasoning, with which he was concerned was from Tasmania to New South Wales, not the reverse. His Honour explained this as follows:
288.1.In this matter, it is the mother’s formal application to the Court for permission to relocate with the children from Hobart to [Y] in New South Wales. During the trial of the proceedings, Counsel for the mother sought leave to amend her application to seek just such an Order. I gave that leave.
288.2.Pursuant to numerous Orders made previously by this Court, the mother has been obliged to remain in Tasmania until the final determination of these proceedings.
By way of further brief factual background, the mother was born in New South Wales. The parties had met in New South Wales in 1994 and commenced cohabitation in 1995. In 1999, the parties moved to Tasmania but returned to New South Wales before the end of that year. They returned to Tasmania in 2001, by which time both children had been born.
The central argument of Ms Goodchild in respect to the order for the mother to return to Tasmania with the children, is that his Honour decided the relocation issue on a single factor. Put more expansively, the proposition is not that Burr J did not take account of other factors, but that he inappropriately allowed the mother’s non-compliance with Court orders to return to Tasmania, to overwhelm them.
With regard to this argument, his Honour’s conclusions in the following paragraphs seem of particular significance.
258.The mother’s open defiance and contravention of a number of previous Orders of this Court and her lengthy history of obstructing the children’s relationships with their father, satisfies me that the children’s relationships with their father will not be promoted by the mother, particularly in circumstances where significant geographical distance is added to the equation. She said that she did not even support telephone communication. (I refer to paragraph 213 hereof for a detailed summary of this issue).
…
282.I am comfortably persuaded and hence easily satisfied that the most significant feature determining the issue of relocation is the mother’s open defiance of previous Orders of this Court and serial actions in attempting to thwart the children’s relationship with their father. … Her past actions in that regard afford a reliable indicator of her probable conduct in the future.
As can be seen from these paragraphs, while Burr J certainly placed emphasis on the mother’s non-compliance, the true significance of that to his Honour in respect to the ultimate result was what it said of the mother’s attitude to the promotion of a relationship between father and children.
This was consistent with his Honour’s earlier identification of issues for his determination as including:
161.Among other matters, a number of issues emerge for my consideration here, namely:-
161.1whether in light of my finding that the children would be at an unacceptable risk of abuse in the unsupervised care of the father, it is appropriate that a meaningful relationship be fostered and maintained between the father and his two daughters;
161.2if it is my view that it is appropriate to endeavour to foster and maintain a meaningful relationship between the father and his children, whether such a relationship can be enjoyed in the event that I permit the mother’s relocation with the children to Y] in the State of New South Wales;
161.3whether other forms of contact and communication would adequately secure the maintenance of the father’s relationship with his children;
161.4the willingness of the parties to work towards the maintenance of the relationship between the father and his daughters.
We find no merit in the argument, narrowly construed, that his Honour decided the relocation issue on a single factor. However, as seen, that is not to say that in deciding the issue we think his Honour gave proper weight to all relevant factors.
As well as the argument that Burr J had attached too much weight to the mother’s non-compliance with orders, Ms Goodchild attacked his Honour’s factual findings about non-compliance. In particular, Ms Goodchild argued that his Honour failed to deal properly with the question of the mother’s credit, failed to say which of her evidence he accepted or rejected and on occasions failed to mention her evidence at all.
As to his Honour’s dealing with the credit of the parties, his Honour said:
54.In this matter I am not able to make a general finding as to the creditworthiness of either party and therefore be able to indicate a preference for the evidence of one over the other when in conflict. I have serious concerns in a number of respects about the evidence of each. I thus identify those relevant issues of credit within my consideration of the specific issues requiring my determination.
