RILAK & TSOKAS
[2017] FamCAFC 26
•27 February 2017
FAMILY COURT OF AUSTRALIA
| RILAK & TSOKAS | [2017] FamCAFC 26 |
| FAMILY LAW – APPEAL – CHILDREN – Best interests – Unacceptable risk of harm – Credit – Weight – No error established. FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Whether court should have ordered an updated single expert report – Adjournment – Party’s absence from court – Cross-examination of single expert – Disqualification – Procedural fairness – No error established – Appeal dismissed – Appellant mother to pay costs of respondent father. FAMILY LAW – APPLICATION IN AN APPEAL – Application to adduce further evidence on appeal – Application dismissed. |
| Family Law Act 1975 (Cth) s 93A(2) |
| CDJ v VAJ (1998) 197 CLR 172 |
| APPELLANT: | Ms Rilak |
| RESPONDENT: | Mr Tsokas |
| INDEPENDENT CHILDREN’S LAWYER: | Peter Baker Solicitor |
| FILE NUMBER: | SYC | 2062 | of | 2010 |
| APPEAL NUMBER: | EA | 183 | of | 2015 |
| DATE DELIVERED: | 27 February 2017 |
| PLACE DELIVERED: |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, Aldridge & Cronin JJ |
| HEARING DATE: | 26 September 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 November 2015 |
| LOWER COURT MNC: | [2015] FamCA 1235 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr de Robillard (direct brief) |
| COUNSEL FOR THE RESPONDENT: | Mr Levy |
| SOLICITOR FOR THE RESPONDENT: | Watts McCray Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Livingstone |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Peter Baker Solicitor |
Orders
The appeal be dismissed.
The Application in an Appeal filed 22 September 2016 be dismissed.
The appellant mother is to pay the costs of the respondent father as agreed or, in default of agreement, as assessed.
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 Rilak & Tsocas 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 SYDNEY |
Appeal Number: EA 183 of 2015
File Number: SYC 2062 of 2010
| Ms Rilak |
Appellant
And
| Mr Tsokas |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Ms Rilak (“the mother”) appeals against parenting orders made by Loughnan J on 13 November 2015. His Honour ordered that B XXX (“the child”), as she was known at the time of the hearing, live with Mr Tsokas (“the father”) who was to have sole parental responsibility for her. The child was to spend time with the mother, no more than once a week, as arranged and supervised by a contact centre. The father was authorised to apply to the Registrar of Births, Deaths and Marriages to alter the child’s surname to Rilak-Tsocas without requiring the consent of the mother.
The orders effected a significant change for the child who had up until the time of the orders lived with the mother and spent limited time with the father. The significant factor that led to this change was the primary judge’s finding that there was a grave risk to the child of psychological abuse if the child remained in the mother’s care. Whilst the appeal raised a number of issues, the submissions focussed primarily on matters concerning the single expert psychiatrist who gave evidence in the proceedings.
An Independent Children’s Lawyer (“ICL”) was appointed and supported the father’s position during the trial and also appeared in the appeal and opposed it being allowed.
Background
In order to understand the appeal, it is necessary to set out in some detail a number of events that occurred leading up to and during the hearing before the primary judge.
At the time of the hearing, the mother was 48 years old and the father 57. They met in August 2008, commenced living together in November 2008 and were married in December 2008. They separated in February 2010, a fortnight after the child was born.
The mother commenced property proceedings in the Federal Magistrates Court on 7 April 2010 and amended them to include parenting proceedings in September 2011.
The father saw the child sporadically until 5 September 2011, when Federal Magistrate Sexton ordered that the child spend two hours a week with him, in a park, unsupervised but with the mother remaining in the vicinity.
On 6 December 2011 the proceedings were transferred to the Family Court of Australia.
From 3 February 2012 the child commenced to spend one hour each alternate week with the father supervised at a contact centre, in addition to the time in a park.
On 11 February 2013 Rees J ordered that the child spend unsupervised time with the father every Saturday between 9:30 am and 3:30 pm.
The final hearing commenced on 27 January 2015. On 29 January it was adjourned part heard to 20 May 2015.
At this time the mother was living in E Town and the father in Suburb K. In March 2015 the mother asked the father to pay her $50 per week towards the cost of petrol or that he collect the child from E Town. His response was to reject both suggestions and to propose that he collect the child from school each Friday and return her to school the following Monday. This would have effected a significant change in the parenting arrangements. The mother did not agree.
The mother asserted that on 28 March 2015 the child told the mother that she had been sexually assaulted by the father. On 2 April 2015 the mother notified the Department of Family and Community Services. The child was interviewed twice by the Joint Investigation Response Team (“JIRT”). On 18 May 2015 JIRT advised that they did not have sufficient evidence to support a prima facie case against the father. Accordingly, no action was taken against him.
The hearing resumed on 20 May 2015. The issues in the hearing were expanded to include the mother’s allegations and the JIRT interviews. Arrangements were made for Dr C, the psychiatrist appointed as the single expert, to attend the Court the following day to read the new material, view the JIRT interviews and to be cross-examined.
On 21 May 2015 a difficulty arose. The primary judge disclosed to the parties that a member of his staff had accepted an offer of employment with the firm of solicitors representing the father.
Late that day the solicitor for the mother informed the primary judge that an application would be made for his Honour to disqualify himself for that reason. After considerable discussion as to how the hearing might proceed, his Honour decided that the better course was to take the evidence of Dr C pro tem and to hear the mother’s application at a later date.
At 3:30 pm on 21 May 2015 the mother’s solicitor commenced to cross‑examine Dr C. This continued to 5:00 pm when the matter was stood over to the following day to enable Dr C to complete her evidence. The mother’s solicitor indicated at that time that, subject to any matters that might arise overnight, she had completed her questioning.
The following day the mother’s solicitor announced that her instructions had been withdrawn. The mother then informed the Court that she wished to press the disqualification application immediately and objected to the evidence continuing until it had been determined. The matter was stood down so the mother could speak to her solicitor, who had remained in court.
Later in the morning, the mother’s solicitor informed the primary judge that her instructions were to place two applications before the Court and then to withdraw. The first application was for the disqualification of the primary judge and for an injunction restraining the father’s solicitors from continuing to appear for him. The second related to financial matters (the parties’ property proceedings were still current).
After identifying the applications, the mother’s solicitor withdrew. The mother immediately pressed the recusal application and, again after considerable discussion, was informed by his Honour that the application would be heard at the conclusion of Dr C’s evidence.
The mother was then asked if she had any further questions for Dr C. The mother replied that she was not comfortable about continuing the proceedings and that she was aggrieved about the employment of the judge’s staff member and the conduct of the judge and the father’s solicitors.
The mother did not take up the opportunity to question Dr C. She left the court. The father and the ICL proceeded to question Dr C in her absence.
At the conclusion of that evidence, the father made an oral application for orders providing for the immediate removal of the child from her mother’s care and for her to live with the father.
After hearing submissions from the father and the ICL, the primary judge declined to order an immediate change in the child’s residence. The oral application was fixed for an interim hearing on 2 June 2015. The primary judge ordered the mother to attend the court on that day and to deliver the child to child dispute services.
The mother attended court on 2 June and appeared for herself. She made an application for the judge to disqualify himself (on the basis of the employment of his staff member) and for an injunction restraining the father’s solicitors from continuing to act for him. Both applications were refused. It is useful to record here that the mother appealed from that refusal. The appeal was heard on 22 June 2015 and dismissed on 24 June 2015 (Rilak & Tsocas [2015] FamCAFC 120).
The primary judge then proceeded to hear the father’s interim application. The mother participated in the hearing. Dr C gave evidence by telephone. She was asked questions by the mother. The hearing did not conclude on 2 June and was finalised on 5 June 2015. The father’s application for a change of residence was refused but orders were made for the child to spend unsupervised time with the father from Friday afternoon until Monday morning.
The mother appealed from those orders. At the time the primary judge pronounced his final orders, the appeal had not been listed for hearing.
On 6 July 2015 the matter was again before the Court for directions. The mother requested that Dr C be recalled for further cross-examination by her. His Honour ordered that, in the event the mother secured payment of the expert’s fees of $1,980 by payment of that sum to the ICL, Dr C could be recalled at the resumption of the hearing on 4 August 2015.
When the hearing resumed on 4 August 2015 the mother was represented by counsel. The Court was informed that the mother now proposed that the child should spend equal time with each parent, in lieu of the limited supervised time with the father she had hitherto proposed.
Counsel for the mother announced that she wished to cross-examine Dr C. As the mother had not provided the security for the expert’s fees, the application was refused.
