Sequeira & Martins
[2023] FedCFamC1A 73
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Sequeira & Martins [2023] FedCFamC1A 73
Appeal from: Martins & Sequeira [2022] FedCFamC1F 925 Appeal number: NAA 289 of 2022 File number: BRC 2616 of 2021 Judgment of: ALDRIDGE, GILL & CAMPTON JJ Date of judgment: 18 May 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from final parenting orders – Apprehension of bias – Where the allegations are not substantiated – Procedural fairness – Assertion that the primary judge excessively intervened in the conduct of the trial – Where the interventions in context were appropriate and proportionate to the primary judge’s attempt to control the trial – Adequacy of reasons – Where reckless contentions are made absent authority – Challenges as to findings of fact – Challenges as to weight – Appeal dismissed – Costs. Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) Pt VII Div 12A, ss 60CA, 60CC, 69ZN
Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Finch & Finch (2020) FLC 93-949; [2020] FamCAFC 60
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Isles& Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
M & M (1988) 166 CLR 69; [1988] HCA 68
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42
Vakuata v Kelly (1989) 167 CLR 568; [1989] HCA 44
Number of paragraphs: 99 Date of hearing: 2 May 2023 Place: Heard in Brisbane, delivered in Sydney Counsel for the Appellant: Mr van der Weegen Solicitor for the Appellant: Reid Legal Group Counsel for the Respondent: Mr Sorensen Solicitor for the Respondent: Dawson Lawyers Counsel for the Independent Children’s Lawyer: Mr Taylor Solicitor for the Independent Children’s Lawyer: Carter Farquar Mediation & Family Law ORDERS
NAA 289 of 2022
BRC 2616 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS SEQUEIRA
Appellant
AND: MR MARTINS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALDRIDGE, GILL & CAMPTON JJ
DATE OF ORDER:
18 May 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 26 April 2023 be allowed.
2.The Amended Notice of Appeal filed 6 March 2023 is dismissed.
3.The appellant pay the respondent’s costs fixed at $21,257 within 21 days.
4.The appellant pay the Independent Children’s Lawyer’s costs fixed at $4,523.90 within 21 days.
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 Sequeria & Martins has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, GILL & CAMPTON JJ:
INTRODUCTION
By an Amended Notice of Appeal filed 6 March 2022, the mother appeals from final orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on
9 December 2022 as to the parenting of a child who will shortly turn four years old.
The final orders provided that the child would no longer live with the mother and would commence living with the father. An order was made for the parents to have equal shared parental responsibility for the child. On condition that the mother attend upon a clinical psychologist, counsellor and/or psychiatrist and comply with their treatment recommendations, the orders provided for the child to spend time with the mother, supervised for one month, and thereafter on Tuesday (overnights) and each alternate weekend from Friday to Sunday, as well as for half of each school holiday period and on special days. The orders restrained the mother from applying for a Country J passport for the child without the consent of the father, required that the father keep possession of the child’s passports and provided for the child to remain on the Airport Watchlist until she commences primary school.
The determination was made against a context of the mother historically alleging that the father posed an unacceptable risk of sexual and physical harm to the child. The mother said that she abandoned that allegation during the course of the trial. The primary judge found that the mother lacked the capacity to support the child’s relationship with the father, and that she “has not truly abandoned her belief that the [father] presents an unacceptable risk of sexual or other physical abuse to [the child]” (at [7]).
The mother does not appeal from all of the orders made by the primary judge. Her appeal was restricted to the orders regulating the child’s living arrangements, time with the mother, passports and international travel, and those requiring her to provide her treating practitioners with a copy of the affidavit of the single psychiatric expert witness and the primary judge’s reasons.
Each of the father and the Independent Children’s Lawyer (“ICL”) resisted the appeal.
For the reasons that follow, the appeal will be dismissed. An order will be made that the mother pay the costs of the ICL and the father arising from the conduct of the appeal.
RELEVANT BACKGROUND
The father is 40 years of age, and was born in Australia. The mother is 34 years of age and was born in Country J. She relocated to Australia in 2015.
The parents met in Country J while independently travelling in 2018 and commenced a relationship. The mother during this period fell pregnant with the child. The father returned to Australia. The mother returned to Australia some months later in late 2018. The parents briefly continued their relationship upon the mother’s return but separated prior to the child’s birth. Despite their separation, the parents remained friends. The father supported the mother in attaining a partner visa permitting her to live permanently in Australia.
The child was born in 2019. In the months leading up to her birth, each parent alleged the other misused alcohol and marijuana. The primary judge made no specific findings on these matters.
THE TRIAL
The trial before the primary judge was conducted over non-consecutive days. It was first listed for hearing on 20 April 2022. On that morning, the mother made an application to adjourn the trial dates. Although the primary judge initially indicated he would not do so, when, after a short morning adjournment, the mother had not yet arrived in the courtroom and the parties had not inspected the material produced on subpoena, he indicated to the parties’ legal representatives and the ICL that the trial dates would vacated but that he would conduct an interim hearing later that day. After a further adjournment, the mother’s counsel said that the mother no longer agitated a case that the child was at an unacceptable risk of harm in the father’s care. Later in the afternoon, after receiving submissions, the primary judge delivered judgment and made interim orders for the father’s supervised time with the child to progress to unsupervised time, pending the completion of the trial.
The trial recommenced on 18 and 19 August 2022. Each of the parents gave evidence across these two days. It concluded on 30 August 2022.
THE APPLICATION IN AN APPEAL
The mother by way of an Application in an Appeal filed on 26 April 2023 sought to rely upon audio recordings of the trial to support some of the grounds of appeal. As advised during the appeal hearing, absent objection, we listened to the identified audio recordings in chambers.
