Pinson & Pinson (No 2)

[2020] FamCAFC 111

FAMILY COURT OF AUSTRALIA

PINSON & PINSON (NO. 2) [2020] FamCAFC 111

FAMILY LAW – APPEAL – CHILDREN – Appeal against interim parenting orders which resulted in a change of residence – Where the primary judge had competing untested medical evidence about the mother’s mental health – Where untested assertions made by the single expert about the mother’s mental health could not be ignored – Where the adjournment granted by the primary judge was not procedurally unfair – Where although the primary judge did not warn the mother about the privilege attached to statements made by a family law dispute resolution practitioner, the primary judge did not rely upon that evidence – Where any prima facie denial of procedural fairness to the mother in using observations made of her during the hearing are not determinative as they only fortified the observations of the single expert and a new trial if ordered would lead to the same result – Where the primary judge did not impermissibly use his prior experience when weighing the single experts report – Where the primary did not fail to consider the mandatory statutory considerations – Where the primary judge gave appropriate weight to the untested competing medical opinions – Where the primary judge impermissibly delegated judicial power when making an order about what time the child spend with the mother – Where an order for supervised time at a contact centre was made without establishing whether it was reasonably practicable – Where an order was made as to the costs of the supervised contact centre which was different from the application before the primary judge and was made without adequate reasons – Appeal allowed in part – Matter remitted – Costs certificates granted.

Evidence Act 1995 (Cth) s 131
Family Law Act 1975 (Cth) ss 10J, 11F, 60CC, 65DAA, 94AA
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

Family Law Regulations 1984 (Cth) reg 15A

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Cimorelli & Wenlack [2020] FamCAFC 58
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lane & Nichols (2016) FLC 93-750; [2016] FamCAFC 234
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348
Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100
SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42

APPELLANT: Ms Pinson

RESPONDENT: Mr Pinson

INDEPENDENT CHILDREN’S LAWYER: Mr Dooley

FILE NUMBER: BRC 3734 of 2019

APPEAL NUMBER: NOA 116 of 2019

DATE DELIVERED: 12 May 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Brisbane

JUDGMENT OF: Ainslie-Wallace, Watts (by videolink) & Austin JJ

HEARING DATE: 19 March 2020

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 19 November 2019

LOWER COURT MNC: [2019] FCCA 3531

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Alexander

SOLICITOR FOR THE APPELLANT: Simpson Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Bertone

SOLICITOR FOR THE RESPONDENT: Michelle Porcheron Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Christie

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Dooley Solicitors

Orders

1. The Application in an Appeal filed by the Independent Children’s Lawyer on 27 February 2020 be dismissed.

2. The Appeal is allowed in part.

3. Orders 2, 3, 4 and 5 made on 19 November 2019 be set aside.

4. The matter is remitted for rehearing before a judge other than the primary judge in respect of the issue of what time the child will spend on an interim basis with the mother; in what circumstances and upon what conditions (if any).

5. The Court grants to appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.

6. The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.

7. The Court grants the ICL a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the ICL in respect of the costs incurred by the ICL in relation to the appeal.

8. The Court grants to each of the parties and the ICL a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties and the ICL in respect of the costs incurred by them in relation to the new trial ordered.

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 Pinson & Pinson (No. 2) 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 BRISBANE

Appeal Number: NOA 116 of 2019
File Number: BRC 3734 of 2019

Ms Pinson

Appellant

And

Mr Pinson

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

1. By way of Notice of Appeal filed 21 January 2020 the appellant, Ms Pinson (“the mother”) appeals interim parenting orders made by the primary judge on 19 November 2019 removing the child X born in 2011 (“the child”) (then aged 7) from the mother’s primary care to live with Mr Pinson (“the father”) with the child to spend time with the mother supervised at a contact centre. The father and the Independent Children’s Lawyer (“the ICL”) seek the mother’s appeal be dismissed.

BACKGROUND AND PROCEDURAL HISTORY

1. The parties agreed they began a de facto relationship in June 1999; married in 2007 and finally separated in October 2018.

2. The parties are both 44 years of age. The father works for a Government department. The mother had not worked in her substantive position as an educator since March 2018 but was employed part-time in community care at the date of the hearing.

3. In May 2016, the father called the police to the family home after an incident of family violence during which the father asserted the mother had picked up a steak knife from the kitchen and waved it above her head. The police applied for a Protection Order against the mother in favour of the father and the child. That application was ultimately withdrawn by the police when the father requested them to do so.

4. In early 2017, after the intervention of mental health authorities, the mother was admitted as an involuntary patient to the B Hospital Psychiatric Centre.

5. When the parties initially separated in February 2018, they implemented an equal care arrangement for a number of months. The child then did not have any significant time with her father for some months until the parties reconciled in August 2018. When the parties finally separated in October 2018 the father again asserts that the child spent little time with him until July 2019 when an interim order was made for the child to live with the mother and spend time with the father alternate weekends from Friday afternoon until before school Monday. The father complained that the mother had not complied with that order from time to time.

6. On 8 June 2018, during the first period of separation, the parties attended a mediation with a family law dispute resolution practitioner. After the conclusion of that mediation, the mediator communicated with the father on 8 June; the father’s lawyers on 11 June 2018 and again with the father directly on 13 June 2018. The family law dispute resolution practitioner expressed concerns about the mother’s mental health and the high likelihood of emotional risk to the child.

7. On 1 April 2019 the father filed an Application for Final Parenting Orders seeking the child live with the mother and spend time with him six nights a fortnight. The father also filed a Notice of Risk alleging the mother’s “chronic mental ill health” was presenting a risk of serious psychological harm to the child.

8. On 31 May 2019 the matter came before the primary judge who requested the appointment of an ICL and ordered a child-inclusive conference. At [2] and [3] of his Honour’s reasons for judgment, the primary judge records his observations of the mother and statements made by her in court on that day which “struck” his Honour as an “outpouring… of grief…”.

9. On 7 June 2019 the parties attended a child-inclusive conference with a Family Consultant, Mr G, and he prepared a report pursuant to s 11F of the Family Law Act1975 (Cth) (“the Act”) in which he identified the mother’s mental health to be “a potential risk factor” (at [6]).