The hearing concluded on 7 August 2015, subject to some later written submissions on the issue of vaccination.
Application to adduce further evidence on the appeal
At the hearing of the appeal, the mother was granted leave to file an Application in an Appeal seeking to adduce evidence on the appeal.
The gist of the proposed evidence was that the parenting orders have been entirely unsuccessful, because the child has not spent any time with the mother since they were made.
Counsel for the father accepted that this was so, but not for the reasons asserted by the mother. He opposed the application, submitting that this Court was not in a position to resolve the controversies raised by the evidence and that if the mother wished to pursue these matters that, subject to the principles in Rice and Asplund (1979) FLC 90-725 at 78,905-78,906, they should be raised in fresh parenting proceedings.
Section 93A(2) of the Family Law Act 1975 (Cth) provides that the Court may, in its discretion, receive further evidence in an appeal.
In CDJ v VAJ (1998) 197 CLR 172, McHugh, Gummow and Callinan JJ referred to this section and said at 203-204 and 217:
114. No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
…
117. The discretion to admit further evidence obviously needs to be exercised with much care in parenting cases. The decision as to who should have the day to day care of children will so often be an agonising one, as indeed it is in the present case where both parents are anxious for their children's welfare. The advantage said to be attached to the opportunity of a judge at first instance to see and hear the witnesses on issues of credibility and the like may perhaps on occasions be exaggerated. Nevertheless, those advantages are likely to be real ones in a parenting case heard by a specialist judge whose decision will involve a choice of who will be a better “custodian” of the children: sometimes either parent would be an excellent choice, and often neither would be ideal.
118. The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations. So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.
…
148.…The power conferred by s 93A(2) is not a solvent for correcting orders that the Full Court regards as unsatisfactory but which contain no appealable error. New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the s 93A(2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A(2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.
Thus, the power to admit evidence is restrained. Only rarely will controversial evidence be received. Evidence of events that have occurred after the orders appealed from, adduced to show that there have been changes in circumstances, will not lightly be received.
The proposed evidence refers to events that occurred after the orders were made and much of it concerns the difficulties that arose in the implementation of the orders.
Orders 8-10 made by the primary judge on 13 November 2015 provided:
(8)Unless the parents otherwise agree in writing, subject to Order (9) herein, the child shall spend time with [Ms Rilak] (“the mother”) at such times and on such dates as may be arranged with and supervised by Interrelate, [Suburb J].
(9)Unless the parties otherwise agree in writing, the mother’s time with the child pursuant to Order (8) herein shall:
(a)commence not before 14 days after the child commences living with the father;
(b)occur on a Saturday or Sunday, not more than once per week;
(c)occur at the equally shared expense of the parents; and
(d)be suspended in the event the father elects to take the child outside the Commonwealth of Australia pursuant to Order (21).
(10) For the purpose of Order (8) above, each party shall:
(a)contact Interrelate within seven days of the date of these Orders and arrange an appointment for an intake assessment;
(b)attend the assessment;
(c)comply with all reasonable rules of Interrelate; and
(d)comply with all reasonable requests or directions of the staff of Interrelate.
On 20 November 2015 the primary judge granted a conditional stay on aspects of the orders at the instance of the mother (Rilak & Tsocas (No 6) [2015] FamCA 1020).
The matter again came before the Court on 4 December 2015 because, as his Honour recorded, the orders had proven to be unworkable. The mother asserted that she could not afford to pay the fees of the contact centre nominated in the orders and proposed a cheaper alternative. The father said he would look into and consider the alternative. This led to the primary judge making the following order:
1.Order 4 made on 20 November 2015 being a conditional stay of orders made on 13 November 2015, is varied in the following ways:
…
d)Otherwise the times are to be exercised in accordance with Order 4 made on 20 November 2015 save that the costs of supervision shall be equally shared between the parents and the parties are at liberty to change by agreement the supervising agency to […] or another suitable agency;
Before us, both parties agreed that no agreement had been reached and that the child, most unfortunately, has not spent any time with the mother since the orders were made on 13 November 2015.
The orders of 13 November 2015 also provided for the parties to attend on a family therapist. This too has not occurred.
The mother’s evidence attempts to demonstrate that she has taken all reasonable steps to give effect to the orders and that the failure of the child to spend time with her was solely due to the father’s deliberate acts. To that end, she annexed many emails, mainly from her to the father but also some from the father to her. It can be gleaned from those emails that the father did not always agree with the assertions of fact made by the mother. That was confirmed by his counsel in his submissions.
The issue as to why it was that the child had not spent any time with the mother is thus controversial and not one that is apt to be determined by an appellate court.
If the orders should be varied due to changed circumstances, then that is a matter for a fresh parenting application to be heard by a trial judge. That this may become necessary was considered by the primary judge (at [376]).
For these reasons, the application to adduce further evidence will be refused.
The appeal
Before we turn to the grounds of appeal, it is necessary to make a number of observations about the way in which the appeal was presented, which unfortunately hampered its ready disposition.
A Notice of Appeal was filed on 17 November 2015, raising 24 grounds of appeal. An Amended Notice of Appeal was filed on 15 December 2015. A Further Amended Notice of Appeal was filed on 9 August 2016. It amended a number of grounds, deleted 10 grounds and inserted three new ones. It has to be said that many of the grounds in the notices were difficult to follow and some appeared to relate to orders other than the ones under appeal.
The mother’s Summary of Argument was filed on 9 August 2016. It did not purport to deal with the 14 grounds within the Further Amended Notice of Appeal. Rather, it dealt with what was described as “three primary and distinct issues regarding the orders made on 13 November”.
The first issue was cryptically said to be:
Recusal and Mistrial since May 2014. His Honour erred in principle in two respects. Such errors would bring the administration of justice into disrepute if not remedied.
We pause here to observe that all issues arising from any failure of the primary judge to recuse himself were properly abandoned during the hearing of the appeal. This was because the only application for the disqualification of the primary judge had already been the subject of an appeal (Rilak & Tsocas [2015] FamCAFC 120). No other application for disqualification had been made. It was therefore not open to the mother to attempt to re-agitate this issue before us.
The second issue identified in the mother’s Summary of Argument was in fact a list of complaints against the primary judge, including that his Honour had a predisposition against the mother, made unnecessary credit findings, did not make proper orders for the “transition period” and that the relationship between the mother and the child had now collapsed.
The third identified issue was the need for the Full Court to receive the further evidence.
As the mother’s oral submissions developed, it became apparent that her counsel did not propose to limit himself to the three issues raised in the Summary of Argument. He was therefore asked to identify which grounds of appeal were being pursued. After quite some discussion, we understood that of the 14 grounds in the Further Amended Notice of Appeal, three grounds (grounds 15, 22 and 24) were not pressed.
Notwithstanding this, very few submissions were directed to specific grounds of appeal. It is therefore difficult to deal with the submissions in an ordered way; we shall group the grounds in terms of the themes that emerged during the appeal hearing and deal with each issue in turn.
Before turning to the issues raised in the appeal, it is necessary to note a further difficulty for us in dealing with the appeal. On 1 March 2016, the mother filed an Application in an Appeal which, among other things, sought that the Court provide transcript for the entirety of the first instance proceedings “free of charge”. At the outset of the hearing of the appeal, however, counsel for the mother indicated that the mother was no longer proceeding with that application.
During the hearing it became apparent that the mother had obtained an extract of the transcript from 22 May 2015, and that many of her submissions with respect to Dr C, the single expert, drew on the transcript. In these unusual circumstances, we ordered a transcript of proceedings for this date as well as for 21 May 2015 and 2 June 2015. We do not, however, have the benefit of transcript from any of the other days this matter was before the primary judge.
The evidence of Dr C and the primary judge’s conduct of the proceedings
Various arguments in the course of the hearing of the appeal centred on the many complaints of the mother about lack of procedural fairness generally and in particular the manner in which the single expert’s evidence was taken and then dealt with by the primary judge. We propose to deal with these complaints under the following grounds:
8. His Honour failed to exercise appropriate care in accepting the evidence of the single expert witness, psychiatrist Dr [C], given the fact that Dr [C] had not spoken to any of the relevant parties since …March 2014 and the fact that there had not been any further report prepared by Dr [C] since her last contact with the relevant parties.
9. His Honour failed to properly consider the fact that Dr [C] had not examined any of the relevant parties after the alleged sexual assault of 28 March, 2015.