THE APPEAL
The mother raised five grounds of appeal in respect to Orders 3–6, 11 and 17–20 made on
9 December 2022. She grouped the grounds of appeal by category, being:
(a)Ground 6 – a failure to afford procedural fairness
(b)Ground 6A – an apprehended bias
(c)Ground 9 – a failure to apply correct principle coupled with an error in making a finding not available on the evidence
(d)Ground 10 – a failure to provide adequate reasons coupled with an error in the exercise of discretion
(e)Ground 13 – again, a failure to provide adequate reasons coupled with an error by way of a failure to consider all sections of s 60CC of the Family Law Act 1975 (Cth) (“the Act”).
During the appeal hearing, the mother submitted that the ground directed to apprehended bias should be “viewed and conflated” with the ground as to procedural fairness. That was rejected as being an incorrect statement of law (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [14]). It was nonetheless accepted that aspects of the trial relied upon by the mother to demonstrate the ground as to procedural unfairness were also relied upon to demonstrate the ground as to bias, such that the grounds overlapped in some ways.
Ground 6A
This ground alleges an apprehension of bias on the part of the primary judge. It should be dealt with first, as the challenge is to the integrity of the administration of justice (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 (“Concrete v Parramatta”) at [3] and [117]).
The test for apprehended bias is whether “a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 (“Ebner”) at [6]; see also Charisteas v Charisteas (2021) 273 CLR 289).
As is well established, application of the doctrine of apprehended judicial bias involves two steps (Ebner at 345). First, an appellant must identify what it is said might lead a judge to decide a case other than on its legal and factual merits. Secondly, they must articulate a logical connection between the identified conduct and the feared deviation from impartiality.
The mother particularised the following conduct of the primary judge to establish the ground:
6A.…
a) forming a preliminary view at the commencement of the trial that the concerning behaviours of the child raised by the [mother] were as a result of her behaviour and that a change of residence might be the cure and where it was clear during the course of the trial that this view was intractable;
b) impugning the character of the [mother] in open court; and
c) embarked on a unilateral enquiry into the status of the [mother’s] visa for no legitimate forensic purpose or from any application from the parties.
(Amended Notice of Appeal filed on 6 March 2023, Ground 6A)
The mother’s Amended Summary of Argument did not address either of the steps identified in Ebner. During oral argument, the focus of her submissions made on her behalf was not the reasonable apprehension of a “fair-minded and informed lay observer”, but the subjective perceptions of the mother, which were not raised during the trial and were subject to complaint only after the reasons were published.
The preliminary views expressed by the primary judge
The first aspect of bias was contended to arise from “preliminary views” expressed by the primary judge at the outset of the trial. This aspect was addressed in detail by the mother in her Amended Summary of Argument, but not elaborated on during the appeal hearing.
In assessing this aspect of the ground, it is useful to observe that “the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias” (Concrete v Parramatta at [112]). It is well established that a judge is permitted to express a preliminary viewpoint given the availability of the parties’ proposals and their affidavit material. In the event such preliminary views were made, the mother was still required to establish that the fair‑minded lay observer would reasonably apprehend that the primary judge was not open to persuasion away from those views.
The first view was said to be expressed by the primary judge on the first day of the trial in April 2022. The mother extracted a comment made by the primary judge to counsel for each party (in the absence of the mother, who had not yet arrived at the courtroom), in support of her contention that the primary judge had formed a “preliminary view”, as follows:
HIS HONOUR: Get some instructions to get this – is your client still running this unacceptable-risk case?
[MOTHER’S COUNSEL]: Another reason I need instructions, your Honour.
HIS HONOUR: Because I will make some interim orders today that will move this away from supervised time…
(Transcript 20 April 2022, p.17 lines 31–40)
The mother contended that such “standpoint was taken before any evidence was taken or formal findings made” (mother’s Amended Summary of Argument filed on 10 March 2023, paragraph 18). That submission is rejected. The exchange occurred in the context of the primary judge having managed the litigation for some months prior to the trial, and after he had read the extensive trial affidavits filed by each party and the comprehensive Family Report.
A reading of the transcript makes clear that the first exchange occurred after a lengthy discussion between the legal representatives and the primary judge, wherein the mother’s counsel expressed he was unclear in his instructions as to whether the mother continued to press the unacceptable-risk aspect of her case, notwithstanding that he had conferred with the mother a few days earlier. After obtaining the indulgence of two adjournments that morning, the mother conceded she no longer asserted that the child was at an unacceptable risk in the father’s care (as recorded at [10] above). Thereafter an interim hearing as to the terms of time to be spent by the child with the father pending the further trial dates was conducted and concluded. The complained exchange was not indicative that the primary judge was not open to persuasion or that the matter would not be decided on its merits.
The second exchange relied upon to support this aspect of the ground was prior to the oral evidence commencing on 18 August 2022, as follows:
HIS HONOUR: But just before you go, can you tell me what – I’ve struggled a little bit to work out the parameters of this dispute. What are they?
[MOTHER’S COUNSEL]: Your Honour, my client is not pushing an unacceptable risk case.
HIS HONOUR: No. She told me that last time.
[MOTHER’S COUNSEL]: Thank you. I guess, the mother’s position is that she wants to retain primary care of the child and allow for some increase in time with the father; however, her position is that she’s worried because of the behaviours that the child is exhibiting, which she doesn’t necessarily know what it’s from - - -
HIS HONOUR: Do you think she takes any responsibility for those behaviours through her own behaviour? I don’t want to know what you think. What’s her submission about that? Because having read the material, a lot of this just falls at her feet and really the cure might be to swap residence.
(Transcript 18 August 2022, p.3 lines 28–44)
The second complained exchange occurred after updating affidavits were filed by the parties and read by the primary judge. It did not occur before any “evidence [having been] taken”, as was contended by the mother. The father’s case by this time was that the child should live with him. The primary judge engaged with the issues joined by the parties in the proceedings, identifying what “might” be the result. This qualified statement does not ground the complaint as to an apprehension of prejudgment or an intractable view.
