STAMOS & MARIAKIS
[2009] FamCAFC 172
•18 September 2009
FAMILY COURT OF AUSTRALIA
| STAMOS & MARIAKIS | [2009] FamCAFC 172 |
| FAMILY LAW - APPEAL – PARENTING ORDERS – UNACCEPTABLE RISK OF SEXUAL ABUSE – Whether the trial Judge erred in finding there was no unacceptable risk to the child of sexual abuse – Whether the trial Judge erred in failing to give appropriate weight to the evidence of the child’s general practitioner – Where the trial Judge meticulously examined all the evidence before him – Where the single expert’s opinion was that the child’s evidence had been contaminated prior to seeing the general practitioner – No appealable error. FAMILY LAW - APPEAL – PARENTING ORDERS – NATURAL JUSTICE – Whether the trial Judge failed to afford natural justice to the mother in making an order that the child live with the father without allowing the mother an adequate opportunity to be heard in relation to that order – Where the trial Judge was seeking to make orders which would ensure the child maintained her strong attachment to her mother as well as her relationship with her father – Where the trial Judge found that the orders required a coercive element to ensure compliance by the mother – Where mother denied the opportunity to be heard on the effect of the self-executing order – Ground established. FAMILY LAW - APPEAL – PARENTING ORDERS – Whether the trial Judge erred in making orders without considering the emotional and psychological effect and impact of the orders on the mother – Where the trial Judge was aware of the mother’s belief that the child was at risk of sexual abuse by the father if she spent unsupervised time with him – Where the trial Judge specifically recognised that the mother would need support in complying with the orders for the child to spend time with the father – Where the expert recommended that the mother would benefit from expert psychotherapy – Where the trial Judge made orders for the mother to attend upon a psychologist or therapist – Where the trial Judge properly considered the effect on the mother of the orders for the child to spend time with the father – No error established. FAMILY LAW - APPEAL – PARENTING ORDERS – Whether the trial Judge erred in placing conditions upon the circumstances in which the child could continue to reside with the mother – Where the parties demonstrated an inability to communicate effectively with each other – Where the mother’s solicitor was afforded the opportunity to make submission in respect of matters including changeovers – Where the non-denigration order was sought by the independent children’s lawyer – Where the mother had the opportunity to oppose the non-denigration order – No appealable error. FAMILY LAW - RE-EXERCISE OF DISCRETION – Where no opposition to Full Court re-exercising discretion if appealable error in respect of the natural justice ground established – Modification of orders to remove ambiguity found to be in the best interests of the child. FAMILY LAW - APPEAL – COSTS – Costs certificates granted. |
| Family Law Act 1975 (Cth) – s 60CC(3) Federal Proceedings (Costs) Act 1981 (Cth) |
| A & A (1998) FLC 92-800 Bolitho & Cohen (2005) FLC 93-224 Rice and Asplund (1979) FLC 90-725 Russell & Close (unreported, Family Court of Australia Full Court, 25 June 1993) U & U (2002) 211 CLR 238 |
| APPELLANT: | Ms Stamos |
| RESPONDENT: | Mr Mariakis |
| INDEPENDENT CHILDREN’S LAWYER: | Anne Connor |
| FILE NUMBER: | SYC | 3203 | of | 2007 |
| APPEAL NUMBER: | EA | 85 | of | 2008 |
DATE DELIVERED: | 18 September 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Finn, Boland & Fowler JJ |
| HEARING DATE: | 25 November 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 July 2008 |
| LOWER COURT MNC: | [2008] FamCA 727 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Lethbridge SC with Mr Johnston |
| SOLICITOR FOR THE APPELLANT: | Rockliffs Solicitors & IP Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Thistleton |
| SOLICITOR FOR THE RESPONDENT: | Frazi Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Dura |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission NSW |
Orders
That the appeal is allowed.
The orders made by the Honourable Justice Le Poer Trench on 16 July 2008 be varied as follows:
(i)by deleting in the preface to the orders the words “INTERIM ORDERS”;
(ii)by discharging Orders 1, 2, 3, 6 and 27;
(iii)by amending Order 4:
(a)by deleting the words “to discharge Order 3 hereof”;
(b)by adding the words after “mother” “for orders that P live with him”; and
(c)by adding the words after “hereafter” “without the necessity to first file and have determined a contravention application”
with the effect the order shall read as follows:
(4)The father has liberty to apply on 48 hours notice to the Court and to the mother for orders that P live with him. Such application may be made in the event of the mother failing to comply with any of the orders made hereafter without the necessity to first file and have determined a contravention application. In the event of the father’s application being successful the Court may, at that time, consider what time P should spend with her mother.
(iv)by amending Order 5 by deleting the words “For so long as Order 3 operates the following orders shall apply as interim orders”.
That the Court grants to the appellant mother a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (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 in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent and Independent Children’s Lawyer in respect of the costs incurred by him in relation to the appeal.
The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (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 her in relation to the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Stamos & Mariakis is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 85 of 2008
File Number: SYC 3203 of 2007
| Ms Stamos |
Appellant
And
| Mr Mariakis |
Respondent
And
Anne Connor
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
Following a nine day trial in March-April 2008 in proceedings between Mr Mariakis and Ms Stamos, Le Poer Trench J made parenting orders on 16 July 2008 for the future parenting of the parties’ only child, P, who was then aged not quite six years old. The predominant issue at the trial was whether the child living, or spending time, with the father would expose her to an unacceptable risk of sexual abuse. This is the mother’s appeal against those orders.
The trial Judge found there was no unacceptable risk of sexual abuse of the child by the father, but did not make final parenting orders as primarily sought by the parties or the independent children’s lawyer (“ICL”) appointed for the child. Rather his Honour made interim orders, some, or all, of which would by dint of a self-executing order become final orders eighteen months later in January 2010.
The first two orders made by the trial Judge provide for the child to live with the father who is to have sole parental responsibility for her, but those orders are, by operation of Order 3 of his Honour’s orders, “suspended” until “further order of the Court”. A subsequent order (Order 4) provides that the father may apply to the Court to discharge the suspension in the event the mother has failed to comply with any order, at which time the Court may determine what time the child is to spend with the mother. The orders then provide, subject to compliance with a number of “conditions”, that the child live with the mother, and she have sole parental responsibility for the child. Order 27 provides that “[i]n the event the matter is not re-listed for a period of eighteen (18) months … the interim orders … are to become final orders…”.
The mother’s appeal was argued relying on three broad areas of challenge to the trial Judge’s orders. It was submitted the trial Judge was in error:
· in finding there was no unacceptable risk to the child of sexual abuse by the father, and in particular, failing to give appropriate weight to the evidence of the child’s general practitioner;
· in failing to have regard to the effect of the orders on the mother, particularly the order that the child live with the father; and
· in failing to afford natural justice to the mother in making an order that the child live with the father without giving her an opportunity to be heard in opposition to such an order.
The mother’s senior counsel contended that the appeal should be allowed and the matter remitted for rehearing. He very properly conceded however that if we determined that the only error was the natural justice challenge, we could re-exercise the discretion by amending the orders into a form of more “conventional” final parenting orders.
We record at this point that senior counsel for the mother also argued that there was ambiguity in his Honour’s orders, this ambiguity constituting appealable error. Counsel for the ICL also submitted there was ambiguity in the orders. Whilst not advocating that the appeal should be allowed, and all of the trial Judge’s orders be set aside, the ICL’s counsel submitted that the appeal could be allowed in part, and the ambiguity could be overcome by an amendment to the orders.
By contrast, the father’s counsel submitted there was no ambiguity in the orders, but suggested additional words could be “read into” the orders having the effect that Orders 1 to 4 (that the child live with the father and he have sole parental responsibility for her, the stay order, and the liberty to apply order) expire in January 2010, with the effect that the balance of the orders then became the final orders.
Senior Counsel for the mother first addressed us on the asserted ambiguities in the orders and failure to provide the mother with an adequate opportunity to be heard in relation to the orders. Indeed it is fair to say that the primary focus of the appeal was on these matters, notwithstanding the obvious importance of the challenge to the finding of no unacceptable risk of sexual abuse and the complaints concerning the weight given to the evidence of the child's general practitioner and the failure to have regard to the effect of the orders on the mother. However, we consider that after we provide a brief summary of the factual background to this case as recorded by his Honour, we should first deal with the challenge to the finding of no unacceptable risk of sexual abuse to the child.
Background
The mother, who was aged 34 years at the date of the hearing, is a school teacher. She was living with her parents and the only child of the marriage, P, born in August 2002, in the eastern suburbs of Sydney, New South Wales.
The father, who was aged 32 years at the date of the hearing, was self-employed and living with his parents and his partner, Ms A, in an inner west suburb of Sydney, New South Wales.
The parties were married in June 2001 and separated on 20 January 2003.
In April 2003 the mother obtained an Apprehended Violence Order against the father for a period of two years.
On 27 May 2004 orders were made by consent for contact between the father and the child. The orders provided for a gradually increasing regime of contact.
