SS & AH

Case [2010] FamCAFC 13

FAMILY COURT OF AUSTRALIA

SS & AH [2010] FamCAFC 13
FAMILY LAW - APPEAL – CHILDREN – Wishes of the children – Weight to be attributed to children’s wishes – Children aged 15 and 11 – Both children expressed strong wish not to see the mother – trial Judge entitled to place significant weight on children’s wishes
FAMILY LAW - JUDGMENTS – Sufficiency of reasons – Reasons delivered ex tempore by trial Judge – Evidence fresh in trial Judge’s mind – Where trial Judge made orders preventing mother from initiating contact with child – Decision open to trial Judge based on evidence before his Honour
FAMILY LAW - ORDERS – Where the trial Judge made orders that resulted in the suspension of an established parenting regime – Where the trial Judge made orders preventing the mother from initiating contact with the children
FAMILY LAW - PRACTICE AND PROCEDURE – Where further hearing of applications for final parenting orders were deferred in order to await the outcome of an appeal against interim parenting orders
FAMILY LAW - EVIDENCE – Whether trial Judge made findings of fact on contentious issues based on untested evidence – Where trial Judge had the benefit of being able to assess the self-represented litigants at the interim hearing – Where controversial findings did not constitute the ratio of the trial Judge’s decision – Insufficient basis to require appellate interference
FAMILY LAW - EVIDENCE – Family Consultant – Weight to be attributed to Family Consultant’s recommendation – Where Family Consultant had not had the opportunity to undertake a thorough assessment – Where the Family Consultant’s evidence was the only reliable evidence of the views of the child – Where the father and mother were given the opportunity to cross-examine the Family Consultant but in circumstances where they were both unrepresented and had no prior notice of what the evidence would be
FAMILY LAW - EVIDENCE – Further evidence – admitted by consent – further evidence does not indicate that the trial Judge’s decision was erroneous
Family Law Act 1975 (Cth)
AMS v AIF (1999) 199 CLR 160
CDJ v VAJ (1998) 197 CLR 172
Goode and Goode (2006) FLC 93-286
Rice and Asplund (1979) FLC 90-725
Rollings v Rollings (2009) 230 FLR 396
APPELLANT: SS
RESPONDENT: AH
INDEPENDENT CHILDREN’S LAWYER: Jan Kingston
FILE NUMBER: BRF 1070 of 1999
APPEAL NUMBER: NA 94 of 2008
NA 95 of 2008
NA 51 of 2009
DATE DELIVERED: 5 February 2010
PLACE DELIVERED: Perth
PLACE HEARD: Brisbane
JUDGMENT OF: Boland, Thackray & O'Ryan JJ
HEARING DATE: 4 August 2009
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 30 September 2008
29 September 2008
10 June 2009
LOWER COURT MNC: [2008] FamCA 821
[2008] FamCA 823
[2009] FamCA 519

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Couper QC
COUNSEL FOR THE RESPONDENT: Self represented litigant
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Drysdale
SOLICITOR FOR THE APPLICANT: Self represented litigant
SOLICITOR FOR THE RESPONDENT: Self represented litigant
SOLICITOR FOR THE INDEPENDENT…

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AGLC
SS & AH [2010] FamCAFC 13
Case
[2010] FamCAFC 13
Decision Date

CaseChat Overview and Summary

In the case of SS & AH, the appeal involved the decision-making process of a trial Judge regarding interim custody arrangements for two children. The primary dispute was whether the trial Judge erred in his handling of the evidence and recommendations provided by a Family Consultant. The mother contested the trial Judge's acceptance of the Family Consultant's evidence, particularly the Consultant's caution about pressuring one of the children to have a relationship with her mother. The mother argued that the Consultant's qualifications were insufficient to provide meaningful evidence, and that the Consultant's brief assessment was inadequate for making significant interim decisions.

The legal issues before the court were whether the trial Judge had correctly exercised his discretion in accepting the Family Consultant's evidence and whether there were any grounds for rejecting that evidence. The court needed to determine if the trial Judge's decision was supported by the evidence and whether the Consultant's qualifications and the comprehensiveness of his assessment were sufficient to justify his Honour's reliance on the Consultant's views.

The court reasoned that the trial Judge's acceptance of the Family Consultant's evidence was based on the Consultant's findings concerning the children's wishes and experiences, which were not influenced by the father. The trial Judge had noted that the Consultant had acknowledged the limitations of his assessment due to the time constraints but did not rule out supervised visits at a later stage. The court found no basis to reject the evidence, as the Consultant's qualifications and the evidence presented were relevant and sufficient for the interim decision. The court concluded that the trial Judge had exercised his discretion appropriately, considering the evidence and the best interests of the children.

The final orders of the court were to dismiss the appeals, allowing either party to make written submissions regarding costs incurred during the appeal, and setting a timeline for these submissions. Each party was required to endorse the cover sheet with the date of service of these submissions on the other party.

Orders

Orders of the court

1.

