Pascoe & O'Keefe and Ors

[2018] FamCAFC 243

FAMILY COURT OF AUSTRALIA

PASCOE & O’KEEFE AND ORS [2018] FamCAFC 243

FAMILY LAW – APPEAL – CHILDREN – With whom the child lives and spends time – Where the trial judge made orders providing for the child to live with the father and spend time with the mother under restrictive conditions concerning the second respondent – Where the mother’s appeal supported by the Independent Children’s Lawyer – Where the second respondent attended the appeal but did not participate – Where the mother submitted the trial judge could have ordered the child to live with her by excluding the second respondent from her household by permanent injunction – Where findings about permanently restraining the second respondent from the mother’s household were not reasonably open to the trial judge – Where the trial judge found there was a risk of harm to the child in the mother’s household posed by the second respondent’s history of violence, particularly if intoxicated – Where the trial judge correctly assessed the risk of harm posed to the child when determining the child’s primary residence – Where no error on the part of the trial judge – Where the trial judge gave sufficient reasons for making orders which did not coincide with the single expert’s recommendation – Where the parties’ were not deprived of procedural fairness – Where the trial judge correctly made orders promoting the child’s best interests by confining the duration of the child’s visits with the mother – Where the Court determined the trial judge had correctly allocated sole parental responsibility to the father – Where there is no merit in any ground of appeal – Where no orders as to costs – Appeal dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the first respondent was self-represented – Where no justification for further evidence to be adduced – Application dismissed.

Family Law Act 1975 (Cth) ss 60CC(2)(b), 60CG(1)(b), 61DA(2)(b), 65DAA(3)

Amador v Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196
Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621; [1953] HCA 25
B & B [2003] FamCA 274
B & K [2001] FamCA 880
Blanch v Blanch and Crawford (1999) FLC 92-837; [1998] FamCA 1908
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Khalil & Tahir-Ahmadi (2012) FLC 93-506; [2012] FamCAFC 68
U v U (2002) 211 CLR 238; [2002] HCA 36

APPELLANT: Ms Pascoe

1ST RESPONDENT: Mr O'Keefe  

2ND RESPONDENT: Mr Pascoe

INDEPENDENT CHILDREN’S LAWYER: Gabbedy Milson Lee

FILE NUMBER: CAC 790 of 2015

APPEAL NUMBER: EAA 79 of 2018

DATE DELIVERED: 7 December 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Sydney

JUDGMENT OF: Alstergren DCJ, Austin & McClelland JJ

HEARING DATE: 30 October 2018

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 21 May 2018

LOWER COURT MNC: [2018] FamCA 350

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Davis

SOLICITOR FOR THE APPELLANT: Legal Aid ACT

COUNSEL FOR THE 1ST RESPONDENT: In Person

SOLICITOR FOR THE 1ST RESPONDENT: Not applicable

COUNSEL FOR THE 2ND RESPONDENT: In Person (did not participate)

SOLICITOR FOR THE 2ND RESPONDENT: Not applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Lee

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Gabbedy Milson Lee

Orders

1. The first respondent’s oral application to adduce further evidence on the appeal is dismissed.

2. The appeal is dismissed.

3. No order as to costs.

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 Pascoe & O’Keefe 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 79 of 2018
File Number: CAC 790 of 2015

Ms Pascoe

Appellant

And

Mr O’Keefe

First Respondent

And

Mr Pascoe

Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On 21 May 2018, Gill J made parenting orders between the parties in respect of a child under Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. The mother appealed against the orders and was supported by the Independent Children’s Lawyer. The father, who is the first respondent, resisted the appeal. The mother’s husband, who is the second respondent, attended the appeal but did not actively participate as a party to it. Nor did he file any written summary of argument.

3. The trial judge’s orders essentially provided for the child to live with the father, for him to have sole parental responsibility for her, and for the child to spend time with the mother on alternate weekends, during school holiday periods, and on other special occasions. The second respondent was restrained by injunction from consuming alcohol while present in the same household as the child and from being intoxicated in her presence.

4. For the reasons which follow, the appeal should be dismissed with no order as to costs.

Background

1. The subject child was born in November 2014 and has just attained four years of age. The child’s conception resulted from an affair between the mother and the father. The mother contended the father took sexual advantage of her whilst she was intoxicated, but the trial judge rejected her evidence and the finding in that regard was not the subject of challenge.

