FAMILY COURT OF AUSTRALIA
| RUTH (AKA HUTTON) & HUTTON | [2011] FamCAFC 99 |
| Per Bryant CJ and Austin J: FAMILY LAW - COSTS – Where the mother was wholly unsuccessful in her appeal – Where there is an absence of evidence or submission against an order for costs – The mother ordered to pay the costs of and incidental to the appeal of both the father and the Independent Children’s Lawyer. Per May J: |
| Family Law Act 1975 (Cth) |
| AMS v AIF (1999) 199 CLR 160 CDJ v VAJ (1998) 197 CLR 172 |
| APPELLANT: | Ms Ruth (aka Hutton) |
| RESPONDENT: | Mr Hutton |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 6188 | of | 2008 |
| APPEAL NUMBER: | NA | 114 | of | 2010 |
| DATE DELIVERED: | 5 May 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Bryant CJ, May & Austin JJ |
| HEARING DATE: | 24 November 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 28 September 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 914 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Dr Sayers |
| SOLICITOR FOR THE APPELLANT: | Wiltshire Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Hackett with Mr Wessling-Smith |
| SOLICITOR FOR THE RESPONDENT: | Conradie & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Andrew |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
The appeal be dismissed.
The mother shall pay the costs of the father and Independent Children’s Lawyer of and incidental to the appeal in the sums agreed or assessed on a party/party basis.
IT IS NOTED that publication of this judgment under the pseudonym Ruth (aka Hutton) & Hutton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 114 of 2010
File Number: BRC 6188 of 2008
| Ms Ruth (aka Hutton) |
Appellant
And
| Mr Hutton |
Respondent
REASONS FOR JUDGMENT
Bryant CJ & Austin J
Introduction
This litigation entailed a dispute over parenting orders between the applicant father and respondent mother relating to their only child, L Hutton, born June 2005 (“the child”). At the time of trial the child was aged 5 years. The mother was dissatisfied with the Federal Magistrate’s orders and reasons pronounced on 28 August 2010 and appealed.
There is no dispute about the relevant law in this litigation – either as to the law applicable at first instance or the law that governs this appeal. The mother’s grievance is directed to the sufficiency of reasons for the decision at first instance, and the findings of fact that underpinned those reasons.
The appeal was prepared with meticulous attention to detail, which is ordinarily an accolade, but the exactitude demanded of the Federal Magistrate by the mother is evocative of the High Court’s admonition to avoid an overly critical or pernickety analysis of the primary judge’s reasons (see AMS v AIF (1999) 199 CLR 160 at 211; Roncevich v Repatriation Commission (2005) 218 ALR 733 at 749-750). The fineness of the focus upon the Federal Magistrate’s reasons was not commensurate with the breadth of the issues at stake, the orders sought by each of the parties at the trial, including the Independent Children’s Lawyer (ICL), the facts as found by the Federal Magistrate which were unchallenged, and the scope of the discretion involved in the judgment.
Fairly regarded, the Federal Magistrate’s reasons are satisfactorily transparent and cogent, properly supported by findings of fact, and so the appeal should be dismissed.
Background
The parties separated under the one roof in January 2008, but the mother and child subsequently vacated the former matrimonial home.
Although the child lived with the mother, it is common ground that he spent frequent time with the father in the months following separation by agreement between the parties.
That consensual arrangement ceased in May 2008 when the mother secured a temporary protection order against the father in the Magistrates Court at S. The mother’s allegations of the father’s physical abuse of both her and the child founded the application for the protection order. The protection order was resisted by the father and the mother subsequently withdrew her application, she alleged, because of the father’s willingness to provide an undertaking about the nature of his future conduct and her financial incapacity to press on with the contested application.
The father moved to commence the parenting proceedings on 8 July 2008 because of the mother’s termination of the time spent by the child with him.
Parenting orders were made on an interim basis on 26 August 2008 providing for, inter alia:
a)Restraint of the mother relocating the residence of the child away from the Gold Coast area (Order 1).
b)The child to live with the mother (Order 8).
c)The child to spend supervised time with the father for two hours once per week for a short period (Orders 9-10), and then unsupervised time with the father for six hours once per week (Order 12).
An order was also made for the parties and child to hastily attend upon the appointed Family Consultant to facilitate preparation of a Family Report. The Family Report was made available on 2 October 2008 in expectation of a final trial commencing on 11 November 2008.
Only a week later on 9 October 2008 the trial date was vacated and further interim orders were made, with the consent of the parties, providing for:
a)The child to live with the mother (Order 2).
b)The parties to have equal shared parental responsibility for the child (Order 3).
c)The child to spend unsupervised time with the father on a frequent and escalating basis, initially for periods of several hours twice per week, and after three months, on alternate weekends (Order 4).
Those orders closely correlated with the recommendations made by the Family Consultant in the Family Report.
The amount of time spent by the child with the father was to increase incrementally on 1 January 2009 and again on 15 June 2009. The mother complied with the first escalation, but the mother removed the child from kindergarten in June 2009 and thereafter refused to permit the child to spend any time with the father for several weeks.
Further interim consent orders were made on 17 August 2009 providing for, inter alia, the child to spend time with the father each Wednesday for three hours and each alternate weekend (Order 3). Procedural orders were also made fixing the matter for final trial on 2 December 2009 and directing the preparation of an updated Family Report.
By reason of a further failure of the mother to comply with those orders, the father took steps to bring an urgent application before the Court, the hearing of which commenced on 3 September 2009 but was adjourned until 9 September 2009 to take oral evidence from another Family Consultant. That interim hearing resulted in the affirmation of the orders made shortly before on 17 August 2009.
The original Family Consultant provided an updated Family Report on 4 November 2009, which was prepared in the knowledge of the oral evidence given by the supplementary Family Consultant at the interim hearing held in September 2009.
The Family Consultant recommended, in part, that the child “spend the bulk of his time with his mother” and that he spend unsupervised, substantial and significant time with the father, subject to two provisos – firstly, that the Court form the view that the father does not represent an unacceptable risk of physical or emotional harm to the child, and secondly, that the mother be “clearly apprised of the risk of her losing time with [the child] should she not comply [with the orders].”
On 2 December 2009, being the day fixed for final trial, the parties averted the trial by consensually entering into final parenting orders, the effect of which was to provide for:
a)The parties to have equal shared parental responsibility for the child (Order 1).
b)The child to live with the mother (Order 3a), subject to exceptions for defined special occasions (Order 4).
c)The child to spend unsupervised time with the father for specified periods throughout December 2009, and then for several days each alternate weekend and for half of all school holidays throughout 2010, and thereafter live with the father and mother for equal time on a weekly rotation (Order 3b), subject to exceptions for defined special occasions (Order 4).
d)Attendance of the parties at a parenting course conducted by Centacare (Order 10).
e)Attendance of the mother upon a psychiatrist for mental state assessment (Order 17a).
f)Attendance of the father at an accredited anger management program (Order 17c).
g)Attendance by the child upon a counsellor, with arrangements to be made by the parties (Orders 21-22).
The parties’ consensus did not last long. Only two months later in February 2010 the mother alleged that the father had sexually abused the child and acted to terminate the child’s time with the father. The mother made her allegations against the father to several authorities, including police, Bravehearts, and the Department of Communities (Child Safety).
The father commenced fresh proceedings almost immediately on 1 March 2010, this time seeking an order that the child live with him and reserving his position about the manner in which the child should interact with the mother.
Further interim orders were made by the Court on 1 April 2010, providing for:
a)The time spent by the child with the father pursuant to the orders made on 2 December 2009 to be supervised by the paternal grandmother (Orders 1, 12, 13).
b)The restraint of the mother from taking the child to any further counselling, interviews or examinations without the consent of the father, an order of the Court, or direction by a public authority (Order 8).
The final trial of the proceedings before the Federal Magistrate was conducted in August 2010. Judgment was reserved at the conclusion of the evidence and submissions, with the final orders and Her Honour’s reasons delivered on 28 September 2010.
The father’s proposal at the trial was that he have sole parental responsibility for the child and that the child live with him. He proposed that the child spend supervised time with the mother each alternate weekend from after school on Friday until Sunday evening.
The mother’s proposal at the trial was that she have sole parental responsibility for the child and that the child live with her. She proposed that the child spend only supervised time with the father. However, in recognition of the fact that the Court may conclude that the father posed no unacceptable risk of harm to the child, the mother alternately proposed that the child spend time with the father for five nights each fortnight, from the conclusion of school on Wednesday until the commencement of school the following Monday.
The Independent Children’s Lawyer did not begin the trial with a settled position, but at the conclusion of the evidence pressed for orders consistent with those proposed by the father.
The principal issues in the case were, firstly, whether the father presented any unacceptable risk of harm to the child by reason of either physical or sexual abuse, and secondly, the propensity of the mother to seize unilateral control of the child and terminate interaction between the child and the father, irrespective of existing orders, with the prospect of that being emotionally harmful to the child.
