SCVG & KLD
[2014] FamCAFC 42
•25 March 2014
FAMILY COURT OF AUSTRALIA
| SCVG & KLD | [2014] FamCAFC 42 |
| FAMILY LAW – CHILDREN – RELATIONSHIP BETWEEN EQUAL SHARED PARENTAL RESPONSIBILITY AND EQUAL OR SUBSTANTIAL AND SIGNIFICANT TIME – Interim orders- Where a previous order for equal shared parental responsibility had been made – Where that order continued to operate – Where it had previously been determined in a final hearing that equal time was not in the best interests of the children - Whether by virtue of an existing order for equal shared parental responsibility, a “legislative pathway” is created that requires a trial judge to consider again whether an order for equal time or substantial and significant time should be made – Consideration of Goode & Goode (2006) FLC 93-286 and Marvel v Marvel (2010) 240 FLR 367 – Where 65DAA operates if a parenting order for parental responsibility has been made and continues to operate, such that the provision is triggered irrespective of whether the order was made in current or prior proceedings – Where 65DAA was not referred to in the judgment – Where an inference can be drawn that 65DAA had been considered – Where determination made that equal time or substantial and significant time is not in the child’s best interests one of the essential preconditions to the making of an order under FAMILY LAW – APPEAL – EXPERT REPORTS – Where the primary judge did not afford significant weight to expert opinion evidence adduced to establish whether the father posed a risk of harm to the children – HELD – No appealable error FAMILY LAW – APPEAL – SUPERVISED TIME – Whether the primary judge erred in failing to make an order for supervised time – Where no application to have supervised time – Where orders intended to operate for a short period - HELD – No appealable error |
| Crimes Act 1900 (NSW) – s 195(1) |
Goode & Goode (2006) FLC 93-286
Marvel v Marvel
(2010) 240 FLR 367
(2009) FLC 93-405
(1985) 60 ALR 68
McCall & Clark
Metwally v University of Wollongong
MRR v GR (2010) 240 CLR 461
Nicols v Gardner & Anor
[2005] FMCA 122
(1979) FLC 90-725
(1950) 81 CLR 418
(2007) FLC 93-345
Rice and Asplund
Suttor v Gundowda Pty Ltd
Taylor v Barker
| APPELLANT: | SCVG |
| RESPONDENT: | KLD |
| INDEPENDENT CHILDREN’S LAWYER: | Yeend & Associates |
| FILE NUMBER: | SYC | 4380 | of | 2008 |
| APPEAL NUMBER: | EA | 107 | of | 2013 |
| DATE DELIVERED: | 25 March 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Stevenson JJ |
| HEARING DATE: | 3 October 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 July 2013 |
| LOWER COURT MNC: | [2013] FamCA 565 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Wheelhouse SC |
| SOLICITOR FOR THE APPELLANT: | Adrian Twigg & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Schonell SC |
| SOLICITOR FOR THE RESPONDENT: | Macphillamy’s Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Yeend & Associates |
Orders
The appeal against Order 6 of Faulks DCJ made on 4 July 2013 be dismissed.
Within one (1) month of agreement or assessment as to quantum, the appellant father shall pay the costs of the respondent mother in relation to this appeal.
Within one (1) month of agreement or assessment as to quantum, the appellant father shall pay the costs of the Independent Children’s Lawyer in relation to this appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym SCVG & KLD has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 107 of 2013
File Number: SYC 4380 of 2008
| SCVG |
Appellant
And
| KLD |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by SCVG (“the father”) against an interim order made by Faulks DCJ on 4 July 2013 which temporarily suspended final orders that enabled him to spend time with the parties’ children. The appealed order was made when an interim hearing between the parties was adjourned. At the same time, the primary judge ordered the children attend upon a family consultant whose report, either oral or in writing, was expected to be available within four weeks at which time his Honour indicated that the hearing would resume. At the resumed hearing, the primary judge would determine “what orders might be made either in suspension of the existing orders or a continuation of them pending a final hearing” (Order 4). As the orders of 4 July 2013 make clear, the interim order under challenge was intended to operate until the adjourned interim hearing had been completed and further interim orders made.
KLD (“the mother”) is the respondent to this appeal. She seeks to uphold the orders of the primary judge.
An order was made pursuant to s 65L of the Family Law Act 1975 (Cth) (“the Act”) for the appointment of an Independent Children’s Lawyer (“ICL”). Before us, the ICL sought to uphold the decision under appeal.
The orders made by the Primary Judge on 4 July 2013
The orders made on 4 July 2013 are set out below:
1.A Single Expert be appointed to conduct consultations and to prepare a report in accordance with the Terms of Reference agreed except as to four words between the lawyers for the parties and to include those four words on my determination.
2.This is a matter in which the Court would be assisted by the appointment of an Independent Children’s Lawyer and I request the Director of the Legal Aid Commission in Canberra to make arrangements for the nomination of such a person as soon as practicable.
3.I further direct that the Independent Children’s Lawyer as soon as is practicable after his or her appointment consult with the lawyers for the mother and the father to assist in the identification of an appropriate single expert for the purposes of the preparation of the report referred to above.
a.The children will attend upon a Family Consultant at this Court …. on 24 July 2013. I request that the Registry confirm the appointment as soon as possible and the time of the required attendance of the children.
b.In relation to the attendance upon the Family Consultant neither parent is either required or otherwise to attend and the purpose of the interview between the children and the Family Consultant is to enable the Family Consultant to ascertain the children’s wishes and views about the time with and or communications they may have with their father.
c.In this regard neither child is required to express those views if she does not wish to do so.
d.In coming to a conclusion about what views might have been expressed by the children, the Family Consultant will take into account the fact that the children have been living with their mother and have not seen their father since February 2013 and that there have been telephone communications between the children and their father, the content and effect of which is not the matter of agreement between the parties.
e.Upon completion of the consultation, the Family Consultant will either provide a written report to this Court or give oral evidence if that is a more convenient course to be adopted in accordance with the time available for the matter to be returned before me.
4.This matter is adjourned until completion of the report or the Family Consultant’s availability to provide an oral report so that a further determination can be made about what orders might be made either in suspension of the existing orders or a continuation of them pending a final hearing. (our emphasis)
5.Until I have received a report from the Family Consultant referred to above and the matter has been relisted before me and the parties have had an opportunity to make submissions to me and if necessary to ask questions of the Family Consultant the physical time that the children might spend with their father pursuant to the Orders of Federal Magistrate Altobelli (as he then was) such Orders being made on 15 September 2010 and the Orders made on 10 November 2010 are suspended. It is noted in this regard that such suspension does not apply to the telephone contact that the children were ordered to have available to them with their father.