14. The Mother was denied basic principles of natural justice and procedural fairness.
17. The mother’s rights for to [sic] fair and impartial proceedings were denied.
18. The Court has denied the mother procedural fairness.
Before we turn to these complaints, we note that at the hearing of the appeal, when the submissions for the father and the ICL were completed, counsel for the mother sought leave to file further written submissions to deal with the father’s submissions on the issues relating to Dr C. Leave was granted.
When the submissions were ultimately received they consisted of 25 pages, together with a separate executive summary of two pages. The Court was of the view that the content of the documents went beyond the leave that was granted. Accordingly, the Registrar was directed to file only pages 3 to 6 of the submissions and to indicate to the parties that the Court would only have regard to paragraphs 10 to 19.
Should an updated report have been obtained from Dr C?
On appeal, the mother submitted that the primary judge erred in not ordering an updated report from Dr C.
Dr C prepared a report dated 28 May 2014. While almost a year had passed by the time she was called to give evidence, as indicated earlier, Dr C attended the court on 21 May 2015 for the purpose of reviewing affidavits and other material that she had not previously seen. The doctor was then to be questioned by the parties.
Dr C gave extensive evidence during the trial.
She was called to give evidence at 2:54 pm on 21 May 2015. She was cross‑examined by counsel for the ICL until 3:27 pm, after which cross‑examination by the solicitor for the mother commenced. At shortly before 4:56 pm, the primary judge suggested to the mother’s solicitor that she may wish to take some instructions overnight and that she could have a further 15 minutes or so of questioning in the morning.
The following morning, the mother’s solicitor withdrew and the mother tried to proceed with her disqualification application, referred to above at [18]-[21]. Ultimately the primary judge indicated that he would continue to hear Dr C’s evidence and invited the mother, if she wished, to continue the cross-examination. She did not do so, and indicated that the proceedings should halt, pending the determination of her application.
Accordingly, at 11:39 am counsel for the father commenced his questioning of Dr C. After questioning by counsel for the ICL, Dr C’s evidence concluded at 1:39 pm. Dr C was recalled on 2 June 2015 and was questioned by the mother.
At no stage, either prior to or during the extended hearing, did the mother seek a further report from Dr C or that she again interview the parties or the child. No questions were asked of Dr C as to suggest such a course was desirable or that her evidence needed to be updated.
The father, however, had earlier sought an updated report from Dr C, by including such an order in a minute handed to the Court on 20 May 2015. While we do not have the benefit of a transcript from that day of the proceedings, it appears that the mother did not consent to that order, as such an order was not made.
On 22 May 2015, after Dr C’s evidence was concluded, there was discussion about the subject matter of the interim hearing to be heard on 2 June 2015. The father was to prepare a minute of the orders he was seeking. In the course of that discussion, the following exchange occurred:
HIS HONOUR: Except that you’ve asked for an order that Dr [C] update her report.
MR LEVY: I don’t think I need to seek – this minute, your Honour, predated Dr [C] giving the - - -
HIS HONOUR: That’s what I – yes.
MR LEVY: Giving the fulsome evidence that she did.
HIS HONOUR: Okay.
MR LEVY: I thought - - -
HIS HONOUR: So that’s another change to the minute.
MR LEVY: Yes.
The hearing was thus conducted on the basis that there was to be no updated report. The mother did not seek one. It is therefore difficult now to assert that a report should have been obtained.
The mother submitted that the primary judge was obliged to order the preparation of a further report despite neither party requesting such an order. In the light of Dr C’s extensive oral evidence and the delay of the proceedings that must have attended the preparation of a further report, we do not see why this is so. Further, such a report would have to be paid for by the parties. There is no evidence that the parties were able or willing to do so. Indeed, the mother failed to pay the fees of Dr C to secure her attendance at the resumed hearing in August.
No error has been identified.
Did the primary judge promote the convenience of Dr C over all other matters?
It is to be recalled that Dr C gave evidence on 21 and 22 May 2015 and 2 June 2015. She would have been required to attend for further cross‑examination by the mother if the mother had lodged the fees for that attendance with the ICL.
In essence, the mother’s complaint is that the primary judge should have heard and determined her disqualification application before proceeding with the evidence, notwithstanding that would have inconvenienced Dr C who, in all probability, would have to have given evidence on another day.
The primary judge was well aware of the expense of Dr C giving evidence in circumstances where each of the parties asserted that they had limited funds. The mother was extended the indulgence of being permitted to have more than one questioner cross-examine Dr C, contrary to the rule of practice that only one questioner is permitted to cross-examine a witness on the behalf of a party: Phillips v Phillips [1966] 1 NSWR 49; GPI Leisure Corp Limited v Herdsman Investments Pty Limited(No 3) (1990) 20 NSWLR 15.
The course taken by his Honour, namely to complete the expert’s evidence before dealing with the mother’s disqualification application, was a course that was open to him, particularly when the basis for the application for his disqualification was not based on his conduct of the proceedings but was, rather, based on the employment of a staff member with the father’s solicitors.
In any event, the course proposed by the mother would have had no effect on the proceedings other than to delay them. The primary judge did not recuse himself – properly, as the Full Court found (Rilak & Tsocas [2015] FamCAFC 120).
Did the primary judge deny the mother procedural fairness by refusing the application for an adjournment made on 4 August 2015?
The submission of the mother was that the primary judge should have granted her an adjournment since she had changed solicitors and her stated position in relation to the orders for the child to spend time with the father had radically altered:
MR De ROBILLARD: ...So we then go to paragraph 30 of the reasons. And that goes to the issue of procedural fairness. And the point is this – that after having changed solicitors, the mother then obtained assistance from the Law Society and Ms Saw of counsel then appeared for the mother pro bono. And the mother then changed her position in relation to a child. Obviously your Honour advised – well not obviously but one can assume it was given – the advice provided by Ms Saw and fresh – a fresh look at the proceedings at the time.
And then, given the fact that Dr [C] had not seen the child for such a long time and, more significantly, not seen child following the allegation of child abuse, which was in March 2015, the mother, through her counsel, then sought an adjournment and that was refused. And not only that but his Honour – and I will take your Honours to more specific paragraphs later – the general proposition is that his Honour then, in his reasons, decided that the mother’s change of position was actually not a genuine change of position and did not reflect her true belief that the child should – there should be shared responsibility and shared contact with the father.
The mother did not provide the Court with the transcript of 4 August 2015; however, we do have the benefit of the primary judge’s reasons for refusing the adjournment, which his Honour delivered orally on 4 August 2015.
In Rilak & Tsocas (No 5) [2015] FamCA 848, his Honour recorded:
3.I expressed some concern to Ms Saw on the basis that the orders the mother now sought seemed to be inconsistent with much of the mother’s evidence relating to allegations of child abuse against the father. I indicated that even if the other parties agreed to the orders the mother now proposed, I would not be in a position to make the orders until that inconsistency was explained.
4.The trial was resuming with the mother’s cross-examination. I indicated to Ms Saw that I thought the most efficient way forward was for her to secure a proof of evidence from her client in relation to any change in the mother’s case and a proof of evidence would allow counsel cross-examining her to have an indication of the evidence that they had to meet. That was done and I requested that there be a minute of order prepared as to the mother’s new position.
The primary judge then described the basis of the mother’s application:
6.The submissions in favour of the adjournment were that the adjournment was needed primarily in [the child]’s best interests, […] being the subject child; the mother had lost an opportunity to resume her cross-examination or to re-open her cross-examination of the single expert in the proceedings; that the mother had had patchy representation; that English is not the mother’s first language; that on the property side of the proceedings, there remained issues of valuation; and given that her solicitor and counsel only came into the matter last week, it was thought necessary for them to order transcripts to understand the evidence that had been given already in the proceedings. It was said that the adjournment may well allow the settlement or narrowing of some issues.
The primary judge concluded:
21.As so often happens in parenting cases, there are a number of risks. Here, from the parents’ point of view, the child is being abused; they just disagree about where it is happening. The father contends and there is some evidence for his concerns – that the mother is abusing the child by attempting or in fact inculcating in her a false memory about sexual assault by him. The single expert was not successfully challenged about her opinion of such a thing. She gave some graphic evidence in relation to the creation of a false memory – in anybody, let alone a young child – about the suggestibility of people and children in relation to representations made to them, and she made the recommendation that I have referred to.
22.Dr [C] might not be accepted on a final basis. Unfortunately, it appears that there will not be any further opportunity to cross-examine her, because the trial is running and because the mother could not meet the condition that I fixed on a previous occasion to secure Dr [C’s] fees. Interestingly, an effort was made through the ICL to remedy that, and Dr [C] would have been available tomorrow, but the mother, who represented through her counsel that she would meet all the fees thrown away of the father and the ICL, was not going to be able to raise $1,900 or thereabouts in order to secure Dr [C’s] fees.
