SHAW & SHAW
[2020] FamCAFC 80
•9 April 2020
FAMILY COURT OF AUSTRALIA
| SHAW & SHAW | [2020] FamCAFC 80 |
| FAMILY LAW – APPEAL – PARENTING – Whether the primary judge erred by accepting that it was in the child’s best interests to have a meaningful relationship with the father and by not accepting that the father posed a risk of harm to the child – Where a determination of the level of risk could not be made at the interim hearing – Where the primary judge nevertheless mitigated those alleged risks by making orders protecting the child – Where the primary judge did not err by accepting expert evidence that the child would benefit from a relationship with the father – Appeal dismissed – Order dismissing the Independent Children’s Lawyer’s application for costs against the mother. FAMILY LAW – APPLICATION IN AN APPEAL – Dispense with transcript – Where there was no need to dispense with providing the transcript as it was obtained for the hearing – Application dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – Adduce further evidence – Extension of time to file a Summary of Argument and List of Authorities – Oral application to adjourn the appeal – Where the mother sought to adduce a further transcript – Where the transcript is likely irrelevant to the appeal – Where the interests of justice do not require the hearing to be delayed – Application dismissed. |
| Family Law Act 1975 (Cth) s 60CC and s 117 |
| Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 Deiter & Deiter [2011] FamCAFC 82 House v The King (1936) 55 CLR 499; [1936] HCA 40 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 |
| APPELLANT: | Ms Shaw |
| RESPONDENT: | Mr Shaw |
| INDEPENDENT CHILDREN’S LAWYER: | Cherry Family Lawyers |
| FILE NUMBER: | BRC | 15059 | of | 2018 |
| APPEAL NUMBER: | NOA | 110 | of | 2019 |
| DATE DELIVERED: | 9 April 2020 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 8 April 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 November 2019 |
| LOWER COURT MNC: | [2019] FCCA 3553 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Cherry Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms Murphy |
Orders
The mother’s Amended Notice of Appeal filed 6 March 2020 is dismissed.
The Independent Children's Lawyer’s application that the mother pay her costs is dismissed.
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 Shaw & Shaw 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT CAIRNS |
Appeal Number: NOA 110 of 2019
File Number: BRC 15059 of 2018
| Ms Shaw |
Appellant
And
| Mr Shaw |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 27 November 2019, for reasons then delivered orally, the primary judge pronounced interim parenting orders relating to the parties’ only child, X, presently six years of age (“the child”). Pursuant to those orders, the child was to live with Ms Shaw (“the mother”), but spend a total of 14 hours per fortnight with Mr Shaw (“the father”), albeit not including any overnights. Orders were also made affording the child the opportunity to communicate with the father by telephone once a week, and addressing some specific issues, as well as incidental matters.
From those orders the mother appeals. The appeal is resisted by the father and the Independent Children's Lawyer. For the reasons which follow, the appeal must be dismissed.
BACKGROUND
Both the father and mother are presently 40 years of age. They met in Asia in either 2003 or 2004, married in 2005, but separated in about 2014, although thereafter, they remained living under the same roof for another four years. Ultimately the father left the former matrimonial home in July 2018, when the child was almost five years old.
After the father moved out of the parties’ home, there were some occasions when he spent time with the child, including, it seems, by removing him from day care without the mother’s knowledge or consent, however his spending time with the child stopped in September 2018. In December 2018 the mother commenced these proceedings, in which she sought orders that there be no time or communication between the father and the child. By his Response filed 19 June 2019, the father sought orders establishing both time and communication regimes, ultimately culminating in the child living week about between the parties.
On 11 July 2019 the primary judge made an interim order that the child live with the mother, but spend supervised time with the father. Some problems in implementing that regime ensued, but nonetheless ultimately at least six sessions of supervised time had been spent between the father and the child, by the time of the hearing before the primary judge.
THE HEARING BEFORE THE PRIMARY JUDGE
Before the primary judge, the mother self-represented. She pressed for orders that the father’s time with the child cease, and that the communication regime also terminate. For his part, the father sought a move to unsupervised time with the child, and for an increase in the amount of time, although not including any overnights. He was supported in that position by the Independent Children's Lawyer.
Amongst the material before the primary judge, was a Family Report dated 14 October 2019. Whilst, in view of the mother’s allegations, it recognised that the father may pose a risk of family violence, nonetheless it identified that there were real benefits likely to flow from the child having a meaningful relationship with the father, and therefore recommended that time not only continue, but move to being unsupervised, although changeovers should be either at school, or other safe place for the mother, to protect her from such risk of family violence as the father may pose.