6.The matter is otherwise adjourned to a date to be notified to the parties as soon as possible when I am able to ascertain when I am likely to be able to receive the copy of the report from the Family Consultant.
7.I direct that the Independent Children’s Lawyer as soon as he or she is able to do so will notify my Chambers of the name of the agreed Single Expert and the Court will be responsible for forwarding to that Single Expert the Terms of Reference as previously referred to.
Background Facts
The father is retired and lives in Sydney with his partner and his adult son from an earlier marriage.
The mother resides in Town B in the State of New South Wales with the parties’ children.
The parties commenced cohabitation in 2001 and married that year.
Their daughter, H was born in 2002.
Their younger daughter, T was born in 2004.
The parties separated in January 2005. Following separation, the children, who were then approximately two and a half years and five months moved with the mother to Town B. They have lived there ever since. Since separation the father has regularly spent time with the children, albeit not to the extent he wanted.
Litigation between the parties over the children commenced in 2005 and continues. Twice the father has sought that the children’s time be divided equally between the parties and on another occasion that they primarily live with him and have substantial and significant time with the mother.
The father commenced parenting proceedings in this Court on 30 March 2005 following which an interim order was made for the children to remain living with the mother in Town B.
Upon completion of a nine day hearing, on 13 April 2006, Moore J made final orders, the effect of which was that the children would continue to live with the mother and spend substantial and significant time with the father. Although the father sought an order that the children spend equal time with him, that order was not made.
The father’s appeal against Moore J’s decision was dismissed on 24 May 2007 following which he applied for special leave to appeal to the High Court. Special leave was refused on 14 December 2007.
In July 2008, the father commenced proceedings in the Federal Magistrates Court (now Federal Circuit Court) to vary the parenting orders made on 13 April 2006.
After a defended hearing which lasted six days, on 15 September 2010, Federal Magistrate Altobelli (as he then was) made final orders that the children continue to live with the mother (in Town B) and spend substantial and significant time with the father. The orders provided that the parties have equal shared parental responsibility, that the children spend half of the school holidays with each parent and, until 14 May 2014, during school term in each four weeks, spend time with the father in Sydney from 6.00 pm Friday until 3.00 pm Sunday twice and once in the Town B/Canberra area from 10.00 am Saturday until 3.00 pm Sunday. Thereafter, weekend time was to commence at 3.30 pm on Friday. Provision was also made for the father to return the children to school on Monday. In addition, the orders provided for daily telephone contact by the children with the parent not having the children’s immediate care. Although the father sought orders that the children primarily reside with him, those orders were not made.
The father appealed the orders made by the Federal Magistrate. His appeal was dismissed on 6 May 2011 and again he made an application for special leave to appeal to the High Court which was refused on 7 October 2011.
Between September 2012 and December 2012, the father engaged in conduct which resulted in him being criminally charged with one count of destroy or damage property (s 195(1) of the Crimes Act 1900 (NSW)), three counts of using a postal or similar service to menace, harass or cause offence (s 471.12 of the Criminal Code Act 1995 (Cth)) and four counts of forge Commonwealth document for person to accept as genuine (s 144.1(5) of the Criminal Code Act 1995 (Cth)).
On 21 December 2012, before the charges were determined, the father commenced proceedings in the Federal Magistrates Court for parenting orders. He sought that the children’s time be divided equally and that during school terms they live with each party week about. An alternating two-thirds to one-third arrangement during school holidays was proposed.
In accordance with r 4.05 of the Federal Circuit Court Rules 2001 (“the FCCR”), the father filed an affidavit in support of his application. The effect of that rule is that a person must state the facts relied on. As Federal Magistrate Scarlett (as he then was) explained in Nicols v Gardner & Anor [2005] FMCA 122, an affidavit is required “… because the court needs to see a statement on oath or affirmation by a party setting out what the party’s case is right on the first day” [36].
As the father’s affidavit is brief, excluding formal parts, it is set out below:
1.I am the father.
2.There are 2 children from my relationship namely [H and T].
3.I believe it is the children’s best interest that their mother and I have shared care of the children.
4.I am prepared to set up a suitable residence in Canberra in addition to my residence in Sydney so I can care for the children in Canberra on the days they attend school and are in my care but otherwise continue to care for them in Sydney.
… (Father’s affidavit filed 21 December 2012)
The remaining paragraphs deal with pre-action procedures and do not address the merits of his application. We observe that the father did not disclose that from early 2009 he had been treated by a psychiatrist.
The father was arrested on 24 January 2013 in relation to the offences and granted bail. The hearing was adjourned to 21 February 2013. Eight days later the Australian Federal Police issued a media release which provided a broad overview of the charges and identified the person arrested as “a 61 year old [Sydney] man”.
The father did not inform the mother or the court that he had been arrested. It was only when the mother heard about the media release and made contact with police that she discovered that the father had been arrested. This discovery would appear to have been the catalyst for her application for interim orders filed on 15 February 2013 to suspend the order which gave the parties equal shared parental responsibility, the orders which enabled the father to spend time with the children and further sought an order that he attend on a psychiatrist for assessment.
Notwithstanding the father’s opposition, the mother stopped making the children available for face to face contact with him. Regular telephone and Facetime communication continued.
In March 2013 the mother was diagnosed with breast cancer, for which she had a mastectomy, chemotherapy, radiotherapy and physiotherapy which was to continue until mid October 2013. The mother said she now has live-in help and has been advised “… that it is essential for my recovery that I manage my stress levels effectively” (Mother’s affidavit filed 26 April 2013, par 16). She further said that dealing with the father is her greatest stressor. He denied behaving towards her in a manner which might cause her to feel stressed.
The mother’s application to suspend orders came before the Federal Circuit Court on 19 March 2013 when the proceedings were transferred to this Court with all applications to be listed before a registrar on 22 April 2013. On a without admission basis, pending the first return date of the proceedings in the Family Court, the father gave an undertaking “… not to exercise his rights of contact to the children pursuant to orders 2-11 made by Federal Magistrate Altobelli on 15 September 2010 and the orders made on 10 November 2010”.