10. On 14 June 2019 the mother filed a Response to the father’s Application for Final Orders, seeking orders including that the child’s time with the father be limited to day time twice a week. On 27 June 2019 the mother filed an Application in a Case seeking an order for child-inclusive dispute resolution to take place over the following three to six months, with the child to spend limited time with the father in the meantime.

11. On 12 July 2019 the primary judge, amongst other things, ordered that the child spend alternate weekends with the father and that the parties should each attend upon an independent psychiatrist as nominated by the ICL for the purposes of psychiatric assessment in order to assess the state of each of the parties’ mental health and whether the child is at any risk in either parties’ care. The primary judge also ordered a full family report and adjourned the matter to 6 December 2019.

12. The ICL arranged for the parties to see a forensic psychiatrist, Dr D, whom the primary judge described as “very experienced in matters before these [c]ourts” (at [11]).

13. On 2 September 2019, the mother was interviewed by Dr D and immediately after the interview he rang the ICL to express concerns about the state of the mother’s mental health and the consequent risk of harm she posed to the child. On 4 September 2019 Dr D interviewed the father.

14. On 1 October 2019, Dr D prepared a medico-legal report and provided it to the ICL, although there is no indication as to when the ICL received it. The ICL filed the report on 30 October 2019 but the report was not released to either party until 15 November 2019. Dr D strongly advised that the release of the report to the mother should be managed carefully.

15. The ICL issued some subpoenas to which the mother objected and her objections were listed for hearing before the primary judge on 15 November 2019.

16. On 11 November 2019 the father filed an Amended Application for final and interim orders seeking, amongst other things, that he have sole parental responsibility, the child live with him and that the child spend time with the mother for two hours each Saturday at a specified supervised contact centre. On 13 November 2019 the father filed an Application in a Case seeking all previous orders be discharged, that the child live with the father and that the child spend supervised time with the mother at a supervised contact centre. This application was supported by an affidavit which was sworn at a time when the father was seemingly unaware of what was in Dr D’s report. The father’s affidavit at paragraph 15 sets out specific concerns he has about the mother’s mental health. These documents were served upon the mother on 14 November 2019.

17. At 9.00 am on 15 November 2019, the mother received a copy of Dr D’s report. The matter came before the primary judge at 1.13 pm on 15 November 2019. The ICL supported the father’s urgent interim application and sought additional orders including for the mother to have therapy and the parties to attend a parenting course. The primary judge adjourned the proceedings to 19 November 2019 for two reasons. The first was the notice the mother had received of both the father’s Application in a Case and Dr D’s report. Secondly, the primary judge wanted to ensure his Honour had time to consider all the material the parties wanted him to read. His Honour was being asked by the father and the ICL to take a “fairly radical step” in these proceedings, and did not want to deal with the matter on that Friday given other matters in his Honour’s list that day which were concerning him.

18. The primary judge gave the mother until 4.00 pm on Monday, 18 November 2019 to file any further material upon which she sought to rely.

19. On 18 November 2019 the mother filed an affidavit in reply to the father’s affidavit which, amongst other things, at pages 9 and 10 responds to both the father’s concerns and generally to Dr D’s report.

20. In her submissions filed on the same date, the mother sought orders, amongst others, on an interim basis for sole parental responsibility; for the child to live with her; for the child to have supervised time with the father for two hours every Sunday at a specified supervised contact centre and that the proceedings be set down for trial.

21. At the hearing on 15 November 2019 and 19 November 2019, the primary judge allowed Ms C, the mother’s McKenzie friend (“Ms C”) to directly participate in the proceedings so that from time to time each of the mother and Ms C addressed the primary judge.

COMPETING MEDICAL EVIDENCE

Dr D

1. As indicated, Dr D saw the parties as a result of the ICL nominating him in accordance with the primary judge’s order made 12 July 2019. Accordingly he was a court appointed forensic psychiatrist tasked with providing a psychiatric assessment of the mental health of each of the parties and whether the child was at any risk in either party’s care. The primary judge gives detailed consideration to the contents of Dr D’s report in the reasons for judgment.

2. In describing the mother’s thought patterns, Dr D said at page 11 of Appendix 1 of his report:

   …The form and stream of [the mother’s] thoughts was marked by an extreme degree of loosening of the associations of her thoughts, making it very difficult to understand her … [s]he appeared to have developed little understanding of the nature of her mental health difficulties and of the factors that had contributed to their causation…

3. Dr D concluded from his interview with the mother that she suffers from Schizophrenia, which condition he concluded at page 6 of his report, has “…slowly and insidiously developed over the last five to ten years”. Dr D found the mother’s attitude to her “serious behavioural abnormalities” to be “dismissive”, which was characteristic because “this psychotic illness is marked by a lack of insight”.

4. Dr D opined at page 7 of his report, “…it is likely that this abnormal state of thinking has been present for the last three to four years at presentations to various professionals and does not appear to have been identified accurately”.

5. Poignantly, Dr D said at page 8 of his report:

   I have a serious concern in the presence of this untreated mental illness that [the mother] may have extreme difficulty accepting and coming to terms with the opinions expressed in this report and may react with severe emotional distress, which could include aggression.

   I therefore strongly advise that the management of her reaction to receiving the information contained in this report be supportive and carefully considered.

   This report outlines a form of psychopathology of thought formation that clearly creates a severe impairment for [the mother] to communicate in a direct, concise, efficient or accurate way.

   I am also very concerned about the impact of this psychopathology of thought formation on [t]he [c]hild, for similar reasons.

   The presence of an untreated mental illness for [the mother] increases the risk from a psychiatric viewpoint that there is a risk of physical or emotional harm to the child if left in her unsupervised care.

   It was for this reason that I telephoned The Office of the ICL on 02 September 2019 to inform the ICL of this concern, so that the ICL may take steps to ensure the safety and wellbeing of [t]he [c]hild.

6. Dr D concluded that the mother “…needs assessment and treatment of Schizophrenia” and specifically needs a “long-term mental health monitoring program” which incorporates “appropriate psychotropic medication and psychotherapy”. Even then, Dr D was “very guarded” about her prognosis.

Dr E

1. The primary judge had reports and notes from the mother’s treating psychiatrist, Dr E, which his Honour discusses at [31] to [37] of the reasons for judgment.

