Rigby & Olsen

[2021] FedCFamC1A 46

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Rigby & Olsen [2021] FedCFamC1A 46

Appeal from:

Olsen & Rigby [2020] FamCA 885

Appeal number(s):

EAA 160 of 2020

File number(s):

SYC 5015 of 2017

Judgment of:

TREE, GILL AND HARTNETT JJ

Date of judgment:

1 November 2021

Catchwords:

FAMILY LAW – APPEAL – PARENTING – Appeal from final judgment for the child of the parties to live with the mother, for the mother to have sole parental responsibility, and for the father to only spend professionally supervised recognition time with the child – Whether primary judge erred in concluding the mother’s parenting capacity would be adversely impacted where her mental health was adversely impacted – Indirect risk – Whether the primary judge gave adequate reasons – Whether the primary judge failed to have regard to or placed insufficient weight on the evidence – Whether primary judge’s decision was manifestly wrong – No error demonstrated by the primary judge – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum – Appellant to pay the Independent Children’s Lawyer’s costs in a fixed sum.

Legislation:

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3

Judiciary Act 1903 (Cth) s 79

Legal Aid Commission Act 1979 (NSW) s 42

Cases cited:

A v J (1995) FLC 92-619; [1995] FamCA 56

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

House v The King (1936) 55 CLR 499; [1936] HCA 40

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4

Date of hearing:

30 September 2021

Place:

Sydney (via video link)

Number of paragraphs:

53

Counsel for the Appellant:

Mr Todd      

Solicitor for the Appellant:

Watts McCray

Counsel for the Respondent:

Mr Kearney SC

Solicitor for the Respondent:

Pearson Emerson Family Lawyers

Counsel for the ICL:

Ms Lioumis

Solicitor for the ICL:

Legal Aid NSW

ORDERS

EAA 160 of 2020
SYC 5015 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR RIGBY

Appellant

AND:

MS OLSEN

Respondent

INDEPENDENT CHILDREN'S LAWYER

Other

ORDER MADE BY:	TREE, GILL AND HARTNETT JJ
DATE OF ORDER:	1 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The appellant’s Notice of Appeal is dismissed.

2.The appellant pay the costs of the respondent fixed in the sum of $37,721.08.

3.The appellant pay the costs of the Independent Children’s Lawyer fixed in the sum of $4,356.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rigby & Olsen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

TREE, GILL & HARTNETT JJ:

INTRODUCTION

1. By a Notice of Appeal filed 20 November 2020 Mr Rigby (“the father”) appealed from final parenting orders regarding the parties’ child, B(“the child”) made by a judge of the then Family Court of Australia on 23 October 2020.  Ms Olsen (“the mother”) opposed the appeal, as did the Independent Children's Lawyer (“ICL”).

2. For the reasons which follow, the appeal fails.

   BACKGROUND

3. The father, who was aged forty at the time of the trial, and the mother who was aged thirty-six at the time of the trial, commenced their relationship in 2016.

4. The mother had, prior to the relationship, suffered depression and anorexia nervosa, matters both known to the father.

5. In [early] 2017 the child was born, the mother performing the role of primary carer since then.

6. On 20 June 2017 the parties separated. Shortly after separation an Apprehended Domestic Violence Order (“ADVO”) was granted to the mother.

7. From separation the father’s time with the child was supervised.

8. The primary judge made determinations about a number of underlying factual matters which were not the subject of challenge on appeal, although their significance was.  Amongst those the primary judge found that:

   (a)The father acted in a highly controlling manner toward the mother (at [399], [421]), pressuring her to engage in sexual activities that he later threatened to inform her family of (at [287], [293]), pressuring and restricting the mother in respect of her workplace and attendance at functions with work colleagues (at [31], [247], [256]), and as to who she could see for medical treatment (at [39], [257]–[258]);

   (b)The father was violent towards the mother and, most significantly, in January 2017 (when the mother was six months pregnant with the child) the father placed his hands around the mother’s throat, squeezing it after saying that he wanted to strangle her (at [44], [189]).  This non-fatal act of strangulation left the mother with Post Traumatic Stress Disorder (“PTSD”) (at [189], [382]);

   (c)The father repeatedly contended during the relationship that the mother was mentally ill, and that there was something wrong with her (at [268]);

   (d)The father described to the mother that he had previously had links to an outlaw motorcycle gang, had been recruited by an organisation, was qualified and practised as a lawyer (he had not), and that he had killed people in the past (at [313], [323], [390]);

   (e)The father had behaved in a similar manner towards a previous partner, Ms D, who gave evidence in the proceedings.  She had been subject to violence including non-fatal strangulation, and the father had made similar assertions as to his background as he had to the mother (at [310], [313]). These were matters about which the mother only became aware post separation; and

   (f)In February 2020 the child suffered an injury to her genital area while in the supervised care of the father (at [385], [412]).

