Shan & Prasad
[2020] FamCAFC 189
•6 August 2020
FAMILY COURT OF AUSTRALIA
| SHAN & PRASAD | [2020] FamCAFC 189 |
| FAMILY LAW – APPEAL – PARENTING – Where the primary judge was not satisfied there had been a sufficient change in circumstances warranting re-litigation of final parenting orders – Where those parenting orders provide for no time to be spent between the children and the appellant father – Where subsequent expert reports and affidavit evidence displace a prior psychiatric assessment of the father and predictions of attitude and behaviour – Whether it was open for the primary judge to reject the expert opinions without cross-examination – Where the psychiatric evidence and evidence of the father’s current circumstances should have permitted the primary judge to find that the father had established a sufficient change in circumstances to justify embarking on a hearing – Appeal allowed – Costs certificates granted. |
| Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9 |
| Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152 Miller & Harrington (2008) FLC 93-383; [2008] FamCAFC 150 Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84 Shan & Prasad [2018] FamCAFC 12 SPS and PLS (2008) FLC 93-363; [2008] FamCAFC 16 |
| APPELLANT: | Mr Shan |
| RESPONDENT: | Ms Prasad |
| FILE NUMBER: | SYC | 6654 | of | 2018 |
| APPEAL NUMBER: | EAA | 70 | of | 2019 |
| DATE DELIVERED: | 6 August 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Watts JJ |
| HEARING DATE: | 2 March 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 July 2019 |
| LOWER COURT MNC: | [2019] FamCA 408 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Lethbridge SC |
| SOLICITOR FOR THE APPELLANT: | Armstrong Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Alexander |
| SOLICITOR FOR THE RESPONDENT: | Acorn Lawyers |
Orders
The appeal be allowed.
The order made on 3 July 2019 be set aside.
The Court being satisfied that there has been a sufficient change of circumstances to warrant a reconsideration of the parenting orders the appellant father’s Initiating Application filed on 18 October 2018 be listed for a directions hearing before a Judge of the Family Court of Australia other than the primary Judge.
The Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father in respect of the costs incurred by him in relation to this appeal.
The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent mother in respect of the costs incurred by her in relation to this appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Shan & Prasad has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 70 of 2019
File Number: SYC 6654 of 2018
| Mr Shan |
Appellant
And
| Ms Prasad |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Shan (“the father”) appeals from an order made by a judge of the Family Court of Australia on 3 July 2019, dismissing the father’s Initiating Application filed on 18 October 2018. The father’s Initiating Application sought to vary existing parenting orders which do not permit him to spend time with the two children of his marriage to Ms Prasad (“the mother”), on the basis of changed circumstances in accordance with the principle in Rice and Asplund (1979) FLC 90-725.
The mother opposes the appeal.
Background
A detailed chronology of events can be found in the primary judge’s reasons from [16]–[57]. That chronology is uncontroversial, and this Court adopts the same. From that chronology, the relevant background for the purposes of the appeal is as follows.
The father was born in 1977 and the mother in 1982, in India.
They were married in November 2005 by means of an arranged marriage.
In 2006, the parties moved to Australia where their children were born, X in 2010, and Y in 2012 (“the children”).
Both parties are health care workers.
After the parties’ separation in January 2013, the children remained living with the mother.
On 10 May 2013, the father applied for an Australian passport for the younger child without the knowledge or consent of the mother, and in which application he forged the mother’s signature. Further, on 18 June 2013, the father lodged an urgent visa application with the Indian Embassy to permit the children to travel without the mother, by forging the mother’s signature. The father was granted the urgent visa and subsequently travelled to India with both children on 24 June 2013, without the mother’s knowledge or consent.
Whilst in India, the father commenced proceedings in the Court at City M on 25 June 2013 seeking orders for the children to live with him in India.
On 8 July 2013, the mother commenced urgent recovery proceedings in the Federal Circuit Court of Australia, and subsequently flew to India to retrieve the children. The mother also applied to the High Court of M in India for the recovery of the children.
After a number of interim orders were made on 6 August 2013, the High Court of M ordered that the children be returned to live with their mother.
The Federal Circuit Court proceedings continued, and orders were made for the children to live with the mother and spend supervised time with the father.
A family report of Dr K, a court-appointed single expert, was completed on 30 April 2014, and released to the parties on 6 May 2014.