Orders and Reasons of the Federal Magistrate
After reciting the relevant history, the Federal Magistrate noted the various periods during which the mother withheld the child from the father. That occurred on no less than four occasions for varying periods of weeks and months.
Her Honour then explored the motives of the mother in taking such action, which were essentially allegations of both physical and sexual abuse against the father.
Firstly, the father’s alleged domestic violence was noted to be a “key feature” of the mother’s case, at least up until the time final consent orders were made on 2 December 2009. The Federal Magistrate accepted the mother’s submission that the parties’ settlement, manifest in their agreement to final orders on 2 December 2009 obviated the need for any judicial determination of the allegations of physical violence. However, Her Honour was heedful that, despite the heinous nature of the alleged physical abuse of both herself and the child, the mother consented to parenting orders under which the parties would have equal shared parental responsibility for the child and the child would ultimately live for equal time with the parties on a weekly rotation. Her Honour regarded the mother’s position in that regard as “inconsistent”.
The Federal Magistrate concluded that the mother’s persistence in making allegations of physical abuse against the father, which the mother eschewed the opportunity to prove on several past occasions, had the potential to be emotionally abusive to the child. Her Honour explained it as follows at paragraph 73:
I note the allegations the mother raised against the father vary but she persisted in making the allegations. I consider this has the potential to amount to a risk of abuse of the child by the mother if it continues in the way it did in 2008/2009. The mother raised concerns but did not follow through with running the case. She consented to orders for unsupervised time for the father on a number of occasions.
Secondly, the mother made allegations against the father of him having sexually abused the child. When the child was interviewed by police concerning those allegations his answers were contradictory. He said he was abused by the father in a particular way and then immediately recanted. When the child was interviewed by the Family Consultant, despite some factual dispute between the parties, the Federal Magistrate accepted that the child said:
Mummy was talking about Daddy’s dicky being in my bottom, but he didn’t…It was just pretend…I’m a big fat head.
The Federal Magistrate expressly found that the father did not constitute an unacceptable risk of sexual abuse to the child, and described a number of reasons for reaching that conclusion.
The Federal Magistrate then made an express finding about the risk of emotional harm posed by the mother to the child, which finding she expressed twice.
At paragraph 83 Her Honour said:
I am however satisfied that there is a risk of emotional harm if the child remains in the mother’s care because:
a)The string of domestic violence allegations over two years resulted in the father’s contact being stopped from time to time and supervised at other times. This is despite the mother consenting to unsupervised time when the final hearing was about to proceed; and
b)The allegations of sexual abuse can place the child at risk of emotional harm if they result in the need for supervised contact when there is no unacceptable risk of harm of sexual abuse present.
At paragraph 86 Her Honour said:
I consider the child is at risk of emotional abuse if he remains in the mother’s care because she will continue to make allegations of the father’s abuse of the child and this will result in the child having periods of no time or supervised time with the father.
Given that the Federal Magistrate reached definitive conclusions that the mother posed a risk of emotional harm to the child, and that the father posed no unacceptable risk of sexual abuse to the child, it was clear that Her Honour was contemplating changing the child’s residence from the mother to the father.
Her Honour then properly addressed countervailing considerations which would militate against such a change of residence. Her Honour said at paragraph 96:
I have no doubt that the separation of the child from his mother would have a serious effect on him. This has to be balanced against the unacceptable risk of emotional harm if I were to leave the child in the mother’s care unsupervised.
Her Honour ultimately concluded, after considering primary and additional considerations under s 60CC of the Family Law Act, at paragraph 99:
I have concluded that the child is at risk of emotional harm in the mother’s care and that risk is unacceptable.
As a consequence of those reasons the Federal Magistrate determined to make orders conformably with the proposal of the Independent Children’s Lawyer and the evidence of the Family Consultant.
The Federal Magistrate then made a raft of comprehensive final parenting orders, which had the following effect with respect to the child’s interaction with the parties:
a)The child live with the father (Order 2).
b)The father have sole parental responsibility for the child, subject to his consultation with the mother (Order 3).
c)The child spend supervised time with the mother and have supervised telephone communication with her, on a gradually escalating basis (Orders 6, 11, 12).
Grounds of Appeal
The mother lodged an appeal against all of the orders made by the Federal Magistrate and sought that the matter be remitted for trial before a different Federal Magistrate.
In her Notice of Appeal filed on 1 October 2010 the mother specified 12 grounds of appeal.
The nature of the appeal was substantially revised in the mother’s Amended Notice of Appeal, filed at the appeal on 24 November 2010 with the consent of the father and Independent Children’s Lawyer and with the leave of the Full Court.
The mother abandoned grounds 4-11 inclusive, and the remaining grounds were elaborated in the mother’s written outline of submissions filed on 15 November 2010.
Ground 1
This ground of appeal was stated as follows:
The learned Federal Magistrate failed to give adequate reasons for the finding that the child was at risk of emotional abuse if he remained in the care of the mother. In the alternative: the learned Federal Magistrate’s findings in this regard were contrary to or otherwise not supported by the evidence.
At the outset it should be noted that the mother did not cavil with the Federal Magistrate’s finding that the father did not constitute any risk of abuse to the child, which finding the mother conceded was properly open to the Court. It therefore necessarily follows as a probable fact that the mother’s past allegations of abuse against the father were groundless.
The Federal Magistrate gave reasons for the finding that the child was at risk of emotional abuse if he remained in the care of the mother. The risk was expressly said to arise from the prospect of the mother continuing to make unfounded allegations against the father in the future, resulting in the child’s interaction with the father being terminated unilaterally by the mother or subjected unnecessarily to supervision (Reasons 73, 83).
As the father pointed out in submissions, the emotional abuse to the child stemmed from the mother’s intentional interference with the child’s relationship with the father when it was patently in the child’s best interests for that relationship to be preserved and promoted. There was a clear evidential basis for the Federal Magistrate to so find. The Family Consultant said in her report prepared on 4 November 2009:
It is my opinion that [the child] is, in fact, most keen to spend time with his father. He has demonstrated varying degrees of distress whenever they have been parted in my presence. [The supplementary Family Consultant’s] experience would appear to have been similar.
Acknowledging the existence of those reasons, the mother’s contention was that the Federal Magistrate’s reasons were inadequate. It was submitted that the Federal Magistrate moved progressively from a statement about the mother potentially posing a risk of emotional abuse to the child to an assessment of that risk as an unacceptable one, without explaining the chain of reasoning.
The mother’s submissions essentially hinge on the disparity between the Federal Magistrate’s expressions about the nature of the risk posed by the mother to the child. In particular, Her Honour referred to a “potential” risk of abuse (Reasons 73), then a “risk” of emotional harm and emotional abuse (Reasons 83, 86), and then finally an “unacceptable risk” of emotional harm (Reasons 96, 99).
It was submitted that a “potential risk” is a concept far removed from an “unacceptable risk”, and that the Federal Magistrate either erroneously confused the concepts, or failed to provide an adequate explanation for the transformation of the characterisation of the risk attributed to the mother.
The state of the law concerning the adequacy of reasons is well settled (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Bennett v Bennett (1991) FLC 92-191).
Of relevance to this appeal, it is only necessary that the appellate court be able to discern either expressly or by implication the path by which the result has been reached (see Bennett at 78,267). A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue (see Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at 463-464; Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127 at 136). In the decision-making process there are often judgmental steps which can only be stated without elaboration (see Athens v Randwick City Council [2002] NSWCA 83 at [16]).
It is tolerably plain that the Federal Magistrate formed the view that the mother posed an unacceptable risk of emotional harm to the child should she continue to act the way she had over preceding years. The mere fact that Her Honour did not qualify the risk as an unacceptable one every time reference was made to the risk in the course of the reasons does not mean Her Honour confused the applicable test or was referring to different concepts. When it was time for Her Honour to weigh and assess the risk against the other relevant considerations, the risk was deemed to be unacceptably high.
The Federal Magistrate’s expressions may have been infelicitous, but little else. A “potential risk” is a “possible possibility” and simply an unintended tautology, because a “possible possibility” is a “possibility” or “risk” simpliciter. In submissions, the mother properly conceded that the discrepancy in some of Her Honour’s expressions may be merely tautological.
The mother then submitted that, even if the Federal Magistrate was consistently referring to an unacceptable risk posed by the mother, the evidence did not support such a finding. We do not accept that submission.
The Federal Magistrate explained the mother’s conduct in repetitively terminating the child’s interaction with the father.
The first such incident of termination occurred on 19 May 2008 and lasted until 28 August 2008 (Reasons 14, 15, 65), the explanation for which was the mother’s allegations that she and the child had been physically abused by the father (Reasons 62). The child began seeing the father again when interim consent orders were made on 26 August 2008 (Reasons 18). Although the time was initially supervised, the supervision was dispensed with when further interim consent orders were made on 9 October 2008 (Reasons 21, 66).
Further allegations of abuse and/or violence were made by the mother against the father soon after in November 2008, March 2009, and May 2009 (Reasons 67-69), which led to the mother removing the child from kindergarten and terminating the child’s interaction with the father for a second time from 15 June 2009 for a period of weeks (Reasons 22, 70).
