RABASSA & ZACKARY
[2020] FamCAFC 308
•11 December 2020
FAMILY COURT OF AUSTRALIA
| RABASSA & ZACKARY | [2020] FamCAFC 308 |
| FAMILY LAW – APPEAL – PARENTING – Appeal against parenting orders – Best interests of the child – Bias – Procedural fairness – Weight challenges – Reasons given in short form pursuant to s 94(2A) of the Family Law Act 1975 (Cth) – Findings open on the evidence – Decision of the primary judge not plainly wrong – No error of fact or law established – Adequate reasons – Appeal dismissed – No order as to costs. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Where much of the material to be adduced was before the primary judge – Contentious documents – Application dismissed. |
| Family Law Act 1975 (Cth) ss 94(2A), 117 |
| CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Anor [1983] 3 NSWLR 378 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 |
| APPELLANT: | Ms Rabassa |
| RESPONDENT: | Mr Zackary |
| INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
| FILE NUMBER: | MLC | 6269 | of | 2016 |
| APPEAL NUMBER: | SOA | 28 | of | 2020 |
| DATE DELIVERED: | 11 December 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne (via video link) |
| JUDGMENT OF: | Ainslie-Wallace, Aldridge & Tree JJ |
| HEARING DATE: | 24 November 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 February 2020 |
| LOWER COURT MNC: | [2020] FCCA 402 |
REPRESENTATION
| THE APPELLANT: | Litigant in person |
| COUNSEL FOR THE RESPONDENT: | Dr Smith |
| SOLICITOR FOR THE RESPONDENT: | Michael Benjamin and Associates |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid (not participating in the appeal) |
Orders
The Application in an Appeal to adduce further evidence filed on 7 May 2020 is dismissed.
The appeal against the orders of a judge of the Federal Circuit Court on 28 February 2020 (as amended on 11 June 2020) is dismissed.
There be 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 Rabassa & Zackary 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 MELBOURNE |
Appeal Number: SOA 28 of 2020
File Number: MLC 6269 of 2016
| Ms Rabassa |
Appellant
And
| Mr Zackary |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
On 28 February 2020 a judge of the Federal Circuit Court made parenting orders in proceedings between Mr Zackary (“the father”) and Ms Rabassa (“the mother”) in relation to the child of the parties’ relationship, X (“the child”) who was born in 2016. The orders changed the living arrangements for the child, he having lived all his life with the mother. The orders provide for the father to have sole parental responsibility for the child and for the child to live with him. The mother is initially to have supervised time on four consecutive Saturdays and thereafter on two consecutive weekends, with graduated time leading to unsupervised and overnight time.
Background
It is helpful to set out some factual background to give context to the issues argued on appeal.
The parties met in June 2014 and commenced a relationship in early 2015 at which time the mother was pregnant with the child. Although the parties separated in February 2016, by the end of that month they apparently reconciled only to separate at a later time. The parties finally separated in June 2017.
When the child was but six or so months old, the father commenced proceedings seeking to spend time with the child. Orders were made in July 2016 that he spend frequent, unsupervised day time with the child.
In September 2016 the mother moved to City A with the child so that she could return to work and, she said, where she could have the support of her family. The father did not agree that the child should move away from Melbourne where the parties had previously been living.
Orders were made in December 2016 for the father to spend time with the child twice a week in Melbourne and once a week in City A.
After an interim hearing in April 2017 orders were made that the father have overnight time with the child to commence in September that year.
Difficulties surrounded the father spending time with the child.
In October 2017 the mother commenced proceedings seeking, in effect, to delay the commencement of overnight time between the father and the child until the child turned five. A few days after filing that application, the mother filed an affidavit making allegations against the father of violence, neglect of the child and inappropriate sexual conduct during January to May 2017.
A further hearing in November 2017 resulted in orders that the father spend time with the child increasing to one day a week from 9.00 am to 6.30 pm and an overnight stay from 10.00 am on Friday to 5.00 pm the following day.
The mother did not comply with those orders.
On 16 December 2017 the mother made a complaint to the local police and the Department of Health and Human Services in Victoria about the father’s care of the child, referring to a cut above the child’s eye.