THE PRIMARY JUDGE’S REASONS
Having identified the parties’ competing proposals, and having recited in some detail the relevant history, the primary judge identified the risks which the mother said the father posed to the child, including the risk of exposure to family violence, risks posed by his allegedly excessive use of alcohol, risks posed by his potential neglect of the child (given the child’s asthma), and the risk of the father infecting the child (by a means which remains opaque) with unspecified sexually transmitted diseases. The primary judge identified that, in light of these asserted risks, the mother could see no benefit to the child from any form of relationship with the father, even if their time was supervised.
Her Honour noted that the father denied all of the mother’s allegations.
The primary judge then traversed the relevant considerations under s 60CC of the Family Law Act 1975 (Cth) (“the Act”), focussing, as is often the case in interim hearings, upon the two primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from exposure to neglect, abuse or family violence.
In the course of doing so, her Honour considered the relevant aspects of the Family Report, and ultimately concluded that she could not make findings at that point about the mother’s allegations of family violence, although by making orders for changeovers at the child’s school, or at a public place, the risks of future family violence could be mitigated.
Her Honour accepted that the child was likely to obtain benefit from a meaningful relationship with the father, and therefore, in balancing the two primary considerations, ultimately found that orders which provided for unsupervised time, and increased the time which the child would spend with the father, were in the child’s best interests. To mitigate the risks which the mother asserted, there were orders for school based or public place changeovers, orders that the father not have a blood alcohol concentration above the legal limit when the child is in his care, and orders not only that the mother provide the father with the child’s asthma prevention plan, but that the father be obliged to make contact with the child’s general medical practitioner, to be educated in relation to the child’s allergies and asthma.
Although the orders contemplated that the matter would return before the primary judge at 9.30 am on 26 March 2020, for reasons which are unclear, it did not do so.
THE MOTHER’S APPLICATIONS IN AN APPEAL
The application filed 5 March 2020
By Application in an Appeal filed 5 March 2020, the mother sought a dispensation from the requirement to provide the transcript of the proceedings before the primary judge. However, in fact the transcript was obtained, and this application is now otiose. Therefore on 8 April 2020, I dismissed that application.
The application filed 14 March 2020
By Application in an Appeal filed 14 March 2020, the mother sought leave to tender into evidence on the appeal a transcript of the final hearing on 11 April 2019 in the Queensland Magistrates Court of the mother’s application for a domestic violence order against the father. However by the time of the appeal, no such transcript had been obtained, and in any event, even if it had then been made available, the parties would not have had an adequate opportunity to consider it and prepare submissions based upon it.
The mother also sought an order that the time to file her Summary of Argument and List of Authorities be extended. The affidavit filed in support of the application did not detail how long she would need, and in any event, by the time of the hearing, no Summary of Argument had been filed by her.
Inferentially, and perhaps expressly, the mother was therefore seeking to adjourn the hearing of the appeal. At that hearing I refused to do so, and otherwise dismissed her application in an appeal for reasons to be later published, as follows.
It is altogether unclear what benefit an adjournment would achieve. The additional material the mother seeks to adduce, although potentially able to have been put before the primary judge, has only recently been sought. In any event, it is likely wholly irrelevant to the appeal, as it does not go towards showing that the primary judge erred in any material respect. Further, the additional material speaks to neither the risk of harm that the father poses, or the benefit of the child having a meaningful relationship with the father. Moreover, the appeal is from interim parenting orders which, of course, can be revisited, as the primary judge anticipated they would be on 26 March 2020.
Unless the interests of justice require otherwise, the efficient disposition of the court’s business, and the proper use of its resources, require matters to proceed when listed. The interests of justice did not require the hearing of this appeal to be delayed, and accordingly I dismissed the mother’s application to adjourn it, and dismissed her Application in an Appeal filed 14 March 2020.
THE APPEAL
Overview and relevant principles
The mother self-represented at all times during the course of the appeal. As counsel for the Independent Children's Lawyer correctly noted in her Summary of Argument filed 3 April 2020, “the grounds of appeal as set out in the Amended Notice of Appeal are not, for the most part, proper grounds of appeal.” Indeed the mother’s grounds seem to largely be a repetition of her arguments before the primary judge. Very helpfully however, counsel for the Independent Children's Lawyer re-cast the grounds of appeal into a more intelligible form, conforming with what she understood to be the gravamen of the mother’s complaints. As recast, she identified two primary challenges, as follows:
a.That her Honour erred by accepting, on an interim basis, that it was in the child’s best interests to have a meaningful relationship with his father (Grounds 1e, 11); and
b.That her Honour erred by not accepting that the father posed a risk of harm to the child by reason of:
i.His perpetuation of domestic violence and “anger management” issues (Grounds 1a, 1b, 1e),
ii.His historic lack of involvement in the care of the child (Grounds 1g, ;
iii.His lack of knowledge about the child’s medical conditions (Grounds 1c, 1g, 1k, 2)
Such that he should not spend time with his father.