Comments ‘impugning the character’ of the mother
This part of the ground was contended to have arisen from a “pejorative remark” made by the primary judge during the cross-examination of the father, on the first day of the second tranche of the trial (on 18 August 2022). It is significant that by this point of the trial, the mother had supposedly long-abandoned her case that the father posed an unacceptable risk of harm to the child. Against that context, the mother’s counsel sought to cross-examine the father about the “extreme behaviours” the mother asserted the child was exhibiting. When the primary judge questioned the mother’s counsel about the relevance of such evidence to any final orders to be made, the following interaction occurred:
HIS HONOUR: Well, why are you telling me about it? If you appreciate that why are you telling me about it? Join the dots for me if you would, ma’am. How does this result in the orders? I can’t see the connection. What is it? Is this case just about your client’s concerns?
[MOTHER’S COUNSEL]: I will just confirm that that’s what my client instructs me to - - -
HIS HONOUR: No.
[MOTHER’S COUNSEL]: Thank you.
HIS HONOUR: No, no, no, no, no. It’s too late for that because if that’s what your client’s case is about then that is a matter that I need to take into account in the outcome of the proceedings.
[MOTHER’S COUNSEL]: My client - - -
HIS HONOUR: Let’s just be clear about that.
[MOTHER’S COUNSEL]: Yes. My client’s case - - -
HIS HONOUR: Go on. Sorry.
[MOTHER’S COUNSEL]: - - - is that overarchingly this concern was raised to her by [the child’s general practitioner]. She has since that time been observing the child having a number of reactive behaviours. She does not purport to say that it’s – what they result from, but she has a three year old child in her care who is exhibiting these behaviours, and she has spoken with [the child’s general practitioner] who has referred her to a paediatrician. The paediatrician has said that the child needs to go and see a child psychologist. With this information in mind, my client is reserved in – well, is seeking orders that the child’s status quo remain until such time as she is older to be able to cope with the transition of greater time into the father’s care.
HIS HONOUR: Or she’s able to cope with [the mother’s] carry on. Ask your next question.
(Transcript 18 August 2022, p.17 line 45 to p.16 line 34) (Emphasis added)
Two complaints were made by the primary judge’s use of the phrase, “carry on”. First that the comment apparently dismissed the “legitimate forensic purpose of the line of questioning”. Having regard to the balance of the transcript, the submission that the primary judge curtailed the line of questioning of the father as to the child’s “extreme behaviours” could not be maintained. That enquiry of the father in cross-examination continued for some time after the complained exchange.
Secondly, it was contended that the comment was pejorative, and “amounted to impugning the character of the [mother]” (mother’s Amended Summary of Argument filed on 10 March 2023, paragraph 22). The comment was arguably inessential, but no more. It was made in the context of the primary judge observing, with the benefit of expert evidence, that the parents had a seriously poor, conflictual relationship and had conducted their cases accordingly. Indeed, a nearly identical turn of phrase was used by the primary judge in a later comment made of both parents (including the father) (see Transcript 30 August 2022, p.237 line 12).
We do not accept that the mother has established that the comment carries with it the implication of apprehended bias for which she contends, especially where it was made of both parents.
The visa enquiry
This part of the ground arises from what the mother identified as the primary judge having “unilaterally embarked on an unnecessary separate enquiry into the visa status of the [mother]” (mother’s Amended Summary of Argument filed on 10 March 2023, paragraph 25).
The terms of the complaint do not reflect the events at trial as recorded in the transcript. The status of the mother’s visa permitting her to live in Australia was relevant in the context of the mother seeking that she be permitted to travel internationally with the child, and the father seeking an order that the child be placed on the Airport Watchlist. The topic was first raised by the primary judge after a submission was made on her behalf that the mother “has chosen to stay in [Australia] because the father of the child is here” (Transcript 30 August 2022, p.235 lines 34–35).
It was later raised during submissions, by the primary judge asking the father’s solicitor, prior to any enquiry of the mother, “how did they get a visa” (Transcript 30 August 2021, p.250 line 3). This query was clearly directed at both the mother and father. That is reaffirmed in the reasons at [114], where the primary judge questioned whether he should refer “the parties”, that is, both of them, to the Department of Immigration. The mother could not adequately explain how the comments could demonstrate bias against one or other of the parties when they were plainly directed to both.
During the appeal hearing the mother accepted that the visa issue had no bearing on the final determination made by the primary judge. She could not explain how this immaterial issue could have created an apprehension of bias.
This aspect of the ground is rejected.
The manner in which this aspect of the ground was prosecuted should not be condoned. In her Amended Summary of Argument, the mother submitted that the primary judge’s conduct in calling for submissions from the mother and father as to the mother’s entitlement to a partner visa, in circumstances where neither of them said they had been in a de facto relationship for the purpose of these proceedings, was:
26. …an abuse of the primary judge’s judicial office that was beyond power. It is further submitted that given that it was the [mother’s] case that the [father] was coercive and controlling in threatening to withdraw his support for her visa application (in which the [father] conceded; however, in fairness, it ultimately did not form part of his case), it is submitted that this action by the primary judge was vexatious and could be viewed as unfairly targeting the [mother] and mirrored the previous action of the [father] that was the subject of complaint by the [mother].
(Mother’s Amended Summary of Argument filed on 10 March 2023, paragraph 26) (Emphasis added)
It is a serious matter to allege that a judicial officer has abused their position, or behaved in a way that was “vexatious” or that “mirrored” “coercing and controlling” behaviour. The scandalous submissions ought not have been made.
Conclusion as to bias
Each of the articulated complaints raised by this ground relate to events which occurred as part of the trial before the primary judge. The mother was represented by counsel at trial. Her counsel made no objection to the events now in complaint, nor any application for the primary judge to recuse himself from finally determining the proceeding. The mother conceded during the appeal hearing that she had waived her objection to the primary judge continuing to hear and determine the matter (See Vakuata v Kelly (1989) 167 CLR 568 at 573, 577, 587–588). We are satisfied that the mother should not be permitted to delay making a serious allegation of bias to first see whether the outcome of the case was sufficiently favourable to her, and that the relevant waiver is raised.
