SAGILDE & MAGEE
[2018] FamCAFC 143
•6 August 2018
FAMILY COURT OF AUSTRALIA
| SAGILDE & MAGEE | [2018] FamCAFC 143 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the mother filed an application to adduce further evidence on appeal – where that application was not made pursuant to s 93A(2) of the Family Law Act 1975 (Cth) but rather the mother sought to adduce the further evidence for consideration in the event that the Full Court allowed the appeal and determined to re-exercise the discretion – where the Court remitted the matter to the trial judge for reconsideration of a discrete issue – application dismissed. FAMILY LAW – APPEAL – PARENTING – PROCEDURAL FAIRNESS – where the trial judge made no orders for the child to spend time, or communicate, with the mother – where evidence central to the trial judge’s determination came out in the oral evidence of the single expert witness late in the trial and after that expert had been cross-examined by the self-represented mother – where that evidence had not been raised in the expert’s written reports prior to trial – where the mother asserted procedural unfairness on the basis that she had no reasonable opportunity to be heard regarding matters raised by the single expert witness or the prospect of orders providing for the child spending no time, or communication, with the mother – where a litigant has the right to know the case advanced against that party’s interest – where procedural unfairness was established – appeal allowed – where the matter was remitted to the trial judge for re‑hearing confined only to consideration of orders for the child to spend time and/or communicate with the mother – no order as to costs of the appeal. |
| Family Law Act 1975 (Cth) ss 68L, 93A(2), 117(2) Family Law Rules 2004 (Cth) ch 15 |
| Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 Kioa v West (1985) 159 CLR 550; [1985] HCA 81 Kopel & Ferro (2016) FLC 93-741; [2016] FamCAFC 202 Magee & Sagilde [2013] FCWA 8 Magee & Sagilde [2007] FCWA 71 Ruscoe and Walker (2002) FLC 93-093; [2001] FamCA 268 Taylor v Taylor (1979) 143 CLR 1; [1979] HCA 38 |
| APPELLANT: | Ms Sagilde |
| RESPONDENT: | Mr Magee |
| INDEPENDENT CHILDREN’S LAWYER: | Leah Young, Legal Aid Western Australia |
| FILE NUMBER: | PTW | 1132 | of | 2006 |
| APPEAL NUMBER: | WA | 3 | of | 2017 |
| DATE DELIVERED: | 6 August 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Strickland, Murphy & Kent JJ |
| HEARING DATE: | 29 November 2017 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 2 November 2016 |
| LOWER COURT MNC: | [2016] FCWA 101 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Anderson |
| SOLICITOR FOR THE APPELLANT: | Wise Family Lawyers |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Giles |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Young |
Orders
The mother’s Application in an Appeal filed 24 November 2017 to adduce further evidence on appeal be dismissed.
The appeal is allowed in part.
The question of orders being made for the child to spend time, and communicate, with the mother be reconsidered by O’Brien J and the proceedings be remitted to O’Brien J for that limited purpose.
There be no order for costs pursuant to s 117(2) of the Family Law Act 1975 (Cth) with respect to the appeal.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of 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 costs incurred by the appellant in relation to the appeal.
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 Sagilde & Magee 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 PERTH |
Appeal Number: WA 3 of 2017
File Number: PTW 1132 of 2006
| Ms Sagilde |
Appellant
And
| Mr Magee |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
On 2 November 2016, O’Brien J made parenting orders[1] in respect of then 12 year old child X (born in 2004), the only child of Ms Sagilde (“the mother”) and Mr Magee (“the father”), following a five day trial in which the parents and the lawyer appointed to independently represent the child’s interests in the proceedings[2] (“the ICL”) participated.
[1] Pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
[2] Pursuant to s 68L of the Act.
Those orders provided for the father to have sole parental responsibility for the child (Order 2) and for the child to live with his father (Order 3).
Central to the mother’s appeal is that the orders contain no provision for the child to spend any time, or communicate, with the mother. Indeed, the orders included an injunction (Order 10) restraining the mother from attending at the child’s school. The orders confine the mother’s communication with the child to her sending cards, letters and presents to the child at Christmas, Easter, on the child’s birthday and on one other occasion each year. There is no provision for the child to communicate otherwise with the mother, including as to any requirement for the father to facilitate that if the child seeks to communicate with his mother.
The point of principle raised by the mother’s appeal is one of natural justice or procedural fairness. In summary, the mother contends that she had no reasonable opportunity to be heard as to two related matters of evidence underlying the determination of the trial judge to make no orders for the child to spend time with the mother. One matter concerns the trial judge’s findings that the child is potentially at risk of physical harm in the care of the mother if final orders are made which result in the child living primarily with the father. The other matter is the possibility of orders being made, which include no provision for the child to spend any time with the mother, being in prospect as an outcome.
As will be discussed, both of these matters were sourced to oral evidence of the single expert witness, Dr B, which was not contained in that expert’s written reports provided in advance of the trial. That oral evidence came late in the trial in answers to re-examination, or further cross-examination, by counsel for the ICL of that witness mostly after that witness had initially been cross‑examined by counsel for the ICL, and by the mother, who was self‑represented at trial.
Recognising on the authorities,[3] that entrenched principles of justice are that the opportunity to be heard embraces the right of a litigant to know the case advanced against that party’s interest; the reasonable opportunity to answer that case; the reasonable opportunity to dispute an opponent’s case by cross‑examination of witnesses; and the reasonable opportunity to present material information and submissions before orders are made; the mother’s central contention on appeal is that she was not afforded the opportunity to be heard as to the two matters identified before parenting orders were made which included no order for the child to spend any time (or communicate) with the mother.
[3] See, for example, Taylor v Taylor (1979) 143 CLR 1; Kioa v West (1985) 159 CLR 550 at 583; Allesch v Maunz (2000) 203 CLR 172 and the authorities cited in those cases.
