Sander & Lynwood
[2024] FedCFamC1A 108
•9 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Sander & Lynwood [2024] FedCFamC1A 108
Appeal from: Sander & Lynwood [2024] FedCFamC1F 126 Appeal number:
NAA 72 of 2024
File number:
BRC 7049 of 2022
Judgment of:
ALDRIDGE, JARRETT & CAMPTON JJ
Date of judgment:
9 July 2024
Catchwords:
FAMILY LAW – APPEAL – Appeal from final parenting orders – Appellant alleges the primary judge failed to take into account relevant considerations – Appellant alleges orders for time to be contingent on the appellant engaging in therapy are uncertain – Whether the primary judge failed to consider an alternative order to promote meaningful relationships – No error established – Appeal dismissed – Costs ordered in a fixed sum.
Legislation:
Family Law Act 1975 (Cth) s 62G
Cases cited:
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Number of paragraphs:
53
Date of hearing:
26 June 2024
Place:
Heard in Brisbane, delivered in Sydney
Counsel for the Appellant:
Ms Chekirova
Solicitor for the Appellant:
Transitional Legal Pty Ltd
Counsel for the Respondent:
Ms Pendergast
Solicitor for the Respondent:
Northside Family Law Centre
Counsel for the Independent Children’s Lawyer:
Mr McGregor
Solicitor for the Independent Children’s Lawyer:
Bridges Family Law Specialists
ORDERS
NAA 72 of 2024
BRC 7049 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS SANDER
Appellant
AND: MR LYNWOOD
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE, JARRETT & CAMPTON JJ
DATE OF ORDER:
9 JULY 2024
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the respondent’s costs of and incidental to the appeal fixed in the sum of $24,500.
3.The appellant pay the Independent Children’s Lawyer’s costs of and incidental to the appeal fixed in the sum of $4,573.09.
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 Sander & Lynwood has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, JARRETT & CAMPTON JJ:
By her Amended Notice of Appeal filed on 24 May 2024 the appellant, who is the mother of X (aged 9) and Y (aged 7), appeals certain final parenting orders made in respect of those children by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 13 March 2024. The respondent, X and Y’s father, opposes the appeal. The Court and the children have the benefit of an Independent Children’s Lawyer, who also opposes the appeal.
The overall effect of the primary judge’s orders was to make a wholesale change in the children’s living arrangements whereby they moved from living primarily with the appellant to living primarily with the respondent. That work was done by Order 4. Order 5 provided the machinery to effect the move of the children from the appellant’s care to the respondent’s care. Order 2 vested parental responsibility for decisions concerning major long-term issues for the children solely in the respondent. None of those orders are the subject of this appeal.
The orders the subject of this appeal are Orders 6, 7, 8, 9 and 10. Order 6 regulates the time the children are to spend with the appellant after they commence living primarily with the respondent. It has three stages; the initial stage imposed a moratorium upon the children’s time with the appellant for three months (although time was permitted between them under certain conditions during the moratorium period). Thereafter, following a short period of supervised time and conditional upon the appellant’s compliance with certain matters to which we shall come shortly, the children are to spend each alternate weekend and one half of their school holidays in the appellant’s care. Order 7 sets out the arrangements for Mother’s Day, Father’s Day and Christmas Day. Order 8 makes the children’s time with the appellant conditional upon her engaging with a named or otherwise agreed therapist for certain purposes. Order 9 imposes an obligation upon the appellant to meet the cost of the therapy required by Order 8. Order 10 imposes an obligation upon the appellant to continue the therapy required by Order 8 for so long as reasonably recommended by the therapist, and to provide the respondent with monthly letters from the therapist confirming certain matters.
The issues agitated before the primary judge arose out of the appellant’s belief that the respondent had sexually abused X. She held those beliefs until a matter of weeks before the final hearing, at which point she abandoned them without explanation. The position is neatly summarised by the primary judge at [2] and [3] of her reasons for judgment and an overview of her Honour’s resolution of the case is captured at [4]. We can do no better than to repeat those paragraphs:
2 Notwithstanding holding such a belief up until about 27 November 2023, [the appellant] now contends that she no longer holds such a belief, although she retains “suspicions”. The [appellant]’s ongoing suspicions do not prevent her, she contends, from supporting the children spending unsupervised time with [the respondent].
