Secretary, Department of Communities and Justice & Opunui
[2021] FedCFamC1A 41
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Secretary, Department of Communities and Justice & Opunui [2021] FedCFamC1A 41
Appeal from: Opunui & Filaui [2020] FamCA 914 Appeal number(s): EAA 162 of 2020 File number(s): PAC 1481 of 2014 Judgment of: AUSTIN, BAUMANN & WILLIAMS JJ Date of judgment: 20 October 2021 Catchwords: FAMILY LAW – APPEAL – Parental Responsibility – Where the primary judge rejected the mutual proposal of the parties and the Independent Children’s Lawyer for orders directing the children to live with the mother and vest her with sole parental responsibility – Where the primary judge found the mother posed an unacceptable risk of harm to the children and made orders vesting the Minister for Families, Communities and Disability Services with parental responsibility for the children – Where the Secretary of the New South Wales Department of Communities and Justice (“the Secretary”) appeals that order – Judicial intervention – Where the Secretary did not specify how the intervention amounted to recognisable appealable error – Error of law – Where the ground was misconceived as it contended a finding was unfair and/or manifestly unreasonable – Inadequate reasons – Where the reasons for judgment were lengthy and adequately explained the making of the order – Where there was no contradictor in the appeal – Appeal dismissed – No order as to costs. Legislation: Children and Young Persons (Care and Protection) Act 1998 (NSW)
Evidence Act 1995 (Cth) Pt 3
Family Law Act 1975 (Cth) Pts VII, XIV, ss 60CA, 61B, 64B, 65AA, 65LA, 68B, 67ZC, 69ZT, 91B, 114
Cases cited: Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17
Carroll & Director-General, Department of Human Services [2011] FamCAFC 4
D-G of Department of Human Services (NSW) & Tran & Anor (2010) FLC 93-443; [2010] FamCAFC 151
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Faulkner & McPherson v Rugendyke; Department of Community Services (Intervener) (1995) FLC 92-630; [1995] FamCA 82
G v H (1994) 181 CLR 387; [1994] HCA 48
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66
Reid & Lynch (2010) FLC 93-448; [2010] FamCAFC 184
Secretary of the Department of Health and Human Services & Ray & Ors (2010) FLC 93-457; [2010] FamCAFC 258
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12
Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65
Number of paragraphs: 84 Date of hearing: 11 October 2021 Place: Heard in Sydney (via video link), delivered in Newcastle Counsel for the Appellant: Ms Eldershaw Solicitor for the Appellant: Crown Solicitor’s Office The First Respondent: Litigant in person (no appearance) The Second Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Mr Moore Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
EAA 162 of 2020
PAC 1481 of 2014FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE
Appellant
AND: MR OPUNUI
First Respondent
MS FILAU
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
AUSTIN, BAUMANN & WILLIAMS JJ
DATE OF ORDER:
20 OCTOBER 2021
THE COURT ORDERS THAT:
1.The appeal is dismissed.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Secretary, Department of Communities and Justice & Opunui has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, BAUMANN & WILLIAMS JJ:
On 29 October 2020, a judge of the Family Court of Australia (as the Court was then known) made orders under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of three children which were contrary to those mutually proposed by their mother, their father, the Secretary of the New South Wales Department of Communities and Justice (“the Secretary”) and the Independent Children’s Lawyer (“the ICL”).
One order vested the State Minister with parental responsibility for the children (Order 1), it being accepted at the trial that, if given such parental responsibility, the Minister (acting through departmental staff) would use the authority to support the children’s continuing residence with the mother. The Secretary appealed from that solitary order, since he had contended for orders specifying the children must live with the mother and granting her sole parental responsibility for them, subject to another coercive order compelling both parents to submit to his supervision and to obey his directions for 12 months after the orders were made.
There was no appeal from two further orders made by the primary judge, which mandated:
(a)the father’s restraint from causing or allowing the children to live with him, though there was no restriction upon them spending limited time with him at the Secretary’s discretion (Order 2); and
(b)the mother’s restraint from causing or permitting the children to be brought into contact with the man to whom she bore more children in a subsequent relationship (“Mr B”), but from whom she had already separated by the time of trial (Order 3), it having been alleged he sexually abused the parents’ eldest child (“W”).
W had attained her majority by the time of trial and so the orders do not pertain to her.
The parents and the ICL were joined to the appeal, but only the ICL actively participated. The ICL supported the appeal (though only in respect of Grounds 4 and 5) and, while the parents did not formally adopt any position, their acquiescence to the appeal may be implied from their support for the Secretary’s proposal at trial. Despite there being no opposition to the appeal, it should be dismissed.
BACKGROUND
Final parenting orders in respect of the children were first made between the parents in October 2015, providing for the children to live with the mother and for her to have sole parental responsibility for them, but leaving to her discretion the nature of children’s interaction with the father.
In late 2017, W alleged Mr B had sexually assaulted her, which revelation caused some disruption to the children’s residential arrangements and induced the father’s institution of fresh proceedings in May 2018. At that time, he sought the discharge of the orders made in October 2015 and substitute orders for the children to live with him and for him to have sole parental responsibility for them, which application the mother resisted. The police intended prosecuting Mr B over the alleged sexual assault, but the investigation was terminated when W retracted her complaint about a year later in late 2018.
The family’s vexed circumstances had by then attracted the Secretary’s attention under the terms of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the State Protection Act”), but the Secretary neither commenced separate proceedings in a State court under the State Protection Act nor, initially, sought to participate in the proceedings under the Act in the Family Court of Australia. Pursuant to s 91B of the Act, the primary judge twice requested the Secretary to intervene in the pending proceedings, in May 2018 and June 2018, to which the Secretary then responded and intervened in July 2018.
In July 2018, interim parenting orders were made following a contested hearing. Pursuant to an oral application made by the ICL, which the Secretary unsuccessfully opposed, the Secretary was given parental responsibility for the children and, using such authority, was expected to determine the children’s interim care arrangements. As it transpired, the Secretary allowed the children to continue living with the mother, even though the primary judge had provisionally found the children were exposed to an unacceptable risk of harm in the care of either parent.