The father filed a response to the mother’s interim application on
23 April 2013. He sought that her interim application be dismissed, the resumption of contact in accordance with the orders dated 15 September 2010 and costs. No application for supervised time was made.
An amended interim application was filed by the mother on 26 April 2013 in which she sought, in addition to her earlier application that the father’s face to face time with the children and the order for equal shared parental responsibility be suspended, orders to restrain the father from discussing her medical condition with the children or disseminating details of it, continuation of interim orders which restrained the parties from removing or attempting to remove the children from Australia and consequential orders. She also applied to transfer the proceedings to Canberra.
On 29 April 2013 the matter was transferred to the Canberra registry of the Family Court. The father’s undertaking not to exercise face to face time with the children was maintained.
The charges on which the father had been arrested were changed to one count of property damage (s 195(1) of the Crimes Act 1990 (NSW)) and seven counts of using a postal or similar service to menace, harass or cause offence (s 471.12 of the Criminal Code Act 1995 (Cth)).
On 28 June 2013 on his plea of guilty to those charges, he was convicted and sentenced to a good behaviour bond in respect of the property damage charge. The bond was expressed to be for 12 months and it was a condition of the bond that the father take prescribed medication and attend counselling/treatment in accordance with medical advice of a psychiatrist (Dr L). On the seven charges of using a postal service to menace, harass or cause offence, on each he was placed on a 12 month good behaviour bond. It was a condition of the bond that he accept the guidance of a psychiatrist or psychologist, to take medication as prescribed and to attend counselling, rehabititation or educational development in accordance with medical advice (Dr L).
It is not necessary that we set out the facts on which the charges were based and to which the father pleaded guilty. However, it is appropriate to observe that his behaviour included threats of harm which contained the foulest language and delivery of excrement to people who he viewed as favouring the mother.
The proceedings before the Primary Judge
The proceedings came before the primary judge on 2 July 2013. Both the father and mother were represented. At this hearing, the father declined to continue the undertaking that he would not seek to spend time with the children. Hence, the mother’s interim application became urgent. Nonetheless an application was made on her behalf to adjourn her application for interim orders until a date in August 2013. The basis for the application was two-fold, namely, her ill health and availability of counsel. Considerable medical evidence had been recently filed and there was an issue about whether the medical practitioners could be made available for cross-examination. After the primary judge indicated that he would not consider adjourning the matter for that period, the interim hearing was listed on 4 July 2013. This was done on the basis that the father did not seek to cross-examine the mother’s medical practitioners. The proceedings were then adjourned to 4 July 2013.
By the time the proceedings resumed before the primary judge on 4 July 2013, the mother had filed two affidavits sworn by her and the father had filed four affidavits sworn by him, three affidavits from psychiatrists (Drs N, L and A), an affidavit from a psychologist (Dr W) and another from his partner. In addition to the affidavits from the psychiatrists the father also relied on a report from
Dr B, who is a family, child and adult psychiatrist.
It is necessary to observe that by r 15.51 of the Family Law Rules 2004 (Cth) (“the rules”), a party must apply for permission to tender a report or adduce evidence from an expert witness, other than a single expert witness. That rule does not apply to evidence from a medical practitioner who has provided or is providing treatment if the evidence relates to the matters referred to in r 15.41(1). Notwithstanding these rules, the father presented evidence from psychiatrists and a psychologist retained for the purpose of these and his criminal proceedings and which the rule, prima facie, rendered inadmissible. Although the father had not previously disclosed it, Dr L had been treating him since February 2009 and his evidence would thus not offend the expert evidence rules. The same can be said of Dr B. Nonetheless the primary judge permitted the father to rely on the expert evidence he presented. In the event, the medical practitioners were not cross-examined and the proceedings were undertaken without cross-examination.
In the hearing before the primary judge on 4 July 2013, both parties were represented by counsel, albeit the mother was not present at court. Counsel for the mother tendered a Minute of Order which set out the orders that the mother sought. In summary, in addition to the orders sought in her amended application filed on 26 April 2013, the Minute proposed the appointment of Dr Q as a single expert.
The Primary Judge’s Reasons
The primary judge delivered oral reasons immediately after the hearing finished.
After his Honour discussed issues related to a prompt final hearing, he indicated that the issue for determination was “… what is to happen between now and my receipt of the report from the Family Consultant about the views of the children” [2]. His Honour observed that the issues, about whether or not face to face time between the children and the father should continue, were complicated and pointed out that the parties’ evidence was “contradictory on nearly every aspect” [3]. He then discussed matters which he considered to be more significant than others. Reference was made to the mother’s illness and treatment and her evidence that she was adversely affected by the stress caused by the proceedings was accepted.
His Honour viewed as significant that the father was now on a bond with conditions that included that he continues to receive medical assistance and take medication. He was concerned that should the father fail to comply with the terms of the bond while the children were with him, he might be arrested which was something to which the children should not be exposed.
Consideration was then given to the expert evidence upon which the father relied. Having pointed to deficiencies in relation to the admissibility of the various expert reports, his Honour observed that “because they were relied upon without objection” they would be admitted into evidence and be taken into account and afforded such weight as may be appropriate [4].
Because the father asserts error in relation to the manner in which the
primary judge dealt with the expert evidence, it is appropriate to set the salient reasons out in full:
5.In determining what weight the expert evidence might properly be given, I note the very limited facts each of the experts were provided with and, in relation to the issue of whether or not there should be a continuation of the time that the father spends with the children. I note that they did not have the opportunity of interviewing either the mother or the children and did not have access to a number of items of evidence in the past which may or may not have affected the particular expert’s opinion. In relation to each of the experts, I find that the way in which the opinions were expressed in the reports shows there is a lack of a discernible pathway from the facts available to the expert to the opinion expressed. In addition, if the additional information that had been provided to the expert were available then it may or may not – but probably would – have affected the expert’s opinion, at least to some extent.
6.In such circumstances I would not put significant weight upon any of the opinions I have before me as annexed to the father’s affidavit. That is not to say that I do not accept there is a lot of other material in those reports which might well be relevant to these proceedings (and I will deal with those matters in due course in the final hearing).
It needs to be understood that the majority of the experts’ reports were attached to one of the father’s affidavits as well as to their own affidavits from each expert (not Dr B). Thus, although the primary judge referred to the experts’ reports attached to the father’s affidavit, there can be no doubt that he addressed his remarks to all the expert reports upon which the father relied.
