Simmons & Kingley - [2014] FamCAFC 47

FAMILY COURT OF AUSTRALIA

SIMMONS AND ANOR & KINGLEY

[2014] FamCAFC 47

FAMILY LAW – APPEAL – CHILDREN – where the maternal aunt and uncle appeal against final parenting orders that the child reside with the father – where the appellants’ central complaints relate to the trial judge’s finding that the child would not be at unacceptable risk in the care of the father – whether error demonstrated by the trial judge not referring to any “unacceptable risk” authorities – whether the trial judge failed to identify the specific risk and to assess that risk – whether the trial judge was bound to accept and act upon evidence of single expert psychiatrist – whether error demonstrated because the trial judge failed to give sufficient weight to the evidence of expert psychiatrist – whether the trial judge failed to give adequate reasons as a consequence – where findings made were open to the trial judge on the evidence, including the expert evidence – where the trial judge’s reasons are careful and extensive – no merit found in the grounds of appeal.

Family Law Act 1975 (Cth)

Andrew & Delaine [2009] FamCAFC 182
Bennett & Bennett (1991) FLC 92-191
D & P [2006] FamCA 170
Friscioni & Friscioni [2010] FamCAFC 108
Gaffney & Gaffney [2012] FamCAFC 140
Gelbvieh & Senepol [2007] FamCA 476
Hall and Hall (1979) FLC 90-713
Hannigan & Sorraw [2010] FamCAFC 257
Kennedy & Kennedy [2010] FamCAFC 195
Lindsay & Baker [2012] FamCAFC 189
Malak & Mairie [2010] FamCAFC 170
Muldoon & Carlyle (2012) FLC 93-513
Penfold v Penfold (1980) 144 CLR 311
Salvati & Donato [2010] FamCAFC 263
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Yates & Yates [2012] FamCAFC 138

FIRST APPELLANT:

Mrs Simmons

SECOND APPELLANT:

Mr Simmons

RESPONDENT:

Mr Kingley

INDEPENDENT CHILDREN’S LAWYER:

Clare Dart

FILE NUMBER:

BRC

1363

2008

APPEAL NUMBER:

2013

DATE DELIVERED:

28 March 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bryant CJ, Strickland & Kent JJ

HEARING DATE:

20 February 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:	24 July 2013
LOWER COURT DATE OF ORDERS:	5 July 2013

LOWER COURT MNC:

[2013] FamCA 546

REPRESENTATION

COUNSEL FOR THE FIRSTAPPELLANT:

Mr Baston

SOLICITOR FOR THE FIRSTAPPELLANT:

Kelly Lawyers

COUNSEL FOR THE SECOND APPELLANT:

Mr Baston

SOLICITOR FOR THE SECOND APPELLANT:

Kelly Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Middleton

SOLICITOR FOR THE RESPONDENT:

Carroll Fairon Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

The appeal be dismissed.
There be no order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Simmons and Anor & Kingley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 36 of 2013
File Number: BRC 1363 of 2008