As the proceedings progressed towards trial in July 2020 via more procedural court events, the primary judge endeavoured to make explicitly plain her Honour’s concerns about the parents’ respective capacity to protect the children from harm.
Procedural orders made by the primary judge on 22 March 2019 were endorsed with these notations:
G.The affidavit of the Manager Case Work at the Family and Community Services dated 25 February 2019 refers to placements for the elder three children which are not accredited to provide statutory out of home care. For the reasons given in judgments and at a number of court events, the court requires an understanding of the type of placements that the Minister would contemplate that are accredited to provide statutory out of home care for these young people in the event that an order is made restraining either or both of the parents from permitting the children to reside in their respective care.
H.Although there was no application before me today arising from the release of the Magellan report and following the affidavit being filed by the Manager Case Work the [Secretary] is on notice that the court may find at a final hearing that there is an unacceptable risk posed by either or both of the parents and may restrain such parent against whom a finding is made from permitting the children to reside in their care.
(Emphasis added)
Then, on 19 November 2019, the primary judge made more procedural orders endorsed with this notation:
B.It is broadly the position of the [Secretary] that significant progress has been made in relation to reducing the risk for the children and the [Secretary] questions the need to be involved in the proceedings in the future. I have reiterated that my concern remains as it has always been that I may find that both parents pose an unacceptable risk of harm to the children in their full time care. In my view, a finding in relation to an unacceptable risk must be made with respect to these children in order to frame orders that are in their best interests.
(Emphasis added)
Despite the Secretary’s apparent indecision over his continued involvement in the litigation, the Secretary chose not to withdraw from the proceedings and therefore elected to remain bound by the orders made by the Court in respect of the children.
The Secretary’s proposals for the children evolved as the proceedings progressed.
Initially, the Secretary contended for the parents’ two daughters (the eldest and youngest of the three children) to live with the mother and for her to have exclusive parental responsibility for them and, subject to the father’s availability and continuing freedom under a valid Australian visa, the parents’ son (the middle child) to live with him and for him to have exclusive parental responsibility for that child. The Secretary’s proposals were, however, subject to another order being made requiring the parents to keep the Secretary appraised of events in the children’s lives and their compliance with all reasonable directions of the Secretary for 12 months after the orders were made.
The Secretary’s proposal had changed by the time the trial was due to start, as was reflected in the amended minute of orders requiring all three children to live with the mother and granting her sole parental responsibility for them, but subject still to the coercive order compelling both parents to allow his supervision and obey his directions for 12 months after the orders were made. By that time, the parents and the ICL had abandoned their separate proposals and were content to abide by the Secretary’s proposal. The Secretary tendered the proposed minute of orders as an exhibit (Exhibit 3) before the trial began, though it was later overtaken by an amended minute of orders tendered as an exhibit at the conclusion of the trial (Exhibit 18).
Notwithstanding the eradication of all apparent controversy between the parties and the ICL before the trial started, the trial still proceeded because the primary judge needed to be satisfied the mutually proposed orders would actually promote the children’s best interests, it not then being immediately apparent to her Honour there was scope to so find. The primary judge could not make the orders without being so satisfied, regardless of the compromise (Reid & Lynch (2010) FLC 93-448 at [211]–[213]).
At the outset, the primary judge and the mother’s counsel had this exchange:
[COUNSEL FOR THE MOTHER]: Your Honour, there’s one thing. The parties have been speaking over the weekend. Counsel have.
HER HONOUR: Yes.
[COUNSEL FOR THE MOTHER]: And we’ve - - -
HER HONOUR: The parties have been attempting to resolve this the entire way through the proceedings, and they’re attempting to resolve it without the findings to be made about the risk posed by the various parents.
[COUNSEL FOR THE MOTHER]: Yes.
HER HONOUR: It has to be – you can speak for as much as you want - - -
[COUNSEL FOR THE MOTHER]: Sure.
HER HONOUR: - - - but do not assume - - -
[COUNSEL FOR THE MOTHER]: No.
HER HONOUR: - - - that I will be making the orders.
[COUNSEL FOR THE MOTHER]: No.
HER HONOUR: If the parties want to have a parenting plan and the [Secretary] wants to cover the risk posed to the children through that means – but this court – in order to resolve this proceeding that has been going long enough, I have to make findings. So I – you may raise that, but I don’t think there’s any other way of resolving these proceedings.
(Transcript 13 July 2020, p. 4 lines 1–30)
Then, shortly afterwards, the primary judge said this to the Secretary’s counsel:
HER HONOUR: - - - to be absolutely honest and not to indicate prejudgment, is there has been many, many, many attempts in the history of this to have consent orders, and every time I have said that – I have foreshadowed that it appears that I may find unacceptable risk in both parents’ households.
[COUNSEL FOR THE SECRETARY]: Yes.
HER HONOUR: I couldn’t have made myself clearer. So I – even if they’re consent orders – and I have to hear submissions from everyone - - -
[COUNSEL FOR THE SECRETARY]: Yes.
HER HONOUR: - - - about what they say about risk and how they’re addressed, and then there would be issues about the evidence, and it is all untested evidence. …
(Transcript 13 July 2020, p. 9 lines 32–45)
Given the provisional findings previously made at the interim hearing in May 2018 about the unacceptable risk of harm posed to the children by both parents, the primary judge informed the parties and the ICL that the evidence should be tested to see whether the risks had since abated, so the trial proceeded. In the reasons for judgment, the primary judge correctly explained the situation thus:
5.Although all parties and the Independent Children’s Lawyer (“ICL”) consented to the [Secretary’s] proposed orders, the potential risk factors posed by both parents (and in particular the mother with whom the children are to live under the proposed arrangement) are such that consideration must in my view be given to the question of whether the children will be exposed to an unacceptable risk of harm under the proposed arrangement. I am also required to determine whether orders agreed to by all parties are proper having regard to the paramount consideration being the best interests of the children.