His Honour then turned his attention to Part VII of the Act, in particular, the provisions which required the proceedings be determined on the basis that the children’s best interests (s 60CC(1)) are the paramount consideration (s 60CA) and the relevant primary (s 60CC(2)) and additional considerations (s 60CC(3)). Because one of the father’s grounds of appeal requires that we consider whether the primary judge adequately addressed s 60CC and
s 65DAA, in our analysis of his Honour’s reasons we will identify at this stage the provisions to which his findings relate.
Submissions had been made by the father’s counsel, and accepted by
his Honour, that there was no evidence to support the proposition that the children would be in any physical danger with their father [9]. However, in relation to psychological harm (s 60CC(2)(b)), the primary judge said “the evidence is contradictory – both from mother and father and from the children” [10]. Of particular importance, his Honour continued at [10]:
It is for that purpose that I seek to ascertain the children’s views independently through the use of a Family Consultant. It seems to me that until I have that information I can not reasonably rely upon either the evidence of the mother or the father, except where it might be independently corroborated. This can be done through evidence given by the Family Consultant and also from a single expert. To the extent there is a difference between the parents’ evidence, there are more occasions where the mother’s evidence is corroborated than the father’s. However, that is far from saying I accept every statement made by the mother or, indeed, that I reject any statement or all statements made by the father. It is simply the case that the evidence at this point – not unreasonably, perhaps – is in a state of conflict and not capable of easy resolution.
Reference was then made to the argument made by counsel for the father to the effect that notwithstanding that the father had twice given an undertaking that he would not have face to face time with the children, it was significant:
11.… that in previous court proceedings there have not been orders which have meant the father did not have any time with the children and therefore, the ‘default position’ is that the children should spend time with their father.
The primary judge weighed the importance of the benefits to the children of relationships with both of their parents (s 60CC(2)(a)) and observed that this important factor needed to be evaluated in the context of an adjournment “of possibly one month” [12]. It is in this context that his Honour emphasised the importance of him receiving a report from the family consultant “about what the children want (s 60CC(3)(a)) and how they see their relationship with their father” (s 60CC(3)(b)) [12]. Considered in the context of a short adjournment, his Honour was not satisfied that the benefits to be derived by the children from continuing weekend time with the father were outweighed by:
12.… the importance of all the other factors, including the possibility that the children may suffer from psychological harm if they spend time with the father.
His Honour explained that the evidence in relation to the children’s views left the position “unclear” and, as he said more than once during exchanges with the parties legal representatives, he regarded it as important that he have independent evidence concerning their views about spending time with their father [13].
At [14], the primary judge explained that a suspension of the children’s time with the father would weigh more heavily if these were proceedings for final orders but less so, given the short duration of the adjournment (s 60CC(3)(d)).
The primary judge was concerned about the “substantial practical problems” in relation to resumption of the children’s time with the father during the period of the adjournment and was not satisfied that a resumption of the children’s time with the father “at this point” would operate materially to their benefit (ss 60CC(3)(e), 65DAA(1)(b) and 65DAA(2)(d)) [16].
His Honour referred to exchanges with counsel in which he had expressed “serious doubts” about the father’s capacity to control his behaviour in the children’s presence and that, at this point, it was common ground that the mother had both the ability and motivation to properly provide for their emotional and intellectual needs (ss 60CC(2)(b) and 60CC(3)(f)) [17].
An example of the exchanges to which his Honour referred may usefully be set out here:
HIS HONOUR: If, and it’s – is an if, because I’m not really in a position to come to any final conclusion about all of it, if I were to accept the mother’s allegations, his uncontrolled behaviour includes sending cards, communications to members of her family, to other members of the apartment building in which he sits, it includes an allegation, which I can see your client hasn’t had a chance necessary, to reply to it yet, but he sent a Father’s Day card to [the mother’s solicitor], masquerading as [the mother’s solicitor’s] children. This is – it’s not just one incident, this is a succession of allegations in some cases and admissions in others, that this happened.
And moreover, it involves a number of communications, which with the children, as asserted, and with the current applicant in the interim matter, which indicate he was out of control on those occasions, as well. Now, it’s not – you can’t minimise all of that, by saying, “Well, it’s only three or four.” These are actions of someone over a – as I said, an extended period, pre-meditated, carried out and for which, as [counsel for the mother] points out, there’s some evidence that he has no remorse at all.
[COUNSEL FOR THE FATHER]: Your Honour, I have something to say, about the evidence the mother gives about what the children have said to her, but what I say about the totality of what your Honour just described, to say for the children and the mother, and I will say it for the children, [the father’s] – whatever your Honour finds and accepts about the areas that are still uncertain about which your Honour has expressed that you’re not in a position to make a finding, his frustration and his inappropriate behaviour arising from his frustration has been very specifically targeted at those he considered were instrumental in what he considered to be the unsatisfactory state of the living arrangements of his children in these proceedings. That’s not to minimise it, your Honour but his clearly inappropriate, appalling behaviour was very specifically directed.
There’s no evidence that he has ever thought about, much less expressed, much less acted on any desire to harm his children in any way. All the evidence is that he is deeply devoted to his children, loves them dearly and in my submission, your Honour, it is not a logical step to progress from the behaviour directed at those who were involved, or he thought to be instrumental in the state of his - the living arrangements for his children, to contend that that logically means there is some unacceptable risk that he would behave in such a way or any other inappropriate way towards his children.
HIS HONOUR: But it’s not – the question is not, is he likely to physically injure the children, the question is a much wider one than that. The safety of the children involves not only their physical safety, and I agree there is no evidence of which I’m aware at the moment, that [the father] has ever attempted to physically harm the children or even expressed any intention that he might do so or anything of that sort, nor has anyone suggested that he would but it’s a broader context of safety because there’s the psychological and emotional safety of the children to be considered as well and if I were to accept, and you said you would address me on them and I will wait and listen to what you say – if I were to accept the matters that are set out in the mother’s affidavit under a broad heading of Recent Events from paragraph 13 onwards, then these are demonstrations that the children are being subjected to a fair measure of harassment and a fair measure of psychological pressure and this is, in part, corroborated by your client’s own material which says that he wants to influence the children. Well now, that’s – you know, safety is not simply a matter of saying he’s not going to hit them or some way physically damage them, it also relates to other matters.