Although the child’s time with the father resumed, the third termination occurred shortly after on 12 August 2009 and lasted for several weeks until 12 September 2009 (Reasons 22-24). On that occasion the mother took the child to a psychologist with respect to alleged bruising (Reasons 71). Despite fresh consent orders being made on 17 August 2009 requiring the child to resume seeing the father on 26 August 2009, there was no resumption until 12 September 2009 following a further interim hearing on 9 September 2009 (Reasons 27-28).
Although final consent orders were made on 2 December 2009 providing for the child to spend extensive unsupervised time with the father (Reasons 72), the mother again terminated the child’s interaction with the father from 24 February 2010 following her making allegations that the father had sexually abused the child (Reasons 34-42, 74). The child did not resume spending time with the father until interim orders were made on 1 April 2010. However, the mother did not desist from making more allegations against the father. She made further allegations in June and July 2010 (Reasons 45).
It was importantly noted that the mother’s allegations were not vindicated by investigations conducted by authorities (Reasons 39-40), and the Federal Magistrate found the mother’s allegations baseless (Reasons 74-82).
Evidence given by the two Family Consultants, which evidence was accepted and relied upon by the Federal Magistrate, clearly foreshadowed the prospect of the mother not complying with parenting orders of the Court in the future (Reasons 24-25). If anything, Her Honour’s succinct summary of the Family Consultants’ evidence was an understatement of the poignancy of their evidence.
The principal Family Consultant said in cross examination on 12 August 2010:
Well, I think without a buffer of quite a significant change in circumstances, there’s no indication that things would be any different from how they’ve been previously when orders have been made. In fact allegations have tended to come about more frequently and to be more and more serious in nature. So, you know, based on past events we could expect that that might happen again.
No aspect of the mother’s cross examination of the Family Consultant undermined that evidence. Questions posed to her about a prospective finding by the Court that the mother would comply with orders in the future did not draw an affirmative answer.
Similarly, the supplementary Family Consultant said in evidence on 9 September 2009:
So I said to the mother, I put to the mother, ‘If the court was today to make orders that said [the child] was to have time with his father, but unsupervised, would you adhere to the orders?’ And she indicated that she would not.
The mother did not cross examine the supplementary Family Consultant on that evidence on 9 September 2009 and did not require her for cross examination at trial.
The mother can take no comfort from passing comments by the Federal Magistrate during the trial about her past compliance with orders. Such comments were entirely conditional upon Her Honour’s perception of the powerful incentive for compliance provided by the promise to urgently bring the matter back before the Court for review in the event of breach of interim orders. Of course, once final orders were made by the Court following the trial, no such supervisory option would be available.
The Federal Magistrate concluded that if the mother continued making groundless allegations against the father, as she had in the past, then the child was at risk of emotional abuse (Reasons 73). The Federal Magistrate concluded that the risk was quantifiable as unacceptable (Reasons 96, 99) – a clear reference to the test espoused in M v M (1988) 166 CLR 69 at 87.
The evidential platform for that finding was twofold – the past conduct of the mother enabling an inference to be drawn about her future conduct, and the opinions of the Family Consultants expressing doubt about the mother’s compliance with orders of the Court.
The Federal Magistrate weighed, on the one hand, the risk of harm posed by the mother to the child if the child remained living with the mother, and on the other, the risk of harm to the child in being separated from the mother to live with the father, and concluded that the former consideration outweighed the latter consideration (Reasons 96, 99).
We are satisfied that the Federal Magistrate’s chain of reasoning was adequately explained, logical, and based on an evidential foundation well open to Her Honour.
The mother’s final submission was that the chain of reasoning set out by the Federal Magistrate did not adequately explain the orders made by the Court, which changed the child’s residence from the mother to the father, curtailed the child’s time with the mother, and vested sole parental responsibility for the child in the father.
The Court’s reasons may explain the orders it makes either expressly or by necessary implication (see Bennett at 78,267; Robertson & Sento [2009] FamCAFC 49 at [26-27]). There is little doubt Her Honour’s reasons in this case explain the orders by necessary implication. It was concluded that the mother’s conduct in making repeated groundless allegations against the father, potentially or actually causing emotional harm to the child, in circumstances where the father represented a viable residential alternative warranted orders of the type made.
It should also be noted that the ICL’s submissions at the closing of the evidence supported this outcome. The mother could have been in no doubt at the conclusion of the hearing that the orders the Court made were in Her Honour’s contemplation, and why.
Her Honour’s conclusion was entirely consistent with the evidence of the Family Consultant who said in her report of 6 August 2010:
[The child] has, because of the efforts of the Court and the ICL in ensuring his relationship with his father was maintained, the capacity to live with his father if this is deemed to be in his best interests, without being emotionally damaged by the change itself.
In our view, the first ground of appeal is not made out.
Ground 2
This ground of appeal was stated as follows:
The learned Federal Magistrate failed to take into account the sexualised behaviours observed by the mother and her father or make any findings about whether those behaviours occurred and if so, the significance of same.
Whilst the first ground did not seek to impugn the findings of fact underpinning Her Honour’s ultimate conclusion and was directed to inadequate reasons, the second ground asserted an error in the fact finding process.
The mother and maternal grandfather adduced evidence of the child acting in a sexualised way, but their evidence about that was uncorroborated. The father expressly said he had not witnessed any such behaviour by the child.
The Federal Magistrate cited, apparently with the intention of adopting as accurate, evidence about the child produced by the Department of Communities (Child Safety) in response to subpoena, to the following effect (Reasons 53):
[School and Child Care Centre] staff have not noted any sexualised behaviours [of the child] at either venue … Children which display sexualised behaviours tend to display these across the board (at school, at home, and in the presence of others)…
Contrary to the mother’s submissions, the Federal Magistrate did take into account the evidence of the mother and maternal grandfather about their observance of the child’s sexualised behaviour, implicitly accepting that it may have occurred. Her Honour found that (Reasons 82(f)):
The child has not exhibited these sexualised behaviours anywhere except in the mother’s household with the mother and her father.
However, Her Honour obviously found the countervailing evidence more influential. Her Honour accepted the father’s denial of seeing the child behave in the way described by the mother (Reasons 78) and was satisfied that the child would likely have acted in a sexualised way in all aspects of his life if the sexualised behaviour was a manifestation of sexual abuse, which he did not (Reasons 53). It was open to the Federal Magistrate to so find, which necessarily means that the second ground of appeal fails.
The evidence of the mother and maternal grandfather about the child’s sexualised behaviour could only be relevant as corroboration of the allegations that the father sexually abused the child. Since the mother did not cavil with the Federal Magistrate’s overall finding that the father posed no risk of sexual abuse to the child, the mother’s dissatisfaction with Her Honour’s disinclination to rely upon the mother’s evidence about the child’s sexualised behaviour is hardly to the point. The same may be said of the third ground of appeal.
Ground 3
This ground of appeal was stated as follows:
The learned Federal Magistrate failed to make any findings as to whether the child did or did not make the statements alleged by the mother and her father indicating abuse and if such statements were made why they were made.
The mother and maternal grandfather alleged that the child had made statements to them, or in their presence, indicating his sexual abuse by the father.
The Court did not necessarily have to make a finding about whether the child actually made the representations attributed to him by the mother and maternal grandfather on the path to its determination about whether the father sexually abused the child, or alternatively constituted an unacceptable risk of such abuse. Even if such statements were made by the child, they were not necessarily accurate or truthful. The statements made by the child were only one piece of evidence capable of influencing the Court’s determination about whether the father constituted an unacceptable risk of sexual abuse to the child.
The Federal Magistrate had evidence that the child disavowed his sexual abuse by the father when interviewed by police (Reasons 39-40, 76), and that he divulged to the Family Consultant it was the mother who spoke to him of sexual abuse, which abuse had not occurred (Reasons 79). The Federal Magistrate was also cognisant of the father’s consistent denials of such conduct (Reasons 78). In reliance upon that evidence, the Federal Magistrate concluded that the father posed no risk of sexual abuse to the child (Reasons 82).
Such a finding was repugnant to the truth and accuracy of the child’s alleged representations. Once that finding was made, it was immaterial why the child made contrary statements, if they were made at all. The only rational alternatives then available were that the mother deliberately coached the child to make such statements, or the child fabricated the allegations of his own volition due to immersion in an atmosphere of antipathy towards the father within the mother’s home.
The Federal Magistrate was aware of the possibility that the mother had influenced the child’s reports of sexual abuse by the father (Reasons 79-81, 82(d)), but resisted making a positive finding to that effect. There was no imperative for a definitive finding of fact. Such a finding would not have influenced the question of whether or not the father posed a risk of sexual abuse to the child. It could only go to the attitude of the mother and the question of impairment of her parenting capacity.
The Federal Magistrate’s position on the issue was consistent with the evidence of the Family Consultant, who said in her report of 6 August 2010:
My own extensive enquiries and assessments of the parents, observations of the parents with [the child] and reading of the material do not leave me with a belief that the father has abused [the child] in any of the ways suggested. Neither to (sic) they clearly indicate whether or not the mother has a genuinely held belief that the father presents a risk to [the child] or whether the mother is merely pursuing an agenda she has not disclosed.
