Slater & Light
[2013] FamCAFC 4
FAMILY COURT OF AUSTRALIA
| SLATER & LIGHT | [2013] FamCAFC 4 |
FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against an order for indefinite supervised time with the parties’ three children – Whether the Federal Magistrate erred in finding that the father posed an unacceptable risk of emotional harm to the children – Where the father was diagnosed with and being treated for Asperger’s – Where the Court received expert evidence reports from a Court appointed psychiatrist, and the father’s treating psychologist – Where the experts expressed differing opinions as to the issue of risk – Where the finding of unacceptable risk was open on the expert evidence, the recent evidence of the father’s behaviour and the mother’s concerns – Where no error was demonstrated in the Federal Magistrate’s application of the legal principles and exercise of discretion in finding the father posed an unacceptable risk of emotional harm – Whether the Federal Magistrate erred in making an order of indefinite duration for supervised time with the children – Where an order for supervised time was appropriate because a finding of unacceptable risk was made – Where the indefinite supervised time order was not sought by the mother or the Independent Children’s Lawyer – Where the indefinite nature of the supervised time order was not justified in the circumstances and not substantiated by adequate reasons – Appealable error established – Where given the length of time which has passed since the hearing of the matter, and the age of the children and expert reports, a rehearing with further updated expert evidence is necessary – Appeal allowed and issue of the father’s time with the children and the circumstances in which that time should be spent be remitted for rehearing.
FAMILY LAW – APPEAL – COSTS – Where the father and the Independent Children’s Lawyer sought costs certificates in the event the appeal was successful – Where the mother was self represented and incurred no legal costs – Where the appeal being allowed because of error on the part of the Federal Magistrate, the father and the Independent Children’s Lawyer should receive costs certificates in the appeal, and all parties should receive certificates for the rehearing.
| Family Law Act 1975 (Cth) s 60CC Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9 |
| B and B (1988) FLC 91-957 B and B (1988) FLC 91-978 Bennett and Bennett (1991) FLC 92-191 Fitzpatrick and Fitzpatrick (2005) FLC 93-227 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 Johnson and Page (2007) FLC 93-344 M v M (1988) 166 CLR 69 M and M (1988) FLC 91-958 Moose & Moose (2008) FLC 93-375 Rice and Asplund (1979) FLC 90-725 |
| APPELLANT: | Mr Slater |
| RESPONDENT: | Ms Light |
| INDEPENDENT CHILDREN’S LAWYER: | Kendall Hawdon |
| FILE NUMBER: | BRC 12787 of 2007 |
| APPEAL NUMBER: | NA 84 of 2011 |
| DATE DELIVERED: | 5 February 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Strickland & Forrest JJ |
| HEARING DATE: | 9 August 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 22 September 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 1021 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Lynch |
| SOLICITOR FOR THE APPELLANT: | Best Wilson Family Law |
| FOR THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Sara |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Forest Glen Lawyers |
Orders
The appeal is allowed.
Order 6 made by Federal Magistrate Coates on 22 September 2011 be set aside upon the making of further orders by the Federal Magistrates Court.
The issue of the time and the circumstances in which the father should spend time with the children be remitted for rehearing by a Federal Magistrate other than Federal Magistrate Coates.
Each party bear their own costs of the appeal.
The appellant father be granted 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 the appeal.The Independent Children’s Lawyer be granted 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 Independent Children’s Lawyer in respect of the costs incurred by them in relation to the appeal.
The appellant father, the respondent mother and the Independent Children’s Lawyer be granted a costs certificate pursuant to the provisions of s 8 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, the respondent mother and the Independent Children’s Lawyer in respect of the costs incurred by them in relation to the rehearing.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Slater & Light 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 84 of 2011
File Number: BRC 12787 of 2007
| Mr Slater |
Appellant
And
| Ms Light |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
This is an appeal from final parenting orders made by Federal Magistrate Coates on 22 September 2011 in relation to the parties’ three children, aged ten, nine and eight at the time of trial. The orders provided that the mother have sole parental responsibility for the three children, that the children live with the mother and spend supervised time two hours per fortnight with the father. No duration of time or event was specified after which supervised time might cease.
The orders, and the appeal, turn on a finding by the Federal Magistrate of an unacceptable risk of emotional harm to the children posed by the father. As will be seen in our view it is the supervised time order, in particular its indefinite duration, which reveals error by the Federal Magistrate.
The father filed a notice of appeal on 20 October 2011 by which he seeks to appeal all of the orders made. It is apparent from that notice and the submissions of counsel for the father that should the appeal be allowed, an order remitting the matter for rehearing is sought.
Background
This appeal follows a long history of litigation between the parties. Proceedings were first instituted in 2007. Prior to the trial commencing in February 2010, interim orders provided that the children live with the father and spend substantial and significant time with the mother.
At the conclusion of the trial in February 2010, the Federal Magistrate found that he could not make final orders without obtaining a further expert report examining the risk posed to the children by the father. Thus, the Federal Magistrate made interim orders only, including for the provision of a report from a psychiatrist Dr M and for the parties to attend counselling and therapy sessions, and then his Honour adjourned the proceedings.
On 18 March 2010 the Federal Magistrate published reasons and made orders, discharging the interim orders. There was however, no material difference between the two sets of orders, and the latter set were also styled as interim orders. His Honour concluded that an incident of family violence had been perpetrated by the father, and found that on the evidence the children were “at immediate risk of abuse, neglect or family violence” from the father. On this basis, orders were made which drastically changed the prior care arrangements.
The father appealed after the making of the interim orders at the conclusion of the trial on 12 February 2010, and was given leave in June 2010 to instead appeal the 18 March 2010 interim orders. The appeal was heard in November 2010 and dismissed in January 2011. The father argued that the Federal Magistrate erred in finding it was in the best interests of the children for his time with the children to be supervised, for the time spent to be significantly reduced, and in ordering that the mother have sole parental responsibility for the children.