2. The mother is profoundly deaf and was 30 years of age. The second respondent was 41 years of age and was described as having a mild intellectual disability. The father was 69 years of age and lived on a farm out of town. The second respondent worked for the father and they have known each other for many years. The father and the mother met through the second respondent.

3. The mother and the second respondent began their relationship in about March 2006. They have two older children (B and C), who were born in 2008 and 2009 respectively. The mother and the second respondent eventually married in April 2017 and they now have a third child together, born in mid-2018, shortly after the trial.

4. After the subject child’s birth in November 2014, she formed part of the household comprising the mother, the second respondent, B and C. At least initially, the second respondent did not have any doubts about his paternity of the child. The trial judge found the mother gave the father photographs of the child shortly after her birth, which alerted the father to his probable paternity of the child.

5. The father sought and obtained orders from the Federal Circuit Court of Australia in 2015 for paternity tests to be undertaken. The parties accept the tests established the father as the child’s progenitor.

6. After the father’s paternity was proven, in August 2015, the mother and the father entered into final consent orders about arrangements for the child’s care. Broadly, the orders provided for the child to live with the mother and to spend time with the father between Saturday and Monday each week. Some injunctions were made about the parties’ consumption of alcohol. Although the mother alleged she was importuned by the father to sign the orders, she voluntarily agreed to expand the amount of time the child spent with him. She allowed the child to spend time with him from Friday until Monday each week because, as she deposed, the child’s relationship with the father “appeared to be going well”. She deposed there was no change to that harmonious state of affairs until April 2017.

7. In June 2017, the father withheld the child from the mother because he formed the belief she was smacked by the second respondent. The mother commenced proceedings to secure the child’s return and fresh interim consent orders were then made in July 2017. The orders maintained the residential arrangement under which the child lived with the mother for four days each week and spent time with the father for the other three days of each week but, importantly, the orders removed the second respondent from the mother’s home for the four days of each week the child lived with her. From that point in time, the risk of the child’s harm caused by her subjection or exposure to the second respondent’s violence became an issue of pre-eminent importance in the proceedings.

8. Within only a few weeks, the father again withheld the child from the mother because he suspected she breached the injunction by allowing the second respondent in her home while the child was present. The mother again successfully applied for orders returning the child to her primary care in August 2017 and the proceedings were then transferred to the Family Court of Australia for disposition.

9. The trial judge found the two clashes between the parents in June and July 2017 marked the end of their cooperative relationship, though the interim orders made in July 2017 held firm until the trial in May 2018. Gill J expedited the trial to ensure the proceedings were completed before the mother’s birth of her fourth child in July 2018.

10. At trial, the mother sought orders for the child to live with her and to spend time with the father on alternate weekends. She also wanted no impediment to the second respondent’s resumption of full-time residence with her. The father was content for the child to remain living with the mother, provided the second respondent was kept away from the child, unless supervised. If that could not be achieved, the father wanted the child to live with him instead. He would allow the child to spend time with the mother, but only under the same restrictive conditions concerning the second respondent.

11. The trial judge was left with the relatively stark and difficult choice between:

    (a)on the one hand, ordering the child to live with the father to ensure her protection from the risk of harm posed by the second respondent, but thereby cause her to lose the identifiable benefits of living with the mother and her half-siblings; and

    (b)on the other, ordering the child to live with the mother, but thereby expose her to the risk of harm posed by the second respondent, who would inevitably be a permanent resident in the mother’s household.

12. The trial judge opted for the former and the mother’s complaint on appeal was, essentially, that his Honour failed in several respects to properly perform and sufficiently explain the balancing exercise.

13. On appeal, the mother’s counsel submitted the trial judge could have alternatively ordered the child to live with the mother and, to eradicate any concern about the risk of harm, excluded the second respondent from their household by permanent injunction, but that option was not practicably available for several reasons.

14. First, it was not part of the suite of orders urged upon the trial judge by the mother or anyone else throughout the trial. None of the parties, nor the Independent Children’s Lawyer, conducted the case on the basis that it was reasonably open for the trial judge to make an order for the child to live with the mother, on the condition the second respondent was eliminated from her household.

15. Second, although the mother gave some oral evidence which plausibly implied she would choose the child over her husband if forced to make the choice, that evidence was not embraced and advanced in the final submissions made to the trial judge by her counsel.