These reasons seek to explain our conclusions that procedural unfairness is established and that the proceedings ought be remitted to the trial judge, with such remitter and re-hearing being confined only to the question of orders for the child to spend time and/or communicate with the mother being reconsidered.
In circumstances where the re-hearing of that issue will proceed on the relevant evidence then existing, including as to the child’s views, and nothing in these reasons should fetter in any way the discretion of the trial judge in respect of that issue, we will confine our discussion of other aspects of the appeal accordingly.
Application in an Appeal
Whilst the mother filed an application to adduce further evidence on appeal, it was clarified with her counsel at the hearing of the appeal that the application was not one made pursuant to s 93A(2) of the Act. That is, the mother did not seek to adduce further evidence on questions of fact for the purpose of demonstrating error on the part of the trial judge. Rather, as counsel for the mother confirmed, this is evidence the mother would seek to rely upon in the event that this Court allowed the appeal and determined to re-exercise the discretion. Given our conclusion, explained more fully later in these reasons, that the proceedings will need to be remitted rather than this Court re-exercising the discretion, this application will be dismissed.
The mother’s right to know the case advanced against her interest and her opportunity to meet that case
Some reference to the factual history of the matter is necessary to gain an understanding of the proposals of each party, and of the ICL, at trial.
The parents have been involved in intractable and acrimonious litigation almost continuously since shortly after their separation in January 2006, when the child was yet to turn two years of age.
The trial before O’Brien J was the third trial the parents had engaged in concerning parenting orders to be made for the child.
Whilst a comprehensive history of the litigation to that point is set out in Moncrieff J’s reasons for judgment delivered in January 2013,[4] which were read before the trial judge, the following summary suffices.
[4] [2013] FCWA 8 delivered on 24 January 2013.
The mother, who was born in Country C, was 40 years old at the time of trial. The father, who was born in Australia, was 43 years old at the time of trial.
The mother and father were in a relationship between July 2003 and January 2006. The child X is their only child. He was born in 2004.
In June 2007, following the first trial in relation to parenting orders for the child, Crisford J made orders which provided that the parents have equal shared parental responsibility for him, that he live with his parents in an almost equal time arrangement: from 12.00pm on Saturday until 12.00pm on Wednesday with his mother and from 12.00pm on Wednesday until 12.00pm on Saturday with his father (eight nights with his mother, six nights with his father per fortnight).
Both parents accepted during the proceedings before Crisford J that an order for equal shared parental responsibility was appropriate. Despite assertions of family violence contained in her affidavit material, the mother conceded that there was no recent evidence of the father’s anger[5] and that there had been no repeat by the father of conduct which led to the making of a 72 hour violence restraining order.[6]
[5] [2007] FCWA 71 delivered on 8 June 2007 at [21].
[6] [2007] FCWA 71 at [46].
Further parenting proceedings were commenced in December 2008, by which the father sought to increase his time with the child by one night each fortnight such that the child was spending equal time with each parent.
On 18 March 2011, a violence restraining order was made against the father for a period of 10 years, which has (seemingly uncontroversially) had a significantly adverse impact upon the level of communication between the parents ever since.
In February 2015, interim parenting orders were made by which the child moved to live primarily with his father and spend alternate weekends with the mother. These were the operative orders which had been in place for some 18 months when the trial before O’Brien J commenced on 1 August 2016.
The expert evidence for trial
There were two expert witnesses who had provided reports for the trial. Dr B, clinical psychologist, was the appointed single expert to prepare family reports.[7] The other expert witness, Ms L, a psychologist, had undertaken some therapeutic counselling with the family, and in particular the child, since March 2015.
[7] Pursuant to Chapter 15 of the Family Law Rules 2004 (Cth) (“the Rules”).
Dr B provided two reports, the first dated 15 December 2015 and the second dated 25 July 2016, being the week before the trial commenced. There were also two reports from Ms L, the first dated 5 March 2016 and the second dated 30 July 2016, the Saturday before the trial commenced.
The Reports of Dr B
In neither of her two reports did Dr B express any opinion to the effect that the child is potentially at risk of physical harm in the care of the mother if final orders are made which result in the child living primarily with the father. In neither of those reports did Dr B advance any opinion about the effect or potential effect upon the child, given his expressed views, of an order for no time with his mother; or that such an order could be characterised as consistent with the child’s expressed views. In the second of her reports (we repeat, provided a matter of days before the trial), Dr B’s “recommendations” included “there appears to be no compelling reason for a change in living arrangements”. That was in the context of the child living primarily with the father and spending alternate weekends with his mother, since the February 2015 orders were made.
Indeed, at the outset of her oral evidence at trial, given on the fourth day of the trial, Dr B took issue with Exhibit 2, being a memorandum prepared by the ICL as to a telephone conversation between the ICL and the child on 2 August 2016, the second day of trial. As that memorandum assumes some importance also to understanding the orders proposed by the ICL, it is helpful to set it out in full:
1.I contacted [the child’s school] on 2 August 2016 and spoke to Deputy Principal [Mr D]. I requested that he ask [the child] if he was comfortable to speak with me on the telephone.
2.[Mr D] called me back and said [the child] happy to speak with me.
3.I spoke with [the child] about the two options we are considering in relation to him spending time with his mother. The first option being that we leave the current orders in place and he can elect not to attend from time to time. The second option was to have him spend time with his mother “according to his wishes”. I explained that I was concerned that he may feel under pressure if we framed the orders simply as “according to his wishes”.
4.[The child] was clear that he would prefer the second option. He was confident that he can manage any difficulty as he knows his mother very well and told me without hesitation that he would prefer the second option.