[COUNSEL FOR THE FATHER]: Well, in terms of that last point, influencing the children, your Honour, in my submission the appropriate response to that risk is not to suspend his time with him but to injunct him from discussing these proceedings with him. In terms of - - -
HIS HONOUR: And I would feel confident that he would comply with an order of the court because of what?
[COUNSEL FOR THE FATHER]: Because there is an ongoing substantive application, your Honour, and - - -
HIS HONOUR: Yes. But we also have the situation where immediately prior to the present proceedings in which he seeks the assistance of the court, he demonstrates his utter contempt for the process and as you correctly pointed out a little while ago, his actions have been directed at the very process. Now, why would I feel that he would comply with an order of the court in those circumstances.
(Transcript, 4 July 2013, pp 23-24)
In conclusion, the primary judge repeated his concern about evidence in one of the psychiatrist’s reports upon which the father relied to the effect that the father wished to see the children so as to influence them (ss 60CC(3)(f), (i) and (m)).
We understand this to be reference to the report from Dr B which, during exchanges, his Honour summarised as follows:
HIS HONOUR: On page – it’s difficult because the pages are not numbered, but under Relationship History – I’m sorry, under [the father’s] Relationship with the Children, [Dr B] says:
The allegations against him from the mother that he was threatening were untrue. He has never threatened her. He said he tries to convince [the elder child] to come and live in Sydney. He wants to have a chance to influence the children before the next court hearing…
Allowing for the fact that that’s obviously a reported statement by [Dr B] not a quoted statement, it still is part of the evidence and put forward by the respondent in these interim proceedings, which is troubling, to say the least…
(Transcript, 4 July 2013, p 7)
Neither during the hearing nor in his Honours reasons was reference made to the fact and effect of the existing order that the parties have equal shared responsibility for the children.
Orders sought in the Appeal
The orders sought in the father’s Notice of Appeal are set out below:
1.That the Appeal be Allowed.
2.That Order 6 made by Deputy Chief Justice Faulks on 4 July 2013 be set aside.
3.That the Application in a Case seeking suspension of the father’s time with the children filed 15 February 2013 be dismissed.
4.In the event Order 3 is refused, in the alternate, that the matter be remitted for rehearing by another single judge of the Family Court other than Deputy Chief Justice Faulks.
5.That the Respondent pay the Appellant’s costs.
Grounds of Appeal
The father’s Notice of Appeal was filed 31 July 2013. The grounds of appeal are:
1.That his Honour erred in failing to consider all relevant matters.
2.That his Honour erred in considering irrelevant matters.
3.That his Honours discretionary decision miscarried in that the result embodied in his Honour’s orders was manifestly unjust.
4.That His Honour failed to consider other alternatives that might ensure a degree of ongoing physical contact between the [father] and the children.
In opening remarks, counsel for the father informed us that order 3 was not pressed because that interim application had not been determined and it was thus accepted that there was no order or decree which could be the subject of an appeal.
This invited consideration of the utility of the appeal, a point raised in counsel for the mother’s summary of argument. In arguing that this was an appeal of questionable practical utility, counsel for the mother challenged the position advanced by counsel for the father who said that:
Although Order 6 was intended by Faulks DCJ to operate similarly to an interim injunction and result in temporary suspension of contact pending a final hearing, the effect of Order 6 was to indefinitely suspend all “face to face” contact between the appellant father and his two daughters aged 8 and 10.
(Father’s Summary of Argument, par 3)
During discussion of that issue, we were informed that the children had met with the family consultant following which a report had issued and further that the adjourned interim hearing came before the primary judge on
7 August 2013. However because one of the orders sought by the father in his Notice of Appeal was that the interim hearing be determined by a judge other than the primary judge, that hearing was adjourned.
Counsel for the mother argued that on any view of the transcript and the primary judge’s reasons, this submission could not be sustained. Counsel for the mother said the primary judge’s orders and reasons for decision made it abundantly clear that Order 6 was intended to operate for a very short period and, somewhat generously to the submission made by counsel for the father, described the submission as being “at the very least a significant overstatement”.
Counsel for the father conceded that his submissions exaggerated the effect of the primary judge’s orders but said that in light of the adjournment ordered on 7 August 2013 the father was concerned about a status quo of him not having face to face time with the children. The father then withdrew proposed order 4 of the Notice of Appeal. It follows that with orders 3 and 4 in the Notice of Appeal having been abandoned, the father sought to set aside an interim suspension of face to face time with the children pending his Honour’s determination of the adjourned interim hearing.
Counsel for the father then made inconsistent submissions about whether the primary judge’s orders envisaged another interim hearing or whether the orders he made were intended to continue until the as yet to be listed final hearing. Depending upon the topic under discussion, counsel for the father said there would be no further interim hearing or that there would be. As his Honour’s orders and the transcript of the proceedings before him make plain,
his Honour’s intention was that the interim hearing would continue as soon as possible.
However, notwithstanding our concern about the apparent lack of utility in the appeal, it was pressed.
As the argument on the appeal developed, counsel for the father recast the challenge to the primary judge’s orders and the arguments as we understood them are better reflected in counsel for the father’s summary of argument.
Ground 1, which asserted that the primary judge failed “to consider all relevant matters” morphed into a challenge that the primary judge erred because, in circumstances where there was an order for equal shared parental responsibility, he was obliged but failed to apply s 65DAA of the Act.
It is thus necessary for us to consider the effect of s 65DAA.
Section 65DAA
Section 65DAA contains a suite of factors that must be considered if there is, or will be, an order that a child’s parents are to have equal shared parental responsibility. Pursuant to the orders made on 15 September 2010, the parties have equal shared parental responsibility for the children. According to the father, because that order continued to operate, his Honour was required to commence his deliberations not by reference to ss 60CC(2) and (3) of the Act (how a court determines what is in a child’s best interests) but by reference to a presumption that it is in the children’s best interests that the parties have equal shared parental responsibility (s 61DA) and as a consequence of the interplay of s 61DA with s 65DAA, whether an order for equal time should be made. Because this “legislative pathway” was not followed it was argued that order 6 was made without power.
It was submitted by counsel for the mother that, because earlier courts had considered and rejected the father’s applications for equal time with the children, other than when determining any future application for equal time, later courts were not required to again consider those provisions. Counsel for the mother argued that to interpret ss 61DA and 65DAA as contended for by counsel for the father would require courts to revisit earlier findings even where those findings and orders were not in issue.
