Sacco & Allan (No 2)
[2024] FedCFamC1A 139
•20 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Sacco & Allan (No 2) [2024] FedCFamC1A 139
Appeal from: Allan & Sacco (No 2) [2024] FedCFamC1F 15 Appeal number: NAA 31 of 2024 File number: BRC 15354 of 2020 Judgment of: ALDRIDGE, ALTOBELLI & SCHONELL JJ Date of judgment: 20 August 2024 Catchwords: FAMILY LAW – APPEAL – Appeal from final parenting orders – Where the primary judge conducted a “discrete hearing as to risk” – Consideration of s 69ZR of the Family Law Act 1975 (Cth) – Delay – Error in fact finding – Appeal allowed. Legislation: Family Law Act 1975 (Cth) s 69ZR, Pt VII
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8 and 9
Cases cited: Allan & Sacco [2022] FedCFamC1F 120
Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Fowles & Fowles(No 2) [2024] FedCFamC1A 115
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Lee v Lee (2019) 266 CLR 129; [2016] HCA 28
Neil v Nott (1994) 121 ALR 148; [1994] HCA 23
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
SS & AH [2010] FamCAFC 13
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Number of paragraphs: 55 Date of hearing: 2 August 2024 Place: Sydney (via video link) The Appellant: Self-represented litigant Counsel for the Respondent: Mr Bolovan Solicitor for the Respondent: KA Criminal Law Pty Ltd Counsel for the Independent Children’s Lawyer: Mr Hartnett Solicitor for the Independent Children’s Lawyer: Seth Solicitors ORDERS
NAA 31 of 2024
BRC 15354 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS SACCO
Appellant
AND: MR ALLAN
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE, ALTOBELLI & SCHONELL JJ
DATE OF ORDER:
20 AUGUST 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 14 May 2024 is allowed.
2.The appeal is allowed.
3.The orders made 30 January 2024 are set aside.
4.The matter is remitted for rehearing to a judge of the Federal Circuit and Family Court of Australia (Division 1) other than the primary judge.
5.The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the disbursements incurred by her in the appeal.
6.The respondent and the Independent Children’s Lawyer are granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to them in respect of the costs incurred in the appeal.
7.The appellant, the respondent and the Independent Children’s Lawyer are granted costs certificates pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred by them in relation to the rehearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sacco & Allan has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, ALTOBELLI & SCHONELL JJ:
By Further Amended Notice of Appeal filed 10 July 2024, the appellant mother (“the appellant”) appeals final parenting orders made under Part VII of the Family Law Act 1975 (Cth) (“the Act”) on 30 January 2024.
The appeal was opposed by the respondent father (“the respondent”) and the Independent Children’s Lawyer.
For reasons which follow, the appeal will be allowed.
BACKGROUND
The child the subject of the proceedings is the only child of the appellant and the respondent.
The child is currently aged nine years.
The appellant and the respondent commenced cohabitation in January 2008 and separated in or about 2015.
The child was approximately 12 months old at the time of separation.
Following separation, the parties entered into final consent orders on 4 September 2018. The orders provided for equal shared parental responsibility, for the child to live with the appellant and for the child to spend time with the respondent with incremental increases of time such that by September 2019 the child was spending overnight unsupervised time with the respondent.
An incident occurred in October 2020 when the child returned to the appellant’s care after having spent time with the respondent. The appellant contends that the child disclosed to her that she had been touched inappropriately by the respondent.
Consequent upon the disclosure, the appellant ceased all time between the child and the respondent.
On 30 October 2020 the respondent commenced proceedings seeking orders that the child live with him on a week-about arrangement.
In November 2020 the child was interviewed by officers from the Child Protection and Investigation Unit (“the Police”). On 2 December 2020 the Police advised they would not investigate the matter further.
At the request of the parties, we have viewed the video recording of this interview. It contains a graphic demonstration by the child of what she said had occurred.
Officers from the Department of Children, Youth Justice and Multicultural Affairs (“the Department”) interviewed the respondent, his new partner, and the child. On 21 December 2020 the Department advised that the allegations were unsubstantiated.