5.I asked [the child] how he is going at school and he replied: “much better now – I am getting good grades”. He told me he got an A for art and a B for English and a B and C for maths. He said that his father helps him with both English and maths.
6.I asked [the child] how he felt about the living and spend time with arrangements the ICL is proposing and he told me that he would be happy with that arrangement.
7.I told [the child] that I cannot support the [Country C] trip at the moment. [the child] was disappointed about that but agreed that perhaps he could go to [Country C] when he is older.
8.[The child] sounded bright and in good spirits and told me he hopes this will be the end of the court proceedings.
(As per original)
Leaving aside that this memorandum purports to give a summary of, or the effect of, the conversation between the ICL and the child, rather than a recording of any direct speech, there were these exchanges between counsel for the ICL and Dr B concerning the content of the memorandum/Exhibit 2 when Dr B gave oral evidence at trial:[8]
[8] Transcript, 4 August 2018, p 50 ln 27 to p 51 ln 37.
…[Dr B], the independent children’s lawyer, Ms Young, spoke with [the child] a couple of days ago - - -?---Okay.
- - - and Ms Young prepared a written minute of the discussion, and that has become evidence in the proceedings. I’m going to ask that you be shown exhibit 2 at this stage?---Thank you.
[Dr B], that is a minute from Ms Young to myself dated 2 August. If you can just have a moment to read through that. Now, if I can draw your attention to paragraph 3 of the minute, where Ms Young discussed a couple of options with [the child], in terms of spending time with his mother?---Mm-hmm.
The – [the child] has given an answer to the options that were put to him, and effectively what he has indicated to Ms Young is that he would like to spend time with his mother in accordance with his wishes. Is that expression by him consistent with what he has told you?---No.
What has he told you?---He was clear that he did not want the current arrangements to change – that being that he live with his father and spend alternate weekends with his mother.
Was there any discussion with [the child] when you met with him about an option that he spend time with his mother in accordance with his wishes?---In terms of that discussion, it was worded around flexibility, so that the arrangements could be flexible, for him to choose when he wanted to go. He understood that that was according to his wishes – I checked in with him around that. He said that – again, he reiterated that he didn’t want the current arrangements to change, and that the flexibility he would like is that if there were a birthday party he wanted to attend, a school camp – so he gave a number of examples – that the arrangements could be flexible enough that no matter what house he was staying at at the time, they would allow him to attend those events.
When you say he said that he didn’t want the current arrangements to change, was that comment by him in the context of the options of fifty-fifty or the current arrangements?---That’s right.
So was – was anything put to [the child] or discussed with [the child] during the session about the other option, that is, that he spend time simply in accordance with his wishes?---Yes, so the first option that we spoke about was fifty-fifty versus the current arrangements.
Yes?---Once the fifty-fifty was off the table and he had given reasons around that, we then looked at the current arrangements versus what he was terming flexibility, so that’s when I started to define flexibility according to his wishes, versus it being completely flexible, and he was quite clear that the flexibility he meant was that he could then voice when he wanted to go to a particular event, and it wouldn’t matter which parent he was with at the time.
We will return to the topic of Dr B’s oral evidence at trial, but the point of emphasis for present purposes is that nothing in either of the two written reports of Dr B provided for trial foreshadowed to the mother anything in the nature of an opinion by Dr B that the mother’s psychiatric health was so unstable that the expert was of the opinion that the child was potentially at risk of physical harm in the mother’s care; nor was it foreshadowed that, in the expert’s opinion, an order for the child to spend no time or communication with his mother could be consistent with the child’s views or meet his best interests.
To the contrary, whilst Dr B’s respective reports reflect that the child had moved from supporting an equal time arrangement, to one of support for the prevailing position, these reports did not convey any opinion or recommendation, or even float as an option to be considered, the child spending no time at all with the mother.
The Reports of Ms L
Neither of this expert’s reports foreshadowed any expert opinion to the effect that the mother’s mental health was such that she posed a risk of physical harm to the child in her care if final parenting orders were made for the child to live primarily with the father; nor did either report advance an opinion or recommendation to the effect that orders for no time or communication of the child with his mother ought be considered. The second report of Ms L contains this in relation to that expert’s interview of the child on 27 July 2016, only four days before the trial commenced:
When I enquired as to his views, he stated clearly that he wished to have a flexible arrangement whereby he could spend time with either parent as and if he chooses. This was a significant change from my last three sessions with [the child], where he was wishing to spend time equally with both parents. [The child] also said that if he couldn’t have the above arrangement, that he would like the current arrangement to stay in place.
Again, the reference to “current arrangement” is a reference to the feature that the child was living primarily with the father and spending alternate weekends with the mother.
It would seem the concept of flexibility referred to in these reports prompted the ICL’s minute of orders sought as tendered at the outset of the trial. Leaving aside whether that minute of orders was entirely consistent with the views of either expert, the point of emphasis is that, at the outset of the trial, the mother did not face a proposal from either the father or the ICL that the parenting orders to be made would not incorporate any orders for time or communication with the mother. To the contrary, both proposals did. Further, the mother was not faced with any expert opinion to the effect that her psychiatric or mental health was such that she posed a potential risk of physical harm to the child if final parenting orders were made for the child to live primarily with the father.
From the perspective of the mother, the provision of these expert reports to her, including the respective reports provided shortly before the trial’s commencement, certainly gave notice to the mother about the views of the child supporting a continuation of the then prevailing parenting arrangements (as distinct from his earlier expressed support of an equal time arrangement).
However, on any reasonable reading of these reports there is no foreshadowing to the mother of the prospect of orders for the child to spend no time or communication with her at all. Nor was anything foreshadowed about Dr B holding any opinion to the effect that such orders might, in the sense of achieving the child’s desire to see an end to the parental conflict, be capable of being characterised as consistent with the child’s views in that respect.
