Sattler & Furnie
[2021] FedCFamC1A 20
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Sattler & Furnie [2021] FedCFamC1A 20
Appeal from: Furnie & Sattler [2020] FCCA 500 Appeal number(s): NOA 28 of 2020 File number(s): BRC 10875 of 2015 Judgment of: STRICKLAND, AUSTIN & TREE JJ Date of judgment: 24 September 2021 Catchwords: FAMILY LAW – APPEAL – CHILDREN – Where the grounds of appeal assert denial of procedural fairness and inadequate reasons – Where the appellant was not denied procedural fairness in the conduct of her case in relation to the calling of witnesses – Where it is not clear what issue or issues it is contended the primary judge prejudged – Where there is plainly no prejudgment in relation to the issue of parental responsibility – Where the findings of the primary judge were reasonably open on the evidence and the reasons for judgment were adequate – Where there is no merit in the grounds of appeal – Appeal dismissed.
COSTS – Where the respondent failed to comply with the order for the filing of a Schedule of Costs and was therefore not permitted to make an application for costs – Where the Independent Children’s Lawyer sought an order for costs – Where the appellant would not suffer financial hardship if an order for costs was made in favour of the ICL and in any event such an order was not opposed – Order for costs made in the amount sought by the ICL.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 61DA(2), 61DA(4), 65DAC, 117(4)(b) Cases cited: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
OP v TP (Conduct of Counsel) (2003) 30 FamLR 281; [2002] FamCA 1155
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasinghan (2000) 168 ALR 407; [2000] HCA 1
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 130 Date of hearing: 14 May 2021 Place: Heard in Brisbane, delivered in Adelaide Counsel for the Appellant: Mr Selfridge with Mr Hartnett Solicitor for the Appellant: Damien Greer Lawyers Counsel for the Respondent: Mr Trost Solicitor for the Respondent: Saunders & Co Solicitors Counsel for the Independent Children's Lawyer: Ms Dart Solicitor for the Independent Children's Lawyer: Aylward Game Solicitors ORDERS
NOA 28 of 2020
BRC 10875 of 2015FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTIONBETWEEN: MS SATTLER
AppellantAND: MR FURNIE
RespondentAND: INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
STRICKLAND, AUSTIN & TREE JJ
DATE OF ORDER:
24 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant mother pay the costs of the Independent Children’s Lawyer fixed in the sum of $5,879.20.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 pseudonym Sattler & Furnie has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRICKLAND J
INTRODUCTION
On 29 March 2021, Ms Sattler (“the mother”) filed an Amended Notice of Appeal appealing against a final parenting order made by a judge of the Federal Circuit Court of Australia (as it then was) on 9 March 2020.
Mr Furnie (“the father”) and the Independent Children’s Lawyer (“ICL”) oppose the appeal.
In summary, the orders appealed provide for the father to have sole parental responsibility for the two children of the parties, X born in May 2010 and Y born in February 2012 (“the children”), for the children to live with the father, and for there to be a moratorium of up to six months on the children’s time with the mother, following which the children are to spend gradually increasing time with her.
RELEVANT BACKGROUND
The father is now 46 years of age, and the mother is now 47 years of age.
The parents commenced their relationship in 2006, with separation occurring in mid-2015.
Since separation the father has re-partnered. The primary judge described that relationship as appearing to be “stable and long term”. The mother has not re-partnered since separation.
The children have lived with the mother since separation.
Both children have significant behavioural issues, and both have displayed appalling behaviour towards their parents, school staff, and medical professionals. There were conflicting medical opinions before the primary judge, including that X possibly has an Autism Spectrum Disorder (“ASD”), but there was general agreement on the evidence that “X is a troubled child, and that he needs stability in relation to assessments and treatment and living arrangements promoting attendance at school” (at [102]). There is no reference in the primary judgment to Y possibly having an ASD or a similar condition, given that the medical reports before the court assess X, but nevertheless the primary judge at [65] described Y as being “as troublesome and uncontrollable” as X.
On 21 January 2016, the father commenced the parenting proceedings by filing an Initiating Application for final and interim orders.
A number of interim orders were made by the primary judge for the children to live with the mother and to spend time with the father, for example:
(a)on 19 December 2016 interim orders were made by consent that the parties have equal shared parental responsibility, the children live with the mother, and spend time with the father during the week;
(b)on 16 May 2018 interim orders were made by consent providing for substantially the same arrangements as above, and additionally, that the children spend time with the father from after school on Thursday to before school on Monday; and
(c)on 22 July 2019 the primary judge again made further orders by consent that the children spend time with the father each alternate week from after school on Thursday to before school on Wednesday.
These orders were made with the parties’ consent, and until at least January 2019 the children spent regular time with the father. However, they began to show resistance to seeing the father, and saw him only twice during 2019. Indeed, his Honour found at [63] that “the mother [had] not been capable of getting the children to their father’s care so they [could] spend time with him”.
Pursuant to the July 2019 interim parenting orders, the ICL was appointed because there were emerging risks to the children in the mother’s care. These risks remained live at the date of the trial and are discussed further below.
On 23 January 2020, the matter returned before the primary judge for an urgent interim hearing requested by the ICL, seeking a change to the children’s residence in favour of the father. As a result, the matter was set down for a final hearing on an urgent basis, which hearing proceeded on 2, 3 and 4 March 2020.
At the time of the trial in March 2020:
(a)the children’s behaviour was appalling and uncontrollable. Despite X having attended on a number of medical professionals over the years, there was no settled diagnosis, and I do not understand X to have been receiving any medical treatment in respect of his behavioural issues;
(b)the children were not attending school. X had missed the last year and a half, and Y had missed all but one day of the school year in 2020, and numerous days in the 2019 school year; and
(c)to repeat, the children had spent very little time with the father during 2019, and otherwise rarely spent time with him.
The parents had not been able to make decisions together, and the evidence was that their communication and cooperation was not improving (at [132]).
The father’s case at trial was essentially that the children remaining in the mother’s primary care posed an unacceptable risk as:
(a)in the mother’s care the children were out of control; the mother was incapable of parenting the children, controlling their behaviour and, getting them to attend school, or to see the father; further, the mother had alienated the children from the father and encouraged them to have a less than meaningful relationship with him; if allowed to continue, the situation presented a risk to the children’s education and socialisation development and to them having any relationship with their father; and
(b)the father wanted to put in place a structured medical and allied health regime whereby X received constant and regular assistance upon the basis of a proper single diagnosis; the mother had a history of taking X to see different specialists for assessment because she was seeking a particular diagnosis which had not been forthcoming from those specialists; as a result X had received no certain diagnosis upon which treatment had been commenced.
Accordingly, the father sought sole parental responsibility to effect his proposed medical intervention, that the children live with him, and a six-month moratorium be imposed as to time with the mother, after which the mother would spend gradually increasing time with the children. The ICL’s position largely accorded with that of the father.
The mother sought sole parental responsibility, that the father be prevented from corresponding with the children’s treating doctors and allied health professionals, and that the children spend time with the father as determined by the court. As the trial progressed, the mother also sought a moratorium on time with the father to allow the children to settle.
The primary judge substantially accepted the cases put by the father and the ICL, and made the orders sought by them.
THE APPEAL
There are three grounds of appeal, Grounds 1 and 2 asserting denials of procedural fairness, and Ground 3 asserting inadequate reasons.