The Full Court found no errors in the Federal Magistrate’s approach to the evidence, his findings or ultimate decision warranting appellate intervention.
Following the Full Court’s decision, the trial was resumed. The Federal Magistrate explained in his final reasons for judgment that he was not holding a new trial of the matter, but rather that the trial would be continued and the evidence finished.
The matter continued over two days. On 18 April 2011 the father, Dr S the father’s treating clinical psychologist, Dr M the Court appointed expert psychiatrist, and Ms K manager of the contact centre gave evidence. On
27 June 2011 the mother gave evidence and oral submissions were made. The father and the Independent Children’s Lawyer were represented by counsel, the mother appeared for herself.
At the commencement of the trial the father sought orders that the children live with him and spend every second weekend with the mother, and that there be joint parental responsibility. At the continuation of the trial (after the unsuccessful appeal and the presentation of further evidence), the father amended the proposed orders to be that the children live with the mother and spend time overnight with him every second weekend.
The mother asked that the children live with her, that she be allocated sole parental responsibility and the children spend time with the father, supervised for a period of six months. She opposed any orders providing for overnight time.
Prior to the hearing of the further evidence, the Independent Children’s Lawyer sought that the children live with the mother, and spend time with the father every alternate weekend. After the evidence was concluded, the Independent Children’s Lawyer altered their position seeking that the children spend time with the father, on a supervised basis for two months, if unacceptable risk was found, and unsupervised if no risk finding was made. We would emphasise that neither party, nor the Independent Children’s Lawyer sought the indefinite supervised time order which was ultimately made by his Honour.
Reasons of the Federal Magistrate
The Federal Magistrate delivered detailed and considered reasons for the final orders. His Honour emphasised that the decision was to be read in conjunction with his reasons delivered on 18 March 2010 and the judgment of the Full Court in the appeal delivered on 11 January 2011. We note that whilst the reasons of 18 March 2010 directly relate to the later reasons now being appealed, those earlier reasons were the subject of an appeal and examination by the Full Court in which no error was found. The father’s appeal must be confined to complaints against the final orders made on 22 September 2011.
The focus of the reasons was the further evidence before the Court, most importantly the recent expert reports, in relation to the father.
To reframe the issues, his Honour repeated at paragraph 15 the specific concerns held about the father identified in his earlier judgment:
a)His attempts at self-harm:
i. The wife described witnessing the father with a noose around his neck, kicking a chair he was standing on from beneath him – with him describing the incident as a “ruse”, which was an odd explanation;
ii.Documentary evidence referring to the paternal grandfather’s similar fears for the father (his son);
iii.Documentary medical evidence recording that he had cut his wrists.
b)His leaving of a noose under a canoe in the yard where the children could be confronted by it;
c)His comments to a counsellor that [X] may suicide upon being disciplined in the mother’s care. Although the father denied making any statements to a family counsellor about [X] suiciding, I accepted the evidence from the counsellor that he did make such a statement;
d)The course I found that he set on to alienate the child [X] from the mother – and the probability that he would follow the same course in relation to the younger children;
e)That he had not abided by parenting plans and orders;
f)That he had a very strong view that only he could provide proper parenting;
g)That he insisted that he had Asperger’s disorder, without evidence;
h)That he insisted the children had or were verging on having Asperger’s disorder;
i)That he had acted generally to generally [sic] the mother’s parenting of the children;
j)That he had used [X] to spy on and report on incidents and functioning in the mother’s household;
k)That he had an alliance-based relationship with [X] rather than a parent-based relationship;
l)That he had constantly, with the children, focused on their weight in order to undermine the mother’s nutritional care;
m)That he used disciplinary methods on the children such as making them run or jump on the spot and where they had to run faster or jump harder if they did not do so to his satisfaction – a teacher thought the discipline was confrontational and rigid and unhelpful;
n)That he had self-assessed these disciplinary methods by reference to studies he read about, but which had no basis in evidence for me to assess;
o)That he had sought to have the children cause minor damage in the mother’s home, such as stuffing toilet paper into the toilet bowl; and
p)That he had told [X] that he did not know why the mother had left him;
The Federal Magistrate expressly referred to those parts of the Family Law Act 1975 (Cth) (“the Act”) which were relevant to the best interests of the children (reasons paragraph 16).
As we have mentioned, the primary contentious issue at trial was whether the father posed an unacceptable risk of harm to the children in terms of emotional abuse. There were three main factors relevant to the Federal Magistrate’s finding that such a risk existed. First, the evidence of two expert witnesses. Second, the recent evidence of the father’s behaviour in making complaints to the Department of Communities. Third, the concerns of the mother.
The obtaining of expert evidence was the basis of the Federal Magistrate’s decision to continue rather than conclude the trial. His Honour accordingly devoted a significant part of the reasons to that evidence. This included consideration of each report separately, and of those parts of the reports which conflicted. The evidence before his Honour was the updated Family Report and oral evidence of Dr M, the Court appointed psychiatrist, and the affidavit and oral evidence of Dr S, the father’s treating clinical psychologist.
At the outset of the reasons the Federal Magistrate summarised the evidence of the two experts. His Honour noted Dr M’s professional opinion that “the father could never shield the children from his negative views of the mother and that the current orders were appropriate” (reasons paragraph 22). His Honour detailed Dr S’ diagnosis of various Asperger’s disorder features, and her evidence “that the father’s acts, about which [the Federal Magistrate] formed grave concerns, could be explained in that he was not receiving assistance at the time of the acts” (reasons paragraph 27). His Honour recorded Dr M’s acceptance of the evidence that the father probably suffered from Asperger’s disorder, and that treatment, as suggested by Dr S may be of assistance to him. Also recorded was Dr M’s concession that Dr S had more experience with the disorder than she did.