Four days later, on the mother’s complaint, police charged the father with several serious criminal offences relating to incidents which were said to have occurred between December 2016 and July 2017. All but one of those charges were dropped by the police. The remaining charge related to the father being within a proscribed perimeter of the mother, in breach of a Family Violence Intervention Order (“IVO”) for the protection of the mother, on which no conviction was recorded.
On 27 June 2018, on the eve of a defended hearing, the parties entered into final consent orders which provided for them to have equal shared parental responsibility for the child, the child to live with the mother and for the father to spend time with the child each alternate weekend and from Wednesday to Friday on each alternate week. Orders were also made for the child to spend time with each of the parties during the school holidays and on special occasions.
It was not all plain sailing after the consent orders were made. The father brought contravention proceedings and steps were taken to prepare the matter for a further defended hearing. A family report was prepared and released on
19 November 2019. The final hearing took place between 9 and 11 December 2019 and on 28 February 2020 the primary judge made the orders from which this appeal now springs.
Application to adduce further evidence
On 7 May 2020 the mother filed an Application in an Appeal seeking to adduce further evidence on the appeal in the form of a number of documents including, amongst a range of other documents, a copy of an IVO and emails and text messages between the parties, which she says support her appeal in that they show that the father would not support a relationship between the child and the mother, that the father is violent, the unreasonableness of the primary judge in placing the child in the care of the father when the child was a person protected by the IVO and to counter the suggestion that the child did not wish to be with her.
The IVO was made in July 2018, a few weeks after the parties agreed to orders in relation to the child. The primary judge was well aware of the IVO, and at [57] observed that both parties had in place IVOs each against the other, each due to expire in mid-2020. Her Honour too commented that the mother’s allegations of violence were not put to the father during cross-examination of him by the mother’s counsel, a matter which her Honour regarded as “significant” (at [60]).
The mother also wishes to rely on emails as between the father’s lawyer and the chambers of the primary judge and said that they demonstrate that, contrary to the primary judge’s conclusion that the father will support the child’s relationship with the mother, he will not.
The emails relate to a request by the father’s legal representatives that the final orders made by the primary judge in relation to the child’s time during school holidays be amended under the slip rule to reflect the fact that the child would not commence school until 2021. The primary judge’s chambers advised that no such amendment would take place because the mother did not consent, although eventually the amendments did take place in June 2020. We do not understand how these emails say anything about the father’s willingness to support the relationship.
Next the mother wishes to introduce statutory declarations provided by her and text messages exchanged between her and the father which she says show the father’s willingness to breach the orders. Those text messages are consistent with the parties disagreeing about when the child’s time with the mother during school holidays was to commence. That the parties disagreed about arrangements for the child appears to have been a constant in their parenting relationship.
The mother also wishes to introduce a report of her supervised time with the child in March 2020 and which she says supports her evidence about the relationship between her and the child.
There was no issue that the child did not love the mother, nor indeed the father, the issue for her Honour was the mother’s apparent inability to put her hostility and suspicion of the father to one side to facilitate the child’s relationship with the father. Her Honour’s reasons at [47], [136] and [155] make this plain.
Other documents proposed to be adduced contain the mother’s continued complaint that the father has not complied with the orders to make the child available to spend time with her. They do no more than reflect the mother’s complaints.
On 21 February 2020 the mother presented the child to his general practitioner. The report from the doctor said:
[The child] is my regular patient for months and today he came with her [sic] mom concern of his dad new partner touching the private area per [the child’s] statement in clinic
Examination not done
Urgent referral after talking to mom and [the child]
Now he will need to return back to dad home
(Annexure “[A]6” to the mother’s affidavit filed 7 May 2020) (As per the original)
Associated with this document is an interim IVO sought by the mother for the child’s protection against the father’s partner.
Finally the mother wishes to introduce “voice recordings of the trial” which she said should be considered in substitution to the “trial judge typed… transcript” (Mother’s affidavit filed 7 May 2020, paragraph 14), asserting that her Honour could not take an accurate transcript while she was speaking. A transcript of the proceedings was produced by Auscript in the usual way and was available to the parties. Clearly the mother is under a misapprehension about the production of a transcript.