Likewise, neither the provision to the mother of the minute of orders sought by the ICL on the first day of trial, nor the memorandum of the ICL’s discussion with the child on the second day (2 August 2016) admitted as Exhibit 2, bring to light for the mother that she faced the prospect of orders being made having the effect that the child would not spend any time, or communicate, with her.
That is, whilst the mother was certainly aware of the orders sought by the ICL, those orders included provision for the child to spend time with his mother “in accordance with his wishes”. It was known to the mother from the expert reports that those “wishes” were that the child spend significant and regular alternate weekend time with his mother, subject to the child’s desire for flexibility to be demonstrated by both of his parents.
The final observation to be made about the contents of the reports of the experts is important, both as to the question of the mother’s reasonable opportunity to know the case she had to meet at trial, and as to the evidence of the child’s expressed views more generally.
Neither of the experts ever canvassed with the child his views about spending no time with the mother, nor about orders which precluded his mother from communicating with him beyond the sending of letters, cards and presents on four occasions per year. To the contrary, whilst the reports recorded the change in the child’s expressed views from favouring equal time with both parents, to support of the arrangements that had prevailed since February 2015, there was no attempt by either expert to ascertain the child’s own views about orders which precluded the child spending any time at all with the mother, and provided only for the limited mother-to-child communication referred to.
Even the child’s recorded views about desiring flexibility from both parents were not a portent of a case for no time with his mother being agitated. Likewise, the child’s readily understandable desire for the chronic conflict between his parents to end, did not include any exploration of the child’s views about one means of doing so being to put an end to his spending any time with, or communicating with, his mother.
The course of the trial
At the commencement of the trial, the ICL handed up a document which represented the ICL’s position. That document advanced that the father should have sole parental responsibility for the child and the child should live with his father. In respect of the time the child was to spend with his mother the following orders were proposed:
4. The child spend time with the respondent mother in accordance with his wishes.
5. In the event the child expresses a wish to spend time with or communicate with the respondent mother the applicant father do all things reasonably necessary to help facilitate the child’s wishes.
6. The applicant father do all things necessary to ensure that the child has a mobile telephone with credit and access to the internet to help facilitate the child’s communication with the respondent mother.
Each of the parents were self-represented at trial. The father’s position as at the commencement of the trial is somewhat unclear. By a document titled “Orders Sort [sic] July 2016 PTW 1132/2006” the father sought to maintain the then existing parenting orders subject to allowing the child “to be treated as the adult he is fast becoming and ALLOW HIM to alter them as he needs for school camps, holidays special occasions etc”. The father also sought an order by which the mother was to “get ‘help’”, allegedly consistent with previous recommendations of report writers.
Furthermore, during the course of the trial, the father records that he agreed with the ICL’s position as expressed in the ICL’s document,[9] but also records that he wanted the child to spend time with the mother each alternate weekend and during school holidays.[10]
[9] Transcript, 1 August 2016, p 5 ln 18.
[10] Transcript, 1 August 2016, p 5, ln 1 – 13.
The mother’s position at the commencement of the trial was similarly unclear. Initially in the proceeding she had sought sole parental responsibility for the child and for him to live with her and spend time with his father on a supervised basis for only three hours each alternate Saturday (12.00pm – 3.00pm) during the school term, and almost no time during school holidays, save for a limited time on special occasions during those periods such as Christmas day, although it does not seem that she proposed that such time was to be supervised. However, at the commencement of the trial, the mother confirmed that she in fact sought equal shared parental responsibility with the father.[11] It would seem that she maintained her position that the child spend time with his father “as I put it on my orders”[12]: that is supervised for three hours per fortnight. The mother, however, later confirmed that she sought the orders as set out in the document she filed, which provided for her to have sole parental responsibility.[13]
[11] Transcript, 1 August 2016, p 5 ln 44 – 51.
[12] Transcript, 1 August 2016, p 6 ln 46.
[13] Transcript, 1 August 2016, p 21 ln 1 – 5.
In the context of the trial judge questioning the mother as to whether she required either expert witness for cross-examination, the mother sought an adjournment on the first morning of the trial.[14] Additionally, the mother seemed to place reliance upon her late receipt of the ICL’s stated position as being a basis upon which she sought this adjournment. The following exchange occurred:[15]
[THE MOTHER]: No, not really, your Honour. It was not just a punt of this morning. It was due to the fact that over the weekend I received two emails, one on Saturday, one on Sunday, from [counsel for the ICL], and what I read raised me considerable concern about what was going to be proposed to this court. And yesterday, in fact, I did ring a hotline, a legal hotline, to get some directions as to legal advice. I’m afraid that with the weekend does not really assist.
HIS HONOUR: Well, but you’ve known for a long time that [the father’s] position was that [the child] should live with him, so you’ve known that ---
[THE MOTHER]: Yes, I’ve known that for a long time.
HIS HONOUR: You’ve known that was the case you face.
[THE MOTHER]: But I was not aware – I was not aware of the ICLs orders sought.
HIS HONOUR: I’m not sure how that makes a difference. See, it’s not as if you were coming to trial thinking that the only case you were facing was [the child] spending two weeks in three with dad versus alternate weekends with dad. You’ve known for a long time that you were coming to court facing an application that [the child] live with his father and that his father have sole parental responsibility. What you didn’t know until recently, you’re saying to me, is that the ICL would be likely to support that proposition.
[THE MOTHER]: Yes.
[14] Transcript, 1 August 2016, p 31.
[15] Transcript, 1 August 2016, p 26 ln 6 – 37.
His Honour ultimately acceded to the mother’s application and adjourned the proceedings until after lunch the following day to enable the mother to further prepare her cross-examination of the expert witnesses whose material she had received proximate to the trial commencing.