His Honour discussed at some length the effect of Dr S’s evidence, the different backgrounds of the two experts and the relevance of their particular expertise to the considerations in the case before him:
69.Dr [M] held the opinion, and not in a critical sense, that Dr [S] as a treating clinician was in a very different position compared with that of an expert evidential clinician, in that the treating professional was always putting forward a view to help their patient.
…
74.It is important to have an understanding of the disorder in arriving at the appropriate parenting orders which would be in the best interests of the children [s.60CA], keeping in mind the beneficial relationship and the protective considerations [s.60CC(2)(a) and (b)]. In treating the father, Dr [S] in her report said he could have unsupervised time with the children and, in fact, family therapy was necessary in order to assist both the children and the father and she put it in terms of being in the best interests of the children and the father.
75.Within the terms of the Act which I have to consider, I have concerns about her evidence, because:
a)She had not seen the children for some time;
b)She knew they were in the professional care of Mr [L] who gave evidence in this matter;
c)My previous orders anticipated Dr [S] and Mr [L] conferring; and
d)She did not contact Mr [L] on the ground that the children were Mr [L’s] clients – a professional/ethical issue.
76.My dilemma is two fold:
a)There was no evidence to say the father’s sudden turn around, because that is how I would describe Dr [S’s] evidence of her treatment of the father’s condition, could be sustained; and
b)How her recommendation for family therapy could be considered a best interests decision for the children to spend unsupervised time with the father, without her being able to consult Mr [L]. Mr [L’s] position is crucial because the father has previously criticised him.
77.So I am left with no positive pathway in order to proceed down the track of family counselling, because the treating psychologist cannot say what the effects on the children may be [s.60CC(3)(d)], especially if such counselling does not work. This is not a matter where I can take a chance that family counselling may work. It is a matter about which I needed specific and considered expert evidence taking into account the effects on the children should such counselling fail and whether that would cause more harm to children who have experienced a very dysfunctional, chaotic family, by and large due to the father’s actions.
…
81.I have indicated that Dr [M] made her decision against the background of the family law dispute. Dr [S] did not make her recommendation taking into account each and every consideration stated in the Act, and although that does not invalidate her evidence, it is an issue I must consider [s.60CC(3)(m)] because I must make a decision in the best interests of the children as the paramount consideration [s.60CA].
82.It is very clear that Dr [S] does hold concerns for the family and the issues going to the breakup of the family unit, but that does not necessarily take into account the very specific considerations stated in the Act at s.60CA being the best interests decision and s.60CC(2), (3) and (4) considerations, which have to be determined with the presumption of equal shared parental responsibility and the living arrangements.
83.As a general statement, family consultants take those considerations into account when giving professional reports because they understand the parameters in which a Court makes a decision.
84.This is where the dilemma of comparing two professional reports, each with different emphasis on the father’s mind, is perhaps burdened with some difficulty.
…
86.What I must do then is take each report and consider it on its own merits as against the evidence.
(emphasis added)
The Federal Magistrate declined to expressly prefer the evidence of one expert over the other. His Honour ostensibly adopted a holistic view of the evidence, both the expert reports and other evidence, in reaching his finding of unacceptable risk:
85.The evidence as a whole points to a risk, the risk being that the father’s beliefs or acts will cause emotional damage to the children. I will go as far as stating that the risk will cause more emotional turmoil for the children, [X’s] past rejection of the mother and [Z’s] past troubled behaviour at school being present examples that these children are at the limits of coping with the parental situation. Evidence of both children now is that they have settled down, that is, responded to the orders in place although the father complaints that they are rejecting him in the supervised centre.
…
96.The risk is that of emotional harm as identified by Dr [M]. I have also not forgotten evidence of self-harm which I am not totally persuaded should be put aside from my considerations, on the basis that I did not accept the father’s evidence in relation to those matters. The emotional harm itself takes the form of the imposition of negative views of the mother, a chaotic regime for the children and steps to a form of alienation. I say form of alienation, because alienation could be expressed either as a total rejection of a parent or partial rejection of a parent, particularly pertaining to [X]. In light of the evidence of [X’s] former view of the mother caused by the father’s interference with [X’s] views, views which have been able to be changed due to the restrictive orders I previously made, I would assess the magnitude of the risk as being in the severe category. I would also make the assessment that the father would, if not for interventions, act in the same manner with the younger children.
…
98.While it could be argued that I should make a decision in the father’s favour because of conflicting evidence which could raise doubt as to the father’s real psyche, this is not a criminal proceeding in which a reasonable doubt is exercised in favour of an accused person. This is a civil proceeding under focused legislation in which the decisions to be made must be exercised in the best interest of the children as the paramount consideration [s.60CA], based on the stated considerations. It cannot be the case that where real doubt arises as to whether a parent has the capacity to self-harm, such evidence extending to an unspecified involvement of the children including comments about [X’s] potential to suicide and the leaving of a noose in the yard, that a decision ought to be made in the father’s favour because such a decision would not be one made in the children’s best interest.
…
100.So all of the acts and facts emanating from the father’s behaviour, whether caused by Asperger’s disorder are [sic] not, are those which are in-issue and those which raise the risk issues.
101.On the balance of probability the evidence strongly suggests that the father – despite receiving assistance for Asperger’s disorder - just cannot prevent himself from acting on his negative views to the detriment of the children – the two recent DOCS complaints being present, unmistakable events – and these acts are directly relevant to the parenting issues traversed during this hearing.
(emphasis added)
The two complaints to the Department of Communities (“DOCS”) referred to by his Honour were canvassed in more detail at paragraphs 36 to 64 of his Honour’s reasons. In August 2010 the father complained to DOCS that the children had witnessed pig shooting. In March 2011 approximately two weeks before the trial, the father complained again to DOCS, that the child X had been given alcohol by the mother. The complaints to the Department were based only on what the children had reportedly said to the father during supervised time.
The father said that as a teacher he had a duty of care to report such things, and explained that he had the best interests of all children at heart. His Honour accepted the father’s belief that he owed a duty of care to the children, however found that there was no evidence of any illegal or dangerous activity in relation to the pig shooting, or any incident with alcohol relevant to a best interests consideration, and that in no way could the evidence suggest that either alleged situation had put the children at risk.