Mrs Simmons

First Appellant

Mr Simmons
Second Appellant

And

Mr Kingley

Respondent

REASONS FOR JUDGMENT

Introduction

On 5 July 2013 Hogan J made final orders in parenting proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) concerning the child, C Arndale-Kingley born in 2006 (“the child”). On 24 July 2013 her Honour delivered reasons for judgment.
The proceedings below were of longstanding. Sadly, illness took the child’s mother’s life in 2013. As a consequence the child’s maternal aunt Mrs Simmons and her husband Mr Simmons, the appellants in this appeal, intervened in the proceedings. The child had been placed in their care by her mother, when the mother’s illness worsened in December 2012.
A central issue in the trial between Mr Kingley (“the father”) and the appellants concerned the father’s history of alcohol abuse and dependence and his conduct referrable to that problem including multiple convictions for drink driving offences. The appellants contended at trial that the father remained so at risk of abusing alcohol that the child would be at an unacceptable risk in the father’s care.
On this issue the trial judge concluded, in summary, that the father had over the three years prior to trial demonstrated control of his alcohol problem and that with continuation of his undertaking not to consume any alcohol while the child is in his care or for twenty-four (24) hours prior to such time, and the imposition of monitoring mechanisms in the orders, there was no unacceptable risk to the child in her father’s care.
Thus, the trial judge made final orders, upon the father’s undertaking referred to, for the father to have sole parental responsibility for the child and for the child to live with the father and spend time with the appellants for one half of the Christmas and June/July school holidays and one weekend in each calendar month from 5.00 pm Friday to 4.00 pm Sunday.
The trial judge made a number of detailed orders obviously aimed at providing protective mechanisms against any risk of the child’s welfare being compromised by the father engaging in excessive alcohol consumption in future. Those orders provided for the father to:
a)attend upon a medical practitioner specialising in the treatment of people with alcohol disorders on a monthly basis for 12 months and thereafter as directed by that practitioner;
b)attend upon such specialist to develop what was referred to in evidence at trial as a “lifelong Prevention of Relapse Plan”;
c)cause his treating medical practitioner to require random monthly blood testing of his carbohydrate deficient transferren (“CDT”) levels for 12 months and thereafter, as recommended by the treating practitioner “for as long as therapeutically indicated”;
d)undergo random drug and alcohol testing as requested by his treating medical practitioner, with provision of results to the appellants, the Independent Children’s Lawyer (“the ICL”) and his treating practitioner; and
e)if charged or in receipt of a Notice to Appear for any offence in which having a prescribed blood alcohol is an element, inform the appellants within two working days of being charged or issued with the Notice to Appear.
By their Amended Notice of Appeal filed 9 October 2013 the appellants appeal against the parenting orders. If the appeal were to be allowed the appellants seek that we re-exercise the discretion. Without detailing all of the orders they seek on such a re-exercise it is to be noted, given the substance of the challenges made on appeal, that the appellants seek orders for the child to spend unsupervised time with the father on alternate weekends and for half school holiday periods.
The father opposes this appeal and is supported in that endeavour by the ICL.

Grounds of appeal

At the outset of the hearing of the appeal leave was granted to the appellants to amend their grounds of appeal to those contained in the appellants Amended Summary of Argument filed 19 December 2013. Those grounds of appeal are as follows:
1. The trial Judge failed to identify relevant principles when considering an unacceptable risk of harm to the child and therefore failed to identify and address what proper application of those principles would reveal and necessitate be undertaken in determining the best interests of the child.
2.The trial Judge made a number of important errors of fact in relation to the matters that persuaded her that there was no risk of harm.
3.The trial Judge failed to give sufficient weight to the evidence of Dr [L] and other matters that were relevant to the issue of risk of harm.
4.The trial Judge ultimately failed to give adequate reasons as to why, in the circumstances of this case, there was no risk of harm.
During argument of the appeal Mr Baston of counsel for the appellants confirmed that ground 2 was not pursued by the appellants.
In both his written outline and in the manner in which counsel for the appellants addressed oral argument the remaining three grounds of appeal were addressed together, given the extent to which there is an overlap or inter-relationship between the grounds. We propose to adopt a similar course.

the appellants’ contentions

As already noted, a central issue in the trial was the father’s extensive history of alcohol dependence and abuse and related conduct.
The father’s case at trial was, in summary, that as at the date of trial he had demonstrated some three or three and a half years of a capacity to control his previous misuse of alcohol. Thus his capacity to care for the child was not, and would not in future be, compromised by excessive use or abuse of alcohol.
The appellants’ case at trial was that the father remained so at risk of abusing alcohol that the child would likely be at risk in his care.
As is apparent from the amended grounds of appeal that are pursued, it is only this issue that is the subject of challenge on this appeal.
The appellants’ contentions on appeal as they were argued before us by counsel for the appellants may be paraphrased and summarised as follows:
a)Because the learned trial judge did not refer to any authorities dealing with “unacceptable risk” this led to her Honour failing to identify precisely the risk in question here, and thus to address that risk;
b)The trial judge failed to give sufficient weight to the expert evidence of Dr L, psychiatrist, in circumstances where, as the only expert witness on the issue of assessing future risk, Dr L’s evidence was unchallenged and her Honour was bound to accept and act upon that evidence;
c)As a consequence of the above failures, the reasons of the trial judge are inadequate.