Whilst that opportunity was afforded to the mother, it bears repeating that the mother was not then faced by any expert evidence of Dr B to the effect that she posed a potential risk of physical harm to the child if orders were made for the child to live primarily with the father; nor that it was contemplated that orders be made containing no provision for the child to spend any time at all with her. That is, the mother’s opportunity to further prepare her cross-examination of the experts, for which she was afforded the adjournment, was not informed by these issues as they were yet to present.
The whole of the second day of trial, and part of the third day, was consumed by the father’s evidence including under cross-examination by counsel for the ICL and then by the mother. All that need be observed about the father’s evidence, relevant for present purposes, is that despite the litany of historical allegations and counter-allegations by each parent against the other throughout their litigation of parenting issues for more than a decade, the father repeatedly emphasised in his oral evidence at trial, in summary, the importance of the mother to the child and his support, as being important to the child’s interests, of the child spending regular time with the mother.
The balance of the third day of trial was occupied with the mother’s cross‑examination by the father. She was still under cross-examination when, on the fourth day of trial, it was necessary to interpose, first, Ms L and then Dr B as witnesses.
As earlier noted, Ms L was a psychologist who provided therapeutic counselling to the family and, primarily it would seem, to the child. When this expert was cross-examined by counsel for the ICL no proposition was put to her, nor was her opinion sought as to, either of the two specific matters identified. That is, it was not put to this witness, nor was her opinion sought as to, whether the mother posed a potential risk of physical harm to the child if orders were made for the child to reside primarily with the father; nor was this expert asked for any opinion as to the child’s views about the prospect of orders being made containing no provision for the child to spend any time with his mother. Likewise, as the mother was then unaware that the specific matters identified would become issues or part of the case propounded against her, the mother did not cross‑examine Ms L about either of the specific matters identified.
It thus went unknown whether the child’s treating therapist had any views relevant to assessing the child’s best interests about orders for no time with the mother being made. Likewise, it is unknown whether this witness could have provided any relevant evidence on the issue of whether or not the mother posed any potential risk of physical harm to the child if orders were made for the child to reside primarily with the father. Certainly, on that prospect as contained in this expert’s written report, nothing about it was flagged. In summary, the mother had no reasonable opportunity to cross-examine this expert with a view to answering these two matters, ultimately agitated against her.
Dr B was called to give evidence on the fourth day of trial. As earlier noted, Dr B was interposed to give oral evidence during the course of cross-examination of the mother.
Review of the trial transcript reveals that at no point did counsel for the ICL open any evidence of Dr B that was not contained in her reports. It can be seen that on the first day, counsel for the ICL proposed that, whether or not the father or mother required Dr B for cross-examination, Dr B should be called to give oral evidence but only so that this witness would have the opportunity, as counsel confirmed with his Honour, to “expand on [her] evidence”.[16] That is, there was no suggestion that oral evidence would be led from Dr B that was substantially different from that contained in her reports.
[16] Transcript, 1 August 2018, p 16 ln 12.
Reference has already been made to Dr B’s evidence in cross-examination by counsel for the ICL about the memorandum admitted as Exhibit 2. As discussed, Dr B rejected the proposition that what is contained in Exhibit 2 was consistent with her understanding of the child’s views.
In the course of counsel for the ICL’s cross-examination of Dr B there were these exchanges:[17]
Given that [the child] has clearly expressed to you that he is happy living with his father, and given that he has expressed to you concerns about the time he spends with his mother, what in your view is the best approach in terms of facilitating and encouraging the relationship that he had with his mother? How should it happen?---From the information provided, the best way to facilitate that is to, in my opinion, take into account [the child]’s wishes, which he was quite clear about. In terms of, one, wanting the Family Court process to finish. Two, wanting the living arrangements not to change, so that he can engage in the activities that he is wanting to engage in and be more developmentally parented where he is at the moment. Three, in terms of him wanting flexibility around those arrangements so that he can meet his own needs and not necessarily the needs of the parents.
If there was no order for him to spend time and he simply spent time with his mother in accordance with his wishes, would that put him under too much pressure in terms of he would be the one calling the shots in relation to that?‑‑-It could certainly put him under too much pressure and it could risk him falling back into trying to appease both parents.
Whereas if there was an order that he spend time, say, for example, each alternate weekend, would that lead to less pressure being on [the child], in your view?---It’s my opinion it would, yes.
But for it to work effectively, if I understand your evidence, there would need to be some flexibility to give heed to his wishes?---Particularly as he ages through adolescence.
(Errors and omissions as per original)
[17] Transcript, 4 August 2018, p 62 ln 43 to p 63 ln 26.
That was immediately followed with an interchange between the trial judge and the witness as follows:[18]
HIS HONOUR: If you had to pick from [the child’s] point of view the lesser of two evils in terms of lack of flexibility versus minimising risk of coming back to court?---Minimising risk to coming back to court, your Honour.
Because? You see, one of the dilemmas that I face in considering that aspect, if an order was to be made for [the child] to stay living with dad, if there was no timetable and it was just dad was to be relied upon to facilitate time with mum in accordance with [the child’s] wishes, two issues arise in my thinking. One – I don’t say this disrespectfully – can dad be relied upon to do that. Two, does it dump all the pressure on [the child] and potentially lead to problems. And, three, do we run the risk of coming back to court because mum perceives that [the child’s] wishes are not being met because he’s not spending time with her. Flip it over. If there’s a fixed routine but it’s expressed in the orders to be subject to [the child’s] wishes, and it’s communicated to mum that, “I know this is your weekend but [the child] doesn’t want to come because of X, Y, Z,” how accepting is mum likely to be of that, and are we going to be back in court on a series of contraventions because it’s not accepted that the departure from the timetable is genuinely in accordance with [the child’s] wishes. So there’s a real – please tell me if you think differently because I’m very interested in your views on this. It seems to me there’s a Hobson’s choice to be made between flexibility and coming back to court all the time. I understand why [the child] would want the best of both worlds, and I appreciate that he should have the best of both worlds. I’m not sure whether we can deliver it?---I agree, your Honour.