For the sake of completeness, the mother’s assertion of apprehended bias insofar as it is not subject to waiver, must fail. Nothing raised in this ground, individually or taken together, would give rise to a reasonable apprehension of bias on the part of the primary judge. The mother did not establish any logical connection between the impugned conduct of the primary judge and the primary judge failing to have decided the case on its legal and factual merits. This ground fails.
Ground 6
Ground 6 makes a general complaint of procedural unfairness, particularised by reference to four circumstances, being that the primary judge:
(a)intervened excessively and made pejorative comments during the course of the trial;
(b)failed to ensure the presence of an interpreter for the entirety of the trial and denied the mother’s request for an interpreter;
(c)questioned the mother’s need to take a break during cross-examination; and
(d)criticised the mother in circumstances as will be addressed in these reasons.
It was accepted that this ground also needed to be disposed of prior to any consideration of the other grounds of appeal.
Did the primary judge excessively intervene and make pejorative comments during the course of the trial?
The test for excessive judicial interference is well recognised, and was summarised by Kirby A-CJ in Galea v Galea (1990) 19 NSWLR 263 at 281–282 as being an enquiry as to “whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair” (at [1]).
Additionally, the mother and the ICL identified the Full Court’s recent decision of Finch & Finch (2020) FLC 93-949 (“Finch”), where it was observed at [16] that the “number, frequency and duration of the judicial interventions will be relevant, as will their nature and context (including the stage of the trial), content and manner of delivery (including tone of voice)”, in an evaluation of whether interventions are excessive.
The first aspect of this complaint was that the primary judge curtailed otherwise responsive answers of the mother in cross-examination, and descended into the arena by cross-examining the mother himself. To demonstrate her assertion, the mother focused on a number of excerpts of the transcript (and less so on the context in which they were placed).
The first impugned interaction occurred within the first few minutes of the mother’s oral evidence on the first day of the second tranche of the trial. It was in the context of the father’s counsel asking the mother a series of questions about a document produced under subpoena by Hospital P, which recorded words to the effect of “[t]he mother raised concerns for alleged child abuse by the father” (Transcript 18 August 2022, p.40 line 8). When asked by the father’s counsel and then the primary judge how that comment came to be recorded in the hospital documents, the mother gave a series of unresponsive answers. She then asked the primary judge:
[THE MOTHER]: Did I answer the question?
HIS HONOUR: Absolutely not.
[THE MOTHER]: Okay.
HIS HONOUR: Go on, [the father’s counsel].
(Transcript 18 August 2022, p.42 lines 12–18)
It was conceded during the appeal hearing that the primary judge’s response was not wrong nor pejorative. The transcript lines that follow, which record the primary judge telling the mother to “stop” when she began speaking (not in response to any question put to her), do not reveal anything inappropriate about the primary judge’s conduct.
The next interaction identified by the mother during the appeal hearing to support her proposition took place on the following day, in the course of a somewhat tortuous exchange between the mother and the father’s counsel wherein the father’s counsel attempted to restrain the mother’s nonresponsive answers to a question put to her in cross-examination. After the father’s counsel unsuccessfully asked the mother to “stop”, the primary judge cautioned the mother that cross-examination was not “an opportunity to make speeches” (Transcript 19 August 2022, p.118 line 28). What followed was an unedifying interchange between the primary judge and the mother, wherein they interrupted one another and competed to be heard. When the primary judge successfully curtailed the mother, the following exchange took place:
HIS HONOUR: Go on, [the father’s counsel].
[FATHER’S COUNSEL]: Thank you, your Honour.
[THE MOTHER]: No, she answered the question. Can I answer the question, please?
HIS HONOUR: No, stop.
[THE MOTHER]: Okay.
HIS HONOUR: And if you don’t I will end your cross-examination, and you won’t have the opportunity to put in your case.
[THE MOTHER]: Yes, your Honour.
HIS HONOUR: Thank you.
[THE MOTHER]: You’re welcome.
HIS HONOUR: Go on.
(Transcript 19 August 2022, p.120 lines 11–31)
It was unfortunate that both the primary judge and the mother spoke over one another. The audio recording of the interaction revealed an obvious frustration on the part of the primary judge with the mother’s continued interjections, and on the mother’s part in not being able to say what she wanted to say. That said, it was later conceded by the mother during the appeal hearing that even if the primary judge’s intervention curtailed the mother from answering a question to her satisfaction at this point in the trial, she later gave her full evidence on the relevant topic in re-examination. We see no procedural unfairness arising from that course.
The final impugned interaction was described by the mother as an example of the primary judge “inappropriately [entering] the arena” by “taking over the cross-examination” (mother’s Amended Summary of Argument filed on 10 March 2023, paragraph 10).
That context was as follows. In the course of asking the mother questions about the child’s experience of supervised time with the father, the ICL took the mother to a note produced from the supervision agency dated 24 May 2021. The mother requested the use of an interpreter (notwithstanding her previous answers were given in English), and that request was acceded to. The interpreter requested that the question be repeated, and the mother said “you don’t have to. I got that, thank you”, and proceeded to answer the ICL’s questions without the use of the interpreter (Transcript 19 August 2023, p.142 lines 1–6).
When the ICL put to the mother her position (that the child was not coping with the supervised visits with the father) was inconsistent with other evidence from the supervising agency that the child was relaxed and happy at the visits, the mother became evasive and repeatedly did not answer the questions asked of her by the ICL. She instead began making self-serving, unresponsive statements. The ICL requested that she stop, identified to the mother her “completely contradictory” evidence, and asked for her to engage with the proposition put. The mother continued to make statements that were not responsive to the questions asked of her. The ICL’s attempts to have the mother engage with her simple questions extend across two pages of the transcript.
After the mother again failed to respond, and instead provided her own commentary on a different matter, the primary judge directed the mother to the question being asked of her by the ICL. The following exchange took place:
[THE MOTHER]: I believe the supervisor.