In July 2004 the mother and child commenced residing in the maternal grandparents’ home.
In January 2006 the child met Ms A.
In May 2006 the father moved to Canberra for work related reasons and ceased having midweek contact with the child.
In July 2006 after “certain alleged behaviour” by the child, the mother contacted the police and made a formal statement.
On 18 July 2006 the mother took the child to her general practitioner for a medical examination. The general practitioner made a notification to the Department of Community Services (“DoCS”).
In September 2006 the father returned from Canberra and resumed midweek contact with the child.
On 14 February 2007 the child was interviewed by the Joint Investigation Response Team (“JIRT team”) but made no disclosure of abuse.
On 20 February 2007 the child’s maternal uncle made a DVD recording of the child in which she referred to “certain incidents allegedly occurring between herself and her father”.
On 3 May 2007 the mother commenced parenting proceedings in the Court and on 29 June 2007 the matter was first listed in the Magellan program (a case management approach to cases in which allegations of serious abuse are raised) before Watts J.
On 9 July 2007 the parties and child attended the rooms of Dr Q for the purposes of Dr Q preparing an expert report.
The challenge to the finding of no unacceptable risk (Grounds one and two)
The challenge to the trial Judge’s finding that the child would not be exposed to an unacceptable risk of sexual abuse in the father’s care was directed to the trial Judge’s consideration of the evidence of Dr G, the child’s general practitioner.
The evidence of Dr G before the trial Judge comprised an affidavit sworn by him filed 22 May 2007 to which he attached a report dated 6 February 2007 addressed to the New South Wales Police. He also annexed to his report a letter from Dr T, Infant, Child and Adolescent Psychiatrist dated 27 April 2007.
In his report to the police Dr G noted that the child “was brought into my surgery by her mother … and grandmother ... [The] [m]other and grandmother were emotionally upset about [the child’s] abnormal behaviour at home”. Dr G set out in his report dates of consultations on which he saw the child and statements and actions she made in the course of his examination. Dr G also gave evidence by telephone.
Senior counsel for the mother conceded that “during his oral evidence, particularly under cross-examination by counsel for the ICL, [Dr G] appeared to have confused his notes of the consultation dates” (Appellant’s summary of argument, p 5, paragraph 10). It was asserted this confusion was explicable because of the circumstances in which the evidence was given over the telephone.
At paragraph 11 of his summary of argument, the mother’s senior counsel said:
What was clear however from [Dr G’s] oral evidence was that in all of his years of practice he had never experienced such vivid disclosures of sexual abuse from a child and that he believed that the child was speaking and acting from experience rather than fantasy. [references omitted]
It was further submitted, at paragraph 16 of the summary of argument, that the trial Judge’s findings at paragraphs 244 and 251 of the judgment were not appropriate findings given that his Honour had accepted the doctor’s report. It was submitted “that his Honour should have relied on the report as significant evidence of risk and discounted the oral evidence”.
In his written submissions counsel for the father submitted that although the trial Judge had accepted the words and actions heard and observed by the doctor as reported in his affidavit, his Honour had correctly rejected the oral evidence of Dr G. He further submitted that the issue of sexual abuse could not have been determined by reference to Dr G’s testimony alone. He pointed out that the trial Judge had the advantage of evidence from two other medical practitioners – the Court’s expert, Dr Q and another specialist doctor whom the mother had consulted. He submitted:
There was ample evidence to support the expert, [Dr Q], in her conclusion (referred to at paragraph 223 of the judgment AB85) that at least from the 16 July 2006 that the child’s statements have been ‘very contaminated’. ‘It is now really difficult to place a lot of reliance on what the child says’. [original emphasis] (Father’s submissions, p 3, paragraph 11)
The submissions of the father on this ground were supported by counsel for the ICL.
The trial Judge’s consideration of the issue of sexual abuse
At paragraph 53 of his reasons for judgment under the heading “Credit”, the trial Judge dealt with the evidence of Dr G. His Honour said:
… In his oral evidence he seemed very confused. I have difficulty in accepting the oral evidence of [Dr G] as accurate. I accept that the report attached to his affidavit is accurate. …
His Honour went on to note Dr G’s qualifications were those of a general practitioner of many years experience but explained he “professed no expertise or experience in dealing with allegations of sexual abuse made by young children” (paragraph 53).
At paragraphs 105 to 107 of his reasons, the trial Judge summarised the mother’s evidence about the child’s statements heard by her when attending Dr G’s rooms. His Honour also referred, in paragraph 106, to Dr G’s report, noting that his physical examination of the child disclosed her hymen was intact. His Honour discussed further aspects of Dr G’s report in paragraph 107 of his reasons.
Later, at paragraphs 129 and 130, the trial Judge recorded the maternal grandmother’s evidence about taking the child to see Dr G in July/August 2006. Further reference was made in paragraph 138 to a visit by the child to Dr G with the maternal grandmother on 23 January 2007.
The trial Judge returned to his discussion of Dr G’s evidence in paragraphs 209 to 218 of his reasons for judgment, and prior to returning to further discuss Dr G’s evidence, at paragraphs 244 and 251, his Honour extensively reviewed the evidence of the Court expert, Dr Q. The trial Judge noted, at paragraph 223 of his reasons, that Dr Q expressed the opinion that the child’s evidence after 16 July 2006 had been “very contaminated”. Later at paragraph 531 his Honour stated that the evidence did not satisfy him that the child had been abused by the father. We will return later to that passage of his Honour’s reasons.
At this stage we need only say that the trial Judge’s reasons disclose a meticulous examination of all the evidence before him, including the statements made by the child, the evidence of the mother and the grandmother, but particularly a careful review of the expert evidence before him. Nothing to which we have been directed supports a finding that the trial Judge gave inappropriate weight to the evidence of Dr Q, or failed to give appropriate weight to the evidence of Dr G. Dr G saw the child after 16 July 2006 when, in the opinion of the Court expert, the child’s statements had to be viewed as “very contaminated”. We find no appealable error by the trial Judge in his treatment of Dr G’s evidence or his findings, based on an overall consideration of all of the evidence, that the child would not be subject to an unacceptable risk of sexual abuse in spending time with the father.
Natural justice ground (Ground 4)
The parties’ competing applications before the trial Judge
At the commencement of the trial the mother submitted (in her counsel’s case outline document) that the mother should have sole parental responsibility for the child, that the child should live with her and that there should be no contact between the child and the father.
The father sought orders, in broad terms, that he have sole parental responsibility for the child, but before he made any decisions concerning medical and religious issues he join in discussions with the mother in the presence of an accredited mediator. He proposed that the child should live with him, and spend time with the mother during school terms each alternate weekend and each other alternate week spend from after school Thursday until the commencement of school Friday as well as other special occasion times.
At the conclusion of the oral evidence, in her oral submissions made 18 March 2008, counsel then appearing for the ICL (Mrs O’Connor) submitted that orders should be made:
· that the child remain living with the mother;
· for 12 months the child spend time with the father (with Ms A to be present) each alternate Sunday from 10 am to 5 pm;
· for 12 months thereafter each alternate weekend from 10 am Saturday to 5 pm Sunday;
· on the child attaining the age of 7 years each alternate weekend from after school Friday until commencement of school on Monday and half school holidays. (Transcript 18 March 2008, p 260-261)
In her closing submissions Mrs O’Connor confirmed to the trial Judge the ICL’s view there was no unacceptable risk to the child if she spent time with the father. Mrs O’Connor submitted the ICL did not, in the light of the expert evidence, support a change of living arrangements for the child from the mother’s household to the father’s household. She did however foreshadow that if the trial Judge’s orders were not obeyed, “it may well be that there might come a time when the child has to switch from one household to the other” (Transcript, 18 March 2008, p 261). Mrs O’Connor told the trial Judge in response to a question from him that she was not advocating interim orders, but it might be appropriate to do so if the trial Judge determined it was necessary.
The trial Judge raised with Mrs O’Connor the issue of the mother failing to comply with Court orders. His Honour said:
HIS HONOUR: If they accept the advice of their lawyers or of the court that if there’s not a change, then what they’re pushing their grand-daughter and their daughter towards is, in fact, a change of residence, it might be a motivator to do something different.
MS O’CONNOR: That’s right, but only your Honour can do that, not the lawyers. (Transcript, 18 March 2008, p 264)
The matter did not conclude on 18 March and resumed on 8 April 2008. By that date the trial Judge had received written submissions from both the mother’s and father’s counsel. On that day his Honour returned to the topic of whether the orders he would make should be final or interim orders. The following exchange occurred:
HIS HONOUR: Yes. Why do you think that it would be better to have final orders rather than interim orders?
MS O’CONNOR: I suppose one concern would be the cost to the parties to come back for another hearing, but, having said that, it may well be that there will be another hearing in any event. My instructing solicitor has instructed me to say that she is prepared to remain in the matter if your Honour wants to make interim orders. I’m not sure what they might achieve. It’s possible that there could be a period where the orders are made, if your Honour is going to leave the child with the mother, for contact with the father, and then perhaps have another order at the end of it, but - - -
HIS HONOUR: The scheme of order that you’re promoting is that the child should continue to live with the mother.