The ICL agreed with the position adopted by counsel for the mother.
So as to understand what is meant by the phrase ‘legislative pathway” and for authority that it must be followed, counsel for the father referred to Goode & Goode (2006) FLC 93-286, in particular, paragraphs 56 and 81. These paragraphs are set out below:
56. In our view the Act makes it clear that when a parenting order is sought, whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility as expressed in s 61DA, subject to the qualifications in sub-sections (2), (3) and (4).
…
81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
However, it is necessary to recite what their Honours in Goode said at [82] to appreciate the gravamen of the passages referred to above. It is there that the “legislative pathway” referred to in Goode and the cases which follow is described.
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In our view [82] of Goode makes it clear that that case is not authority for the proposition that a judge must commence his or her deliberations about what interim or final parenting order is in a child’s best interests by reference to s 61DA and, if an order for equal shared parental responsibility is or will be made, to then sequentially address s 65DAA.
Self-evidently, the items referred to at paragraphs 82(a) – 82(c) in Goode do not find their source in the Act. Although the orderly disposition of parenting cases would require that these matters are addressed, they cannot form part of a “legislative pathway” as that term is used in that case. However, putting those factors aside, to the extent that in Goode a starting point is identified, paragraph 82(d) points to s 60CC. Although this discussion demonstrates that care is required in the application of the principles that emerge from Goode, what is significant is that in Goode the determination of what order would be in a child’s best interests commenced with the application of s 60CC. It follows that to the extent that the counsel for the father submitted that the primary judge erred because he first addressed s 60CC, he must fail.
Given that s 60CC(1) states that the purpose of s 60CC is to identify how a court determines “what is in a child’s best interests” and both s 65DAA(1)(a) and (2)(c) require that the court considers whether equal time or substantial and significant time would be in the child’s best interests, s 60CC drives the application of s 65DAA(1) and (2). Thus, the application of s 65DAA(1)(a) and (2)(c) is reliant upon findings made pursuant to s 60CC in order to determine whether orders of that type would be in a child’s best interests. It is only when the application of findings made pursuant to s 60CC result in an affirmative answer to the questions posed in ss 65DAA(1)(a) and (2)(c) that (subject to compliance with the balance of s 65DAA) the court may make an order for either equal time or substantial and significant time (MRR v GR (2010) 240 CLR 461).
It follows that if the outcome of the application of s 60CC results in findings which mean that equal time or substantial and significant time would not be in the child’s best interests (as occurred here) even if there is or will be an order for equal shared parental responsibility, a question arises about how and the extent to which the court must address s 65DAA.
Goode and the cases that followed, establish that because these parties have equal shared parental responsibility for the children, s 65DAA required consideration. Goode and Marvelv Marvel (2010) 240 FLR 367 also establish that even where neither party applies for an equal time or substantial and significant time order, if there is or will be an order for equal shared parental responsibility in favour of a child’s parents, the court must consider whether or not such an order would be in the child’s best interests. However, neither Goode nor Marvel address the application of s 65DAA in a case where an earlier final order for equal shared parental responsibility is to continue, equal time had previously been refused and it is common ground that an equal time order would not be in a child’s best interests. Nor do those cases address the effect on the ultimate determination of earlier concessions or agreements.
In this regard, it is useful to recall that the necessary content of reasons for judgment depends upon the context in which they are given. Thus, factual and legal concessions, if accepted by the court, may conclusively deal with factors that legislation requires be considered and, as a consequence of which, the judgment needs to address only the contentious factual and legal matters which remain outstanding.
In an application for parenting orders to which the provisions of Division 12A of Part VII of the Act (Principles for conducting child-related proceedings) apply, the court may adopt the parties’ agreement that notwithstanding they will have equal shared parental responsibility, an equal time order should not be made. In so doing, issues are narrowed and, consistent with the principles set out in s 69ZN(6) of the Act, the proceedings are conducted in a way that promotes co-operative and child focussed parenting. Bearing in mind that the court is to actively direct, control and manage the conduct of the proceedings (s 69ZN(4)) and pursuant to s 69ZQ(1)(a) decide which of the issues requires full investigation and hearing and which may be disposed of summarily, there is a clear framework within which issues may be resolved in stages leaving only the most contentious for determination after a defended hearing.
Thus where there is agreement that notwithstanding an order for equal shared parental responsibility has or will be made, an order for equal time would not be in the child’s best interests, in agreeing to allow the hearing to proceed in this manner the court has, in effect and substance, considered both s 61DA (which in any event the existence of the order for equal shared parental responsibility renders irrelevant) and s 65DAA(1). With those matters resolved early in the proceedings, notwithstanding the “legislative pathway” described in Goode, ss 61DA and 65DAA(1) need not be addressed again.
One question which must then be considered is whether it is necessary to couch any such concession or agreement in the language of the Act to amount to it being “consideration” of ss 65DAA(1) and/or (2) to the effect that orders of that type would not be in the child’s best interests. Or, whether the identification of the terms of the agreement and of the issues to be determined can be sufficient to establish facts from which an inference may be drawn that the court has considered and decided against an order for either equal time or substantial and significant time. Although it would be preferable and avoid doubt if s 65DAA was explicitly referred to, there are circumstances in which it can be safely inferred from the facts and circumstances of the case before the trial judge that the provision was considered. This is such a case. In this case the fact that the parties were legally represented and had for years engaged in litigation conducted under essentially the same statutory framework, where the transcript and reasons disclose a common view about the legal and factual matters in issue and the matter was not yet complete, the inference that
ss 65DAA(1)(a) and (2)(c) was considered readily arises.
The transcript of the proceedings of 2 July 2013 and 4 July 2013 reveals that the primary judge was astute to the operative orders and that the interim issue concerned whether or not orders for substantial and significant time should continue during the period of the adjournment and by necessary inference that the parties agreed that an order for equal time should not (at this stage) be made.
The issues having been so defined, the focus of the hearing and the judgment was whether the children spending substantial and significant time with the father would be in their best interests in the interim (s 65DAA(2)(c)). As a consequence of the findings which his Honour made pursuant to s 60CC it can be seen that he was not persuaded that a continuation of the operative orders (for substantial and significant time) was in the children’s best interests.
