Ryder & Donaldson
[2018] FamCAFC 260
•20 December 2018
FAMILY COURT OF AUSTRALIA
| RYDER & DONALDSON | [2018] FamCAFC 260 |
| FAMILY LAW – APPEAL – PARENTING – Where orders changed the child’s primary carer – Where time orders start with supervised time and move to unsupervised time – Adequacy of reasons – Application of s 60CC of the Family Law Act 1975 (Cth) – Whether findings are inconsistent with the orders made – Whether the orders made were unsupported by the evidence – Whether the evidence was misconstrued – Where the party in favour of whom orders as to time made failed to propose orders in the event child removed from her care - Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Application for costs on an indemnity basis – Where the matter is not one that would attract indemnity costs – Order for costs made on a party-party basis. |
| Family Law Act 1975 (Cth) ss 60CC, 65DAA |
| Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Harris & Dewell (No. 2) (2018) FLC 93-863; [2018] FamCAFC 180 House v The King (1936) 55 CLR 499; [1936] HCA 40 Mellick & Mellick [2014] FamCAFC 236 Metwally v University Wollongong (1985) 60 ALR 68; [1985] HCA 28 Prantage & Prantage (2013) FLC 93-544; [2013] FamCAFC 105 Pruchnik v Pruchnik (No. 2) (2018) 58 Fam LR 458; [2018] FamCAFC 128 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 |
| APPELLANT: | Ms Ryder |
| RESPONDENT: | Mr Donaldson |
| FILE NUMBER: | BRC | 3460 | of | 2015 |
| APPEAL NUMBER: | NOA | 70 | of | 2017 |
| DATE DELIVERED: | 20 December 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Ryan, Aldridge & Baumann JJ |
| HEARING DATE: | 30 July 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 November 2017 |
| LOWER COURT MNC: | [2017] FamCA 920 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Bunning |
| SOLICITOR FOR THE APPELLANT: | Sarah Cleeland Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Frizelle |
| SOLICITOR FOR THE RESPONDENT: | Keyworth, Harris & Lowe Family Lawyers |
Orders
The appeal be dismissed.
The appellant pay the respondent’s costs fixed in the sum of $7,575.87 within sixty (60) days.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ryder & Donaldson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 70 of 2017
File Number: BRC 3460 of 2015
| Ms Ryder |
Appellant
And
| Mr Donaldson |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed 11 December 2017, Ms Ryder (“the mother”) appeals against parenting orders made on 14 November 2017. The mother and Mr Donaldson (“the father”) have one child, a son B, who was born in 2013 (“the child”). The father resists the appeal and seeks that the orders be upheld.
After a short relationship, the parties separated in August 2014 at which time the child was 13 months of age. By agreement, the child remained with the mother. However, she rebuffed requests by the father to spend time with the child and there were extended periods, for example from late October 2014 to June 2015, when the mother refused all requests and there was no contact between them at all. Even after the father commenced proceedings and orders were made by consent for the child to spend time with the father, there were periods when the mother refused to comply.
The mother’s approach to time was driven by her belief that the father had sexually abused the child and posed an unacceptable risk of sexual abuse to the child. The primary judge was not satisfied that the father had sexually abused the child or that the child was “at risk of sexual abuse from the father” (at [117]). Furthermore, the mother was found to have “no current capacity to rationally assess other more probable alternatives” (at [153]) and if the child remained with the mother, he would not have a relationship with the father and “will grow up believing his father has sexually molested him and he will be encouraged in this view” (at [155]).
Thus, orders were made for the child to live with the father and for him to have sole parental responsibility for the child. For a period of six months, the child would spend time with the mother under supervision followed by unsupervised time which would culminate in time each alternate Friday from after school until the commencement of school the following Tuesday, for a few hours after school each Wednesday, and, commencing in 2019, half of all school holidays.