HIS HONOUR: Didn’t you believe the supervisors when they told you that?
[THE MOTHER]: Yes. I do believe that [the child] – I do believe. I see with my own eyes how she is brave with her father.
HIS HONOUR: Yes. I am not interested in what you see with your own eyes?
[THE MOTHER]: All right.
HIS HONOUR: [The ICL] put to you that the supervisors had told you that [the child] was having good, supervised visits with her father?
[THE MOTHER]: I believe that she was. I never doubted that - - -
HIS HONOUR: Thank you. Go on?
[THE MOTHER]: I just doubted the way she was behaving - - -
HIS HONOUR: Stop - - -
[THE MOTHER]: before and after.
HIS HONOUR: Stop. Please stop.
[THE MOTHER]: I have finished now.
HIS HONOUR: Please stop when you are asked to stop, ma’am.
THE WITNESS: Yes, your Honour.
HIS HONOUR: Go on.
(Transcript 19 August 2022, p.144 lines 1–13)
The primary judge’s intervention was not more than was necessary and appropriate to direct the mother’s focus to the thrust of the question asked of her by the ICL. The mother contended the primary judge’s statement was made in a condescending tone. The audio recordings do not support that contention.
When the mother then continued to divert answering the questions directly put to her, instead providing commentary and speaking over the primary judge, the following interaction occurred:
HIS HONOUR: Stop. I am speaking. You need to stop. Just because you - - -
[THE MOTHER]: I am listening, your Honour.
HIS HONOUR: - - - you say you are answering her question does not mean that you are. Please stop and wait for the next question.
[THE MOTHER]: Interpreter, please.
HIS HONOUR: Go.
[THE ICL]: The witness asked for an interpreter, your Honour.
HIS HONOUR: No. Ask your next question, thank you.
[THE ICL]:Sorry. Thank you, your Honour. Ma’am, your current proposal in relation to time should [the child] remain living primarily with you is that there should still be, I am suggesting to you, quite a restrictive regime for when [the child] will spend time with her dad?
THE [MOTHER]: Interpreter, please. No. Not all.
(Transcript 19 August 2022, p.145 lines 19–40)
This was the portion of transcript identified in and extracted from the mother’s Amended Summary of Argument. The issue as to the contended denial of the interpreter is addressed separately below. Insofar as this portion was extracted to demonstrate that the primary judge’s intervention was excessive, we are not satisfied it does so. Again, we listened to the audio recording of this interaction. The recording is wholly uneventful. It does not record a raised voice or a condescending tone on the part of the primary judge. More accurately, it reflects (and supports) the observations of the primary judge that:
82 I found the [mother] to be a particularly difficult witness – even accounting for her language difficulties and the occasional use of an interpreter. She was evasive, aggressive and more inclined to pontificate than to answer questions forthrightly and clearly. My impression is that she clearly understood she was unlikely to prove her allegations and so a retreat from her position might salvage a palatable outcome for her. I am satisfied that she was anxious to say anything to demonstrate that she believed the [father] posed no risk to [the child].
During the appeal hearing, counsel for the mother submitted that because these were child-related proceedings, the mother was entitled to say in the course of her oral evidence whatever she liked, whenever she wanted. That extraordinary contention is plainly contrary to the objects and principles of Pt VII Div 12A of the Act and in particular the requirements of s 69ZN(4) for trial judges to actively direct, control and manage the conduct of child-related proceedings. It is contrary to the relevant parts of the Evidence Act 1995 (Cth), which have application to child-related proceedings. This wholly unsupported contention is rejected.
The mother did not take us to any part of the transcript where the primary judge interrupted the mother in the course of giving responsive evidence. On a fair reading of the transcript, the mother’s evidence was often tangential and unresponsive, and required some effort by counsel and the primary judge to keep her on point. To the extent that the primary judge interrupted the mother, his interruptions were appropriate and proportionate to direct the conduct of the trial. On the occasions when the primary judge interrupted counsel’s cross-examination of the mother to ask questions himself, he did so in an attempt to have the mother answer questions responsively, or to ask questions that were evidently relevant to the determination.
The final category of interventions subject to complaint by the mother was broadly described as treatment of the mother’s counsel that was “variously hectoring, insulting, belittling, sarcastic and rude” (mother’s Amended Summary of Argument filed on 10 March 2023, paragraph 11). The various excerpts of the transcript upon which the mother relied to support her submission failed to do so. They were:
(a)Within the first few minutes of the father’s cross-examination, the primary judge asked the mother’s counsel about the relevance of a particular line of enquiry as to the father’s perceptions of the capacity of the child to adjust to living with him (Transcript 18 August 2022, p.14 lines 11–24). The exchange does not go so far as to be indicative of the primary judge preventing the mother’s counsel from cross-examining the father on relevant topics. We listened to the audio recording of this exchange. Again, the tone of the primary judge was unexceptional. It did not ground a finding that the primary judge was insulting or belittling towards the mother’s counsel.
(b)On two occasions when the primary judge directed to the mother’s counsel a comment to the effect of “you can start your cross-examination [of the father] whenever you wish” (Transcript 18 August 2022, p.14 line 28). The mother contended those comments carried an “implication that [the primary judge] has dismissed all of the questions” asked by the mother’s counsel “and answers given” thereto, up to that point (mother’s Amended Summary of Argument filed 10 March 2023, paragraph 12). The first comment was made within the first few minutes of the father’s oral evidence commencing, by which stage he had answered questions that did little more than require him to repeat the orders he sought. The second comment was made in the context of the mother’s counsel asking the father a range of broad questions, seemingly without particularity or sufficient foundation, as to his resistance to speak to the mother “in terms of the child’s medical needs and referrals” (Transcript 18 August 2022, p.24 line 25). Having regard to the cross-examination of the father immediately preceding the primary judge’s comment, we accept the ICL’s submission that a proper characterisation of the comment “as recorded [does] not lead to an implication that [the primary judge] has dismissed the cross-examination or the evidence that fell from it”, but rather that “he has paid sufficient attention to and had sufficient regard to what he has heard to form the view that it was not greatly assisting him” (ICL’s Summary of Argument filed on 24 April 2023, paragraph 20). While it would have been preferable for the primary judge to directly indicate to the mother’s counsel that the line of enquiry was of limited assistance, no unfairness arose from those comments.