The introduction of further evidence on appeal is considerably circumscribed. In CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”), McHugh, Gummow and Callinan JJ considered the power of this Court to admit further evidence. At [109] their Honours observed that the exercise of the power is remedial in nature, to give the Full Court discretion to receive further evidence “where that evidence, if accepted, would demonstrate that the order under appeal is erroneous”.
Much of the material the mother wishes to adduce was before the primary judge. Documents going to events which occurred after the orders were made and which are clearly contentious cannot be adduced (see CDJ v VAJ at [111]).
The Application in an Appeal will be dismissed.
The appeal
The mother who appeared for herself on the appeal raises four grounds of challenge to her Honour’s orders. However in her Amended Summary of Argument filed on 28 October 2020 the mother contends further challenges. Counsel who appeared for the father on the appeal raised no objection to this expansion of the grounds and all were answered in his written and oral response. We too will consider all of the grounds.
Ground 4 – Bias
We will first consider the mother’s fourth ground, which contends that the primary judge was biased against her. We consider it first, because a claim of bias, whether apprehended or otherwise, if made out, cuts to the heart of the integrity of the trial process and must be remedied by a re-trial.
In Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, Kirby and Crennan JJ with whom Gummow A-CJ, Hayne and Callinan JJ agreed, said:
117.… An intermediate appellate court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal must deal with the issue of bias first. It must do this because, logically, it comes first. Actual or apprehended bias strike at the validity and acceptability of the trial and its outcome. It is for that reason that such questions should be dealt with before other, substantive, issues are decided. It should put the party making such an allegation to an election on the basis that if the allegation of apprehended bias is made out, a retrial will be ordered irrespective of possible findings on other issues. Even if a judge is found to be correct, this does not assuage the impression that there was an apprehension of bias…
(Footnote omitted)
The assertion of bias seems to comprehend a number of aspects. For example, the mother in her Amended Summary of Argument at page 3 refers to a point at the conclusion of the trial and before her Honour adjourned to consider and later deliver her reasons, where counsel for the mother enquired of her Honour where the child should be enrolled to commence kindergarten. According to the mother, her Honour replied “Melbourne”, which the mother argued demonstrated that the primary judge had already concluded what the outcome of the case would be.
A claim of apprehended bias is one which contends that the primary judge had pre-judged an issue to the point where his or her mind is not open to persuasion or that a reasonable and informed fair-minded lay observer might reasonably apprehend that conclusion (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]).
Here, her Honour had heard all of the evidence and submissions of all parties and, if she had then reached a conclusion that the child should live in Melbourne, it could hardly be a matter of pre-judgment but of judgment.
However it is not at all clear what the controversy was. The father’s case before her Honour was that the child should live with him in Melbourne. The mother’s position was advanced by her counsel when he said:
[COUNSEL FOR THE MOTHER]: … [L]ast year when final orders were made by consent. She accepts that they are final orders. They are with her consent and they are still in force and that that means that in time she will need to relocate to Melbourne, as per the orders. She has filed her applications.
Her response seeks that she would prefer to remain in [City A], but that’s just, you know, I would love to go to [the USA]. So whilst she indicates to me that that would be good because she’s used to that and it’s amongst her family, but she accepts that that’s not going to happen and it can’t happen because there are orders already in place that she has got to come down to and live in Melbourne…
(Transcript 11 December 2019, p.235 lines 38–47)
We do note in this regard the mother’s submissions on the appeal in which she distances herself from her then counsel’s submission and contends that it was not based on her instructions, but that is not the point. The point is that in light of the submission made to her Honour by the mother’s counsel, the primary judge’s comment cannot support an assertion of apprehended bias.
Next the mother contends that her Honour “screamed” at her at every hearing, save for that from which the appealed orders arise. The mother said that she felt, presumably in the past, “intimidated and belittled” by the primary judge (Mother’s Amended Summary of Argument filed 28 October 2020, p.3). This conduct, if it occurred, was not part of the trial and if indeed the mother felt in some way hampered in her evidence by her past experience of the primary judge, she could have, but did not, raise an objection through her counsel then appearing.