It is well recognised that because a claim of a failure to afford procedural fairness, just as a claim of apprehended bias, strikes at the heart of the trial process and its outcome, that claim should be addressed first, given that the establishment of a lack of procedural fairness must result in a re-trial regardless of possible findings on the other issues (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 per Basten JA at [9]–[13]).
Thus, Grounds 1 and 2 must be addressed first, and Ground 3 only if no merit is found in Grounds 1 or 2.
Ground 1 – The [mother] was denied procedural fairness in the conduct of her case in that she was not able to call evidence from health practitioners about the [father’s] interference with psychological treatment processes for the parties' children.
Particulars
(a)[a] significant part of the [mother’s] case at trial was that the mother had consulted with various health practitioners because of problematic behaviours that the child [X] had displayed;
(b)[t]he [mother’s] case was that the father had continually interfered with the children's treatment by those health practitioners, significantly frustrating her ability to obtain a proper diagnosis for [X] and to access appropriate treatment for him;
(c)the [mother] had proposed to call evidence from four health practitioners which tended to support her case (having exhibited reports from these practitioners in her affidavit);
(d)the learned trial judge misunderstood the purpose for which the [mother] proposed to call those witnesses;
(e)the [father’s] Counsel objected to the calling of the health practitioners (to the extent that the [mother] sought to lead any further evidence-in-chief from them);
(f)the [mother’s] Counsel, in part as a result of that confusion, ultimately did not press for the health practitioners to be called;
(g)the misunderstanding of the learned trial judge, coupled with the incorrect or unjustified tactical decision of the [mother’s] Counsel, deprived the [mother] of the opportunity to run her case as set out in her affidavit evidence;
(h)the effect of the foregoing particulars materially affected the outcome of the trial, in that the trial judge concluded that:
a.the [mother] was simply going from one specialist to another (by inference, the reason that [X] had not been successfully treated was her fault alone) (judgment at [68]);
b.the health practitioners' evidence (exhibited to the [mother’s] affidavit) was only used for the purpose of highlighting (psychological problems) for the child [X] (judgment at [59]) - (rather than for the purpose of showing that the [father] had interfered with their treatment), as some of the reports suggested; and
c.only the [father] was in a position to attend to the children's psychological issues effectively (judgment at [146]).
(i)as a result of the foregoing particulars, the [mother] was denied procedural fairness in the conduct of her case in a way that materially altered the outcome of the trial.
In order to put this ground into context it is necessary to refer to the sequence of events that took place.
On 23 January 2020, the matter was set down for final hearing commencing on 2 March 2020.
Pursuant to paragraph 4b of the order made on 23 January 2020, each party was to file and serve on each other party “[o]ne affidavit of each witness setting out all evidence to be relied upon at trial including evidence in previous affidavit material and any further evidence-in- chief”. And paragraphs 5c, d and e provided as follows:
5.That each party file and serve on each other party …, a case outline setting out:
…
c.A list of affidavits and applications and/or responses (where appropriate) intended to be relied upon at trial;
d.A list of witnesses in their case and an estimate of time for witnesses in the other parties case; and
e.A statement of evidence which they say supports the principles contained in s.60CC of the Family Law Act 1975.
In response to these orders, in the mother’s Outline of Case filed on 24 February 2020, she inserted under the heading of “C. List of affidavits intended to be relied upon by the Respondent” the following:
Date Affidavit Affirmed 19 February 2020 Ms Sattler Report, dated 12 March 2018 Ms A, psychologist Report, dated 17 April 2018 Dr B, paediatrician Report, dated 30 April 2018 Dr C, paediatrician Report, dated 12 February 2019 Dr D, paediatrician
And under the heading, “D. List of witnesses and estimate of time for each witness” she inserted the following:
Witness Party calling/estimated time Ms Sattler, mother [mother] – three hours Ms A, psychologist [mother] – one hour Dr B, paediatrician [mother] – one hour Dr C, paediatrician [mother] – one hour Dr D, paediatrician [mother] – one hour Mr Furnie, father [father] – three hours Ms E, psychologist ICL – two hours
However, there was no affidavit filed by any of the medical practitioners allegedly to be called in the mother’s case, and all that happened was that their reports were annexed to the mother’s affidavit filed on 20 February 2020.
The issues that will become important shortly that flow from this are as follows:
(a)there was no foreshadowing in the mother’s Outline of the intention to call oral evidence from any of the medical professionals;
(b)in the statement of evidence set out in the Outline, as required by paragraph 5d of the order, there was no mention that a critical aspect of the mother’s case was the father’s alleged interference with the psychological treatment processes for the parties’ children; and
(c)although there is reference in the mother’s affidavit to the alleged interference by the father being an issue in the case, amongst many others, and the mother providing examples of the alleged interference, there would have been no basis for the primary judge to anticipate the calling of oral evidence from the medical professionals on this, or indeed, any other issue.
Thus, coming to the hearing, there is no reference in any oral submission made by the mother’s counsel to seeking to call oral evidence from the medical professionals in relation to any alleged interference by the father.
In order though to fully appreciate the actual interchange between the mother’s counsel and his Honour as to this, it is necessary to set out the relevant transcript from the morning of the first day of the hearing as follows:
[COUNSEL FOR THE MOTHER]: Correct, your Honour. Now, in regards to the aspects of what the mother is seeking from these proceedings, she is seeking a ruling in regards to – which is difficult for the court – but one of finding the causation of the children’s behaviour, in as much as that we have got some medical evidence. And there seems to be some various indications as to whether it’s this and it has moved to – initially there was provisional diagnosis of ASD, then there was diagnosis by a paediatrician of ASD, then that was retracted. Now, I’ve been shown a document this morning that may be able to eliminate calling some of the medical practitioners that were involved in this matter, and I have to take some instructions in regards to that, but it’s primarily looking at the circumstances of why a diagnosis was made and then subsequently retracted.
And, in the absence of that diagnosis, there is a question mark over the behaviour, initially of [X], but now of the younger boy as well. I’m not asking – the mother is not asking for a medical diagnosis, but one of looking at a causation, which then will feed into the recommendations made by the family report writer, which are quite significant for the children, in as much as it’s a reversal of the primary caregiver having minimal time with the children, given the issues that has arisen when the children seem to be separated from the mother. So that’s the key ruling in regards to that for the mother, your Honour.
[COUNSEL FOR THE ICL]: Your Honour, I apologise. I just want to be clear exactly what’s intended, in fact, on both sides. I understand the submission was that they were seeking a finding as to the causation of the children’s behaviour. I just want to be clear. Is it suggested that the father has caused the children’s behaviour? Is that the finding that’s being sought? And, if so, what specifically is being relied upon in that regard? Or is it simply that the children are demonstrating behavioural issues, which I think is not in contest. And I don’t know where we go from here. Sorry.
[COUNSEL FOR THE MOTHER]: The mother’s case isn’t that the father has caused them. It’s a matter that they’ve – the children are demonstrating quite significant behavioural issues.
HIS HONOUR: All right.
[COUNSEL FOR THE MOTHER]: And that is consistent with the children being in the mother’s care and with the father’s care, which seems to be a point in dispute.
HIS HONOUR: Counsel for the ICL raised the other important issue, which was what evidence are you relying on for a finding of the causation?
[COUNSEL FOR THE MOTHER]: That is why we intend to call some of those medical practitioners who have had the benefit of assessing [X] in regards to that, and I would be seeking leave to ask some additional questions of clarification of those witnesses if they are called.