Right. So from your perspective, if that choice had to be made [the child] would be better off with a structure that minimised the risk of the matter coming back to court even if that was at the cost of some of the flexibility that he desires?---Yes.
Have I got that right?---Yes, your Honour.
(Errors and omissions as per original)
[18] Transcript, 4 August 2018, p 63 ln 28 to p 64 ln 17.
It can readily be seen from these exchanges with the expert that the debate was about, on the one hand, structured orders, or orders including a specific timetable for the child’s time with his mother and, on the other, flexible orders leaving it to the child to elect when he spent time with the mother. However, on either option it was contemplated within these exchanges that orders having the practical effect of the child spending time with his mother was in contemplation. In other words, these exchanges do not comprehend, in terms of notice to the mother, that orders having the practical effect of seeing the child spending no time whatsoever with his mother was an option under discussion or consideration.
Further, relevant to whether the orders for the mother’s time should be prescriptive or flexible as directed by the child from time to time, Dr B gave this evidence under cross-examination by counsel for the ICL:[19]
So in terms of – and I’m putting the example to you, which in fairness to you, I should say, the ICL’s proposal in this – in these proceedings is that the child remain living with the father – that [the child] remain living with the father – and spend time with the mother, and what I’m exploring with you is what arrangements would be best in terms of that spend-time-with arrangement. So do you have a view on that as to how it should be framed in terms of an order – to minimise negative impact on [the child]?---The difficulty with this case is the amount of inflexibility from both parties, in terms of the best interests of the child, and really, generally when they – they speak to you, it all comes down to the court orders and the black-and-white-ness - - -
Yes?--- - - - of them, so my view is, if it’s not covered in terms of a court order, [the child] has no chance. So you would need to – primarily, for it to be the best outcome for [the child], consider every single possible option in the coming years until he is 18, for there to be any hope for [the child].
And of course, you – you would accept that that creates a real practical difficulty, because one doesn’t know what’s going to arise from time to time?---Exactly.
[19] Transcript, 4 August 2018, p 53 ln 4 – 28.
Plainly enough, in this passage of evidence, the expert was addressing the apparent inflexibility of both parents in accommodating the child’s needs and desires in the context of orders.
Review of the transcript reveals that it was after the lunch adjournment on the fourth day, when she was still under cross-examination by counsel for the ICL, that, via a series of leading questions, Dr B gave evidence, not earlier foreshadowed in her reports, to the effect that the mother might pose a potential physical risk of harm to the child.
That Dr B’s evidence in this respect was a significant departure from that contained in her report is identified by Dr B herself in the following exchange:[20]
So looking at those considerations as they apply to the mother in these proceedings, what is your assessment?---In terms of what the mother reported on the inventory, she reported an interpersonal style of dominance. She reported quite a high level of hostility and bitterness, and suspiciousness and distrust. This is despite presenting defensively on the measure. So there are indications that those could have been higher had she responded in a totally valid way. Okay. Now, in terms of the violence potential index, I don’t have the actual results here but it wasn’t one that came up when I did the testing, otherwise it would have been included in the report. However, that index is affected by a person’s defensive responding. So it can be under-represented if someone is responding defensively.
(Emphasis added)
[20] Transcript, 4 August 2018, p 69 ln 8 – 21.
The questioning of Dr B in the leading way in which the cross-examination of her by counsel for the ICL occurred led to Dr B giving evidence, again a departure from anything in her written reports, that consideration ought be given to the mother’s time being supervised. As to this, there were these exchanges:[21]
[21] Transcript, 4 August 2018, p 70 ln 34 to p 71 ln 41.
What would be the risk for [the child], if there is indeed one, if this court was to remain silent on spend time with arrangements for [the child] with his mother? So there was simply a live with order in favour of the father. The father have sole parental responsibility and no order in relation to [the child] spending time?---And the impact on the child?
Yes?---In terms of on [the child] and his views, he loves both parents dearly, however, he has formed a view that his needs are better met with his father. However, he is – he has reported still wanting a form of relationship with his mother. So there would be an impact in terms of how he has voiced those views. More broadly speaking, in terms of his wellbeing and objectively, if the court were to make particular orders that the mother perceived as unfair or as putting [the child] at risk, that could place [the child] at risk and, therefore, his overall wellbeing may be protected.
When you say it could place – those sorts of orders could place [the child] at risk, what type of risk?---In terms of either emotional, in terms of the mother presenting in a similar way that she has been presenting to date with [the child] particularly at handovers. There’s also – given the factors that you outlined previously, a possibility that [the child] could be placed at physical risk were the mother to feel that he was at risk in the care of the other parent, and she weren’t able to protect him.
And isn’t that exactly – that latter example you’ve just given, isn’t that exactly what we’ve got here? We’ve got that scenario, haven’t we?---We’ve got factors of it, yes.
So in light of that, what could be put in place to protect [the child] in the time that he spends with his mother?---I think one obvious protection factor is that both single experts and the courts consider is supervised if that – if the child were deemed at risk. Single expert or a court would deem supervision necessary either by a supervised agency or a neutral person that both parties agree on.
Given what you know about this case and your assessment of the parties and the risks that we’ve just talked about, do you have a view as to whether the mother’s time should be supervised?---There are certainly indications in what the mother reported in terms of her personality style, and more recently in terms of her level of hopelessness around the case, that supervised access may be necessary.
You say that because of the need to protect [the child]?---Yes.
From both emotional harm - - -?---Yes.