The trial judge’s identification and assessment of the risk

Counsel for the appellants was unable to refer us to any authority in support of the submission that the trial judge was bound to refer to “unacceptable risk authorities”. We consider that inability to be unsurprising. It would be remarkable if there were any authority to the effect that, irrespective of the approach actually taken by a trial judge to the exercise of a discretion conferred within a statutory framework, as here, error could be demonstrated because the trial judge did not refer to an authority.
The trial judge was bound to apply the relevant provisions of Part VII of the Act.
The trial judge had to regard the best interests of the child as the paramount consideration in determining parenting orders (s 60CA). The central issue referred to brought into focus the primary consideration expressed in s 60CC(2)(b), specifically, “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”, amongst the mandated considerations in the determination of “best interests” within the meaning of s 60CA of the Act.
Obviously enough, assessment of the “need” specified in that paragraph required any relevant risk to be identified and assessed. It was thus the statute, rather than any “unacceptable risk authority”, which the trial judge was bound to apply to resolution of the central issue.
As will be discussed, her Honour plainly identified and assessed the primary consideration enumerated in s 60CC(2)(b) in her reasons for judgment.
As it was argued before us, the contention of the appellants is that the trial judge did not identify the relevant risk with precision. Asked by this Court to articulate the precise risk it was contended that the trial judge had failed to identify, counsel for the appellants directed our attention to Dr L’s oral evidence where, in the course of providing a lengthy answer in cross-examination, Dr L said:
…
In this society, the one in which we live and, in particular, and most importantly, [Mr Kingley’s] history, my view would be that for the foreseeable future, and at least, that given the propensity, the capacity to easily obtain and then binge on alcohol at, well, cheap, very cheaply available, and to then pose a potentially life-threatening danger to the child if she was in [Mr Kingley’s] care, with or without his partner being present, is so dangerous, and so rapidly possible in the spaces of an hour or two or three, that my concern is that being a low-risk sort of specialist, I take the low-risk option.
…
As I say, it is so easy and simple to “fall off the wagon” – to use a colloquial term – with a history such as this.
(Transcript 9.5.13, page 24, lines 16-24, 40-42)
We consider it important to record that Dr L’s evidence in this respect was given in the context of being asked questions about an appropriate alcohol testing regime. In providing the answer referred to Dr L was first asked this question:
When you say that he should be tested indefinitely, and that is until [the child] is 18 years of age, does the regime of testing depend upon whether he continues to present as having his drinking problem under control, or whether there are periods of time in which he may present over time with testing that may establish, or support, that he has in fact consumed alcohol to excess?
(Transcript 9.5.13, page 24, lines 9-13)
We will return later in these reasons to the topic of the context in which this evidence was given.
In articulating the precise risk counsel for the appellants also referred to Dr L’s oral evidence as follows:
…But this issue, as I said, in the strongest possible terms, needs to be managed indefinitely…at least until the child is 18, so that there’s no recurrence of the previous behaviour disturbances. At any time, ever, even to a little bit, and it’s a question of whether [Mr Kingley] is able to live a life on those terms…or not.
(Transcript 9.5.13, page 23, lines 32-39)
Matters of context aside, counsel for the appellants contended that her Honour failed to identify and thus appreciate the nature of risk involved by reference to those parts of Dr L’s oral evidence identified above.
Early in her reasons for judgment, commencing at [3] the trial judge first refers to the father’s “significant history of driving whilst under the influence of alcohol.” At [18] her Honour records that the appellants sought orders for the child to spend time with the father supervised by his partner and an order in terms of the father’s existing undertaking. At [19] her Honour records the orders sought by the appellants concerning testing “for the purpose of monitoring his abstinence from the excessive consumption of alcohol.”
Under the heading “Primary Considerations”, the trial judge set out in full, as a sub-heading, the terms of s 60CC(2)(b), under which her Honour then recorded at [27]:
27. However, the [Simmons] are concerned about the child’s safety if she lives with her father because:
a) he has a significant past history of driving whilst under the influence of alcohol; and
b)they hold fears that he has not ceased his ‘alcohol centred lifestyle’.
Then at [32] and [34] her Honour relevantly records:
32.In order properly to deal with and consider that part of the [Simmons’] case that the father remains so at risk of abusing alcohol that the child is likely to be at risk in his care, it is, I think, necessary to consider the evidence of the father’s previous struggles to control and manage his alcohol consumption.
…
34....such differences matter little in my consideration of whether, because of his issues with alcohol, the father is an unacceptable risk to the child in 2013.
Relevant to both the question of her Honour’s identification of the risk and the challenge concerning her Honour’s approach to Dr L’s evidence, at [117], [118] and [119] her Honour recorded:
117.[Mrs Simmons] said that she was concerned that the father could revert to his binge drinking behaviour at any stage and that if this occurred the child would be at risk. She said that the evidence was not enough to persuade her that the child was safe or that the father was unlikely to revert to previous levels of alcohol consumption and associated behaviour.
118.I accept that it is always a risk for a person with the father’s history that they may revert to previous behaviour. However, I am persuaded that such risk is, in this case, minimal because:
a)the father has maintained a significant period of low level alcohol use as evidenced by his test results;
b)the evidence of Dr [E], which I accept, was to the effect that the level of risk is lower the longer the period that low level usage is maintained;
c)I accept that the father has owned his problem and has accepted responsibility for his actions – that he has not done so using words that would convince the [Simmons] does not detract from my conclusion that he has fully accepted the absolute necessity that he refrain from consuming alcohol whilst the child is in his care;
d)the father has sought not to be released from the Undertaking which imposes on him that stricture.
119.Dr [L] said, and I accept, that if the child lived with the father full time or on a more permanent basis there would need to be a continuous and more absolute control of his alcohol use. He said that there should be no opportunity allowed for any of the father’s past behaviour or alcohol-related problems because a recurrence of the same would have a great risk of posing an emotional, psychological and or physical and social harm and developmental harm to the child.
At [130] her Honour expressed a finding that: “blood and urine test[ing]… every three months…would not do anything to deal with or manage any immediate risk that the father might pose…” (emphasis added).
At [136] in dealing with a submission on behalf of the appellants below as to the father’s attitude or behaviour her Honour expressed the relevant test in terms of “unacceptable risk” as follows:
…what is required is that he demonstrate that he has the capacity to manage his use of alcohol, as I consider he has, through compliance with the Undertaking and engagement in therapeutic support, such that the Court can be persuaded that there is no unacceptable risk to the child whilst in his care.
In a clear reference to the risk identified in Dr L’s answer earlier referred to, and a submission based upon that evidence, her Honour expressed her acceptance of the nature of that risk when she observed at [140]:
140.Counsel for the father submitted that the risk identified by Dr [L] was that if the father “fell off the wagon” the child would be in significant danger. I accept the submission that such risk will be mitigated by a continuation of the Undertaking and the imposition of the requirement to formulate a Lifelong Relapse Prevention Plan and to attend on the treating general practitioner for monitoring and testing.
(emphasis added)
Her Honour again referred to “unacceptable risk” at [145], and potential risk to the child if the father returns to his previous pattern of alcohol consumption at [149], before expressing the conclusion at [150] that her Honour did not consider that the child will be at risk of being exposed to excessive consumption of alcohol whilst in the father’s care. Her Honour then expressed the conclusions at [165] and [166] as follows:
165.I am not persuaded that there is a risk that the child will suffer physical or psychological harm as a consequence of exposure to domestic violence in her father’s care.
166.It follows from the above that I am not persuaded that the child will be exposed to a risk of abuse, neglect or family violence in her father’s care.