HIS HONOUR: Well - - -
[COUNSEL FOR THE MOTHER]: And I believe that counsel for the applicant will be opposing that course.
HIS HONOUR: Well, who do you intend to call?
[COUNSEL FOR THE MOTHER]: Well, my initial standpoint was to call [Ms A]; [Dr B], who is a paediatrician; [Dr C], who’s a paediatrician; and [Dr D], who is also a paediatrician. However, that list may be reduced once I get some instructions in regards to a document that I have located from [Dr C].
HIS HONOUR: All right. What do you say about that, Ms Dart?
[COUNSEL FOR THE ICL]: Your Honour, certainly if those witnesses are made available, then I will have some questions for them. I think it’s a similar position from the independent children’s lawyer’s perspective. We don’t object to that evidence coming in. It may be that it is of assistance to your Honour, given the dispute between these parties as to whether or not this child should or shouldn’t – and I say “this child”, [X] in particular – should have a diagnosis or not. So it may be relevant to your Honour’s findings in those regard.
HIS HONOUR: What do you say, [counsel for the father]?
[COUNSEL FOR THE FATHER]: Your Honour, the father doesn’t oppose the witnesses being called. He does oppose further evidence-in-chief being led from them by my friend for the mother on this basis, that the reports are quite clear with respect to their findings with respect to their diagnoses or non-diagnoses of, in particular, the concerns around autism. Another concern is, your Honour, with the psychologist, [Ms A]. She hasn’t actually seen the children since May 2018. [Dr C], I believe the last time that he saw the children was on 30 April 2018.
His reports also, your Honour – there are two short reports that ..... a one-line assessment which originally was in, I believe, March 2018, an assessment that the child did have autism and then that was retracted two months later, and there is an email attached to the father’s affidavit which explains the reasoning why that diagnosis was retracted. There is then [Dr B], who is another paediatrician, your Honour, and she last saw the children on 17 April 2018. And then there’s [Dr D], the current paediatrician. She has seen the children recently, and that was on 4 December 2019.
HIS HONOUR: Has the father seen these - - -
[COUNSEL FOR THE FATHER]: The father has seen the reports, your Honour.
HIS HONOUR: No. Has he seen these doctors?
[COUNSEL FOR THE FATHER]: Yes. He has seen all these doctors, yes. But the reports are quite clear, your Honour, so I’m wondering what [counsel for the mother] intends to ask that would be any different to what is already before the court. And, if so, the father hasn’t been privy to that information – to that evidence – and it would be – well, it wouldn’t be procedurally fair to my client, your Honour.
HIS HONOUR: So that I understand this, Mum wants a finding as to psychological and psychiatric issues.
[COUNSEL FOR THE MOTHER]: Yes, your Honour.
HIS HONOUR: She then wants the authority, through the exercise of parental responsibility, to seek and receive that treatment appropriate.
[COUNSEL FOR THE MOTHER]: Yes, your honour.
HIS HONOUR: The father wants sole responsibility to seek and achieve that assistance which is appropriate.
[COUNSEL FOR THE FATHER]: Yes, your Honour.
HIS HONOUR: Is that not the case?
[COUNSEL FOR THE FATHER]: Yes. Yes. Yes.
HIS HONOUR: I understood that that was the case. I understood that both parties really want to be in the position to exercise that parental responsibility to get the assistance necessary, without having to answer – and I will put it bluntly – to the other party because of the disputes. I think I will just press ahead with the trial on that basis because, with all due respect, I wouldn’t have thought that there is enough material for me to make up my mind on what is a diagnosis, given that there was a diagnosis of autism, then retracted, and then another doctor, or specialist, said it may well be anxiety for the child in separating from the mother, and – I don’t think – not only is there not enough evidence, this court is not making a finding with regard to subjecting a child to treatment because that is the role of the parents, whoever is exercising parental responsibility.
I think it mistakes the court’s function, with all due respect to mum. And I understand her need to get to the bottom of these really important issues, but this is not a court exercising a jurisdiction which is going to order one parent or the other to have a child treated. This is a court which will allow one parent or the other – because they can’t do it together – to go and get that medical knowledge and assistance, which I think the children need looking at this material, but I think that’s as far as I can go. The evidence just isn’t there. It’s not a court making a decision on the medical needs of the child, as sometimes courts have to do. It’s a court making a decision on who will exercise that responsibility to get the medical assistance necessary. All I will hear otherwise are the opinions of the doctors given at the time, and time is now moving on anyway. So that’s the ruling in respect to that. All right?
[COUNSEL FOR THE MOTHER]: Thank you, your Honour.
(Transcript 2 March 2020, p.7 line 42 to p.10 line 44) (Emphasis added)
Pausing there, as can be seen, the reason proffered by the mother’s counsel for calling the medical professionals and asking them questions, was in relation to the “causation” of the children’s behaviour, and not any alleged interference by the father. And that is how his Honour addressed the calling of these witnesses. Thus, the allegation in the particulars of this ground of appeal that his Honour “misunderstood the purpose for which the [mother] proposed to call those witnesses”, is not borne out.
Nor is it correct to say, as is also suggested in the particulars, that the mother was “deprived … of the opportunity to run her case as set out in her affidavit evidence…”. Her case was as set out in her Outline of Case, and in her counsel’s opening remarks, and there was no misunderstanding or confusion about that.
Further, it is asserted, in effect, that his Honour ruled that the mother was not able to call evidence from the medical professionals as to the father’s alleged interference.
Apart from that not being put as the basis for calling that evidence, the ruling that his Honour made was not that the professionals could not be called, but that the Court was not there to make “a decision on the medical needs of the child”, but rather to make “a decision on who will exercise that responsibility to get the medical assistance necessary” (Transcript 2 March 2020, p.10 lines 38–41).
That it was not a ruling that the medical professionals could not be called, and that it was not taken to be such by the mother’s counsel, is demonstrated in an exchange that occurred later on that first day of the hearing between his Honour and the mother’s counsel. Again, it is necessary to set out that exchange in full as follows:
HIS HONOUR: All right. Obviously, given my views this morning, I can’t make a finding as to what [X] may be suffering from. I mean, I’ve read that material from [Ms A], [Dr B], [Dr C] and [Dr D], but that’s well out of my capability with regard to evidence to make a finding there.
[COUNSEL FOR THE MOTHER]: If it’s any assistance to your honour, I’ve given some thought in regards to how tomorrow will develop, and I think that there’s probably some benefit to be gained from having [Dr D] attend by telephone, given that she’s the most recent paediatrician.
HIS HONOUR: But what’s the point, though? But what’s the point of it? I’ve read their reports, and I’ve seen the reference by [Ms E] to the [Mental Health Service]. This child needs attention. Both parties tell me that. I accept that. The issue I am stating is that one of them has to be able to make the decision because they can’t make it together. So I just can’t see the point in any of those professionals giving evidence, because they’ve all got their views, but they need to go through all of those clinical assessments which doctors and hired health professionals go through in order to come to a conclusion. But I’m not coming to that conclusion. I can’t. I don’t need to. All I need to do is make sure these children are in a position to get that help.
[COUNSEL FOR THE MOTHER]: Well, your Honour has indicated that you’re not going to be assisted by having [Dr D] attend by telephone.