3 The [respondent] contends that the [appellant] has fabricated the allegations against him and that the only way the children can be assured of having a meaningful relationship with both parents is for the children to live with him.
4 For the reasons explained below, I have concluded that the [appellant]’s continuing suspicions that the [respondent] sexually abused [X] and that she is not safe with him, are without any reasonable or rational basis and will likely prevent the [appellant] from facilitating a relationship between [X] and the [respondent] despite her protestations to the contrary. If [X] remains in the primary care of the [appellant], she will likely grow up wrongly believing she is a victim of sexual abuse by the [respondent].
No party suggests that the primary judge misunderstood the case put by them or that her Honour misapprehended any of the evidence before her. There is no challenge to her Honour’s formulation of the issues for her determination.
Between [63] and [262] the primary judge undertook a detailed examination of the evidence with particular emphasis upon the timeline of the appellant’s allegations of sexual abuse. At [275] of her reasons, the primary judge set out her detailed and specific findings of fact. We will not repeat them. Her Honour then directly addressed the issues posed for her consideration by the parties (and recorded by her at the outset of her reasons) as follows:
276.Lest there be any doubt, the conclusions reached on the issues posed by the parties for my determination are as follows:
(1)Any risk of psychological or emotional harm posed to [X] by spending time with the [respondent] against her apparent wishes does not amount to an unacceptable risk;
(2)The [appellant] does pose an unacceptable risk of psychological and emotional harm to [X] by reason of her allegations that the [respondent] has sexually abused [X] which have no reasonable or rational basis;
(3)It is more likely than not that [X]’s reported disclosures have been overtly or unconsciously influenced by her possible awareness of the [appellant]’s views of the [respondent]’s alleged conduct towards [X];
(4)It is unlikely that the [appellant] is genuine when stating that she no longer believes the [respondent] sexually abused [X], but there is no evidence of what, if any, impact that would have on her parenting capacity other than her inability to facilitate [X] having a relationship with [the respondent];
(5)It is unlikely that the [appellant]’s previous belief that [X] had been sexually abused by [the respondent] was genuine in circumstances where I find that there was no reasonable or rational basis for such a belief.
None of her Honour’s findings of fact, nor the conclusions we have just set out, are challenged in this appeal.
Against that background we turn to consider the appellant’s grounds of appeal but, before doing so, three observations are necessary.
First, the appellant has never sought a stay of the operation of any of the primary judge’s orders; not Order 4 providing for the change of residence nor any of the orders the subject of this appeal. Given that three months has passed since the making of the orders, it seems to us that there is no utility in the appeal against Order 6(a) which provides for a moratorium of time between the children and the appellant for three months following the making of the orders. In the absence of a stay of the order for the change of residence, the work of Order 6(a) has been done and cannot be undone. During the hearing of the appeal, counsel for the appellant, quite appropriately, accepted this proposition and withdrew the appeal insofar as it challenged Order 6(a) of the primary judge’s orders.
Secondly, none of the grounds of appeal are directed to Order 7 – the provisions for Mother’s Day, Father’s Day and Christmas Day time between the children and the parties. The appeal against Order 7 is dependent upon the merits of the appeal against the conditions imposed upon the children’s time with the appellant by Order 8.
Thirdly, acknowledging that none of the factual findings and conclusions reached by her Honour are challenged, it is plain that this appeal is solely concerned with her Honour’s exercise of discretion. Appeals against discretionary orders are guided by the principles set out in House v The King (1936) 55 CLR 499 at 504–505 where Dixon, Evatt and McTiernan JJ said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed, and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Apposite too, are these remarks in CDJ v VAJ (1998) 197 CLR 172 at [151]:
... Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. The views of appellate judges about the proper order to be made will not infrequently conflict with those of the primary judge. Yet, absent legal error or a plainly unjust result, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge.
THE GROUNDS OF APPEAL
Subject to the concession concerning Order 6(a), the appellant pursues six grounds of appeal. In her written Summary of Argument, counsel for the appellant argues Grounds 1 and 2, Grounds 3 and 4, and Grounds 5 and 6 together, respectively. We have adopted that approach.