As was pointed out by Mr Middleton of counsel for the father during argument, at [360] of the reasons the trial judge recorded:
360.I do not accept the submission of the [Simmons] that there is an unacceptable risk in placing the child in the father’s care. The unacceptable risk was identified by Counsel as that the father might “fall off the wagon”. This was said to present a significant risk because it means that in a matter of hours, if the child was in his care, she could be placed in a position of life threatening danger. I consider that this risk is addressed by the continuations [sic] of the Undertaking.
Whilst the trial judge’s reasons for judgment need to be considered as a whole, and we have not sought to exhaustively identify all that the trial judge expressed relevant to this question, we are comfortably satisfied, by reference to those parts of the reasons to which we have referred, that there is no substance in the contention that the trial judge failed to identify the relevant risk in assessing that risk.
We therefore find no substance in Ground 1. We also observe that much of the preceding discussion is relevant to the other grounds pursued.

The alleged failure to accord sufficient weight to Dr L’s evidence

The appellants’ challenge to the trial judge’s asserted failure to give sufficient weight to the evidence of Dr L, as that challenge was argued before us by counsel for the appellants, rests upon two interdependent contentions.
The first is that it was asserted to be the effect of Dr L’s concluded opinion that it was “too early” in terms of the father’s progression from his documented history of conduct referable to his alcohol problems, to be satisfied that the father could or would likely sustain changed behaviour. The second contention, premised on the proposition that Dr L provided the only expert opinion and evidence on this topic, a topic asserted to be solely within the province of Dr L’s expertise, is that the trial judge was bound to accept and act upon Dr L’s evidence.
Whilst Dr L’s evidence obviously fell for consideration by the trial judge, once it is recognised, as it must be as a matter of law, that the trial judge was not bound to accept or act upon any opinion expressed by Dr L, the flaw in the premise upon which this challenge rests is exposed.
The issue in question, that is, the likelihood of the father in future reverting to his previous behaviour with respect to abusing alcohol, involved an assessment of the likelihood of a future hypothetical event occurring. That can be contrasted with an issue as to past fact or a state of things capable of being established incontrovertibly by an expert’s application of science or mathematics.
Numerous authorities of the Full Court of this court make it plain that the ultimate decision was for the trial judge and it was a matter for the trial judge’s discretion as to what weight was given to or what use was to be made of Dr L’s evidence in the context of all of the evidence to be considered (see, for example, Hall and Hall (1979) FLC 90-713; D & P [2006] FamCA 170; Gaffney & Gaffney [2012] FamCAFC 140; Gelbvieh & Senepol [2007] FamCA 476; Andrew & Delaine [2009] FamCAFC 182; Friscioni & Friscioni [2010] FamCAFC 108; Hannigan & Sorraw [2010] FamCAFC 257; Kennedy & Kennedy [2010] FamCAFC 195; Malak & Mairie [2010] FamCAFC 170; Salvati & Donato [2010] FamCAFC 263; Lindsay & Baker [2012] FamCAFC 189; Muldoon & Carlyle (2012) FLC 93-513; Yates & Yates [2012] FamCAFC 138).
As was observed in Gelbvieh & Senepol at [114] a trial judge hearing all of the evidence on oath or affirmation, tested by cross-examination, enjoys an advantage not shared by the expert.
Moreover, as we observed during argument on the appeal, selective reference to particular passages of Dr L’s evidence must be considered in context and that when giving that oral evidence Dr L could not have known the conditions the trial judge ultimately determined to impose, as included in the final orders that were made.
We are also mindful of the caution that applies to our being taken in argument to selected passages of evidence. That caution was expressed by Kirby J in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 (at 619) in these terms:
The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are the real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge.
(footnotes omitted)
In Muldoon & Carlyle the Full Court (Bryant CJ, Finn and Strickland JJ) observed at [104]:
105. It is not in doubt that the evidence of an expert, suitably qualified and based on an appropriate foundation, will carry substantial weight. Departure from it in such circumstances requires careful consideration; however the ultimate decision must be that of the trial judge.
(footnotes omitted)
The reasons of the trial judge contain extensive references to the evidence of Dr L including, for example, at [79], [102]-[104], [119]-[124], [130]-[135], [137] and [140].
As already noted, the trial judge made orders imposing an array of conditions upon the father designed to monitor his alcohol consumption. These were in addition to the father’s undertaking earlier referred to, which was to be continued. These orders implemented, rather than representing any departure from, Dr L’s report and evidence, given that, at [124], her Honour detailed Dr L’s recommendations as to future monitoring of the father. We have earlier referred to [119] of the reasons in which the trial judge recorded her acceptance of Dr L’s evidence concerning the need for continual monitoring in the context of the child living with the father.
In this context it is relevant to note the trial judge’s finding at [362] in relation to a submission made at trial concerning Dr L’s evidence:
362. Counsel submitted that the question for the future is the nature and extent of Dr [L’s] evidence about the father’s necessity to engage in a Lifelong Program Relapse Prevention. The father himself propose [sic] orders that would see him engage with a medical practitioner for the purpose of developing a Lifelong Relapse Prevention Program. I accept, therefore, by his actions in proposing such an order, that the father again demonstrates a full and proper appreciation of the importance to him and to the child in his parenting of her that he participate in such program.
Dr L gave evidence as to a number of positive prognostic features on the question of the father maintaining control of his alcohol use. For example, at [102] the trial judge referred to, and accepted, Dr L’s opinion that the father’s then reported pattern of alcohol use was not excessive; and that test results “supported a view that the father has been able to address and control his ‘alcohol related life problems’.”
At [120] the trial judge recorded her acceptance of Dr L’s evidence that the father does not suffer from a psychiatric disorder impairing his capacity to make a decision not to use alcohol.