On 20 October 2014, the father pleaded guilty to giving false/misleading information on an Australian travel document, was placed on a two year good behaviour bond in the sum of $1,000, and ordered to attend counselling with a psychiatrist, Dr F.
On 5 August 2015, the children ceased spending time with the father pursuant to court orders suspending that time until the final hearing. The father has not spent time with the children since.
In late 2015, the father remarried and he has a daughter to that marriage who was born in 2017.
The parenting and property settlement trial occurred over six days; for four days in December 2014, then on two days in September 2015. Dr K gave evidence during the second tranche of the hearing, some 17 months after he saw the family, and by which time the father was no longer represented.
On 22 December 2015, Judge Altobelli made final parenting and property settlement orders. The parenting orders provided, inter alia, for the mother to have sole parental responsibility for the parties’ two children (Order 2), for them to live with her (Order 3) and to spend no time with the father until they each attain the age of 18 years (Order 6). The orders also provided for the mother to be at liberty to relocate with the children within or outside of Australia (Order 4). The only communication between the children and the father permitted by the orders is through letters up to twice per year (Order 7).
The orders were appealed by the father and the appeal was successful in part (Shan & Prasad [2018] FamCAFC 12). The Full Court made orders on 1 February 2018 remitting the property settlement proceedings for rehearing, and slightly amending the wording of some of the parenting orders. Order 4 was varied so that the words “or outside” were deleted, and Order 6 varied so that the words “until they each attain the age of 18 years” were deleted. Otherwise, the parenting orders remained intact.
On 18 October 2018, the father filed an Initiating Application seeking parenting orders which entailed a re-litigation of the proceedings. His application was listed before the primary judge to determine the preliminary threshold issue in relation to whether there had been a sufficient change in circumstances to warrant varying the parenting orders.
Since the original judgment of 22 December 2015, two reports by Dr A, a consultant psychiatrist, were completed for the purposes of the proceedings, and are dated 28 June 2018 and 14 June 2019 respectively.
Since June 2018, the father has worked with his own treating psychiatrist, Dr B, who produced a report for the purposes of the proceedings, dated 5 March 2019.
These subsequent psychiatric reports were in evidence before the primary judge.
On 25 June 2019, the primary judge heard the threshold argument on the papers, without cross-examination of the parties or the father’s expert witnesses, and on 3 July 2019 found that there was no sufficient change in circumstances which warranted the reopening of the parenting proceedings. The father appeals from that decision.
The Appeal
There are four grounds of appeal raised in the father’s Amended Notice of Appeal filed on 26 August 2019. However, it is readily apparent that Grounds 3 and 4 raise aspects of the very same issues raised in Ground 1, and thus we will address those three grounds together. That will then leave Ground 2 as a stand-alone ground.
Ground 1
That the [primary] judge erred in finding at [sic] that there had been no sufficient change in circumstances to permit the [father’s] case to proceed when:
a) There was contemporaneous psychiatric evidence, unchallenged by cross-examination, that the Father’s mental state was no danger to his children, and
b) That the other elements constituting risk as previously found where [sic] no longer relevant or if relevant, capable of being reasonably mitigated.
Ground 3
That the [primary] Judge erred, in the absence of cross-examination of the expert psychiatrists called in the Father’s case or other contrary expert opinion in finding:
a) That it was open to her Honour to reject either of their opinions as to the Father’s mental health; or
b) That it was open to her Honour to consider what may or may not have been said or provided to them by way of matters of history where the relevant fact or circumstance was included in documents provided to each of them.
Ground 4
That the [primary] judge erred in finding on the evidence before her that the unchallenged evidence of the Father’s
a) Good relationship with his present wife and their child;
b) Good relationship and high standing with his immediate work colleagues;
c) Integration into his work and local community; and
d) The father’s compliance with the [court’s] existing Orders compared with the Mother’s failure to comply with those orders at all times
since the first trial and judgment in December 2015 all being contra indicated by Dr K were not of themselves sufficient to permit the father’s Application to proceed to hearing.