MS O’CONNOR: It is.
HIS HONOUR: I can understand the basis of that, particularly given the evidence of [Dr Q]; I understand where that comes from. My concern is, if I follow down that line and there continues to be allegations of sexual abuse and there are breaches of the orders, it means that there will have to be a complete rehearing of the case in the event of the father then moving to have full residence of the child.
MS O’CONNOR: Yes.
HIS HONOUR: That would involve the parties having considerably more expense than a continuation of proceedings where they've done it all before me, as it were.
MS O’CONNOR: I can understand that, your Honour, but I’d have to wonder then how long the interim orders - how long the matter would be adjourned to, because it’s one thing for the mother in this case to be on trial, as it were, to abide by orders for the next six months but what’s going to happen after that? That's the problem.
HIS HONOUR: Probably six months is a bit short. I would have thought 12 months would be more - - -
MS O’CONNOR: 12 months.
HIS HONOUR: We’d know within that time, surely. (Transcript, 8 April 2008, pp 285-286)
Further discussion reveals:
HIS HONOUR: Assuming that I conclude that she hasn't been abused by her father, as the mother makes out, there would be no reason then, in terms of her physical safety, why she shouldn’t move to overnight time with her father fairly soon, sooner rather than later.
MS O’CONNOR: The concern that the ICL has, your Honour, is that the child could well say something - make further - and I use the term “disclosure” in the way that it’s used in this Court, although I don't like the term - and then we're back where we started again.
HIS HONOUR: We wouldn’t be back where we started again because we’ve had all the evidence about that. We would be looking at why that might be continuing to happen and what could be done about it. One of my concerns is that, from what I've heard from the mother and her family, they won't be able to comply with any order I make for the child to spend time with the father of an unsupervised nature.
MS O’CONNOR: That is a concern.
HIS HONOUR: If I determine that that’s what should happen with her and they don’t comply with the order, then it doesn’t leave a lot of leeway for the Court, does it?
MS O’CONNOR: No, that’s right. One of the cases I’ve actually referred to your Honour in my case outline, and I would refer your Honour to the case is the case of Re David [(1997) FLC 92-776)] - your Honour will recall that was a case where in fact that's exactly what happened, the child was removed from the mother’s care or the father’s care because of the same sort of situation that we have here, but the Court then went into some depth about how difficult it is to - what a serious matter it is to remove a child from the care of a parent with whom they’ve always lived, but there are circumstances where that hasn’t happened.
HIS HONOUR: So you would say that I shouldn’t do that as a first option.
MS O’CONNOR: No, that’s right, your Honour. (Transcript, 8 April 2008, p 287)
Counsel for the father opposed the making of interim orders, and maintained that the child should live with the father.
On the question of interim or final orders, counsel for the mother made the following submission to the trial Judge:
… The second matter I wish to raise is the question of interim or final orders. Your Honour has argued or given consideration to interim orders from some practical points of view. My respectful submission is that your Honour could make those orders or make a self‑executing order and/or make a self‑executing order at the same time, for example, whatever orders there are, if they're complied with for a period of whatever, six months, 12 months, they become final. If the matter is brought back before Court for some reason, then, of course, they don’t. That would save the parties the expense of automatically coming back as a part heard matter. I would urge that course upon your Honour. The self‑executing order, of course, at the same time, would discharge the child representative. (Transcript, 8 April 2008, p 323-324)
Trial judge’s discussion of orders to be made
The trial Judge delivered lengthy reasons for judgment consisting of 615 paragraphs. He reviewed extensively the evidence of the parties and witnesses in their cases, as well as the expert evidence of Dr Q. We have already referred to selected parts of his Honour’s reasons when dealing with the challenge to his findings that there was no unacceptable risk to the child.
Under the heading “The Father’s Residence Application”, having recorded that the father sought orders for the child to live with him and the matters he asserted supported such an order, his Honour, at paragraph 531, explained the evidence did not satisfy him, on the civil standard, that the child had been abused by the father “either physically, sexually or psychologically”, but went on to say “[n]one of this deals with an absolute. That is, it could never be said about this case that nothing inappropriate has occurred between the father and [the child]”.
He then further explained:
It could not be said, if [the child] has been sexually inappropriately dealt with, it did not happen whilst the child was in her mother’s or her family’s care. Thus the Court needs to build into orders as many safeguards as are reasonable in the circumstances. (paragraph 531)
His Honour then asked himself rhetorically whether the case required some form of supervision of the time the child should spend with the father until she was at least 11 years of age (that age being adopted from the expert evidence of [Dr Q]).
His Honour then concluded, at paragraph 532, that an order should be made for time that the child spent with the father to be “strictly supervised by [the father’s partner], or other suitable supervisors, for a period of twelve months”.
The trial Judge explained his concern to prevent questioning of the child by the mother about her time with the father, and to avoid the child being under pressure to say negative things about the father.
His Honour went on, under the sub-heading “If [the child] lives with her father what time should she spend with her mother and under what circumstance?”, to say at paragraph 534 “[i]n my view it is necessary for the time [the child] spends with her mother and her family to be supervised”.
Immediately after these findings the trial Judge turned to considerations under s 60CC. In dealing with s 60CC(3)(d) (the effect of any change in the child’s circumstances) his Honour said at paragraph 545:
The evidence of [Dr Q] is that it would be traumatic for [the child] to be separated from her mother and from her mother’s family. She has been parented primarily by her mother since the separation of the parties and probably before that date. It must be anticipated that if she were to be thrust into a situation where she was required to live with her father she would find the circumstances of her care quite different to that she had experienced with her mother and she would take some time to settle into his care. I also accept that [the maternal grandmother] has been a major part of the care of [the child] since the parties’ separation. I accept that [the child] has a close relationship with her maternal grandmother and she would be expected to miss her if she was no longer part of her daily life.
His Honour then turned to s 60CC(3)(l) (whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child) and, at paragraphs 555 and 556, said:
555.There has been some debate between the legal representatives of the parties and myself during the hearing of submissions as to whether there should be interim orders made or final orders made by the Court. Each type of order has merit in this case. On the one hand it must be reasonably predictable that the mother will have difficulty complying with some of the orders I propose to make. In such circumstances the counsel for the father says that if a residence order is not made in favour of his client as a primary order he should be able to press for that order in the event of the mother failing to comply with the Court orders. The counsel for the Independent Children's Lawyer and the counsel for the mother both see some merit in the Court making interim orders. There is also support for final orders. This case has cost both parties a great deal of money. They do not wish to have to pay for another hearing in the near future.
556.Final orders have the advantage of bringing the proceedings to a close which is generally seen as having benefit for children in a variety of ways. Further there can by [sic] quite a deal of flexibility in final orders.
In dealing with any other fact or circumstance the Court thought relevant (s 60CC(3)(m)) the trial Judge, at paragraph 557, discussed the mother’s intractable belief that the child had been sexually abused by the father and that she and her family would, in the short term, be anxious if the child was to spend time with the father on an unsupervised basis. His Honour, having explained the mother’s position, reiterated his finding that there was no unacceptable risk posed to the child spending time with the father and that it was important for her welfare that she spend time with him and have “a good and wholesome” relationship with him.
His Honour then foreshadowed the orders he would make should facilitate the development of the child’s relationship with the father “having regard to the requirements for the mother to gradually gain confidence in the fact that [the child] will not be abused”. His Honour then concluded:
Therefore, the orders made by the Court should include a provision which allows for the Court to consider immediate transfer of care from the mother to the father if the mother prevents or hinders the orders of the Court. (paragraph 557) [our emphasis]
His Honour then moved to consider whether an order should be made for joint or sole parental responsibility and concluded, at paragraph 562:
… I reach the conclusion that the only viable order to be made is that the parent who has the principal residential care of [the child] should have sole parental responsibility for her…
In paragraphs 565 to 615 of his reasons the trial Judge, under the heading “Conclusion”, again discussed, among other matters, the orders he should make. His Honour commenced his conclusions, at paragraph 565, saying:
The conclusion I reach is that [the child] should live with her mother, at least for the near future. Every effort should be made to have [the child] be able to live with her mother whilst at the same time being able to develop a relationship with her father.
His Honour went on, at paragraph 566, to say:
This case has all the hallmarks of the type of case which will fester and erupt from time to time until [the child] is either damaged beyond repair or until an order is made that she live with her father and have very little and strictly supervised time with her mother and her mother’s family. It very much depends upon the approach the Mother wishes to take. ...
Having made a number of findings critical of the mother, at paragraph 567, his Honour concluded that to remove the child from the mother and her family would be “traumatic for her and should be used as a last resort”.