In this case, equal time required scant consideration; such an order was not sought, there was no expert evidence which suggested equal time would be in the children’s best interests and his Honour’s findings made pursuant to s 60CC were such that it was not open to him to find in accordance with s 65DAA(1)(a) that equal time would be in the children’s best interests.
Nor did the findings made by the primary judge pursuant to s 60CC permit him to find, in accordance with s 65DAA(2)(c), that substantial and significant time would be in the children’s best interests. Implicit in his findings made pursuant to s 60CC to suspend the operative orders, is his determination that orders for substantial and significant time were not in the children’s best interests.
It follows that although the primary judge did not explicitly mention ss 65DAA(1)(a) or (2)(c) we are satisfied these provisions were considered. This conclusion is bolstered by the fact that his Honour referred to the practicalities of continuing the operative orders and again, although not by specific reference to s 65DAA(5), touched on the matters there referred to. It might be thought that such an approach is inconsistent with that adopted in McCall & Clark (2009) FLC 93-405 where the Full Court determined that the failure to specifically reject equal time and substantial and significant time as not being in the child’s best interests constituted appellate error. However, that case concerned, inter alia, whether or not an order for equal shared parental responsibility and equal time should be made. The point of distinction being that in McCall & Clark the federal magistrate failed to address significant contentious issues.
We do not consider it to be a fair reading of the transcript of the proceedings and the primary judge’s reasons for judgment to say that he failed to consider whether a continuation of the orders was reasonably practicable (ss 65DAA(1)(b) and (2)(d)). More than once during the hearing, his Honour raised concerns about whether in light of the parties’ inability to communicate (s 65DAA(5)(c)) and the mother’s ill health (s 65DAA(2)(d)), the orders were practical (semble reasonably practicable) and in his reasons he identified the mother’s ill health as a matter of significance. Indeed, his Honour criticised the father for a belated proposal (not contained in his application or evidence) that he may provide transport so as to alleviate the obligation on the mother to take the children to Sydney. In these exchanges, one sees that the primary judge had serious reservations about whether during the period of the adjournment the orders proposed by the father were reasonably practicable with the only inference being that he was satisfied they were not.
There is no doubt that had his Honour applied the Goode pathway and made explicit reference to each section he was required to consider in his reasons for judgment, we would have been saved from the task of trying to establish whether or not he addressed the Act. But as was alluded to in Marvel, urgent interim hearings interposed in busy court lists do not lend themselves to perfection in a judgment delivered immediately. Perfection requires time, the very thing that in these circumstances a judge is denied. In short, his Honour’s reasons for judgment and the transcript of the proceedings establish that he gave adequate consideration to the matters he was, for the time being, required to address.
However, even had his Honour failed to consider whether or not an order for equal time or substantial and significant time was reasonably practicable, because his findings under ss 60CC deliberations were to the effect that orders of that type were not in the best interests of the children (ss 65DAA(1)(a) and (2)(c)), he was not required to consider whether orders of that type were reasonably practicable (ss 65DAA(1)(b) and (2)(d)) (Taylor v Barker (2007) FLC 93-345). As the High Court explained in MRR v GR, it is only where both questions posed by s 65DAA(1)(a) and (b) are answered in the affirmative that consideration may be given under par (c) to the making of such an order. It follows that if the findings mean that such an order is not in a child’s best interests, one of the essential preconditions to the making of an order under par (c) has failed and as a consequence, whether or not such an order was reasonably practicable is rendered irrelevant. Section 65DAA(2) operates in the same manner.
We are unable to accept counsel for the mother’s submission that where, in earlier proceedings, a court had considered equal shared parental responsibility and/or equal time, unless in later proceedings those matters were in issue, neither ss 61DA or 65DAA(1) require consideration. Where in those earlier proceedings an order for equal shared parental responsibility was made, none of the factors referred to in s 61DA(2) – (4) arise and thus the parental responsibility order is to continue, we agree that s 61DA becomes irrelevant. The point being that the continuation of the order for equal shared parental responsibility obviates the need to rely on the presumption.
However, s 65 DAA(1) operates “…if a parenting order provides (or is to provide)…that a child’s parents are to have equal shared parental responsibility for the child”. The use of both present and future tense demonstrates that the provision is triggered by an order already in existence, irrespective of whether that order was made in the current or earlier proceedings. The effect of this is that even if an earlier court has rejected a prior application for equal time or substantial and significant time, if another application for the same type of order is commenced, where there is an order for equal shared parental responsibility, s 65DAA must be addressed again. Lest it be overlooked, repeat applications may invite the application of the line of authority commencing with Rice and Asplund (1979) FLC 90-725.
Expert Evidence
In further support of Ground 1, counsel for the father addressed what was said to be the “wrongful rejection of the appellant’s expert evidence”. This challenge concerns the primary judge’s treatment of evidence adduced from the psychiatrists and Dr W. This evidence was adduced to establish “… that [the father] posed no risk of harm to the children” (Father’s Summary of Argument, par 18). Of course, although this was a relevant consideration, it formed but part of a wider consideration for his Honour which was, what order would be in the best interests of the children (the question which his Honour needed to address was what order would be in the best interests of the children).
Central to this challenge is counsel for the father’s submission that “no weight was given to any of the expert opinion evidence adduced by [the father]” (Father’s Summary of Argument, par 20). It was submitted by counsel for the father that the primary judge determined that “no weight should be afforded to any of the expert evidence” because they had very limited facts, did not have an opportunity to interview either the mother or children, did not have access to evidence which may or may not have affected the particular expert’s opinion, failed to provide a discernible pathway of reasoning for the opinion expressed and had the additional information been provided to the expert it probably would have affected the expert’s opinion.
It is plainly wrong to say that his Honour gave “no weight” to the expert evidence. Paragraphs 4, 5 and 6 of his Honour’s reasons address his conclusions on this topic which are, in effect, a continuation of exchanges during the hearing.
As his Honour pointed out at [4], having admitted the expert evidence, it was necessary to determine its significance. As the transcript of the proceedings and reasons for decision make clear, his Honour was concerned that none of the experts had seen the mother and children and that there was additional information not known to them but germane to the issues upon which they expressed opinions and the determination he was required to make.
His Honour determined that he would not “… put significant weight upon” the expert evidence [6] (our emphasis). That it was afforded some weight is evident in his Honour’s apparent acceptance of those opinions to the effect that the father did not pose a threat of physical harm to the children.