At [121] the trial judge recorded:
121.Dr [L] considered that positive supports for a conclusion that the father has been able to control his use of alcohol are that:
a)he is in a stable, settled and strong relationship with a supportive partner who is very aware of his drinking problem and who had acted to discourage him from drinking to excess was a positive prognostic feature for the future;
b)        he has not been a binge drinker for 3+ years;
c)        he has not committed any further offences;
d)there have been no observations of intoxication at a Contact Centre;
e)        he has returned the CDT results that he has;
f)there has been improvement in his previous problematic behaviour;
g)he has complied with the Undertaking since it was given in December 2009; and
h)the assessments support the view that the father has been able to address and control his alcohol related life problems.
Dr L’s evidence was that the father had strength in his personality functioning and that this was a very good prognostic feature if the father channelled this strength to the conviction of not drinking alcohol when the child was in his care. At [123] the trial judge recorded her acceptance of this evidence together with her Honour’s finding that in not seeking to be released from his undertaking the father demonstrated such conviction.
As was referred to in the course of argument on the appeal, when he was cross-examined at trial by counsel for the father, Dr L was asked to assume (as was ultimately found by the trial judge to be the case) that the father had been able to address and control his alcohol-related life problems for a period (then) in excess of three years. On that assumption, Dr L gave evidence to the effect that the father’s prognosis would (with the implementation of the monitoring recommendations made by Dr L) continue.
The only departure from Dr L’s opinion, if it can be characterised as that on all the evidence, is addressed by the trial judge commencing at [131] of the reasons. There the trial judge refers to Dr L’s opinion that a further significant period of time would be required to establish that the father’s control of his alcohol problem was derived from his “internal locus of control” rather than by any “external” locus.
Understanding that “internal locus of control” conveys the father being entirely self-reliant in continuing to control his alcohol use, the trial judge recorded, correctly in our view, that the issue was whether the father would continue to control his alcohol use by whatever means, internal or external. In circumstances where the “external” means via continuation of the undertaking and the orders for monitoring were to be made, the trial judge found that the father would comply. That is, that he would continue to control his alcohol use.
In the course of the discussion of this issue in the reasons, commencing at [131] the trial judge recorded at [137]:
137.I find that in refraining from consuming alcohol in a binge in [sic] fashion for the last 3 ½ years or so the father has demonstrated an “internal locus” of control. I do not accept the submission of Counsel for the [Simmons] that there is a complete paucity and lack of evidence to support an assessment about the risk of relapse. Rather, I consider that Dr [E] addressed this issue with his evidence to the effect that the longer the father was able to maintain an intake of alcohol at a low level the lower the risk of relapse. This is, I consider, exactly what has happened in the present case. In addition, by seeking not to be released from the Undertaking and by accepting Dr [L’s] evidence of the need to engage in a Lifelong Relapse Prevention Plan, the father has demonstrated a further desire to actively control and manage his alcohol consumption issue.
This led to the conclusion expressed at [150] as follows:
150.Having considered the matters set out above in the manner I have explained, I do not consider that the child will be at risk of being exposed to excessive consumption of alcohol whilst in the father’s care. I am persuaded that, with the continuation of the Undertaking and the imposition of a requirement that he attend upon a general practitioner for the creation and implementation of a Lifelong Relapse Prevention Plan, the father has taken suitable and adequate steps to address his alcohol consumption issues. I am not persuaded that the child will be at risk of physical harm whilst in her father’s care.
We observe in passing on this topic that the submissions by counsel for the appellants that Dr L’s evidence was the sole expert evidence on this issue is not accurate, as is demonstrated by the paragraph of the reasons quoted above.
The reasons reflect that the trial judge had regard to the expert evidence of the father’s treating psychiatrist Dr E and her Honour made several references to that evidence. As already noted, at [118] of the reasons the trial judge specifically referred to the evidence of Dr E, and recorded her acceptance of that evidence, that “the level of risk is lower the longer the period that low level usage is maintained”.
In the course of his oral evidence Dr L himself deferred to the expertise of Dr A on the subject of alcohol testing. Thus the trial judge expressed her preference, at [79] and [80] for Dr A’s evidence to that of Dr L on whether the father had deliberately interfered with a previous testing result; and at [81] the trial judge expressed her acceptance of Dr A’s evidence as to “CDT” testing. It was in the context of discussing Dr A’s evidence that the trial judge found at [130] that Dr L’s opinion as to blood and urine testing “would not do anything to deal with or manage any immediate risk that the father might pose to the child.”
We are satisfied that the trial judge had to consider a significant body of evidence, including expert evidence other than that of Dr L, in determining the central issue. Her Honour’s reasons are careful and extensive. Her Honour had the advantage of seeing and hearing relevant witnesses cross-examined. It is clear from her Honour’s reasons that similar submissions now made to us on appeal as to the effect and import of Dr L’s evidence were made to, considered, and dealt with by, her Honour.
We are not persuaded that any departure of the trial judge from Dr L’s opinion or evidence is not adequately explained by her Honour and nor is it demonstrated to be outside the legitimate exercise of her Honour’s discretion. To the contrary, her Honour’s reasons amply demonstrate that the trial judge undertook detailed and careful consideration, and balancing of the evidence in reaching her conclusions on the central issue.
We therefore find no merit in the contentions on appeal concerning the weight the trial judge gave to Dr L’s evidence.