…
73.Rather than make the orders proposed by the [Secretary] on the basis that they are consented to by all parties, I am of the view that I must be satisfied that the proposed orders are proper having regard to the best interests of the children as the paramount consideration. In particular, given the significant concerns about the children’s welfare which caused me to invite the [Secretary] to intervene in the proceedings and which was (unusually in my experience) taken up by the [Secretary], I consider that I am required to make findings and an assessment of the risk if any posed to the children if such orders were made.
(Emphasis added)
Ultimately, the primary judge found, for a variety of reasons, that the children were at an unacceptable risk of harm in the care of either the mother or the father and therefore rejected the proposal mutually urged upon her Honour by the parties and the ICL. Her Honour instead made an order vesting the Minister with parental responsibility for the children, which the primary judge explained thus:
379.Counsel for the [Secretary] in particular went further and submitted that the scaffolding in place in the proposed suite of orders (particularly the 12 month supervision order and the various restraints) would provide an even greater level of support for the children and safety net for the mother to assist her in consolidating her protective and parenting capacity than the only alternative arrangement under which the Minister would hold parental responsibility. Counsel for the [Secretary] also attached significant weight in advancing its proposal to the legislative context in which any parental responsibility allocated to the Minister would operate. Counsel went so far as to submit that if I were to find that the children were exposed to an unacceptable risk of harm if orders were made as proposed, then the appropriate “solution” would not be an order of parental responsibility to the Minister as a result of the disconnection between Federal and State child-related laws.
380.While the circumstances of this case demonstrate the disconnect or the unsuitable fit of either State or Federal law for these children I do not consider it proper to make orders that will bring about an arrangement whereby the children are to live with a parent who I have found poses an unacceptable risk of harm to them.
(Emphasis added)
Although the orders allocate parental responsibility for the children to the Minister, another order restrains the father from causing or permitting the children to live with him, thereby fettering the Minister’s exercise of parental responsibility to some limited extent by effectively precluding his decision that the children should live with the father. No similar restraint affects the mother directly (or the Minister indirectly), but the mother is restrained from allowing any contact between the children and Mr B.
When the appealed orders were made in October 2020, the three children covered by the orders were aged 15, 14 and 10 years respectively.
THE APPEAL
Grounds 1, 2 and 3 were abandoned well in advance of the hearing.
In addition to the remaining grounds (Grounds 4, 5 and 6), the Secretary orally sought leave to press another ground of appeal (styled as Ground 3A). The ICL raised no objections and, there being no other contradictor, leave was granted.
Ground 6 – the primary judge’s conduct
This ground alleged the primary judge erred by “unduly intervening in the conduct of the trial” but, despite pejoratively describing her Honour’s intervention as “undue”, did not condescend to specify how such intervention amounted to recognisable appealable error or explain how it vitiated the orders.
The Secretary’s written submissions only imply the primary judge’s interventionist conduct could potentially amount to either the denial of procedural fairness or grounds for an apprehension of bias but, rather unsatisfactorily, stop well short of asserting any frank error of either sort. Instead, the Secretary merely submitted:
55.Where a trial judge has assumed the role of an advocate, there may be a reasonable apprehension of bias. …
…
58.It is accepted that the appellate court must consider whether the trial judge’s interventions indicate that there has not been a fair trial or that the judge has, or may be reasonably apprehended to have, closed their mind to further persuasion. …
…
65.It is contended that the extent to which the trial judge intervened in the proceedings caused her to assume the robe [sic] of an advocate from which an apprehension of bias may reasonably arise.
(Appellant Summary of Argument, filed 5 August 2021) (Emphasis added)
The primary judge’s conduct which elicited the Secretary’s concern was particularised to be this: first, the primary judge interrupted the ICL’s cross-examination of the mother and asked the mother questions in an allegedly objectionable way about her appreciation of the reasons why the children might be “acting out”; and secondly, her Honour called for and then admitted into evidence (as Exhibit 6) some documents produced to the Court by a State court concerning Mr B’s intended arrest and prosecution for W’s sexual assault, without first giving the parties the chance to either inspect or object to the admissibility of the documents.
Before dealing with the Secretary’s ambivalent imputations of possible apprehended bias and possible procedural unfairness, it should be observed that the Secretary refrained from pleading any discrete ground of appeal about the asserted inadmissibility of Exhibit 6 and, hence, the commission of any appealable error by admitting it into evidence. Nor did the Secretary submit (either at trial or in the appeal) that the documents comprising Exhibit 6 were inadmissible in evidence. The proceedings before the primary judge concerned applications brought under Pt VII of the Act and so the provisions of s 69ZT(1)(c) of the Act rendered Pts 3.2 to 3.8 of the Evidence Act 1995 (Cth) inapplicable. Therefore, Exhibit 6 was admissible if it was relevant and potentially probative, as it indeed was. The Secretary could not reasonably contend otherwise. The allegedly hurried tender of Exhibit 6, of which the Secretary complained in the appeal, was meaningless when the constituent documents were admissible and, as then occurred, the Secretary had sufficient opportunity to inspect and make submissions about them.
With respect to the implication of apprehended bias, the Secretary did not deign to identify which party might have been adversely affected by such apprehension. It certainly could not have been the Secretary, given it was the ICL’s cross-examination which was interrupted and it was the mother of whom the primary judge asked questions. In any event, the mother was cross-examined on the first day of the trial and neither at that time nor at any subsequent point during the trial did the Secretary, the mother, the father, or the ICL object to the questions asked by the primary judge or make an application for her Honour’s disqualification for either of the two reasons now posited by the Secretary. It must inevitably follow that the parties and the ICL waived making any such application (Vakauta v Kelly (1989) 167 CLR 568 at 577–579 and 586–588; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344, 357 and 360).