(As per the original)
I shall adopt counsel’s articulation of the mother’s challenges, although I will address the matters raised in paragraph b first, and to the matters therein articulated, shall add some additional risks which the mother may also perhaps rely upon.
As so distilled, in order for these grounds to succeed, the mother would need to establish error of the kind discussed in House v The King (1936) 55 CLR 499 at 504-5, where the majority of the court said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Later, in Norbis v Norbis (1986) 161 CLR 513, at page 540 Brennan J said:
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
The alleged errors in respect of risk assessment
Family violence
The primary judge was plainly cognisant of the risk of family violence which the mother said the father posed, by virtue of his alleged historical abuse and behaviour. Moreover, her Honour was mindful of the mandatory obligation established by s 60CC(2A) of the Act, to give greater weight to the need to protect the child from being exposed to such harm, than the benefit of him having a relationship with the father (at [24]).
At [32] of the reasons, the primary judge said as follows:
32. In relation to the mother’s concerns about family violence, they are denied by the father. I can’t make findings about them at the moment. In that regard, however, I note that it was recommended by [Ms B] that the potential current issues in this matter are the risk of family violence towards the mother from the father, and the quality of the father-child relationship.
It is clearly established that merely because a finding of fact in relation to a disputed risk cannot be made in an interim hearing, the court is not absolved from nonetheless taking the risk into account (Deiter & Deiter [2011] FamCAFC 82).
However, her Honour clearly did take the risk of family violence into account, and particularly, was plainly mindful of recent events, and the means which might sufficiently ameliorate such risk that the father may pose. Particularly:
· The father’s supervised time with the child to date had proceeded well (at [37]–[40]);
· Under the proposed orders, there would be no overnight time with the father, and the child would only be spending a matter of some hours with the father (at [17]); and
· The matter would come back before her Honour on 26 March 2020, at which time the orders would be subsequently reviewed (at [44]).
I am well satisfied that the primary judge, mindful of the fact that a determination as to the level of risk which the father posed to the child could not be made at the interim hearing, nonetheless accommodated that by fashioning appropriate protections for the child, in order to mitigate such risks as may exist.
Historical lack of involvement in care of child
At [26] to [28] of the reasons her Honour said as follows:
26. With relation to section 60CC(3)(b), and subsections (c) and (ca), there is no doubt that this little boy was in the primary care of the mother during the parties’ relationship. The father acknowledges working long hours during the relationship in a business which I understand was operated by the parties during the relationship, but says he was available at times, and when he was available he did spend time with the child. But given that concession about working long hours, it is clear this little boy was in the primary care of the mother, and of course he has remained in the primary care of his mother since separation.
27. The child has, after separation and before about September of last year, only spent a couple of occasions with his father, and then did not recommence spending any time with his father until the supervised time occurred later this year. There have been at least six occasions, I understand, of supervised time, and I understand that those occasions of supervised time went well.
28. There is no doubt that the child’s primary attachment may even be to the mother, although he accepts that may not be as important, but his closest relationship as between his parents, is with his mother. There is nothing in my view, in the material to suggest that this little boy would not benefit from having a relationship with his father. In fact, both [Ms C] and [Ms B] refer to the benefits to this little boy of having a relationship with his father as well. That is referred to in paragraphs 87 and 89 of the Family Report, but in particular at paragraph 85, where it is referred to that [the child] has a good understanding of who his father is.
From these passages it is clear that the primary judge was well aware of the mother’s allegations that the father had been substantially absent from the child’s early upbringing, even prior to him physically leaving the parties’ home. Ultimately it was quintessentially a matter for the primary judge as to what weight she gave to that matter. It is plain that she gave it some, but not determinative weight. That is unsurprising, since in determining the appropriate relationship which a child should prospectively have with a parent, family law proceedings tend to look to the future, rather than allowing the historical relationship which a parent has had with a child to be determinative.
This aspect of the mother’s challenge does not succeed.