(c)During cross-examination of the father, the primary judge cautioned the mother’s counsel as to putting serious controversial propositions to the father in vague and general terms. When the mother’s counsel put to the father that the parties were in a “domestically violent relationship in the past” (whatever that means), the primary judge rephrased the question himself with sufficient particularity, and said to the mother’s counsel “and if you’re not prepared to do it that way sit down” (Transcript 18 August 2022, p. 24 line 45 to p.25 line 17). It is significant that when the mother’s counsel then rephrased her questioning of the father with appropriate particularity, as promoted by the primary judge, the father made concessions about his behaviour which were contrary to his interests. The mother could not reconcile how the primary judge’s intervention, which assisted her counsel in achieving a concession from the father, was unfair or prejudicial to her case. The primary judge’s intervention was appropriate to ensure fairness to both the mother and the father in the context of this serious assertion.
(d)Finally, the mother asserted that the primary judge “intervened during the final submission of counsel for the [mother]”, and did not permit her to fully explore a matter that was later “determinative” of the relevant matter (mother’s Summary of Argument filed on 10 March 2023, paragraph 14). The transcript reveals that the complained of interruption by the primary judge was to correct a legally incorrect submission that “a change of residence to the father should only be ordered in circumstances where [the primary judge] is satisfied that the mother poses a significant or unacceptable risk to the child” (Transcript 30 August 2021, p.238 lines 5–8).
The mother did not demonstrate that the interventions of the primary judge prevented the mother from properly giving her evidence, or indeed her counsel from cross-examining the father. She did not establish that the interventions manifested an unfairness in the conduct of the trial and in the orders which resulted.
As a conclusion to her submissions on this ground, the mother’s Amended Summary of Argument recorded this:
15. It is submitted that excessive judicial invention as set out above should not be a matter of persistence or degree, but that such intervention should not be tolerated at all. It is trite to say that the standard that one walks past is the standard that one accepts….
(Mother’s Amended Summary of Argument filed on 10 March 2023, paragraph 15) (As per the original)
This submission was advanced without authority. It is a contention that conflicts with the Full Court’s decision in Finch (relied upon by the mother), which emphasised the need to assess both the nature and extent of the judicial interventions in order to determine whether there is a real danger that the trial was unfair. Reckless contentions such as these, made absent foundation and contrary to established principles, ought not be made.
Did the primary judge’s denial of an interpreter create procedural unfairness?
During the appeal hearing, the mother accepted that her entitlement to use an interpreter arose where she was not able to understand a question, or give her answer in English. The mother’s use of the interpreter was on an ad hoc basis; the transcript records that when the primary judge invited the mother to access the interpreter on a number of occasions over the course of the trial, the mother accepted the assistance of the interpreter on some occasions and on others refused. It reveals that the mother understood and was capable of responding to the vast majority of questions put to her in English.
This complaint arose from the same extracted portion of the transcript recorded at [54] of these reasons. As is self-evident from a plain reading of that excerpt, and as was conceded by the mother during the appeal hearing, the interaction did not record that the mother was being asked a question for which she was denied the use of an interpreter. The direction of the judge was made of the ICL to ask her next question. This reading of the transcript is supported by the audio recording. The transcript then records, unequivocally, the ICL asking the next question and the mother answering in assured English.
This aspect of the ground had no merit, and was never available.
Did the primary judge’s admonishment of the mother create procedural unfairness?
This complaint arose in the Amended Notice of Appeal but was not addressed in the mother’s Amended Summary of Argument. It was not addressed in oral submissions. It is rejected.
Did the primary judge’s denial of the mother’s request to take a break create procedural unfairness?
The mother made no submission in her Amended Summary of Argument to elaborate how she was denied procedural fairness because of the primary judge’s refusal to permit her to take a break.
In oral submissions, the mother took the Court to an excerpt of the transcript which recorded the mother asking the primary judge to take a break during her cross-examination towards the end of the day. The primary judge initially queried why the mother needed a break in circumstances where a previous break occurred about one hour earlier. Upon the mother becoming emotional, Court was adjourned for the day moments later (Transcript 18 August 2022, p.100 lines 15–35). We listened to the audio recording of this interaction. There was nothing remarkable about it. It is not apparent how the mother was denied procedural unfairness by being questioned about her need for a break, which was quickly acceded to.
This aspect of the ground had no merit.
Conclusion as to procedural fairness
The mother’s various complaints about procedural unfairness are rejected. Ground 6 fails.
Ground 9
This ground was articulated as follows:
The primary judge erred in the exercise of his discretion by applying the wrong principle in finding at [88] that the [mother] posed a ‘high’ risk (as opposed to an unacceptable risk as differentiated at [49]) that the child “will suffer psychological or emotional harm in the [mother’s] care because the [mother’s] conduct will deprive her of a meaningful relationship with her father, or otherwise harm her understanding of him in a way that will harm her”, and is otherwise not open on the evidence.
(Mother’s Amended Summary of Argument filed on 10 March 2023, p.10)
The complaint made by way of this ground shifted during the course of submission during the hearing of the appeal. It commenced as a contention that the primary judge had incorrectly applied the principles articulated by the High Court in M & M (1988) 166 CLR 69 (“M & M”) and the Full Court in Isles& Nelissen (2022) FLC 94-092 (“Isles”). During the appeal hearing, the mother conceded that the primary judge had done exactly what those authorities required him to do, in that he identified a risk that the child would “suffer psychological or emotional harm in the [mother’s] care”, determined its magnitude as being “significant”, before finally assessing the likelihood of it occurring as “high” (at [88]).