At paragraph 568 his Honour foreshadowed the orders he planned to make. Given the importance of this paragraph, we set it out in full:
I have considered many possible alternative solutions for this case, none of which is in my view perfect. I have determined that if [the child] is going to have any chance of developing her relationship with her father whilst living with her mother there needs to be a real and permanent incentive for the mother to cooperate in the program. The only way I conclude that is possibly going to happen is to make orders which see [the child] move to the full time care of her father in the event of the mother contravening the orders of the Court. She will understand that if she fails to comply with the orders of the court then the father will be able to forthwith apply for a recovery order. For that to work it will be necessary to grant sole parental responsibility for [the child] to her father and order that [the child] live with the Father. That order could then be suspended until further order of the court. The Father will have liberty to apply for a recovery order and for the orders in his favour to have operation upon the mother failing to comply with the court orders. The case should come back before me in circumstances where the Father does seek to have the suspension of his orders lifted.
However, after his conclusions, the trial Judge under the heading “The Orders Which Should be Made” further discussed the form of the orders. His Honour, at paragraph 575 appeared to revisit the question of whether the mother could comply with orders if time spent by the child with the father was in other than a supervised contact centre and again asked himself whether the Court should consider making an order for the child to live with the father.
At paragraph 576, his Honour again discussed the expert evidence of Dr Q about the trauma which would be experienced by the child if separated from the mother. His Honour concluded “[i]t is therefore incumbent upon the court to seek out further solutions”.
His Honour, at paragraph 577, appeared to resolve the dilemma by foreshadowing he would make an order for strict supervision of the child, notwithstanding his Honour found no unacceptable risk of sexual abuse. His Honour went on to note, at paragraph 579, that the regime of strict supervision should abate and that there “should be different arrangements which change as time progresses”.
At paragraph 580, his Honour again asked himself was there an alternative to the orders he proposed. He said (at paragraphs 580 and 581):
580.… The only real alternative is to change residence for the child. In this case [the child’s] best interests dictate that the Mother at least be given an opportunity to show she can comply with the courts [sic] orders.
581.Another approach I can take is to give the Mother an incentive to adhere to the court orders and at the same time make it crystal clear to her what the consequences are likely to be if she choses to disobey the court’s orders. To provide this incentive I propose to make an order in favour of the Father for him to have sole parental responsibility for [the child] and for [the child] to reside with him. I propose those orders are suspended and that the Father has leave to approach the court to lift that suspension in the event of the Mother disobeying the court’s orders.
At paragraph 584, his Honour again repeated his earlier findings that the only “viable order” to be made about parental responsibility was that the parent who had the principal residential care of the child should have sole parental responsibility for her.
At paragraph 589, his Honour (perhaps foreshadowing an order that the child may not predominantly live with the mother) commenced the paragraph saying “[i]f [the child] is to live with her mother” [our emphasis] that the maternal grandmother would be required to sign a form of undertaking.
The trial Judge went on immediately thereafter, in paragraph 590, to say:
The Father is to forthwith prepare himself to take [the child] into his full time care. Such preparation is to not only include having suitable living accommodation for her but also for him to obtain the professional help he wished to avail himself of prior to her commencing to live with the Father.
Having then discussed earlier injunctive orders made by the Court, at paragraph 597, his Honour dealt with other measures which may assist the mother. His Honour noted no submission supporting the requirement for the mother to attend upon a psychologist was made. His Honour went on to record that he proposed to make it a condition of orders made in favour of the mother that she obtain psychological assistance for herself and said:
… Should it prove not possible for the Mother to obtain this treatment then the question of whether the order in favour of the father providing for [the child] to live with him should immediately take effect would need to be reconsidered. … [our emphasis]
The final appearance before the trial Judge
On 16 July 2008 it appears the matter was listed before the trial Judge for delivery of reasons for judgment. On that occasion the mother and father were each represented by their respective solicitors and the ICL, Ms Connor, appeared. The trial Judge indicated he proposed to hand down his judgment and proposed orders. His Honour said:
… Thank you very much for joining me today. I’m in a position to conclude this matter and hand down judgment, however before I do that the process of putting orders together was very complex and there were some orders that I’m considering making which I’m not quite sure each of you had an opportunity to have a say about, so I want to give you that opportunity. … (Transcript, 16 July 2008, p 1)
Immediately thereafter the trial Judge referred to the issue of changeover on school holidays. His Honour then said he would stand the matter down to enable each of the parties’ solicitors to obtain instructions.
After some discussion with the father’s solicitor his Honour said:
Those orders - all the orders I’m proposing to make are interim orders only and the interim orders can be varied by agreement or by application to the Court. Ms Connor, given the complexity of this case I am asking that the independent children’s lawyer’s appointment be extended for a period of 18 months, so you might need to get some instructions about that. (Transcript, 16 July 2008, p 3)
Later his Honour said:
… I think I can reasonably anticipate what your submissions will be but after you’ve made those submissions, if I feel that I can deliver the judgment that I have prepared thus far, I will do so and make the orders that I am proposing to make. And then I'm going to ask you all to go through those orders with your clients, the solicitors go through the orders with their clients, and then I'm going to invite you to come back in and raise with me any questions that you might have about the orders or their implementation. They are all to be interim orders. I am proposing that if no action is taken to re-list the matter after a certain time, I forget what it is now, about 12 months or so, then the orders will become final orders. … (Transcript, 16 July 2008, p 5) [our emphasis]
The matter was then stood down and resumed before the trial Judge at 12.15 pm. The following dialogue took place between the trial Judge and the solicitor for the mother:
HIS HONOUR: Right. Thank you very much. Now, Ms Balafas.
MS BALAFAS: Your Honour, apart from the issue of supervision because we can't deal with that at the moment.
HIS HONOUR: No.
MS BALAFAS: Yes. Insofar as the other matters raised by your Honour, we don’t have any problem with the exception of my handwritten note was the one relating to the mother obtaining the services of a psychologist. [our emphasis] (Transcript, 16 July 2008, p 7)
After discussion with the father’s solicitor, who raised the issue of the injunction restraining the father from relocating to a residence outside of 10 kilometres, the trial Judge said:
HIS HONOUR: Well, it’s an interim order only and if your client found that he, he found property that was suitable, all those things and it was 12 kilometres away, I would be very surprised if the Court would not extend the injunction accordingly. Yes, anything else?
MR FRAZI: No, nothing further, your Honour.
HIS HONOUR: Thank you very much. I'll hand down the reasons and the orders and I’ll make orders as set out in the reasons and there will be a copy for each of you. I’ll also make available the undertakings which I understand have already been made available and you will see how they fit into the orders when you come to read the orders. There are 47 orders, they will take some time for you to work through. I want you all to have an opportunity to read through them and to come back into Court when you've done that and I want to hear if there are any questions about any of the orders. Anything that anybody doesn’t understand about the orders and the way in which they’re to operate. I should just add an additional reason. (Transcript, 16 July 2008, p 9)
When the matter resumed before his Honour at 2.17 pm, his Honour asked whether there were any questions about the orders. Thereafter the trial Judge heard evidence from a proposed supervisor and after cross-examination of the proposed supervisor by the ICL, his Honour indicated he would hear further evidence and receive submissions about the suitability of the proposed supervisor and make an order in chambers.
His Honour then addressed a more general question to the mother’s solicitor in the following terms:
HIS HONOUR: … Now, I haven’t asked you yet Ms Balafas, I think, whether there are any questions about the orders. Did I ask you that?
MS BALAFAS: Yes, previously, we made submissions.
HIS HONOUR: Right, but there are no questions about the orders that I’ve handed out?
MS BALAFAS: Not that I can see, your Honour, no.
HIS HONOUR: Right. I just want to make it clear that your client understands that the moment there is a breach of any of the orders commencing with number 4 to the conclusion of the orders it immediately entitles the father to seek the instatement of the sole parental responsibility order for himself.
MS BALAFAS: Yes. (Transcript, 16 July 2008, pp 15-16)
It is necessary at this stage and before considering further the natural justice issue to set out parts of the trial Judge’s orders and note the differing interpretations given to the orders by counsel appearing for the mother and father, as well as counsel for the ICL.
Orders made by the trial Judge
His Honour made 47 orders on 16 July 2008. We now set out Orders 1-7 inclusive, as well as 12, 13, 14, 17, 18, 24 and 27 as these orders highlight the ambit of dispute about the interpretation of the orders. They are also relevant to “the conditions grounds”:
INTERIM ORDERS:
(1)The father, [Mr Mariakis], is to have sole parental responsibility for [“the child”] born … August 2002 (hereafter called [the child]). The father is to consult with the mother by email or in writing in relation to important matters relating to [the child’s] health, schooling, religion and accommodation. The father is to take into account the mother’s views when making a decision about any such matter.
(2)[The child] is to live with the father.
(3)Orders 1 & 2 made herein are suspended until further order of the Court.
(4)The father has liberty to apply to discharge order 3 hereof on 48 hours notice to the court and to the mother. Such application may be made in the event of the mother failing to comply with any of the orders made hereafter. In the event of the father’s application being successful the court may, at that time, consider what time [the child] should spend with her mother.