HIS HONOUR: Well, I just – unless you tell me what the relevance of the evidence is, how does it assist me in coming to a best interests decision?
[COUNSEL FOR THE MOTHER]: Perhaps it would assist your Honour in coming to some insight as to the causation, not the diagnosis, but the causation ‑ ‑ ‑
HIS HONOUR: Of?
[COUNSEL FOR THE MOTHER]: ‑ ‑ ‑ of [X’s] behavioural issues.
HIS HONOUR: But even if I came to that, aren’t I still left with the decision as to which one of these parents is going to exercise that responsibility in ensuring that this child and perhaps [Y] gets that necessary medical assistance?
[COUNSEL FOR THE MOTHER]: Ultimately, that is the question.
HIS HONOUR: Sorry?
[COUNSEL FOR THE MOTHER]: Ultimately, that is the question, and if your Honour is comfortable that he doesn’t have to hear from [Dr D], as being the most recent paediatrician, and one who has had perhaps some insight with [X’s] behaviour – well, it’s a situation where I’m certainly not going to attempt to prolong this trial unnecessarily.
HIS HONOUR: Well, I’ve just heard from the deputy principal who tells me, “These children have problems.”
[COUNSEL FOR THE MOTHER]: Indeed. They’re perhaps the worst that he has encountered since he commenced teaching in 2003.
HIS HONOUR: Yes. No, I can’t see any assistance to the decision I have to make upon the considerations stated in the Act by having any of those doctors there.
[COUNSEL FOR THE MOTHER]: Well, your Honour has got the benefit of the reports that were prepared contemporaneously at the various times of the treating process. There’s no diagnosis that has been arrived at at this particular time.
HIS HONOUR: Well, no, because there’s no clear pathway which these parents have been able to adopt to get to a diagnosis, or if there is, the mother says, “Well, there’s something else there”, and hence she is seeking answers elsewhere. Anyway, I don’t need to talk ‑ ‑ ‑
[COUNSEL FOR THE MOTHER]: So on that basis, your Honour, I won’t waste any further of the Court’s time in having these witnesses give evidence. So we’re left with the mother.
(Transcript 2 March 2020, p.107 line 23 to p 108 line 43) (Emphasis added)
As can be seen, if his Honour’s ruling had been that the medical professionals could not be called, then there would have been no basis for the mother’s counsel to broach the issue here.
Again, the exchange is around the purpose of calling these witnesses, namely to provide insight as to the causation of the child’s behavioural issues, and upon his Honour saying that he would not be assisted with the evidence, the mother’s counsel announces that he will not have these witnesses give evidence.
Thus, the issue of these witnesses being called is resolved by the mother’s counsel not pressing that, as indeed is conceded in the particulars to this ground of appeal, although I do not accept that that was done as a result of any confusion, as alleged in the particulars.
In any event, given the relevant paragraphs of the order of 23 January 2020, and the failure to file affidavits of the proposed witnesses, and there being nothing put as to the specific evidence that would be sought to be led, even if his Honour had made a specific ruling that the witnesses could not be called to lead further evidence, no error would have been committed by his Honour, and indeed, that was conceded by the mother’s counsel at the hearing of the appeal.
A further fatal blow to the assertion that the mother was denied procedural fairness is the principle that parties are normally bound by the conduct of their counsel (OP v TP (Conduct of Counsel) (2003) 30 FamLR 281).
Here of course, the decision not to press the calling of the witnesses was a decision apparently made by the mother’s counsel. However, in OP v TP the Full Court said this (at [124]):
…incorrect or unjustified tactical decisions made by counsel may have had the effect of producing an unfair result. If this be the situation it is necessary for an appellant to establish, not only that the decisions were wrong or incompetent, but that their effect was likely to have brought about a different result if they had not been made.
The mother sought to rely on this to demonstrate that the trial was unfair. However, no basis was established supporting a submission that the decisions of counsel were either wrong or incompetent. Nor was any basis established for this Court to find that the effect of the decision was to materially alter the result of the trial, or put another way, that a different result would have followed if that decision had not been made.
The detail of the oral evidence sought to be called is unknown; it was not opened on, and in any event, it is mere speculation to proceed on the basis that the evidence would have been as it was thought to be, and of course, following cross-examination there could be no guarantee what the effect of the evidence would have been. Indeed, this was recognised in the mother’s Amended Summary of Argument filed on 29 March 2021 in the following submission:
If the mother had been able to lead that evidence – there is a significant possibility that the evidence may have affected the outcome of the trial …
(Mother’s Amended Summary of Argument, paragraph 21d)
That is a far cry from being able to submit, as the mother does in paragraph 30 of her Amended Summary of Argument, that the evidence if presented would have had a material impact on the result. To repeat, it is unknown what the evidence would have been, and even if it had been as suggested by the mother, it has not been demonstrated that that would have brought about a different result.
For all these reasons this ground of appeal is not made out.
Ground 2 – The [mother] was denied procedural fairness during the trial, in that the learned trial judge pre-judged the issues in dispute which improperly restricted consideration of the issues from the commencement of the trial.
Particulars
(a)prior to the commencement of the trial, the learned trial judge expressed that the issues are 'pretty clear' and that the issue was that either one party or the other party was to have sole parental responsibility for the children (particularly in relation to their medical care);
(b)the learned trial [judge] expressed that he was proceeding with the trial 'on the basis' that one party or the other party would have sole parental responsibility for the children in respect of their medical care;
(c)the view expressed by the learned trial judge was not preliminary in nature, his Honour explained that the trial was being conducted with the view to resolving that question (in that way);
(d)by expressing that concluded view at the commencement of the trial, his Honour confined his determination as to what was in the best interests of the children to the issue of who would exercise sole parental responsibility, rather than proceeding with the trial on the basis that the best interests’ considerations would be determined in the usual way;
(e) in confining himself in the way particularised, his Honour improperly narrowed the issues for resolution and pre-judged the outcome in the case, which was ultimately reached in his Honour's reasons for judgment.
It is unclear what issue or issues it is contended that his Honour prejudged.
If it is the issue of parental responsibility, then there is plainly no prejudgment.
It is common ground that the parties were unable to make joint decisions as to the care and wellbeing of the children, and in particular as to their medical care, and thus his Honour proceeding on the basis that one or the other of the parties should have sole parental responsibility for the children was obvious, and involved no prejudgment of an issue in dispute. Indeed, neither party sought equal shared parental responsibility, they each sought sole responsibility, and thus the result had to be that one or the other had that responsibility.
The only other issue that it seems is alleged to have been prejudged, arises from particulars d and e of this ground. However, they are not addressed in the mother’s Amended Summary of Argument, which was directed to the issue of parental responsibility.
In any event, it is not apparent, as seems to be contended in the particulars, that his Honour only limited his consideration of what was in the best interests of the children to the issue of parental responsibility. For example, I have not been taken to anything in his Honour’s reasons for judgment, or in the transcript for that matter, where his Honour can be said to have prejudged the issues of with whom the children should live, or what time the children should spend with the non-residence parent.
In the Amended Summary of Argument there are three observations of his Honour apparently relied upon by the mother to demonstrate prejudgment. There is first the observation of his Honour recorded in paragraph 31 of the mother’s Amended Summary of Argument, namely:
[HIS HONOUR]: I would have thought these issues are pretty clear, who exercises parental responsibility – it has to be one or the other at this stage because decisions are just not being made between the parties – and why that would be so, which will really possibly dictate the living arrangements. That’s it in a nutshell as I see it.