The ground thereafter morphed to be a challenge to the factual findings underpinning the primary judge’s risk assessment. The mother’s Amended Summary of Argument recorded that:
59.…there are two findings by the primary judge that are not open on the evidence. Firstly, that the [mother] still holds a belief that the [father] will either sexually abuse or physically harm the child at [83]; and secondly, at [84] and [87] that the child has been exposed to these beliefs of the [mother].
60. It is submitted that in the present matter, the primary judge has failed to give ‘real and substantial consideration to the facts of the case’ as mandated in Napier. His Honour has made no factual findings – based on any evidence – that the [mother] has exposed the child to any harm, psychological or emotional; nor, any factual finding – based on any evidence – that the [mother] has exposed the child to any belief that the child is at an unacceptable risk of harm from sexual and physical abuse by the [father]… In the absence of any direct evidence that the [mother] exposed the child to such harm or beliefs, it is submitted that any reliance on the purely speculative evidence at [87] by… the family consultant that, ‘facial expression - including a raised eyebrow, a smile or smirk, and tone of voice that “might convey feelings and views of the other parent”’ is ‘glaringly improbable’ or ‘contrary to compelling inferences’; and, otherwise outside her knowledge and capability.
(Mother’s Amended Summary of Argument filed on 10 March 2023, paragraphs 59–60) (Footnotes omitted) (As per the original)
The first factual finding challenged by the mother was the primary judge’s assessment of what he saw to be a “central” issue in the case, being as to the veracity of her stated belief that the child was no longer at risk of harm in the father’s care (at [6]). It was arrived at after a detailed and meticulous examination of all the evidence, including findings that the mother:
(a)Initially acted protectively so as to not expose the child as to possible unacceptable risk after receiving advice from the child’s general practitioner; and then
(b)After receiving information and advice from a large number of specialised health, child protection, police and other experts that the father did not pose a risk to the child, did not abandon her belief as to the father posing such risk.
The extensive foundations in the primary judge’s reasons for concluding that the mother’s actions and statements comfortably established the finding as to her entrenched views on this subject matter and as to it not being accepted that she had abandoned her belief as to the father posing a to the child a risk of harm of sexual, physical harm or other abuse or violence are recorded at [56]–[83].
That conclusion was based in part upon the primary judge’s assessment of the mother as she gave her evidence, and of her demeanour and credibility. While his assessment of the mother’s credibility was also reliant upon inferences and conclusions drawn from other aspects of the evidence, the assessment of her presentation in the witness box played a significant role.
In assessing challenges to factual findings, an appeal court on rehearing is bound to conduct a real review of the evidence (Lee v Lee (2019) 266 CLR 129 at [55] per Bell, Gageler, Nettle and Edelman JJ) and to consider whether the factual finding under challenge was wrong (Edwards v Noble (1971) 125 CLR 296 at 304-307 per Barwick CJ). In conducting such a real review the appeal court is to give proper allowance for the advantages enjoyed by the trial judge (Fox v Percy (2003) 214 CLR 118 at [23] per Gleeson CJ, Gummow and Kirby JJ) and in examining conclusions that “are likely to have been affected by impressions about the credibility and reliability of witnesses” to consider whether the findings reached are “glaringly improbable” or “contrary to compelling inferences” before disturbing them.
Here the specific challenge to the finding that the mother continued to hold the belief that the father would harm the child was that it was not open on the evidence. That challenge is not made out. There was significant evidence supportive of such a conclusion, and, where a part of that support was derived from the assessment of the mother, no matter was identified to suggest that the finding was glaringly improbable or contrary to compelling inferences.
As to the second finding, being that the child has been exposed to the mother’s beliefs that the father would harm the child, the mother directed the complaint to “the absence of any direct evidence that the [mother] exposed the child to such harm or beliefs”, and that the evidence of the family consultant was “purely speculative”.
However, this challenge misapprehends the relevant finding of the primary judge. At no stage did the primary judge make such a finding that the child has been exposed (implicitly overtly) to such beliefs. It was anchored the evidence of the Family Consultant at [84]–[88] of the reasons, the primary judge’s conclusion was as to risk flowing from the child’s “constant exposure to a mother who believes her father has harmed her”.
The factual findings as made support the conclusions of the primary judge. The ground fails.
Ground 10
The ground is particularised as follows:
That the primary judge erred in the exercise of his discretion by making inconsistent orders amounting to a non-sequitur with respect to a change of residence order (order 3) following where he made concurrent orders giving the [mother] equal shared parental responsibility (order 2) and significant and substantial unsupervised time with the child (order 4) in not providing adequate reasons at [89] supporting a change in residence to mitigate a risk or in explaining the consequences of such a non sequitur in the orders that are referrable to a legislative pathway as provided in s 60CC.
(Mother’s Amended Summary of Argument filed on 10 March 2023, p.16) (As per the original)
Likewise Ground 9, this ground shifted during the course of the mother’s oral submissions. We therefore had some difficulty pinning down the complaint made therein.
The complaint in the ground arose from the primary judge:
(a)Finding that the mother did not have the capacity to meet the emotional and psychological needs of the child; and
(b)Notwithstanding that finding, making an order sought by the mother that the parents have equal shared responsibility for the child; and
(c)Having made such an order, nonetheless changing the primary residence of the child from the mother’s home to the father’s and making orders for the child to spend substantial and significant unsupervised time with the mother.
We asked the mother whether the complaint was, in reality, directed to the adequacy of the primary judge’s reasons for changing the primary residence of the child, or to a failure to give sufficient weight to relevant evidence. The mother said it was both.