2. In her written submissions filed 18 November 2019, the mother asserts she saw Dr E on 18 occasions in two and a half years between 2017 and April 2019 and it was not possible that he would have missed a diagnosis of Schizophrenia if she had that disorder. The documents produced by Dr E in response to a subpoena by the ICL for all personal histories, clinical notes, reports and correspondence pertaining to the mother, provided a history of the 18 consultations. The mother engaged Dr E as her consultant psychiatrist in June 2017, but only saw him twice and ceased attending upon him after her second consultation in August 2017. She did not consult him again until May 2018. The mother did not see Dr E between August 2017 and May 2018 and between September 2018 and January 2019. Dr E last saw the mother in April 2019. By the time of Dr E’s last report to the mother’s general practitioner in April 2019, he had still not diagnosed her condition, nor offered any prognosis for her recovery.

3. Dr E did not think the mother was stable enough to manage a show cause process in relation to her workplace in May 2018. The mother submits that that statement does not indicate the mother was not able to properly care for the child or was a risk to the child at that time.

Dr F

1. His Honour read and considered the medico-legal report of Dr F, a psychiatrist, dated 30 January 2019 prepared for a state government department as to the mother’s fitness to return to work. Dr F had prepared previous reports about the mother’s mental health in December 2017, August 2018 and September 2018 which were not before the primary judge. At the time of her consultation with Dr F in January 2019, the mother had commenced the use of an anti-depressant medication to help manage her anxiety. He confirmed she had, at various stages in the past, been diagnosed with an adjustment disorder with anxiety. Dr F believed that diagnosis was the basis of her receipt of income protection claim payments through her superannuation fund. Dr F did not consider the mother suffered from an active adjustment disorder at the time of the consultation, but recognised her symptoms fluctuated according to the nature of the stressors to which she was exposed. Dr F opined that if the mother was re-exposed to significant stressors, she was likely to experience anxiety symptoms with an adverse impact on her capacity to communicate, perceive reason or problem solve. Dr F could not predict the future of her condition, but recommended she continue with the anti-depressant medication for at least the next 12 months.

1. The mother submitted to the primary judge that Dr F would not have missed a diagnosis of Schizophrenia or any pervasive mental health condition. Dr F did not express an opinion about whether the mother presented an unacceptable risk of harm to the child nor whether she was unable to properly care for the child. Dr F recorded that the mother was seeking appropriate medical assistance when required, using exercise and her involvement in surf lifesaving as methods to manage her symptoms and was compliant with taking prescription medication aimed at dealing with her anxiety problems.

RELEVANT PRINCIPLES

1. This is an appeal from a discretionary decision and the well-known principles in House v The King (1936) 55 CLR 499 at 504–505 are apposite.

2. Further, the mother appeals from parenting orders made on an interim basis, and the limitations and constraints on the ability to make determinations on contested facts are well-known. That is not to say however that if disputed facts raise serious concerns, those concerns should be ignored.

3. In Salah & Salah (2016) FLC 93-713 (“Salah”) at [36]–[39], the Full Court said:

   36.It is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial. His Honour recognised this and indeed at [14] referred to “the usual pathway as highlighted in Goode & Goode (2006) FLC 93-286”. A paragraph relevant to this appeal in the Goode decision is as follows (at 80,901):

   68.… the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   37.In Eaby & Speelman (2015) FLC 93-654 the Full Court (Thackray, Ryan & Forrest JJ) observed about Goode in disputed facts in interim hearings:

   18.…that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.

   38.The Full Court in Eaby & Speelman went on to say (citing Marvel v Marvel (2010) 43 Fam LR 348) that findings (in disputed interim proceedings) should be couched with great circumspection.

   39.In SS v AH [2010] FamCAFC 13, the majority of the Full Court (Boland and Thackray JJ) said:

   100.… Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

4. The Full Court in Cimorelli & Wenlack [2020] FamCAFC 58 (“Cimorelli”) said:

   80.In interim hearings, where the evidence remains untested, disputed facts cannot be the subject of definitive findings, but simply because material facts have been put in issue does not mean the contested evidence must or should be ignored, since such evidence may have a significant bearing upon the determination of orders which promote the children’s best interests ([Salah] at [35]-[45]; Eaby & Speelman (2015) FLC 93-654 at [18]-[19]). Despite the limitations which constrain findings at interim hearings, aside from those “couched with great circumspection”, certain provisions within Part VII of the Act direct judges to consider risks which are pertinent to the welfare of children and their carers (for example: ss 60B(1)(b), 60CC(2)(b), 60CC(3)(j), 60CC(3)(k) and 60CG). It would constitute an error of law to ignore the statutory mandate and, correctly, the primary judge did not ignore it.

   81.Naturally, the concept of risk encompasses the possibility of harm, not just the probability of harm (M v M (1988) 166 CLR 69). The primary judge was conscious of the need to evaluate the available evidence to determine whether or not it capably vindicated the submissions made by both the father and the ICL that the mother poses a tangible risk of psychological harm to the children. Her Honour’s finding that the evidence did do so was appropriately circumspect and does not foreclose the issue being revisited at final trial, when the evidence will be properly tested. Her Honour was obliged to resolve the issue at an interlocutory stage, albeit provisionally rather than definitively, because it underpinned the parties’ contest over the children’s residence.

   (Emphasis in original)

GROUNDS OF APPEAL

1. The mother’s Notice of Appeal filed 21 January 2020 initially appealed against Orders 1, 2, 3, 4, 5, 10, 11, 12, 13, 14 and 15 of the primary judge’s orders made 19 November 2019. Order 1 provides for the child to live with the father. Orders 2 to 5 relate to the child having supervised time with the mother at a specified supervised contact centre. Orders 13, 14 and 15 had already been complied with and any appeal against those orders was otiose. The challenges to Orders 10, 11 and 12, being orders made against the mother prohibiting her from attempting to locate the child or the father, attend the child’s school or extra-curricular activities and prohibiting her from coming within 100 metres of the father’s residence, were abandoned.

2. There was no question that what remained were interlocutory orders in relation to a child welfare matter (s 94AA(1) of the Act and reg 15A of the Family Law Regulations 1984 (Cth)) and the leave to appeal, which had been sought, was not required.

Ground 5 –Procedural fairness

1. The Mother should have been afforded a proper opportunity to respond to the application to change residence in circumstances where:

(a)      The matter was initially before the Court to determine objections to the production/inspection of documents pursuant to subpoenas.