As for the veiled suggestion of procedural unfairness, again, neither the mother nor the ICL made any such complaint. No procedural unfairness at all was occasioned to the Secretary. Even so, the Secretary did not and could not say how the asserted judicial conduct impinged more generally upon the integrity of the trial process. The ICL submitted, and we accept, there was nothing untoward about the primary judge’s interjection. Neither the content nor tone of the primary judge’s intervention in the mother’s cross-examination had any influence upon the result embodied in the appealed orders. That is so because, regardless of any questions posed to the mother about the children’s misbehaviour, her lack of insight into the cause of it, or the potential risks of harm to the children in her household, it was accepted the children would continue to live with her – either because the primary judge would specifically order that outcome (as was sought by the parties) or the Minister would be vested with parental responsibility (as was ordered) and then use such authority to sanction the children’s continuing residence with the mother.
Even though the primary judge rejected the mutual proposal of the parties and the ICL for orders directing the children to live with the mother and giving her sole parental responsibility for them, it was uniformly accepted that under the appealed orders the children would continue to live with the mother at the Secretary’s direction, in the exercise of his parental responsibility for them (at [219], [246], [351] and [360]–[361]). Nor did the admission into evidence of Exhibit 6 cause any procedural unfairness, given the documents comprising the exhibit were actually admissible. It must therefore follow that a new trial, for these reasons alone, would be futile since the same result would inevitably ensue (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145). This ground fails.
Ground 3A – alleged error of law
This ground alleged as follows:
[GROUND] 3A: That the learned trial judge erred at law by finding that the children were at an unacceptable risk of harm in the mother’s care, where such a finding was unfair and/or manifestly unreasonable.
(Emphasis added)
The ground is misconceived since it contends one particular finding is “unfair and/or manifestly unreasonable”, when that is a ground of appeal which only pertains to a judgment or decree resulting from an exercise of discretion (House v The King (1936) 55 CLR 499).
A finding is open and hence immune from appellate challenge if it is either premised upon or permissibly inferred from foundational evidence (Edwards v Noble (1971) 125 CLR 296 at 302–304 and 307). Consequently, if there was evidence to support the primary judge’s finding that the children were at unacceptable risk of harm in the mother’s care, the Secretary has no cause for complaint about the validity of the finding.
The finding that the children were exposed to an unacceptable risk of harm in the mother’s care comprised two components of risk: first, their exposure to family violence committed by her domestic partners; and secondly, their subjection to sexual abuse by Mr B. It is convenient to deal with the findings and the complaints made about those risks separately.
Family violence
The primary judge found the children were at unacceptable risk of harm by reason of their exposure to family violence in the mother’s household, which finding was expressed thus:
249.There is clearly a particular need to protect the children from physical or psychological harm from being subjected to abuse (which also amounts to family violence) and from being exposed to family violence in each of the parent’s households.
250.First, there is the issue of harm from exposure to family violence in the care of each parent and in the case of the father’s household being subjected to family violence/abuse.
251.So far the risk of exposure to the father’s violence towards intimate partners is concerned, I am satisfied for the reasons given that the father perpetrated violence against the mother when that relationship was intact.
…
294.There is also a need to protect the children from harm arising from exposure to family violence in the mother’s household. This is particularly significant as under the [Secretary’s] proposal agreed to by the parties the children are to live with the mother.
295.On the mother’s own evidence she has been in two personal relationships with men who are the fathers of her six children and both of these men have perpetrated family violence against her.
296.In her trial affidavit although the mother deposes to being aware of the risks posed by [Mr B] and claims to have “mitigated them” she gives no evidence about any family violence perpetrated by [Mr B]. Under cross-examination the mother initially denied that her relationship with [Mr B] was characterised by family violence and specifically said “he has never actually laid a hand on me”.
297.The mother was then cross examined about information that she gave to the family consultant which is contained in the following extract from the Family Report:
[The mother] stated that there was violence in her relationship with [Mr B] and he has slapped her causing her a black eye, and the children witnessed this injury. She said that violence was not common in her relationship with [Mr B] and it occurred because he was insecure that she was having an affair. [The mother] said that [Mr B] was not controlling and she does not have concerns about her safety from him.
298.The mother then agreed that there was physical violence in her relationship with [Mr B] and added “but it wasn’t as bad as with the kid’s father”. When asked about the incident in which she received a black eye the mother said:
It was, like, he was, like, swinging to me, but then accidentally, like, just hit me there, and then I got a – little black eye on here.
299.When asked under cross-examination the mother was unable to say what she had done to address the issue of domestic violence in her relationships except to say she had learnt from her previous relationships not to engage in any domestic violence “in front of my children”. The mother claimed in her oral evidence to be aware that it is very damaging for children to witness family violence but was unable to explain how children were harmed by such exposure and seemed confused by questions in relation to this matter.
300.As previously noted the mother was also cross-examined about an incident at her home to which police were called in March 2020 after the oldest daughter was reported to have raised concerns about the mother and [Mr B] engaging in a physical altercation at the family home. The mother denied that she and her former partner were engaged in anything other than a loud argument and denied that it had occurred at the home.
…
302.I do not make any positive findings in relation to any specific instances of violence between the mother and [Mr B] although on her own evidence I am satisfied that both of her previous relationships were characterised by family violence. I am also of the view that the mother minimised the extent to which she was victimised by [Mr B] in these proceedings by omitting any reference to this issue in her affidavit, initially denying that [Mr B] had ever physically assaulted her and then describing the incident in which she received a black eye in minimal terms claiming that it was accidental and that she only got a “little black eye”.
…
304.For all of the foregoing reasons I am of the view that there is an ongoing need to protect the children from harm arising from exposure to family violence in both parents’ households.
(Emphasis added)
Those findings were entirely consistent with the evidence adduced before the primary judge. The Secretary did not try to contend otherwise. Rather, the Secretary emphasised several pieces of evidence which it was submitted, in aggregate, should have led the primary judge to instead find the identified risk of harm had satisfactorily abated. In summary, that evidence comprised: the termination of the mother’s relationship with Mr B; the mother had not re-partnered; the family members had undertaken educative therapy at the Secretary’s behest; and the parents agreed to submit to family violence injunctions under s 68B of the Act.