The matter came before the primary judge for case management on 9 March 2021 and the primary judge determined that he would list the matter for a “discrete hearing as to risk” (Allan & Sacco [2022] FedCFamC1F 120 at [6(e)] (“the 2022 reasons”)). The hearing was solely as to whether, in light of the child’s disclosures, the respondent posed an unacceptable risk of harm to the child by reason of sexual abuse. No party raised any objection to the primary judge conducting such a limited issues hearing.
The hearing took place on 24 May 2021. At that hearing there was some limited cross-examination of the parties by their respective counsel and the Independent Children’s Lawyer. There was no expert evidence before the primary judge. The Court had a transcript and recording of the child’s interview with the Police, and the interviews conducted by the Department.
On 17 August 2021 the Court heard the appellant’s application to reopen.
On 11 March 2022 the primary judge delivered the 2022 reasons. Under the heading “Discussion”, his Honour observed as follows:
30.Sexual abuse allegations by young children, if made, are fraught with uncertainty due to their young age, developing verbal skills and diminished ability to link time and place with accuracy.
31.The child says to Police it happened on one occasion that she can recall, whereas the [appellant] says the child says it happened “often”.
32.Yet this is a little girl who has a history of itchiness, soreness and redness; where the [respondent] did apply cream; where the [respondent], when the child was younger, actively ensured she was clean by assisting with bathing her.
33.[Counsel] for the [appellant] contends it is “entirely unlikely that [the child] made up what she did in the bath”, and in circumstances where the [respondent] does not proffer any proper innocent explanation, he should not be believed when he says he has not bathed the child for two years or so.
34.However, if, as the child is said to have informed the [appellant], this inappropriate sexual behaviour by the [respondent] has been occurring regularly for some time, the lack of any hint of disclosure by the child to her primary carer (the [appellant]) or to any other person since she has become more verbal developmentally over the last two to three years, makes no sense,
35.The [respondent] is in a household that includes three girls (when [the child] is staying), and the older “siblings”, when interviewed by Police at school, raised no concerns at all.
36.I cannot accept that the [respondent]’s entire household have either turned a “blind eye” to repeated abuse of this little girl or would not be aware of it occurring.
37.On the evidence produced and tested, I am not persuaded, after giving careful consideration, that the [respondent] poses a risk at all (certainly not unacceptable) to [the child] of sexual harm.
38.In making this finding, I have formed the view that there is not likely to be a future incident of sexually motivated behaviour of the [respondent] and, although I did not receive any evidence from the [respondent]’s wife [Ms B], as the mother of two girls (and the step-[mother] to [the child]), her interview with the Department Officers support her being seen as a protective factor. I do accept that if inappropriate touching or sexual abuse of [the child] at the hands of the [respondent] was to take place it could have a significant adverse effect on [the child].
Having so determined, the primary judge made directions for an interim hearing to take place on 30 March 2022.
The interim hearing was adjourned to a date to be fixed after the release of the Family Report and the matter was listed for a final hearing to take place in August 2022. A Family Report was prepared for the final hearing.
Having determined the question of unacceptable risk, it was not revisited at the final hearing. The final hearing concluded on 31 August 2022. Reasons for judgment were not delivered until 30 March 2024 whereupon orders were made for equal shared parental responsibility, for the child to live with the appellant and for the child to spend time with the respondent, building after a short period of time to alternate weekends and half school holidays.
A stay was subsequently granted on 8 March 2024. The child has not spent time with the respondent since the disclosure in October 2020.
We are troubled to observe that this matter has been bedevilled by delay. There was a seven month delay in the delivery of reasons following the “discrete hearing as to risk” and then a further 17 month delay in the delivery of final reasons. Delays of this length are unacceptable and should not occur in any proceedings before the Court, least of all parenting proceedings (see Fowles & Fowles(No 2) [2024] FedCFamC1A 115). As the authorities collected in that case make plain, where there is such a delay, the appeals court is to apply a greater than usual degree of scrutiny to the reasons.