In our view, the third ground of appeal fails.
Ground 12
This ground of appeal was stated as follows:
The learned Federal Magistrate failed to consider the mandatory provisions of section 60CC(4) of the Family Law Act 1975 (as amended). In the alternative: the learned Federal Magistrate failed to adequately consider the mandatory provisions of s 60CC(4) of the Family Law Act (as amended).
The first limb of this ground was abandoned at the commencement of the appeal. The abandonment was appropriate because the Federal Magistrate expressly recognised the need to consider the provisions of s 60CC(4) in the course of Her Honour’s deliberations (Reasons 92-93), and in the application of that provision to the evidence Her Honour concluded (Reasons 94):
The mother did not encourage the father to participate in decisions in relation to [the child]. She acted unilaterally in changing the child’s kindergarten and stopping contact with the father.
Section 60CC(4) was therefore expressly considered and applied by Her Honour, albeit in a quite truncated way. The gist of the mother’s complaint was that the Federal Magistrate dealt with s 60CC(4) in only a single paragraph of the reasons. That may be so, but the mother failed to articulate the findings of fact that ought have been made, or the conclusions that ought have been drawn, through application of s 60CC(4), and the manner in which those facts or conclusions would have influenced the outcome. In the absence of a meaningful submission about how the Federal Magistrate failed to consider that provision “adequately” this ground of appeal fails.
Conclusion
The appeal fails.
The Court enjoys a wide discretion as to costs under s 117 of the Act. There is a paucity of evidence before the Court about the financial circumstances of the parties, but notwithstanding, the parties invited the Court to determine the issue of costs on the material available consequent upon the outcome of the appeal. The mother submitted that there should be no order as to costs if the appeal failed, but she conceded that she was not in receipt of a grant of legal aid, and there was no indication that her legal representatives were acting on a pro bono basis. The appeal was wholly unsuccessful, and in the absence of evidence and/or submissions germane to other relevant factors under s 117(2A) of the Act, in our view costs should follow the event.
The mother should pay the costs of the father and Independent Children’s Lawyer of and incidental to the appeal, consistently with their submissions.
May J
Introduction
This appeal concerns orders made by Federal Magistrate Cassidy on 28 September 2010. The orders concern parenting arrangements for a child, L. He was born in June 2005 and is now aged 5 years.
The mother in her amended notice of appeal, filed by leave on 24 November 2010, seeks to rely on four recast grounds of appeal. The relief sought has also been amended as a result of the expedition of the hearing. The mother seeks that the matter be remitted for re-hearing before a different Federal Magistrate other than Federal Magistrate Cassidy.
The orders made by the Federal Magistrate resulted in a radical change in the child’s care arrangements. He had been living with his mother from age 3. In summary, it was ordered that:
· the child live with the father;
· the father have sole parental responsibility in respect of all major long-term issues in respect of the child. Prior to making a “sole ultimate decision”, as it is described by the Federal Magistrate, the father must advise the mother of the decision, seek her response, and consider the best interests of the child. The mother must then be informed of the decision in writing;
· the father take all necessary steps to keep the mother informed of the child’s health and schooling;
· the mother be restrained from taking the child to any counsellor or therapist without the consent of the father;
· the child spend supervised time with the mother and have supervised telephone communication;
· the parties, their servants and/or agents be restrained by injunction from removing or attempting to remove the child from the Commonwealth of Australia until 1 January 2013.
Orders were also made allowing the mother the opportunity to apply for a variation of the terms of these orders 12 months from the date the mother commences supervised time with the child, by leave, of the Federal Magistrate, and provided she has not breached any part of the orders.
In the absence of an application from the mother or father, after a period of one year, the mother is to have unsupervised time with the child.
Background
In order to understand the history and circumstances of this case and appreciate the arguments on appeal, it is necessary to briefly summarise the history of the matter.
The parties separated in January 2008. From March to May 2008 the child had regular time with the father. That contact ceased on 21 May 2008.
On 28 May 2008 the mother filed an application for a protection order in the Magistrates Court at S, alleging physical abuse. The mother explained in her affidavit filed 26 November 2009, that she later withdrew her application after the father provided an undertaking. The mother also said that she did not have the financial capacity to engage appropriate legal representation to pursue the matter.
On 8 July 2008 the father filed an application seeking a week about arrangement for the child.
On 26 August 2008 the Federal Magistrates Court made orders restraining the mother from relocating to a residence outside a 20km radius from the Gold Coast Mail Centre, without the father’s consent. The orders also provided that the child live with the mother, and for the father to have supervised contact each Thursday from 1pm to 3pm. A further order provided that the father spend supervised time with the child each Saturday between 10am and 4pm. Both parties were to attend upon Ms B, for the purpose of a family report.
Ms B provided the report on 2 October 2008. A number of recommendations were made, including that the parents share equal parental responsibility for the child, the child live with the mother and have unsupervised time with the father for one full day a week and up to four hours on another day. Ms B was of the view, that after two months the child should commence spending overnight time with the father.
The parties consented to interim orders on 9 October 2008. It was agreed that the final hearing dates of 11 and 12 November 2008 be vacated and that the child live with the mother. The parties were to have equal shared parental responsibility for the child. Under those orders the father had unsupervised time with the child at times agreed, and should the parties fail to reach an agreement, from 9am until 5pm each Saturday and from 4pm to 7pm each Wednesday. Orders were also agreed, allowing the father overnight time with the child commencing 1 January 2009. The time was to be again increased after 15 June 2009.
When the father went to collect the child from kindergarten on 17 June 2009, he was informed that the child was no longer enrolled at the centre, at the request of the mother. The father did not see the child until 4 July 2009. On 12 August 2009 the mother prevented the father from collecting the child.
The father filed an urgent application. The matter was heard on 3 September 2009. An order was made for a short report to be compiled assessing the child’s reaction to the father. Ms D, a family consultant, provided an oral report to the court on 9 September 2009. She was of the view that the child had a positive relationship with the father. Ms D also expressed a concern that the mother may not comply with the court orders if it was ordered that the child spend time with the father.
Ms B prepared an updated report on 4 November 2009. The Independent Children’s Lawyer, in a case outline filed 6 August 2010, made a number of observations. These were reproduced in paragraph 25 of her Honour’s reasons for judgment:
…
04/11/2009 Report of [Ms B]. Report indicates that the report writer has seen transcript of evidence given by the family consultant, [Ms D]. The report writer notes the following in her evaluation at:
·7.2.1 – There is an inconsistency between some statements made by the child in relation to the father and with the child’s interaction with the father causing the report writer to have raised the possibility that the child was encouraged by someone to make negative statements about the father.
·7.2.2 – The mother continues to claim that the father is abusive towards the child but note that there is no independent evidence to support these allegations.
·7.2.4 – Report writer states that child appears to be securely attached to both parents and that all things being equal, there would seem to be no reason why, at the age of 4½ he should not spend substantial amounts of time with each parent.
·7.2.6 and 7.2.7 – The parents have communication issues.
·7.2.8 – the major issue the Court needs to determine is if the mother’s stated concerns about the child’s physical and emotional safety with the father are genuine.
·7.2.9 – if the father is found to not represent an unacceptable risk of harm to the child, then a decision needs to be made as to the likelihood that the mother will comply with orders requiring the child to spend regular time, especially overnight with the father.
The second report complied by Ms B on 4 November 2009 contained numerous recommendations. These included that the parents have equal shared parental responsibility for the child, and that if the court was of:
… the view that the father does not represent an unacceptable risk of physical or emotional harm to [the child] and the mother is clearly apprised [sic] of the risk of her losing time with [the child] should she not comply, then [the child] continues to spend the bulk of his time with mother and spends time with his father …
The suggested times for the father’s contact with the child were from Friday to Monday each alternate weekend and each Wednesday evening as previously agreed and up to half of the 2009/2010 school holidays, for periods of up to a week. From the commencement of the 2010 school year it was recommended that the father have fortnightly contact from the conclusion of school on Thursday to before school on Monday. The time was recommended to be increased to after school on Wednesday to before school on Monday on a fortnightly basis. During the school holidays it was recommended that the child spend half his time with the father. Various other suggestions were also made in relation to communication, medical issues, extracurricular activities, parenting programs, counselling of the child and the appointment of an Independent Children’s Lawyer.
On 17 August 2009 the matter was allocated a date for final hearing, on 2 December 2009. No hearing eventuated because the parties settled the proceedings at that time.
The agreed orders made on 2 December 2009 provided, in summary:
1.The parties have equal shared parental responsibility.
2.The child live with the mother and have time with the father. This time was to be gradually increased to during school terms from Thursday to Monday in terms 1 and 2 of 2010 and then from Wednesday to Monday in terms 3 and 4, and thereafter each alternate week. In addition the child was to have one half of the school holidays with the father.
3.Orders provided for special days in addition to weekend and holiday time.