That appeals number NA 94 of 2008, NA 95 of 2008 and NA 51 of 2009 be dismissed.

2.

That either party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the appeal by filing such submissions at the Northern Region Appeal Registry of the Family Court and serving them on the other party within 21 days of the date hereof.

3.

That the other party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Northern Region Appeal Registry of the Family Court of Australia and serving them on the other party.

4.

That either party be at liberty to reply to an answer by way of written submissions by filing such reply at the Northern Region Appeal Registry of the Family Court of Australia and serving it on the other party within a further 7 days.

5.

That each party endorse on the cover sheet the date on which a copy of that submission was served on the other party.

Background

Background to the litigation

His Honour then noted that the factors to be taken into account were set out in s 60CC of the Family Law Act 1975 (Cth). He recited paragraph 82 from Goode and Goode (2006) FLC 93-286, which he said provided a succinct summary of the process to be followed in interim hearings. Portion of paragraph 82 is reproduced below, together with the preceding paragraph (the emphasis is ours): 81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed. 82. In an interim case that would involve the following: (a) identifying the competing proposals of the parties; (b) identifying the issues in dispute in the interim hearing; (c) identifying any agreed or uncontested relevant facts;(d)considering the matters in section 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);… The trial Judge noted that each party was seeking significant changes to the existing orders. He said he had informed the mother:that it would be most unusual to accede to her application for fulltime care of the two children on an interim determination such as this in view of the fact that the orders were made on 10 June 2005 and since that time the children have lived with their father. His Honour then recorded that, in the alternative, the mother sought reinstatement of her time with J and had submitted that there was no basis for that to be supervised. However, in light of the views J had expressed, the mother was prepared to accept supervision “if that’s what it takes”. The trial Judge next recorded that the Family Consultant had given details of K’s argument with the mother. K claimed her mother had referred to her as a “lying cow”. His Honour noted that K had informed the Family Consultant that the mother always said “bad things” about the father and that the arguments between K and the mother had been increasing in intensity over a period of years. The trial Judge next noted that the Family Consultant had said “he would be cautious about pressuring [K] to have a relationship with her mother”. His Honour also recorded that the Family Consultant had acknowledged it was “difficult to make full recommendations without a comprehensive assessment and that could not be done in the timeframe which was available”. His Honour also noted that the Family Consultant had not ruled out supervised visits “at some point”. His Honour then observed “there are very few agreed or uncontested facts in this matter”. He said he believed it was common ground the children should remain at their current school and he proposed to so order. His Honour then commented on the future conduct of the matter, which he anticipated would require four days at trial, which could not be accommodated before March 2009. He said that in those circumstances he intended to adjourn the matter to late November 2008, by which time he hoped that an Independent Children’s Lawyer would have been appointed, and that at that time he would “review the question of supervision”.

Evidence

Evidence Before The Court

We assume this complaint arises out of paragraph 62 of the reasons, in which his Honour said this (our emphasis added):… It is a heart wrenching decision, I can assure you for any Judge at any time to make a decision limiting a child’s contact with a parent. I only do it with the greatest of reluctance and only when the evidence compels me in that direction. The discretion a Judge exercises is a discretion that has to be based on evidence. I can only reject evidence if there are sound grounds for doing so. I see no basis for rejecting the evidence of [the Family Consultant]. There will be a degree of continuity in the children’s lives. They will be at the same school. They will spend all of their time in the father’s household. Previously, [K] did spend time in the mother’s household. In making these observations it is not immediately apparent to which part of the evidence of the Family Consultant his Honour was referring. His Honour may have been referring to the evidence concerning what had been said in the Family Consultant’s interviews with the children and his assessment that there was no indication that their views had been influenced by the father. Alternatively it is possible he may have been referring to paragraph 42 of his reasons in which he had recorded that the Family Consultant had “ventured the opinion that he would be cautious about pressuring [K] to have a relationship with her mother”. The submissions made by counsel for the mother concerned his Honour’s acceptance of the “brief recommendation” made by the Family Consultant. However, we think it is at least as likely that in declining to reject the evidence of the Family Consultant, his Honour had in mind only the evidence given concerning the wishes expressed by the children and the absence of any indication of influence by the father. In this regard it should be noted that the mother had challenged the qualifications of the Family Consultant to give evidence. The probability that in paragraph 62 of his reasons his Honour was not referring to the “recommendation” of the Family Consultant is increased when it is noted that that his Honour had expressly recorded that the Family Consultant had acknowledged it was “difficult to make full recommendations without a comprehensive assessment and that could not be done in the timeframe which was available”. The Family Consultant’s evidence would have been very fresh in his Honour’s mind. The Family Consultant had made clear that he was not purporting to make any firm recommendation when he said this: … I'm – find[ing] it very difficult to make a strong recommendation, your Honour, because as has been pointed out I have interviewed the two children primarily to assess their views and their experience at the moment and I haven’t done a complete assessment that involves all of the family or looked at the - the past - past interventions and what may or may not have worked there. (Second transcript 29 September 2008, page 16)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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