23.So I have the fact that the current arrangement is an arrangement which all of the parties opposed. It is an arrangement that was not fully consistent with the expert’s advice. The mother’s proposal for the adjournment period does not address the concerns raised by Dr [C] or by the father or by the ICL. In those circumstances, particularly because of the need to explore and identify arrangements that are in the best interests of the child [the child], the application for adjournment was refused.
Thus, the primary judge considered the factors that weighed in favour of and against the granting of an adjournment, but ultimately determined that because the mother had failed to adequately explain her change in position and because an adjournment would only compound the delay in finalising the proceedings, the application ought to be refused. Critically, the hearing had commenced in January 2015 and the primary judge found that it should be concluded sooner rather than later in the interests of the child, because the present parenting arrangements were not supported by the parties and not fully supported by the single expert.
It is difficult to discern from the above any procedural unfairness. The fact that the application was unsuccessful does not establish unfairness. The primary judge heard and determined the adjournment application in the ordinary way.
A decision on an adjournment application is a quintessential exercise of discretion. A challenge to such a decision faces a high bar: House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513.
His Honour took all relevant matters into account and was not swayed by any irrelevant ones. Thus this challenge fails.
Was the mother denied procedural fairness by the primary judge because his Honour failed to ensure that the mother received transcript of those portions of the hearing from which she was absent?
As we have recorded, the mother was not present on the afternoon of 22 May 2015, when the father and the ICL questioned Dr C.
Counsel for the mother submitted that despite the primary judge having made an order that the mother be provided with a copy of the transcript, that did not occur and that there was, therefore, a lack of procedural fairness.
It is not clear whether the primary judge did make such an order, although it appears clear that none of the father, the ICL or the Court provided the mother with a copy of the transcript.
On the resumption of the hearing on 2 June 2015, Dr C was questioned by the ICL and the father’s counsel. At the conclusion of that evidence and immediately before the mother questioned the witness, the following exchange took place:
[MR LEVY:] And if at the time that that occurred the mother already had in her possession a transcript of your evidence - just a moment, Dr [C]. Your Honour, I didn't make a note of it. My instructing solicitor thought that your Honour had made an order for a transcript to be taken out and supplied to the mother of Dr [C's] evidence and ---
HIS HONOUR: I'm not sure whether it reached the mother or not.
MR LEVY: Right.
HIS HONOUR: Yes. I certainly ordered that it be taken out and I've got a feeling somebody has seen it. I haven't seen it, but I will just check. I think the mother has had access to the file in the last day or so, so it might be that she has had access to it that way, but I can't say.
The mother stayed silent. She then questioned Dr C. At no time did she complain that she had not received the transcript or that its absence was hampering her in any way.
Her counsel accepted that she has obtained a copy “only since the appeal has been on foot”.
The mother chose to remove herself from the hearing on 22 May 2015. Notwithstanding, it appears that directions were made for her to be provided with a copy of the transcript of that day. Whilst that order appears not to have been complied with, no complaint about that was made by the mother. She could have informed the Court whether she had or had not seen the transcript when she inspected the court file shortly before 2 June 2015.
It is therefore difficult to see how the mother was denied procedural fairness in the manner suggested.
Did the primary judge unfairly take into account evidence about the mother’s demeanour in court?
The mother also submits that it was unfair of the primary judge to permit Dr C to give evidence of the mother’s demeanour in Court on 22 May 2015.
In response to a question from counsel for the ICL on 2 June 2015 about whether anything had arisen since 22 May 2015 which was a cause for concern, Dr C said:
[COUNSEL FOR THE ICL:] Could you say why, Dr [C], that concerns you?
[DR C:] Yes. I - I - well, I think I indicated in court - well, I know I indicated when I was in court that I had some concerns about how upset I thought Ms [Rilak] had been when she spoke to the judge on Friday morning, and I think she dismissed her - her solicitor and couldn't be reassured about the legal matters which had been discussed the day before. And she had said she just couldn't get past it. She - she - it was on her mind. And she wasn't able to stay in the court. She left the court. She didn't want to be - to - to hear the rest of my cross-examination and she just kept repeating she wanted the - the judge to dismiss himself and for the matter to - I suppose to - to be set aside or end or something. And I think at the time I said I was concerned about her being distressed although his Honour pointed out that he - she hadn't appeared distressed to him, but I - I certainly felt that for someone in her position dismissing her lawyer in the situation where there was - which was extremely serious for her.
There was the question - I think the question of whether her daughter had been sexually abused had - had come up in the previous month or so. There was this application for - by the father to have the - the child live with him. I was concerned about her levels of social supports. I was aware she - she was very close and supported by her family; that they were in another country. And these events all combined made me quite concerned about her - her mental state which is why I inquired with the ICL about - last week whether the - anyone was aware of where [the child] was and - and what had happened with the mother.
I think at that point last week I made comments to the ICL that had Ms [Rilak] been my patient, as opposed to, you know, someone I assess for medico-legal reasons, I would be closely monitoring her because I would concerned how she was coping. A particularly important element of coping is whether a person still had hope that they could turn the situation into something similar to what they wanted, or as they wanted, as opposed to had she sort of given up hope with the process, the legal process? Did she feel some despair about whether she would get the justice she was seeking and the outcome she was seeking?
I mean, the other disturbing aspect of what I had heard in court, and I wasn't sure I had understood it quite right, but as well as wanting to dismiss the judge she had also talked about dismissing - dismissing the father's lawyers and made some comment about the children's lawyer not talking to her. So I would - I sort of thought what's happening for Ms [Rilak]? Does she feel isolated? Does she feel alone? Is there any aspects of someone who's starting to have a - have a - have such a - a mistrust of the system that she was in that she would opt out of it by - and so these are the sorts of concerns I had last week and I spoke to the ICL about that.
It is to be noted that the primary judge observed on 22 May 2015 that the mother did not appear to be distressed in an exchange with the father’s counsel. That exchange was:
[MR LEVY:] I take it that still remains your view? --- Indeed. And just to respond to what his Honour just said, I’m very troubled by seeing Ms [Rilak] in court today. I have – do have concerns about her ability to be able to – to tolerate the situation if they don’t go according to the way she believes they should go. She clearly found it intolerable to stay in court, and appeared to be very distressed about that. I suspect she also is very ---
HIS HONOUR: She didn’t seem distressed to me.
MR LEVY: No.
HIS HONOUR: I didn’t detect any – any distress in her. I – I think she – I think she very dispassionately, to my mind – and clinically and well – said that she – in her mind she couldn’t go past the matters that she had been told about. And they just consumed her mind and she was – she was concerned about the fairness and appropriateness of the – of the process. That’s what I hear her say. But I didn’t detect any distress in her at all. I thought it was a very calm withdrawal and – did – did you see something different to that? --- I did, your Honour. Yes.
You did? --- Yes.
Okay. So what did you see? --- Well, I – I was concerned that she wasn’t able and – unable to just sit with the proceedings. Even to sit with listening, as you requested in
– on a number of occasions – for her to just sit with the uncertainty about what was going to happen. To get over my cross – and I suspect she didn’t want to hear me speak further and
No? --- be cross-examined.
Well, there’s a – there’s a colder way of looking at that, and that is, she doesn’t like the way things are going? And that’s my concern. And - - -
But that’s not an emotional thing or an upset thing, is it? You’re the expert about this. It’s just from my point of view? I – I – sure. There – I mean, there was no – there was no – there weren’t any tears or – we didn’t see that type of
No? --- emotional distress there. But just for someone to feel they needed to withdraw - - -
Not sitting with her world view? --- Not being able to sit and tolerate something else happening that wasn’t around her.
Yes? --- Really, to me – I mean, either Ms [Rilak] is proving a point by not being able to do it. Is this is her – her normal way of functioning. She’s unable to tolerate anything that doesn’t go along with her, and sort of stays very inflexible, and won’t participate in something. Or she’s so highly stressed by what’s happening that she’s in that same position. And that’s why I used the word “distressed.”
Okay. Yes? --- Stressed. Distressed. Is that any ounce of ability to be flexible, to just sit and – and have something – have a process and – it’s not like it’s – this is a foreign experience to her. She says she has been in and out of court for years.
Sure? --- Far too long.
But as she said, you know, she facilitated the Saturday visits month after month for more than a year. I mean, there were problems but presumably they were orders that she didn’t approve of. She’s not in jail, you know, so she’s living within the basic rules of our society? --- Indeed.