- - - and potential physical harm?---Yes.
We leave aside for the moment, as an open question, Dr B’s expertise as a clinical psychologist to express such opinions as to the mother’s psychiatric health as it being such that she presented a potential risk of physical harm to her child. The point of emphasis is that neither such a risk, nor the possible need of supervision of the mother’s time, was raised, even remotely, in the written reports of this expert.
To compound things, from the perspective of procedural fairness to the mother, after counsel for the ICL had apparently completed his cross-examination of Dr B and the father had confirmed that he had no questions for Dr B, the mother cross-examined Dr B. It was only after the mother had completed her cross‑examination that, despite the extensive cross-examination counsel for the ICL had undertaken earlier, counsel was permitted to undertake, not re‑examination of the witness he had called in the ICL’s case, but further extensive cross-examination via leading questions to introduce a new topic.
The transcript records the following occurring immediately after the mother’s cross‑examination of the witness was completed:[22]
[COUNSEL FOR THE ICL]: Your Honour, I’ve had time to reflect on [Dr B’s] evidence, and there is an area I, with the leave of the court, wish to explore further with [Dr B].
HIS HONOUR: Sure.
[COUNSEL FOR THE ICL]: [Dr B], I want to ask you some questions in relation to the proposition that [the child] cease all contact with his mother, so that there be no orders in place for him to spend time, in fact, that there be an order in place that actually prevents him spending time…
[22] Transcript, 4 August 2018, p 87 ln 5 – 15.
What then followed was counsel for the ICL, via leading questions of the witness, having Dr B express opinions, for the first time to the effect, in summary and paraphrased form, that orders for the child to spend no time with his mother would achieve an end to parental conflict and could therefore be characterised in that light as consistent with the child’s views that he wanted such conflict to be at an end.
Remarkably it would seem, given this expert’s earlier emphasis to which we have referred about the primacy to be given to the child’s expressed views, this bracket of oral evidence culminated in the following exchanges between the trial judge and this witness about orders for no time with the mother being made, from the child’s perspective:[23]
HIS HONOUR: Would he be likely feel guilty? Intelligent little boy isn’t he?---He’s very intelligent; however, he is very aware that this process is very much out of his hands, your Honour.
And a different limb to the same question: there has been a lot of emphasis on respect for his views, respect of his wishes?---And in - - -
So it’s a double edged sword isn’t it?---Absolutely. But in terms of that his view is that it was nice being asked, but it didn’t mean anything because he – he views it as being out of his hands. So he felt it was nice to be asked, but, ultimately, it’s not up to him.
I’m sorry, I’ve moved away from the guilt thing to the – when we were talking about other options there was a concern about his – the effect on him if he felt his wishes weren’t being heard. He has expressed the wish to keep seeing Mum, but on a more flexible basis if that wish wasn’t heard. As distinct from the other ones we were talking about what’s the impact of that? He’s just not being heard in a different direction?---It is. In terms of [the child] though his view is that, ultimately, he would like the issue just resolved. He has a number of ideas about how that would benefit – how he would benefit out of that; however, he understands that it’s a complex issue and there are a lot of different things that go into that decision and a lot of that he is unaware of. So, yes, he would see that as his wishes not necessarily being entirely responded to; however, he would also see it, in my view, as his wishes being somewhat listened to, your Honour.
[23] Transcript, 4 August 2018, p 89 ln 18 – 49.
There is no suggestion that this expert, or indeed either expert, ever specifically canvassed with the child his views about the prospect of orders being made which resulted in him having no time with his mother.
When the mother’s cross-examination was resumed after Dr B’s oral evidence was completed, nothing was put to the mother in cross-examination either about her presenting a potential risk of physical harm to the child if it were ordered that the child live with the father; nor was the proposition of no time orders put to the mother.
From our review of the transcript, we conclude that this self-represented mother had no reasonable opportunity to meet a case that her mental health was such that she posed a risk of physical harm to the child. We have already referred to the feature that the reasons for judgment of Moncrieff J were read before the trial judge. Those reasons include (at [219] – [220]) extensive reference to the opinions of Professor M, consultant psychiatrist appointed as single expert witness in the proceedings before Moncrieff J. Professor M was required to undertake an assessment of the psychological and psychiatric functioning of each parent for the purpose of those proceedings. Professor M reported that the mother had no current psychiatric diagnosis. Whilst that report was in 2012, and was thus somewhat historical, the point is that if the mother’s psychiatric health was to be an issue in the proceedings here, the mother ought to have been put on notice of that, and to have had a reasonable opportunity to respond to that case.
It is clear that the trial judge placed reliance upon the oral evidence of Dr B about the mother posing a potential risk of physical harm to the child in reaching the following conclusions:
104[Dr B] noted that the mother displayed an interpersonal style of dominance and reported “quite a high level” of hostility, bitterness, suspiciousness and distrust.
105 In a broader sense, in answer to a direct question, she confirmed that both research and experiential examples indicated that mothers in particular could sometimes inflict harm on children if they perceive that the child is at risk from another person, where there is high conflict, and when they perceive that they are the only person who either perceives that risk or can save the child.
106 She confirmed that the mother met those criteria. She said that there is “a possibility that [the child] could be placed at physical risk were the mother to feel that he was at risk in the care of the other parent, and she weren’t [sic] able to protect him.”
…
111. I also conclude that [the child] is potentially at risk of physical harm in the care of the mother; most particularly if orders are made which result in him living primarily with the father in circumstances where the mother continues to believe that the father represents a risk, and concludes as a result of orders being made that her perception of the risk is not shared by others and accordingly only she can protect her son.