9. The primary judge concluded that it was in the best interests of the child to live with the mother, for the mother to exercise sole parental responsibility, and for the child to spend only what was described as professionally supervised recognition time with the father.  The judgment was predicated on such an outcome being required by the unacceptable risk occasioned to the child, either directly or indirectly, by the father.  Of particular importance was the impact that the father spending time with the child would have on the mother, in the context of her PTSD.

   THE APPEAL

10. In making a challenge to what is the exercise of a broad discretion, it is insufficient to identify that an alternate outcome was available, or preferable, or even that the appeal court would have arrived at another conclusion about what was in a child’s best interests.  The starting point in considering a challenge is the presumption that the decision was correct, with such presumption only able to be displaced by demonstrating that the primary judge made an error as to the law to be applied, failed to take into account a relevant matter, took into account an irrelevant matter, made a material error as to the facts, or reached a conclusion that was manifestly unjust (see House v The King (1936) 55 CLR 499; Norbis v Norbis (1986) 161 CLR 513).

11. The father mounted three broad areas of challenge.

12. Of central emphasis was the challenge at Ground 1 to the primary judge’s assessment of the indirect risks posed by the impact upon the mother’s parenting capacity of the father spending other than limited supervised recognition time with the child.  This was ultimately characterised as a challenge based on a mistake of fact.

13. Grounds 2 and 3, which were only faintly pressed, were challenges to the adequacy of the disclosed reasons in respect of the primary judge’s assessment of risk.

14. Ground 4 asserted that part of the conclusion reached by the primary judge, in restricting the time to recognition time only, was manifestly unjust.

    GROUND 1

15. Ground 1 was in the following terms:

    That the trial judge's discretionary judgment miscarried as a result of an error in fact in His Honour's conclusion that there was an unacceptable risk that an order other than for the child to have 'recognition contact' only with the Father on an indefinite, professionally supervised basis, may adversely impact the Mother's parenting capacity by virtue of exacerbation of her mental health vulnerabilities arising from a diagnosis of PTSD.

    (As per the original)

    The scope of the challenge

16. In oral submissions counsel for the father refined this ground to centre on the proposition that the primary judge made a factual error in concluding that the mother’s parenting capacity would (emphasis added) be adversely impacted under circumstances where her mental health was adversely impacted.

17. That criticism was precisely focussed and did not extend to challenge any of the primary judge’s conclusions as to a suite of unacceptable risks posed to the child in the event that the time with the father was unsupervised.  There was no challenge to the primary judge’s assessment of direct risks posed by the father in the realms of physically harming the child, of exposing the child to family violence, of sexual abuse of the child (which was concluded not to be an unacceptable risk), or of emotional harm.

18. The father explicitly did not challenge the primary judge’s order for supervised time to continue for an indefinite period on the basis of the direct risks identified, but rather restricted the challenge to the conclusion that the frequency would be limited to recognition time based on the indirect risk identified by the primary judge.

    The indirect risk

19. That indirect risk was, in the context that the mother is the only viable carer for the child, that her parental capacity is adversely impacted by the child having regular time with the father, even if that time is supervised.  This was a risk assessed as flowing from the mental health vulnerabilities of the mother (including her previous history of depression and anorexia nervosa, currently in remission), but in particular her suffering from PTSD as a result of a serious assault upon her by the father, by means of a non-lethal episode of strangulation.  The serious symptoms of the mother’s PTSD were found by the primary judge to be triggered by the father whose conduct was the root cause of the PTSD.