16. Third, the second respondent was fixated upon his freedom to return to live with the mother and, since he and the mother mutually contended they would form a happy and stable household for all four children, that edifice would crumble if she belatedly abandoned her planned cohabitation with the second respondent. In fact, during cross-examination of the single expert, the mother’s counsel recited to the single expert how the second respondent gave evidence to the effect that, if he continued to be restrained from being in the mother’s home, it would mean the end of their relationship. Given the mother’s deafness, she did not assert she could contend with a newborn baby, the child, and her two older children without the second respondent’s help.

17. Fourth, the mother and the second respondent were jointly pressing a proposal for the child’s residence in reliance upon their perceived support from the single expert, who tentatively recommended that the interim injunction against the second respondent should be relaxed. The mother did not genuinely contemplate the rejection of that evidence and the trial judge’s perpetuation of the injunction.

18. Finally, it is clear that his Honour did consider the option of excluding the second respondent from the household, but concluded the adverse impact on the mother was likely to affect the child. Similarly, his Honour found that the potential disintegration of the relationship between the mother and the second respondent as a result of the second respondent being excluded from the home was likely to adversely affect the child’s siblings and this, in turn, would affect the child (at [104]). Those findings were reasonably open to his Honour.

Application to adduce further evidence

1. At the commencement of his submissions, the father announced his wish to adduce further evidence in the appeal, which evidence took the form of several past affidavits (which were referred to as annexures to his written summary of argument, though they were not physically annexed) and some documents he wanted to tender as exhibits.

2. With the laudable help of the mother’s counsel, it was established that the father adduced the same affidavits in evidence in a more recent dispute between the parties before the trial judge over alleged contraventions of the appealed orders, which dispute has been determined. Such evidence therefore merged in the orders made by the trial judge to conclude that particular dispute and was not admissible in this appeal for any legitimate purpose.

3. As for the other documents he wished to tender, the father informed the Court he sought to defend the appealed orders, in which event there was no need or justification for further evidence to be adduced. If the orders were defensible, they were defensible on the evidence which was before the trial judge. The father’s oral application to adduce the further evidence was therefore refused.

Grounds of Appeal

1. The mother filed a Notice of Appeal on 18 June 2018, which was amended on 10 September 2018.

2. There were 15 grounds of appeal, but some were abandoned at the outset (Grounds 6, 7, 9 and 15). Of the remainder, the mother’s counsel grouped them into two categories: those which dealt with the trial judge’s approach to the assessment of the risk of harm (Grounds 1-5, 8, 10 and 13) and those which dealt with some asserted miscellaneous errors, also said to affect the re-exercise of discretion if the appeal succeeded (Grounds 11, 12 and 14).

3. The Independent Children’s Lawyer, who supported the appeal, filed separate written submissions but did not elaborate them orally and was content to simply endorse the mother’s submissions in all respects.

4. Given the way the oral argument was structured, it is most efficient to address the issues raised in the appeal rather than the individual grounds.

The assessment of risk

1. The principal issue presented to the trial judge for consideration was the second respondent’s general pre-disposition to violent conduct, often generated by his excessive consumption of alcohol, to which the mother and the children in her household are either subjected or exposed. The father contended the child would potentially suffer physical or psychological harm, either as a victim of or as a witness to, the second respondent’s violence in the mother’s household. Consequently, any orders made by the trial judge needed to protect her against that pronounced risk. There could be no doubt the law so provides (ss 60CC(2)(b) and 60CG(1)(b) of the Act).

2. The trial judge was obliged to determine on the evidence whether such risk existed and, if so, assess the magnitude of the risk and then, if necessary, consider whether the risk was capable of mitigation. The trial judge appreciated that was part of the task at hand (at [107]). On appeal, the mother accepted the trial judge correctly apprehended the test to be applied, but she contended his Honour misapplied it (Ground 1).

3. Before turning to the asserted errors made by the trial judge, it is instructive to catalogue the evidence adduced about the second respondent’s violent tendency and the risk of harm he poses to the child. It is also helpful to know the factual findings made by the trial judge which underpinned the ultimate conclusion about the risk of harm posed by the second respondent were not said to be wrong.