It was submitted that his Honour “unfairly imposed” on the witness to express his view that the mother did not appear to be distressed to him. As can be seen from the above exchange, that observation did not deter Dr C from continuing to express her view that the mother appeared to her to be distressed.
It must be emphasised that no objection was taken to Dr C’s evidence on 2 June 2015 by the mother. The matters raised by her evidence on that day and on 22 May 2015 were clearly relevant to the issues before the Court. We see no unfairness in these being ventilated.
Nevertheless, the primary judge did not refer to these matters in his reasons and we infer therefore that they carried very little or no weight.
No error is established.
Was Dr C an expert on child sexual abuse?
The mother submits that the primary judge erroneously accepted that Dr C was an expert on child sexual abuse.
The mother’s submission appears from the following exchange:
MR de ROBILLARD: Thank you. Your Honour, the – from my reading of the transcripts it seems clear that my client, when she was on the phone on 2 June, did try to challenge Dr [C’s] expertise in relation to the specific issue of children who had been sexually abused as opposed to children who had been abused generally.
ALDRIDGE J: Yes, but what flows from that?
MR de ROBILLARD: Well, what flows from it is we say that the – that Dr [C] was not an expert his Honour could have relied upon in relation to any issue to do with sexual abuse if there had been a chance that there had been such an event. Now, most importantly, my client instructs me that there was an exhibit that was the exhibit of Dr [BT] which was exhibit 54 and Dr [BT] was the expert in sexual abuse at the hospital that first examined the child.
MAY J: Yes.
MR de ROBILLARD: And in the short time I’ve had today, it seems that at no time was that report put to Dr [C].
The mother questioned Dr C, who is a child psychiatrist, about her expertise on 2 June 2015 as follows:
[MS RILAK:] So, Dr [C], you are not an expert on the sexually abused children, are you?
[DR C:] Well, I would dispute that, and I have certainly got many years of experience in working with abused children, working with adults who have been abused when they were children, attending ongoing education, you know, conferences, reading, discussions with other clinicians about child sexual abuse and doing my own assessments on child sexual abuse allegations. So if you count 30 years of being a child psychiatrist and being involved in - in these issues, I think that entitles me to say I have some expertise.
[MS RILAK:] Dr [C], so in other words you are not an expert in sexually abused children, are you?
[DR C:] I've answered that in - to say that I would be considered an expert in child abuse because of my experience over - in fact, more than 30 years because I actually did some paediatrics before I did child psychiatry. So for many years I have studied and been involved in this area, and I believe that qualifies me to say I have expertise.
[MS RILAK:] Dr C, when was the last time you received the expertise of certificate in the field of sexually abused children or when you have done a further education in sexually abused children?
HIS HONOUR: Could you help us with the particular qualification you're looking for?
MS [RILAK]: I'm looking for the expert - - -
HIS HONOUR: Which institution?
MS [RILAK]: I'm looking for the expert of victimologist who has a certificate that he has done any further studies or any further program or anything - - -
HIS HONOUR: Okay. Do you know an example of the course that you're interested in?
MS [RILAK]: It's victimology. It's victimology. It's a - - -
HIS HONOUR: And which university gives this?
MS [RILAK]: It's a specialisation in sexually abused children and their reaction - - -
HIS HONOUR: Which organisation gives this certificate?
MS [RILAK]: I don't know. There are postgraduates - - -
HIS HONOUR: Just give an example of one institution that gives this certificate.
MS [RILAK]: I don't know. I'm asking Dr [C].
HIS HONOUR: Well, there mightn't be one, ma'am. That's the problem. That's what worries me.
MS [RILAK]: It's a postgraduate study at the universities and it's with the specialisation of victimologist.
HIS HONOUR: Victimology. Doctor, does that ring a bell? Does such a course you've - - - ? --- No. No, your Honour. I've - I've never heard of victimology.
MS [RILAK]: May I just suggest, Dr C, that victimology deals with children that are sexually abused?
The primary judge was entitled to rely on the evidence of Dr C in finding that she was qualified to give her evidence.
Importantly, however, we do not see the relevance of this issue. Whilst it appears that the mother continued to believe that the father had sexually abused the child, she did not ask the primary judge to make a finding of such abuse or to find that there was an unacceptable risk of harm to the child if she was in the care of the father.
No error is established.
Should Dr BT’s report have been put to Dr C?
As foreshadowed in the exchange set out at [105], it was submitted that Dr C’s evidence was flawed because she had not seen and was not shown a report from Dr BT, a Clinical Associate Professor at a sexual health service.
On 10 April 2015, at the request of JIRT, Dr BT conducted a genital examination of the child. The examination revealed no abnormalities. The Professor noted that when the child had first been examined at E Town Hospital six days earlier, a small rash had been noted. A swab established that a bacterial infection was present.
The report of Dr BT included the following observation: “[t]he absence of injury does not mean that touch has not occurred”. That statement must, of course, be correct. The statement is not evidence of sexual abuse. Therefore, it matters not whether this report was put to Dr C.
In any event, neither the mother’s solicitor nor the mother herself was precluded from showing Dr BT’s report to Dr C or from asking her questions about it.
Was the mother’s questioning of Dr C unfairly curtailed?
The mother submitted that she was prevented from completing her questioning about Dr C’s expertise. We can find only two occasions when his Honour intervened as to the mother’s questioning of this witness.
Immediately after the first occasion – that is, during the mother’s questioning of Dr C, which we have set out at [105] – his Honour said:
HIS HONOUR: Do you have a question for the doctor, ma’am?
MS [RILAK]: I do. I do have a lot of questions.
HIS HONOUR: Yes, okay. Well, now would be the time.
MS [RILAK]: On what are you basing your statement if repeated questions are put to the child it’s emotional abuse? What is the base that you are making these assertions?
The last question was answered by the witness and the mother’s cross-examination of Dr C continued.
Later that day, just before 4:12 pm the primary judge closed the evidence for the day because he wished to ensure that the mother collected the child from child dispute services before it closed at 4:30 pm.
The mother complained and said that she had many more important questions to ask. His Honour’s response was to indicate that the questioning could perhaps continue on the following Friday, but only in the event that Dr C could make herself available.
As we have said, later orders permitted the mother’s questioning of Dr C to continue if provision was made for the payment of her fees. The mother did not lodge the fees with the ICL as required and Dr C was not required to attend for further questioning.
We are quite unable to see where the primary judge curtailed the mother’s questions at all, let alone unfairly. None of the mother’s submissions identified at which points during the proceedings his Honour’s unfair interventions were said to have occurred.
Should the report of Dr C have been admitted?
The Further Written Submissions of the mother asserted:
15. Dr [C’s] Report was not admissible into evidence because it was not compliant with mandatory provisions of relevant Family Law Rules (2004) (“Rules”):
(a)no annexure note (as mandated) identifying and verifying the documents which Dr [C] took into consideration;
(b) mandatory affidavit of ‘Single Expert Witness’ not executed in accordance with the mandatory provisions of the Rules;
(c) compliance with the mandatory provisions had not been waived;
(d)the process for exchange of documents with Dr [C] was highly unsatisfactory. At the hearing on 21 and 22 May, 2015 it became clear that Dr [C] had not kept any or any proper record of the documents upon which her Report and evidence should have been based.
…
19. The Instructions for preparation of the report were flawed:
(a) on 4 November, 2013 (at a hearing specially convened to determine the Mother’s challenge to Dr [C’s] alleged expertise, his Honour required Mr Baker, “The Independent Childrens’ Lawyer to settle a letter of instructions to Dr [C] with the assistance of the parties…”.;
(b)Mr Baker’s letter of instructions was sent on 24 February, 2014 “prior to approval by the parties”.
(c) Mr Baker’s letter of instructions did not provide Dr [C] with any reading material except for a list of filed documents. The List is not in evidence.
(d) There is no evidence of Mr Baker having provided material to Dr [C].
(e) To the contrary, Mr Baker asked Dr [C] to request documents of her own choosing from the parties during the proposed interviews.
(f) On specific instructions from the Mother: the List of documents at AB 1339 was prepared by the Mother (not Mr Baker) and sent directly to Dr [C] by mail on 2 April, 2014.
(g) The Father attended Dr [C’s] room to deliver documents on 1 April, 2014.
(h) It is submitted it was inappropriate for the ICL to identify issues attributable to the Mother in his 17 March, 2014 letter. This already added unfair ‘colour’ to the instructions.
(i) It was also inappropriate for the ICL to advise Dr [C] that “the Father will be funding the report initially…”. Funds had already been deposited into the ICL’s trust account.
(j) There is no evidence that Dr [C] read the parties’ main affidavits filed in December 2014 and January 2015. Please refer in particular to the Mother’s affidavit at paragraph 70.