It is immediately apparent that these orders represent a significant change in the child’s living arrangements. As to the effect of change, the primary judge accepted evidence given by the family report writer (Ms Q) that a change in the child’s primary carer would cause him significant and acute loss. Although this would be traumatic, at least initially, again, based on the opinion expressed by the family report writer, it was accepted that the child “would recover from the disruption involved in a change of his primary care without permanent risk to his emotional or psychological development” (at [166]).
An Independent Children’s Lawyer (“ICL”) was appointed to represent the child’s interests. At trial, the ICL argued against a change in primary carer. Although served, the ICL did not participate in the appeal.
Background facts
In order to provide some context to the primary judge’s reasons and the parties’ submissions it is necessary to set out a brief chronology.
As we have already recorded, the parties separated in August 2014 after a short relationship when the child was 13 months of age. The child spent limited time with the father, by arrangement, until October 2014 when time ceased.
The father commenced proceedings in the Federal Circuit Court of Australia in April 2015 and on 9 June 2015 orders were made by consent that the parties have equal shared parental responsibility for the child, for him to live with the mother and spend unsupervised time with the father, initially for three hours each Saturday and Sunday with a stepped increase over some months to alternate weekends from Friday to Sunday.
Overnight time did not commence until 29 August 2015. However a further interim order was made in November 2015, again by consent, which provided for the child to spend weekly time with the father including overnight on alternate weekends.
In January 2016 the child demonstrated what the mother felt was sexualised behaviour, and although time between the child and the father continued to occur, all time ceased on 19 March 2016 and did not resume until an interim consent order for supervised time was made on 17 November 2016.
During the period between March and November 2016, it was the mother’s evidence that the child began to discuss “monsters” and displayed “excessive fear, panic and trauma behaviours at night time, bed time and in the dark associated to his father”. The primary judge discussed audio recordings made by the mother of the child (at [42] – [46]) and other asserted disclosures by the child recorded in diary notes maintained by the mother (at [47] – [52]). The Department of Communities, Child Safety and Disability Services in April/May 2016 stated that there was “insufficient evidence … that [the child] has been sexually abused”.
For completeness, after final orders were made on 14 November 2017 the primary judge made a variation to the orders on 21 May 2018 as to how changeovers were to be facilitated.
Grounds of Appeal
The mother initially raised five grounds of appeal, however the final ground was abandoned in the appeal hearing. Before we turn our attention to the mother’s complaints, it needs to be understood that this is an appeal against the exercise of discretion which is to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. A different view by an appellate court only on matters of weight by no means justifies a reversal of a decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519).
It should be understood that no challenge is made to her Honour’s findings that the father does not pose a risk to the child, that the child enjoys his time with the father and they have had a close and loving relationship (at [145]). Nor is any challenge made to the finding that “[w]hatever the circumstances during their relationship, family violence is not currently a factor that would cause me to find that [the child] should not live with a parent or spend time with them” (at [159]).
Ground 1 - Are the findings that led to the child’s change of residence inconsistent with the unsupervised time orders?
Ground 1 focuses on the decision that the child live with the father. The gravamen of this challenge is that her Honour’s conclusion that if the child lived with the mother he would “grow up believing his father has sexually molested him and he will be encouraged in this view” (at [155]) and would “continue to be exposed to [the mother’s] anxiety and nervousness and propensity to jump to conclusions” (at [156]) are inconsistent with later findings which justified orders for unsupervised time. The argument being that “[o]n the one hand the learned Judge gives reasons as to why the [mother] would continue to behave in a manner which would place [the child] at the risk of future emotional harm, but Orders [sic] (after a period of supervision) unsupervised time” (mother’s summary of argument at paragraph 10).
The primary judge in effect undertook a risk assessment, which required her to balance two competing risks, being the risk to the child’s relationship with the father if he remained in the care of his mother compared with the situation if he lived with his father and spent time with the mother. As a fair reading of the trial reasons demonstrate, the risk to the child’s relationship with the father in the first scenario was found to be so great that the relationship would not survive. In the second scenario the risk was less extreme and the damaging effect of the mother’s approach to the child’s relationship with the father would be moderated by the fact that the child would spend far greater lengths of time in the father’s care than in the mother’s.