Ms Goodchild took us to his Honour’s detailed examination of the issue of non-compliance by the mother with orders. It does appear that, in dealing with particular incidents, his Honour may not have explained (at least expressly) why he rejected the mother’s “excuse” and in some instances, her evidence of “excuse” is not mentioned at all. However, we repeat what we said earlier, that the significance of his Honour’s findings about non-compliance was that they informed his assessment of the mother’s attitude to the father’s relationship with the children. As to that, there was enough unchallenged evidence from the mother to support his Honour’s conclusion that even if errors such as asserted by Ms Goodchild occurred, we think his Honour’s conclusion would have been the same. His Honour’s findings about these matters include:
210.… She was unable, despite a long pause and a lengthy opportunity afforded to her during her evidence, to find any benefits to the children in maintaining their relationships with their father.
…
212.… She acknowledged that she had never forwarded photographs or school reports to the father or his family despite knowing at all times where they lived. She said she did not believe it important that the children spend any time with the paternal extended family. …
…
283.By actions and words, as late as in the witness box during the trial of these proceedings, the mother stated her unwillingness to do anything to maintain or build upon a relationship between the children and the father. …
In any event, where we are of the view that his Honour failed to give proper weight to a relevant factor, we think it unnecessary to decide whether his Honour placed inappropriate weight on another factor.
Ms Goodchild attacked Burr J’s consideration of various other factors bearing upon the question of relocation, but we think there is no merit in those criticisms.
She challenged the trial judge’s findings about the suitability of the house in Tasmania, to which the orders gave the mother the opportunity to return. We are satisfied that the conclusions Burr J reached were open to him.
Ms Goodchild also challenged a finding made by Burr J about the “transportability” of Mr Bande’s employment skills. Burr J said:
216.… In his evidence, Mr [Bande] indicated that he would move to Tasmania to be with his wife. He has a “transportable” career … I am satisfied that he would have no difficulty in finding work in Tasmania, where he worked in the past. …
We think, in circumstances where Mr Bande had moved from Tasmania to New South Wales and in view of the very nature of his work, the conclusion which his Honour drew as to the transportability of Mr Bande’s career was well open to him.
These attacks on the trial judge’s findings about the practicality of the mother returning to Tasmania are connected with an argument by Ms Goodchild that Burr J had:
16.…attempted to distinguish the facts and circumstances of this matter with those of Sampson v Hartnett (No.10) (2007) FLC 93-350”. The appellant mother contends that such attempt at distinguishing the Sampson decision failed and the facts of this case and (sic) remarkably similar to those in Sampson and that this court should find, as in Sampson, that there were insufficient findings to justify the ‘extreme’ measure constituted by the orders, such extreme measures requiring an ‘unusually stringent enquiry’.
The orders in question in Sampson & Hartnett (No.10) (2007) FLC 93-350 effectively required a parent to move residence from Geelong to Sydney. That was the “extreme measure constituted by the orders”.
We are not satisfied that this case could not have been one in which orders of the nature of those described in Sampson & Hartnett (No.10) as being at “83…the extreme and of the discretionary range”, were open to be made, but again, where we have concluded that the trial judge failed to give proper weight to a relevant factor, we think it unnecessary and indeed unwise to say more.
Ms Goodchild further argued that what his Honour said in paragraph 218 about extended family members on both sides of the family contained some factual error. His Honour said:
218.Thus remaining in Tasmania would have the most beneficial impact upon the children in terms of the maintenance of their relationships with their father and with important immediate and extended family members on both sides of the family.
By the time of judgment, if not trial, the mother may not have had family living in Tasmania. We think this a minor matter, if in fact an error.
Ms Goodchild also criticised the conclusion that his Honour reached about the effect on the children of a change of school, or at least the weight that his Honour gave to that prospect. Burr J said of the prospect of the children returning to Tasmania:
219.It would though require a further change of schooling for the children as they have been at school in [Y] for all of 2008, having also spent the first six months of 2007 there. The principal of the [Y] Public School, Mr [U], gave evidence in these proceedings both by way of affidavit filed on 25 September 2007, and by telephone during the trial of the proceedings. It was his evidence that both [F] and [C] are doing well at school, and in some instances performing at a very high level. [C] was performing somewhat better than her sister. He said that after some initial difficulty in resettling into [Y] Public School in 2008, they had now done so. He was not certain whether the children would suffer with a change of school back to Hobart, but said that he had less concerns about [C] than [F]. The next year or two of [F’s] schooling he described as being very important and the most critical years.