As to the first limb of Ground 1 and Ground 3, fundamental to Judge Altobelli’s determination that the children should not spend any time with the father, was the evidence of Dr K, the single expert, who gave evidence at the parenting hearing in 2015. Dr K’s assessment of the father was that his attitude and behaviour towards the mother revealed “significant personality dysfunction, with prominent anti-social and narcissistic personality traits” (Expert Report of Dr K dated 30 April 2014, paragraph 201). Dr K further found that:
203.… Even if the father’s aberrant behaviours have been limited to the sphere of relations with the mother and children, this is predictive of the continuation of similar behaviours within those relationships and future partner and parenting relationships.
Consequently, Judge Altobelli found that “the need to protect the children from the adverse consequences of their father’s personality dysfunction is greater than any benefit to them of having a meaningful relationship with him” (at [135] of the reasons for judgment dated 22 December 2015) and further, that the father’s “personality dysfunction makes it very difficult for him to understand, let alone meet the children’s needs, quite apart from the issues of risk that the dysfunction provides for the children” (at [148] of the reasons for judgment dated 22 December 2015).
Another prominent finding informing his Honour’s decision that there should be no time spent between the children and the father, was the father’s lack of insight into his own behaviours towards the mother and children (see [72], [93], [150] and [153] of the reasons for judgment dated 22 December 2015).
The primary judge opined at [110]:
If the father still has the same or a similar attitude to what he did, as expressed to Dr K, there has been no change which will have diminished the risks to the children and despite other positive changes he still is the same risk to the children now that he was at that time.
In determining whether the father had changed his behaviour and attitude since Dr K’s assessment, the primary judge turned to consider the evidence of the two psychiatrists relied on by the father. The first was Dr A, a consultant psychiatrist who completed two reports, and the second was Dr B, the father’s treating psychiatrist who the father had engaged with since June 2018.
As the father submits, neither Dr A nor Dr B diagnosed the father with having anti-social and narcissistic traits as previously found by Dr K. In both of Dr A’s reports dated 28 June 2018 and 14 June 2019 respectively, Dr A diagnosed the father as having a “major depressive disorder” (Psychiatric report of Dr A dated 28 June 2018, page 11). The second report was done because it was necessary to provide Dr A with the opportunity to consider the report of Dr K (which was unavailable to Dr A at the time of the first report). However, Dr A’s opinion did not alter in his second report. He opined as follows in his first report:
I note the diagnostic possibility of narcissistic and antisocial personality traits raised by ‘Dr K’, referred to in the collateral material. Based upon the information currently available, in my view, there was no significant evidence to conclude that [the father] has endured pervasive and persistent personality characteristics consistent with an antisocial and narcissistic personality construct. However, I note the potential discrepancies between [the father’s] account, and the alleged inappropriate behaviour towards his wife discussed in the collateral material. It is a matter for the factfinder to establish the reality of the situation. I would be willing to review my opinion if inconsistent information is made available.
Regarding [the father’s] offending behaviour in 2013, when he travelled to India with the two children unbeknownst to [the mother] – clearly this is problematic behaviour, which would have had wide-ranging deleterious sequelae. However, I did not elicit any clear evidence to conclude that this was set in the context of repeated deceitful and duplicitous behaviour. During my two interviews, [the father] accepted the wrongfulness of his behaviour, and expressed regret for having done so. I understand he has no additional criminal history. The account of his current wife, reports from his previous treating psychiatrist, and the character reference suggest adaptive and well functioning behaviour, and do not suggest a pattern of maladaptive behaviour.
(Psychiatric report of Dr A dated 28 June 2018, page 11) (Emphasis added)
Similarly, Dr B, in his report of 5 March 2019, assessed the father as not then attracting a diagnosis consistent with the diagnosis of Dr K. He opined at page 7 of his report that:
I have not identified sufficient evidence to warrant diagnosis of narcissistic or antisocial personality disorder. Personality disorders are pervasive and enduring patterns of maladaptive behaviour and inner experiences (DSM V 5). Personality traits and disorders are not limited [to] one domain of functioning and do not suddenly appear in adult life. The information from [the father’s] current wife contradicts Dr K’s opinion that any aberrant behaviours specific to the relationship with [the mother] and children, were predictive of the continuation of similar behaviours within those relationships and future partner and parenting relationships.