(Original emphasis; footnotes omitted)
The mother also submitted that the primary judge erred in admitting the report into evidence after Dr C had been cross-examined.
The report was tendered by the ICL on 7 August 2015 and received as an exhibit. The mother does not assert that she objected to that report at that time and has not produced the transcript that indicates that it was the subject of an objection.
It is not likely that the mother objected to the report. Dr C gave evidence before her report was tendered. Both the mother’s solicitor and the mother cross-examined Dr C without objecting to her giving evidence. That, of course, would have been the obvious course because, if her report was rejected, there would have been no basis for Dr C to be cross‑examined. No indication was given that the report would be objected to, if and when tendered.
It must also be recalled that the crucial evidence of Dr C, which was heavily relied upon by the primary judge, was contained within her oral evidence and not in her report.
Further, it is now too late to take these points. Had they been taken in a timely manner at the hearing, they may have led to further evidence being given: Metwally v University of Wollongong (1985) 60 ALR 68.
These grounds have not been made out.
That the orders of 13 November 2015 were not in the best interests of the child
By grounds 1 and 2, the mother contends that the orders made by the primary judge were not in the best interests of the child:
1.The final parenting orders have achieved the contrary to what his Honour had determined would be the best interest of the child.
2.The Court Orders are:
a.not in the best interest of the child;
b.in breach of child’s basic rights under provisions of the Family Law Act 1075 (“the Act”);
…
(As per the original)
The gravamen of this challenge, as we understand it, is that since the primary judge made the orders of 13 November 2015 the relationship between the mother and the child has deteriorated to such an extent that the Court should allow the appeal and order a rehearing. Essentially, the mother argues that the orders have proven completely ineffective, as she has not spent any supervised time with the child since the orders were made.
Counsel for the mother indicated that many of the submissions in support of this challenge would rely in large part on the proposed further evidence discussed above. As we have refused the mother’s application to adduce further evidence, those submissions fall away.
The main aspect of this challenge that remains, then, is the asserted failure of the primary judge to make appropriate orders for the transition of the child from the mother’s care to the father’s and for an end to supervision.
The relevant orders were:
(8)Unless the parents otherwise agree in writing, subject to Order (9) herein, the child shall spend time with [Ms Rilak] (“the mother”) at such times and on such dates as may be arranged with and supervised by Interrelate, [Suburb J].
(9)Unless the parties otherwise agree in writing, the mother’s time with the child pursuant to Order (8) herein shall:
(a)commence not before 14 days after the child commences living with the father;
(b)occur on a Saturday or Sunday, not more than once per week;
(c)occur at the equally shared expense of the parents; and
(d)be suspended in the event the father elects to take the child outside the Commonwealth of Australia pursuant to Order (21).
(10) For the purpose of Order (8) above, each party shall:
(a)contact Interrelate within seven days of the date of these Orders and arrange an appointment for an intake assessment;
(b)attend the assessment;
(c)comply with all reasonable rules of Interrelate; and
(d)comply with all reasonable requests or directions of the staff of Interrelate.
In relation to the form of these orders, the primary judge said:
372.The ICL and the father propose that the mother’s time with [the child] be supervised at Interrelate at [Suburb J]. The ICL proposes that time occur at least once a week and the father proposes that it be no more than once a week. The parties will be at the convenience of the centre but I will express the order as sought by the ICL. Often there are waiting lists for supervision places at contact centres. I was not told about the availability of the [Suburb J] centre and trust that those proposing that arrangement have addressed that issue.
373.An issue that was not addressed during the trial was the duration of the requirement of supervision. In the normal course it is neither desirable nor practicable to leave supervision arrangements in place indefinitely. While contact centres protect against certain behaviours they are necessarily an artificial environment. It is likely that over time a growing child, let alone her parents will become frustrated and very dissatisfied with the limited range of interactions available in that environment.
374.That can be addressed without further recourse to the Court if the parents agree and I will express the orders to be “unless the parents otherwise agree in writing”. However, given the history I am not sanguine about the parents reaching a sensible compromise on this or any other issue.
375.The parents and [the child] have suffered through five years of tense litigation and I am reluctant to invite them back to review the situation after a specified period. On the other hand, it not having been the subject of an application, evidence or submissions during the trial, in my view I am not free to specify a time by which the requirement for supervision should be lifted. Indeed, one would like to have a basis for confidence that the mother’s future approach would be more child focussed and/or that the child’s level of maturity and her relationship with her father were such that supervision could be removed. I cannot pretend that the problems will necessarily be resolved. In some cases the supervision does its job and the requirement can be lifted. In other cases the supervision becomes a burden for a child but the need for it remains and it is necessary to terminate the parent’s time altogether.
376.Doing the best I can, I will express the orders in indefinite terms but would indicate to the parents that they can and are obliged to agree to changes in the orders if it is apparent that the orders no longer meet [the child’s] needs. Of course they would need to agree about the particular change. If they cannot agree, while the authorities protect parties against repeated litigation on the same parenting issues , subject to those authorities, if, for example, there is a significant change in the factual circumstances then one or other parent can bring the matter back to Court to seek a change to the arrangements.
(Footnotes omitted)
The mother submitted that the primary judge failed to make a number of transitional orders which were in the child’s best interests. She submitted that there should have been orders providing for the transition from the mother to the father to be under the supervision of an appropriate professional or the court, for the child to have contact with the mother so she could be reassured that her mother had not abandoned her and for the matter to be returned to the court within a month or two of the orders so that a report could be obtained as to what had happened since the orders.
It is important to emphasise, as recorded by his Honour, that the mother did not propose any orders as to transition or the lifting of supervised time.
His Honour made an order for the parties to attend upon a family therapist (para 25 of the Orders) and “to follow all recommendations made by the therapist, including but not limited to referrals to other treating professionals for either both of the parents and for [the child]” (para 27 of the Orders).
That order is, in fact, an order of the kind now being contended for by the mother. The parties have not attended upon a family therapist. Each blames the other for the order not being complied with. That, however, does not show an error in the order but simply that the parties are unable or unwilling to give effect to it.
No error in the approach of the primary judge has been established.
The primary judge’s treatment of the mother’s evidence and submissions
The mother’s Further Amended Notice of Appeal included a number of grounds asserting that the primary judge failed to properly consider the evidence and submissions put forward by her:
2.The Court Orders are:
…
j.omitted consideration of the mother’s evidence and arguments
3. His Honour erred in failing to consider the fact that he had found no evidence of physical or psychological harm prior to 28 March 2015 whilst the child was in the mother’s care over a period in excess of 5 years.
4. The Court did not provide the Mother with the same presumptions as he did the Father with regards to the whole of the evidence.
16. The Court committed an error of law by:
a.failing to properly consider all evidence;
b.failing to properly assess evidence
…
h. not properly considering the Convention of the Rights of the Child and Optional Protocol.
23. In the course of further hearing his Honour failed to properly consider the evidence when making determinations as to credit.
(As per the original)
For the most part, the mother’s Summary of Argument is silent as to the particulars of the complaints set out above. The oral submissions advanced by the counsel for the mother were similarly unfocussed and did little to clarify the substance of these grounds. Nevertheless, we will endeavour where possible to address these complaints.
That his Honour erred in failing to consider that he found no evidence that the child was subject to physical or psychological harm in the mother’s care prior to 28 March 2015
The counsel for the mother did not specifically address this ground, but its purport is obvious.
The relevant findings were:
174.Aside from the physical examinations of [the child] by the mother or in her care, I am unable to find that the mother has physically assaulted [the child]. Whether deliberate or not, there is no doubt that the mother has at times instilled in [the child] an unwarranted and inaccurate narrative about being assaulted by the father. The mother did that, despite advice from the authorities and in breach of Court orders.
175.Importantly, Dr [C] agreed in cross-examination that the risk to the child of psychological harm in the mother’s household warranted the adjective “grave”. That evidence is as follows:
Mr Levy: Would “grave” be the right word to use, now having heard that the evidence of the mother – my encapsulation of the mother’s evidence in cross-examination and now having read the mother’s further affidavit material and all of the subpoenaed material that you have been given, now you would have grave doubts about her ability to fully parent the child?
Dr [C]: Indeed, and that’s why I made reference yesterday when I was asked about did I hold by my same recommendations as a year ago, and I referred to the developments of this year that did lead me more into the area of grave territory and questioned whether it is in [the child]’s best interest to stay with her mother, as her mother had not moderated her hostility, and her position about the father in fact seemed to have become more entrenched about that.