The Secretary submitted that “having failed to traverse” those pieces of evidence in the reasons for judgment, it was “unreasonable” for her Honour to make the relevant finding about the risk of harm, but flaws in the argument are insuperable.
First and foremost, some of that evidence actually was canvassed in the reasons for judgment. Significantly, the primary judge had much less confidence than the Secretary about the benefit derived by the mother from the therapy (at [299] and [303]), particularly given the single expert’s doubts about the efficacy of the program to which the family was referred by the Secretary (at [284]–[285]). In addition, her Honour was doubtful of the evidence adduced about the asserted absence of contact between the mother and Mr B (at [333]–[336]) and found they met and argued as recently as several months before the trial (at [64] and [300]).
However, the extra evidence relied upon by the Secretary, even if accepted at its highest, did not oblige the primary judge to find the risk of harm to the children had abated, nor did it foreclose the finding that the risk still existed. The primary judge’s conclusions were well open on the evidence discussed at great length in the reasons for judgment and so no question of the “reasonableness” of alternate findings arises.
Sexual abuse
The primary judge found the children were at unacceptable risk of harm by reason of their subjection to sexual abuse in the mother’s household, which finding flowed from the quite uncontroversial facts and circumstances surrounding W’s complaint of her sexual abuse by Mr B.
In late November 2017, the mother found W crying and, when she asked why, W told her she had been sexually abused by Mr B, which was described to be him “touching” her on the “genital area”. The mother confronted Mr B and they exchanged text messages over the issue, within which correspondence Mr B admitted the allegation. W was taken to the police and she made a formal statement of complaint. By early December 2017, W had vacated the mother’s home and moved to live with the father instead, but she returned to live with the mother in October 2018 and retracted her allegations against Mr B in November 2018, following which the police withdrew the warrant for Mr B’s arrest.
The primary judge acknowledged that this issue was central to the proceedings, saying:
305.The most significant issue in relation to the risk of harm of the type contemplated in this subsection [s 60CC(2)(b)] in these proceedings relates to the need to protect the children from harm arising from sexual abuse. This issue looms large as the only proposal being promoted by the parties is that the children live with the mother and it is in the mother’s household that risks of this nature are contended to have been present.
…
309.Having regard to the gravity of the impact of child sexual abuse, if it were to occur in the future, I am satisfied that [Mr B] poses a risk of harm to the children on this basis.
310.The question then arises as to whether that risk of harm is mitigated such that it cannot be considered as unacceptably high. In this regard the mother’s protective capacity and her likely compliance with any injunction restraining her from exposing the children to her former partner must be closely considered.
(Emphasis added)
As can be seen, the focus of attention was upon the mother’s protective capacity. Her Honour’s essential findings on the risk of harm to the children from subjection to sexual abuse were expressed this way:
337.In all of the foregoing circumstances and attaching particular weight to the evidence of the family consultant and my various findings as explained, I cannot be satisfied that the mother has sufficient capacity to protect her children from sexual abuse when in her care in the future. The specific risk posed by [Mr B] in this regard is in my view not sufficiently mitigated by the proposed orders. Having regard to the likely impact of harm arising from any sexual abuse experienced by the children in the future if that were to occur, I assess the risk of harm in the mother’s care in this domain as unacceptably high.
(Emphasis added)
Quite unremarkably, those conclusions were premised upon these largely unchallenged findings of fact:
(a)the mother omitted from her evidence-in-chief the admission made to her by Mr B about his sexual abuse of W, and furthermore, his request for them to sleep together with his daughters and sisters, which admission and request she had initially informed the police (at [181]–[182]);
(b)the mother put aside her concerns about W’s sexual abuse and, after only a very brief interruption, re-established her domestic relationship with Mr B and the other children (at [180], [183] and [311]), at least until she later acceded to the father’s demands for the children to live with him instead (at [184]–[187]);
(c)once the children moved to live with the father, the mother and Mr B “disappeared” together for a number of months, evading police when knowing the police intended arresting Mr B and charging him with W’s sexual assault, and so thereby demonstrating the prioritisation of her relationship with Mr B over the protection of her children (at [188]–[189], [192] and [312]);
(d)the mother and Mr B remained in contact with one another until April 2018 (at [190]–[192] and [313]);
(e)even though an order was made in May 2018 restraining the mother from allowing the children to have any contact with Mr B, she breached the injunction by allowing him to visit her home (at [202]–[203]);
(f)the eldest child and youngest child both returned to live with the mother in mid-2018, from which point in time the narrative perpetuated within the mother’s household was that W had lied about her sexual abuse by Mr B (at [193] and [316]);
(g)the Family Consultant, whose expert opinion evidence was accepted as being correct (at [236]), was critical of the mother for not accepting W’s allegations, even if they were untrue (at [320]);
(h)W later returned to live with the mother in October 2018, following some tension between her and the father and his new partner, but by then she felt safe because Mr B no longer lived in the mother’s household (at [159] and [194]);
(i)while W retracted her allegations against Mr B in November 2018, some doubt attends the truth of the retraction for several reasons: her initial complaint to the police was “rich in context and detail” (at [198]); the retraction was made after she returned to live with the mother and by then she knew the mother was openly saying she had lied (at [195] and [196]); Mr B initially admitted the sexual abuse to the mother (at [119], [123] and [195]); and W did not retract all of her allegations against Mr B (at [197]);
(j)the mother allowed Mr B to visit her home in December 2018 while W was present (at [204]) and expected W to apologise to him (at [316]);
(k)in December 2018, the mother was still ambivalent about resuming her relationship with Mr B and she held W, the father, and the father’s partner responsible for the breakdown of her relationship with him (at [205]–[207]); and
(l)the Family Consultant did not agree the therapy provided to the mother with the Secretary’s support had equipped her with “protective skills” (at [323]), which expert opinion evidence was accepted as being correct (at [324]–[332]).