20. Neither the finding of PTSD, nor its causes, were the subject of challenge on appeal.  Rather, the central aspect of the challenge related to [423] of the judgment, on the basis that this constituted the reasoning that led to the conclusion that the time should be limited to recognition time.  That paragraph is set out below:

    For reasons which I have set out, I am satisfied that it is likely the father would, however, engage in an ongoing pattern of psychologically abusive conduct in respect to the mother and, as a result, I am further satisfied that it is likely that the mother’s mental health would be adversely impacted. The consequences for the mother would be suffering the symptoms to which I have earlier referred, as highlighted in ‘Appendix B’ to the report of Ms G, and as described in the report of Dr Y dated 15 May 2020. I am further satisfied that, as a result of suffering such symptoms, the mother’s parenting capacity would be detrimentally affected and, in circumstances where the mother is the only viable primary carer of the child, this would not be in the best interests of the child.

21. Ultimately the argument, as refined orally, made no complaint as to the precursor findings by the primary judge that:

    (a)The father is likely to engage in “an ongoing pattern of psychologically abusive conduct” toward the mother;

    (b)That such is “likely” to cause the mother’s mental health to be “adversely impacted”; and

    (c)That the symptoms of adverse impact on the mother’s mental health (as identified at Appendix B of the report of Ms G annexed to her affidavit of 9 June 2020) are:

    (i)Recurrent, involuntary, and intrusive distressing memories of the traumatic event(s);

    (ii)Recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s);

    (iii)Intense or prolonged psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event(s);

    (iv)Marked psychological reactions to internal or external cues that symbolise or resemble an aspect of the traumatic event(s);

    (v)Avoidance of or efforts to avoid external reminders (peoples, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s);

    (vi)Persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (e.g., “I am bad,” “No one can be trusted,” “The world is completely dangerous,” “My whole nervous system is permanently ruined”);

    (vii)Persistent negative emotional state (e.g., fear, horror, anger, guilt or shame);

    (viii)Hypervigilance;

    (ix)Exaggerated startle response;

    (x)The disturbance causes clinically significant distress;

    (xi)Depersonalisation; and

    (xii)Derealisation.

22. That left the specific factual finding challenged being that:

    423.… as a result of suffering such symptoms, the mother’s parenting capacity would be detrimentally affected …

    (Emphasis added)

23. That is, the challenge was as to a finding of inevitability of impact on the mother’s parenting capacity in the event that her mental health was detrimentally impacted. 

24. Although a matter to be dealt with later in the judgment, it is timely to observe that this challenge was essentially reliant on the clarity of the reasoning process engaged in by the primary judge as to risk, a matter significantly undermining the later complaint as to the deficient disclosure of reasons.

    Challenge to factual conclusions as to indirect risk

25. In challenging the factual findings at first instance it is necessary for an appellant to demonstrate to an appeal court conducting an appeal by rehearing that the conclusion reached by the primary judge was wrong.  The court of appeal is obliged to conduct a real review of the evidence to determine whether the primary judge has made an error of fact or of law (see Fox v Percy (2003) 214 CLR 118), but in doing so will recognise any advantages enjoyed by the primary judge over those available to the appeal court (Lee v Lee (2019) 266 CLR 129 (“Lee v Lee”) at 148).

26. Where the advantage enjoyed by the primary judge is the “impressions about the credibility or reliability of witnesses”, which are likely to have been affected by seeing or hearing the witnesses give evidence, then the appeal court is restrained from interfering with the factual conclusion unless the findings are “glaringly improbable” or “contrary to competing inferences” (Lee v Lee at 148).

27. In this case the primary judge relied upon such impressions in addition to other matters in order to make his factual determinations.

28. Otherwise, an appeal court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are established or undisputed, and is under a duty to weigh the evidence and the conclusions for itself (Lee v Lee at 149).

29. The father pointed to a number of aspects of the evidence and reasoning that were directed to the proposition that the mother is able to, and does properly manage her mental health in the face of adversity.  This was used to challenge the primary judge’s conclusions as to risk of the mother's parenting capacity being impinged.  These were:

    (a)The primary judge’s comments at [187] that the mother’s “past mental health issues have not, to date, adversely impacted on her parenting capacity”;

    (b)The acceptance at [347] of the single expert’s conclusion that the mother’s history of depression could recur, but that such fell in “the possible rather than the probable range”;

    (c)The evidence of the mother’s treating psychologist in her report annexed to her affidavit of 9 June 2020 (at p.5 of the report) that she considered the mother to be “very competent as a parent” and that she had “no concerns about her ability” to care for the child;

    (d)An asserted contrast between the description at [401] that both the single expert and the treating psychologist considered that the mother’s parenting capacity would be adversely affected if orders are made for the child to spend time with the father, as against the treater’s evidence as set out in her report annexed to her affidavit of 9 June 2020 (at p.5 of the report);

    (e)The acceptance at [347] of the assessment by the mother’s treating psychologist that the mother “is dedicated to her mental health treatment plan”; and

    (f)The mother’s evidence as to her management of her symptoms (Transcript 21 July 2020, p.74 line 22 to p.76 line 36).

