Rafferty & Spencer
[2016] FamCAFC 97
•10 June 2016
FAMILY COURT OF AUSTRALIA
| RAFFERTY & SPENCER | [2016] FamCAFC 97 |
| FAMILY LAW – APPEAL – CHILDREN – Where the mother had been the primary carer of the child – Where the father spent specified time with the child – Where the trial judge’s central findings included a finding that the child was at an unacceptable risk of emotional abuse in the mother’s care and there was a need to protect the child from that risk – Where orders for the child to live with the father – Where the mother argued on appeal that the Reasons for Judgment of the trial judge were inadequate – Where the mother argued that the trial judge failed to consider options put to her by the mother at trial as alternatives to changing the child’s primary residence – Where it was determined on appeal that none of the options argued by the mother had any sufficient evidentiary basis to constitute them as material considerations the trial judge was bound to consider – Principles in relation to determining the adequacy of Reasons discussed – Where the test in Bennett & Bennett (1991) FLC 92-191 was applied – Where having regard to the central findings of the trial judge, none of which were challenged on appeal, and the principles to be applied, it was unnecessary for the trial judge to discuss these options in the Reasons – Where it was held the trial judge had provided sufficient Reasons – Where the appeal was dismissed. FAMILY LAW – COSTS – Where the appellant mother was wholly unsuccessful in the appeal – Where it was appropriate for the appellant to pay the respondent’s costs of the appeal on a default of agreement basis. |
| Family Law Act 1975 (Cth) |
| A v J (1995) FLC 92-619 Bennett & Bennett (1991) FLC 92-191 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 |
| APPELLANT: | Ms Rafferty |
| RESPONDENT: | Mr Spencer | ||||
| FILE NUMBER: | BRC | 2281 | of | 2010 | |
| APPEAL NUMBER: | NA | 60 | of | 2015 | |
| DATE DELIVERED: | 10 June 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Thackray, Ainslie-Wallace & Kent JJ |
| HEARING DATE: | 9 June 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 6 August 2015 |
| LOWER COURT MNC: | [2015] FCCA 2072 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Dr Brasch QC |
| SOLICITOR FOR THE APPELLANT: | Simonidis Steel Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Jordan |
| SOLICITOR FOR THE RESPONDENT: | KLM Solicitors |
Orders
IT IS ORDERED:
The appeal be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rafferty & Spencer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA60/2015
File Number: BRC2281/2010
| Ms Rafferty |
Appellant
And
| Mr Spencer |
Respondent
REASONS FOR JUDGMENT
KENT J
The parties are the parents of the child, E born in 2009.
On 6 August 2015, following a trial of the parents’ competing applications for parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”), Judge Cassidy made final parenting orders and delivered Reasons for Judgment for those orders.
The effect of those orders, relevant to this appeal, is that the child was to live primarily with the father and spend specified times with the mother. This was a fundamental change to the child’s living arrangements to that point, given that the child had always lived primarily with the mother in circumstances where the parties separated in August 2009 when the child was only about four months of age.
Whilst more will shortly be said about the trial judge’s findings, central to the trial judge’s determination was the finding that the child was at an unacceptable risk of emotional abuse in the mother’s primary care and the associated finding that the child needed to be protected from such risk. The trial judge ultimately determined that the fundamental change referred to was in the child’s best interests.
The mother’s challenges on appeal from those orders do not include any challenge to the trial judge’s findings that the mother posed an unacceptable risk of emotional abuse to the child. Rather, the mother’s challenges focus upon the trial judge’s conclusion that to address that unacceptable risk it was in the best interests of the child for him to live primarily with the father.
The mother contends that the trial judge erred in failing to consider what are characterised by the mother as four “options” to address the unacceptable risk of emotional abuse the mother posed, in lieu of ordering that the child live with the father. The four asserted “options” are:
i)The findings of the trial judge being provided to the police and to the Department of Child Safety (Option 1);
ii)Compelling the mother to attend “counselling to work on her attitude and responses” (Option 2);
iii)Making interim, rather than final, orders (Option 3); and
iv)Making an order pursuant to s 65L of the Act (Option 4).
The mother advances two grounds of appeal.
By Ground 1 the mother contends that the trial judge failed to consider these options and failed to give any or any adequate reasons for discounting or disregarding them.
By Ground 2 of the appeal the mother contends that the trial judge failed to make findings about the likely effect upon the child of a change of residence and failed to give any or any adequate reasons to explain the likely effect.