The Secretary did not challenge the correctness of most of those findings but, even in relation to those which were challenged obliquely, again, it was only by the emphasis of other pieces of evidence. In effect, the Secretary contended the primary judge could have found otherwise, but that is not enough to sustain the appeal. Unless the evidence obliged the primary judge to find otherwise, this complaint about the finding of risk being “unfair and/or manifestly unreasonable” must fail. The Secretary’s contentions certainly did not rise to that standard.
The Secretary first submitted that it should have been taken into account that W’s retraction of her allegations of sexual abuse against Mr B was voluntary. But the asserted voluntariness of the retraction was taken into account (at [162]–[163]) and her Honour cogently explained why caution had to be exercised in accepting her retraction as being truthful, irrespective of its supposed voluntariness, particularly when the police were wary about whether W was pressured to make the retraction (at [166]).
The Secretary next submitted it was “unfair and manifestly unreasonable” for the primary judge to draw an “adverse inference against the mother” for failing to disclose the admission Mr B made to her about his sexual abuse of W, but the submission is rejected. The Secretary did not explain why it was not validly open to place weight on the mother’s failure to adduce such potentially important evidence on one of the pivotal issues in the trial. The fact that her omission only became apparent from the contents of an exhibit tendered after her cross-examination had concluded makes no difference. No other party to the proceedings had any interest in contradicting the mother in cross-examination anyway, since all parties sought an order for the children to live with her.
The Secretary next submitted it was “unreasonable and unfair” for the primary judge to find the mother had evaded detection by the police with Mr B in the early part of 2018, when she was not cross-examined on that issue. The submission is rejected. The primary judge was free to draw whatever inferences were reasonably available from the evidence, since the drawing of an inference is an exercise of the ordinary powers of human reasoning and experience, unaffected by any rule of law, and is part of the fact finding process (G v H (1994) 181 CLR 387 at 389–390). For the reasons given by the primary judge, the inference of the mother’s complicit evasion of police with Mr B was capable of being drawn from the evidence.
The Secretary next submitted it was “unreasonable and unfair” for the primary judge to expect the mother to call evidence from Mr B and, when she failed to do so, to have then drawn an adverse inference against her in the style of that permitted by Jones v Dunkel (1959) 101 CLR 298. However, the submission is rejected because the primary judge did not draw any adverse inference “against the mother” merely as a consequence of her failure to adduce evidence from Mr B, as the Secretary wrongly submitted. The primary judge simply determined the issue of risk on the available evidence.
While the primary judge permissibly considered it was “weighty” that Mr B did not give evidence (at [175], [195] and [201]), her Honour did not equate the absence of his evidence with his admission of guilt or the mother’s consciousness of his guilt, as was implied by the Secretary. Rather, in the absence of any rebuttal evidence from Mr B, it was simply safer to accept and draw inferences from other pieces of evidence which tended to suggest W’s abuse allegations against Mr B were true (Weissensteiner v The Queen (1993) 178 CLR 217 at 227 and 244). All evidence must be weighed and assessed having regard to the capacity of a party to adduce it (see Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 454; Burke v LFOT Pty Ltd (2002) 209 CLR 282 at 330). Given the mother gave evidence of her current amicable dealings with Mr B (at [175]), it was most probably within her power to call evidence from him. She chose not to do so, or alternatively did not explain why she could not do so, even though she knew the significance of his alleged sexual abuse of W to the outcome of the proceedings. The other evidence which tended to establish his sexual abuse of W could carry greater weight when not contradicted by his sworn denial. Even so, the primary judge did not make any positive finding that Mr B did sexually abuse W (at [200]–[201] and [308]); only that he poses a risk the mother does not satisfactorily mitigate (at [309] and [337]).
Lastly, the Secretary submitted the evidence proved Mr B did not have any contact with the children after December 2018, the implication being that the primary judge was therefore obliged to find he no longer posed any risk of harm to the children. The submission is rejected because it flatly contradicts the primary judge’s specific finding that such evidence was unreliable. Her Honour rejected the mother’s evidence about her asserted absence of contact with Mr B after their domestic separation (at [204] and [333]–[336]). The mother admitted she still meets Mr B so he can spend time with the two children they have together (at [161]). The primary judge found that, in March 2020, Mr B approached the mother at or near to her home and they engaged in an argument (at [64], [170]–[172] and [300]). Given the mother had expressed her ambivalence to the Family Consultant in December 2018 about whether she would resume her relationship with Mr B, the primary judge’s doubts about Mr B’s enduring absence from the mother’s milieu had a secure footing in the evidence.
This ground fails.
Grounds 4 and 5 – inadequate reasons
These grounds entail complaints about the primary judge’s failure to give adequate reasons for why the appealed orders were made in preference to those proposed by the Secretary (with the support of the parents and the ICL), contending as follows:
[GROUND] 4: That the learned trial judge erred by failing to give reasons or any adequate reasons as to why the confluence of protective measures set out in the proposed Consent Orders would not adequately mitigate any risk of harm to the children in the mother’s care.
[GROUND] 5: That the learned trial judge erred in failing to give reasons or adequate reasons for the decision that, although finding that the mother posed an unacceptable risk of harm to the children it was in their best interests to make an order allocating parental responsibility to the Minister, when:
a.the evidence before her was that the Minister would not remove the children from the mother's care if he continued to hold parental responsibility (or otherwise) (Reasons at paragraph 359, 361); and
b.the Minister could not remove the children from the mother’s care without breaching the requirements of the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("the State Act") in the absence of an immediate risk of harm and satisfaction of the criteria contained in the State Act including sections 8, 9 and 36;
c.the Minister does not require parental responsibility to provide supervision and of or casework and/ or make referrals for the family to other social or support services.
(Bold emphasis added)
Simply stated, the various forms of complaint about insufficient reasons are without merit because the outcome was explained clearly. As the primary judge correctly acknowledged (at [245]), her Honour was essentially faced with the binary choice of either:
(a)allocating parental responsibility for the children to the mother, in conjunction with an order requiring that the children must live with her (as the Secretary, parents and ICL collectively sought); or
(b)allocating parental responsibility for the children to the Minister, thereby enabling the Minister’s delegates to decide with whom the children live, allowing for any changed future circumstances.