The foundation for the finding that the child living with the mother would expose him to a likely severance of his relationship with the father includes findings at [109], [123], [146], [148] and [150], as summarised by the primary judge’s conclusion that “if [the child] stays with the mother he will not have a relationship with the father. He will grow up believing his father has sexually molested him and he will be encouraged in this view” (at [155]).
As referred to above, the primary judge was well aware of the significance of an order changing the child’s residence. Whilst critical of the mother, her Honour nonetheless expressed optimism that, after a period of supervised time which would allow the mother time to come to terms with the findings made, to engage in therapy and for the child to develop a more secure attachment with the father, unsupervised time with the mother in the future was in the child’s best interests (at [168], [170] – [172]. The primary judge expected “that in time the mother will put her desire to spend time with [the child] above her stated beliefs” (at [169]). While unsupervised time with the mother (after the carefully crafted order allowing the child to settle into the father’s full-time care) did not extinguish all risks of the mother’s negative influence, the child would have the benefits of living primarily with the father which would provide a bulwark against the mother’s negativity towards the father.
Thus, seen in context, her Honour’s reasons for making the orders she did are not “internally inconsistent”. Put simply, there was an unacceptable risk of harm to the child if he continued to live with the mother. This risk required a change of primary residence and a period of supervised time to allow the child to build a relationship with the father and to break the cycle of harm, followed by a reintroduction of unsupervised time with the mother so that hopefully the child would end up with a meaningful relationship with both parents, as opposed to the continuation of the status quo where the child could not have a meaningful relationship with his father. There is no merit in this ground.
Grounds 2 and 3 - The child’s time with the mother
By Grounds 2 and 3 the mother makes various challenges to orders concerning the child’s time with her. As was mentioned earlier, orders were made for the child to have graduated time with the mother, commencing with six months of supervised time and thereafter unsupervised time. No challenge is made to the order for supervised time. This is because the period of supervised time had expired and such a challenge would have been an exercise in futility.
The orders the subject of these grounds of appeal provide:
(5)The child shall spend time with the mother at all such times as may be agreed between the parents in writing but failing agreement as follows:
(a)Commencing on Saturday 25 November 2017 for two hours on two occasions each week at the [C Centre] (“the Centre”) at […] in the State of Queensland such time to be supervised by an employee of the Centre with any fees charged by the Centre to be paid equally by the parties;
(b)Commencing on 26 May 2018 from 9.00 am Saturday to 5.00 pm Sunday each alternate weekend and each Wednesday from 3.00 pm until 6.00 pm;
(c) Commencing in term one in 2019 during school term from conclusion of school Friday until commencement of school Tuesday in each alternate week term and each Wednesday from after school until 6.00 pm;
(d)Commencing in 2019 for one half of all school holidays during which the time pursuant to subparagraph (c) will be suspended.
In relation to these orders, it is said that the primary judge erred in making Orders 5(b), (c) and (d) (“the unsupervised time orders”) by:
·Failing to give adequate reasons (Ground 2(a));
·Failing to consider s 60CC of the Family Law Act 1975 (Cth) (“the Act”) (Ground 2(b));
·Making such orders where there was no evidence to support them (Ground 2(c)); and
·Failing to make orders within the definition of significant and substantial time as per s 65DAA(3) of the Act, in conflict with the finding at [172] (Ground 3).
Before considering these grounds the genesis of the unsupervised orders needs to be understood. In the event that the child lived with the father, the primary judge was presented with one suite of orders proposed by the father and another proposed by the ICL in relation to the child’s time with the mother. The mother did not submit any proposal of her own, and no submissions were made on her behalf about which of the two proposals should be preferred. Moreover, although the primary judge raised the notion of supervised time, questioned the wisdom of immediate unsupervised time and clearly raised the issue of the child’s time with the mother in the event orders were made that the child live with the father, the mother (who was represented at trial) remained silent on the issue.