Of significance the following orders were made:
5.That in the event the Mother wishes to file an Application that has the effect of reducing the Father’s time with the child under these Orders, the Mother must first have leave of the Court to proceed with such Application and in the event that Federal Magistrate Cassidy is presiding in the Brisbane Registry, then the granting of such leave must be determined by Her Honour PROVIDED ALWAYS THAT until such Application is determined (if leave to proceed is granted), the Mother shall not breach any provision of this Order.
6.That if the Mother is alleged to have breached any provision of this Order pertaining to the Father’s time with the child, the father shall have leave to file an Application on short notice without having to comply with any procedure including the filing of a contravention application or filing of a section 60I Certificate PROVIDING ALWAYS THAT the matter shall proceed before Federal Magistrate Cassidy if Her Honour is presiding in the Brisbane Registry.
In addition, it was agreed and ordered:
17.That within three (3) months of the date of these Orders:-
a.The Mother is to attend on an accredited psychiatrist for the purposes of a written mental state assessment;
b.Within seven (7) days of receipt of the said assessment, the Mother is to provide a copy of same to the Father; and
c.The Father is to enrol in an accredited Anger Management Programme provided by an accredited supplier.
21.That the parties do all things necessary within two (2) months of the date of these Orders to:-
a.Agree on a counsellor for the child; and
b.Engage an agreed counsellor to provide age appropriate counselling or play therapy for the child.
22.The counselling engaged pursuant to 21 herein is:-
a.To be non-reportable save for any legal obligation of the counsellor to notify relevant authorities in respect of the child’s safety; and
b.Is not to continue for more than six (6) months save by written agreement of the parties obtained after consultation with the counsellor or order of the Court.
The mother, in compliance with order 17 of the 2 December 2009 consent orders, attended upon Dr G a psychiatrist. In his report it was said:
3.2 [The mother] stated that the reason for the psychiatric assessment was “just part of the negotiation… my husband claims I’m crazy…”, regarding her concerns that [the child] has been “beaten up” by her husband. [The mother] stated that there had been “breaches of a Domestic Violence Order” against her husband, that there is photographic evidence of [the child] “covered in bruises” and that “everything” had been reported to the police and the Department of Child Safety. Following the last “severe” physical abuse episode of [the child] whilst in the care of her husband in August 2009, [the mother] stated that she then “withheld” him from further contact with her husband.
…
7.3 After the marriage, [the mother] stated, “within a week … his ([the father’s]) whole demeanour changed … angry all the time” and she recalled being punched “because I was sleeping on the wrong side of the bed”. When asked about her marital relationship she stated that it was “like we didn’t have a relationship … I was just supposed to be … cooking and cleaning”. [The mother] described her husband as “extremely controlling”. After the marital separation in November 2007, [the father] apparently “threatened to kill [the child] when I moved out … by driving the car into a lake and drowning him”, which she described as “a shock”. She expressed relief when she thought he was dating someone else because “… (there was) someone else to look out for him ([the child])”.
...
10.1 … She seemed genuinely concerned about the safety and wellbeing of her son whilst in his father’s care and realistic in her concerns about her husband needing anger management, but did not express significant opposition to her husband having ongoing contact with [the child].
On 23 February 2010 the mother made allegations of sexual abuse to the Police, Bravehearts and the Department of Communities (Child Safety). It is necessary to refer to some of those reports to appreciate the seriousness of the allegations.
A note from the Bravehearts records (Exhibit 1) was set out in paragraph 35 of the reasons, repeated here:
Presenting issues:
· Son defecates after each visit with dad, also does this in the bath.
· Tried to rub mum’s nipples while cuddling, mum talked about personal space and he said “it’s a game I play with daddy”.
· When mum got out of the shower he walked up behind her and inserted his fingers in her bottom.
· He asked mum to insert her fingers in his bottom, he told mum that he plays this game with his father who apparently inserts his finger into his bottom.
Action taken at time of initial call:
· Advised to call CPIU @ [Gold Coast].
· Call us if counselling is needed in the future.
A note in the police records (Exhibit 1), is also referred to in the judge’s reasons at paragraph 36:
GENERAL REPORT
The victims (sic) mother, the informant, has contacted CPIU on the afternoon of the 23/02/2010. The informant has stated that the victim child has been acting strangely over the past six months after returning from access visits with his father. The informant stated that in October 2009 the victim returned from a weekend visit and asked his mother to rub his nipples and stated that it was a game he played with his father. The informant told the victim not to do these types of things and got embarrassed. In December 2009 the victim had a toilet accident in his pants following return from his custodial stay with the suspect and also defecated in the shower and bath, the informant stated this was abnormal and victim has been toiler (sic) trained for approximately two years. The informant also made a statement that on an occasion when she was getting out of the shower she was bending over to pull up her underwear and the victim has come up behind her and stuck his finger in her anus. The informant has also made statements that the victim has tried to insert toys into his anus and spray water from a toy gun into his anus and requested that she stick her finger in his anus. The victim has told the informant that this is a game that he plays with the suspect and that it is fun and feels good. Following this phone call, Department of Child Safety were notified and stated that they were going to place a child concern report on there (sic) system and did not wish to participate in the 93A statement with the victim child. …
The Federal Magistrate in her reasons in paragraph 37 refers to the records from the Department of Communities (Child Safety) which state:
…On 23/02/2010 Notifier 1 contacted the [Gold Coast] Child Safety Service Centre (CSSC) and spoke with Child Safety Officer [O] about the following concerns: There are concerns that [the child] is being sexually abused by his father due to the following behaviour’s (sic) that [the child] has displayed since October 2009 when he returns from contact with father. Mother was bent over putting on her underwear when [the child] went up behind her and pushed his finger into her bottom. Mother was so surprised by this that she yelled at [the child]. Mother can not recall if [the child] said anything at that time. In October 2009, [the child] returned from his father’s care and asked his mother “if she could rub his nipples?...(sic) “because that is what daddy does”. In December 2009 [the child] started poo–ing his pants. He also start (sic) poo–ing in the shower and bath. He has been toilet trained since he was 2 years old. Mother has previously observed [the child] in the shower bent over trying to insert a toy into his bottom. Mother has also observed [the child] trying to squirt water in his bottom with a water pistol. Mother has stated that [the child] gets embarrassed when she talks to him about these actions. Mother has told [the child] not to invade personal space. There have also been some noticeable changes in [the child’s] behaviour with [the child] “sticking his bottom out” at his mother. This is out of character for [the child]. Mother was concerned about this behaviour so spoke to staff at Centacare where she has been attending a parenting class since 2008. Staff ([K] and the child psychologist named [M]) advised mother that she should “contact Bravehearts”. Mother did this but was advised that she “needs to call either the police or the department”. Mother stated that she had not contacted the department … (blacked out section – information removed by Department of Communities (Child Safety))…. Mother had told a worker in 2008, that father had been physically violent towards [the child] and had thrown him onto a tiled area. Mother stated that she had been advised at that time by staff that “the department would not get involved because mother was acting protectively”. … (Blacked out section – information removed by Department of Communities (Child Safety))…acknowledges the grounds of departmental intervention and has explained this to mother. Mother is concerned for [the child’s] safety. He is due to have contact with his father on Thursday 25/02/2010, and mother feels as though she is not able to protect [the child] because of the current Federal Magistrates Court Order that is in place. Mother is aware that father will take her back to court if she refuses to send [the child]. Father was previously having contact on a Saturday – Sunday every second weekend. Father then applied through the courts for further contact and was granted Thursday through to Sunday (4 days). Mother does not speak with father AT ALL. Therefore mother has not raised any of the current concerns with father. …
Reference is then made to a notification which “appears to have been from the police” (paragraph 38):
39.The child was interviewed by the police (exhibit 2). [The child’s] interview was recorded and viewed in court. The child said of his father:
“He sticks his fingers in my bottom.”
40.[The child] gave an extensive description of what happens in the shower with his father. [The child] then said he likes going to his fathers’. [The child] then said “No” when asked by the police officer if:
“That was true?”
referring to the father pulling [the child’s] bottom apart and putting his finger in the child’s bottom.
On 1 March 2010 the father filed an application seeking inter alia that the following interim orders be made:
…
3.That until further Order, the child shall live with the Father.
4.That until further Order, the Commissioner of the Australian Federal Police take all necessary steps to immediately place the child … on the Airport Watch List also known as the PACE Alert System, at all points of arrival and departure in the Commonwealth of Australia.
5.That until further Order, the Mother … and her servants or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child … from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this Order by placing the name of the said child on the Watch List enforced at all points of arrival and departure by air or sea in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court Orders its removal.
6.That pursuant to Section 67N(2) of the Family Law Act 1975, the business manager of Centrelink (formerly the Department of Social Security) provide to the Registrar of the Federal Magistrates Court of Australia at Brisbane, information about the location of the child … and/or the Mother … that is contained in or that comes into the records of Centrelink.
…
9.That the mother is restrained from taking the child to any counselling, interviews or examinations unless with the prior written consent of the father or in accordance with a Court Order.