Having found the children were exposed to unacceptable risks of harm in the mother’s care, it was wholly unsurprising the primary judge refused to make orders requiring the children to live with her. The only alternative was to vest the Minister with parental responsibility.
In effect, the Secretary’s submissions in the appeal amounted to criticism of the primary judge for conferring parental responsibility upon the Minister when it was known the Minister intended to use such authority to ensure the children continue to live with the mother anyway. But the criticism can be immediately rejected because the only other alternative was untenable. Her Honour’s finding that the mother poses an unacceptable risk of harm, the validity of which finding we have already addressed under the preceding grounds, was decisive.
The choice confronting the primary judge cast into stark relief the statutory mandate that the children’s best interests must be the paramount consideration in determining the proceedings (ss 60CA and 65AA). Having rejected the Secretary’s case that the mother would be satisfactorily protective of the children and instead having found she posed an unacceptable risk of harm to the children, how could the primary judge, in good conscience, then make an order compelling the children to live with the mother? Such an outcome would have been an abrogation of the primary judge’s statutory duty to accord paramountcy to the children’s best interests and would absurdly contradict the findings of risk made against the mother.
If the Minister chose to exercise the parental responsibility granted to him by leaving the children in the mother’s care, that was his prerogative, but it was not a decision the primary judge was willing to endorse by an order made under the Act.
The Secretary could not be forced to submit to the jurisdiction exercised under the Act (Secretary of the Department of Health and Human Services & Ray & Ors (2010) FLC 93-457 (“Ray”)), but once the Secretary decided to participate in the federal proceedings and forsake any separate care proceedings under the State Protection Act in a State court, the orders which could be made by the primary judge were those available under the Act. By his voluntary intervention in the federal proceedings, the Secretary then had all the same rights, duties and liabilities as any other party (s 91B(2)(b)).
There is no doubt the primary judge had power under the Act to make an order allocating parental responsibility for the children to the Minister (D-G of Department of Human Services (NSW) & Tran & Anor (2010) FLC 93-443 at [67]–[68], [72], [151] and [256]; Faulkner & McPherson v Rugendyke; Department of Community Services (Intervener) (1995) FLC 92-630 at 82,321–82,322). Rather, the issue was whether or not such order should have been made.
Despite the Secretary being reluctant to accept the Minister’s conferral with parental responsibility, there is a clear distinction between reluctance to accept it and refusal to accept it. Had the Secretary steadfastly refused to accept an order conferring parental responsibility for the children upon the Minister, the order could not have been made (Ray at [81]–[83]). No litigant can be forced, against his or her will, to allow a child to live or spend time with him or her. Nor can a person be forced to accept the burden of parental responsibility for a child. Normally, orders made in respect of children under Pt VII of the Act confer obligations upon litigants who willingly and actively compete for such obligations. The Minister is no different.
Significantly though, at no stage did the Secretary refuse to accept an order conferring parental responsibility on the Minister. It would have been quite extraordinary for the Secretary (as an instrument of executive government and a responsible litigant) to voluntarily engage in the litigation but then give the primary judge an ultimatum by demanding her Honour only make the orders for which he applied and refusing to submit to any others. Instead, the Secretary resisted the primary judge’s inclination to allocate parental responsibility to the Minister, but accepted such an outcome was open. At this juncture, it will be remembered that the Secretary opposed, but nonetheless accepted, the Minister’s conferral of parental responsibility for the children pursuant to the interim orders made on the ICL’s application in July 2018.
The Secretary’s willingness to submit to an order vesting parental responsibility in the Minister is evident from the Secretary’s final submissions. He contended in written form:
It is accepted that the Family Court has the power to make an order that imposes responsibilities and obligations on the Minister given he holds parental responsibility for the children and is a party to the proceedings.
Then, the Secretary’s counsel made these final oral submissions to her Honour:
[COUNSEL FOR THE SECRETARY]: … Plainly, uncontroversially, if the minister holds parental responsibility, he exercises that in accordance with the State Act. The State Act guides him in when he can and can’t intervene to remove. ...
…
I have identified this to your Honour: that the minister does not require parental responsibility for services and, for that matter, casework and supervision to be allocated to the mother and children. …
…
[I]f your Honour makes an order for parental responsibility to the minister – leaving aside the 68B and C restraints concerning the father, I’ll put that to one side – if your Honour allocates parental responsibility to the minister, that’s where it would end as the order. And as I indicated to your Honour on Monday, essentially what your Honour is doing is then saying to the minister, you know, “It’s over to you, Minister”. …
…
In a sense, these are the alternatives: (1) allocate PR to the minister, but thereafter knowing that what the minister does with that is in the state domain…
…
The options your Honour has in terms of available alternatives are PR to the minister, with all of the issues that we’ve just identified, or crafting that arrangement.
(Transcript 17 July 2020, p. 23 line 42 to p. 24 line 28, p. 26 lines 27–29)
The primary judge recorded in the reasons for judgment that the Secretary admitted parental responsibility could be conferred upon the Minister (at [230]). There was no suggestion in the appeal that the Secretary was thereby misrepresented or that the primary judge misconstrued the Secretary’s admission.
At trial, the Secretary submitted that, if parental responsibility for the children was allocated to the Minister, there would be no need to make any order about with whom the children would live because the State Protection Act then obliges the Minister to accommodate the children at his or her discretion (Tran at [213]–[216]). The primary judge accepted the submission as being correct, both expressly in the reasons for judgment (at [218]) and by refraining from making a residence order to accompany the order conferring parental responsibility upon the Minister.
Ground 4 directs attention to the “protective measures” the Secretary had contended at trial would mitigate any risks of harm to the children in the mother’s household. The “protective measures” for which the Secretary contended were effectively two-fold: first, an injunction made under s 68B of the Act restraining the mother from allowing the children to have any contact with Mr B; and secondly, a requirement for the mother to submit to the Secretary’s supervision and directions for 12 months.