Grounds 1 and 2
Ground 1 argues that the primary judge failed “to have due regard” to the benefit to the children of having a meaningful relationship with both of their parents. The appellant’s written and oral submissions focused this ground upon the benefit to X of a meaningful relationship with the appellant in particular.
Ground 2 argues that the primary judge erred “by failing to take into account” the likely effect on both X and Y of any separation from the appellant. The appellant’s written and oral submissions focused this ground upon the likely effect upon Y of separation from the appellant in particular.
The appellant submits that the primary judge failed to properly assess the consequences for X and Y “in the context of their losing a meaningful relationship with [the appellant]” (appellant’s Summary of Argument filed 20 May 2024, paragraph 51). She argues that the primary judge did not sufficiently consider “the likely effect on [X] of any separation from [the appellant]”, especially in light of the evidence given by Mr B, a family consultant, who prepared three written reports (as well as giving an oral report at the commencement of his evidence) for the Court’s assistance pursuant to s 62G of the Family Law Act 1975 (Cth). She also argues that the primary judge’s reasons for judgment do not reveal any consideration of the likely effect on Y of any separation from the appellant.
To make good her argument on these grounds, the appellant identifies various aspects of the evidence of Mr B that she argues are not reflected in the primary judge’s reasons. She argues that in the absence of any discussion of this evidence, the primary judge did not “sufficiently” consider the likely effect on X of any separation from the appellant. In particular, she points out that Mr B gave evidence that:
(a)the children’s relationship with the appellant should not be curtailed to a significant degree and that he did not see a reason for the appellant’s time with the children to be supervised;
(b)there was some benefit in a short-term arrangement where X would spend three to six months living with the respondent and then return to the appellant;
(c)in his view, the respondent had not sufficiently thought through strategies in dealing with X and Y if they came into his care and that he expected a bit more;
(d)having regard to X’s strong relationship with the appellant, stability of the environment and connections (school, friends, activities) and the difficulty of commenting upon the history of disrupted time between X and the respondent, a change might be associated with a sense of loss and shock as X would be moving into an unfamiliar environment;
(e)although he thought that the risks associated with transitioning into the respondent’s care were of the short-term, if X did not properly adjust this might turn into angst when she got older; and
(f)in respect of Y and the proposal of a moratorium on time with the appellant, it was going to be difficult because there was no reason for Y to have a moratorium from the appellant.
In the context of this appeal, it is difficult to appreciate the utility of these submissions. To the extent that they are intended to suggest that her Honour’s order for a change of residence was made in error, there is no challenge to Order 4 of the primary judge’s orders. To the extent that they might by relevant to the imposition of a moratorium of time between both children and the appellant, how any of these matters demonstrate remediable error, given that Order 6(a) has now expired, was not explained. What remains are Orders 6(b) and 6(c), 8, 9 and 10.
The seminal premise of the appellant’s argument in respect of these grounds is that the primary judge “failed to properly assess the consequences for [X] and [Y] in the context of their losing a meaningful relationship with [the appellant]” (appellant’s Summary of Argument filed 20 May 2024, paragraph 51). However, we cannot accept this premise because it tacitly asserts that the outcome of the primary judge’s orders is a loss of the meaningful relationships between the children and the appellant. We do not accept that tacit assertion.
The primary judge was alive to the fact that the children had a close and loving relationship with the appellant and that they would derive a benefit from their relationship with her. At [286] her Honour said:
A change in the children’s primary care is a decision of last resort and I must admit to finding that prospect very difficult. The children have a close and loving relationship with [the appellant]and have lived all their lives with her. The [appellant] no doubt has many qualities that are advantageous to the children, and I have no doubt that the children will be devastated to leave her primary care…
Notwithstanding this assessment that the children would benefit from the meaningful relationships that existed between them and the appellant, critically, the primary judge considered that if X remained living with the appellant, there would be “no real prospect of her having a relationship with [the respondent] and she will, in all likelihood, grow up wrongly believing [the respondent] is a person to be feared and who sexually abused her as a baby” (at [287]). As for Y, the primary judge considered that as he gets older and becomes more aware of the appellant’s suspicions about the respondent, it is likely that he too will develop a resistance to spending time with the respondent. The primary judge recorded the evidence that she thought indicated that this has already started to occur at [289].