On same date the father filed a Notice of Child Abuse.
At the trial the Independent Children’s Lawyer provided a chronology recording significant events that occurred subsequent to the father filing the application. It is useful to reproduce that document:
01/03/2010 Father files Form 4 – Notice of Child Abuse.
19/03/2010 Father files subpoena to the Queensland Police
22/03/2010 Father files Application in a Case. Orders sought are:
· That both parties attend upon [Ms B] for the purpose of an updated report.
· That [Dr V], psychiatrist be appointed Court expert.
· That the mother shall attend upon [Dr V].
24/03/2010Notice of Child Abuse and/or Family Violence filed by the mother. Notes that:
· On 24 February 2010, she was advised by Constable [H] of the [Gold Coast] Child Investigation Unit that during an interview between their officers and the child, the child made disclosures to the officers that the father had inappropriately touched the child in a sexual manner, including but not limited to inserting his finger into the child’s bottom.
24/03/2010Response filed by the mother seeking on an interim basis that:
· The father’s Application of 1 March 2010 be dismissed.
· The child live with the mother.
· Time with the father be suspended.
· The mother be able to travel outside of the country.
· The PACE alert be removed.
· The mother be permitted to recommence counselling for the child at Centacare.
25/03/2010Federal Magistrates Court before Federal Magistrate Cassidy.
· Matter set down for a second trial for 6 days commencing 9 August 2010.
· Interim judgment on the current matters to be given 31 March 2010.
01/04/2010Orders made before Federal Magistrate Cassidy. Interim orders:
·That the father spends time with the child supervised by [Ms Hutton] (the paternal grandmother) or other such person as agreed.
·That the contact provided for in the orders of 2 December 2009 between the child and his father shall recommence at 12pm Friday, 2 April 2010.
·That both parties are at liberty to provide [Ms B’s] reports, any Court orders and a copy of the transcript of Ms Densmore’s evidence to the QLD police and/or Department of Communities.
·That the child be placed on the PACE alert system.
·That the mother is restrained from removing the child from Australia.
·That an independent children’s lawyer be appointed.
·That both parties are restrained from discussing any allegations of abuse with the child or in the presence of the child.
03/06/2010Mother alleges child made disclosures about seeing photos the father had taken of his genitals and bottom
15/06/2010 Orders made before Federal Magistrate Cassidy
·Matter set down for Interim Hearing on 24 June 2010
·Directions for the parties to file material
24/06/2010 Orders made before Federal Magistrate Cassidy
·That previous Orders made by the Court stay in place
·That mother to deliver the child to the father for time with him on (sic) 3:00 pm 24 June 2010
·Application of the Mother in relation to Orders for make up time adjourned to 9 August
·Outstanding interim matters adjourned to 2 July 2010
04/07/2010Mother alleges child asked the maternal grandfather to shower with him
05/07/2010Mother alleges that the child said to the maternal grandfather “Papa we can have a shower and put fingers in our bottoms”
08/07/2010Mother alleges that the child asked the maternal grandfather if he wanted to put a torch in his bottom
20/07/2010Mother takes child to [Dr H] in relation to the child having a sore bottom
Reasons of the Federal Magistrate
Her Honour in the reasons for judgment outlined the competing proposals of the parties and comprehensively summarised the background and procedural history of the matter. The relevant law was also outlined.
It was noted by the Federal Magistrate “that the issues of domestic violence were a key feature of the mother’s case leading up to the trial on 2 December 2009”. The issues of domestic violence and the father’s abuse of the child as alleged at that time were not judicially determined, as the trial was settled by consent. Counsel for the mother submitted in the proceedings before the Federal Magistrate, that it was not for her to determine those issues. This submission was accepted to some extent.
Given that the father alleged that the child was at risk of emotional abuse in the care of the mother, and that his time with the child had been suspended as a result of the allegations of domestic violence raised by the mother, her Honour was of the view that the nature and effect of the mother’s allegations were of considerable importance to her determination.
It was of some concern to the trial judge that the mother did not persist with obtaining a final protection order given the seriousness of her allegations. It can be said that this concern was heightened by the mother previously consenting to orders that provided for equal shared parental responsibility and for the father to have unsupervised time with the child.
The evidence of the family report writer, Ms B, was accepted by the trial judge. That evidence indicated that the child had a positive relationship with both parents and was not considered to be at an unacceptable risk from abuse in the father’s care. Ms B was concerned that the mother’s and the child’s reports of the various alleged incidents were not consistent. She noted that the child was not distressed in his discussion with the police regarding the “sexual incidents”, and that the child had only exhibited sexualised behaviours in the mother’s household.
Her Honour in her discussion of the sexual abuse allegations, concluded at paragraph 83 that she was:
… satisfied that there is a risk of emotional harm if the child remains in the mother’s care because:
a)The string of domestic violence allegations over two years resulted in the father’s contact being stopped from time to time and supervised at other times. This is despite the mother consenting to unsupervised time when the final hearing was about to proceed; and
b)The allegations of sexual abuse can place the child at risk of emotional harm if they result in the need for supervised contact when there is no unacceptable risk of harm of sexual abuse present.
The Federal Magistrate with regard to the primary considerations prescribed in section 60CC of the Family Law Act 1975 (Cth) (“the Act”) found that it was important for the child to have a meaningful relationship with both parents. It was also said that there was a need to protect the child from being exposed to the risk of abuse. The trial judge said at paragraph 86:
I consider the child is at risk of emotional abuse if he remains in the mother’s care because she will continue to make allegations of the father’s abuse of the child and this will result in the child having periods of no time or supervised time with the father.
It was also noted by the trial judge that the mother had not encouraged the father to participate in making decisions concerning the child. It was said that the mother “acted unilaterally in changing the child’s kindergarten and stopping contact with the father”.
In considering the effects of any changes in the child’s circumstances it was said at paragraph 96 that:
I have no doubt that the separation of the child from his mother would have serious effect on him. This has to be balanced against the unacceptable risk of emotional harm if I were to leave the child in the mother’s care unsupervised.
The trial judge concluded that “the child is at risk of emotional harm in the mother’s care and that risk is unacceptable” and that she did “not intend to order shared parental responsibility”. Her Honour made the orders largely as proposed by the Independent Children’s Lawyer at the conclusion of the proceedings.
The law
This is an appeal against a discretionary judgment. The well settled principles are discussed in House v King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; Norbis v Norbis (1986) 161 CLR 513 and CDJ v VAJ (1998) 197 CLR 172 apply and need not be restated other than to highlight below the particular circumstances of this case.
In circumstances where no error of law or fact is obvious, it is as well to recall the decision of the High Court in Gronow v Gronow where at 519-20 it was said by Stephen J that:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight. In the present case it should not have been done so at all.
In addition a challenge has been made to the adequacy of the reasons. The Full Court (Nicholson CJ, Simpson and Finn JJ) in In the marriage of Bennett (1990) 14 Fam LR 397 considered the authorities relating to the adequacy of reasons. The test propounded in the Supreme Court of Victoria by Gray J in Sun Alliance Ltd v Massoud [1989] VR 8 was described as “particularly useful” and is as follows:
The adequacy of reasons will depend upon the circumstances of the case, but the reasons will, in my opinion, be inadequate if:-
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.
The two stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficient disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
The following statement by Fogarty J in N v S (1996) FLC 92-655 at 82,713 to 82,714 is of considerable assistance in this case in view of her honour’s conclusions:
The essential importance of the unacceptable risk question as I see it is in its discretion to judges to give real and substantial consideration of the facts of the case and to decide whether or not and why not those facts could be said to raise an unacceptable risk of harm to the child. Thus the value of the expression is not in a magical provision of an appropriate standard in its discretion to judges to consider deeply where the facts of the particular case fall and to explain adequately their findings in this regard.
Grounds of Appeal
The grounds of appeal pursued by the mother, in summary, were that the Federal Magistrate:
·Did not provide adequate reasons for the finding that the child was at risk of emotional abuse and erred in finding that the child was at risk of emotional abuse if he remained in the mother’s care, or in the alternative, that the Federal Magistrate’s findings were contrary to or otherwise not supported by the evidence (“ground 1”).
·Failed to take into account the sexualised behaviours observed by the mother and her father or failed to make any findings about whether those behaviours occurred (“ground 2”).
·Failed to make any findings as to whether the child did or did not make the statements alleged by the mother and her father indicating abuse and why the statements were made (“ground 3”).
·Erred in failing to adequately consider s 60CC(4) of the Act (“ground 12”).
Ground 1
Counsel for the mother submits that ground one is a challenge to the adequacy of the reasons of the trial judge and a challenge to the ability of the evidence at trial to support her Honour’s findings.
It is said at paragraph 7 of the mother’s written submissions that:
On its face, the chain of reasoning employed by the learned Federal Magistrate is that there is a potential for risk of emotional abuse or a risk of emotional abuse if the Mother continues to make unwarranted allegations that the Father has abused the child. For reasons that are not identified in the judgement, this risk is eventually assessed as an unacceptable risk.