In this instance, her failure to raise the concerning conduct, even though she said it occurred at an earlier time, should operate to bar the argument now being made. The rationale of raising this sort of concern with the primary judge was discussed in Vakauta v Kelly (1989) 167 CLR 568 at 572 in which it was said:
Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing…
Next the mother complains that her Honour made the orders the father sought and not those she asked for and that her Honour had read and relied on the father’s material without reading or giving any consideration to the mother’s material. She also complained that the primary judge had regard to the complaints she made to the police about the father (and which were, in large degree withdrawn) and not to the complaints he made about her. The primary judge was tasked with making orders which were in the best interests of the child. Prosaically put, there will, generally speaking, always be a party who wishes his or her orders had been made. That does not sound in an allegation of bias. Also too, the primary judge was not required to mention every piece of evidence before her in coming to her conclusion (Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Anor [1983] 3 NSWLR 378 at 385–386). The mother’s complaints to police about the father, their timing and their outcome were all matters to which her Honour referred and which clearly formed a part of her determinative process.
Finally the mother complained that the father “knows [the Independent Children’s Lawyer] and many people in [L]egal [A]id” and thus had an unfair advantage (Mother’s Amended Summary of Argument filed 28 October 2020, p.4). How this allegation, even if true, created an apprehension of bias is not apparent and there can be no substance to this challenge.
This ground fails.
Ground 2 – Failure to afford the mother procedural fairness
In this ground the mother contends that the primary judge failed to afford her procedural fairness. Like an assertion of bias, a want of procedural fairness if proved can undermine the integrity of the trial process, so we will deal with this next.
The basis of this challenge is that it was not until the final addresses that the Independent Children’s Lawyer contended that the children should live with the father. The mother says that she was not alerted to this position before submissions and had no chance to deny (or put submissions against) that position.
While the Independent Children’s Lawyer preferred not to indicate a position at the commencement of the trial, it was the father’s case that the child live with him and, as her Honour said at [96]–[97], the possibility of a change of primary carer had been discussed by the experts in their reports.
Counsel for the mother in addresses submitted that the expert report was “skewed” in favour of the father and the report was “not there to help the mother” (Transcript 11 December 2019, p.235 lines 6–13). Counsel then said:
[COUNSEL FOR THE MOTHER]: And that that’s a weakness in that report. The mother has spent quite some time in the witness box, has been asked a lot of questions, which have, you know, highlighted decisions that she had made, which weren’t good decisions. And she has given assurances of more considered decision-making capacity in the future. She is aware of the application or the submissions by the independent children’s lawyer that she now wants to or is looking for a change of residency of the child…
(Transcript 11 December 2019, p.235 lines 17–22)
Clearly then, the mother’s counsel had ample opportunity to address the Independent Children’s Lawyer’s submissions as to any change in residence for the child.
The second aspect of this complaint goes to the length of time of the mother’s cross-examination compared with that of the father. The argument gives no further elucidation of the complaint and we do not propose to consider it further.
The mother further complained of the Independent Children’s Lawyer coaching the father as to how to give his evidence. The identified coaching occurred during the Independent Children’s Lawyer’s cross-examination of the father in which he is being asked about steps he might embrace to address the poor relationship with the mother. The father’s answers were equivocal, him saying that there would be no point if only one person learned from the process. He was then asked:
[COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER]: You would consider taking it on?
[THE FATHER]: ---Yes. I – I will because I’m sceptical about the benefit if – if you’ve got the other party still fracturing the relationship and doing everything she can to obstruct.
[COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER]: But you need to still know how to portray yourself the best way forward?
[THE FATHER]: ---Agreed…
(Transcript 9 December 2019, p.30 lines 35–39)
The context belies any suggestion that the Independent Children’s Lawyer was “coaching” the father as to how to give his evidence.
Next, the mother complains that her Honour answered a question on her behalf; “allowed the father’s representation to signal to the father to answer yes or no”; denied counsel for the mother the opportunity of asking her mother questions about her relationship with the child and “didn’t allow [the mother] to answer other important questions put to [her] by the father’s barrister in relation to [her] evidence about offering the father extra visits”, nor allow her to explain her actions (Mother’s Amended Summary of Argument filed 28 October 2020, p.5).