His Honour said:
44.In examining this belief against his attitude to and responsibilities shown as a parent [s.60CC(3)(i)] and his ability to facilitate a continuing close relationship [s.60CC(3)(c)] under the Act, these were matters he should have raised with the mother, whether at the time she was exercising sole parental responsibility or not.
…
57.My view of the evidence is the father jumped to conclusions on what the children have said and I will recognise that, as was repeated by the father, children can say the darndest things.
58. But that is not the issue here.
59. The real issue is the father’s response.
60.He did not raise these issues with the mother, saying he was prevented by orders.
61.No orders prevent him from raising a real child safety concern with authorities or his lawyers.
62.He said he raised the issue with his lawyers who advised him to let it go and to contact DOCS. I note the conflicting alleged advice.
63.His lawyers were not in the witness box. I cannot imagine that in parental proceedings that should a complaint come to a parent’s lawyer – that the other parent was acting in a manner which could have harmful effects for a child – that correspondence of the allegation would not be posted of faxed or e-mailed immediately.
64.On both issues, it is the controversy between the parents, the continued disputation which arose on the father’s complaints which is more likely to be against the children’s best interests than if the activities alleged had occurred.
Having found unacceptable risk, his Honour turned to consider the orders which should be made. We note his Honour’s earlier comment at paragraph 95 as to the Independent Children’s Lawyer’s submissions, which set out relevant statements of this Court in relation to restrictions on time and contact with an abusive parent. We consider it of significance in the appeal that his Honour did not refer to those authorities in the reasons, in particular omitting the statements by this Court, that long term indefinite supervision orders are not in the best interests of children, to which the Independent Children’s Lawyer referred in her submissions.
In relation to supervised time and parental responsibility his Honour said:
102.I am not going to implement a regime for the children where they will spend unsupervised time with the father, the evidence not showing as to how such orders would be in the best interests of the children. At paragraph 28 above I referred to the father’s case that Asperger’s disorder should be eliminated from the considerations going to the best interests of the children because he is receiving treatment, but that is at the very hub of this case and it is up to him to bring before the Court evidence that her [sic] can control himself.
103.In conjunction with my reasoning given in the first judgment, I am not going to make an order for equal shared parental responsibility. The father will not be able to control his negativity and will work against the mother’s decisions and cause confusion and more chaos – a word used in the description of the family circumstances – for these children. I do not see how the children could then develop pursuant to the objects and principles expressed in the Act [s.60B].
104.For the second time, the first being stated in the first judgment, how long can supervision be put in place for? It must remain until the children are at an age where they can protect themselves from the father’s views which completely undermine the mother.
…
106.As to particular orders, I am changing the weekly time the children have spent with the father to fortnightly time. It has become totally impractical for them to be taken to a contact centre each week in that they need to be able to cope with the situation as well as needing to attend to extracurricular activity outside school. That type of activity occurs at weekends.
(emphasis added)
The orders flowing from these conclusions have been set out at the commencement of these reasons. In light of the substantial complaint about the indefinite nature of the supervised contact order, we note his Honour’s concluding remark about possible review of the orders:
109.Lastly, are these orders those least likely to lead to the institution of further proceedings [s.60CC(3)(l)]? That depends on evidence of the father’s ability to provide parenting in line with the parenting provisions of the Act. In a case such as this, it could never be in the children’s best interests to cut off all avenues for judicial reassessment of the father’s psychological status – matters relevant to the best interests decision.
The Appeal
The father’s notice of appeal raised three grounds:
1.The learned Federal Magistrate erred in finding there was an unacceptable risk of harm to the children.
2.The learned Federal Magistrate erred in ordering the mother have sole parental responsibility for the children.
3.The learned Federal Magistrate erred in making a long term indefinite supervision order.
At the hearing of the appeal counsel for the father submitted that grounds 1 and 3 are linked, in that the finding of unacceptable risk led to the ordering of supervised time. Counsel advised that ground 2 would be abandoned because it would not lead to the appeal being allowed if the other grounds were not made out.
Relevant Law
The principles relating to appeals from discretionary judgments are well settled, as enunciated in House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513. In House v The King Dixon, Evatt and McTiernan JJ said (at 504-505):
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 discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In Gronow v Gronow Stephen J stated (at 519):
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.
Consideration of risk of emotional abuse stems from the mandatory considerations under the legislation. Section 60CC(2)(b) requires the Court, in determining the best interests of the child, to consider as a primary consideration, “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.
The assessment of risk is guided by statements of the High Court and of this Court, albeit primarily in the assessment of risk of sexual abuse. In M and M (1988) 166 CLR 69 the High Court confirmed that consideration of abuse is not confined merely to a determination of the occurrence or risk of occurrence of abuse, but must be within the context of the Court’s broader and ultimate determination, that is, what arrangements are in the best interests of the child. In joint reasons for judgment, their Honours (Mason CJ, Brennan, Dawson, Gaudron and Toohey JJ) said (at p76-77):
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities. …
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Their Honours noted cases addressing magnitude of risk and appeared to prefer a standard of “unacceptable risk” in relation to parental access (at p78):
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A. v. A. (17)), “an element of risk” or “an appreciable risk” (Marriage of M. (18)), “a real possibility” (B. v. B. (Access) (19)), a “real risk” (Leveque v. Leveque (20)), and an “unacceptable risk”: In re G. (A minor) (21). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In B and B (1988) FLC 91-978, a judgment delivered together with the decision in M v M, the High Court endorsed the statement of the Full Court majority (Baker and Maxwell JJ) in both M and M (1988) FLC 91-958 at p76,924 and in B and B (1988) FLC 91-957 at p76,935:
We are of the view as a matter of general principle, that in assessing whether or not there is risk to a child if access were to occur or risk that the welfare of a child could be endangered in the event of access, the ordinary civil standard of proof must be applied. If a trial Judge considers, upon the balance of probabilities, that the welfare of the child may be endangered or there is a risk that the child may be physically, sexually or emotionally harmed if access were to occur, then a trial Judge may, in our view, suspend access.