30. However, none of these matters demonstrate error in the primary judge’s conclusion that the mother’s mental health seen in the context of her PTSD rendered her vulnerable to adverse impact on her parenting capacity. 

31. Dealing with them sequentially, firstly the reference at [187] is to the mother’s mental health issues other than the PTSD for which she is currently receiving treatment.

32. Secondly, the recurrence of depressive symptoms referred to at [347] is not a condition precedent to the mother’s capacity being impacted, but rather is a possible exacerbation of the impact of the PTSD currently endured by the mother. 

33. Thirdly and fourthly, the assessment of the competence of the mother as a parent, and her capacity to care for the child in the treating psychologist’s report annexed to her affidavit of 9 June 2020 (at p.4–5 of the report) do not answer the issue of that capacity being impacted or reduced or undermined by an exacerbation of the mother’s mental health issues. There is no apparent contrast between the judgment at [401], where the primary judge drew support from the treating psychologist and single expert for the conclusion that the mother’s capacity will be adversely impacted by orders for the child to spend time with the father, and the treating psychologist’s evidence in her report (at p.4–5). The evidence in the treating psychologist’s report supports the primary judge’s conclusions about the adverse impact upon the mother of any connection with the father.

34. Fifthly and sixthly, the fact of the mother’s commitment to her mental health does not equate to neutralising of the issues flowing from the PTSD.  PTSD was noted by the primary judge at [424] to be both difficult to treat and a very resistant phenomenon.  The treating psychologist observed a direct correlation between contact with the father and a flaring of the mother’s PTSD symptoms.  There is no conflict between the mother being dedicated to her mental health treatment plan, managing her symptoms and her parenting capacity facing adverse impact by virtue of her PTSD.

35. These matters do not establish error in the primary judge’s conclusions as to impact on parenting capacity should the mother’s mental health be adversely affected.  This ground should be rejected.

    GROUNDS 2 AND 3

1. Grounds 2 and 3, which were only faintly pressed in oral argument, each asserted a deficiency in the disclosure of reasons and were argued together. They were in the following terms:

   2. That His Honour erred in principle in failing to give any or any adequate reasons for the conclusions reached in ground 1.

   3. That His Honour, in reaching the conclusions the subject of Ground 1, failed to have proper regard to and did not place sufficient weight on (or he failed to disclose his reasoning sufficiently to permit an understanding as to how he had regard) the following findings or evidence:

   3.1 The finding as to the [mother’s] acute awareness of her mental health vulnerability (paragraph 188 Reasons);

   3.2 The finding as to the [mother’s] responsible attitude towards, and diligence in seeking and receiving appropriate treatment for her mental health (paragraph 184 Reasons);

   3.3 The finding that, aside from the [mother’s] PTSD symptoms, her historical mental health issues have been properly managed and are in remission (paragraphs 184 to 186 Reasons);

   3.4 The evidence of the [mother’s] treating clinical psychologist that her PTSD symptoms are being effectively managed by the [mother] in the context of her treatment;

   3.5 The acceptance of the evidence of the single expert that 'the recurrence of major depression' is in the 'possible but not probable range (paragraph 347 Reasons);

   3.6 The acceptance of the evidence of the single expert, to the effect that there has been no observed detrimental impact to the child arising from the [mother’s] mental health and that the child is doing well in the [mother’s] care (paragraph 187 Reasons);

   3.7 That, since separation in 2017, arrangements were in place both informally and following orders being made in these proceedings, for the [father] to spend time with the child with a much greater frequency than that ultimately ordered, and largely on condition of familial as opposed to professional supervision of the time (paragraphs 74, 87, 91, 97, 100, and 109 Reasons);

   3.8 The evidence of the [mother’s] treating health professional of her opinion that 'unsupervised contact in any form will ... risk ... trigger[ing] the Mother's PTSD symptoms' (paragraph 406 Reasons);

   3.9 That the orders made the subject of this appeal contemplate ongoing, regular and direct communication between the parties via email.