As it transpired, the primary judge made the unsupervised time orders in favour of the mother in slightly more generous terms than the father proposed during school term and in accordance with his proposal for school holidays. It was open to the mother to consent to orders along the lines of those which the father proposed or identify parts which she thought were or would be appropriate. She did neither.
It is trite to say that a party is generally bound by the conduct of his or her case. The significance of this on appeal is that it is only in the most exceptional circumstances that a party will be permitted to raise a new argument (particularly in relation to factual matters that are contentious and in relation to which it is said the evidence was deficient) which was not advanced in the court below (Metwally v University Wollongong (1985) 60 ALR 68 at 71; Coulton v Holcombe (1986) 162 CLR 1 at 7 – 8). These principles have been applied in similar circumstances to those which arise here (see Mellick & Mellick [2014] FamCAFC 236 at [82] – [89]; Pruchnik v Pruchnik (No. 2) (2018) 58 Fam LR 458 at [59] – [62]).
In this case there was no requirement for the primary judge to give extensive reasons on the point and the mother cannot now complain about the primary judge failing to make orders which she was not asked to make.
The test of adequacy of reasons must be seen within the context of the circumstances of the case (see, for example Sun Alliance Insurance Ltd v Massoud [1989] VR 8). The relevant circumstance here is that the mother did not make any proposals if the child lived with the father as to her time with the child or in respect of special occasions. If, as she now says, consideration should have been given to occasions such as birthdays, Mother’s Day, Christmas and the like, these matters should have been raised at trial. The salient facts needed to be placed before the primary judge and the case for different orders made out.
As to the application of s 60CC of the Act and the suggestion the “judge considered none of the s 60CC factors as she was required to do” (see mother’s Summary of Argument at paragraph 14), the primary judge identified that these provisions would inform her determination (at [22]) and it can be seen that the provisions were duly applied. It was not necessary, as seems to be implied, for the primary judge to incant each subsection as it was discussed. The submission of counsel for the father that the primary judge “addressed the most significant section 60CC factors to be applied” should be accepted. On a fair reading of the trial reasons there can be no doubt that the critical issues of the child’s relationships with each of the parents (ss 60CC(2)(a), 60CC(3)(b)), changing the child’s circumstances (s 60CC(3)(d)), the parents’ capacity to provide for the child (s 60CC(3)(f)), the parents’ attitudes towards the responsibilities of parenthood (s 60CC(3)(i)) and risk (s 60CC(2)(b)) were duly addressed.
As to Ground 3, whilst at [172] the primary judge said “in time, the mother should spend substantial and significant time with [the child] as that term is defined in the Act”, such misdescription does not reveal any failure by her Honour to fully appreciate the details and significance of the orders she made. In circumstances where s 65DAA(3) of the Act did not apply (as counsel for the mother acknowledged) and where the primary judge did not purport that it did, there is no merit in this ground.
Ground 4 – Did the primary judge misconstrue the mother’s evidence in a critical and material way?
This ground is focused on her Honour’s finding that the mother would not be able to accept a finding that the child was not at risk of harm from the father and thus she would continue to disrupt the child’s relationship with him.
At [152] the primary judge said:
I do not accept the mother’s assurance that she will accept findings that the father does not present an unacceptable risk of harm to [the child]. [Ms Q] considers that the beliefs are now firmly held and that was also my impression of the mother in the witness box. When asked whether she would accept findings contrary to her beliefs she took some time to answer and was in tears. She said words to the effect that she would continue to do what she has in the past but in the past she has not complied with court orders and has engaged in evidence gathering behaviour to the detriment of the child.
This finding was supported by further findings at [153] – [156], which are said to be critical to her Honour’s decision to change the child’s primary living arrangements. Her Honour said:
153. It is my view that the mother has patched together unrelated and illogical pieces of ‘evidence’ to corroborate her views. There is no rational basis for the mother holding the beliefs she does. She has no current capacity to rationally assess other more probable alternatives.