We see no error in his Honour’s conclusion or the weight he gave it.
Another argument that Ms Goodchild raises is that his Honour did not adequately explain why the father could not spend time with the children in New South Wales. A connected point is that his Honour did not adequately explain why the mother’s negative attitude to the father and non-compliance with orders would be less of a problem if the mother lived in Tasmania.
Among findings relevant are:
213.Given the significant distance and cost involved in maintaining a relationship between the father and the children in the event that the mother was permitted to relocate with the children to [Y] in New South Wales, a lack of willingness by the mother to do anything at all to foster and sustain the relationship, is a matter of the gravest concern. I am satisfied that the children’s significant and improved relationships with their father can only be maintained by regular physical contact with him. Cards, letters, emails, telephone calls, webcam communications and the like, will simply not suffice and do not represent the children’s best interests. Even if I was satisfied that alternative means of communication were sufficient to maintain the children’s relationship with their father, I am satisfied on the abundant overwhelming evidence before me that the mother would not abide Orders of the Court for those alternative means of communication. She will use the tyranny of distance and the lack of close physical proximity to undermine and destroy those relationships.
…
215.To craft orders which would have the effect of continuing to minimise the amount of time the children spend with their father, or indeed have the consequence of effectively removing him from their lives, would not be in their best interests. Given the mother’s oppositional stance to contact between the father and the two children and her long history of actively discouraging the relationship, granting the mother’s application to relocate to [Y] in New South Wales could have significantly detrimental consequences for the children.
…
222.… In [Y] he would also be able to rely upon formal contact services, his mother and at times, his sister. Due to distance and cost, it would obviously be more difficult to structure supervised arrangements and potentially to move to unsupervised time when the children are in a position to protect themselves, in [Y] than it would be in Hobart.
223.The father would have little if any opportunity of participating in the children’s schooling and extra curricular activities in the event that the children did not reside in Hobart.
224.There would also be significantly additional practical difficulty and expense associated with travel and accommodation if the father was required to go to [Y] to see the children, or the children were accompanied and supervised in any time they spent with their father in Hobart. The father could stay with his mother who resides in [W] but it was his evidence that [Y] is approximately a 1 hour drive from [W]. Thus the return trip would be almost as long as the flight between Hobart and Sydney. There is then also the drive between Sydney and [W].
225.The father works for a travel company and as such has access to cheaper staff airfares. However, such staff discounted airfares are “sub load” and the exact times and dates of the flights cannot be guaranteed. I accept the evidence of the father that Fridays, Sundays and school holidays are “nightmares” in terms of trying to secure staff travel and due to schooling and work commitments those would be the dates when he would most likely need to arrange air travel in order to see the children if they were resident in New South Wales. Even with discounted airfares, the cost on each occasion would be approximately $150 return. There would be an additional cost in travelling between Sydney and [Y].
226.The father was examined as to his capacity to transfer his employment to Sydney. The father works with a travel company. They have centres in Hobart, Melbourne and Brisbane, but none in Sydney.
…
229.The mother has made it very plain that she is not prepared to facilitate a close and continuing relationship between the children and the father because of the unacceptable risk he poses to the children. Whilst she obdurately maintains that the position is a responsible one and that whilst there might be some sadness for the children in not spending time with the father, she holds that this is outweighed by the unacceptable risk posed to the children spending any time with the father. The mother asserts that this is an appropriate attitude to be adopted by her to the responsibilities of parenthood.