(5)For so long as Order 3 operates the following orders shall apply as interim orders:
(a)The mother [Ms Stamos] is to have sole parental responsibility for [the child]. The mother is to consult with the father by email or in writing in relation to important matters relating to [the child’s] health, schooling, religion and accommodation. The mother is to take into account the father’s views when making a decision about any such matter.
(b)[The child] is to live with her mother at all times not specified by these orders as time when she is to live with her father.
(c)[The child] is to live with the father at the following times.
(i)Until 1 November 2008 each Sunday from 10.00 a.m. until 4.30 p.m. [The child] to be collected from and returned to a contact centre as provided for hereafter.
(ii)From 10 September 2008 until 1 December 2008 and during school term time, from after school each Wednesday until 5.30 p.m. with [the child] to be collected from school at the start of this time and returned at a contact changeover venue to be nominated by the Independent Children's Lawyer. This time is additional to the time [the child] is to spend with her father on Sundays.
(iii)From 1 November 2008 and until the commencement of the 2009 1st term of the school year, each alternate Saturday from 10.00 a.m. until Sunday at 4.30 p.m. [The child] to be collected from and returned to a contact centre nominated by the Independent Children's Lawyer. This order is to operate during school term time and during school holiday periods until the commencement of the 1st school term in 2009.
(iv)From 1 December 2008 each Wednesday from after school until school time the next day during school term.
(v)During the school holidays commencing at the conclusion of the 4th school term in this year and until the commencement of the 2009 school year, each Wednesday from 4.30 p.m. until 10.00 a.m. the next day. This to be in addition to the time provided for in order (5)(c)(iii) hereof. The changeovers to take place at a contact changeover centre nominated by the Independent Children's Lawyer. Should there be no ability to arrange this through a contact centre the Independent Children's Lawyer is to recommend an alternate proposal which would see [the child] have an overnight period with her father during each week. If the proposal is consented to, in writing, by the parties then the agreed form will operate as an order of the Court. Otherwise the matter may be re-listed before me.
(vi)Commencing with the 1st term of the 2009 school year and during school term, each alternate weekend from after school Friday until school time on Monday morning. [The child] to be collected from school at the commencement of this time and delivered to school at the conclusion of this time. The first of these weekends is to occur on the first Friday of each school term.
(vii)Commencing with the conclusion of the first school term of the 2009 school year, the first half of the holidays at the conclusion of the 1st, 2nd and 3rd school terms.
(viii)In the holidays at the end of the 4th term of the school year each alternate week commencing with the first week of the said school holidays in 2009 and commencing in the second week of the said school holidays in 2010. This order to operate until the 4th term holiday period in 2011 when [the child] is to spend the first half of the 2011 4th term holidays with her mother and the second half with her father. Thereafter for the holidays at the end of 4th term the mother will have the first half in years ending in uneven numbers and the second half in years ending in even numbers and the father will have the first half in years ending in even numbers and the 2nd half in years ending in odd numbers.
(ix)Each alternate Christmas Eve from 10.00 a.m. until 10.00 a.m. on Christmas Day. First such time to commence 24 December 2009.
(x)Each alternate Christmas Day from 10.00 a.m. until 10.00 a.m. on the 26 December. First such time to commence 25 December 2008.
(xi)The mother is to have [the child] with her each alternate Christmas Eve from 10.00 a.m. until 10.00 a.m. on Christmas Day. First such time to commence 24 December 2008. She is to have [the child] with her each alternate Christmas Day from 10.00 a.m. until 10.00 a.m. on 26 December. First such time to commence 25 December 2009.
(xii)The changeovers for [the child] on the Christmas Eve, Christmas Day, Boxing Day and the mid point of school holidays or any other time not specifically provided for in these orders is to be a site to be nominated by the Independent Children's Lawyer. Neither the mother nor the father is to be present at the changeover. The mother is to ensure that her mother is not at or in the vicinity of the changeover. Each of the parties to advise the other no later than seven (7) days before any such event who will be participating in the changeover on behalf of that parent.
(xiii)As from the commencement of 2009 [the child] is to spend time with each of her parents on her birthday. If [the child] is in her mother’s care on her birthday morning then the father is to have [the child] from after school until 6.00 p.m. on that day. If [the child] is in her father’s care on her birthday morning then the mother is to have [the child] from after school until 6.00 p.m. on that day.
(xiv)The parties are to make arrangements for [the child] to spend time with each of them during Greek Easter commencing in the 2009 year.
(xv)Such other time as the parties may agree to in writing communicated by email, mail or personal delivery.
(6)Upon order 3 hereof being discharged or set aside the mother has leave to apply to the court for orders to spend time with [the child].
(7)Subject to order 8 and 9 hereof, [the child’s] time spent with the father, as set out herein, is to be monitored by [Ms A], who is to be present at all times [the child] is with her father and is to be available to [the child] should she require any attendance at the toilet, or with bathing, or changing her underclothing, swimmers or the like. This order is to operate for twelve (12) months from 1 November 2008. On and after 1 November 2009 [Ms A] is to reside with the father whilst [the child] is in his care, however, she will not be required to be present with [the child] at all times when she is with her father.
…
(12)The father is not to bath [the child] or assist her with toileting. He is not to assist her with dressing other than to assist with the putting on and removal of outer garments. The father is to ensure that [the child] does not see him nude and not see his exposed genitals at any time. He is to ensure that [the child] does not remain in his bedroom at any time he is unaccompanied by a third person. The father is to discourage [the child] entering his bedroom at any time.
(13)The parties may vary the provisions of any of these orders by consent provided that variation is in writing and has been signed by each of them.
(14)On any occasion [the child] spends with the father overnight, [the child] is to have a separate bedroom from the father’s bedroom.
…
(17)Neither party is to discuss any sexual abuse or other abuse allegations with, or in the presence or hearing of [the child], or permit any other person in the presence of [sic] hearing of [the child] to discuss such allegations. If [the child] makes any such allegation to either of the parents they are to listen to what she has to say. They are not to question her about any of her allegation. They are to commit to writing, in the absence of [the child], as soon as possible after such event, exactly what [the child] said and a description of her affect/disposition throughout the whole of the disclosure. [The child] is not to be required to repeat any such allegation to either parent or any other person other than as provided for herein.
(18)Upon any allegation being made of the type referred to in Order 17 hereof the parent to whom the allegation was made, or in whose care [the child] was at the time any such allegation was made, is to forthwith report the matter to the Child Protection Unit at the Prince of Wales Hospital and thereafter follow the recommendation of the members of that unit. The parent is to forthwith notify the Independent Children's Lawyer of the allegation and the action taken by the parent.
…
(24)Neither party is to relocate their residence to a place outside ten (10) kilometres, by road, from the [M school] attended by [the child] without the written consent of the other parent.
...
(27)In the event the matter is not re-listed for a period of eighteen (18) months from the date hereof the interim orders made herein are to become final orders of the Court.
…
Submissions of each party’s counsel as to the interpretation of the orders
Senior counsel for the mother and counsel for the ICL each asserted that the orders were ambiguous. At the conclusion of the appeal, counsel for the father appeared to concede amendment of the orders in some form was necessary.
In his written submissions (paragraph 30, p 18) senior counsel for the mother submitted that the mother was not afforded the opportunity to make submissions to the trial Judge in opposition to an order that the child live with the father. Senior counsel referred us to the transcript where his Honour indicated that he did not wish to hear submissions on that topic. We will set out the relevant portion of the transcript shortly. Senior counsel submitted, at paragraph 31, “[d]espite not being heard in opposition to an order for a change of residence his Honour proceeded to make such an order, albeit stayed on conditions”.
In his oral submissions, senior counsel for the mother said:
… The orders are all described as interim orders. None of them are said to continue for 18 months, and one practical reason that that submission cannot stand is the existence of order 6 which leaves an extraordinary internal inconsistency. (Transcript, 25 November 2008, p 17)
He further submitted that it was illogical to suggest that Order 5(b) was a final order. He then expanded this submission noting that Order 5(c) provides for extensive periods of time when the child is to live with the mother, but said the inconsistency became apparent by reason of Order 6, which order provides on Order 3 being discharged or set aside the mother has leave to apply to the Court for orders to spend time with the child.
Senior counsel for the mother orally expanded his submission that the procedural unfairness which was occasioned to the mother occurred as a result of the trial Judge failing to afford an opportunity to counsel then appearing for the mother to make submissions on the possibility of an order placing the child with the father but suspending it. He said:
The question is not will the wife be heard at some point in time down the track about these matters, the question is, she was entitled to be heard prior to the order being made – if the order was to be made. (Transcript, 25 November 2008, p 18)
He submitted this was the case even if there were to be an interim order, albeit suspended, in favour of the father (Transcript, 25 November 2008, p 18).
While the father’s counsel initially submitted there was no ambiguity in the orders (but additional words could be “read into” or implied by the orders), he later suggested, in the event we found appealable error and re-exercised the discretion, a form of additional wording to be included to the orders.