At [293] the primary judge perfectly captured her conclusions about these matters:
Although a change in primary residence will be distressing for both children initially, I am satisfied that in the long term it will be in their best interests as the children will both be able to have a meaningful relationship with both parents.
It can be seen from those paragraphs of her Honour’s reasons to which we have referred, that it was her assessment that should the children remain in the appellant’s primary care they would not have a relationship, let alone a meaningful relationship, with the respondent. Worse, X would grow up wrongly believing the respondent is a person to be feared and who sexually abused her as a baby, and Y would grow aware of this over time. Her Honour’s assessment was that a change in primary residence for the children would likely permit them to maintain a meaningful relationship with both parents and protect the children from the unacceptable risk of harm she identified existed in the appellant’s care.
Again, to submit that the primary judge did not consider the likely effect of the change in residence upon the children pays no attention to her Honour’s reasons for judgment. The primary judge identified both positive and negative effects of a change for X:
290.Interestingly, Mr [B] opined that [X] will likely face challenges wherever she is living having regard to the disruptions in her childhood to date and the fact that her parents do not communicate. Mr [B] noted [X]’s connection with her school, her friends, her activities, that she had a sense of humour, and her strong relationship with [the appellant]. If she were able to develop a strong relationship with [the respondent] as well then that could assist her through her adolescence. I accept Mr [B]’s opinions and observations.
291.In Mr [B]’s opinion, a change in [X]’s primary care may well cause her to experience a sense of shock and loss but the risks to her are more likely to be short-term and having a relationship with both parents would be a long-term benefit to her. Mr [B] stressed the importance of managing any difficult behaviour the [respondent] may encounter with [X] in a supportive rather [than] a confrontational way. I accept Mr [B]’s opinions and observations.
Insofar as Y is concerned, whilst it is true that her Honour did not address this issue as directly as she did in X’s case, she nonetheless addressed it by:
(a)identifying and recording that Y had a meaningful relationship with the appellant and that was of advantage to him (at [286]);
(b)identifying and recording that Y had a good relationship with the respondent (at [136] and [139]), but that it is likely that Y will develop resistance to spending time with the respondent as he gets older and becomes aware of the appellant’s suspicions about the respondent. There were already signs this was occurring (at [289]); and
(c)finding that it was in Y’s best interests to have a meaningful relationship with both of his parents and that was only likely if the children resided with the respondent (at [293]).
Beyond Y being distressed in the short-term, there was no evidence upon which the primary judge could determine that there was likely to be long-term negative effects upon Y by residing primarily with the respondent.
We consider it abundantly clear from her reasons that the primary judge had due regard to the benefit to the children of a meaningful relationship with both parents. There is no challenge to the primary judge’s finding that the children will be able to maintain a meaningful relationship with both parents if a change of residence is ordered. Moreover, the reasons of the primary judge set out that her Honour fully grasped the evidence dealing with both the positive and negative effects upon the children of a change in residence.
In truth, these grounds cavil with the weight given by the primary judge to various aspects of the evidence before her and the facts as she found them to be. The weight given to evidence is a matter quintessentially for the primary judge unless an appellant can show that the primary judge was “plainly wrong” (CDJ v VAJ (1998) 197 CLR 172 at 230–231 per Kirby J). The well-known observations of Stephen J in Gronow v Gronow (1979) 144 CLR 513 commencing at 519 also bear repeating:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight…
To the extent that these grounds of appeal seek to cavil with orders regulating the children’s time with the appellant, we are not persuaded that the primary judge was wrong, let alone plainly wrong. These grounds of appeal reveal no error on the part of the primary judge.
