Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Pilot & Silver [2022] FedCFamC1A 191
Appeal from: Silver & Pilot (No 2) [2022] FedCFamC1F 538 Appeal number: NAA 172 of 2022 File number: MLC 10303 of 2018 Judgment of: AUSTIN, MCGUIRE & CAMPTON JJ Date of judgment: 21 November 2022 Catchwords: FAMILY LAW – APPEAL – Parenting – Unacceptable risk – Where the mother appeals from interim parenting orders providing for the children to live with the father and spend professionally supervised time with her – Where the appellant pleads 15 grounds of appeal, many of which overlapped and did not elucidate the appellant’s complaint – Where the primary judge correctly applied principle as to the identification and assessment of unacceptable risk – Where the Court Child Expert was cross-examined at the interim hearing – Reliance upon tested evidence of the Court Child Expert – Weight challenges – Findings open on the evidence – Where the reasons make it plain how and why orders were made – Decision of the primary judge not unreasonable or unjust – Where the appeal lacks merit – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 62G, 69ZW, 117 Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346
Hedlund & Hedlund (2021) 64 Fam LR 458; [2021] FedCFamC1A 84
Isles & Nelissen (2022) 65 Fam LR 288; [2022] FedCFamC1A 97
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42
Number of paragraphs: 64 Date of hearing: 3 November 2022 Place: Heard in Melbourne, delivered in Newcastle Counsel for the Appellant: Mr Levine Solicitor for the Appellant: Matrix Legal Counsel for the Respondent: Dr Smith Solicitor for the Respondent: Heinz Law Counsel for the Independent Children’s Lawyer: Mr Eidelson Solicitor for the Independent Children’s Lawyer: Sarah Lia ORDERS
NAA 172 of 2022
MLC 10303 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS PILOT
Appellant
AND: MR SILVER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
AUSTIN, MCGUIRE & CAMPTON JJ
DATE OF ORDER:
21 November 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.Within 28 days of the date of these orders, the appellant shall pay the respondent’s costs of the appeal fixed in the sum of $11,217 and the Independent Children’s Lawyer’s costs fixed in the sum of $3,729.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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- Pilot & Silver [2022] FedCFamC1A 191
- Case
- [2022] FedCFamC1A 191
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CaseChat Overview and Summary
The appeal in Pilot & Silver was heard by the Family Court of Australia. The dispute originated from a series of litigation proceedings between the parents concerning the care and custody of their two children. The father originally sought sole parental responsibility and that the children live with him, while the mother resisted these claims and sought sole responsibility herself. The primary judge issued various orders, including the children spending time with both parents under supervision and an investigation by Child Protection into the family.
The legal issues before the court involved the mother's grounds of appeal against the primary judge's findings and orders. These included alleged errors in accepting expert evidence, the evaluation of family violence allegations, and the application of the relevant statutory provisions regarding costs. The mother argued that the primary judge erred in accepting certain expert opinions and in not giving appropriate weight to her allegations of family violence. The father and the Independent Children's Lawyer argued that the mother's grounds were misconceived and that the primary judge's decisions were correct.
The court found that the mother's grounds of appeal were misconceived and without merit. It was determined that the primary judge correctly assessed the evidence, including the expert opinions, and properly evaluated the allegations of family violence. The court held that there was no error in the acceptance of the expert evidence and that the primary judge had appropriately weighed the contested evidence. Consequently, the mother's appeal was dismissed.
In accordance with the court's decision, an order was made that the mother pay the father's costs of the appeal in the sum of $11,217 and the Independent Children's Lawyer's costs of the appeal in the sum of $3,729. The mother's opposition to the costs order was overruled, and the application of section 117 of the Family Law Act 1975 was deemed appropriate in this case.
The legal issues before the court involved the mother's grounds of appeal against the primary judge's findings and orders. These included alleged errors in accepting expert evidence, the evaluation of family violence allegations, and the application of the relevant statutory provisions regarding costs. The mother argued that the primary judge erred in accepting certain expert opinions and in not giving appropriate weight to her allegations of family violence. The father and the Independent Children's Lawyer argued that the mother's grounds were misconceived and that the primary judge's decisions were correct.