Insofar as this ground asserted, as was developed by the mother during the appeal hearing, that the issue was in the adequacy of the reasons given by the primary judge for making the orders he did, that is rejected. The mother conceded that the primary judge at [89]–[91] undertook the very exercise at the gravamen of the ground, being identification of the nature of the risk and how that risk was to be ameliorated or mitigated to best promote the interests of the child. The reasons record:
89. This is not a no-time case – no one suggests the appropriate protection for [the child] is that she spend no time with the [mother]. However, [the child] living primarily with the [father] would reduce her exposure to any negative view of him perpetuated by the [mother]. She would have her own view of him, which I anticipate would be contrary to the [the mother’s] view. The opportunity will still exist for the [mother] to misinterpret [the child’s] words and actions and that will cause instability, but [the child] will have the opportunity to test the [mother’s] messages to her against her own experience of the [father].
90. I have considered whether an equal time arrangement would suit [the child] but, even though there would be a balancing of time between the two households, I consider that such an arrangement presents too great an opportunity for the [mother] to impose upon [the child’s] relationship with the [father]. There would be too great an opportunity for the [mother] to expose [the child] to her corrosive views of the [father].
91.It should be apparent from the foregoing discussion that I consider that the [mother] has an impaired capacity to meet [the child’s] emotional needs and in particular her need for a proper and unhindered relationship with the [father].
It was not “incongruent” (as was submitted by the mother) for the primary judge, having found the mother’s capacity to meet the child’s needs was impaired, to make orders to ameliorate the possibility of harm arising from that impaired capacity. The reasons adequately elucidate why the primary judge made the orders that he did, having carefully balanced the competing proposals of the parents and the ICL, and concluding that the identified risk would be best ameliorated by the child living with the father and having decreased time with the mother. Any complaint as to a failure to give adequate reasons could not be maintained.
The mother contended that the primary judge did not make the “least intrusive” orders available to him and that he was obliged to do so. That is not a requirement mandated by the Act for trial judges making parenting orders (see s 60CA and s 60CC). The contention is rejected.
It was next submitted by the mother that it was “incongruous” for the primary judge to inflict a “certain harm” on the child (by removing her from her primary carer) to avoid a “possible harm”.
Insofar as this ground morphed to be a challenge to the weight assigned by the primary judge to the considerations of the harm that the child might face either remaining in the mother’s care, or transitioning to the father’s care, it is also rejected. Such challenges face a high bar, and require an appellant to effectively demonstrate that the outcome is plainly wrong or unreasonable to achieve appellate intervention (Gronow v Gronow (1979) 144 CLR 513).
In reality, the complaint made by the mother was that the weight given by the primary judge to the various contentions made by the parties during the hearing was unreasonably or plainly wrong because her contentions were not given decisive weight. This complaint is no more than a submission that the primary judge erred by not accepting the mother’s case, and the ground is an invitation to substitute our view for that of the primary judge. That does not amount to error. Different judges can quite properly achieve different outcomes on the same evidence (CDJ v VAJ (1998) 197 CLR 172 at 218–219).
It is the task of the trial judge to evaluate, weigh and determine the parties’ various contentions. It is not an error to favour one party’s case over another, unless an error of the kind identified at [90] above is established. It has not been. No mildly persuasive, let alone compelling, submission was made by the mother to support this ground.
Ground 10 fails.
Ground 13
The mother’s Amended Summary of Argument recorded this ground as follows:
Alternatively, in the absence of specific reference in the reasons for judgment to support the change of residence (order 3) to any of the matters set out in s 60CC, if the primary judge has considered some or all of such matters, then the reasons for judgment are inadequate because:
a) neither the [mother] nor the Full Court can ascertain the reasoning upon which the decision is based; and
b) to the extent that any of the primary or additional considerations appearing in s 60CC were taken into account by the primary judge the reasons for judgment do not show or explain the weight that each of those considerations played in the ultimate outcome; and as a result,
c) justice is not seen to have been done.
(Mother’s Amended Summary of Argument filed on 10 March 2023, p.18)
It was conceded in the appeal hearing, although the ground was not abandoned, that there is a raft of s 60CC considerations which all feature prominently in the reasons of the primary judge. Many of the s 60CC factors were uncontroversial. The issues that are joined at trial dictate which s 60CC factors are relevant. The issues that were joined as being relevant to the exercise of discretion at trial to promote the best interests of the child were focused on:
6. Central to, although not determinative of the outcome in this case then, is:
(a) a finding about the authenticity of the [mother’s] now stated belief that [the child] is no longer at risk of sexual abuse from her father; and
(b) a finding about the [mother’s] now stated belief that [the child] is no longer at a more general risk of physical harm from her father.
…
91. It should be apparent from the foregoing discussion that I consider that the [mother] has an impaired capacity to meet [the child’s] emotional needs and in particular her need for a proper and unhindered relationship with the [father].
…
96. It will be an upheaval for [the child] to change her primary residence. I have no doubt it will cause upset, disruption and distress to her in the short-term. Nonetheless, when this was put to the family report writer her evidence was that a change of residence was likely to be successful, given the relationship between [the child] and her father. I accept that evidence.
97. An arrangement whereby [the child] lives predominantly with the [mother] will deliver her more benefits than a proposal where she remains primarily in the [mother’s] care. For the reasons I have discussed above, although there are some disadvantages to [the child] residing with her father in the short term, I consider that in the longer term her interests will be better served. I am satisfied that it is more likely that she will have relationships with both of her parents that are more stable and less disrupted than if she remained living with the [mother].
The requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads to a particular conclusion (see SCVG & KLD (2014) FLC 93-582).
In Bennett and Bennett (1991) FLC 92-191 the Full Court said that the adequacy of the reasons will depend upon the circumstances of the case. The reasons in this matter of the primary judge expose in chapter and verse the pathway leading to the determination of the points critical to the contest between the parents, including importantly, why the case of the mother was not accepted.
The ground fails.
CONCLUSION AND COSTS
The mother conceded that if the appeal failed, a costs order should be made against her in the sum sought by the father and the ICL. We shall so order.
The appeal will be dismissed.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Gill & Campton JJ.
Associate:
Dated: 18 May 2023
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