Grounds 3 and 4
Order 6(a) provides that for a period of three months from the date of the order, the children will spend no time nor communicate with the appellant unless with the consent of the respondent in consultation with Dr C, clinical psychologist, or such other therapist retained by the respondent. Order 6(a) spelled out the purposes of the engagement of Dr C, or other agreed therapist, to be:
(a)to support the respondent in parenting the children and deal with any behavioural issues which may arise;
(b)to assist the appellant to:
(i)come to terms with the orders;
(ii)protect the children from exposure to her suspicions that the respondent has sexually abused X;
(iii)parent the children cooperatively and consistently with the respondent; and
(iv)develop appropriate assertive parenting strategies.
Order 6(b) provides that following the three month moratorium, the children should spend supervised time with the appellant once per week for four weeks at a nominated organisation or such other supervised contact service as the parties might agree.
Order 6(c) provides that after the children have spent supervised time with the appellant pursuant to Order 6(b) and subject to compliance with Order 8, the children will spend time with the appellant each alternate weekend from after school, or 3.00 pm, on Friday until before school, or 9.00 am, on Monday and for half of their school holidays.
Orders 8, 9 and 10 provide:
8.The children spending time with the [appellant] pursuant to this Order or as agreed between the parents in writing is strictly conditional upon the [appellant] continuing to engage with Dr [C] or such other therapist retained pursuant to this Order to assist her:
(a) To come to terms with this Order;
(b)To protect the children from exposure to her suspicions that the [respondent] has sexually abused [X];
(c)To parent the children cooperatively and consistently with the [respondent]; and
(d) To develop appropriate assertive parenting strategies.
9.The costs of ongoing therapy for the [appellant] shall be borne by the [appellant] solely.
10.The [appellant] shall continue therapy for so long as reasonably recommended by the therapist retained pursuant to this Order and in order to establish her compliance with this Order, the [appellant] shall provide to the [respondent] a letter from her therapist at least each month confirming her engagement in therapy as required by this Order or if therapy is no longer required then a statement to that effect.
Counsel for the appellant argues that there appears to be no utility in Order 6(b), in circumstances where, notwithstanding the moratorium, time or communication might well occur between the appellant and the children. She argues that if such time occurs unsupervised, then it seems pointless to revert to a position of supervised time following the moratorium period.
Those submissions aside, the appellant concedes that supervised visits pursuant to Order 6(b) could be of some benefit if the children had no time with the appellant during the moratorium.
Counsel for the appellant argues that “Order 8 is rather prescriptive” and, in conjunction with Orders 9 and 10, it “is rather onerous as the duration of therapy is not possible to ascertain” (appellant’s Summary of Argument filed 20 May 2024, paragraph 65). She argues that pursuant to Order 10, “a therapist is provided with a power to decide how long such therapy should continue. Given the [appellant] is required to meet all costs of ongoing therapy, it is not possible to ascertain if the regime created by the subject orders is sustainable in a practical sense” (appellant’s Summary of Argument filed 20 May 2024, paragraph 65).
Both parties gave evidence about their intention to rely upon Dr C for the purposes of engaging in therapy for the purposes set out in Order 6(a). Dr C was apparently available from the end of January 2024 to assist the parties, although she gave no evidence herself. The parties gave evidence about what would happen if they could not engage Dr C.
Counsel for the appellant submits that given the children’s time with the appellant is contingent upon her undertaking therapy with Dr C (or another therapist) who can determine its duration, “it seems apparent that the structure of the subject orders prevents the children from having the benefit of a meaningful relationship with [the appellant]” (appellant’s Summary of Argument filed 20 May 2024, paragraph 69). She further submits that “the cumulative effect of [O]rders 6, 7, 8, 9, 10 is such that there is no certainty as to when the time between the children and the [appellant] will commence” (appellant’s Summary of Argument filed 20 May 2024, paragraph 70).
We do not accept these submissions. Provided the appellant has engaged with a therapist (Dr C or some other agreed person) for the purposes set out in Order 8, time between the children and her must occur in the ways set out in Orders 6 and 7. Whilst the need for ongoing therapy is to be determined by the therapist with whom the appellant engages, that introduces no uncertainty into the orders. Whilst the anticipated duration of the necessary therapy was not the subject of any evidence, none was needed. The imposition of the requirement for therapy for the appellant was supported by Mr B’s evidence as a way to ameliorate the risk to the children (X in particular) of the appellant’s beliefs and her reaction to the orders. The protective mechanism is necessary for so long as the need for therapy exists, and that is something within the province of the therapist. Whilst no finite time frame is placed upon the therapy by the orders, given its nature and the reason for its imposition, none could sensibly be identified as appropriate from the evidence before her Honour.