The court found that the mother's grounds of appeal were misconceived and without merit. It was determined that the primary judge correctly assessed the evidence, including the expert opinions, and properly evaluated the allegations of family violence. The court held that there was no error in the acceptance of the expert evidence and that the primary judge had appropriately weighed the contested evidence. Consequently, the mother's appeal was dismissed.
In accordance with the court's decision, an order was made that the mother pay the father's costs of the appeal in the sum of $11,217 and the Independent Children's Lawyer's costs of the appeal in the sum of $3,729. The mother's opposition to the costs order was overruled, and the application of section 117 of the Family Law Act 1975 was deemed appropriate in this case.
Orders
Orders of the court
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Background
Background to the litigation
For the reasons that follow, the appeal is dismissed. The mother shall pay the father’s costs of the appeal fixed in the sum of $11,217 and the Independent Children’s Lawyer’s (“the ICL”) costs of the appeal fixed in the sum of $3,729. Background The litigation between the parents was commenced by the father in the Federal Circuit Court of Australia (as the Court was then known) on 5 September 2018 when the children were 18 months old. As recorded by the primary judge, during the course of those proceedings the mother made extensive and significant allegations that the father had occasioned serious family violence and abuse towards herself and the children. It was her case that the children were exposed to an unacceptable risk of harm in the father’s care. Notwithstanding those allegations, final consent orders were made on 19 October 2020 (“the final orders”) providing for the parents to have equal shared parental responsibility for the children, for the children to live with the mother and to spend substantial and significant time with the father, expanding to each alternate weekend from after school on Thursday to before school on Monday, during school holidays and on special days. Proceedings were recommenced by the father on 30 May 2022. He sought orders for sole parental responsibility of the children and that the children live with him. On an interim basis he sought that the mother’s time with the children be professionally supervised. The primary judge recorded that the father’s Initiating Application was made against a background of the mother retaining the children in early May 2022, the parenting arrangements regulated by the final orders thereafter breaking down, and the mother replicating a pattern of behaviour of making allegations to multiple agencies as to the father being physically and potentially sexually abusive towards the children (at [15]). The mother filed a Response resisting the father’s application. She sought orders that she have sole parental responsibility for the children and that, at least in the interim, the father’s time with the children be professionally supervised. By way of their applications, both parents sought significant variations to the final orders on an interim basis. On 30 May 2022, orders were made pursuant to s 69ZW of the Family Law Act 1975 (Cth) (“the Act”) requesting information from the Department of Families, Fairness and Housing (“the Department”). On 8 June 2022 the matter came before another judge of the Federal Circuit and Family Court of Australia (Division 1). A Child Protection co-located worker attended on that day and gave the Court information as to the involvement of the family with Child Protection (as recorded by the primary judge at [22]). The Court was informed that Child Protection were undertaking an investigation into the family and held current concerns as to the mother’s mental health and as to the mother putting the emotional and psychological wellbeing of the children at risk. The Court was further informed that while the Department did not have concerns for the children in the father’s care, they did have concerns about a developing pattern of the mother making seemingly “unsubstantiated or baseless allegations of harm to the children in the father’s care” (at [22]). The Court on that date made some 36 orders, including: (a)Listing the matter for an interim hearing;(b)Suspending the final orders as to the children’s living arrangements and making interim orders for the children to spend time with the mother from Monday after kindergarten to Wednesday before kindergarten, on condition that such time occurred at the maternal grandparent’s residence, and for the children to spend time with the father for the balance of the week;(c)Requiring the mother to file and serve material relied upon for the purpose of the hearing, including a current report from her psychologist and the children’s therapist and for the father to file and serve his material in response; (d)Pursuant to s 62G of the Act for a Court Child Expert to provide a Child Impact Report; and(e)Issuing a recovery order to lie in the Court Registry to be activated in the event of any non-compliance by the mother with the orders as to the children’s time to be spent with the father.