4. In May 2009, the second respondent assaulted B (who was then only an infant) to try and stop her crying. He did so by shaking her and striking the side of her head with an open hand, using such force it dislodged her cochlear device. The mother tried to intervene to protect B, but the second respondent stopped her by grabbing her arm, marking her skin. The mother telephoned a friend to summon her assistance. When the friend arrived at the house the second respondent was yelling obscenities at the mother. The friend conveyed her and the two children to the police station. Police officers observed the mother was crying and shaking from the ordeal. The police called for an ambulance and the mother and B were conveyed to hospital for assessment. The second respondent was arrested and interviewed two days later. He admitted to only “smacking [B] gently on the hand”. He admitted both he and the mother had consumed alcohol that night. He admitted having a “heated argument” with the mother, but denied assaulting her. He could not explain why the mother summoned a friend for help or why he panicked, departed their home and could not be found by police that night. No charges were brought by the police because the mother later told the police “no assault” took place. The trial judge found this incident occurred as the police recorded (at [22], [94]).

5. In July 2010, the mother’s friend was alerted to an argument occurring between the mother and the second respondent and she contacted police. Upon the police attending the home, both the mother and the second respondent admitted their argument, but denied any physical violence, so no further action was taken. The police records of the incident note the history of “previous recorded domestics” between them, as a consequence of which they assessed the two children in their care were “at risk”. The trial judge made no finding in relation to this incident (at [23]; Exhibits F7 and M2).

6. Only several weeks afterwards, in July 2010, police were again summoned by a concerned neighbour as the mother and the second respondent were arguing heatedly. Upon attendance, the argument had ended but the police found both parties well affected by alcohol. The trial judge made no finding in relation to this incident (Exhibits F7 and M2).

7. In March 2011, the mother reported to police the second respondent assaulted her by forcefully squeezing her head between his hands while he was standing behind her. He then placed his face in close proximity to her face while he was flushed with rage. The following day, the second respondent called the mother a “dumb deaf slut” and corralled her in the bedroom, obstructing her exit from the room. He pushed her backwards onto the bed. Shortly afterwards she was able to leave the property with the two children, so she drove to the police station to report the incidents. She told the police she was assaulted by the second respondent on other past occasions as well, which she had not reported. The second respondent was charged by police, but the result of his prosecution is unknown. The trial judge found this incident occurred as the police recorded (at [24], [94]).

1. In May 2011, the second respondent was abusive and belligerent whilst intoxicated in a hotel. He refused to quit the premises when directed but, when police were called, he managed to escape the pursuing officers. They intended to issue infringement notices to him later. The trial judge made no finding in relation to this incident (Exhibit M2).

2. The single expert noted in her report that, in April 2012, the family’s general medical practitioner recorded the relationship between the mother and second respondent was “very turbulent and characterised by alcohol and violence”. There was no challenge to the accuracy of that evidence.

3. In “approximately 2013”, the second respondent was convicted of assaulting the mother by slapping her. He called it a “misunderstanding”. An apprehended violence order was made to protect the mother from him. The trial judge found those facts proven (at [26], [94]).

4. In January 2014, neighbours observed the second respondent punch the mother in the face while they were arguing on the front lawn of their home. The neighbours intervened, took the mother and children to another neighbour’s home and called the police. On arrival at the scene, both the mother and the second respondent were intoxicated and neither was co-operative. The second respondent was arrested and charged with assault, though the result of his prosecution is unknown. The next day, the mother drove herself and her two children to the police station, while intoxicated, to recant her statement of assault the preceding day. The trial judge found those incidents occurred as the police recorded (at [27], [28], [94]). 

5. In March 2015, the mother and the second respondent argued over the child’s paternity. The second respondent was enraged and was shouting in the mother’s face. He physically restrained her from using her telephone to call for help and kicked her on the shin. B and C witnessed the incident. The mother managed to call the father, whereupon C (then only six years of age) asked the father to call the police, which he duly did. When police attended the home, the second respondent was agitated. The mother told the officers she had been assaulted and she feared for the safety of herself and the children. At that time the mother was protected by an apprehended violence order, so the second respondent was charged for both the assault and breaching the order. The result of his prosecution is unknown. The trial judge found those incidents occurred as the police recorded (at [41]-[47], [94]).

6. In February 2016, the mother was admitted to hospital for assessment of a head injury which was originally attributed to a physical blow by the second respondent, but which was later said to have resulted from the mother accidentally hitting her head during a seizure. No action was taken by the police because of the confusion and the trial judge made no finding in relation to this incident (at [54]).