Many of the appellant’s grounds went to the conduct by the primary judge of what his Honour described as a “discrete hearing as to risk”. Section 69ZR of the Act provides as follows:
(1)If, at any time after the commencement of child-related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:
(a) make a finding of fact in relation to the proceedings;
(b) determine a matter arising out of the proceedings;
(c) make an order in relation to an issue arising out of the proceedings.
Whilst part of the armoury of the Court, s 69ZR is a power which, respectfully, should be exercised with a great deal of circumspection. It is questionable whether such power should ever be exercised in the absence of at least some expert evidence.
To undertake a determination that there exists or does not exist an unacceptable risk at any time prior to a final hearing is a decision of considerable magnitude which can have far reaching consequences. In SS & AH [2010] FamCAFC 13 at [88] the majority (Boland and Thackray JJ) discussed the care that is required to be exercised in the making of findings in interim parenting proceedings, observing:
88.… In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
Recognising, as we do, that their Honours were recommending a cautious approach to be adopted at interim hearings where there was no cross-examination, the observations remain apposite at a “discrete hearing as to risk”, even one that involves cross-examination, undertaken before all the evidence is available.
The fact remains that there was not available at this limited hearing all of the evidence that there would be at a final hearing, including expert evidence. If contrary to such caution a parenting hearing is to be embarked upon, then any findings made at such a limited parenting hearing, even with cross-examination, could not give rise to an estoppel that forecloses a reconsideration of the issue at a final hearing, particularly one enlightened by a Family Report.
THE APPEAL
The Further Amended Notice of Appeal contained five grounds, three of which contained multiple sub-grounds. Many of the grounds overlapped and/or were repetitive. The grounds variously contended that the “discrete hearing as to risk” process adopted by the primary judge was improper, that the findings made at the discrete hearing were not soundly based, and that the procedure adopted and consequent delay occasioned systems abuse to the appellant and the child.
We accept that the appellant is not a lawyer and the Further Amended Notice of Appeal and Summary of Argument, on one view, might be thought to render opaque that which should be transparent. As the High Court observed in Neil v Nott (1994) 121 ALR 148 at 150:
… A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.
Nevertheless, the task of an appellate court is not to perpetuate error where it is apparent even if not made so by the grounds of appeal (Warren v Coombes (1979) 142 CLR 531).
By combining Grounds 2 and 3, the appellant was clearly asserting error on the part of the primary judge in failing to consider relevant evidence and in the fact finding by the primary judge on the central issue of unacceptable risk. For the reasons set out below we are satisfied that there is merit to the grounds.
On the central issue of risk, the primary judge found (the 2022 reasons):
37.On the evidence produced and tested, I am not persuaded, after giving careful consideration, that the [respondent] poses a risk at all (certainly not unacceptable) to [the child] of sexual harm.
The evidence of what was said to give rise to the assertion of unacceptable risk came from two sources. The evidence of the appellant who relayed a conversation she had with the child on 26 October 2020 and the child’s interview with the Police in November 2020.
In each instance the child reported the respondent had inserted his fingers into her “private parts” and her “bum” while bathing her. The appellant reported that the child told her that it occurred often, the Police interview recorded that the child said it happened once when she was six (the 2022 reasons at [27(k)]).
The primary judge recorded the respondent’s evidence that he had not bathed the child since the start of 2019 and denied any inappropriate behaviour. There was a clear inconsistency between what the respondent and the child reported, both as to when the incident or incidents could have occurred and what happened.
Having summarised the evidence, the primary judge observed in relation to the child’s interview with the Police that (the 2022 reasons):
28.The child’s response to Police questioning was vague and, as one might expect, lacking clarity or particulars as to time and place. The comments made by the child do not accord exactly with the comments the [appellant] swears were made to her by the child on at least 26 October 2020.
29.Having said this, the child did say things, and did mimic actions, that could support, in my assessment, both vigorous washing (wherever) by the [respondent] or some inappropriate touching. This is not a case where it can be said no words of concern were uttered by the child to Police.