Counsel for the father submitted that the heading INTERIM ORDERS should be amended by the addition of the following words “UNTIL 16 JANUARY 2010” and the inclusion of the words “Orders 1 to 4 operate until 16 January, 2010”. He further submitted before Order 5 (and applying to all orders thereafter) the words PENDING FURTHER ORDER or UNTIL THE OPERATION OF ORDER 27 should be inserted. However, after discussion, Counsel indicated that the father wished to retain Order 4 after 16 January 2010 so that he would not face the hurdle of having to overcome a “Rice v Asplund” problem (that is, the problem that the parenting issues had already been litigated and determined).
Counsel for ICL submitted, because the orders were ambiguous, that if we re-exercised the discretion, we should discharge Orders 1, 2, 3, 6 and 27 and amend the wording of Order 5. Thus he submitted all orders would become final orders, leaving the father liberty to apply under Order 4.
It aids understanding of differing interpretations of the orders if we set out the orders with the amendments proposed by the father and then the ICL with the proposed amendments appearing in bold and underlined or with proposed deletions crossed out.
The Father’s proposed amendments
INTERIM ORDERS UNTIL 16 JANUARY 2010
(1A)ORDERS 1 to 4 shall operate until 16 January 2010
(1)The father, [Mr Mariakis], is to have sole parental responsibility for [the child] born … August 2002 (hereafter called [“the child”]). The father is to consult with the mother by email or in writing in relation to important matters relating to [the child’s] health, schooling, religion and accommodation. The father is to take into account the mother’s views when making a decision about any such matter.
(2)[The child] is to live with the father.
(3)Orders 1 & 2 made herein are suspended until further order of the Court.
(4)The father has liberty to apply to discharge order 3 hereof on 48 hours notice to the court and to the mother. Such application may be made in the event of the mother failing to comply with any of the orders made hereafter. In the event of the father’s application being successful the court may, at that time, consider what time [the child] should spend with her mother.
(4A) After 16 January 2010 the father has liberty to apply on 48 hours notice to the Court and to the mother. Such application may be made in the event of the mother failing to comply with any of the orders made hereafter. In the event of the father’s application being successful the court may, at that time, consider what time [the child] should spend with her mother.
PENDING FURTHER ORDER OR UNTIL THE OPERATION OF ORDER 27
(5)For so long as Order 3 operates the following orders shall apply as interim orders:
(a)The mother [Ms Stamos] is to have sole parental responsibility for [the child]. The mother is to consult with the father by email or in writing in relation to important matters relating to [the child’s] health, schooling, religion and accommodation. The mother is to take into account the father’s views when making a decision about any such matter.
(b)[The child] is to live with her mother at all times not specified by these orders as time when she is to live with her father.
(c)[The child] is to live with the father at the following times.
(i)Until 1 November 2008 each Sunday from 10.00 a.m. until 4.30 p.m. [The child] to be collected from and returned to a contact centre as provided for hereafter.
(ii)From 10 September 2008 until 1 December 2008 and during school term time, from after school each Wednesday until 5.30 p.m. with [the child] to be collected from school at the start of this time and returned at a contact changeover venue to be nominated by the Independent Children’s Lawyer. This time is additional to the time [the child] is to spend with her father on Sundays.
(iii)From 1 November 2008 and until the commencement of the 2009 1st term of the school year, each alternate Saturday from 10.00 a.m. until Sunday at 4.30 p.m. [The child] to be collected from and returned to a contact centre nominated by the Independent Children’s Lawyer. This order is to operate during school term time and during school holiday periods until the commencement of the 1st school term in 2009.
(iv)From 1 December 2008 each Wednesday from after school until school time the next day during school term.
(v)During the school holidays commencing at the conclusion of the 4th school term in this year and until the commencement of the 2009 school year, each Wednesday from 4.30 p.m. until 10.00 a.m. the next day. This to be in addition to the time provided for in order (5)(c)(iii) hereof. The changeovers to take place at a contact changeover centre nominated by the Independent Children's Lawyer. Should there be no ability to arrange this through a contact centre the Independent Children’s Lawyer is to recommend an alternate proposal which would see [the child] have an overnight period with her father during each week. If the proposal is consented to, in writing, by the parties then the agreed form will operate as an order of the Court. Otherwise the matter may be re-listed before me.
(vi)Commencing with the 1st term of the 2009 school year and during school term, each alternate weekend from after school Friday until school time on Monday morning. [The child] to be collected from school at the commencement of this time and delivered to school at the conclusion of this time. The first of these weekends is to occur on the first Friday of each school term.
(vii)Commencing with the conclusion of the first school term of the 2009 school year, the first half of the holidays at the conclusion of the 1st, 2nd and 3rd school terms.
(viii)In the holidays at the end of the 4th term of the school year each alternate week commencing with the first week of the said school holidays in 2009 and commencing in the second week of the said school holidays in 2010. This order to operate until the 4th term holiday period in 2011 when [the child] is to spend the first half of the 2011 4th term holidays with her mother and the second half with her father. Thereafter for the holidays at the end of 4th term the mother will have the first half in years ending in uneven numbers and the second half in years ending in even numbers and the father will have the first half in years ending in even numbers and the 2nd half in years ending in odd numbers.
(ix)Each alternate Christmas Eve from 10.00 a.m. until 10.00 a.m. on Christmas Day. First such time to commence 24 December 2009.
(x)Each alternate Christmas Day from 10.00 a.m. until 10.00 a.m. on the 26 December. First such time to commence 25 December 2008.
(xi)The mother is to have [the child] with her each alternate Christmas Eve from 10.00 a.m. until 10.00 a.m. on Christmas Day. First such time to commence 24 December 2008. She is to have [the child] with her each alternate Christmas Day from 10.00 a.m. until 10.00 a.m. on 26 December. First such time to commence 25 December 2009.
(xii)The changeovers for [the child] on the Christmas Eve, Christmas Day, Boxing Day and the mid point of school holidays or any other time not specifically provided for in these orders is to be a site to be nominated by the Independent Children's Lawyer. Neither the mother nor the father is to be present at the changeover. The mother is to ensure that her mother is not at or in the vicinity of the changeover. Each of the parties to advise the other no later than seven (7) days before any such event who will be participating in the changeover on behalf of that parent.
(xiii)As from the commencement of 2009 [the child] is to spend time with each of her parents on her birthday. If [the child] is in her mother’s care on her birthday morning then the father is to have [the child] from after school until 6.00 p.m. on that day. If [the child] is in her father’s care on her birthday morning then the mother is to have [the child] from after school until 6.00 p.m. on that day.
(xiv)The parties are to make arrangements for [the child] to spend time with each of them during Greek Easter commencing in the 2009 year.
(xv)Such other time as the parties may agree to in writing communicated by email, mail or personal delivery.
(6)Upon order 3 hereof being discharged or set aside the mother has leave to apply to the court for orders to spend time with [the child].
(7)Subject to order 8 and 9 hereof, [the child’s] time spent with the father, as set out herein, is to be monitored by [Ms A], who is to be present at all times [the child] is with her father and is to be available to [the child] should she require any attendance at the toilet, or with bathing, or changing her underclothing, swimmers or the like. This order is to operate for twelve (12) months from 1 November 2008. On and after 1 November 2009 [Ms A] is to reside with the father whilst [the child] is in his care, however, she will not be required to be present with [the child] at all times when she is with her father.
…
(12)The father is not to bath [the child] or assist her with toileting. He is not to assist her with dressing other than to assist with the putting on and removal of outer garments. The father is to ensure that [the child] does not see him nude and not see his exposed genitals at any time. He is to ensure that [the child] does not remain in his bedroom at any time he is unaccompanied by a third person. The father is to discourage [the child] entering his bedroom at any time.
(13)The parties may vary the provisions of any of these orders by consent provided that variation is in writing and has been signed by each of them.
(14)On any occasion [the child] spends with the father overnight, [the child] is to have a separate bedroom from the father’s bedroom.
…
(17)Neither party is to discuss any sexual abuse or other abuse allegations with, or in the presence or hearing of [the child], or permit any other person in the presence of [sic] hearing of [the child] to discuss such allegations. If [the child] makes any such allegation to either of the parents they are to listen to what she has to say. They are not to question her about any of her allegation. They are to commit to writing, in the absence of [the child], as soon as possible after such event, exactly what [the child] said and a description of her affect/disposition throughout the whole of the disclosure. [The child] is not to be required to repeat any such allegation to either parent or any other person other than as provided for herein.
(18)Upon any allegation being made of the type referred to in Order 17 hereof the parent to whom the allegation was made, or in whose care [the child] was at the time any such allegation was made, is to forthwith report the matter to the Child Protection Unit at the Prince of Wales Hospital and thereafter follow the recommendation of the members of that unit. The parent is to forthwith notify the Independent Children’s Lawyer of the allegation and the action taken by the parent.
…
(24)Neither party is to relocate their residence to a place outside ten (10) kilometres, by road, from the [M school] attended by [the child] without the written consent of the other parent.
...