7. In September 2016, the mother and second respondent engaged in an argument, which caused the second respondent to call the police. On their arrival, he was emotional and admitted having consumed alcohol. No action was taken by police and the trial judge made no finding in relation to this incident (at [55]).

8. Between October 2015 and June 2017, the second respondent was involved in numerous physical and verbal altercations with neighbours, which involved police intervention to quell the disturbances even though no charges followed (Exhibit M2).

9. The issue of violence between the mother and the second respondent was raised by the single expert with each of them in October 2017. The mother asserted the second respondent had “never been violent towards her” and re-assured her he was “never physically violent towards her”. The mother alleged they had only ever “argued verbally”. She told the single expert the second respondent was a “very loud” person and their arguments looked worse than they were. Similarly, the second respondent denied he was a violent person and said he “had never hit” the mother. He said they used to “fight a lot, verbally only”. By reference to the exhibited police records and the trial judge’s undisturbed findings, the statements made by the mother and second respondent to the single expert on that issue were patently false. Moreover, there is no scope but to conclude they were deliberately false. Strong inferences arise that the second respondent lacks genuine contrition for his past behaviour and the mother shows little insight into the destructive effects of family violence within her household.

10. Quite properly, the trial judge observed the issue of family violence must be treated seriously (at [102], [108]). His Honour correctly found the mother was the victim of the second respondent’s violence on repeated occasions over a long period and the children in her household had been exposed to it (at [94], [97]). In cross-examination, the single expert discussed the deleterious psychological consequences for children of their exposure to family violence, which evidence was hardly a revelation. This Court has long-recognised its destructive effect on the immediate victim and those who are exposed to the violence including, most relevantly in this case, the child (Blanch v Blanch and Crawford (1999) FLC 92-837 at 85,745-85,748; B & K [2001] FamCA 880 at [32]; B & B [2003] FamCA 274 at [32]-[36]; Amador v Amador (2009) 43 Fam LR 268 at [95]; Khalil & Tahir-Ahmadi (2012) FLC 93-506 at [189]).

11. The fact a child may not currently manifest symptoms of exposure to family violence does not mean the exposure has not already been harmful or that more exposure in the future will not compound the harm. The mother’s false contrary assumption underpinned one ground of appeal, which must fail (Ground 8). Her submission that the risk of harm to the child is reduced because neither B nor C exhibit any tangible ill-effects of their past exposure to the second respondent’s violence is therefore rejected as fallacious.

12. In determining the current and ongoing level of risk of the child’s exposure to family violence within the mother’s household, his Honour appreciated the need to consider the countervailing evidence about more recent improvement by the mother and second respondent. They adduced evidence about the reduction in the level of their alcohol consumption, some counselling undertaken by the second respondent, and some help they receive from government agencies (at [67]-[69], [73]). Of course, his Honour was not obliged to glibly accept such evidence without evaluating its probative value and, undertaking that process, the evidence was exposed to lack detail and to leave “open to question” the durability of the changes made by the mother and the second respondent (at [86]). The trial judge found the changes were commendable, but so far only showed “a trend toward less risk” (at [98]-[99], [109]). Such a conclusion was well open, particularly given the recent deceit of both the mother and the second respondent about their experience of family violence with the single expert.

13. The mother and the second respondent also asserted the safety assessment compiled by the child welfare authority in October 2017 should persuade of the reduction, or even absence, of risk, but the trial judge did not regard the assessment as “definitive” (at [72], [85]). The conclusion expressed in the assessment report about the children’s safety was based on the unconditional acceptance of the mother’s assertion of peace and harmony in her household, with some limited corroboration from B and C. But the gaps in the report are evident. For example:

    (a)The child welfare authority was last notified about concerns in relation to the child two years before (in 2015) and informed the Federal Circuit Court (in July 2017) it would not intervene in the proceedings, despite an order of the court expressly inviting its intervention (Exhibit F5). The safety assessment was only instigated in October 2017 because of a notification that the second respondent “drinks to intoxication every day and is violent when intoxicated”.

    (b)The second respondent was not apparently interviewed during the assessment about his violence or intoxication, either independently or at all, even though he was the subject of the complaint. It remains unknown whether the officers who wrote the report were cognisant of the full extent of the long history of intoxication and violence in the lives of the mother and the second respondent. The trial judge was aware of it.