2. Although Ground 3 at the same time complains in respect of a lack of sufficient weight, or significant regard, it was conceded that such criticisms did not amount to a recognised basis of challenge to the judgment, and so the complaint remained one as to inadequacy of reasons.

   Challenges as to reasons

3. The requirement for the giving of reasons is a fundamental requirement of the exercise of the judicial function, as it both demonstrates that justice has been done, and enables the proper challenge of a decision. The content required varies depending upon the circumstances of the case, but is that which makes apparent how the decision was arrived at (see Bennett and Bennett (1991) FLC 92-191 at 78,266). It is not required to give reasons regarding every argument, nor to perform a microscopic analysis “if, in all the circumstances, it is clear that the trial judge has considered and evaluated the relevant evidence, taken into account all relevant factors and, importantly, has considered the ultimate welfare of the child as the paramount consideration” (A v J (1995) FLC 92-619 at 82,230).

   The disclosed reasons

4. As noted above, this ground sat uncomfortably with Ground 1 which was, by its character, reliant upon the clarity with which the primary judge reasoned as to the risks associated with time between the child and the father.

5. There can be no confusion as to the consideration of the primary judge, nor of the central reasoning process by which he examined the interplay between the various risks that had been factually established.  There was clarity in the process of weighing the various matters, and in balancing the benefits of a relationship with the father against the various forms of risk posed by the father, and finally in carefully examining how those risks might be ameliorated in order to secure the best interests of the child.

6. In this instance it is apparent how the primary judge reached his conclusion.  These grounds should be rejected.

   GROUND 4

7. Ground 4 was directed at part of the conclusion reached by the primary judge, asserting that it was manifestly wrong.  It was in the following terms:

   That His Honour's discretionary decision to impose 'recognition contact' conditional upon professional supervision on a permanent ongoing basis miscarried in that on the facts as determined by His Honour, and taking the risk of exacerbation of the [mother’s] mental health at its highest, that requirement of the orders comprised a disproportionate and manifestly unjust exercise of discretion.

8. This ground was pursued in the broader context that, although the father opposed such an outcome, the father did not challenge the conclusion reached that the time he would spend with the child would be professionally supervised indefinitely.   Such a result was the consequence of the risks identified to flow from time with the father.  The manifest wrong was argued to arise on the added restriction of the frequency to recognition only time.

9. However, the reasoning disclosed by the primary judge demonstrates why such an additional restriction is in the child’s best interests, in order to ameliorate the adverse impact upon the mother’s parenting capacity whilst still retaining some benefits of relationship between the child and the father.  Those reasons dispel the notion that the outcome is manifestly wrong or unjust, flowing as they do as consequences of the facts found by the primary judge following the contested hearing of the matter.

10. This ground should be rejected.

    CONCLUSION

11. No ground of appeal has been made out.  It follows that the appeal must be dismissed.

    COSTS

12. Although the starting point in considering costs pursuant to s 117 of the Family Law Act 1975 (Cth) (“the Act”) is that each party should bear their own costs, the wholly unsuccessful nature of the father’s pursuit of the appeal is a circumstance that, pursuant to s 117(2A) of the Act, justifies, in this case, departure from that course (see Penfold v Penfold (1980) 144 CLR 311).

13. In the event that the appeal failed, the father accepted the appropriateness of the quantum of costs pursued by the mother, in the sum of $37,721.08, and an order will be made for that sum.

    The costs of the ICL

14. The ICL also pursued costs against the father in the event that the appeal did not succeed.

15. Section 79 of the Judiciary Act 1903 (Cth) picks up s 42 of the Legal Aid Commission Act 1979 (NSW) which provides that:

    A court or tribunal which may order the payment of costs in proceedings before it shall, where a legally assisted person is a party to any such proceedings, make an order as to costs in respect of the legally assisted person as if he or she were not a legally assisted person.

16. This entitles the Commission to pursue costs at the scale provided for in Sch 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), even where the payment incurred by the Commission falls below that scale (as it invariably does).

17. In this instance the Commission merely sought an order in accordance with the Commission’s own scale at $4,356, an amount which is far less than what would be allowed at the Court’s scale.  Despite deficiencies in the preparation of the ICL’s costs schedule, sensibly there was no dispute as to the meagre amount sought.

18. An order for costs will be made accordingly.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Gill and Hartnett.

Associate:  

Dated:       1 November 2021