There can be little reason to doubt that his Honour was correct to approach the expert evidence relied upon by the father with caution. For example, Dr B specifically addressed the obvious limitation to his report, namely that he had not seen the mother or children. Thus he addressed “whether [the father] would be capable of having some contact with the children]” and not whether contact would be in the children’s best interests. Dr W commented that the father’s “… account of the events leading to his charges, while somewhat truncated, were grossly [in]consistent with the fact sheet outlined in the sources of information” (Dr W’s Report dated 19 March 2013, page 6). The father failed to disclose to the experts that he withheld details of his behaviour and, more particularly of his arrest and charging with criminal offences from the mother and the court and that he had behaved in a similar manner towards others, albeit he had not been charged. Finally, notwithstanding detailed recommendations by Dr A for a seven point treatment plan, as his Honour observed, no evidence was before the court that the father complied with all of Dr A’s recommendations.
In our view, in determining what order would be in the best interests of the children, his Honour did not err by determining that the expert evidence relied upon by the father did not warrant significant weight.
Section 60CC(3) Additional Considerations
The next matter contended in Ground 1 alleges that the primary judge failed to properly consider the additional considerations contained in s 60CC(3). It was submitted that his Honour failed to adequately address the nature of the children’s relationship with the father (s 60CC(3)(b)), the efforts made by the father to spend time with the children (s 60CC(3)(c)(i), (ii) & (iii)) and the father’s capacity to provide for the children’s needs (s 60CC(3)(f)).
That the father sought to maintain personal contact with the children underpinned the application which his Honour was required to consider and was clearly understood. There was no finding of the primary judge that the father was somehow derelict in failing to maintain contact with the children or that he was less than genuine in his desire to spend time with them. Indeed some of the s 60CC(3) matters of which it is now complained that his Honour did not consider were not raised below and cannot be raised now (Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; Metwally v University of Wollongong (1985) 60 ALR 68).
Lest it be thought otherwise, we make no criticism of the manner in which this hearing was conducted in the court below. Counsel and his Honour focussed on the pivotal issues and did not distract the process by irrelevancies. The focus was clearly on risks to the children; the children’s views; the children’s relationships with their parents and the practicalities during the interregnum. We do not accept that in failing to address s 60CC(3)(c)(ii) and (iii) and aspects of s 60CC(3)(f) his Honour failed to take into account a relevant consideration. To the extent that his Honour is criticised for his failure to make findings about the children’s relationship with the father, the criticism is misplaced. It fails to take into account that his Honour was presented with conflicting evidence about the state of the children’s relationship with the father and no evidence from an independent source about what the children said about it.
His Honour was not in a position to form a concluded view about the children’s relationship with the father and, had he done as the father says he ought to have done, he would have fallen into error. In our view his Honour was appropriately circumspect and followed the well-trodden path about the treatment of contentious evidence in an interim hearing conducted without cross-examination. This ground has not been made out.
Ground 2 as refined in counsel for the father’s summary of argument and oral submissions asserts error because the primary judge took into account an irrelevant consideration. Namely, “… that the [mother] was suffering a period of illness and treatment and would be adversely affected by additional stress”. The submission was that “[t]he [mother’s] health, if it was relevant at all, had only marginal relevance”.
As we have already mentioned, his Honour was clearly concerned that the mother’s ill health meant that during the period of the adjournment, the orders, which notably required her to take the children to and from Sydney, were no longer reasonably practicable. In addition, his Honour was concerned about the continuation of orders, when the effect of them placed the mother under stress which, in turn, would adversely affect her “illness and treatment” [3]. These were undoubtedly relevant considerations. As a consequence of which this ground has not been made out.
A manifestly unjust result?
As reframed by counsel for the father, in Ground 3, it is submitted that order 6 produced a result that is manifestly unjust. Counsel wrote:
a.The children had been denied contact with the appellant since January 2013; and
b. No date was identified when contact would be resumed.
(Father’s Summary of Argument, filed in court, par 47)
It is contended that in these circumstances it would be difficult for the children to have a meaningful relationship with the father. Of course, it is incorrect to say that the children had been denied contact with the father as it was he who twice proffered undertakings that he would not spend time with them face to face. Other forms of contact occurred daily.
Thus, not only does this revised ground misstate the facts, we are satisfied that the primary judge provided sufficient reasons for his decision to temporarily suspend face to face contact pending production of a report and a resumed hearing which was anticipated would take place within four weeks. This ground is not made out.
In Ground 4, it is said that his Honour erred in failing to make an order for supervised time.
First, it must be observed that the father did not make an application to have supervised time with the children. The first reference to supervised time is contained in the mother’s affidavit sworn 26 April 2013. At [74] of that affidavit, she deposed to enquiries she made of a supervised contact centre located in Canberra. The gravamen of her evidence was that provided the parties registered for participation in the program, they would wait between three and five months before a place would become available. In other words, long after the adjourned interim hearing.
In his response to that evidence, the father recounted his history of unsupervised time with the children and notably did not agree that supervised time could be considered. A proper reading of the father’s affidavit affirmed on 7 June 2013 is that he rejected the notion of supervision.
Nor during the hearing did the father seek to make an oral application for supervised time other than for permission to take the children to a wedding. In this regard, the following exchanges occurred:
[COUNSEL FOR THE FATHER]: Well, I’ve heard your Honour about that. I have instructions to put one last thing to your Honour in relation to that. My client has a partner. She has sworn an affidavit. She’s here today. She’s available to give evidence to say that she will be present at all times and will supervise my client’s time with the children.
HIS HONOUR: It’s not I don’t believe that the application related to supervision – although it may have come to that, but again I ask rhetorically: if that is so, why was it not put in the affidavit?
[COUNSEL FOR THE FATHER]: I can’t answer that, your Honour.
(Transcript, 4 July 2013, p 33)
Nowhere in the affidavit of the father’s partner did she say she was willing or able to supervise the children’s time with him.
Given the gravity of the issues, the short period of the adjournment and the father’s failure to make an unquantified application for supervised time with the children, we do not accept that his Honour erred in failing to further consider an order for supervised time.
In our view, the appeal must be dismissed.
Costs
In the event the father was unsuccessful, the mother sought an order for costs, as did the Independent Children’s Lawyer.
The father has been wholly unsuccessful and it is proper that an order for costs is made in favour of the mother and the Independent Children’s Lawyer.
I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on
25 March 2014.
Associate:
Date: 25 March 2014
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