(Transcript 2 March 2020, p.3 line 47 to p.4 line 4)
However, that represents nothing more than his Honour identifying the issues from the material that each party has presented.
Secondly, there is the quote from the Transcript of 2 March 2020, p.10 lines 20–42, recorded in paragraph 32 of the Amended Summary of Argument, namely:
[HIS HONOUR]: I understood that both parties really want to be in the position to exercise that parental responsibility to get the assistance necessary, without having to answer – and I will put it bluntly – to the other party because of the disputes. I think I will just press ahead with the trial on that basis. […] This is a court which will allow one parent or the other – because they can’t do it together – to go and get that medical knowledge and assistance, which I think the children need looking at this material, but I think that’s as far as I can go.
However, again, and it is even more obvious if the entirety of what his Honour said at this point is considered (see [30] above), that this solely relates to the issue of parental responsibility, and it still does not demonstrate any prejudgment by his Honour.
Thirdly, and finally, there is the quote from the Transcript of 2 March 2020, at p.11 lines 1–2, which appears in paragraph 34 of the Amended Summary of Argument, namely:
[HIS HONOUR]: …the best I think your client then can seek is a finding that the children live with her predominantly, and she exercises sole parental responsibility.
I fail to see how that demonstrates prejudgment. His Honour is saying that the best the mother can hope to achieve is for orders to be made in accordance with what she seeks.
This ground of appeal also has no merit.
Ground 3 – The learned trial judge provided inadequate reasons for his decision.
Particulars
(a)his Honour concluded that the children were 'at risk' explaining that the risk was 'multifaceted' (without explaining what that meant) (judgment at [114]);
(b)his Honour made a number of findings that rationally affected the outcome of the trial - either inadequately or without a satisfactory evidentiary basis, including:
a.that the [mother] had not involved the [father] in various appointments with health practitioners when the [mother’s] case was that the [father] was involved in many appointments but interfered with them;
b.that the [father] wanted a 'structured diagnosis' for [X], despite the [mother’s] case that he had interfered with health practitioners diagnosing [X];
c.drawing a negative inference from the [mother’s] consultations with various health practitioners, despite her case that (in part) various health practitioners were consulted because of the [father’s] interference behaviour;
d.drawing a negative (and erroneous) inference against the [mother] because the learned trial judge formed the view that the [mother] had incorrectly interpreted his interim orders about the [father] not unilaterally engaging with health practitioners;
e.making a finding that the children were 'highly influenced' by the [mother] (judgment at [148]) and therefore imposing a moratorium on her time (of six months) despite his finding that the [mother] could not control the children;
f.making a finding that 'only the [father] was in a position' to attend to the children's psychological issues effectively, despite the [mother’s] case that the Father had interfered with the children's health care; and
g.rejecting the [mother’s] evidence of the Father's interference, despite the references in the health practitioners' reports and in circumstances where the [mother] was deprived of the opportunity to call the health practitioners to speak to those reports (to which, see ground 1).
It is necessary to work through the particulars of this ground.
In relation to (a), it is plain from his Honour’s reasons read as a whole, how the “risk” was “multi-faceted”. Indeed, it is even explained in the very sentence where his Honour made that finding. That sentence reads as follows:
114.Considering then the risk, the findings I make is that the risk is multi-faceted, and the outcome potentially present is that the relationship the children have and can have with the father is in jeopardy, as is their education and emotional wellbeing.
Thus, facets of the risk are to the relationship between the children and the father, and to their education and emotional wellbeing.
With (b), the complaint is not inadequate reasons as such, but that certain findings were made without an evidentiary basis. However, I do not agree.
As to a, the only reference to that in the reasons is at [56] where his Honour says this:
The father’s case was that the mother has not involved him in a number of medical appointments, and said he did not know of recent assistance she was seeking from a Dr C and a Dr B.
However, that is not a finding; it is a recording of the father’s case.
As to b, that arises in [66] and [67] where his Honour says this:
66.I will make the important observation that the medical information before the court is conflicting and the father’s position is that he wants to get a structured medical and allied health regime whereby the child X, and from the evidence Y, receive constant and regular assistance, upon a proper diagnosis.
67. I stress his case, he wants a proper diagnosis.
However, again there is no finding there; it is setting out the father’s case.
As to c, that arises in [68] where his Honour says this:
From the evidence, it appeared that the mother, no less concerned about the behaviours, wants assistance, but she just keeps going from one specialist to another.
That can be described as a finding, but his Honour is correct in observing that the mother “just keeps going from one specialist to another”, because that was the evidence. However, the mother claims that his Honour drew a “negative inference” from this, despite her giving evidence explaining her reasons for taking X to so many different specialists, including because of their unavailability, and primarily her allegation that the father had blocked her in seeking treatment for the child.
His Honour though did not accept her claim that the father “blocked her in pursuing assistance”, adding, “especially since the children have only seen the father twice in the last 12-months” (at [105]). That finding also came after a review by his Honour of the evidence as to the various diagnoses made by the various medical specialists, and the mother’s questioning of some of those diagnoses as a result of her belief as to what X is suffering from.
It was reasonably open on the evidence for his Honour to not accept the mother’s evidence that the father was blocking her in pursuing assistance for X, and indeed the medical reports attached to her affidavit did not provide unequivocal support for that claim.
As a result, it would have been open to his Honour to draw an adverse inference from the mother taking the child to various specialists, if that is what his Honour did. I express it in that way though, because I have not been taken to anything in his Honour’s reasons where that is demonstrated.
As to d, that arises from [73] and [74] where his Honour said this:
73. Although there is an order in place for both parties to get the same information from health professionals, the father says the mother has interpreted that to stop him from contacting officials directly. That appears to be the case and the mother now seeks orders that the father not contact any health professionals.
74. That, I must say, is an incorrect interpretation of the orders.
With respect to his Honour, I do not see that the mother had incorrectly interpreted the order. It provided for the parties to only communicate with the medical professionals on a joint basis, and restrained each of them from contacting those professionals on a unilateral basis. However, this is an error without consequence, and certainly could not be a basis for overturning his Honour’s decision. I say that because I have not been taken to anything in the record which demonstrates that his Honour “drew a negative inference” from this finding. Further, in paragraph 59 of the mother’s Amended Summary of Argument, she suggests that this error was “significant”, because her case was that the father’s unilateral communication with the medical professionals was a “major reason” why they had been unable to arrive at a concrete diagnosis for X.
However, the evidence, including the reports from the medical professionals, does not provide any basis for this suggestion.
With e, the following findings were made by his Honour, namely:
148. As to time, there should be a moratorium for up to six months given evidence that the children are highly influenced by the mother, will not spend time with the father and will not attend school.
…
151. It is abundantly clear that the mother has total influence over the children, although not an ability to control them, so a moratorium on their time with her must be implemented, otherwise they will not have the opportunity – the chance – to receive an education or have the relationship with the father.
It is the case that his Honour did not identify “the evidence that the children are highly influenced by the mother”, but his Honour did adequately explain why there should be a moratorium of up to six months as follows:
149.They need stability in the father’s household, without being influenced by the mother, a fundamental issue related to their best interests of the children. The evidence was that there would be difficulty for the children and a period of adjustment, but that has to be measured against what has been a complete failure to get the children to their school and a failure to get the children to the father to spend time with him. Failure on both issues fails the children with regard to their education and their right to have the benefit of a meaningful relationship with the father.