(b)      The critical report of Dr D relied upon by the Independent Children's Lawyer and then by the Father was not made available until the morning of the application.

(c)      The adjournment of the matter from 15 November 2019 until 19 November 2019 did not give the Mother with that ‘proper opportunity’.

(d)      The Father's application was ‘brought on’ pursuant to an Application in a Case filed 13 November 2019 that had not been served and, on its face, sought that service be dispensed with. In the premises there was no intention on the part of either the Father or the Independent Children's Lawyer to provide the Mother with any notice of the application they intended to make for the child to be removed from the Mother and live with the Father.

1. Ground 5 complains that the mother was denied procedural fairness. We shall deal with this ground first (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [117]). Procedural fairness is an “indispensable requirement of justice” and “is inherent in the proper conduct of judicial proceedings” (Allesch v Maunz (2000) 203 CLR 172 at [35]–[36]).

2. As already explained, the original listing for 15 November 2019 was for the purpose of dealing with the mother’s objections to subpoenas that had been issued and on that day the primary judge fixed the hearing of the father’s interim application for 19 November 2019.

3. Counsel for the mother emphasised [56] of the primary judge’s reasons for judgment:

   For a [c]ourt, especially on an interim basis, to consider a change of residence for the child is an extremely serious step. The [c]ourt should not lightly do it and should only consider this in the most extreme or extraordinary of circumstances.

4. In those circumstances, counsel for the mother submitted that the adjournment of four days did not afford the mother with sufficient time to prepare to meet the case against her, to understand what was to occur or to explore the possibility of obtaining legal representation.

5. In her written submissions of 18 November 2019, the mother asserted that she would be denied procedural fairness if an interim order was made removing the child from her without a full hearing of all the evidence including the evidence given by the three psychiatrists. The primary judge was entitled not to accept this submission.

6. The following exchange took place between the primary judge and Ms C:

   [MS C]: Your Honour, I would like to make a point. We’ve only had since Friday and today is Tuesday, and [the mother is] not represented by a lawyer yet. And procedural fairness would require her to have more time than this…

   HIS HONOUR: Look, if you want more time, I can give you more time, but I’m making an interim order today. We can revisit it.

   [MS C]: Okay. Here we go.

   (Transcript 19 November 2019, p.17 lines 37–45)

7. Counsel for the mother submitted that the primary judge had failed to apply the guidelines provided by the Full Court in Re F: Litigants in Person Guidelines (2001) FLC 93-072 (“Re F Guidelines”) at [178]. Whilst counsel for the mother was not specific about which of the guidelines had not been followed, it seemed that he had in mind the guidelines in respect of procedural fairness, explaining procedures (specifically mentioned the failure of his Honour to explain the role and boundaries of the McKenzie friend in the primary proceedings), the right to object to inadmissible evidence and informing the mother in respect of the privilege attached to evidence about what the family dispute resolution practitioner had said in emails she had written to the father’s lawyer and to the father. We deal with the specific complaint about the primary judge’s alleged failure to disregard inadmissible evidence when discussing Ground 4(a) below.

8. Counsel for the mother points to an incorrect statement made by the primary judge relating to procedural fairness:

   [MS C]: … [the mother] needs procedural fairness to take place in order for her daughter to be taken from her custody as per In the Marriage of Cilento.

   HIS HONOUR: Yes, except the thing is that what you’ve got to understand here is that that’s all well and good if what I’m looking at is what’s in [the mother’s] best interests, or what’s in the father’s best interests. And I don’t care what’s in her best interests, and I don’t care what’s in the father’s best interests. It’s only that [of the child] - - -

   [MS C]: That’s right.

   HIS HONOUR: - - - that I’m talking about. And the procedural fairness really has to be towards [the child]…

   [MS C]: That’s right. It does.

   (Transcript 19 November 2019, p.11 line 37 to p.12 line 4)

9. That statement, made off the cuff by the primary judge, is incorrect. Procedural fairness has to be afforded to both parties and the ICL, in the context of a hearing about what is in the best interests of the child. However, the question is whether the mother was actually afforded procedural fairness in the circumstances of this case.

10. As indicated, the primary judge gave the mother until Monday afternoon on 18 November 2019 to file any material upon which she sought to rely. The mother filed an affidavit responding to the father’s concerns and in response to Dr D’s report together with an eight page written submission including setting out the orders that she sought.

11. On 19 November 2019 the mother indicated to the primary judge, through Ms C, that the primary judge had the material upon which the mother relied.

12. The primary judge was faced with evidence from Dr D that he had serious concerns about the mother’s untreated mental illness and her lack of insight into her condition which led to him opining that there was “a risk of physical and emotional harm to the child if left in [the mother’s] unsupervised care”.

13. The shortness of time in which the interim hearing was listed needs to be seen in that context. Whilst making the general submission that there was no need for this interim hearing to take place in the short time frame in which it did, counsel for the mother did not point to any specific further evidence upon which the mother could have relied had a longer time been provided.

14. Finally, counsel for the mother suggested that because on 15 November 2019 the primary judge had ordered that the child be brought to the Child Dispute Services area the following Tuesday, that the lawyers for the father and the ICL would have known that the primary judge intended to move the child and the mother was excluded from being informed of that intention. We do not accept that submission. The primary judge said he made that order in case it became necessary to have a family consultant interview the child in respect of any question that arose in the interim hearing. Even if his Honour also intended to  create the option of being able to immediately move the child to live with the father if his Honour so decided, no question of failing to afford the mother procedural fairness arises.

15. There is no merit in Ground 5.

16. Before leaving this Ground we believe it is important to point out that the mother, in her application, did not address the issue of the father’s application for supervised time. The father sought that that supervised time be minimal and at a contact centre. The mother did not, as an alternative to her primary interim application, propose more extensive time or any other form of supervised time for the child with herself in the event the order sought by the father and the ICL, to move the child, was made. Whilst the primary judge did not make a specific order granting the mother leave to make a further application as to the time and circumstances which the child spends with her, it is clear from his Honour’s statement “[w]e can revisit it” that the mother has the ability to make such a further interim application. Also, it should be expected in circumstances where, to use the primary judge’s words “a fairly radical step” is taken, based as it is in this case on the untested and possibly seriously contested medical opinion of the court expert, that a full hearing should be afforded to the parties as soon as is practicable. Whilst a full hearing is preferable, if it cannot be offered, then the Court must deal with the evidence then before it, mindful of the adjurations in the cases to which we have earlier referred (see Salah and Cimorelli).