It is implicit in the above finding that there could be only two explanations for the child’s words and actions as she reported them to the Police; either vigorous washing by the respondent or inappropriate touching by the respondent. As we have just said, the respondent’s evidence was that he had not assisted the child in the bath for some time.
The primary judge, having made that finding, then over the next seven paragraphs of the 2022 reasons under the heading “Discussion” examined the available evidence. These paragraphs are set out above at [18].
His Honour commenced with an observation that allegations by young children are fraught with uncertainty given their age and verbal skills (the 2022 reasons at [30]) and repeated that what the child told the appellant and the Police differed as to frequency (the 2022 reasons at [31]). The primary judge recorded that the child had a history of itchiness and redness and that the respondent had applied cream when the child was younger (the 2022 reasons at [32]) and recorded the appellant’s then counsel’s submission that it was unlikely that the child had made it up (the 2022 reasons at [33]).
Over the next three paragraphs, the primary judge addressed the appellant’s evidence of what the child reported to her, namely that it happened often, as opposed to the child describing only one event, and said it made no sense (the 2022 reasons at [34]).
Finally, his Honour concluded that he could not accept that the respondent’s household would have turned a blind eye to repeated abuse of the child or would not have been aware of it occurring (the 2022 reasons at [36]). Respectfully, we would observe that, generally, improper touching of children takes place privately without the knowledge of those in the household. Again, the issue, based on the child’s account, was not repeated events but a single one.
These matters led the primary judge to conclude he was not persuaded that the respondent posed a risk, let alone an unacceptable risk.
However, the primary judge at no time addressed the anterior question of “the words of concern” stated by the child to the Police and her demonstration of what occurred. At no time did the primary judge consider whether those “words of concern” or demonstration were either explained by vigorous washing or inappropriate touching, which was the very question that his Honour had posed.
None of the paragraphs of the 2022 reasons we have quoted, which are the relevant ones, answer this question.
A finding of such magnitude that the respondent posed no risk, let alone an unacceptable risk, required the primary judge to consider all of the evidence on the issue of risk, not half of it. Failing to consider at all the child’s evidence as recorded by the Police renders the finding that the evaluative task that was undertaken by the primary judge miscarried. There is a real risk that the finding was not just “not reasonably open” but in fact wrong (Edwards v Noble (1971) 125 CLR 296 at 304).
As Warren v Coombes (1979) 142 CLR 531, Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 and Lee v Lee (2019) 266 CLR 129 state, a court of appeal is to undertake a real review of the evidence and if there is error, determine the factual issue for itself. However, a finding of risk is an evaluation of possibilities, albeit based on fact (Isles & Nelissen (2022) FLC 94-092). Such a finding then feeds into the consideration of what parenting orders are in the best interests of the child.
The evidence in this matter is at least two years old. The child has now not spent any time with the father for four years. She is now nine years old and what orders were in her best interests two years ago when the trial was conducted may well not be the same now. Further evidence is inevitable.
These are matters that are difficult to address on appeal. Further, we have not had the benefit of seeing the witnesses in person. At the second hearing a potential issue of the credibility of the respondent arose as it appears that he significantly misled the single expert, quite possibly deliberately.
These are matters that are not suited to be dealt with at an appellate level and, regrettably, the matter will have to be remitted for rehearing.
Such error infects entirely the foundation for the final orders.
DISPOSITION
For the above reasons, we are satisfied the appellant has established error on the part of the primary judge and the appeal must succeed. In view of the success of the appeal on these grounds it is unnecessary for this Court to determine the grounds that remain. Consistent with the objects of the Act calling for the quick resolution of disputes and the efficient delivery of justice, in the interests of judicial economy the remaining grounds will not be addressed (Boensch v Pascoe (2019) 268 CLR 593).
The orders made 30 January 2024 will be set aside and the matter will be remitted for rehearing before a judge other than the primary judge.
COSTS
In circumstances where the appeal has succeeded on a question of law, it is appropriate that costs certificates be granted (Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8 and 9) for the appeal and rehearing.
We will make orders accordingly.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Altobelli & Schonell. Associate:
Dated: 20 August 2024
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