…
233.Given that the mother too (and more so) has been privy to the evidence that leads me to be satisfied that the father poses an unacceptable risk to the children in an unsupervised setting, it is perhaps not surprising that the mother has adopted such an intensely obstructive attitude to the father seeing his children. She was privy first hand to the allegations of her children, particularly [F], and subsequently to the police interview of [F] which I found so compelling.
234.However, she has also been privy to the frequently expressed views of various experts and observers that the children desperately need their father and need to shore up and maintain their relationship with him by spending regular and frequent occasions of time with him. Despite the incontrovertible evidence that the children need their father, and her own acknowledgment in evidence that the children are comfortable with the father, she has remained blindly and implacably oppositional to the children being able to satisfy that need by contact with their father in safe and secure supervised circumstances. Her demonstrated and previously mentioned blatant attempts at thwarting the processes of the Court and the experts engaged to try and direct the Court to an outcome which represents the best interests of the children, leave me satisfied that she is incapable of meeting all of her children’s emotional needs and that being removed by a significant distance from the father will continue to obstruct the relationship between the father and the children and thereby prejudice their emotional development. I am satisfied that her open defiance and blatant disobedience of previous Court orders is not confined to the past. I am satisfied that afforded the comfort and security of significant distance from the father she will do nothing to promote the children’s relationships with their father and ignore this Court’s attempts at remote engagement of father and children.
…
239.The mother’s lengthy and detailed history of open defiance and, at times, blatant disregard for the Orders of this Court provide ample evidence of the need to craft Orders that provide to the mother the least opportunity to thwart any Orders that I make and allow her to stand in the path of the maintenance of the relationship between the children and their father, a relationship demonstrated as being so important to the children.
240.I am satisfied that her demonstrated history in that regard, her resistance to the views of the experts and her demeanour and presentation during the trial, clearly indicate that permitting the children’s relocation to New South Wales will impact adversely upon the children in terms of their relationship with their father pointing to the certain need for the father to institute proceedings on numerous occasions to promote the Orders in his favour for time with his children.
…
275.The distance, costs associated with exercising the right and entitlement to spend time with the children, and the mother’s obstructive nature and attitude, would impact upon the frequency with which interaction between the father and the children could occur.
While it may be that Burr J’s view that the mother would use the tyranny of distance to undermine and destroy the relationship between father and children is not one supported by compelling logic, it falls into the very category of which we earlier spoke. It is an assessment of a likelihood in the future. We see no error in his Honour’s reasoning in that respect.
Thus, we reject the arguments that Burr J did not explain why the father could not spend adequate time with the children in New South Wales or why the mother’s attitude to the father would be less of a problem if the mother and children lived in Tasmania.
Simply to show the fullness (bar for the one factor) of Burr J’s consideration of factors relevant to the “relocation” question, we include the following passages:
186.The father did not dispute that the children enjoyed a close and loving relationship with their mother. She has been their primary carer and primary attachment figure for most of their lives and particularly since July 2005 when the allegations of abuse against the father first arose.
187.I am satisfied that the children too appear to enjoy a comfortable relationship with the mother’s husband Mr [Bande]. …
188.I am satisfied too that they love having a baby sister [Z] who is now some 7 months old. They also see Mr [Bande’s] 9 year old son [J] regularly and there is no suggestion that they do not enjoy the times they spend with him.
…
271.Mr [Bande] acknowledged that he would still be able to see his 9 year old son [J] regularly. He acknowledged that [J] was old enough to fly unaccompanied and that he enjoyed a co-operative relationship with [J’s] mother. He further admitted that when he previously resided in Tasmania he took regular trips to New South Wales to see [J] and that commuting between the two States had never been a problem.
Summary of our conclusion in respect of the appeal grounds
In our view, his Honour’s finding of unacceptable risk and the findings underpinning that conclusion, were relevant; not just to the question of whether orders could be made to counter that risk, as to which question his Honour had regard, but also to the parenting capacity of the father, the benefit of time spent by the father with the children, the likelihood of various scenarios for time between father and children in the future and thus, ultimately, the question of whether the mother should be ordered to move from New South Wales to Tasmania. In the determination of those questions his Honour gave no regard to his findings of unacceptable risk. Thus, we are of the view that, notwithstanding his Honour’s attention to and careful weighing of the many other relevant factors, the appeal has merit.