Ground 4

1. The learned trial Judge erred in taking into account, in supporting the decision he made:

(a)      Comments referred to in the evidence and purporting to be made by a mediator about the Mother's psychiatric condition.

(b)      What purports to be the trial Judge's own opinion of the Mother's mental health or psychiatric condition gained in the past as a prosecutor.

1. This ground also raises different issues of procedural fairness.

Ground 4(a) - Comments of the Mediator

1. The mother asserts at paragraph 10 of her Summary of Argument filed 17 February 2020, “[the] father included inadmissible material in his affidavit at paragraphs 28 & 29 (later referred to in the hearing)” (As per the original). Counsel for the mother complains that the primary judge failed to afford the mother procedural fairness because his Honour did not inform the mother, in accordance with the Re F Guidelines, that there was a possible claim for privilege in respect of paragraphs 28 and 29 of the father’s affidavit filed 2 May 2019 and paragraph 9 of the father’s affidavit sworn on 11 November 2019. In the May affidavit, the father refers to the mediator’s concern arising from the mother’s behaviour and attitude towards the child. Paragraph 9 of the father’s affidavit sworn in November was as follows:

   I attempted to resolve our parenting matter by mediation in March 2019. The mediator has identified that they are concerned for [the mother’s] mental health as follows:

   (a)In email correspondence from the mediator from [H Mediation Service] on 13 June 2018, they are of the opinion that:

   “I doubt you’ll ever get a parenting plan in place that [the mother] will stick to or that from [the father’s] side of things can be considered ‘made freely’. I’ve attached a 60i certificate stating that mediation cannot continue on psychological grounds.”

   (b)In email correspondence from the mediator on 11 June 2018, the mediator stated that:

   “There are clearly mental health issues here with [the mother], and the child is highly likely to be at risk emotionally, until [the mother] gets some supports in place around this”.

   Annexed hereto and marked “[F1]” is a true and correct copy of this correspondence. [F1 is the full text of the emails]

   (As per the original) (Emphasis removed)

2. The mediator was a family law dispute resolution practitioner. Section 10J of the Act is in the following terms:

   10JAdmissibility of communications in family dispute resolution and in referrals from family dispute resolution

   (1)  Evidence of anything said, or any admission made, by or in the company of:

   (a)  a family dispute resolution practitioner conducting family           dispute resolution;

   …

   is not admissible:

   (c)  in any court (whether or not exercising federal jurisdiction) …

   …

   (3)Subsection (1) does not apply to information necessary for the practitioner to give a certificate under subsection 60I(8).

   ...

3. Section 10J of the Act applies to anything said by a family law dispute resolution practitioner conducting family dispute resolution. Here the practitioner who had conducted an event with the parties made statements to the father of her opinion arising from that event. Whilst s 10J of the Act allows the practitioner to provide information necessary for the practitioner to give a s 60I(8) Certificate, on its face, s 10J of the Act is otherwise engaged in this case.

4. Further s 131(1)(a) of the Evidence Act1995 (Cth) (the “Evidence Act”) is in the following terms:

   131Exclusion of evidence of settlement negotiations

   (1)       Evidence is not to be adduced of–

   (a)  a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute…

5. Again that section is attracted on the facts of this case.

6. Counsel for the father referred to the exception in s 131(2)(b) of the Evidence Act but there was no indication the mother had given express or implied consent to the disclosure of this evidence.

7. Whilst we accept the technical validity of this submission, it lacks pragmatism because the evidence was not given any probative weight. The evidence was only mentioned by the primary judge tangentially as part of the background to explain why the father came to harbour concerns about the mother and bring his urgent interim application. His Honour did not rely upon the comments made to the father by “the mediators” as evidence bearing upon either the mother’s parenting capacity or the risk of harm to the child. In that regard, the primary judge relied entirely upon the expert evidence. Therefore, even if the identified portion of the evidence was wrongly admitted because of the primary judge’s failure to inform the mother of its inadmissibility, the error of law was immaterial and will not sustain the appeal (Conway v The Queen (2002) 209 CLR 203 at [3], [6], [29], [36], [38], [80] and [114]; Lane & Nichols (2016) FLC 93-750 at [72]–[81]).

8. There is no merit in Ground 4(a).

Ground 4(b) - The primary judge’s use of his own observations and reference to past experience as a prosecutor

1. Counsel for the mother submits that the reliance by the primary judge on Dr D’s report is vitiated by the primary judge’s use of his own observations and his indication during the hearing that as a result of experience gained by him in the past as a prosecutor, his Honour was confident that Dr D could, within a two hour session, make the diagnosis of Schizophrenia.

1. At [2]–[5] and [57], of the reasons for judgment, the primary judge said the following:

   2.The matter came before me on 31 May 2019, and on that occasion the mother was representing herself, and Ms Porcheron, Solicitor was representing the father. At that time, I was struck with the outpouring, as I saw it, of grief at the ending of the relationship between the father and the mother.

   3.The mother was quite critical of the father and said, words to the effect, to me, that, “How can he be a good father when he has left me and the child”, and that the only way in which she can explain to the child that this is not appropriate behaviour by a man is for the child not to be seeing the father unless it is within the confines of the marital home with them being together again.

   4.Because of those sorts of statements, I ordered that [the child] be represented by an Independent Children’s Lawyer and I also ordered that there be a child-inclusive conference. That conference occurred on 7 June 2019, about a week after the parties had appeared before me.

   5.What was noted there was very similar to what I had witnessed. Family consultant, Mr [G], noted that the issues in dispute were the time that [the child] spends with both parents; that is, that the father proposed a shared-care arrangement where [the child] would live in a week about arrangement, whereas the mother proposed that the parents reconcile and attend conflict resolution; and that the mother could not consider a shared-care arrangement but indicated the father could spend time with [the child] in the family home.

   …

   57.… I also note that what I have seen from the mother, in the times in which she has spoken to me, do corroborate exactly what it is that Dr [D] says about her thought disorder. …

   (Emphasis added)

2. In respect of what the mother had said, the transcript confirms that at times the mother’s submissions were hard to follow and the manner in which she spoke bore similarities to the transcript of her interview with Dr D which he attaches to his report.