(Psychiatric report of Dr B dated 5 March 2019, page 7) (Emphasis added)
Dr B also opined in his report that the father’s “depressive symptoms were largely in remission… [h]e was complying with his psychiatric treatment” (Psychiatric report of Dr B dated 5 March 2019, page 6).
In considering the reports, her Honour found that the history given by the father to each psychiatrist at the interviews demonstrated the father’s ongoing criticism of the mother, and attempts to highlight her alleged mental health history (at [112]–[115] and [129]). Her Honour also found that the father had not given an exact recount of the historical facts to the experts, including the facts surrounding the father’s travel to India, his failure to hand over the children’s passports to the mother, the Indian court proceedings, and the fact that the father was ordered to engage Dr F as part of his criminal conviction (at [116]–[118] and [130]–[132]). The father’s recount to the psychiatrists informed her Honour’s finding that the father continued to lack insight into his behaviour, and her Honour, in effect, discounted the experts’ opinions based on the father’s narrative.
However, it must be noted that each of the psychiatrists were provided with copies of Judge Altobelli’s reasons for judgment dated 22 December 2015, and the Full Court’s reasons for judgment dated 1 February 2018. Thus, the findings of fact in those judgments were available to the psychiatrists at the time of their reports. Indeed, Dr A refers to the “potential discrepancies” between the father’s account to him, and the findings made in the judgments, on page 11 of his report.
The father submits that with a hearing of this nature, namely where the parties agreed that there would be no testing of the evidence, including that of the two psychiatrists, and where that evidence should then be taken at its highest, it was not open to the primary judge to challenge the opinions of the two psychiatrists. He says that it was:
… not open to [her Honour] to opine as she did as to what may or may not have flowed from findings by the [primary] judge or opinions expressed by Dr K on the opinions expressed by either [psychiatrist] as reported when those matters were not put to them.
(Father’s Summary of Argument filed on 18 October 2019, paragraph 2.8).
We accept that submission in this case.
As to the second limb of Ground 1 and Ground 4, namely the other factors constituting risk being no longer relevant or sufficiently mitigated, her Honour looked to the father’s own affidavits filed respectively on 20 May 2019 and 18 October 2018, and the affidavits of the father’s current wife and work colleague. Her Honour recognised that “things are going well both professionally and personally” for the father in his present life (at [148]) and that the evidence from the father’s current wife and his work colleague are supportive of the father’s positon that he does not exhibit aberrant attitudes and behaviours towards similar relationships (at [106]). However, her Honour’s issue with the father’s affidavit evidence was that she could find “no evidence of contrition for what [the father] perpetrated upon [the mother] and his children… nor… ‘insight and willingness to change’” (at [149]). The only evidence of remorse her Honour noted was a sentence in the father’s affidavit filed on 18 October 2018 at paragraph 13, where he stated “[o]n reflection, my behaviour was a mistake and I appreciate the significance of the wrongdoing in travelling to India without the [m]other’s knowledge or consent”. As to this, her Honour says:
151.That sentence, the only sentence of any acknowledgement of the significant negative consequences of his actions tells me the father still has the same attitude to the mother, lack of insight into the consequences for her and the children of what he had done and has no ability to see from [the mother’s] point of view the consequences of his actions. There has been no change on the most significant issue that weighed on Dr K’s mind namely the father’s behaviour towards and attitude to the children’s mother. It remains today as it was in 2013/2014. To cast his actions in 2013 as a “mistake” gives me no comfort he has changed. Why was it a mistake because he was caught? I do not know. As far as his relationship with the mother is concerned the risk the father’s personality traits exposed the children to in 2013 remain in 2019.
…
153.Coupled with his continuing to lay blame at the mother’s feet for his conduct by referring to the mother’s mental health issues and her behaviour towards him to both his psychiatrists is further evidence of his lack of change…
The father submits that the unchallenged evidence of his current wife and his work colleague, which evidence was inconsistent with the speculated scenario painted by Dr K (referred to above at [27]), along with the evidence of the father’s developed strong standing and connection with the local community, are factors which would support a finding of the father’s change in behaviour, and should have permitted her Honour to allow the threshold application.