176.Counsel for the father submitted that the risk of [the child] developing false memories and experiencing psychological harm while in the mother’s care has escalated since the allegations were made by the mother. The mother has continued to seek a psychological review of [the child] in respect of the alleged sexual abuse. She has made ongoing attempts to provide evidence that support her allegations. It was submitted that despite the change in the orders sought by the mother, she will continue to interrogate the child, have her medically examined, complain to authorities and have other people examine the child. I share those concerns.
177.Notwithstanding the very substantial change in the orders she seeks, there is no reason to think that the mother will change her attitude to the father, her belief that he has and will abuse [the child] or her search for evidence of abuse. The search for evidence of abuse has resulted in [the child] being repeatedly and inexpertly questioned by the mother, the maternal grandmother and maternal aunt. It has resulted, unnecessarily, in repeated JIRT interviews and [the child] being medically examined, including undergoing a vaginal swab. The advice the mother received from the police, FACS, the medical authorities, Dr [C] and through Court orders of this Court, is inconsistent with the mother’s ongoing beliefs and she has steadfastly ignored that advice.
178.When put to Dr [C] that [the child] is living in an abusive environment in the mother’s home, Dr [C] opined that “in terms of allowing [the child] to have a relationship with her father and her brother, and grandmother, I would agree that that is emotionally abusive”.
179.As discussed above at paragraph 107, there is now no contention before the Court that [the child] has been abused by the father or that she is at risk, let alone grave risk, of such abuse in the future. For completeness, I should say that in any event, the evidence would not support either finding.
180.There is a risk, that Dr [C] described as “grave”, that the child will suffer psychological harm in the care of the mother. Such was Dr [C’s] concern that she recommended that upon the urgent restoration of the father’s time with [the child] in June 2015, it would be wise for someone else to be present during contact, not to protect the child from the father but to protect the paternal family from any further allegations and to protect [the child] from any further questioning and suspicions by the mother.
181.Orders made in these proceedings must address the grave risk for [the child] in the mother’s household.
(Original emphasis)
In other words, the primary judge found the child to be at grave risk in the mother’s care at the time of the hearing. It matters little, then, that the child may not have been at risk in the mother’s care at an earlier time.
It is also not correct to identify 28 March 2015, the date the mother alleges the father sexually assaulted the child, as the commencement of the mother’s concerns. The mother’s allegations against the father commenced in 2013. On 9 November 2013 the mother took the child to a hospital seeking a urine drug screen and investigation into suspected child abuse matters.
Further, the primary judge did specifically take into account the fact that the mother had been the child’s primary carer since she was born. His Honour said:
202.Dr [C] observed an apparently secure attachment between mother and daughter. [The child’s] relationship with her father is less robust and Dr [C] considers that their limited time together has harmed that relationship. She reported that despite the fact that the mother has made no effort to encourage [the child’s] relationship with her father, [the child] wants to spend time with her father and he has been able to engage with her.
…
237.As discussed above, on 22 May 2015, while Dr [C] was in the witness box, the mother said that she did not agree with the hearing continuing and she left the courtroom. The ICL asked Dr [C] whether in those circumstances [the child] was at risk unless she was immediately removed from the mother. Dr [C] did not recommend an immediate change of residence. Dr [C] observed that a peremptory removal from the mother could be traumatic for the child and very difficult for her to understand, particularly if on a final basis she is to later return to live with her mother. She opined that removing the child from the mother risked “completely turning the child’s life upside down”. Dr [C] said that a removal of [the child] from the mother’s care to a situation where she spent time with the mother on a supervised basis only, would represent a loss for [the child]. She said [the child] would feel a loss of her family home and her community and a loss of having the mother around when she needs her. Dr [C] said a change in residence would bring about a period of mourning for [the child] and it would be confusing for [the child] to know that her mother was alive but not available.
238.However, Dr [C] said that the mother has in the past behaved in a way that places the child at risk and that in her mind there has been emotional harm done to [the child] by the mother’s attitude to the father. Dr [C] said that if the mother “cannot amend her undermining of [the child’s] relationship with her father and brother, then the harm she’s doing to [the child] will necessitate a change in [the child’s] primary residence with her.”
…
245.This criterion assumes great significance in the context of this case. Both parties now advocate a degree of change in [the child’s] living arrangements. Albeit belatedly, the mother seeks overnight and unsupervised time with the father. The change proposed by the father and the ICL would involve the greatest upheaval for [the child]. Having had her relationship with her father severely retarded by her mother’s attitude and conduct, the father’s proposal will risk similar damage to her most important relationship – with her mother.
246.On the other hand, the concern is that notwithstanding her recent change of position, the likelihood is that whatever the mother says, a continuation of primary residence with her will ultimately lead to there being no relationship between father and daughter.
…
367.As I have set out above, Dr [C] did not recommend a change of residence in her 2014 report, nor did she advocate an interim change in residence in May 2015. She expressed concerns about the father’s capacity and the state of his relationship with [the child] being adequate to the task of managing such a change. She expressed concerns about the impact on [the child] of being separated from her mother. However, Dr [C] foreshadowed the circumstance whereby the mother proved incapable of changing her ways and noted that a change of residence may then be necessary.
368.Ultimately, the balance of prejudice favours a change of residence. To leave things as they are would be a triumph of hope over experience.
369.In terms of s 60CC:
•There is meaning in [the child’s] relationship with both parents. Her relationship with the mother is secure. Her relationship with her father is not highly developed and is under threat while she lives mainly with her mother;
•The presenting risk from abusive behaviour is from the mother and has been described by the single expert as “grave”;
•The parents’ relationship is poisonous and each of them has difficulty in promoting the other to [the child]. In the mother’s case she sees no value for [the child] in a relationship with the father. By way of contrast, although he believes that the mother’s conduct is abusive, the father concedes that the mother is well-motivated in relation to [the child’s] welfare. The single expert said that if a change of residence was to occur, the Court would need to have confidence that the father was able to sensitively reassure [the child] about what was happening, provide comfort to her and that the father would be an adequate attachment figure who could assist [the child] in the grieving process. There should be some family therapy where the father, [the child] and [the father’s son] spend time with a clinician who could help with transition and loss issues. The father has accepted those recommendations. He proposes that he will rely on a psychologist at Interrelate, will secure counselling for [the child] and he has completed various parenting courses including the Triple P Parenting course. The ICL has identified another therapist;
•The parents live a distance apart – at [Suburb K] in Sydney’s South and in the [E Town] area. Each of the parents professes to be under financial pressure, with the mother remaining out of the paid workforce. Distance and cost represent practical problems;
•The mother has provided food and shelter for [the child] but has idiosyncratic views about matters such as education, diet and medical treatment. The mother has demonstrated that she is incapable of fully supporting [the child], particularly in respect of her relationship with her father. The father is untested as [the child’s] primary caregiver but he has successfully been the primary parent for [his son from another relationship];
•Both parents are capable of supporting [the child’s] cultural heritage;
•If [the child’s] primary residence is not changed, her relationship with her father is at risk and there is likely to be further litigation at least in the form of enforcement proceedings;
•There are allegations of violence made against each of the parents and the paternal grandmother but the evidence does not support any findings of violence. The only AVO was made by consent and is inconsistent with virtually all of the independent evidence presented to this Court.
370.On balance, those considerations strongly argue for a change of residence. I will make an order that [the child] live with the father and spend time with the mother as proposed by the ICL and father, being at least once per week, supervised by Interrelate. I acknowledge that this change will cause a level of grief and loss for [the child] who has been used to having her mother as her primary carer, however I am satisfied that a change in residence is required in order to address the risk of further psychological harm to [the child]. In my view the father has the capacity to respond to [the child’s] feelings of loss and address them in an appropriate way. I am confident that he will access the professional help he needs to manage that process.
It follows that the primary judge did take into account the mother’s earlier beneficial care of the child, but that his Honour also found that the mother posed an unacceptable risk of harm to the child, which in turn was damaging the relationship between the child and the father. This finding was open to the primary judge.
We are not satisfied of any error in the approach of the primary judge.
That the primary judge erred in not accepting the evidence of the mother
As best we can identify, the challenge here is that the primary judge did not accept the evidence of the mother and erred in doing so.
The primary judge did find that the mother was a poor witness but was one who did not set out to mislead the Court. The father was found to be a good witness. The findings of the primary judge were:
45.At times the mother was argumentative and prone to giving oblique answers to questions asked in cross-examination.… To my observation the mother persisted in seeking to address what she understood to be the implication of questions rather than the question asked.