The mother’s complaints about the primary judge not allowing her to explain her actions relate to evidence which was not part of the mother’s affidavit, nor was it the subject of any oral evidence-in-chief, rather, during cross-examination, the mother sought to answer the questions by offering discursive explanations which were not responsive to the question. Her Honour was entirely correct to require the mother to answer the questions asked of her.
The mother was represented during the hearing. No complaint was raised by her counsel with her Honour about any of these matters. While that of itself would not necessarily render the complaint baseless, here it does. These are all matters which go to the conduct of the trial as determined by counsel and no doubt had she any concerns, she or her counsel would have raised them. The mother is bound by that conduct and the challenge is not made out (Metwally v University of Wollongong (1985) 60 ALR 68 at 71).
No want of procedural fairness is made out.
Although we have discussed the mother’s complaints of bias and procedural fairness in some detail, in relation to the balance of the grounds, pursuant to s 94(2A) of the Family Law Act 1975 (Cth) (“the Act”), this Court is entitled to give its reasons in short form in the event that the appeal is to be dismissed and if, in the opinion of the Full Court, the appeal does not raise any question of general principle. As these conditions are fulfilled here, we propose to give reasons on the balance of the grounds in short form.
Ground 1 – Assessment of the evidence
This ground, as explained in the mother’s Amended Summary of Argument, asserts that the primary judge placed insufficient weight on evidence, took into account irrelevant material and gave too much weight to other evidence.
The assessment of evidence and the weight or importance given to it is, quintessentially, a matter for the primary judge. In Gronow v Gronow (1979) 144 CLR 513 at 519–520, Stephen J held:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be effected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight…
Thus an appeal court will only intervene if it is of the view that the primary judge’s conclusion was “plainly wrong” (Norbis v Norbis (1986) 161 CLR 513 (“Norbis”) at 539–540). Here is it not. The primary judge’s conclusions on the evidence were open to her Honour and no error has been demonstrated.
Ground 3 – Plainly wrong
Whilst the mother’s written argument refers to the well-known principle taken from Norbis at 540 as to the “generous ambit within which reasonable disagreement is possible”, she argues that the decision of the primary judge is plainly wrong and unjust.
The mother contends here that the child was placed in the primary care of the father in circumstances where there were no complaints from police or relevant child care authorities about the mother’s care of him and yet, the orders propose a period of supervision of the mother’s time with the child. Against this she points to what she says is the father’s partner’s behaviour towards the child which caused the child trauma and that her Honour’s orders “placed the child in the full time care of [a] known abuser who was charged previously with [nine] offences and given a diversion program” (Mother’s Amended Summary of Argument filed 28 October 2020, p.3).
Central to the mother’s appeal were the charges laid against the father to which she made significant reference. It is worth noting that those charges, laid by police on the mother’s complaint, were serious indictable offences including threats to kill, assault and using a carriage service to harass. All of the charges were withdrawn by police save for one, a breach of an IVO condition which prohibited the father from coming within five metres of the mother. The father pleaded guilty to that charge and agreed to enter into a diversion program offered to first time offenders in which no conviction was recorded.
Her Honour said:
67.When the mother was questioned about this by the [Independent Children’s Lawyer’s] Counsel the mother did not wait for Counsel to finish the questions and said that the fact that charges were withdrawn does not mean they did not happen and said “there was overwhelming evidence.” Plainly, the police were not satisfied that there was overwhelming evidence. Significantly, all of those incidents occurred before the parties entered into final consent orders. There has been no further criminal charges against the father.
This challenge is to the exercise of her Honour’s discretion. The mother’s written argument acknowledges that it is necessary for successful appellate intervention to show that the primary judge’s decision is plainly wrong. Here it is not. Her Honour’s conclusion was entirely open on the evidence and no error has been demonstrated.