In my judgment, the mother’s contentions as to the four so-called options, upon which Ground 1 of the appeal depends, confronts the following related and insurmountable difficulties:
a)There was no, or no sufficient, evidentiary foundation for any of these options in order for them to be characterised as, or elevated to, a material consideration the trial judge was bound to consider; and
b)The central findings of the trial judge, expressly or by implication, rendered it unnecessary for the trial judge to discuss any of these options in her Honour’s Reasons for Judgment.
Central findings of the trial judge
Referenced to the paragraphs of the Reasons for Judgment of the trial judge, the central findings of the trial judge, none of which are challenged on appeal, may be summarised and paraphrased as follows:
a)The mother has a current belief that the father has sexually abused the child (at [40] and [99]);
b)This belief hampers the mother’s capacity to provide for the child’s emotional needs; and in circumstances where it is important for the child to have a relationship with both of his parents that is positive, the mother is not able to support the father/child relationship in the long term (at [99]);
c)The risk of the child being exposed to this belief, in circumstances where there is no evidence to support it, raises real concerns for the child’s emotional wellbeing (at [66]);
d)The child’s emotional wellbeing is at risk from the mother’s belief via the mother perpetuating allegations and engaging the child in false allegations (at [65] and [66]);
e)The mother has recounted allegations of sexual abuse of the child by the father to others, in the presence of the child (at [51] and [63]);
f)The mother’s exposure of the child to allegations of sexual abuse may, in and of itself, create a risk of emotional abuse of the child (at [67]);
g)One of the allegations of sexual abuse advanced by the mother at trial was fabricated by her (at [60]); and in relation to the other allegations, there is no unacceptable risk posed by the father (at [61]);
h)The mother has presented the child on a number of occasions for medical testing in relation to allegations of sexual abuse and if this continues there is the risk of emotional harm to the child (at [108]);
i)The mother has involved the child in negative discussions about the father and has involved the child in these proceedings through both the sexual abuse allegations and those discussions; there is an unacceptable risk of emotional abuse to the child in the mother’s household (at [71] and [113]);
j)There is a risk of emotional harm in the mother’s household and a need to protect the child from being exposed to the risk of that harm in the mother’s household (at [82]);
k)The mother has made unilateral decisions that have not been child focused. Examples are the relocation of herself and the child to Town T without any consent from the father. Another example is the mother ceasing time with the father regularly on the basis of medical certificates, without discussing with the father the prospect of the child being able to come into his care whilst he was unwell (at [97]).
It is readily apparent from the central findings referred to, particularly when read in their full context in the trial judge’s Reasons, that the finding that the mother posed an unacceptable risk of emotional harm to the child was not based solely upon the issue of alleged sexual abuse. This also finds reflection in the ultimate conclusion the trial judge expressed at [113] of the Reasons as to two other elements, other than the allegations of sexual abuse, upon which the trial judge based her determination that the child should live with the father.
No evidentiary foundation for the “options”
As counsel for the mother correctly acknowledged during her submissions in the hearing of this appeal, neither of Option 2 – compelling the mother to attend “counselling to work on her attitude and responses”; nor Option 4 – making an order pursuant to s 65L of the Act; were the subject of any evidence whatsoever at the trial.
That is, for example, there was no evidence of the “counselling” contemplated nor, for example, evidence from the mother that she was willing to attend counselling or to address her apparently fixed belief as to sexual abuse perpetrated by the father. There was no expert evidence of any kind, let alone such evidence as to the prospect of counselling achieving anything, and if so, the timeframe which might be involved.
Similar observations can be made as to Option 4.
Both of Options 2 and 4 were raised for the first time in the trial by counsel for the mother in his final submissions, after the evidence had closed.
In addressing this feature in the course of argument of the appeal, counsel for the mother sought to emphasise the principle that a Court considering parenting orders is not bound by the proposals of either party; and the Court can modify a proposal or adopt some different proposal. However, that is so subject to important considerations of procedural fairness and natural justice. These options were not part of the mother’s case when she was cross-examined at trial by counsel for the father, nor were they the subject of evidence otherwise.
That aspect aside, the lack of any evidentiary foundation whatsoever for these “options”, let alone evidence that if these options were implemented (in some form still unknown) they would likely, perhaps even possibly, address the unacceptable risk of emotional abuse to the child posed by the mother, denies to them the status of a material consideration for the trial judge.
Whilst Option 1 – provision of the trial judge’s findings to police and the relevant Department and, arguably, Option 3 – interim orders; were at least the subject of some evidence when the expert family report writer, a social worker, gave oral evidence, it is important to highlight how limited that evidence was.