Consequences of finding that the appeal has merit
On 7 October 2009 we invited submissions in writing from each party directed to, in part, as follows:
A.If the court finds merit in the appeal SA100/2008, whether the court should remit the mother’s application for parenting orders for rehearing, or should itself re-exercise the trial judge’s discretion.
B.Whether in the event the court proceeds to re-exercise the discretion, you wish to place further evidence before the court and if so, the nature and scope of that evidence.
Only the ICL has made submissions within the time permitted. She argues that the mother’s application should be remitted for rehearing. She submits:
…it would be impossible for the Court to properly determine the matter in the children’s best interests without re-hearing the matter. There are also relevant events that have occurred since the original Order was made that may impact on the outcome.
The mother attempted to file submission in response to our directions, but they were not received by the court in time. She has now filed an application seeking an extension of time within which to file those submissions. The affidavit in support of her application discloses that the Independent Children’s Lawyer has the submissions and does not object to an extension of time. It also indicates that the father has had the submissions for quite some time and that the father has been asked by letter whether he consents to the submissions being filed out of time, but he has not responded.
In the circumstances, including the conclusion which we will shortly express, we consider it appropriate to entertain the mother’s submissions.
Perhaps not surprisingly, the mother seeks, for what we acknowledge are sound reasons of expedition and economy, that this court re-exercise the discretion. However, she also sets out a list of some length of the further evidence that she would wish to place before the court and, among her submissions, says:
Any cross-examination sought by either party should be strictly restricted to the matters that remain to be determined by the Full Court.
While this court might be as well placed as the trial judge to draw inferences of fact from, and conclusions from, facts as found by the trial judge, this court faces grave difficulties in determining primary findings of fact. Notwithstanding the submissions on behalf of the mother, we are persuaded that, as the Independent Children’s Lawyer submits, remission is the proper course.
We are also persuaded that on the trial judge’s findings, the interim orders proposed by the Independent Children’s Lawyer (with slight alteration) are in the children’s best interests. The trial judge ordered that the mother have sole parental responsibility. That order has not been appealed. Thus the presumption set out in s 61DA of the Act does not apply. Clearly, from what we have already said and Burr J’s undisturbed conclusions, supervision of the father’s time with the children is appropriate on an interim basis. For obvious reasons, we have included an order requiring the parties to make arrangements with the contact centre. We have made an order that the father pay the centre’s fees in the first instance, but acknowledged that that issue was not argued before as by providing the opportunity to the father to seek that, as between him and the mother, she pay all or some of the fees.
The other appeals
As to the three other appeals that are before us, on 28 April 2009, Benjamin J adjourned the hearing of a contempt application brought by the father, directed that the mother appear personally on the new date and that a warrant issue for her arrest. The operation of that warrant was suspended until the time for appearance on the new date. Costs were reserved. The mother’s grounds of appeal do not challenge the reservation of costs of itself.
On 9 December 2008, Benjamin J dismissed the mother’s application for a stay of the orders of Burr J made 31 October 2008 and reserved costs. Clearly, in view of our order in the primary appeal, the question of a stay is no longer of practical interest. The mother’s grounds of appeal do not challenge the reservation of costs of itself.
On 11 May 2009, Benjamin J again adjourned the hearing of the father’s application that the mother be dealt with for contempt, noting that all parties were required to attend at the Hobart Registry in person on the next date and ordered that a warrant issue for the mother’s arrest to be brought before the Family Court on that date.
In view of our decision in the primary appeal, we do not see that the mother stands aggrieved by any of these orders. No orders for costs have been made against her and the passage of time has overtaken the warrants issued for her arrest. We think these appeals should be formally dismissed.
I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 22 December 2009
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