In Johnson and Page (2007) FLC 93-344, the Full Court (May, Boland and Stevenson JJ) conducted a comprehensive review of the application of “unacceptable risk” following the High Court’s decision in M v M, and agreed with an enumeration of factors expressed by a former judge of the Family Court the Hon. John Fogarty A.M writing ex-judicially:
68.In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
1 The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2 The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
…
71.We generally agree with Mr. Fogarty’s seven point summary (see paragraph 68). We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638).
While the making of orders for supervised time is an exercise of discretion, statements from the Full Court of this Court have sought to give specific guidance where such orders are to be made for an indefinite or indeterminate period. In Moose & Moose (2008) FLC 93-375, the Full Court (May, Boland and O’Reilly JJ) agreed that an appeal against orders for indefinite supervised time should be allowed.
May J considered the specific issue of ensuring sufficient reasons for such orders and noted the difficulties faced in future review:
8.Should the father bring a further application asking for the provision in relation to supervision at the Contact Centre be removed, his case doubtless would be met with an assertion that he may not do so because there have [sic] been no change in circumstances (Rice & Asplund).
…
10.In my view, where an order is made that the time a parent spends with a child be under supervision indeterminately, there would need to be cogent reasons to support such orders. Apart from expressing, quite properly, a concern about the mother’s emotional reaction to the children seeing their father which was consistent with the evidence…his Honour did not provide reasons to support these orders. In addition, his Honour should have made orders which would allow for some review of the situation in the future as suggested by the family consultant…
Boland J commented on the general undesirability of long term supervised contact and similarly expressed May J’s concern about orders providing for their own review:
119.The undesirability of, and the practical difficulties associated with long term supervision in a children’s contact centre are referred to in the Guideline for Family Law Courts and Children’s Contact Services January 2007, Part C 4.1.1 and 4.1.2 (published by the Attorney-General’s Department, the Family Court of Australia and the Federal Magistrates Court of Australia). In Fitzpatrick & Fitzpatrick (2005) FLC 93-227, May J, having found that the evidence in the case “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised…”, then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then explained “[w]hilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored”. (See also W & W [Abuse allegations: unacceptable risk] (2005) FLC 93-235, (2005) 34 Fam LR 129 at paragraph 114).
120.His Honour’s reasons omit consideration of the family consultant’s oral evidence, the recommendations of the ICL, or discussion of the practical long term effects on the children of an indefinite order for supervised contact in a children’s contact centre, nor do the orders reflect his Honour’s findings that the children should spend more and more time with the father as “they get older”. Thus, I am satisfied this complaint has merit.
Though not raised specifically as a ground of appeal, it is apparent from
ground 3 that a claim of inadequacy of reasons for the indefinite supervision order is agitated on behalf of the father. The appellate principles relating to adequacy of reasons are well settled and were expressed by the Full Court in Bennett and Bennett (1991) FLC 92-191 and need not be repeated here other than one small part (at 78,267):
The important thing is that the appellate court must be placed in the position of being able to follow the trial Judge’s line of reasoning, as must the parties, if they are to be satisfied that justice has been done.
Discussion
We agree with counsel for the father that ground 3 in relation to the order for supervised contact is inherently connected to ground 1, the finding of unacceptable risk of emotional harm. We will therefore consider the evidence pertaining to the two issues together.
The expert evidence before the Federal Magistrate was in the form of a psychiatric report of Dr M dated 4 August 2010 (as per court order
18 March 2010), and a report of the father’s treating psychologist Dr S dated
9 February 2011.
Evidence of Dr M
The report provided by Dr M was based on an interview with the father on
26 July 2010 lasting an hour and a half, and an interview with the mother on
3 August 2010 lasting an hour. Dr M outlined her understanding of the relevant background to the matter, including the findings of a range of psychologists which the parties had seen during the course of the proceedings. Dr M acknowledged that the father at that time continued to see
Dr S, and had ceased to see another psychologist, Mr L, who the father said was the “driving force behind him not seeing the children”.
The opinion and recommendations of Dr M were as follows:
OPINION
Perusal of the material and the clinical presentation of both parents leads me to the conclusion that [the father] does suffer from Asperger’s syndrome and that his rigid views and incapacity to empathise combined with a certain grandiosity renders him unlikely to be able to perceive the negative effects of his comments to the children. I think it highly improbable that he would ever be able to shield the children from his negative views of the mother.
It seems to me that the mother has a much more realistic appraisal of the children and is more aware of their developmental needs. It is my view that the current Orders are appropriate and that supervision of contact between the father and the children should continue.
Both experts were called as witnesses at the final hearing in April 2011. In cross examination by the mother, Dr M answered questions in relation to her recommendation about supervised time (Transcript, 18 April 2011 page 70, line 21 – page 71, line 7):
[MOTHER]: The only question that I do have is if [the father] were to get the orders that he seeks today, what could you recommend to the court as a safety net for my children if all goes wrong?...In your opinion, after your previous opinion being of that [the father] should not have unsupervised time with the children ---?
[DR M]: ---Yes…I think that even if things are going better as a result of his therapy, even if he learns techniques to deal with his condition, there is always going to be a probability that he will continue to be critical of your parenting and that he will convey this view to the children. It was on those grounds I felt that supervision was probably the most satisfactory outcome, even with all the difficulties that it brings with it. So I suppose it boils down to whether or not the court finds that he is or is not an unacceptable risk. If he does have unsupervised contact with the children, it’s my view there is going to be a risk of emotional abuse to the children as a result of doubt being cast as to your parenting ability and I can’t see that there could be an effective safety net.