Counsel submits that the reasons in relation to the finding of risk of emotional abuse of the child by the mother are deficient in four ways. First, that the reasons do not accurately reflect the relevant law. Secondly, that the reasons do not explain how the conclusion of unacceptable risk was reached. Thirdly, that the evidence identified in support of the conclusion cannot be said to be of sufficient weight to justify the finding. Fourthly, that there was insufficient evidence available at trial to enable the finding.
It was submitted on behalf of the mother that there are deficiencies in the identification of the law. Her counsel notes that the reasons pose a question of emotional abuse of the child by the mother in three parts of the judgment:
a.First, it was found that the Mother’s history of allegations touching on the child’s safety when in the father’s care has the “potential” to amount to “a risk of abuse” (para 73);
b.Second, it was found that the Mother had a pattern of making allegations against the Father in order to suspend or put trammels on the Father’s time with the child and that this behaviour created a “risk” of emotional harm if it continued (para 83 & 86);
c. Third and without further reference to the evidence or application of the said findings to the question in hand, the learned Federal Magistrate “…concluded that the child is at risk of emotional harm in the Mother’s care and that risk is unacceptable” (para 99). (original emphasis)
The mother asserts that the trial judge fell into error in failing to apply the test prescribed in M v M (1988) 166 CLR 69 and W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235. It is said that the sole reference to “unacceptable risk” fails to identify any or all of the following:
a.How the evidence of potential risk or of risk itself segues, if at all, to the finding of unacceptable risk;
b.How unacceptable risk differs (if at all) from the potential of risk of abuse or a risk of abuse itself;
c.If the evidence supporting a finding of unacceptable risk is the same or different from the evidence supporting a concern about the potential of risk of abuse or a risk of abuse itself;
d.The particular evidentiary basis for the finding of unacceptable risk.
Two additional arguments were submitted in the alternative. First, that it can be inferred that the trial judge “proceeded on the basis of the findings of potential of risk and/or that there was a risk of emotional abuse somehow inexorably led to the conclusion of unacceptable risk”.
Secondly, that it can be inferred that her Honour “proceeded on the basis that the findings of potential for risk and/or that there was a risk of emotional abuse had no connection with the finding of unacceptable risk”.
In either eventuality, it was submitted “the reasons are opaque either because the reader is left to infer the syllogistic reasoning behind the finding or to engage in an eisegetic reading of the judgement and import the evidence which supports the finding”. It is said that both these interpretations demonstrate that the Federal Magistrate misdirected herself to either the relevant law or the application of the law.
Counsel for the mother submits that there was insufficient evidence available to support the conclusion that the mother would continue to make allegations against the father after the trial process was over or that should the mother continue to make allegations, how that behaviour posed an unacceptable risk to the child.
It was said that in cases where the implications of the orders are as severe as in the present circumstances care needs to be taken to set out appropriate reasons so that others, and in particular the mother, can ascertain the reasons for the decision (see Robertson & Sento [2009] FamCAFC 49 at paragraph 26).
In concluding the written submissions on this ground it is said:
… in circumstances where the consequence of a finding of unacceptable risk of future emotional abuse is the shift of the child from the primary care of the Mother into that of the Father (after a period of nearly a year supervised time spent with the Mother) then the evidence needs to satisfy the same Brigginshaw-standard of rigour as applies to findings of unacceptable risk of sexual abuse. It is submitted that, in the circumstances of this judgement, there was either:
a.No evidence cited or insufficient evidence cited in the judgement to satisfy the relevant standard of proof; or
b.No evidence or insufficient evidence available at trial to satisfy the relevant standard of proof.
In response to criticisms of the mother, in oral submissions it was said that the explanation for why the mother did not recount the behaviours that she described the child to be exhibiting to Dr G, was because the mother was under the impression that she was at the psychiatrist to discuss herself only.
It was also submitted that there was no evidence that the mother had “coached” the child. This is important because there was expert evidence before the court that if the mother was coaching the child to make false allegations against the father then this would amount to emotional abuse. It was submitted “[i]n light of the learned Federal Magistrates observations about the assistance of the expert evidence as to whether the Mother had, in fact, coached the child then it is unsurprising that no such finding occurs in the judgement”. (own emphasis)
Counsel for the mother submitted that the mother had consistently adhered to court orders and that the trial judge “proffered the observation that she had full confidence that the parties” would continue to comply with the orders. It was contended that this is evident in the following exchange at the trial hearing on 10 August 2010:
MR WESSLING‑SMITH: Yes. So I'll hopefully clarify that for you, [the mother]. If her Honour can't or doesn't make a finding that my client has committed these acts against [the child], so you don't have the peace of mind one way or the other whether those acts have occurred according to this court, then if that alternative arrangement is put in place, are you saying that you will be happy enough to comply with the orders and let [the child] go to his father unsupervised?
MOTHER: Well, I'll have to comply with whatever orders her Honour made. I really don't understand what you're asking.
HER HONOUR: They've been very appropriate at complying with orders in this matter throughout.
MR WESSLING‑SMITH: Sorry, your Honour.
HER HONOUR: Both parties have been compliant with orders as I've made them in this matter. I have no doubt they'll comply with the orders that I'm making.
In response to ground 1, counsel for the father submits that paragraphs 86 to 99 of the judgment contain the trial judge’s consideration of the risk to the child of emotional harm. In view of the submissions, it is important that these paragraphs are reproduced here:
86.I consider the child is at risk of emotional abuse if he remains in the mother’s care because she will continue to make allegations of the father’s abuse of the child and this will result in the child having periods of no time or supervised time with the father.
Additional Considerations
87.In this matter I consider the additional considerations that are relevant to be as follows:
The Child’s Views
88. This consideration is set out in s.60CC(3)(a) as follows:
“Any views expressed by the child and any factors such as the child’s maturity or level of understanding that the Court thinks are relevant to the weight it should give to the child’s views.”
89.[The child] is quite young and any wishes he might express would be of little weight in this case.
Child’s Relationship with Significant Persons
90. This consideration is set out in s.60CC(3)(b) as follows:
“(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child );”
91.I am satisfied the child has a positive relationship with both his mother and his father, as well as with his grandparents. This conclusion is supported by the evidence of [Ms B].
Parenting and Discharge of Parenting Responsibilities
92.In the circumstances of this case, it is convenient to deal under this heading with a number of considerations listed in s.60CC and also ss.4 and 4A. I consider under this heading the following paragraphs of s.60CC(3):
“…
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
…
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
…
(i) the attitude to the child, and to the responsibilities of parenthoodhttp:// - parent, demonstrated by each of the child’s parents;”
93. Section 60CC(4) and 4(A) provide as follows:
“(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parenthttp:// - parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.”
94.The mother did not encourage the father to participate in decisions in relation to [the child]. She acted unilaterally in changing the child’s kindergarten and stopping contact with the father.
Effects of Any Changes in the Child’s Circumstances
95. Section 60CC(3)(d) of the Act requires the Court to consider:
“(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;”
96.I have no doubt that the separation of the child from his mother would have a serious effect on him. This has to be balanced against the unacceptable risk of emotional harm if I were to leave the child in the mother’s care unsupervised.
Family Violence
97.I have already considered and made findings about family violence in my consideration of the issue and therefore it is unnecessary to consider this issue again.
Orders that are least likely to Result in Further Litigation
98.It is not apparent that the proposal of the mother or the father would be less likely to lead to further proceedings.
99.I have concluded that the child is at risk of emotional harm in the mother’s care and that risk is unacceptable. Therefore I do not intend to order equal shared parental responsibility. (original emphasis)
It is submitted on behalf of the father that the mother’s pattern of behaviour, as found by the Federal Magistrate, demonstrated a unilateral withholding of contact and the filing of applications alleging domestic violence and sexual abuse resulted in the father’s time with the child being supervised.
Further that her Honour’s finding that the child is at risk of emotional harm in the mother’s care is adequately supported by the evidence that was adduced at trial.
It is said that it would be naïve of the mother to ignore the domestic abuse allegations, and that upon realising that it was a pivotal component of the father’s case, the mother was given leave to adduce further evidence. It was submitted that whilst the mother provided an explanation about her failure to raise the sexual abuse allegations with the psychiatrist, her actions can be seen to be “extremely naïve” at least.
In response to the submission by counsel for the mother that there was no evidence of the mother “coaching” the child, it was submitted that although the actual term was not used, it was apparent from the judgment where the evidence of Ms B was discussed in the reasons as follows:
79. When the child was interviewed by Ms [B], he said:
“Mummy was talking about Daddy’s dicky being in my bottom, but he didn’t … It was just pretend … I’m a big fat head.”
80.The mother alleges that this is not what the child said. Ms [B] was challenged on this point by Dr Sayers.
81.I accept Ms [B’s] evidence. She was taking notes and the child was in the room with her. The mother was in the adjoining room. I do not consider that she could hear as well as Ms [B]. Further, Ms [B] is an independent witness in the case. (original emphasis)
In their response to ground 1, the Independent Children’s Lawyer submits that the trial judge had not misdirected herself or failed to identify the relevant law as her reasons for judgment “accurately detail the relevant law”. It is said that when all the relevant paragraphs are considered the reasons are not deficient or unsubstantiated.