3. Whilst not fully developed in argument by counsel for the mother, this challenge seems to be that the primary judge made observations of the mother outside the witness box, relied upon those observations in a significant way but failed to give the mother an adequate opportunity to respond to the observations his Honour had made.

4. During the hearing there was a lengthy exchange between the primary judge and Ms C about Dr D’s ability to diagnose the mother with schizophrenia (Transcript 19 November 2019, p.6 line 34 to p.9 line 25). It is sufficient to set out the following short extracts:

   [MS C]: Yes, that’s right. So I just wanted to be just clear on the diagnosis of [Dr D] being clearly in contrast to the other two very seasoned and professional psychiatrists, and that it should not be overshadowed by the report of [Dr D] who only had two hours with the [mother]. And under the ICD-10-AM rules, you cannot diagnose a person with schizophrenia in that time.

   HIS HONOUR: Yes. No, that’s not correct.

   [MS C]: Okay. That’s my - - -

   HIS HONOUR: That isn’t correct.

   [MS C]: - - - submission

   HIS HONOUR: You see, I will just let you know this. Now, of course, I’ve had quite a deal of experience because I was the – before I became a judge, I was the prosecutor in charge of prosecutions in the mental health court, so I’ve had a lot of experience with psychiatrists, and a lot of experience with the manner in which diagnoses are made…

   (Transcript 19 November 2019 p.6 line 34 to p.7 line 5)

   [HIS HONOUR:] … But it’s incorrect to say that within two hours a psychiatrist cannot diagnose schizophrenia. That’s wrong.

   (Transcript 19 November 2019 p.8 lines 6–8)

   HIS HONOUR: … as I said to you, without wanting, in any way, to feel as though… I’ve got any sort of expertise myself. I mean, I’m fairly well experienced in - - -

   MR DOOLEY: Yes

   HIS HONOUR: - - - this area to understand what it is that’s needed to… have these sorts of diagnoses made.

   (Transcript 19 November 2019, p.9 lines 1–7)

5. At [45]–[46] and [57] of the reasons for judgment, the primary judge said the following:

   45.It was put to me that the ICD-10 does not allow for a psychiatrist to diagnose schizophrenia on the basis of a two-hour examination. I told [Ms C] that this was not so, in my experience. I requested to see where it was in the ICD-10 that such a statement had been made. [Ms C] told me that she did not have that available to her.

   46.The rationale and logic for the diagnosis that [Dr D] has made is in accordance, in my experience, with the way in which such psychiatric reports and diagnoses have occurred over the 25-odd years that I have been looking at forensic psychiatric reports.

   …

   57.In this case, the matters that are of particular note for me are the note in [Mr G’s] memorandum that the mother’s mental health was a potential risk factor and that:

   The mother reported that she felt anxious in relation to the court process but indicated her mental health is better than it has ever been.

   I also note that what I have seen from the mother, in the times in which she has spoken to me, do corroborate exactly what it is that [Dr D] says about her thought disorder. I am of the view, then, that I cannot ignore what [Dr D] says when he said that he is:

   …very concerned about the impact of this psychopathology of thought formation on the child, for similar reasons.

   And that:

   The presence of an untreated mental illness for the mother increases the risk, from a psychiatric viewpoint, that there is a risk of physical or emotional harm to the child if left in her unsupervised care.

   (Emphasis removed)

6. The High Court of Australia in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 (“Dasreef”), dealt with an appeal from a trial judge who had taken into account his own experience to reach a conclusion about the cause of a disease. The plurality said at [47]–[48]:

   47.…Under the rules of evidence the primary judge was permitted to take account of matters not proven in evidence in this case only if they were matters of which judicial notice could be taken. It was not suggested that the causes of silicosis were matters for judicial notice…

   48.…Further, the Court of Appeal was wrong to conclude that the primary judge was entitled to take account of his experience as a member of a “specialist” court in determining what caused Mr Hawchar’s silicosis…

   In Desreef, Heydon J at [138] agreed that the primary judge in that case erred in relying upon his experience as a “specialist tribunal”.

7. In this case the primary judge used his experience in two ways. First, to question the claim by Ms C that the ICD-10 does not allow for a psychiatrist to diagnosis Schizophrenia on the basis of a two hour examination and secondly, to analyse the rationale and logic for the diagnosis by Dr D in his report.

8. In relation to the first, the primary judge gave Ms C an opportunity to substantiate her claim as to what the ICD-10 said and invited her to provide a copy of the relevant part of the ICD-10. She could not do so.

9. In relation to the second, Dr D was appointed as the court expert and his evidence was predicated on extensive training, study and experience. His report also identified the material upon which his expert opinions were expressed. The professional experience of the primary judge, both as a judicial officer and as a lawyer before that, properly enabled his Honour to recognise the court expert’s report as one which was compiled consistently with the principles emerging from Dasreef. The primary judge did not come to any conclusion about the mother which ventured beyond the ambit of the expert report. His Honour’s specific reference to prior professional experience as a prosecutor, whilst perhaps best left unsaid, made no difference to the validity of that analysis.

10. There is no merit in Ground 4(b).

Grounds 1, 9 and 10

1. Grounds 1, 9 and 10 were in the following terms:

   1.The learned trial Judge erred in Ordering, as he did, that:

   (a) [The child] born [in] 2011 live with the Father.

   (b) That the said child spend time with the Mother, supervised by [a specified supervised contact centre].

   (c) That the Mother pay the reasonable fees for the supervision on each occasion of supervision.

   …

   9.The Orders made were against the weight of the evidence.

   10.The learned trial Judge erred in law.

   (As per the original)

2. In respect of these grounds, the mother in her Summary of Argument, said:

   34.It is not proposed to make any separate submission in relation to these grounds. Ground 1 is embraced in the submissions made in relation to the more specific ground.

   35.Grounds 9 & 10 do not need to be specifically covered as they are similarly embraced in a submission made in relation to specific grounds below.

   (As per the original)

3. There is no merit in general and bald assertions that the primary judge erred or made orders against the weight of evidence.