First and foremost, the expert offered no positive opinion that either option would actually be effective or of any utility in addressing the relevant risk ultimately found to exist. Early in his oral evidence when the expert was asked about any other “remedies” he was thinking of, short of a change of the child’s residence, the expert qualified all that followed with:
Well, other remedies, if the court is satisfied that they would work…[1]
(emphasis added)
[1] Transcript, 24 June 2015, at p 86 line 47.
That is, the expert did not positively advance the opinion that they “would work”, leaving their utility (if any) to “the court”.
The first “remedy” the expert postulated was “requirements upon the mother that she is not entitled to withhold the child”. As the Reasons for Judgment reflect, in the long history of this matter and disputation between the parents, Court orders, which required the child to spend time with the father, had not always secured that objective.
The expert next referred to provision of findings to relevant authorities (Option 1). There was then this exchange between counsel for the father and the expert:[2]
COUNSEL:But if they’re not going to work, then you say that the court might look at a more significant and drastic remedy and a change of residence?---
ANSWER: Yes.
[2] Transcript, 24 June 2015, at p 86.
In light of the trial judge’s central findings, and the breadth of the mother’s conduct informing the finding of unacceptable risk of emotional abuse contained within those central findings, it is patently obvious that Option 1 – provision of findings to relevant authorities – could not conceivably address that risk in any meaningful way. Of course, when giving evidence the expert did not know the full extent or substance of the findings the trial judge ultimately made.
The critical point is that a review of the whole of the evidence of the expert concerning both Option 1 and Option 3 – interim orders, both under
cross-examination of each of counsel for the father and counsel for the mother, including some exchanges with the trial judge, reveals that at no point did the expert offer any positive opinion that the possibilities he raised had any actual prospect of “working”.
With respect to Option 3 – interim orders – as was discussed with counsel for the mother during the course of argument, it seems that much of the evidence of the expert was actually directed to a contemplated structure or graduated change from the mother’s primary care to the father’s primary care. That aspect aside, the expert readily conceded “problems” with such a graduation in the face of particular findings that might be made by the trial judge.[3]
[3] Transcript, 24 June 2015, at p 87 lines 25 to 30.
In the context of adverse findings to the mother, the expert acknowledged:
… there are certainly difficulties with the idea of graduating it if your Honour has made an adverse finding against the mother because it’s about her ability to actually own it and support the child through that process and not to continue to undermine the child.[4]
[4] Transcript, 24 June 2015, at p 87 line 45.
After raising the prospect of interim orders, and in relation to the mother supporting the child, there was then this exchange between counsel for the father and the expert:[5]
COUNSEL:But if her Honour makes a finding that over the last five years the mother has consistently tried to undermine things and then the very thing she holds dearest, which is her son living with her, is taken away, the portents for her supporting that would be very poor, wouldn’t they, Mr [F]?---
ANSWER:Yes, I accept that.
and soon after in discussing a “graduated” change:
COUNSEL:But if it’s unlikely to be supported, then really you’re left with just an abrupt change, aren’t you?---
ANSWER:Yes.
[5] Transcript, 24 June 2015, p 88.
Adequacy of Reasons for Judgment
When regard is had to some well-established principles emanating from the authorities which have considered the question of adequacy of Reasons, allied with the discussion thus far, the conclusion is readily reached that Ground 1 has no merit.
It is well settled that it is not incumbent on a trial judge to “make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear”.[6] As I have sought to demonstrate, the options under discussion were not the subject of any evidence. The point is that even if they were, it was not necessarily incumbent upon the trial judge to make an explicit finding about them. That they were not founded in evidence amplifies the point.
[6] Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 per Mahoney JA.
In Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, Gleeson CJ, McHugh and Gummow JJ said at 1610:
62.… The fact that his Honour did not refer to these matters in his judgment is not decisive. A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
As Allsop P (with whom McColl JA agreed) said in Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2]:
There are ample statements of this Court and of the High Court to express the duty upon judicial officers as to the giving of reasons. Many of those expressions state the matter by reference to general principle, rather than by reference to the facts of the particular case ... In many cases, however, a judge may, in dealing with large bodies of evidence, be forced to economise in expression and approach in order to be coherent in resolving the overall controversy. The need for coherent and tolerably workable reasons sometimes requires truncation of reference and expression. Judgment writing should not become a process that is oppressive and that produces unnecessary prolixity. Not every piece of evidence must be referred to…
In Bennett & Bennett (1991) FLC 92-191 (“Bennett”) the Full Court of this Court adopted the test for adequacy of Reasons propounded by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8. In that case Gray J, who delivered the principal judgment, said at 18:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:-
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
Subsequent to the decision of the Full Court in Bennett, in A v J (1995) FLC 92-619 the Full Court of this Court undertook a review of numerous authorities on this topic. At 82,232-82,233 the Full Court observed:
It is important to guard against too zealous an application of the requirement to give reasons, particularly in circumstances where it is argued that inadequacy in the reasons lies in the failure to make findings of fact leading to a finding of a material or an ultimate fact: see Soulemezis per Mahoney JA. In that case McHugh JA said at 280:-
“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex partePowter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated.”