The Independent Children’s Lawyer submitted that the reasons are “clear and distinct” and is of the view that there is sufficient evidence to justify her Honour’s findings.
It is further submitted by the Independent Children’s Lawyer that there is “ample” evidence supporting the contention that the mother would continue to make allegations against the father. It is said that the mother’s allegations of domestic violence and sexual abuse made over a considerably extensive period inter alia support her Honour’s findings.
After considering the various submissions made in respect of ground 1, I am of the view that there is considerable substance in the submissions of the mother. Although it is correct that there is a history of the mother making allegations against the father, the effect being that his time with the child has on occasion been affected, it is a considerable leap to conclude from that in these circumstances that the mother will continue to make allegations against the father, that this will result in no time with the father and that therefore the child is at risk of emotional abuse from the mother (Reasons paragraphs 86 & 99). In my view the reason for this conclusion is not apparent.
Based on the expert evidence of Ms B it was open to her Honour to find that the father did not present an unacceptable risk to the child. However, it does not necessarily follow that the mother is a risk.
In the absence of a finding that a mother has coached a child or has not been truthful in making various allegations of abuse, it is not correct that a finding that the father does not present as a risk leads to a conclusion that the mother may continue to make allegations and therefore presents as a risk to the child.
Grounds 2 & 3
Counsel for the mother, and subsequently both counsel for the father and the Independent Children’s Lawyer, addressed grounds 2 and 3 together. For convenience I will also consider these two grounds jointly.
It was submitted on behalf of the mother that these grounds to some extent “echo ground 1”, as they challenge the adequacy of the reasons of the Federal Magistrate and how the evidence provided by the mother and the mother’s father was considered. The grounds are also said to be a challenge to her Honour’s discretion.
The mother submits that the trial judge made “passing reference to the alleged behaviours/disclosures” of the child, with the only finding “in respect to those alleged phenomena is that it seemingly occurs only in the Mother’s household”. Counsel submits that the finding was used to support the assertion that the child is not at risk of sexual abuse in the father’s care.
With regard to ground 3, it is conceded that it is arguable that as the “phenomena” are included in “the raft of factors which supported a finding that the child was not at unacceptable risk of sexual abuse by the Father then, by necessary implication, findings of fact were made that the phenomena did in fact occur”. Counsel explains that although this may mitigate against ground 3, it “bolsters the force” of ground 2, as it “then behoved the learned Federal Magistrate to explain how that finding connected with either the finding of no unacceptable risk (future) of sexual abuse and an unacceptable risk of (future) emotional abuse”.
The father submits, in relation to grounds 2 and 3, that the sexualised behaviours on the part of the child only occurring in the mother’s household was only one factor which influenced her Honour in deciding that the father was not a risk to the child.
The father submits that the Federal Magistrate did consider all the available evidence and that the reasons provided by her Honour were adequate.
The Independent Children’s Lawyer submits that the Federal Magistrate comprehensively dealt with the evidence of the mother and the mother’s father in relation to the sexualised behaviour observations, through a “clear and exhaustive” chain of reasoning.
There is substance in both grounds 2 and 3. In particular, the findings of unacceptable risk against the mother, while they may have been open on the evidence, are unexplained. It would not be apparent to the mother how such a conclusion was drawn, nor is it to me.
The judgment does not stand the scrutiny of the Bennett test nor that in Sun Alliance, justice is not seen to have been done.
Ground 12
Counsel for the mother conceded that “on the face of the judgement” it can be seen that the trial judge was conscious of the need to consider s 60CC(4) in ascertaining the best interest of the child pursuant to s 60CC(3). It is said that the challenge is directed to the “brief compass in which those mandatory considerations are dealt with”. I have set out under the heading “Ground 1” the relevant part of the reasons which appear minimal. In particular, the limited reference in paragraph 96 of the reasons to the effect on the child of the orders made by the trial judge.
The Federal Magistrate could have more comprehensively dealt with these considerations but this ground on its own would not lead me to allow the appeal.
Conclusion
In view of the circumstances of the case, especially the submissions in regards to grounds 1, 2 and 3, I am of the view that the appeal should be allowed and that the matter be remitted for re-hearing.
I certify that the preceding one hundred and seventy seven (177) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, May & Austin JJ) delivered on 5 May 2011.
Associate:
Date: 5 May 2011
- AGLC
- Ruth & Hutton [2011] FamCAFC 99
- Case
- [2011] FamCAFC 99
- Decision Date
CaseChat Overview and Summary
The court found that the mother's criticisms of the Federal Magistrate's reasons were overly meticulous and did not meet the exacting standards of a High Court review. The court held that the Federal Magistrate's reasons were transparent and coherent, and adequately supported by the facts. The court noted that the Federal Magistrate had correctly considered the relevant factors, including the risk of emotional harm to the child if left in the mother’s care, the child's relationship with both parents, and the parents' willingness and ability to facilitate a close and continuing relationship between the child and the other parent. The court concluded that it was open to the Federal Magistrate to find that the father did not present an unacceptable risk to the child, but that it did not follow that the mother was a risk to the child. The court dismissed the mother’s appeal and ordered the mother to pay the costs of the appeal of both the father and the Independent Children’s Lawyer.
In a dissenting judgment, May J held that the orders of the Federal Magistrate resulted in a significant change to the child’s care arrangements. May J considered that there was insufficient evidence to support the conclusion that the mother would continue to make allegations against the father and that such allegations posed an unacceptable risk to the child. May J argued that the Federal Magistrate should have provided more detailed reasons so that the mother could understand the basis of the decision. May J also considered that it was a considerable leap to conclude from the mother's allegations and past withholding of contact that she would continue to make allegations, resulting in the child having no time or supervised time with the father, and therefore that the child was at risk of emotional abuse from the mother. May J held that it was open to the Federal Magistrate to find that the father did not present an unacceptable risk to the child but that it did not follow that the mother was a risk to the child.
The final orders of the court were that the appeal be dismissed and that the mother pay the costs of the father and Independent Children’s Lawyer of and incidental to the appeal in the sums agreed or assessed on a party/party basis.
Orders
Orders of the court
1.
The appeal be dismissed.
2.
The mother shall pay the costs of the father and Independent Children’s Lawyer of and incidental to the appeal in the sums agreed or assessed on a party/party basis.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
In response to ground 1, counsel for the father submits that paragraphs 86 to 99 of the judgment contain the trial judge’s consideration of the risk to the child of emotional harm. In view of the submissions, it is important that these paragraphs are reproduced here:86.I consider the child is at risk of emotional abuse if he remains in the mother’s care because she will continue to make allegations of the father’s abuse of the child and this will result in the child having periods of no time or supervised time with the father. Additional Considerations87.In this matter I consider the additional considerations that are relevant to be as follows:The Child’s Views88. This consideration is set out in s.60CC(3)(a) as follows:“Any views expressed by the child and any factors such as the child’s maturity or level of understanding that the Court thinks are relevant to the weight it should give to the child’s views.”89.[The child] is quite young and any wishes he might express would be of little weight in this case. Child’s Relationship with Significant Persons90. This consideration is set out in s.60CC(3)(b) as follows:“(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child );” 91.I am satisfied the child has a positive relationship with both his mother and his father, as well as with his grandparents. This conclusion is supported by the evidence of [Ms B]. Parenting and Discharge of Parenting Responsibilities92.In the circumstances of this case, it is convenient to deal under this heading with a number of considerations listed in s.60CC and also ss.4 and 4A. I consider under this heading the following paragraphs of s.60CC(3):“…(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;… (f) the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs; …(i) the attitude to the child, and to the responsibilities of parenthoodhttp:// - parent, demonstrated by each of the child’s parents;” 93. Section 60CC(4) and 4(A) provide as follows:“(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents: (a) has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long‑term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child; and (b) has facilitated, or failed to facilitate, the other parenthttp:// - parent: (i)participating in making decisions about major long‑term issues in relation to the child; and (ii) spending time with the child; and (iii) communicating with the child; and (c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child. (4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.” 94.The mother did not encourage the father to participate in decisions in relation to [the child]. She acted unilaterally in changing the child’s kindergarten and stopping contact with the father. Effects of Any Changes in the Child’s Circumstances95. Section 60CC(3)(d) of the Act requires the Court to consider:“(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;”96.I have no doubt that the separation of the child from his mother would have a serious effect on him. This has to be balanced against the unacceptable risk of emotional harm if I were to leave the child in the mother’s care unsupervised. Family Violence97.I have already considered and made findings about family violence in my consideration of the issue and therefore it is unnecessary to consider this issue again. Orders that are least likely to Result in Further Litigation98.It is not apparent that the proposal of the mother or the father would be less likely to lead to further proceedings. 99.I have concluded that the child is at risk of emotional harm in the mother’s care and that risk is unacceptable. Therefore I do not intend to order equal shared parental responsibility. (original emphasis)