Counsel for the father cross examined Dr M about the supervised contact time the father had already had with the children (Transcript, 18 April 2011 page 75, line 44 – page 76, line 8):
[MR LYNCH]: …Well, I would suggest to you that it has been – there has been supervised contact for some 13 months now? ---Right
Would you expect in light of that that there would be some negativity during these contacts, if it is that the person can’t be taught?---I never said that a person could not be taught, I said that a person with this condition could be taught to modify – that they could be taught techniques which ameliorate the condition. But I would think that if somebody – if supervision had been going for 13 months and there had never been any negative behaviour by the father than that would give grounds for optimism that he could have some control. But I do think that being under scrutiny would have a considerable effect.
Counsel for the father also explored with Dr M a recommended length or period of supervised time, not specified in her report, and in relation to the effect of the father’s treatment with Dr S (Transcript, 18 April 2011 page 73, line 25 – page 76, line 27):
[MR LYNCH]: …Was there any – there is obviously downsides that a lay person such as myself can envisage in there being supervised time with children who are becoming older - - -? ---Yes….
And does that down side continue to increase in terms of – relative to their ages?--- Well, there’s always going to be a lack of spontaneity and as they age and develop, it’s more likely that their interests can’t be met inside a contact centre.
...Okay, well, to that end, can I ask you to comment – does your report recommend that it be supervised forever until the children are adults?---I doubt that that would work but I think at any stage when supervision doesn’t occur, there is going to be a risk of alienation against the mother.
…Well is it fair to say that in terms of that risk, it’s relative to the ages of the children? So children, I think as you said earlier, as they become older become more independent?---Yes.
And secondly, is it the case that it’s subject to the opinion of Dr [S] that a sufferer can be treated to an extent?---I’m not sure. I don’t know, I certainly can’t second guess what Dr [S] would say but I think treatment involves some sort of amelioration of the effects of the conditions by teaching the sufferer techniques. Things are, if you like, rote learned rather than spontaneously felt. The condition is all about the difficulty of interaction and communication because of a lack of empathy and a lack of understanding of other people’s feelings. Now, the sufferer can learn techniques to deal with this but the original condition remains.
…
My report was limited to a psychiatric assessment of the parties to ascertain whether either of them had a psychological disorder which would impair their parenting. I certainly didn’t go into the mechanics of what contact would be appropriate…I gave an opinion about how the father’s condition might affect the children.
(emphasis added)
Evidence of Dr S
Dr S commenced her report by outlining the history of sessions with the father, which included individual and group sessions (with the mother and the paternal grandmother). Dr S saw the father on an individual basis approximately twelve times between March and September 2010. The doctor diagnosed the father with Asperger’s Syndrome in May 2010 and this was confirmed by another psychologist. In relation to the father’s contact with the children, Dr S said:
8. In my professional opinion if [the children] were to resume residency with [the father], or if [the father] were to have full access to his children, [the father] would pose no physical or emotional risk to his children. On the contrary, [the father] has consistently shown that his first priority is his children’s welfare and well being. He has taken a very logical and methodical approach to his responsibilities as a parent and has shown appropriate affection towards his children. However, because of undiagnosed Asperger’s Syndrome, this has at times been misinterpreted and appeared obsessive and unnatural to others unaware of [his] Asperger’s Syndrome. …
9.In my opinion, due to the features of undiagnosed Asperger’s Syndrome, [the father’s] intentions and behaviour have been misinterpreted at times by both laypersons and professionals, due to their not being fully conversant with Asperger’s Syndrome in adults….
Whatever the decision regarding residence, I believe that it is in the children’s and [the father’s] best interests that [he] have free access to his children. As I do not believe [the father] poses any risk to his children’s well being, this could commence immediately.
However, difficulties between [the father] and [the mother] also need to be addressed, as they will need to develop a reasonable working relationship for their children’s sake. I therefore recommend that [the father] and [the mother] attend relationship counselling in an effort to develop an appropriate working relationship in the context of having shared children…I also recommend, as stated above that [the children] and [the mother] receive psychoeducation regarding Asperger’s Syndrome, as this will facilitate better communication and reduce potential conflict in family relationships.
(emphasis added)
Dr S gave oral evidence, and was cross examined by the mother and counsel for the Independent Children’s Lawyer. The mother queried the effect of the father’s Asperger’s on his ability to deal with the pre-teen aged daughter (Transcript, 18 April 2011 page 52, lines 5-39):
[MOTHER]:…you mentioned that Asperger’s people tend to say things that come straight to their thoughts…How do you think that would work in a scenario of – we have a daughter…who’s nearly 11. She’s going through pre-teens at the moment. …How is [the father] going to act compassionately and understand her vulnerabilities that she may be feeling at the time if part of the Asperger’s syndrome’s natural reaction is to verbalise his thoughts?...---Well, the thing is, [the father] is now aware of this and he has been working on not verabalising his thoughts as soon as he has them, and that’s very possible because I – you know – I work with children who manage to do this. We teach them to think it, don’t say it. As long as he has a good knowledge of that developmental stage of [the daughter] I don’t see that there would be any problem there…as long as there is good communication and – and that [the father] is aware of, you know, what’s occurring for [the daughter] – if he has some education in this. And he’s bright enough to find that. He has very good research skills, and he’s very aware of the different needs of children at different developmental ages.
Counsel for the Independent Children’s Lawyer raised with Dr S the issue of her being, because of her therapeutic role, “client focussed” on the father (Transcript,18 April 2011 page 53, lines 35-46):
[COUNSEL FOR ICL]: …Firstly, the purposes of your sessions with [the father] are to assist him dealing with his Asperger’s?‑‑‑Yes.
…
And, of course, first and foremost you need to be client focussed particularly in relation to him and in writing your report?‑‑‑Definitely.
And that’s very different, isn’t it, to having a children focus, so to speak, because the children in this matter aren’t your clients?‑‑‑Well, that’s right, they are not my clients.