150.The family consultant stated there were traits of co-dependency by the mother on the children, but could not go as far as making that finding, however, that factor needs to be recorded. One particular aspect of that was the fact that the mother had been co-sleeping with [X] from 2013 until about eight months ago, as she disclosed in oral evidence. She is now co-sleeping with [Y]. The mother explained that it is not always in the same bed and sometimes the boys would merely be in her room.
151.It is abundantly clear that the mother has total influence over the children, although not an ability to control them, so a moratorium on their time with her must be implemented, otherwise they will not have the opportunity – the chance – to receive an education or have the relationship with the father.
152.I do view the evidence that the child [X] has not been to school for the best part of 18 months as extremely serious – and the child [Y] is following suit.
153.While the mother claims the father refuses to help her in relation to schooling, the real fact is that she should have made the decision to allow them to change residence to ensure he has the opportunity to succeed where she has failed, despite some efforts she has made to get them to school, apparently even in their pyjamas.
154.Her resistance and failure to recognise the damage being done to them in regard to their education alone escapes explanation on the available evidence, but it is real and her eleventh-hour alleged application for home schooling is too little and too late.
155.The court has a duty to the children as well as the public at large to ensure children have the opportunity to access the education system.
156.The moratorium then should be for a maximum of six months – the time suggested by the family consultant. She said it could take as little as four months to settle the children, but no precise figure could be determined. In that case, I will make the order that subject to agreement, the moratorium be implemented for up to six months, leaving, as I must, the decision to the father as to when time recommences with the mother in accordance with the time orders. He will have to exercise that capacity to provide for the children emotionally in that sense and exercise his parental responsibility as to the right time he judges such to occur before the six month period. At the end of the six month period, he must comply with orders for time with the mother and only then, if there is a failure in the orders to assist the children, will the matter obviously need further consideration.
Thus, this submission leads nowhere.
As to f, his Honour found at [145] and [146] that “only the father is in a position to attend” to both the children’s “[s]chooling and determination of [X’s] psychiatric or psychological situation”.
This was a finding that was reasonably open on the evidence, and in any event, the premise of the particular is unsound, given his Honour’s rejection of the mother’s case that the father had interfered with her attempts to obtain medical treatment.
With g, that is a repeat of Ground 1, and having found no merit in that ground, I do not propose to say anything more in relation to this particular, save and except to note, that the reports of the medical professionals do not provide unequivocal support for the claim of interference by the father.
Although it was not an issue raised in the ground of appeal, or in the particulars, in her Amended Summary of Argument the mother submitted that the trial judge was wrong (in [167]) to call X’s suicidal ideation a “new allegation” which arose in the mother’s trial affidavit filed on 20 February 2020. The mother’s case was that one of the medical professionals had reported this in September 2018.
The issue that this allegedly created was that Ms E, the third family report writer, was unaware that this had occurred, and when informed of it during her cross-examination she indicated that this would cause her to reconsider her view. It is then argued that because his Honour “depended heavily on [this report writer’s] assessment of the evidence in arriving at [his] conclusions”, and because the report writer had acted upon facts that turned out to be wrong, there was an error in his Honour’s reasoning.
The first thing to note is that the exact words of the report writer in cross-examination were not as suggested by the mother in her Amended Summary of Argument, but rather were as follows:
---Well, it has certainly caused me to reflect because it’s a very serious disclosure. I would – I would need more time to actually think about another recommendation because it’s – it – it’s – it’s difficult to know what is going to be successful with the family. …
(Transcript 3 March 2020, p.239 lines 13–16)
Thus, the report writer did not say as alleged that it would cause her to “reconsider” her view. Indeed, she subsequently confirmed her recommendation as to a change of residence (Transcript 3 March 2020, p.241 lines 10–27, p. 242 lines 39–47, p.243 lines 1–2).
The second thing to note is that it was not explained what facts the family report writer relied upon in forming her conclusion which turned out to be wrong.
His Honour dealt with this issue as follows:
167.…However, the claim lacks particulars as to the circumstances in which the disclosure is said to have been made. In oral evidence the mother said it was made in January 2020. In reading the preceding and following paragraphs of her affidavit, I cannot see any circumstances relating to the making of the alleged disclosure, so it is not known just how the conversation arose, what was being said by the mother, what else was said by X and what other conversation occurred.
168.The first time the father heard of the allegation was when he read it in the mother’s affidavit.
169.It emerged that the mother sought no support for X about this alleged threat.
170.If the mother was raising a risk, she simply did not give particulars in which to consider a risk.
In my view, on the evidence before him, it was reasonably open to his Honour to address this issue in that way, and I can find no error in that regard.
I can find no merit in this ground of appeal
CONCLUSION
Having found no merit in any of the grounds of appeal, the appeal must be dismissed.
COSTS
As a result of the father’s failure to comply with the order for filing a Schedule of Costs, we did not permit the father to make an application for the costs of the appeal in the event that the appeal was dismissed, or for the costs thrown away as a result of the previous adjournment of the appeal at the request of the mother.
However, the ICL did seek an order for costs of the appeal, and for the costs thrown away in relation to the previous adjournment. The total amount sought was $5,879.20.
That claim brought into play s 117(4)(b) of the Family Law Act 1975 (Cth), but given that the mother was legally represented, I am satisfied that the mother would not suffer financial hardship if an order was made in favour of the ICL, and in any event, the mother did not oppose such an order being made. Thus, an order will be made as sought by the ICL.
AUSTIN J
By an Amended Notice of Appeal filed on 29 March 2021, the mother appeals from orders made on 9 March 2020 (but amended under the slip rule on 10 March 2020) by a judge of the Federal Circuit Court of Australia (as it was then known) in respect of the parties’ children pursuant to Pt VII of the Family Law Act1975 (Cth) (“the Act”).
The orders reversed the children’s residence, making provision for them to live with the father and for him to have sole parental responsibility for them. The orders impose a moratorium upon the children’s physical interaction with the mother for up to six months, but then allow their gradual re-introduction to her, culminating in a regime under which they spend time with her each alternate weekend in school terms, during school holidays, and on other special occasions.
The central themes of the trial were the children’s incorrigible behaviour while in the mother’s residential care, the breakdown of the children’s relationships with the father, and the children’s failure to attend school. That was so even though the children were only aged nine and eight years respectively at the time of trial.
The father contended the mother lacked sufficient parenting capacity to ensure the children’s emotional and intellectual needs were met and, significantly, his case was endorsed by the single expert psychologist (“the single expert”) retained in the proceedings. Two Family Reports were prepared earlier in the proceedings by a Family Consultant, but the single expert was retained to write a comprehensive report in December 2019, upon which she was cross-examined at trial. Her strong recommendation was that the children should move to live with the father and, further, they should not spend any time with the mother for about four to six months. In essence, the primary judge made orders to that effect in reliance upon that evidence.
The mother’s appeal from those orders entail complaints of procedural unfairness (Grounds 1 and 2) and the lack of sufficient reasons to explain the outcome (Ground 3). The grounds are without merit and the appeal should be dismissed.
Ground 1
This ground of appeal contends the mother was denied procedural fairness because she was unable to call evidence from health practitioners to verify her allegation of the father’s interference with her attempts to secure psychological treatment for the children.