(27)In the event the matter is not re-listed for a period of eighteen (18) months from the date hereof the interim orders made herein are to become final orders of the Court.
…
The ICL’s proposed amendments
(1)
The father, [Mr Mariakis], is to have sole parental responsibility for [the child] born … August 2002 (hereafter called [“the child”]). The father is to consult with the mother by email or in writing in relation to important matters relating to [the child’s] health, schooling, religion and accommodation. The father is to take into account the mother’s views when making a decision about any such matter.(2)
[The child] is to live with the father.(3)
Orders 1 & 2 made herein are suspended until further order of the Court.(4)The father has liberty to apply
to discharge order 3 hereofon 48 hours notice to the court and to the mother. Such application may be made in the event of the mother failing to comply with any of the orders made hereafter. In the event of the father’s application being successful the court may, at that time, consider what time [the child] should spend with her mother.(5)
For so long as Order 3 operates the following orders shall apply as interim orders:(a)The mother [Ms Stamos] is to have sole parental responsibility for [the child]. The mother is to consult with the father by email or in writing in relation to important matters relating to [the child’s] health, schooling, religion and accommodation. The mother is to take into account the father’s views when making a decision about any such matter.
(b)[The child] is to live with her mother at all times not specified by these orders as time when she is to live with her father.
(c)[The child] is to live with the father at the following times.
(i)Until 1 November 2008 each Sunday from 10.00 a.m. until 4.30 p.m. [The child] to be collected from and returned to a contact centre as provided for hereafter.
(ii)From 10 September 2008 until 1 December 2008 and during school term time, from after school each Wednesday until 5.30 p.m. with [the child] to be collected from school at the start of this time and returned at a contact changeover venue to be nominated by the Independent Children’s Lawyer. This time is additional to the time [the child] is to spend with her father on Sundays.
(iii)From 1 November 2008 and until the commencement of the 2009 1st term of the school year, each alternate Saturday from 10.00 a.m. until Sunday at 4.30 p.m. [The child] to be collected from and returned to a contact centre nominated by the Independent Children’s Lawyer. This order is to operate during school term time and during school holiday periods until the commencement of the 1st school term in 2009.
(iv)From 1 December 2008 each Wednesday from after school until school time the next day during school term.
(v)During the school holidays commencing at the conclusion of the 4th school term in this year and until the commencement of the 2009 school year, each Wednesday from 4.30 p.m. until 10.00 a.m. the next day. This to be in addition to the time provided for in order (5)(c)(iii) hereof. The changeovers to take place at a contact changeover centre nominated by the Independent Children's Lawyer. Should there be no ability to arrange this through a contact centre the Independent Children’s Lawyer is to recommend an alternate proposal which would see [the child] have an overnight period with her father during each week. If the proposal is consented to, in writing, by the parties then the agreed form will operate as an order of the Court. Otherwise the matter may be re-listed before me.
(vi)Commencing with the 1st term of the 2009 school year and during school term, each alternate weekend from after school Friday until school time on Monday morning. [The child] to be collected from school at the commencement of this time and delivered to school at the conclusion of this time. The first of these weekends is to occur on the first Friday of each school term.
(vii)Commencing with the conclusion of the first school term of the 2009 school year, the first half of the holidays at the conclusion of the 1st, 2nd and 3rd school terms.
(viii)In the holidays at the end of the 4th term of the school year each alternate week commencing with the first week of the said school holidays in 2009 and commencing in the second week of the said school holidays in 2010. This order to operate until the 4th term holiday period in 2011 when [the child] is to spend the first half of the 2011 4th term holidays with her mother and the second half with her father. Thereafter for the holidays at the end of 4th term the mother will have the first half in years ending in uneven numbers and the second half in years ending in even numbers and the father will have the first half in years ending in even numbers and the 2nd half in years ending in odd numbers.
(ix)Each alternate Christmas Eve from 10.00 a.m. until 10.00 a.m. on Christmas Day. First such time to commence 24 December 2009.
(x)Each alternate Christmas Day from 10.00 a.m. until 10.00 a.m. on the 26 December. First such time to commence 25 December 2008.
(xi)The mother is to have [the child] with her each alternate Christmas Eve from 10.00 a.m. until 10.00 a.m. on Christmas Day. First such time to commence 24 December 2008. She is to have [the child] with her each alternate Christmas Day from 10.00 a.m. until 10.00 a.m. on 26 December. First such time to commence 25 December 2009.
(xii)The changeovers for [the child] on the Christmas Eve, Christmas Day, Boxing Day and the mid point of school holidays or any other time not specifically provided for in these orders is to be a site to be nominated by the Independent Children’s Lawyer. Neither the mother nor the father is to be present at the changeover. The mother is to ensure that her mother is not at or in the vicinity of the changeover. Each of the parties to advise the other no later than seven (7) days before any such event who will be participating in the changeover on behalf of that parent.
(xiii)As from the commencement of 2009 [the child] is to spend time with each of her parents on her birthday. If [the child] is in her mother’s care on her birthday morning then the father is to have [the child] from after school until 6.00 p.m. on that day. If [the child] is in her father’s care on her birthday morning then the mother is to have [the child] from after school until 6.00 p.m. on that day.
(xiv)The parties are to make arrangements for [the child] to spend time with each of them during Greek Easter commencing in the 2009 year.
(xv)Such other time as the parties may agree to in writing communicated by email, mail or personal delivery.
(6)
Upon order 3 hereof being discharged or set aside the mother has leave to apply to the court for orders to spend time with [the child].
…
(27)
In the event the matter is not re-listed for a period of eighteen (18) months from the date hereof the interim orders made herein are to become final orders of the Court.
…
Did his Honour afford procedural fairness to the mother in making an order that the child live with the father without an opportunity for the mother to be heard?
This question cannot be answered in isolation from a consideration of the effect of his Honour’s orders. Did his Honour’s orders work to automatically provide a change of residence of the child in the event the mother failed to comply with any of his Honour’s orders, or was the effect of the orders to provide a mechanism (overcoming any Rice & Asplund issue) whereby the father could apply to the Court (or the trial Judge) for final orders that the child live with him and spend time with the mother, and that mechanism would expire by effluxion of time on 16 January 2010?
The trial Judge, as often occurs in cases involving allegations of sexual abuse involving pre-school children, was faced with a difficult decision. His Honour made findings:
·there was no unacceptable risk of sexual abuse of the child by the father;
·the child should maintain and develop a meaningful relationship with the father;
·the child would be traumatised if removed from the care of the mother who was her undisputed primary caregiver;
·the mother maintained a firm stance that she believed the child had been abused and had not complied with court orders and may not comply with orders for the father spending time with the child unless supervised in a children’s contact centre; and
·the parties had spent a great deal of money on the litigation and finality of the proceedings was desirable.
It is clear to us that what his Honour was seeking to achieve in the best interests of this small child was to make orders which would ensure she could maintain her strong attachment to her mother by remaining in her mother’s primary care whilst at the same time maintaining her relationship, and spending increased time, with her father. His Honour concluded that the orders needed a coercive element to ensure compliance by the mother. But was that coercive element a self-executing order that the father would automatically become the parent with final orders for sole parental responsibility and day to day care of the child if the mother failed to comply with any of the orders at any time up to 16 January 2010? We conclude that was what was intended by the trial Judge having regard to paragraphs 556, 562, 568, 580, 581 and 590, notwithstanding the apparent inconsistencies between these paragraphs and paragraphs 557 and 597, of his reasons. But we do not consider the orders had that effect. Our reasons are as follows:
(i) the orders did not provide any mechanism for a recovery order in favour of the father to issue and lie in the registry;
(ii) if the father applied to discharge Order 3 (the order suspending operation of the orders he have sole parental responsibility and the child live with him) his application would require not only the issue of a recovery order, but consideration of the child’s best interests in making a parenting order as contemplated by Order 6;
(iii) the orders were all expressed to be interim orders; and
(iv) the effect of Order 27 was to make all of the interim orders final orders - thus both the mother and father would have final orders for sole parental responsibility and that the child live with them (i.e. Orders 1 and 2 in favour of the father, and Order 5(a) and (b) in favour of the mother).
The trial Judge was cognisant that the parties had spent considerable sums on the litigation, and sought to avoid creating a situation where there would be further litigation. His Honour’s aims were to craft orders in the best interests of this child, and to minimise emotional stress and costs to the parties.
As we have accepted his Honour intended that his orders should operate as self-executing final orders in favour of the father in the event of non-compliance by the mother up to 16 January 2010, and subject to his Honour determining what time, if any, the mother should then spend with the child, we turn to consider the complaint of lack of procedural fairness to the mother in making such an order.