As to the proposed injunction, the primary judge found it would offer the children some protection (at [383]) and so it was uncontroversially made (Order 3). However, the injunction alone could not be a complete panacea. While the primary judge accepted the mother would probably comply with it (at [333]), there were doubts. On multiple occasions, she had breached the same interim injunction made against her in May 2018 (at [202]–[203] and [334]–[336]) and she still meets Mr B so he can spend time with the two younger children they have together (at [161]). Such undisturbed findings form a firm foundation for the primary judge’s reservations about the mother’s consistent future compliance with the injunction. Its existence is a bulwark, but no guarantee.
Realising as much, the additional supervision order for which the Secretary advocated as part of the protective package was expressed in these terms:
6.That for a period of 12 months from the date of these Orders, the mother and the father shall comply, and shall do all acts and things reasonably possible to ensure that the children comply, with the following:
6.1All reasonable directions of the Secretary relating to the care, welfare and development of the children,
6.2Permitting the Secretary to enter and inspect their respective homes at reasonable times,
6.3Permitting the Secretary to speak to the children, or any of them separately and in the absence of any other person;
6.4Attending at and completing any course of counselling or psychoeducation including domestic violence related education as recommended by the Secretary or his delegate;
6.5Attending at and completing any parenting skills course as recommended by the Secretary or his delegate, including participating in any Intensive Family Preservation Service that might be recommended by the Secretary or his delegate.
(As per the original) (Bold emphasis added)
As can be seen from the terms of the proposed order, the Secretary expected that, despite his proposal for the mother to have exclusive parental responsibility for the children, her exercise of such authority must continue under the yoke of his overarching supervision and discretion for the next 12 months.
The primary judge noted the Secretary’s submission that the proposed supervision order was a superior option to the Minister’s investiture with parental responsibility for the children (at [224] and [379]), but did not accept the submission. The Secretary did not attempt to elaborate the submission by pragmatically explaining to the primary judge how his supervision, which could only have been exerted by his delegates’ occasional random checks upon the mother and children, could have safeguarded the children against the constant risks of harm in the mother’s care which the primary judge identified. The primary judge was not satisfied the package of “protective measures” for which the Secretary advocated could offer sufficient protection for the children and was plainly convinced that conferral of parental responsibility upon the Minister was the only viable option.
The Secretary did not explain in the appeal why it was an error for the primary judge to have so found and to have rejected his submissions at trial, however, remembering that these grounds are confined to complaints about the adequacy of reasons, they must fail. On any fair view, the lengthy reasons given by the primary judge adequately explained why parental responsibility for the children was conferred on the Minister, which satisfies the requirement for sufficiency of reasons (DL v The Queen (2018) 266 CLR 1 at [32]–[33] and [130]–[131]).
There is a wider question about the existence of any source of power to make the supervision order (or at least some constituent parts of it) for which the Secretary advocated as an essential ingredient of his package of “protective measures”. Absent power to make the proposed order, the Secretary’s position both at the trial and in the appeal was significantly weakened because his case was built on the proposition that the entire package of “protective measures” would eradicate all risk. The Secretary simply assumed such power existed, though the assumption is not self-evidently correct. Since the issue was not squarely raised in the appeal, we only identify the issue so we are not seen to implicitly accept that such power necessarily exists.
The Secretary’s conferral, by an order made under the Act, with the right to supervise and give binding directions to adult carers of children has arisen before the Full Court in the past, but not in a way which confirms the source of power for such orders (Carroll & Director-General, Department of Human Services [2011] FamCAFC 4)). In that appeal, the source of power to make such supervision orders was not debated, let alone resolved. The appeal succeeded in that instance because some orders, including the supervision orders in the Secretary’s favour, were made in circumstances of procedural unfairness.
Some simple examples will illustrate why the existence of such statutory power should not be assumed.
If an order grants to a parent exclusive parental responsibility for children (s 64B(2)(c)), which order carries with it all the duties, powers, responsibilities and authority conferred by law in relation to the children (s 61B), how can any other provision of the Act (including ss 64B(2)(i), 67ZC and 114(3)) then be the valid source of power to make another order which derogates from the grant, by subjugating the parent’s supposedly exclusive parental authority to the Minister’s supervision and direction? The second order would tend to contradict the first. Besides that inherent incompatibility, there are other more specific curiosities.
It is difficult to conceive how proposed sub-order 6.2 could legitimately fall within the power reposing in Pt VII or Pt XIV of the Act. That sub-order purports to compel the mother, even against her will, to allow the Secretary (and his delegates) to enter her home whenever the Secretary considers reasonable, the breach of which order could then be met with consequent contempt or contravention sanctions. The exercise of such coercive power by a State agency over citizens, invading personal privacy and trammelling proprietary rights, is usually countenanced in only the most exceptional law enforcement circumstances and is well beyond, it might be thought, the purview of Pt VII or Pt XIV of the Act. The Secretary has an armoury of emergency powers available under the State Protection Act enabling the protection of children from imminent risks of serious harm.
By proposed sub-order 6.4, the Secretary sought that the primary judge grant to him discretionary power that even her Honour probably did not possess. It is doubtful the primary judge could have made a stand-alone order compelling the mother to accept counselling or to attend therapeutic courses in the hope of improving her parenting capacity (Oberlin & Infeld (2021) FLC 94-017 at [45]–[52]) and so, if the primary judge probably had no power to order the mother to do so, it would follow that her Honour could not confer the power of compulsion upon the Secretary.
By proposed sub-order 6.5, the Secretary effectively sought from the primary judge the transfer to him of judicial discretion to make an order under s 65LA of the Act compelling the mother to attend a post-separation parenting program, but such statutory discretion was vested exclusively in her Honour and could hardly be conferred upon a party to exercise at will.
The issue of the existence of power to make the supervision order sought by the Secretary is a debate for another day, not least because the Secretary had not turned his mind to the issue and he had no contradictor in the appeal in relation to these grounds.
DISPOSITION
The appeal is dismissed.
As the appeal was unopposed by any other party, no question of costs arises.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Baumann & Williams. Associate:
Dated: 20 October 2021
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