The Full Court in A v J made the following reference to Mahoney JA’s statement in Housing Commission of New South Wales vTatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd (supra) referring to the duty of a judge to state Reasons (at 82, 233):
However, such a duty does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceedings. It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission: in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing…
The written submissions of the mother, in support of her challenges to the adequacy of the trial judge’s Reasons, invite this Court to examine various statements made by the trial judge in the course of evidence in the trial and during submissions.
However, as the principles emanating from the authorities referred to make clear, an appeal court does not test the adequacy of Reasons by analysing whether each and every concern, view or opinion, tentative or robust, expressed by the trial judge in the course of evidence or submissions appears in, or is mirrored by, the trial judge’s Reasons for Judgment. It will almost inevitably be the case that concerns or views held by a trial judge in the course of a trial as the evidence unfolds, or during submissions, including those articulated by the trial judge, will abate upon and from the crystallisation by the trial judge of the findings to be made upon the evidence which is ultimately, upon reflection, accepted.
The test is as earlier stated and by its application here, the reasoning upon which the decision of the trial judge is based is readily ascertained and justice can be seen to have been done.
In my judgment, application of these well-established principles to the circumstances of this case readily results in the conclusion that it was not part of the duty of the trial judge to discuss in the Reasons for Judgment any of the four “options” the subject of Ground 1.
That being so, the conclusion must be that there is no merit in Ground 1.
As to Ground 2, much of the foregoing discussion of the relevant principles applies to the complaint in Ground 2 as to the adequacy of the trial judge’s Reasons.
However, there are further reasons for concluding that Ground 2 has no substance.
Ground 2, as already noted, asserts a failure by the trial judge to give any or any sufficient reasons concerning the likely effect on the child of the change of residence.
Commencing at [100] of the Reasons for Judgment it can be seen that the trial judge did discuss this topic, including by a number of references to the family report which are quoted by the trial judge with apparent acceptance. At [101] the trial judge observed:
This is probably the single most significant factor that has troubled me in this matter…
The trial judge thereafter quotes from the report of the family report writer precisely dealing with the likely effect upon the child of separation from his mother.
In my judgment when regard is had to [100] to [105] of the Reasons of the trial judge on this topic, in the context of the Reasons overall but in the important context of the central findings already discussed, there is no substance to the contention that the trial judge failed to supply sufficient reasons addressing this issue.
In my judgment there is no merit in Ground 2 of the appeal.
Conclusion
There being no merit in either of the two grounds of appeal advanced by the mother, the appeal ought be dismissed.
Costs
In the event the appeal is dismissed, the father seeks an order for costs essentially on the basis that it will be seen that the mother has been wholly unsuccessful in her appeal. The mother opposed such an order principally on the basis of her financial circumstances.
At the conclusion of submissions we received some details of the respective financial circumstances of each party. The husband is employed earning $48,000 per year and resides in rental accommodation with his partner who is also employed and with whom he obviously shares expenses.
The mother is in receipt of a gross income of $66,000 per annum and owns a modest home in which it was said she had equity of about $80,000.
I am persuaded that there are justifying circumstances within the meaning of s 117(2) of the Act for an order for costs to be made in the father’s favour, particularly having regard to the feature that the mother has been wholly unsuccessful in her appeal (s 117(2A)(e)). In my judgment the respective financial circumstances of the parties do not outweigh that consideration in favour of an order for costs.
Orders
I would order that the appeal be dismissed. I would further order that the appellant pay the respondent’s costs of and incidental to the appeal to be agreed and in default of agreement, to be assessed.
AINSLIE-WALLACE J
I agree with the reasons of Justice Kent and with the orders that he proposes.
THACKRAY J
I also agree with the reasons of Justice Kent and with the orders that he proposes. The orders of the Full Court therefore are these:
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Ainslie-Wallace & Kent JJ) delivered on 10 June 2016.
Associate:
Date: 15 June 2016
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