None of the appellant’s submissions in relation to these grounds demonstrate error on the part of the primary judge. These grounds have no merit.
Grounds 5 and 6
Grounds 5 and 6 were argued together. They were set out in the Amended Notice of Appeal as follows:
5.The Learned Judge erred by failing to consider whether the imposition of a 3-month moratorium was proportionate to the magnitude of risk.
6. The Learned Judge erred by failing to consider whether:
(a) any condition would ameliorate the identified risk; and
(b)any other order was available to ensure the children have the benefit of a meaningful relationship with the [appellant].
Ground 5 relates specifically to Order 6(a) of the primary judge’s orders. It is no longer necessary to consider that ground given the abandonment of the appeal against Order 6(a).
Ground 6 can be sensibly interpreted as addressing the balance of the orders subject of the appeal and we will address them on that basis.
In support of Ground 6, the appellant argues that the primary judge was required to consider “alternatives to the order in the circumstances where the children had to be removed from [the appellant], who was their primary attachment and then to have no time with her for three months” (appellant’s Summary of Argument filed 20 May 2024, paragraph 79). Just which order is being referred to in that passage is not clear, but it seems it is the order for the change of residence.
Counsel for appellant argues that the primary judge failed to consider alternatives and, in particular, failed to “offer any comments” on a proposal discussed by Mr B in his evidence and included as an alternative in the Independent Children’s Lawyer’s proposals at the conclusion of the trial. That proposal provided for the children to live with the respondent for three to six months before returning to live with the appellant. Mr B gave evidence that there would be some benefit in such an arrangement.
However, the appellant faces two problems with this argument. The first is that, in truth, this argument seeks to upset Order 4 of the primary judge’s orders which provides for the children to reside with the respondent. The appeal does not seek to upset Order 4.
The second and more significant difficulty for the appellant’s argument is that the primary judge did in fact consider the identified alternative proposal at [280]:
Importantly, I must consider if the unacceptable risk of psychological and emotional harm to [X] posed by the [appellant] can be ameliorated in some way. I have considered whether a change in primary care might occur for a limited period to enable the [appellant] to undertake appropriate therapy and then for primary care to revert to the [appellant]. Such a proposition was not supported by any party as a primary position no doubt given the obvious additional disruption it would cause the children. Perhaps more importantly, I am unable to find that a return to the primary care of the [appellant] after three months would not simply re-enliven the [appellant’s] fixation on gathering evidence…
The primary judge’s reasons for rejecting this alternative proposal are clear and cogent.
In any event, even if the primary judge had not considered this alternative specifically, it was not open on the evidence. The primary judge found at [287]:
If [X] remains in the primary care of [the appellant], she will likely continue to refuse to see the [respondent] and will receive no sincere encouragement from the [appellant] to do so. The [appellant] is unlikely to accept the findings of this Court. If [X] remains with the [appellant], there is no real prospect of her having a relationship with [the respondent] and she will, in all likelihood, grow up wrongly believing [the respondent] is a person to be feared and who sexually abused her as a baby.
In contrast, the primary judge found at [293] that a change in primary residence would enable the children to have a meaningful relationship with both parents. None of those findings have been challenged on appeal. It was an inescapable conclusion following those findings that the alternative proposal proffered by the appellant was inappropriate.
Ground 6 fails.
DISPOSITION
Accordingly, the appeal has no merit and should be dismissed.
COSTS
In the event that the appeal was unsuccessful, the respondent and the Independent Children’s Lawyer each sought their costs of the appeal in a fixed sum. In the case of the respondent, that sum is $24,500 and in the case of the Independent Children’s Lawyer, $4,573.09. Counsel for the appellant, quite appropriately, made no submissions against such orders in the event that the appeal failed. There will therefore be an order for costs in those sums.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Jarrett & Campton.
Associate:
Dated: 9 July 2024
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