46.The second thing to say is that although she was a poor witness it does not necessarily follow that the mother set out to mislead the Court. The parents’ cohabitation spanned less than 15 months and they separated more than five years ago. It is understandable that their recollections of events could honestly differ. Memory is neither infallible nor immutable and two well motivated witnesses can honestly have different recollections of the same event. Those recollections can be changed by the processes of storing and retrieving them. Here the two main witnesses are not well motivated towards each other. To my observation the parents harbour considerable hostility for and distrust of each other. Their antipathy for each other could have affected their recollection of particular events.
47.Subject to those latter observations, the father was a good witness. By that I mean that his testimony was clear and consistent and he was not successfully challenged on significant issues.
(Original emphasis)
The mother had made a number of allegations against the father, discussed by the primary judge at [119]-[157], including:
·He had drugged the child;
·He had squeezed the child’s hand;
·He had been violent to his son from an earlier relationship;
·He undressed and dressed the child contrary to the wishes of the mother;
·The child had been sexually abused by him on 28 March 2015.
None of the allegations was accepted by the primary judge, who found that there was no probative evidence that these events had occurred. In coming to those findings, his Honour relied upon a number of matters including hospital notes, contact centre records, medical centre notes, police records and documents from the New South Wales Department of Family and Community Services. The primary judge also took into account inconsistencies in the mother’s various versions of the complaint of sexual assault.
Whilst it is no doubt true that his Honour also took into account his general view of the mother’s credibility as a witness, it was not the sole basis for rejecting her allegations of misconduct.
It must also be recalled that, at least by the end of the case, the mother no longer contended for findings of sexual abuse. The primary judge recorded:
117.However, it is not argued in her case that the Court could find that he has sexually abused [the child] in the past nor that there is an unacceptable risk that he will abuse her in the future. It was not argued that the Court could find that the father has otherwise, physically assaulted [the child] nor that there is an unacceptable risk that he will be violent to her in the future. Even within the orders sought by her, the mother has not included any proposal that the father be restrained in respect of the behaviour she alleges against him. For example, she seeks no orders to restrain: physical discipline; administering inappropriate medication; or about undressing or bathing the child.
…
157.As I have indicated, it is now agreed that the Court cannot find that the father sexually abused [the child], nor that there is an unacceptable risk of him doing so in the future…
No challenge has been made to those paragraphs of his Honour’s reasons. It is difficult now to allege an error in credit finding that led to the rejection of, at least, the allegations of sexual abuse.
The father asserted that the mother had said negative things to the child about him. The primary judge found:
216.Where there is a dispute, I prefer the evidence of the father about those matters. It is consistent with the mother’s strongly held views about the father and her representations to this Court and the state authorities. The mother asked the police to do a welfare check on [the child] during her time with the father in the evening on 18 July 2015. The mother conceded that she asked the police to conduct a welfare check despite the fact that she did not like it when the police conducted a welfare check in her home and that the police visit would not assist [the child] settle into her time with the father.
However, it appears from that paragraph and the subsequent paragraphs that this credit finding was not based solely on a general finding, but on objective evidence from a number of sources.
The counsel for the mother identified an error in the credit findings as follows:
Many other relevant matters going to credit were not considered by his Honour. Such relevant matters would include:
(a)the Father’s potential issues with personal boundaries; there being evidence of personal involvement with fellow workers;
(b)the finding that the Mother was isolated was equally relevant to the nature of her relationship with the Father and the breakdown of their relationship within weeks of [the child’s] birth;
(c)the Father’s admitted ongoing relationship with Ms [H] during the course of his relationship with the Mother;
(d)his Honour’s refusal to accept that the Mother genuinely accepted the necessity of the Orders she was seeking for [the child’s] ‘best interests’. Had the Mother not been truthful she would not have insisted that [the child] had made a revelation of potential sexual interference on 24 [sic – 28] March 2015.
We are unable to see how the first three points affect the mother’s credibility. Rather, they seem to be directed at diminishing the father’s credibility. However, even if the father’s denials of misconduct were to be put to one side for that reason, the position would remain that there was no probative evidence in support of the mother’s allegations.
As to the last point identified in [149], the mother submitted:
MR De ROBILLARD: … He simply – because he had formed this view that the mother was not trustworthy, that she in fact was being clever in saying “I’ve now changed my position”. And that is related also to the issue of the alleged sexual issue because his Honour – as I’ve submitted previously, it’s very clear that his Honour had made a decision that the mother was not trustworthy. He did not believe the mother. But the mother refused to resile from her position that she believed there had been some sort of sexual touching in the past. She refused to resile from that position. And one would have thought that that was an indication that the mother was being totally truthful. She says “I believe there was something that happened but I now understand that there’s nothing I can do about it because there’s not sufficient evidence”.
Understandably, the primary judge was sceptical of the mother’s change of position, having regard to her beliefs of abuse. Indeed, he observed:
107.Even now, the mother believes that in addition to earlier abusive conduct, the father sexually assaulted [the child] on 28 March 2015. She gave evidence to the effect that she is willing to give the father the benefit of the doubt that he will not abuse [the child] in the future. In my view the mother was far from truthful in giving that evidence. I am concerned that in large part, the mother has only expressed that position and sought orders for the father to have unsupervised, overnight time with [the child], because she has not been able to find credible evidence of abuse by the father.
No submissions were made as to why this finding was not available to his Honour, other than the ones already recorded. The primary judge was not obliged to accept the mother’s explanation of her change of mind.
We are unable to see how these submissions identify error in the credit findings or, more importantly, in the findings of fact that were made.
Further, a trial judge’s credit findings are not lightly overturned on appeal: Fox v Percy (2003) 214 CLR 118. We were not taken to any evidence, let alone any incontrovertible evidence, that indicated his Honour’s findings were flawed.
Failure to properly consider the Convention of the Rights of the Child
A final complaint of the mother is that the primary judge failed to properly consider the United Nations Convention on the Rights of the Child and its Optional Protocol.
We are unclear about which articles of the Convention the mother asserts the primary judge failed to consider. Counsel for the mother was unable to provide us with any particulars, as the following exchange demonstrates:
MAY J: But that’s not what ground 16 says. Ground 16 is a complaint that the court, that is the primary judge, made an error by not properly considering the convention of the rights of the child. Now, how do you say the trial judge failed to do that?
MR DE ROBILLARD: Thank you, your Honour. Well, within his own reasoning his Honour himself, having found that these two parents were just not able to communicate. You know, they said they had a poisonous relationship. In my respectful submission, what his Honour ought to have done would have been to, because of the – that the transition period was so vital, according to the evidence – he ought to have looked after the interests of the child better by providing for a review of the situation within a short time after the proceedings were determined. When I say determined, his Honour ought not have said, “There you are, and go away.” I mean, he had to take into account the interest of the child, and even when the matter came back before the court very shortly after, and in my respectful submission, that has to be taken into consideration. The mother did go back to the court immediately. I think it was 19 or 17 November – 17 November.
We merely record that although mentioned in passing as just recorded, counsel for the mother directed no further submissions to this ground.
Conclusion
We have found no merit in any of the grounds of appeal.
The appeal will be dismissed.
Costs
Both the father and the ICL sought an order that the mother pay their costs if the appeal was dismissed.
The mother has been entirely unsuccessful on the appeal. She submits that she should not be ordered to pay costs because she is in poor financial circumstances. The mother however, received the payment of $146,950 pursuant to the property orders made by the primary judge. It should be noted that the father’s obligation to pay the mother the said sum allowed him to deduct any amount owing by her to him in relation to a costs order. It was agreed that the mother was obliged to pay the father the sum of $17,000 arising from the previous Full Court proceedings. The sum of $146,950 made allowance for that payment.
It is well established that impecuniosity is, of itself, no bar to a costs order: Lenova & Lenova (Costs) [2011] FamCAFC 141.
The basis upon which the ICL asked for costs is that if the appeal is dismissed it should follow that the mother pay their costs. This submission does not accord with the provisions of the Act in s 117(1):
(1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
There are no justifying circumstances which would support an order that the mother meet the costs of the ICL who is funded by Legal Aid.
The position of the father is different. He has always paid for private practitioners to represent him.
The relevant provisions of the Act are as follows:
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
…
(c)the conduct of the parties to the proceedings in relation to the proceedings…
…
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
The appeal was entirely without merit. The manner in which the appeal was conducted was far from satisfactory as we have explained in these reasons.
Taking these matters into account, the appropriate order will be that the mother pay the costs of the father, to be assessed if they cannot be agreed.
I certify that the preceding one hundred and seventy six (176) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 27 February 2017.
Associate:
Date: 27 February 2017
10
4