154. Despite the mother engaging in counselling in the past I consider it more likely than not that the mother will continue to misinterpret future information and events to support her belief that abuse has occurred and would continue to behave in a manner which would place [the child] at risk of future emotional harm.
…
156. The mother has a history of anxiety and nervousness and even if she tried to accept the findings of this court I do not consider it likely that she would be able to do so at least for a significant period and [the child] would continue to be exposed to her anxiety and nervousness and propensity to jump to conclusions. Unfortunately the mother’s support network are equally prone to jump to conclusions.
In essence, the mother contends that these findings were not open on the evidence given by her during her cross-examination, in which she said that she would accept a finding that the father did not pose an unacceptable risk of harm if it were made:
[COUNSEL FOR THE FATHER]: …will you accept the fact, if her Honour fails to make a finding of unacceptable risk of harm, that is, that her Honour is not satisfied – if it be the case – that there’s an unacceptable risk of harm to [the child] Yes?
[THE MOTHER]: ---Yes.
[COUNSEL FOR THE FATHER]: You said that you will accept that. Her Honour asked you why and you were unable to answer. I then asked how is it then that her Honour could accept that you will, given what you’ve just said. So how is her Honour going to be satisfied that you will accept it?
[THE MOTHER]: ---If this court concludes, after all the material has been read, that he’s not at risk, I will accept it and abide for any further orders that are made with contact.
[COUNSEL FOR THE FATHER]: So her Honour has your word for it, at this stage?
[THE MOTHER:] ---Yes, she does.
(Transcript, 10 October 2017, page 175, lines 28 – 38)
In answer to a further question posed by her Honour about whether the mother would accept such a finding, the mother answered “can I have a minute. I believe, in my position, I have done everything as a mother to protect him. And I leave it completely up to this court to determine and make that determination and I would abide with that” (transcript, 10 October 2017, page 180, lines 3 – 6).
The evidence outlined above was at odds with the mother’s other evidence and past behaviour in ceasing the child’s time with the father in breach of court orders, her deeply entrenched negative views about the father and her unwavering belief that the father was an unacceptable risk of sexual harm – beliefs shared by her family. Her Honour also had, and was entitled to accept as she did, the evidence of the family report writer that the mother’s beliefs were entrenched and who said of a possible finding that the father did not pose an unacceptable risk of harm:
I imagine such a finding would come as a shock to the mother and that, perhaps, her view on that may change over time. I would consider that a shock. If she was completely unable to accept that finding, then I think I addressed that in my report. I believe that she would continue to perhaps take out of context any things that the child might say and would continue to believe that [the child] was being sexually harmed.
(Transcript, 11 October 2017, page 254, lines 34 – 39)
It was open to the primary judge to either accept or not accept the mother’s evidence on this matter. The primary judge was clearly not persuaded by the mother’s evidence in cross-examination, and instead found that if the child continued to live with her then she would not facilitate time between the child and the father. It is to be noted that, in determining what was in the child’s best interests, the Court was required to consider the making of an order least likely to lead to further proceedings (s 60CC(3)(l)).
There is no merit in this ground.
Conclusion and costs
With all grounds failing, the appeal must be dismissed.
In these circumstances the father sought an order for costs calculated on an indemnity basis at $19,000.
On behalf of the mother, it was submitted that she only earns $1,000 fortnight as a nurse, lives with her parents and has borrowed funds so as to fund this appeal. Further, it was submitted that the appeal was, although if found unsuccessful, arguable and not frivolous.
We are satisfied that the circumstances justify an order for costs in favour of the father. There are no exceptional circumstances to warrant an order for indemnity costs (see Prantage & Prantage (2013) FLC 93-544 at [151] – [153] and Harris & Dewell (No. 2) (2018) FLC 93-863 at [22] – [25]).
It is just that the mother make a contribution to the costs of the father at scale, fixed in the amount of $7,575.87 payable within 60 days.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge and Baumann JJ) delivered on 20 December 2018.
Associate:
Date: 20 December 2018
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