Errors of fact
In additional submissions in her written argument, the mother complains that the primary judge based her decision on errors of fact or on matters not found in the evidence. This ground too will fail because, while couched in terms of mistakes of fact, in reality, the ground complains that the primary judge made findings against the mother’s submissions and failed to allow cross-examination of the author of a report that was not in evidence. Although the mother includes many particulars of the asserted mistakes besetting her Honour’s decision, we will illustrate why the ground is not made out by reference to only two.
First, the mother complains that the primary judge erred in failing to allow cross-examination on “the [D] report” (Mother’s Amended Summary of Argument filed 28 October 2020, p.2). This is a reference to a report made by a psychiatrist in relation to the parties in 2016. The report was not in evidence before her Honour although it was referred to in the father’s cross-examination by the mother’s counsel. The mother’s counsel attempted to tender it, the tender was objected to and the tender was not pressed (Transcript 11 December 2019, p.229 line 7 to p.230 line 43).
The mother asserts that the importance of that report is that it “did not say that the father does not have a psychiatric illness” (Mother’s Amended Summary of Argument filed 28 October 2020, p.2). Quite how that comment, even if before her Honour, would have assisted the determination of the relevant issues was not made clear.
Secondly, the mother asserts that the primary judge based a finding that the mother was a risk to the child not on “true facts” and on a recorded conversation between the mother and child, which she said was somehow over valued and led to the primary judge’s ultimate finding that the child should live with the father.
The primary judge said:
145.My concern about the mother’s ability to care for [the child] is not with respect to his physical or intellectual needs but his emotional needs. The recording the mother made of [the child] is concerning, despite the mother’s eventual concession that she asked [the child] leading questions and should not have returned to the topic. The mother strongly believes everything [the child] says to her. She is also ready to interpret anything [the child] says with respect to his father in the worst way possible. The mother may not be aware of this on a conscious level because of the level of anxiety and distrust of the father. The mother showed no insight into the fact that children, particularly young children, want to please their parents. This does not mean that the child is lying. It is also very common for a child to change answers to questions put to them repeatedly as they interpret this as meaning their first answer was wrong. I accept the [Independent Children’s Lawyer’s] submission that in the witness box it was clear that the mother has not taken on board the results of the investigations of the police and the Department with some objectivity, rather, she has become increasingly concerned and is now saying that he returns every week with some sort of injury. The mother’s actions with respect to the recording and the email she sent to the [Independent Children’s Lawyer] is troubling as the mother cannot countenance that there could be another explanation. [The child] may well have heard raised voices in the father’s household. As [the child] referred to someone else by the name of [O] it could be that [the father’s partner] was telling off another person, possibly a child. I have real concerns that the mother will continue to make similar allegations and complaints which exposes [the child] to further psychological harm.
The risk was not, as the mother said, that she might “say something inappropriate” (Mother’s Amended Summary of Argument filed 28 October 2020, p.2) but far more nuanced, that she would continue to record the child and raise further allegations which would then expose the child to harm. The primary judge said:
160.… The mother’s time does need to be supervised for the first four visits while the mother adjusts, as there is a real risk that the mother will say inappropriate things to [the child] or be unable to contain her distress if these initial visits are unsupervised…
Thus analysed, the ground is not concerned with mistakes of fact, but that the primary judge arrived at conclusions for which the mother did not contend and in relation to which she remains unhappy. No error of law is demonstrated.
Failure to give adequate reasons
The mother also contended that the primary judge failed to adequately expose her reasoning and thus fell into error.
The submissions in fact merely repeat the mother’s complaints about her Honour’s findings and in particular the necessity for there to be some supervised time between the mother and the child in the first instance.
Her Honour’s reasons expose her thinking and explain her decision for why her Honour ordered supervised time with the mother for the initial visits.
This challenge is not made out.
Conclusion and costs
Thus the appeal will be dismissed.
The father, in the event that the appeal is dismissed, sought an order for indemnity costs, and in the alternative, sought an order that the mother pay his costs on a party/party basis.
While the mother’s appeal has been wholly unsuccessful (s 117(2A)(e) of the Act), the circumstances of this matter do not, in our opinion, justify the making of a costs order inter partes. There will, therefore, be no order as to costs.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Aldridge & Tree JJ) delivered on 11 December 2020.
Associate:
Date: 11 December 2020
0
7
1