Evidence
Evidence Before The Court
The grounds are wholly misconceived. These grounds fail.Ground 9 – error of law by accepting expert opinion evidence of a contested fact This ground contends that:9.The Primary Judge erred in making the following findings of fact which were contested:a)the Father will be able to manage and support the children; and b)the children would not be shocked or traumatised by the change in residence. The genesis of these conclusions of the primary judge at [89] was the evidence given by the Court Child Expert in cross-examination. Hence, this ground in reality asserts error in the primary judge’s acceptance of the opinion of the Court Child Expert because it was given in an abridged interim hearing process. There was some misapprehension in the prosecution of the mother’s appeal that at an interim hearing the Court is prohibited from making any finding of fact on a controversial issue. Although the Full Court in Goode and Goode (2006) FLC 93-286 cautioned that the Court should be circumspect in making findings on contentious facts in this context, it has made clear that evidence must not be ignored simply because it is contested. At any stage of a proceeding, including at an interim hearing, the Court is both expected and required to give credible evidence appropriate weight. There was no probative submission made at the appeal hearing by the mother as to why the primary judge should not have accepted the Court Child Expert’s evidence as it emerged in cross-examination. Simply because the mother disputes the Court Child Expert’s opinion does not render it not credible or unreliable. In the course of interlocutory disputes, the Court is ordinarily asked to have regard to an array of conflicting and untested evidence. The evidence relied upon by the primary judge of the Court Child Expert was not that: it was tested and was credible. The mother’s bare assertion that evidence given under cross-examination at an interim hearing is somehow different to that given at a final hearing was made without substantiation and is rejected. Ground 9 is misconceived. It fails.Grounds 5, 7, 11, and 17 – errors of principle and issues as to weight relating to family violence These grounds were also grouped for the purpose of the mother’s oral submissions. They collectively assert an error of the primary judge’s treatment of issues as to the allegations and evidence of family violence. Ground 11 asserted that the primary judge erred at law by disregarding allegations of family violence because there was no corroboration. The mother’s Summary of Argument articulated the complaint in this way:19.The Primary Judge should have accepted the allegations of domestic violence in an interim hearing and it was an error of law to require corroboration. …(Mother’s Summary of Argument filed 12 October 2022) This is a specious characterisation of the primary judge’s reasons. The primary judge set out the particulars of the allegations made by the mother (at [15] and [26]). The reasons record a process of careful identification and evaluation of all of the evidence available so as to assess the weight that ought to be attributed to the allegations including:(a)at [75]–[78], reviewing the evidence of statements made by the children to Ms C, an ‘Early Parenting Consultant’; (b)at [65]–[81], engaging with the mother’s criticisms of the investigations undertaken by and the conclusions reached by SOCIT and Child Protection. This included investigations with and observations of the mother and the children, with and of the father and the children, and at the children’s kindergarten;(c)at [85], appraising the mother’s allegation that the children would return from the father’s home with “unexplained bruising” as “difficult to reconcile” with there being “no independent evidence that [anyone] has observed marks on the children”; and(d)at [86], observing that the father’s interactions with the children grounded from the Court Child experts opinion were unremarkable.
Decision
Reasons for decision
At the appeal hearing the mother conceded that if she was not successful in prosecuting her proceeding grounds of appeal, this ground would fail. We agree and reject the ground for lack of merit.Conclusion as to the appeal For all of the above reasons, the mother’s appeal fails. Her Amended Notice of Appeal filed on 12 October 2022 will be dismissed. Costs In the event the appeal failed, the father and the ICL each sought costs on a party/party basis. The father quantified those costs at $11,217 and the ICL at $3,729. No issue was taken by the mother as to quantification of costs as sought although she opposed her liability for a costs order. The father submitted a costs order ought to be made primarily because the appeal prosecuted was wholly unsuccessful. The ICL did not make submissions but implicitly sought costs on the same basis. We understood the mother’s implicit position to be that the provision of s 117(1) ought not be disturbed. While conceding the evidence on this matter was scant, the mother identified her financial circumstances were somewhat impecunious, such submission grounded from limited evidence before the primary judge that the mother was a student. From this foundation it was submitted that an exercise of a costs discretion ought not to find favour. The mother’s Schedule of Costs records that she was anticipated to incur legal costs of $27,670 in prosecuting her appeal (including her application to stay the orders of the primary judge). Some of those fees have been paid with the mother remaining indebted for the balance. Counsel on her behalf accepted that there was an expectation that any unpaid balance would be paid. Neither of the parents are legally aided. We are satisfied the application of s 117 of the Act warrants a costs order in favour of the ICL and the father. An order will be made that the mother pay those costs fixed in the sums sought.
Ratio Decidendi
Legal Principle Established
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