Counsel for the Independent Children’s Lawyer also questioned Dr S about what changes and progress had been made by the father in her treatment of him (Transcript, 18 April 2011 page 54, line 25 – page 55, line 37):
[COUNSEL FOR ICL]: Now, has [the father] changed in regards to his parenting since you’ve been seeing him?‑‑‑Has he changed in regards to his parenting?
Yes?‑‑‑I can only give you comments on that in relation to [the father’s] reports to me in regards to the supervised supervision. Okay.
Well, shall I rephrase the question and make it a bit more specific then. Has [the father] changed in himself?‑‑‑Yes.
What changes have you seen throughout the course of the counselling?‑‑‑Okay. The changes I have seen - that he’s more willing to accept alternate opinions. That’s been a very - a very marked change. He has a better understanding of - let’s see - he has a better understanding of the - I’m just trying to find the right words here - of the fact that perhaps his - the degree to which he - he was wanting to be a good parent for his - for his children was maybe more than what most fathers would do, put it that way.
What do you mean by that?‑‑‑Well, as I said in my report, that [the father] very much has his children’s welfare at heart and he was aware of certain needs within his - of children and he was trying to - to provide the children with opportunities to build those - to build those characteristics that he felt was important and that a child should learn as they were growing up. And he was very dedicated to that….He is certainly being able to communicate more effectively what he’s thinking and what he’s feeling. He is less tangential, so he had the - a tendency in attempts to provide a lot of detail so people would understand him to give too much detail and that would lose the other person and also can come across as quite obsessive about things.
…
All right. Now, have you spoken to him about appropriate discipline techniques for the children and parenting strategies?‑‑‑We have, yes.
And do you think that [the father’s] views have changed in that regard?‑‑‑I’m just recalling some of the things that we have done with that. Yes, I do, I think they have changed in that regard.
What types of strategies and parenting - well, what type of parenting strategies have you discussed with [the father]? For example, in relation to discipline?‑‑‑To discipline, okay. Well, we’ve talked about reinforcing appropriate behaviour. We’ve talked about consequences, about the preference for natural consequences and restitution as consequences. We’ve talked about using quiet time, particularly in terms of [the child Z]. We have talked about appropriate expectations of the child’s behaviour as well in terms of addressing the type of discipline that might be given.
We note that the Federal Magistrate was aware of the differences in the opinions contained in the expert reports and raised the issue with Dr S in questions himself (Transcript, 18 April 2011 page 58, line 31 – page 59, line 12):
HIS HONOUR: Have you read the opinion of Dr [M] [sic]?‑‑‑I have, but I haven’t read it again this morning. I read it ‑ ‑ ‑
All right. Well, her conclusion was this:
Perusal of the material and the clinical presentation of both parents leads me to the conclusion that [the father] does suffer from Asperger’s Syndrome and that his rigid views and incapacity to empathise, combined with a certain grandiosity, renders him unlikely to be able to perceive the negative effects of his comment to the children. I think it highly improbable that he would ever be able to shield the children from the negative views of the mother.
Now, given that Dr [M] has also included that he suffers from Asperger’s Syndrome, but that her opinion is that the father could not ever shield the children from his negative views, does that change or influence you in the opinion you have come to?‑‑‑Okay. My comment on that would be - is that I would not agree with that opinion. Okay. In terms of the - I believe that people with Asperger’s - and I’ve seen this in clinical experience - that adults with Asperger’s with education, with appropriate intervention, can inhibit certain behaviours that may negatively affect their relationships with their partner or their children. …So, as I said, the issue of adults with Asperger’s Syndrome is very new. It really is. And it’s only the last couple of years that we’ve actually been providing specific intervention. And there is some good research that is showing some - some outcomes, good outcomes for this. But also clinically I have seen within my own practice that it has made a very big impact.
(emphasis added)
Counsel for the Independent Children’s Lawyer also put to Dr S directly the issue of whether she had considered the best interests of the children as understood within the provisions of the Act (Transcript,18 April 2011 page 64, line 30 – page 65, line 8):
[COUNSEL ICL]: …Now, you’ve said it’s in the best interests of the father and this is your third last paragraph – I’m sorry second last paragraph. You say:
I believe it is in the children’s and [the father’s] best interests that [the father] have free access to his children.
Now, you certainly believe it’s in [the father’s] best interest and he is your client?‑‑‑Yes.
When you made that recommendation for the children had you taken into consideration the sections of the Family Law Act considering the best interests of the child?‑‑‑Not specifically.
Are you – are you familiar with those sections of the Act?‑‑‑No, I’m not. …Yes, children can be greatly affected by Asperger’s in a parent and I suppose that’s where I’m getting at. If they – they need the education. They need contact with [the father] and to be able to develop a relationship with him.
(emphasis added)
Submissions of the parties
Counsel for the father submitted that in coming to the conclusion that the father posed an unacceptable risk, his Honour failed to give adequate consideration to Dr S’s evidence about the father’s condition and prognosis. It was also submitted that his Honour failed to give adequate weight to Dr M’s evidence that she did not have as much experience dealing with Asperger’s syndrome as did Dr S. In relation to his Honour’s comment that he was faced with two opposing professional opinions, counsel said “the evidence did not bear out the opposing professional views”.
It was also noted, as will be discussed further below, that the Independent Children’s Lawyer submitted in the trial that there was not an unacceptable risk to the children. Counsel for the father accepted that some risks were present, however submitted in effect that these were acceptable risks that could be dealt with by appropriate orders.
In relation to ground 3, counsel for the father submitted there was a significant body of authority in this Court cautioning against the making of indefinite supervision orders. We were referred in particular to the judgment of May J in Fitzpatrick and Fitzpatrick (cited above in Moose & Moose) and the effect supervised contact has on the emotional wellbeing of children.
Counsel complained that the effect of the order was further exaggerated because it cut back the father’s time with the children from two hours per week to two hours per fortnight, in circumstances where no party had expressly sought that order. It was acknowledged that there were sensible reasons for so doing, namely enabling the children to partake in other weekend activities and to go on holiday, however counsel questioned whether any meaningful relationship was possible in such time and under such conditions.