…
156. I have taken into account the evidence as to the risks to the child of spending time with his mother. The evidence supports a level of concern that [the child] might be at risk of physical harm from his mother, in circumstances where she perceives him to be at risk from the father, and perceives herself to be the only one who understands that risk and can protect him from it. While [the child] has not come to physical harm in the care of his mother since the interim orders were made for him to live with the father, that is against the background of the ongoing Court proceedings in circumstances the mother’s primary care and hope was that the child would return to live with her and spend limited (and physically supervised) time with the father.
157. Concerns as to [the child’s] physical safety in the care of the mother, accordingly, are heightened by an apprehension as to the effect on the mother’s stability of my decision that final orders should be made whereby [the child] will live with the father.
Those findings were included in findings that the trial judge relied upon for his overall conclusion that the child’s best interests was served “by there being no order for him to spend time with the mother”.
We are also of the view that, in the manner in which the evidence unfolded as we have discussed, the mother had no reasonable opportunity to meet a case that it was somehow consistent with the child’s expressed views that there be no orders for him to spend any time with the mother. That is, the mother had no reasonable opportunity to meet a case directed to orders ultimately being made including no provision for the child to spend any time with the mother. An associated concern about that is the feature that at no point did any expert specifically ask the child to express his views about orders including no provision for him to spend any time at all with the mother.
A limited or partial remitter
Whilst we are satisfied that the mother establishes procedural unfairness in the respects identified, such that her appeal is to be allowed, it does not follow that all of the orders made by the trial judge are to be set aside, nor that the proceedings must be remitted as a whole for the purpose of re-determining parenting orders. In Ruscoe and Walker,[24] the majority held that the power in s 94(2) of the Act is wide enough for the Full Court to order “a limited rehearing of some issue or issues, or of some aspect of the exercise of discretion, which this Court considers appropriate in all of the circumstances of the case, including the history of the litigation to date and the grounds upon which the appeal has been upheld”.[25]
[24] (2002) FLC 93-093 at [19].
[25] See also the discussion by Thackray J in Kopel & Ferro (2016) FLC 93-741.
The orders sought by the mother on appeal, were we to re-exercise the discretion, do not challenge the orders the trial judge made as to the child living primarily with the father, nor the order for the father to have sole parental responsibility for the child. Nor did any of the mother’s arguments on appeal agitate any error on the part of the trial judge with respect to the making of those orders.
It can be seen from the reasons of the trial judge that quite apart from the issue of risk of physical harm, extensive findings were made as to the risk of psychological and emotional harm to the child posed by the mother by reason of the dysfunctional aspects of the mother-child relationship and the mother’s conduct (for example, at [93], [102], [110], [158] and [161]). There could be no suggestion that the mother was not squarely on notice of this issue in the case. The trial judge’s findings referred to were sourced to evidence of which the mother was aware prior to the outset of the trial and were well open to be made by the trial judge.
Likewise, the trial judge’s conclusions about the child’s best interests being served by an order for the father, with whom the child had been primarily living since February 2015 (the continuation of which regime the child clearly wanted in the views he expressed) were plainly open to the trial judge on evidence unaffected by any question of procedural fairness to the mother. The trial judge found (at [142]) that there is nothing in the evidence to suggest that the parents “have any capacity whatsoever to co-parent”, a finding not only open on the evidence but one which was compelled by it.
There is thus no legitimate basis for there to be reconsideration of the order for the father to have sole parental responsibility nor that the child reside with the father.
In our judgment, the only aspect of the case requiring reconsideration is the issue of any potential risk of physical harm the mother poses, to the extent that any such risk impacts upon orders for the child to spend time, or communicate, with the mother. It is only the question of orders to be made for the child to spend time, or communicate, with the mother (with the benefit of evidence as to the child’s own views about orders including no provision for the child to spend any time, or communicate, with his mother) being available for the purpose of that reconsideration, which is to be remitted.
We note in passing that in the course of argument for the appeal, a question arose as to the meaning of what the trial judge recorded at [167] of the reasons where his Honour stated “that said, I propose to make orders to ensure that [the child] is kept informed of the means by which he may contact his mother if he chooses to do so”. It is not apparent that his Honour made any such orders.
This feature, taken with the circumstances of the case more generally, leads us to conclude that there is no reason that the proceedings cannot be remitted to O’Brien J for the purpose of the reconsideration of the specific issue or question as to any orders being made for the child to spend time, or communicate, with the mother. There are obvious advantages in O’Brien J being the trial judge tasked to reconsider the question.
The child last spent any time with his mother prior to the last day of the trial on 5 August 2016 when his Honour suspended the interim orders then operative. The child has thus had the experience, for a significant period of time since then, of having no time or communication with his mother. The child has recently attained the age of 14 years. Obviously, the child’s views will be an important consideration in any reconsideration of orders for time and communication with the mother. To the extent that consideration is to be informed by the mother’s mental health, any consequent capacity for the mother to pose a risk of physical harm to the child, the mother ought have the opportunity to present evidence to meet such a case.
For these reasons, whilst the appeal is to be allowed, we do not propose to set aside any orders made by the trial judge. Rather we will remit the proceedings for the limited purpose of reconsideration of the issues we have identified.
Costs of the appeal
Whilst the mother sought an order for costs as against the ICL in the event that her appeal was successful, we are not persuaded that given the circumstances in which the appeal succeeds, and the limited remitter of the proceedings in consequence, that there are, within the meaning of s 117(2) of the Act, circumstances that justify an order for costs. The appeal enjoys the success it has had by reason of a matter of law and we would grant the mother a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”) for the appeal.
The ICL is not eligible for the grant of a costs certificate under the Costs Act and the father confirmed at the hearing of the appeal that he had no basis to seek either an order for costs or a costs certificate.
I certify that the preceding eight-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Murphy & Kent JJ) delivered on 6 August 2018.
Associate:
Date: 6 August 2018
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