Some context is necessary to understand her complaint. The evidence of the children’s aberrant behaviour was correctly summarised and justifiably described by the primary judge as “shocking” (at [4], [26]–[35], [40]–[41], [60], [65], [85] and [87]–[88]). The children were utterly uncontrollable for the mother. She believed the eldest child’s misbehaviour was attributable to his diagnosis with autism, whereas the father was doubtful. He believed the mother was searching for a physiological explanation to shift blame from herself, which did not exist.
Annexed to the mother’s trial affidavit were medical reports related to the children. No objection was taken to the admissibility of the medical reports and so they formed part of the body of evidence. However, the father did object to the mother’s oral application for leave to call one or more of the doctors who wrote the reports and lead oral evidence-in-chief from them at the trial, since such extra evidence, even if relevant and probative, would take him by surprise and occasion procedural unfairness to him. The mother seemed to overlook that he was entitled to just as much procedural fairness as her.
Months before, the parties were directed to file and serve their affidavit evidence for the trial, but the mother failed to file any affidavits by the doctors. Nor did she approach the Court for leave to issue subpoenas compelling their attendance as witnesses. In such circumstances, without the belated grant of leave to do so, for which there was no ostensible justification, the primary judge ruled that the mother was not permitted to lead oral evidence-in-chief from any other witness. His Honour said this to end the discussion on the topic:
HIS HONOUR: …So that’s the ruling in respect to that. All right?
(Transcript 20 March 2020, p.10 line 42)
The issue was broached again later in the trial, but it is unnecessary to now determine whether, ultimately, the mother’s counsel voluntarily abandoned the application to call the medical witnesses. If it be accepted the application was maintained but refused, the interlocutory ruling was quite unremarkable and, if correctly made, cannot be the foundation of any complaint of procedural unfairness because the forensic consequences of a procedural decision correctly made must, by definition, be fair. The mother accepted that proposition in the appeal, but then made no attempt to explain how the evidentiary ruling was wrongly made.
The mother appeared to contend at trial that she intended to use the prospective evidence to help prove the cause of the children’s unruly behaviour, but the underlying premise in prosecuting this ground of appeal was different. It was that the unknown evidence, if allowed to be given, would have vindicated her complaint that the father frustrated her attempts to have the eldest child properly treated, which allegation she believes the primary judge wrongly rejected (at [105]) and, had that factual mistake not been made, the result would have differed.
First and foremost, that is not an assumption which can be safely made, even if the mother is permitted to run a different case on appeal. None of the medical reports already in evidence tended to show the father thwarted the eldest child’s treatment and neither the primary judge, nor this Court, could have any idea of what the doctors might have said from the witness box on that topic. The mother produced no proof of evidence to forewarn what evidence might be given and her counsel was unable to even broadly outline the nature of the evidence anticipated from the prospective witnesses. It was entirely speculative. Conceivably, even if the doctors had been available to give oral evidence (which was unconfirmed), none of them may have given the evidence for which the mother hoped.
Not even the mother gave any detailed factual evidence to prove the father’s alleged obstruction of the children’s treatment. It was no more than her bare assertion. There were instances where the father attempted to furnish the doctors with extra information he perceived they had not been given by the mother, but that could not be reasonably construed as undue interference. Under a succession of interim parenting orders made prior to the trial, the parties were invested with equal shared parental responsibility for the children, which order entitled both parties to confer with treating doctors. The mother was not lawfully entitled to submit the children to medical assessment and treatment without first consulting the father. Indeed, due to the parties’ argument over the issue, another interim order was made in May 2018 restraining them from unilaterally contacting or communicating with health professionals on behalf of the children.
Even if it is hypothetically assumed the doctors’ oral evidence at trial would have been as the mother had hoped, it would have made no tangible difference to the ultimate result. It was common ground the parties were unable to parent the children co-operatively, which is why they each sought conferral with exclusive parental responsibility for the children as an incident of their selection as the primary residential carer. The eventual choice of the father as the residential parent hinged upon incontrovertible proof of the children’s dire emotional turmoil while living with the mother and acceptance of the single expert’s evidence that they would be better off living with him. Any disagreement between the parties over the probity of the children’s past and future medical treatment would be (and was) resolved by the order investing the chosen residential parent with sole parental responsibility for the children.
The mother’s submission that the primary judge’s evidentiary ruling did materially affect the result clashed with other much milder concessions in her Summary of Argument, where she admitted there was only a significant possibility such additional evidence from the doctors might have affected the outcome of the trial. Such conjecture is not enough. Before an appeal can succeed by challenge to an interlocutory ruling, aside from the ruling having been wrongly made, it must be shown to have actually affected the final result (Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 482–484 and 494–497). In this case, the ruling was well open to the primary judge but, even if it was not, it was not demonstrated to have affected the result. Ground 1 should fail.
Ground 2
Under this ground, the mother alleged she was denied procedural fairness as the primary judge “pre-judged the issues in dispute”.
The plural reference to “issues” was an error, because the solitary “issue” the subject of complaint under this ground of appeal was the order granting the father sole parental responsibility for the children. The particulars and submissions elaborating this ground refer only to remarks made by the primary judge at the start of the trial about the need for one party or the other to be granted sole parental responsibility for the children.
The preliminary remarks made by the judge in relation to that issue were identified to be these:
HIS HONOUR: …I would have thought these issues are pretty clear. Who exercises parental responsibility – it has to be one or the other at this stage because decisions are just not being made between the parties – and why that would be so, which will really possibly dictate the living arrangements…
…
HIS HONOUR: I understood that both parties really want to be in the position to exercise that parental responsibility to get the assistance necessary, without having to answer – and I will put it bluntly – to the other party because of the disputes…
…
HIS HONOUR: …[T]his court is not making a finding with regard to subjecting a child to treatment because that is the role of the parents, whoever is exercising parental responsibility.
…
HIS HONOUR: This is a court which will allow one parent or the other – because they can’t do it together – to go and get that medical knowledge and assistance, which I think the children need looking at this material, but I think that’s as far as I can go. The evidence just isn’t there. It’s not a court making a decision on the medical needs of the child, as sometimes courts have to do. It’s a court making a decision on who will exercise that responsibility to get the medical assistance necessary.
…
HIS HONOUR: …The best I think [the mother] then can seek is a finding that the children live with her predominantly, and she exercises sole parental responsibility.
(Transcript 2 March 2020, p.3 line 47 to p.4 line 3, p.10 lines 20–41, p.11 lines 1–2)
While such remarks by the primary judge tended to imply his Honour’s inclination to ultimately make an order for one party to have sole parental responsibility for the children, importantly, the remarks do not at all imply any lack of impartiality or pre-judgment about which of the two parties should be granted sole parental responsibility.
It was unsurprising that the primary judge was disposed to make such introductory remarks at the commencement of the trial when elucidating the issues requiring resolution, as they aligned entirely with the cases foreshadowed by both parties and the ICL. They all uniformly advocated for the conferral of sole parental responsibility for the children upon whichever party was selected as their primary residential carer.
During the trial, both parties adduced evidence of family violence perpetrated by the other, which evidence led the primary judge to find family violence had occurred between the parties (at [162]–[163]). The finding was not challenged in the appeal and so it must follow that the presumption of equal shared parental responsibility did not apply (s 61DA(2)). But in any event, the parties explicitly acknowledged the evidence of their inability to co-operate over the children’s management meant the presumption of equal shared parental responsibility would be rebutted (s 61DA(4)). It should be observed that the mother contended in her Case Outline document:
Both the Mother and the Father have proven there is difficulties in them effectively co-parenting their children [sic].