We have set out the procedural history of the matter at some length. We accept that his Honour foreshadowed to the parties during the period he heard oral submissions that he was considering making interim rather than final orders. So much is clear from the exchanges which took place between his Honour and Mrs O’Connor on 18 March 2008. When the matter resumed before his Honour on 8 April 2008 he had received written submissions from the father’s counsel dated 3 April 2008 and the mother’s then counsel dated 7 April 2008. On 8 April 2008 counsel then appearing for the mother made his oral submissions to the trial Judge. After discussing an order for sole parental responsibility in favour of the mother he said:
… The second matter I wish to raise is the question of interim or final orders. Your Honour has argued or given consideration to interim orders from some practical points of view. My respectful submission is that your Honour could make those orders or make a self‑executing order and/or make a self‑executing order at the same time, for example, whatever orders there are, if they’re complied with for a period of whatever, six months, 12 months, they become final. If the matter is brought back before Court for some reason, then, of course, they don’t. That would save the parties the expense of automatically coming back as a part heard matter. I would urge that course upon your Honour. The self‑executing order, of course, at the same time, would discharge the child representative. (Transcript, 8 April 2008, pp 323-324)
We understand that submission to envisage the trial Judge making an interim order that the child live with the mother, which order would by effluxion of time become final in 12 months, but not effect an automatic change of the child’s residence to the father in the event of non-compliance by the mother.
At the end of his submissions, the following exchange occurred between the trial Judge and the mother’s counsel:
MR JOHNSON: Now, I don’t propose to take your Honour through the various subsections other than if your Honour wishes to address at this stage ‑ wishes me to address at this stage on the child going into the father’s predominant care.
HIS HONOUR: No, not at this stage, I don’t need that. (Transcript, 8 April 2008, p 327)
As we have already explained in some detail, before making his orders on 16 July 2008 the trial Judge handed down his reasons and a copy of the orders he proposed to make. Our perusal of the transcript of that day, when the mother was represented by her solicitor, indicates that up until the making of the orders, which appears to have occurred before the second standing down of the matter over the luncheon period, that his Honour specifically directed the attention of the parties’ solicitors to the then proposed orders insofar as they relate to provisions for supervisors and change over arrangements.
After the making of the orders his Honour allowed the legal representatives further time to read the orders and raise any queries with him if there were any matters about which they sought explanation. We accept that the mother's solicitor did not raise at any time any issue of ambiguity in the orders, but that is explicable given she had the task of reviewing his Honour’s detailed reasons for judgment as well as the orders and explaining them to the mother over a relatively short period of time. It is further explicable when regard is had to the discussion between the trial Judge and the parties before the orders were made which were focussed on changeover arrangements, “conditions” and appropriate supervisors.
The principles of natural justice and procedural fairness lie at the heart of the mother’s complaint. Although counsel who appeared for the mother at trial, in his written submissions, addressed briefly the asserted unsuitability of the father to undertake full time care of the child (Mother’s submissions, 7 April 2008, p 11), we consider the dramatic change the self-executing order was intended to implement, in the event of non-compliance with any order, required the mother have an opportunity to be heard (see U & U (2002) 211 CLR 238 per Hayne J at paragraphs 171-172 and Bolitho & Cohen (2005) FLC 93-224 at paragraphs 84-85 per Bryant CJ, May & Boland JJ). We are satisfied that the procedural fairness ground is established.
Asserted error by the trial judge in making orders without considering the emotional and psychological effect and impact of the orders on the mother (ground 3)
That the trial Judge erred in placing conditions upon the circumstances in which the child could continue to reside with the mother (ground 5)
The matters agitated in these grounds overlap with the mother’s principal challenge to the trial Judge’s orders (the natural justice challenge).
Trial Judge’s consideration of effect of the orders on the mother
The trial Judge was cognisant that the mother sought any time to be spent by the child with the father should be supervised. In dealing with relevant s 60CC(3) factors the trial Judge explained, at paragraph 555, “[o]n the one hand it must be reasonably predictable that the mother will have difficulty complying with some of the orders I propose to make”.
It is clear from an overall reading of his Honour’s reasons he was aware that the mother’s belief was that the child was at risk of sexual abuse by the father if she spent unsupervised time with him (paragraph 557). His Honour made findings that the mother and her family “would tolerate [the child] spending time with her father in a strictly supervised environment such as the [P] Contact Service.”
His Honour went on to make the following findings:
… I also accept that in the short term the mother and her family would be anxious for [the child] if she was to spend time with her father in an unsupervised circumstance or a circumstance which they saw as tantamount to no supervision. … (paragraph 557)
Later, at paragraph 558, the trial Judge specifically recognised the mother would need support with complying with orders providing for the father to spend more time with the child and included in his orders, based on the recommendation of Dr Q, an order that the mother attend counselling.
There was no expert evidence before the trial Judge led by the mother asserting she would not be able to cope in the event that the trial Judge ordered unsupervised time with the father. Dr Q did comment on the mother’s ability to cope if the child’s time with the father was not supervised (Transcript, 10 March 2008, p 6). In her report, at page 48, Dr Q said:
The mother and maternal grandmother have a highly enmeshed relationship such that [Ms Stamos] has difficulty functioning independently. [Ms Stamos] would benefit from expert psychotherapy with a well qualified clinical psychologist or psychiatrist to deal with this. I would recommend that this be a clinician who is a graduate of a recognised psychotherapy institute (eg NSWIPP, ANZAP, or one of the psychoanalytic associations) or has completed the RANZCP Advanced Training in Psychotherapy.
His Honour made the order recommended by the expert.
The trial Judge properly considered the effect his orders for the child to spend time with the father would have on the mother. We do not find this case falls into the category of cases where the principles espoused in Russell & Close (unreported, Family Court of Australia Full Court, 25 June 1993) as approved by the Full Court in A & A (1998) FLC 92-800 would be relevant. Further, the trial Judge adopted the expert’s advice that initial time spent with the father should be supervised. By the time the father’s time with the child was unsupervised the mother would have had the benefit of professional assistance to enable her to function independently.
We discern no error by the trial Judge in the orders made. His Honour did take into account the impact of his orders on the mother and provided for a period of strict supervision as well as counselling to assist the mother.
“Conditions” imposed by the trial Judge’s orders
It is submitted in paragraph 36 of senior counsel for the mother’s submissions, that “[t]he conditions imposed upon the mother for the continuing full time care of [the child] are extremely onerous”. The mother cites as onerous conditions Orders 5(a), 5(b), 5(c)(xii), 5(c)(xiv), Order 9 and Order 19.
The parties in this matter demonstrated an inability to communicate effectively with each other up to the date of the trial. His Honour crafted very detailed orders and afforded the mother’s solicitor, before he made the “conditions” orders, the opportunity for submissions to be made in respect of matters such as changeovers.
The complaint about Order 5(a) is, in our view, without substance, particularly in the circumstance where the trial Judge has provided for the mother to have sole parental responsibility and her obligation is to consult with the father by email or in writing as to important matters relating to the child’s health, schooling, religion and accommodation.
In the circumstances of this case, we discern no appealable error by the trial Judge in making detailed provisions for changeovers, sharing of Greek Easter or the inclusion of the non-denigration order made at Order 19. The latter order was sought by the ICL and the mother had ample opportunity to oppose such an order being made but did not do so.
Re-exercise of the discretion
As we recorded at the commencement of these reasons, there was no disagreement in the event that we found appealable error in respect of the natural justice ground that his Honour’s orders should be varied. We have earlier in our reasons set out the position adopted by the ICL and the father as to how the orders ought to be varied.
There was no cross-appeal directed to the trial Judge’s finding, based on the expert evidence of Dr Q, that the child should continue to live with the mother. Nothing to which we have been referred supports changing the orders for the incrementally increasing time for the child to spend with the father.
Counsel for the ICL proposed that we should make orders modifying the trial Judge’s orders. We have already set out the modifications proposed by the ICL.
We are satisfied that the orders as proposed by the ICL, subject to minor modification, are in the best interests of the child. The orders as proposed will create certainty for the parties (and thus importantly for the child). By retaining the modified Order 4 the father is afforded the opportunity to return to the Court should circumstances require him to do so.
Obviously, if there was to be any change in the child's living arrangements, either on account of a failure by the mother to comply with orders (irrespective of whether there had been successful contravention proceedings) or because of some significant change in circumstances, the question of whether that change would be in the child's best interests would need to be examined by the Court at the relevant time. We doubt that it would be necessary or desirable for there to be formal contravention proceedings instituted and determined. Rather evidence adduced, and a consequential finding made in the context of an application for change of residence by the father that the mother had failed to comply without reasonable excuse with the existing orders should in our view be sufficient to entitle the Court to consider a change of residence. Alternatively, in such a context the Court could consider a change of circumstances. We acknowledge that this might be considered an unusual approach but in our view this is an unusual case.
Costs
At the end of the proceedings we sought submissions from the parties and the ICL in respect of costs. The parties each sought, in the event that we found error of law by the trial Judge, that they should receive the relevant certificates pursuant to the provisions of the Federal Proceedings (Costs) Act1981 (Cth). Counsel for the ICL also sought a certificate, or in the event the appeal failed that the mother pay the ICL’s costs in the sum of $3,489.50.
We are satisfied that an error of law has been established and, in the circumstances, it is appropriate for us to make an order for the relevant certificates.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 18 September 2009
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