It must not be forgotten that her Honour heard the threshold question as a preliminary issue on the papers, and the father’s evidence, particularly his expert evidence, is unchallenged. On that basis, the evidence of the father had to be accepted at its highest, and as Warnick J said in SPS and PLS (2008) FLC 93-363 at [81] and [84], the essential question to be asked is, assuming the evidence of the father is accepted, are the “new events” sufficient to provoke a new enquiry (see also Miller & Harrington (2008) FLC 93-383 at [105], noting that an alternative formulation of the question has been propounded by the Full Court in Marsden v Winch (2009) 42 Fam LR 1 at [58] with the emphasis on the establishment of a prima facie case of change of circumstances).
Here, the unchallenged current psychiatric evidence disposes of the previous diagnosis and predictions as to the father’s attitudes and behaviours, as does the evidence of the father’s current wife and his work colleague. We consider that this evidence was enough for her Honour to make a finding, at a preliminary stage, that there had been a sufficient change in circumstances to warrant re-litigation of the parenting issues. The question of whether the father had in fact changed his attitude and behaviour, and as to any doubt as to the opinions of the two psychiatrists, might be the subject of an ensuing trial, but are not matters for the threshold hearing where there was no cross-examination of the parties or any witnesses, and where her Honour proceeded on the papers.
In these circumstances we find merit in these grounds of appeal.
Ground 2
That the [primary] judge erred in that she misconceived the nature of the psychiatric risk previously identified by Dr K and further erred in finding that the primary question for her to determine was whether the Father’s attitude and behaviour towards the Mother had changed.
At [107], the primary judge says this:
However, I have formed the view that Dr K’s assessment, albeit an hour and a half only, was based upon his conduct, behaviour and attitude towards [the mother] who will always be the mother of his children. The primary question for me is then has this behaviour and attitude changed? For he cannot deny his behaviour to her was deceitful, dishonest, and criminal.
The father argues that the basis of the risk as identified by Dr K was the father’s “psychiatric diagnosis from which the future consequences damaging to the children was said to flow” (Father’s Summary of Argument filed on 18 October 2019, paragraph 2.13). Absent that diagnosis (as was the evidence of the subsequent psychiatrists), the father submits that there is no danger that can be pointed to that would preclude a re-introduction of the father into the children’s lives. Thus, the father submits that the primary judge erred in focussing solely upon his attitude towards the mother, as this was only one of the many relevant factors to be taken into account, and in any event, it could not be determinative given the diagnosis of Dr K was no longer apt, and his predictions based on that diagnosis were inconsistent with the evidence before her Honour.
The mother submits that the father’s reliance upon the two psychiatrists’ reports to portray his changed behaviour is in fact erroneous, as these reports do not speak to change, but rather challenge a “diagnosis”, and further, the foundational history relied on in the reports is at odds with the findings made by Judge Altobelli. The risk to her wellbeing and therefore to the children was one of the risks identified by the Full Court (at [57] of the reasons for judgment dated 1 February 2018). Mitigation of that risk would involve the father demonstrating a change in his attitude towards the mother and to support her role. However, as the primary judge found, the father continued to criticise the mother and undermine her role (at [95]).
Again though, we accept the submissions of the father. The emphasis on the father’s attitude to the mother has caused her Honour’s discretion to miscarry, given the unchallenged evidence of the two psychiatrists, the father’s current wife, and his work colleague.
Accordingly, we also find merit in this ground of appeal.
Conclusion
Having found merit in all of the grounds of appeal, the appeal will be allowed and the order made on 3 July 2019 will be set aside. The father sought that in the event the Court is satisfied that there has been a sufficient change in circumstances, that the matter be remitted for hearing. However, it would not be a case of remission, but rather, listing the father’s Initiating Application for a directions hearing before a judge other than the primary judge, to restart the process leading to a hearing.
The mother agreed that that should be the outcome of the appeal if it was to be allowed. Having considered the evidence that was before the primary judge, we find that the father has established a sufficient change of circumstances to justify embarking on a hearing, but our finding in relation to the sufficiency of the change in circumstances is not to be taken as pre-empting what the judge who hears the matter might find.
Costs
In the event the appeal was allowed, the father sought his costs, but if the appeal succeeded on a question of law, he did not press his application for costs, and instead sought a costs certificate, as did the mother.
The appeal is being allowed on a question of law, and given that no order for costs will be made, it is appropriate for costs certificates to be issued pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Watts JJ) delivered on 6 August 2020.
Associate:
Date: 6 August 2020
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