    (c)The mother told the caseworkers she and the second respondent attended Alcoholics Anonymous meetings, but admitted they are still consuming alcohol. She asserted they are not drinking “heavily”, whatever that may mean. If the mother and the second respondent regard themselves as alcoholics who need the support garnered from attendance at Alcoholics Anonymous meetings, nothing short of complete abstinence bolsters confidence in their durable rehabilitation.

    (d)B told caseworkers she had not seen the mother and the second respondent fight for over six months, but the elapse of such a modest period of time is hardly sufficient to imbue confidence that the violence will not recur. On the available evidence, there were periods of respite in the past as well.

    (e)The report concludes the children in the mother’s household are not at risk of direct sexual or physical abuse, but it does not directly address the issue of what psychological harm may befall the child if she is exposed to any more family violence committed between the mother and the second respondent. Children’s exposure to violent parental conduct may be just as harmful as their subjection to personal abuse.

14. The mother’s complaint about the trial judge’s erroneous failure to give more weight to the safety assessment report is not sustainable (Ground 10). It was synthesised as a factor in the trial judge’s determination about the risk of harm to the child, but his Honour was not obliged to find the risk was satisfactorily attenuated just because the child welfare authority reached that conclusion.

15. The single expert also expressed an opinion about the risk of harm. She stated in her report:

    In my opinion, this risk [ie. the risk of harm posed to the child in the mother’s household] is minimised if he [ie. the second respondent] continues to avoid excessive alcohol consumption.

16. Thus, the single expert considered the risk of the child’s harm would only be minimised (not eradicated) and only if the second respondent permanently (not temporarily) abstains from alcohol consumption which is “excessive” (whatever that may mean, given its subjectivity).

17. The single expert ultimately recommended that the child should live with the mother and, furthermore, the second respondent could form part of the household, but she expressed her regret about the lack of continuing scrutiny of that arrangement in these terms:

    It is perhaps unfortunate that [the child welfare authority] are not involved in this matter and cannot supervise a return home by [the second respondent] to ensure he can sustain abstaining from excessive alcohol consumption and maintain a nonviolent relationship with [the mother]. If problems arise, no doubt [the child welfare authority] will be notified and either implement a care plan or consider alternative care, either with [the father] or with other carers.

18. One might reasonably think the caveat expressed in those terms to her recommendation for the child to live with the mother fell well short of a ringing endorsement of the residential arrangement proposed by the mother and second respondent. It served to underscore a deep sense of disquiet about the child’s safety and security living with the mother in the event of the second respondent’s presence in her home. It is hardly a satisfactory salve to expect the child welfare authority to swoop in and remove the child from the mother “if problems arise”.

19. Rather benignly and generously, the trial judge expressed his conclusion about the risk of harm in the mother’s household thus:

    108.…There is … a spectrum of family violence and of the risks associated with it. In this case there is not a significant risk that [the child] will be the subject of violence. There is a risk that she may be exposed to family violence, in particular upon the Mother. The nature of that violence appears to have been episodic and, within the range of family violence, at a low level of intensity. The frequency also appears to have diminished, and factors have been identified to reduce the risk in the future.

    (Emphasis added)

20. His Honour noted that the extent of the risk to the child bore upon the regime which would govern with whom she should live and with whom she would spend time, which led to the conclusion she should live primarily with the father (at [110]-[111]). The mother’s complaint that the trial judge did not link the second respondent’s violence to the risk of harm posed to the child cannot therefore be sustained (Ground 2).

21. The decision about the child’s residence was not reached in ignorance of factors which suggested her residence with the mother would be beneficial, such as her more frequent interaction with her half-siblings (at [115]) and greater proficiency communicating with the mother using Australian Sign Language (“Auslan”) (at [116]). The trial judge realised those factors had to be counter-balanced (at [101]).