Adequacy of reasons

Much of the preceding discussion informs the consideration of the appellants’ contention that the trial judge’s reasons were inadequate.
The principles applicable to a challenge as to the adequacy of reasons for a discretionary judgment are well-established and are often repeated by this Court (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 279 (McHugh JA); Bennett & Bennett (1991) FLC 92-191 at 78,266. See also, the reference to Sun Alliance Insurance Ltd v Massoud [1989] VR 8 in Bennett & Bennett (supra) at 78,266). They need not be restated here.
The path by which the trial judge reached her conclusions on the central issue is obvious. It was reached having given consideration to submissions below that mirror the complaints now made.
Based upon the evidence of the father himself; that of his partner Ms S; consistent pathology test results demonstrating an absence of excessive intake of alcohol; evidence from a contact centre revealing no incident of the father ever attending under the influence; evidence of a private investigator who undertook observations of the father over a three month period, the trial judge found (at [139]) that the father had demonstrated, with the assistance of external monitoring, the ability to refrain from excessive consumption of alcohol. The trial judge further found the father to have appreciated the impact of his previous behaviour, including upon his relationship with the child, and that he was motivated to be the best parent he could be for the child.
Against that background, and having identified the relevant risk, the trial judge found that with continuation of the father’s undertaking and the imposition, by orders, of the external monitoring those orders provided, that the child would not be exposed to excessive alcohol consumption, and thus any unacceptable risk, in the father’s care.
These findings were clearly open to the trial judge on the evidence, including the expert evidence, in the exercise of her discretion.
We find no substance in the complaint as to the adequacy of the trial judge’s reasons.

Conclusion and costs

As we find no merit in any of the grounds that were pursued, the appeal is to be dismissed.
In the event that the appeal was unsuccessful each of the father and the ICL sought an order that the appellants pay their costs.
The appellants opposed any order for costs.
Section 117(1) of the Act provides for what may be described as the usual rule in this court that each party pay their own costs. That is subject to, inter alia, sub-section (2) which requires the existence of circumstances that justify the Court in departing from the usual rule.
It is accepted that the discretion conferred by s 117 is a broad one and satisfaction as to justifying circumstances is not to be equated with exceptional circumstances (see, for example, Penfold v Penfold (1980) 144 CLR 311).
Whilst the appellants have been wholly unsuccessful on the appeal we are not persuaded, in all the circumstances, that there exist sufficient justifying circumstances as to depart from the usual rule expressed in s 117(1) of the Act. Thus, there will be no order as to costs.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Strickland and Kent JJ) delivered on 28 March 2014.

Associate:

Date: 28 March 2014