The mother sought an order investing her with sole parental responsibility for the children in expectation she would continue to be their residential carer, because she did not consider she could work co-operatively with the father as the law requires (s 65DAC). That being so, it would be illogical for her to expect to share parental responsibility for the children equally with the father if he was instead designated as the children’s residential carer.
Since the primary judge’s preliminary remarks amounted to no more than recognition of a joint position, there can be no room for any argument of procedural unfairness in respect of that issue. Given the nature of the evidence and submissions on the topic, it may be wondered how the primary judge could possibly have come to any conclusion but that one party or the other must have exclusive parental responsibility for the children. Ground 2 should fail.
Ground 3
This ground complains the primary judge gave inadequate reasons for the decision. However, the particulars attending this ground all complain of two quite different things: first, inadequate reasons for certain findings; and secondly, the lack of evidence for such findings.
As to the first complaint, the primary judge was required by law to give sufficient reasons for the result embodied in the appealed orders, but not to give sub-sets of reasons for why individual pieces of evidence were accepted or rejected in the course of making findings (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasinghan (2000) 168 ALR 407 at [67]).
The second complaint, which is effectively an assertion that the findings were not open on the evidence, is not fairly encapsulated by this ground of appeal which complains only of insufficient reasons for the ultimate decision. Despite the irregularity, this new ground can be entertained because the father and the ICL both had ample chance to address it in their written submissions and neither complained they were taken by surprise and thereby prejudiced.
The findings which were said to have been wrongly made fell generally into three categories: the parties’ different perceptions about the children’s need for medical intervention; the need for the initial moratorium upon the children’s expenditure of time with the mother; and the children’s failure to attend school.
With respect, many of the submissions made on the mother’s behalf in relation to those various findings amounted to little more than observations that the primary judge accepted the father’s evidence in preference to the mother’s in instances of material conflict, but that alone cannot exemplify appealable error.
Those of the primary judge’s findings which aligned with the father’s perception about the children’s lesser need for medical intervention were open on the evidence. The mother told the single expert the eldest child needed to be hospitalised and medicated for his autism, but her belief collided with the available medical evidence. The single expert reported that, although a psychologist provisionally diagnosed the eldest child with autism in March 2018, more recently, two paediatricians and the staff of a youth mental health service with whom the eldest child had consulted did not support the diagnosis and, further, the youngest child was just copying the eldest child’s erratic behaviour. The primary judge was cognisant of and accepted that evidence (at [101]). It was open to do so, as the evidence was more recent and given by experts with ostensibly superior expertise.
The children’s failure to attend school was not the subject of factual contest, so the findings about it were unremarkable. School attendance was resisted by the eldest child from September 2018 and by the youngest child from February 2019, but both flatly refused to go after May 2019, with the mother powerless to change that situation. She told the single expert she had tried “everything”. If unchecked, the single expert said the situation would retard the children’s social and academic development and already meant both children will probably need to repeat at least one year of school.
It can be conveniently added here that the mother, assuming she was doing her very best, had encountered trouble in persuading the children to spend time with the father during 2019, but was simply unable to ensure it happened at all after August 2019. If that situation was allowed to continue, the single expert said the children would lose their relationships with the father, which would be emotionally damaging for them.
The single expert opined that the genesis of the children’s refusal to attend school and spend time with the father was their exposure to the ongoing parental conflict and the absence of any co-parenting relationship. The decision to make the order imposing the moratorium period upon the children’s personal interaction with the mother after they moved to live with the father was based on the recommendations of the single expert.
No doubt, certain aspects of the evidence emphasised by the mother were not discretely mentioned in the reasons for judgment, but no judicial reasons can ever state all of the pertinent factors, nor can they express every feature of the evidence which causes a judge to prefer one factual conclusion over another (Fox v Percy (2003) 214 CLR 118 at 132; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at 463–464).
The reasons why the primary judge decided to reverse the children’s residence and initially restrict their interaction with the mother were enunciated with sufficient clarity. His Honour said this:
118.In my view, if a radical change is not undertaken now, not only will the relationship with the father for the boys be threatened when there is no evidence of a risk being presented by him, but the perilous state of their educational needs and rights are threatened as well.
…
126.The fact is that the mother cannot get the children to school, and as disappointed with the recommendations of [the single expert] as she states she is, that does not change the fact.
127.Nor can she get the children to see their father, and again, despite expressing extreme disappointment with [the single expert’s] assessments, that fact is not changing.
128.When the matter appeared before me in January 2020, I stressed that the mother needed to get the children to school, yet she has failed to be able to do that but for the first day of school this year.
129.In the children’s best interests, there must be a radical change in their circumstances and as difficult as that will be for them immediately, if they remain with the mother they will miss school and they will miss their opportunity to have a relationship with their father.
130.Further, the [eldest child] is lashing out physically at teachers and students using violence and in such a way that the court does not have confidence that he will learn right from wrong in his present circumstances.
131.He needs to be given an opportunity to have his issues addressed, which is not occurring in his current circumstances.
132.The parties have not been able to make decisions together and the evidence is that their communication and cooperation is not improving. The mother appears to be making decisions about assistance for [the eldest child] without consulting the father, and there is no evidence that she could give the father considered and thoughtful input into decision-making.
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143The set of orders proposed by the Independent Children’s Lawyer sought a moratorium for six months when the clear evidence was that such should occur for between four and six months. I am going to adopt as the best interests orders the proposals by the Independent Children’s Lawyer, but change the moratorium to up to six months – leaving to the father his exercise of parental responsibility as to when time should begin again, in compliance with the time orders set out by the Independent Children’s Lawyer.
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145.Schooling and determination of the psychiatric or psychological situation affecting [the eldest child] are of supreme importance.
146.I find only the father is in a position to attend to both issues effectively.
147.On that basis I intend making an order for sole parental responsibility and changing the children’s residence.
148.As to time, there should be a moratorium for up to six months given evidence that the children are highly influenced by the mother, will not spend time with the father and will not attend school.
149.They need stability in the father’s household, without being influenced by the mother, a fundamental issue related to their best interests of the children. The evidence was that there would be difficulty for the children and a period of adjustment, but that has to be measured against what has been a complete failure to get the children to their school and a failure to get the children to the father to spend time with him. Failure on both issues fails the children with regard to their education and their right to have the benefit of a meaningful relationship with the father.
Ground 3 should also fail.
Conclusion
The appeal should be dismissed.
The father sought an order against the mother for his costs thrown away by the adjournment of the hearing of this appeal in March 2021, but not in respect of his costs arising from the hearing of the appeal in May 2021. The father failed to file and serve a schedule of his costs, as was ordered by the registrar, and so his costs application should be dismissed in the absence of any satisfactory explanation for his breach.
The ICL filed a schedule of costs, but only the day before the appeal hearing. While it was late, the claim for costs of only $5,879.20 (which related to both the adjourned hearing in March 2021 and the hearing in May 2021) was very modest. The mother did not oppose an order for her to pay the ICL’s costs in that sum, so such an order should be made.
TREE J
I agree with the reasons of both Strickland J and Austin J and the orders which they propose.
I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Strickland, Austin & Tree. Associate:
Dated: 24 September 2021
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