Ground 2

1. The learned trial Judge erred in making the order to change the residence of the child in circumstances:

(a)      Where the child had been living with the Mother:

(i)       initially in an arrangement by agreement initially in an equal arrangement; and

(ii)      later on Saturdays and Wednesdays; and later still

(iii)     pursuant to Orders for the child to live with the Mother and spend time with the Father alternate weekends from Friday afternoon until before school Monday.

(b)      no finding that the child was at an unacceptable risk of harm living primarily with the Mother was made;

(c)      no evidence was put before the Court that the child was at an unacceptable risk of harm living with the Mother.

1. Notwithstanding the mother’s written Summary of Argument, counsel for the mother in oral submissions attempted to rely upon the general assertions of error in Grounds 1 and 10 to develop an argument that the primary judge had failed to properly consider the mandatory statutory requirements.

2. Firstly, it was submitted that the primary judge had failed to consider parental responsibility. Neither party sought an order for equal shared parental responsibility and at no time did the primary judge propose or make such an order. The provisions of s 65DAA of the Act are not engaged in this case.

3. Secondly, counsel for the mother argued that the primary judge failed to consider all relevant ss 60CC(2) and (3) matters under the Act prior to making a determination of what orders should be made that were in the best interests of the child.

4. In oral submissions, counsel for the mother complained that the primary judge failed to take into account or demonstrate that his Honour had taken into account:

   ·The benefit of the child having a meaningful relationship with the mother;

   ·The relationship between the child and the mother;

   ·The effect of the proposed change on the child; and

   ·Whether a different form of supervised time might have been ordered which might have enabled the child to remain supervised in the mother’s home.

5. As set out above, the abridged process in an interim hearing is significantly curtailed. Whilst the court has regard to the non-contentious history of the case and the less contentious facts, it is not always feasible to ignore disputed assertions. Particularly in interim applications, the court is entitled to focus on s 60CC considerations which are relevant and which were relied upon by the parties at the hearing (SCVG & KLD (2014) FLC 93-582). The primary judge demonstrated he was acutely aware of the relationship between mother and child, the benefit to the child of the continuation of that relationship and the serious nature of the change proposed.

6. Whilst there is no specific reference to ss 60CC(2) and (3) considerations in the reasons for judgment, it is clear that, on an interim basis, ss 60CC(2)(b) and 60CC(2A) of the Act which provides that when applying the considerations set out in s 60CC(2), the court is to give greater weight to the consideration set out in s 60CC(2)(b), loomed large in his Honour’s consideration as to what order was in the best interests of the child.

7. Indeed, it was impossible for the primary judge to reach any concluded findings. However, it was open to the primary judge to rely upon the admissible expert evidence, even though still untested, to provisionally find the child to be at risk of harm if left in the mother’s residential care. The mother’s written submissions proceeded on the basis that there was some requirement on the primary judge to make a finding of unacceptable risk of harm to the child before his Honour made an order placing the child with the father. It was not necessary to make such a finding. We accept the ICL’s submission that it was appropriate in this case given that the evidence was untested, for his Honour not to make an explicit or final finding of unacceptable risk. Given the principles to be applied in interim hearings in relation to disputed facts, findings in respect of disputed facts are to be couched with great circumspection. In this case, the evidence in relation to the risk of physical and psychological harm to the child was serious and could not be disregarded. Of course, the provisional finding on risk may be revisited at the final hearing when the evidence is tested.

8. The primary judge treated Dr D’s opinions with the seriousness they deserved.

9. There was no error arising from the primary judge’s failure to follow a “legislative pathway”.

10. Counsel for the mother points to the primary judge’s reliance upon Dr D’s opinion:

    The presence of an untreated medical illness for [the mother] increases the risk from a psychiatric viewpoint that there is a risk of physical or emotional harm to the child if left in [the mother’s] unsupervised care.

    (Emphasis added)

    Counsel for the mother emphasised the word “increases the risk” submitting that no specific risk of physical or emotional harm to the child was ever identified and so that the words “increases the risk” have little meaning. We do not accept that submission.

11. Counsel for the mother points to the history of the father’s knowledge of the mother’s alleged mental problems and the orders that he sought in face of that knowledge. Whilst it is true that the father had knowledge of the mother’s mental health problems, as Dr D said, they increased over time and the father was sufficiently concerned by 11 November 2019 to amend his application. The father only received Dr D’s report on 15 November 2019.

12. There is no merit in Ground 2.

Ground 3

1. The learned trial Judge erred in relying on the report of Dr D to the extent he did and in making the order he did when:

(a)      Dr D's evidence was untested.

(b)      Other psychiatric/psychological evidence was before the Court that did not support either a diagnosis of Schizophrenia or that the Mother's parenting of the child was impaired to the extent that the child was at an unacceptable risk of harm in the then existing arrangement of time - in the primary care of the Mother.

1. This ground asserts that the primary judge did not give sufficient weight to the medical opinions of Dr E and Dr F, where in this interim hearing, none of the medical opinions had been tested. Those opinions have been set out above.

2. A challenge to the weight placed on evidence by the primary judge faces a high bar (Gronow v Gronow (1979) 144 CLR 513 at 519).

3. Counsel for the mother submits that Dr E’s opinion should be given greater weight than Dr D’s opinion because Dr E had the opportunity to observe the mother as her treating psychiatrist over a lengthy period, and Dr D has only seen the mother during one interview.

4. The primary judge assessed the weight to be given to the evidence of the three psychiatrists in the following way:

   41.It has been submitted to me that when one looks then at everything that [Dr E] and [Dr F] has said, it would serve to undercut what it is that [Dr D] has said.

   42.I do not agree with that submission. In fact, my observation is that what [Dr F] and [Dr E] have said actually dovetails quite nicely into what [Dr D] has observed. [Dr D] is a forensic psychiatrist, as was [Dr F]. The question for [Dr D] was what issues are there.

   43.[Dr D]’s diagnosis is logical and supported by what the mother has said to him in the interview he had. [Dr D] also appended, as appendix 1 to his report, the transcript of the interview that he did have with the mother. It does seem to me, as [Dr D] has said, that the presentation is one in which a psychotic illness has slowly and insidiously developed over the last five to 10 years, and that his report really is a culmination of what has been going on as reported by both ]Dr F] and [Dr E].