It was submitted for the father that the phrasing of the orders as final orders, with no clause or provision for revisiting the supervised contact issue, meant he would need to establish a significant change of circumstances in seeking alterations to the orders (Rice and Asplund (1979) FLC 90-725).
In the mother’s written and oral submissions, she relied on the evidence of
Dr M to support as correct the Federal Magistrate’s finding of unacceptable risk of harm to the children. In relation to the indefinite supervision order, the mother referred to paragraph 104 of the reasons where his Honour expressed the view the time should be supervised “until the children are at an age where they can protect themselves from the father’s views which completely undermine the mother”. The mother referred also to paragraph 109 where his Honour stated “it could never be in the children’s best interests to cut off all avenues for judicial reassessment of the father’s psychological status”. The mother asked that in the appeal, paramount consideration be given to the best interests of the children and that we should consider whether the litigation should continue, possibly exposing them to further risk of emotional harm.
Position of the Independent Children’s Lawyer
In light of apparent changes in the Independent Children’s Lawyer’s position regarding the risk the father posed to the children between the written and oral submissions at trial, and now on appeal, it is as well to summarise the submissions made by her counsel. We note also, that counsel who had appeared throughout the course of the trial also prepared the submissions in the appeal, however at short notice was unable to appear at the hearing of the appeal.
In the written submissions before his Honour filed 27 June 2011, the Independent Children’s Lawyer did not express a view about whether or not there was unacceptable risk.
In oral submissions at the close of the trial, the Independent Children’s Lawyer took a more definite position on the existence of unacceptable risk of harm. Counsel submitted that the children were not at an unacceptable risk of harm with the father (Transcript, 27 June 2011 page 52, lines 10-14), and that upon the evidence a finding of unacceptable risk should not be made (Transcript
27 June 2011 page 54, line 45). Counsel further submitted that the circumstances of the case did not meet the threshold for such a finding, and that the way of managing the best interests of the children was to put in place the graduated time regime sought by the Independent Children’s Lawyer which would enable a “slow reintroduction of greater time with the father” (Transcript, 27 June 2011 page 55, lines 3-5).When addressing the possibility of supervision orders, counsel submitted that indefinite supervision was “not a workable order” (Transcript, 27 June 2011 page 57, line 9), and that a contact centre was not going to be a sustainable environment for the children. Counsel referred to Moose & Moose, specifically the suggestion that long term supervision is generally not in the best interests of children. (Transcript 27 June 2011 page 58, lines 33-36) It was counsel’s submission that there was a “moving continuum”, that the children were becoming more stabilised as they became older, and that that stability would only increase (Transcript, 27 June 2011 page 57, lines 20-23).
In the submissions in the appeal, it was submitted for the Independent Children’s Lawyer that the Federal Magistrate did not err in his finding of unacceptable risk of harm to the children. The written submissions outlined that given the conflicting expert evidence, his Honour’s approach of considering both reports on their merits against the evidence was correct; that his Honour was not bound to follow the submissions of the party; and that when read in conjunction with the interim reasons for judgment, his Honour’s findings appear to be adequately explained and are largely attributable to the father’s own admissions and findings of credit.
In respect of ground 3, it was submitted for the Independent Children’s Lawyer that such an order was open to the Federal Magistrate given the finding of risk, regardless of the proposed orders of the parties. It was nonetheless submitted that ground 3 should succeed, because given the gravity of the order, the reasons for such an order required greater detail and analysis than was provided in his Honour’s reasons.
At the appeal hearing, counsel for the Independent Children’s Lawyer submitted that the principle of the need to finalise litigation for children will be offended if the appeal is allowed, but also submitted that it is difficult to see how an unlimited supervised time order would operate effectively into the future. The Independent Children’s Lawyer therefore seeks orders that the appeal be allowed in part and the matter be remitted for hearing on the discrete point of what supervision orders should be made.
Conclusion
We consider no error has been demonstrated in the Federal Magistrate’s application of the legal principles and exercise of discretion in finding that the father posed an unacceptable risk of emotional harm to the children. Such a finding was open to his Honour based on the expert evidence, the recent evidence of the father’s behaviour in complaining to the Department of Communities, and the mother’s concerns. Ground 2, as counsel conceded, also must fail.
Flowing from this finding, his Honour was correct to find that an order for supervised time should be made. We do consider appealable error has been made out however in ground 3, as an indefinite supervision order was not justified in the circumstances and in any event was not substantiated by sufficient reasons. It is also relevant to the success of this ground that the orders did not at least provide an opportunity for the father to apply to vary the supervision arrangements at a later time. That the father could bring such an application is no solution given that on the basis of Rice and Asplund he would need to establish significant changed circumstances before being permitted to have his case heard on the merits.
It could not be said from the Federal Magistrate’s reasons that the real intention was for the supervised time orders to be final in the sense that the father was never again to spend unsupervised time with the children. Thus some provision reflecting this ought to have been made in the orders.
In determining the proper order this Court should make, we regard the time which has elapsed since the hearing of this matter, together with the age of the children and the expert reports, as being of some significance. A rehearing, with further updated expert evidence about the time and the circumstances in which the father should spend time with the children is necessary.
It is expected that within a relatively short time frame interim orders will be made about the father’s time with the children. The existing orders will then be set aside.
Costs
In the event that the appeal was successful, the appellant father and the Independent Children’s Lawyer sought costs certificates. The mother was
self-represented and had incurred no legal costs.
In these circumstances, where the appeal has succeeded in part on an error of law, we consider there is no reason why any party would pay the costs of the other and costs certificates should be granted to the appellant father and the Independent Children’s Lawyer in relation to the appeal, and to each party in the rehearing.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Strickland & Forrest JJ) delivered on 5 February 2013.
Associate:
Date: 5 February 2013
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