22. The mother’s complaints that the trial judge gave insufficient weight to those factors and erred by failing to provide a clearly reasoned balancing process cannot be sustained (Grounds 3-5, 13). The child’s relationships with her half-siblings would not be severed as a consequence of her residence with the father, as was submitted for the mother; she would simply see less of them. His Honour acknowledged that was a consideration of “significance” and was a “primary” factor in the single expert’s recommendation for the child to live with the mother, so it was given plenty of weight. Similarly, her Auslan communication with the mother would not be precluded; it would just not be a daily occurrence. The submission made for the mother that the child’s residence with the father would prevent her from being “truly bi-lingual” was a bare assertion, since it had no evidentiary basis. Contrary to the submission made for the mother, there was no need for the child to live with her so they could “build a meaningful relationship”, because they already had one. The single expert said, without challenge, the child enjoyed equally meaningful relationships with both parents.

23. The trial judge concluded that the alternate weekends the child would spend with the mother in her household would not expose her to an unacceptably high risk of harm, provided the second respondent was restrained by injunction from alcohol consumption at those times, but that anything approaching equal time in the mother’s care would leave the child exposed to too much risk of harm (at [112]-[114], [120]).

24. Perhaps another judge confronted with the same evidence might have come to the opposite conclusion and ordered that the child live with the mother, but that is not the test for a successful appeal. As has been said before, the very nature of such decisions means that any two decision-makers may, with complete integrity and upon the same material, come to differing conclusions. For that reason, it is highly undesirable that a child’s residence and familial relationships should be needlessly disturbed by successive court orders. Such changes may add intolerably to the tensions which the child, fought over by members of the family, already feels (CDJ v VAJ (1998) 197 CLR 172 at 218-219, 230-232).

25. There is a strong presumption in favour of the correctness of the trial judge’s decision and it should be affirmed unless it is clearly wrong (Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 at 627). No aspect of the grounds of appeal or submissions advanced by the mother satisfied us that the trial judge’s decision was clearly wrong, at least in so far as it related to the assessment of the risk of harm posed to the child and with whom that assessment dictated she should primarily live.

The single expert evidence

1. The mother contended the trial judge gave insufficient weight to the recommendations of the single expert and failed to give proper reasons for departing from the recommendations (Ground 11).

2. As already acknowledged, the single expert recommended in her report that the child should live with the mother, though the recommendation was not firm and unconditional. She remained troubled by the risk of harm posed to the child by the second respondent’s propensity for violence, particularly if intoxicated. The evidence contained within her report was supplemented by her oral evidence in cross-examination. She said (at Transcript, 3 May 2018, p 258 ln 35-40) she had difficulty assessing the level of risk and conceded she could not “definitively predict the risk”, which is hardly surprising because it was a question of fact and it was not part of her remit to make findings of fact. That was his Honour’s task. She repeated her refrain that it was “unfortunate that [the child welfare authority is not] involved in the matter” (at Transcript, 3 May 2018, p 262 ln 27-32).

3. The mother’s submission implicitly elevated the single expert’s recommendation to the status of an edict, which it clearly was not. Judicial power rests in the hands of judges, not forensic experts. The single expert’s evidence did not dictate the result. The trial judge was not bound to accept or reject the whole or any part of the evidence given by the single expert (U v U (2002) 211 CLR 238 (“U v U”) at 261). The single expert’s recommendation was merely an opinion and, since it was an opinion about a factual determination rather than an issue within the province of her expertise, it was not even opinion evidence in the traditionally technical sense. The tentative nature of the recommendation also undermined its authority.

4. The trial judge’s reasons for making orders which did not coincide with the single expert’s recommendation were quite sufficient. They have already been discussed and need not be repeated. Significantly, however, the trial judge was not required to give “proper reasons for [his] departure” from the single expert’s recommendation, as this ground of appeal wrongly contended. Rather, his Honour was only required to give proper reasons for the decrees he pronounced. The distinction is important.

School holiday visits

1. One of the appealed orders provided for the child to spend time with the mother, commencing in 2019, for one week during school holiday periods, including the longer Summer school holidays (Order 4). That time would effectively amount to one-half of the mid-year holidays, but less than one-half of the longer Summer holidays. The school holiday arrangements for 2018 were slightly less generous.

2. The mother contended the trial judge’s reasons for that order were insufficient and the order was inconsistent with the reasons given (Ground 12), but neither complaint has merit.

3. As to the question of consistency between the order and the reasons, the trial judge did conclude the child would not be exposed to too much risk by visiting the mother on alternate weekends, but that finding did not exclude the child’s ability to safely spend some additional restricted time with the mother and her half-siblings in school holidays. The explanation was proffered to explain why the child could not permanently spend larger tranches of each and every fortnight in the mother’s household.