5. We accept that the finding by the primary judge that “…what [Dr F] and [Dr E] have said actually dovetails quite nicely into what [Dr D] has observed” sits uncomfortably with fact Dr D formed the opinion that “it is likely that this abnormal state of thinking has been present for the last three to four years at presentations to various professionals and does not appear to have been identified accurately”.

6. Dr D was the single expert appointed by the court and tasked with commenting upon the risk the mental health of either parent posed to the child if she was in their unsupervised care. The question posed to Dr D in the brief provided by the ICL was:

   We seek your opinion whether from a psychiatric viewpoint there is a risk of physical and emotional harm to the child from either parent if left in their unsupervised care.

7. Dr D was the psychiatrist who had assessed the mother most recently before the trial. Dr D saw the mother on 2 September 2019 and wrote his report on 1 October 2019. The most recent occasion Dr E had seen the mother was in April 2019 (six months earlier than Dr D). Dr F had last examined the mother in January 2019 for the purposes of assessing whether she could return to work as an educator.

8. Counsel for the mother submits that the primary judge should have placed weight on Dr F’s opinion that if the mother was re-exposed to significant stressors, she was likely to experience anxiety symptoms with an adverse impact on her capacity to communicate, perceive reason or problem solve and implied that this was an explanation for the mother’s presentation in her interview with Dr D. That was not a submission put to the primary judge and the mother is bound by the conduct of her case (Metwally v University of Wollongong (1985) 60 ALR 68 at 71).

9. At paragraph 36 of the father’s Summary of Argument filed 3 March 2020, he asserts that the primary judge “followed the recommendations of [Dr D] when making the Orders dated 19 November 2019”. Dr D did not in fact make any recommendations.

10. Nevertheless, the primary judge did place great weight, as his Honour was entitled to do, upon Dr D’s opinion of the risks to the child arising from his assessment of the mother’s mental health based on her presentation at the interview with him on 2 September 2019.

11. There is no merit in Ground 3.

Grounds 6 to 8

1. Counsel for the father ultimately agreed that he could not maintain opposition to Grounds 6 and 7. During oral submissions, the ICL also conceded Grounds 6 to 8.

Ground 6

1. The Orders for the Mother to spend time with the child supervised at [a specified child contact centre] was vague, unenforceable and should not have been made as it delegated complete autonomy to [a specified child contact centre] to determine both the extent of time the Mother could spend with the child as well as the frequency and length of time she would spend such time.

1. In the father’s Amended Application filed on 11 November 2019 he sought interim orders for the child to spend time with the mother at “[a specified child contact centre] in [Suburb J] for two (2) hours each Saturday subject to the availability of the contact centre”.

2. The Order which the primary judge made was in the following terms:

   3. If after the assessment intake procedure the parties are accepted by the Contact Centre as suitable for the Contact Centre to facilitate supervised contact the mother is to have contact with the child at times nominated by the Contact Centre and such contact is to occur at the Contact Centre.

1. The judicial power of the Commonwealth to make parenting orders is vested in the courts exercising jurisdiction under the Act. There are limitations on the extent to which that power can be delegated by judges to officers of those courts (see Harris v Caladine (1991) 172 CLR 84 at 94–95). We accept that the primary judge impermissibly delegated to an unspecified person, but presumably a manager of the child contact centre, the power to make a decision about the frequency and minimum length of time the child would spend with the mother.

2. There is merit in Ground 6.

Ground 7

1. The Orders made for the Mother to spend time with the child supervised at [a specified child contact centre] were made in the absence of evidence of:

(a)      The availability of the Centre to accommodate the contact.

(b)      The length of time the parties would have to wait until an ‘intake session’ was conducted.

(c)      The length of time the parties would have to wait from the time of and ‘successful completion’ of the intake session to actual time being spent.

(d)      The frequency with which the contact centre would be able to accommodate the Mother spending time with the child.

(e)      The costs of the contact centre in providing supervision and the facilities for contact.

1. Whilst not specifically explained in the reasons for judgment, it is clear enough why the primary judge found it was in the child’s best interests to have supervised time with the mother and the only proposal his Honour had was for supervised time at a specified supervised contact centre.

2. The primary judge was not provided with any information about the supervised contact centre proposed by the father and the ICL in respect of its availability, the length of time the parties would have to wait for an intake session and for the child’s contact with the mother to actually commence. The primary judge made the order in relation to the supervised contact centre without attempting to establish whether or not it was reasonably practicable.

3. There is merit in Ground 7.

Ground 8

1. The Order for the Mother to pay all the costs of the supervision of contact was made in the absence of any evidence of:

(a)      The costs of the contact,

(b)      The capacity of the Mother to pay for the costs of contact.

(c)      The capacity of the Father to pay for the costs of contact.

And was in error.

1. In the father’s Amended Application filed on 11 November 2019 he sought that “[t]he cost of the contact centre be shared equally between the parties”.

2. The primary judge made the following Order:

   4.Contact under order 3 is to be supervised by staff nominated by the manager of the Contact Centre and the mother pay the reasonable fees for the supervision on each occasion of supervision.

3. The primary judge’s order that the mother pay the whole of the fees for supervision was not a proposal which was before his Honour, not one of which he otherwise gave the parties and the ICL notice, was made absent any indication as to what the fees might be and was not one for which adequate reasons were given.

4. There is merit in Ground 8.

APPLICATION IN AN APPEAL

1. On 27 February 2020, the ICL filed an Application in an Appeal seeking leave to adduce further evidence. Counsel for the ICL indicated that the ICL no longer wished to pursue that application and it will be dismissed.

CONCLUSION

1. Given that the mother has been successful on Grounds 6, 7 and 8, the appeal will be allowed in part and the matter remitted for rehearing before a judge other than the primary judge in respect of the issue of what time the child will spend on an interim basis with the mother, in what circumstances and upon what conditions (if any). We also draw attention to the comments made by us at [55] of these reasons for judgment.

COSTS

1. The mother did not seek an order as to costs. Instead, both parties and the ICL sought cost certificates for the appeal and the rehearing. The ICL is not an employee of Legal Aid Queensland. As the appeal succeeds, in part, on a question of law it is appropriate for each party and the ICL to be granted cost certificates pursuant to the Federal Proceedings (Costs) Act1981 (Cth) for the appeal and the rehearing.

I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Watts & Austin JJ) delivered on 12 May 2020.

Associate:

Date: 12 May 2020