Lack of knowledge about child’s medical conditions
At [19] the primary judge said as follows:
19. The mother raises a concern about the child’s asthma and allergies. This was a concern that was also addressed when the matter was before me at the beginning of November, and I indicated that a way of possibly dealing with that concern might be for the mother to provide the father with the asthma prevention plan and for the father to attend at the child’s general practitioner to educate himself in relation to this child’s particular needs. When that was suggested, I note that the mother said to the father it is a simple matter for the father to educate himself in that regard, and that he could do that without the need to attend at the child’s general practitioner. However, in my view, it would be of benefit for the father to do so.
Her Honour was plainly mindful of the mother’s concerns in relation to this matter, and made it mandatory under the orders, that the father have a copy of the child’s asthma plan, and that he attend upon the child’s general medical practitioner for education. Therefore, far from not adverting to this risk, the primary judge specifically crafted conditions to mitigate it.
Other matters
Although it is not altogether clear if the mother still raises them on this appeal, also relevant to the primary judge’s assessment of the father’s risk to the child were the mother’s allegation that the father excessively used alcohol (which was denied) and that the father posed a risk of sexually transmissible infections to the child. The latter was, and deserved to be, roundly dismissed, absent any suggestion that the father has ever posed a risk of sexual harm to the child. As to alcohol, the primary judge was again mindful of the mother’s concerns, and sought to mitigate any risk which the father may pose from excessive alcohol consumption to the child, by an order restraining him “from drinking beyond the legal limit while the child is in his care.” Although the order might have been more closely drafted, I would construe it as referring to the legal limit for driving, namely a blood alcohol concentration of more than 0.05 per cent.
Evaluation
The primary judge was plainly mindful of the risks which the mother asserted the father posed to the child, and sought to mitigate those in appropriate ways as discussed above. There is no merit to these aspects of the mother’s grounds of appeal.
Grounds alleging error in accepting that there was benefit to the child in having a meaningful relationship with the father
Although not independent of the challenges which deal with the father’s asserted risk to the child, the mother may, it appears, assert that in any event, the primary judge erred by failing to find that there was no benefit whatsoever to the child from having a meaningful relationship with the father. However that was not the expert evidence before the primary judge, in that the Family Report writer clearly was of the view that there was benefit to the child from such a relationship, a view which was also shared by the family consultant that had undertaken earlier interventions with the parties (at [28]).
That being the state of the expert evidence, it cannot be viably contended that the primary judge acted erroneously by accepting and acting upon it.
This aspect of the mother’s appeal fails.
Other matters
There are a miscellany of other matters which the mother raises throughout her grounds of appeal, which, although not cast in proper form, nonetheless assert that in various respects, the primary judge erred. These were again helpfully identified by counsel for the Independent Children's Lawyer, as claiming that the primary judge gave inadequate weight to:
(a)The father’s failure to provide financial support to the child;
(b)The failure of the paternal family to assist or help the mother while she was in hospital after she birth to the child;
(c)The father’s ability to access online material dealing with the child’s school activities and education curricula;
(d)The father’s lack of religious belief meant that he is unlikely to be able to assist the child in studies dealing with Christian values and culture;
(e)The father’s (admitted) dyslexia, which will preclude him from being able to assist the child in daily reading and learning; and
(f)The father’s brother’s children allegedly refusing to see or communicate with their father.
Correctly, counsel for the Independent Children's Lawyer identified that in Banks & Banks (2015) FLC 93-637 Thackray, Murphy & Kent JJ at [48]-[50] said as follows:
48. …By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
49. …It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
50. When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
The above stated complaints of the mother are good examples of matters which could not sensibly bear upon – much less determine – the interim proceedings before the primary judge. Correctly, the primary judge identified that the two primary s 60CC considerations were those principally engaged in the hearing before her, and appropriately structured her reasons in recognition of that. It is not incumbent upon a primary judge to traverse each and every argument, no matter how miniscule, advanced by a litigant (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]).
All of these complaints made by the mother therefore fail.
CONCLUSION
No ground of appeal has been established. The appeal must therefore be dismissed.
COSTS
In the event that the appeal did not succeed, only the Independent Children's Lawyer sought a costs order against the mother, in the sum of $4,368.10. No argument was mounted that this figure was excessive or unreasonable.
However s 117(4) of the Act prohibits a court from making an order that a party pay an Independent Children's Lawyer’s costs, if the court considers that the party would thereby suffer financial hardship. Here, the mother is only in receipt of social security benefits, and receives no child support from the father. To require her to pay the Independent Children's Lawyer’s costs would therefore occasion her financial hardship. The Independent Children's Lawyer’s application must therefore be dismissed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 9 April 2020.
Associate:
Date: 9 April 2020
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