4. The trial judge’s observations about the desirability of the child spending “significant time with her sisters” (at [115]) and becoming proficient in Auslan communication with the mother (at [116]) were not inconsistent with the orders, which enable the child’s interaction with the mother for periods which surely fit the statutory description of “substantial and significant time” (s 65DAA(3) of the Act).

1. As to the sufficiency of reasons, the mother contended the trial judge “did not provide any clear reasoning as to why regular and significant holiday time” with the mother and her half-siblings was not in the child’s best interests, but the submission was misconceived.

2. The mother’s counsel was impelled to concede the orders did actually provide for “regular” school holiday visits, so the complaint was confined to the “significance” (or duration) of the visits.

3. The mother’s counsel conceded that, save for the 2018 school holiday visits (which had expired before the appeal was heard) and the visits in the longer Summer holidays, the child would spend one-half of the holidays in the mother’s care, in which event the complaint was confined to only the Summer holidays.

4. The Summer school holidays amount, at most, to six weeks and so one-half of them can only amount, at most, to three weeks. The orders provide for the child to spend one week with the mother in each Summer school holiday. She wanted the child for one-half of the Summer school holidays as well, so the debate devolved to the difference of two weeks each year in the Summer school holidays.

5. In respect of that discrete and narrow issue, no order was proposed, no evidence was adduced, and no submission was made. It was entirely ignored.

6. The mother did not propose any orders regulating the time the child should spend with her if the trial judge ordered the child to live with the father. Nor did her counsel cross-examine the father or single expert about it. She did not engage with the issue.

7. The father applied for the child to live with him, which order was eventually made, but, in respect of the orders regulating the child’s interaction with the mother, he simply sought orders “as determined by the Court in the best interests of the child”, which is precisely what the trial judge did on the material available. As with the mother, he made no submission on the issue.

8. The issue about what time the child should spend with the mother, in the event of her residence being with the father, was obviously in play and so the parties were not deprived of procedural fairness. They just chose to ignore it. But the trial judge could not afford to. His Honour was required to fashion orders which promoted the child’s best interests, even if not reflective of the proposals advanced by the parties and the Independent Children’s Lawyer (U v U at 263, 284-285). The trial judge explained the need to confine the duration of the child’s visits with the mother because of the moderate risk of harm posed to her by the second respondent. As was logical, that would not preclude occasional visits in school holiday periods, provided they were contained to no longer than a week at a time.

Parental communication

1. The trial judge ordered that the father should, as the residential parent, have sole parental responsibility for the child (Order 1), though he was ordered to keep the mother promptly informed in writing about his decisions concerning issues of significance in the child’s life (Order 2).

2. The mother contended, at least initially, that the order was “not reasonabl[y] open” and the trial judge erred in assessing the evidence about the parties’ “communication difficulties” (Ground 14).

3. To contextualise this discussion, it is important to note neither parent proposed that they share parental responsibility for the child. They each proposed orders for the child to live with them and that they have exclusive parental responsibility for her.

4. In final submissions, the mother’s counsel contended the presumption of equal shared parental responsibility was rebutted, essentially because of the parent’s poor communication.

5. Correctly, the trial judge found (at [94]) the presumption of equal shared parental responsibility was rendered inapplicable because of the second respondent’s proven perpetration of family violence upon the mother (s 61DA(2)(b) of the Act). That finding about displacement of the presumption did not preclude an order for equal shared parental responsibility being made, but the trial judge found the parents’ “lack of communication and cooperation” pointed away from such an order (at [118]). Sole parental responsibility was vested in the father because he was ultimately selected as the residential parent (at [121]).

6. Thus, the order about the allocation of parental responsibility was entirely consistent with the evidence of the parents’ discord and the mother’s express acceptance that an order for sole parental responsibility was the only order rationally available. That concession was ultimately made and so the ground must fail.

Conclusion and orders

1. The appeal lacks merit and is dismissed with no order as to costs.

2. The respondent was not legally represented and had no costs to recoup, so no costs order is made in his favour.

3. The Independent Children’s Lawyer supported the failed appeal and did not usefully add to the oral debate, so no costs order is made in his favour.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Alstergren DCJ, Austin & McClelland JJ) delivered on 7 December 2018.

Associate:

Date: 7 December 2018.