Stephens and Anor and Taylor and Anor (No. 2)
[2008] FamCAFC 169
•6 November 2008
FAMILY COURT OF AUSTRALIA
| STEPHENS AND ANOR & TAYLOR AND ANOR (NO. 2) | [2008] FamCAFC 169 |
| FAMILYL LAW – APPEAL – From decision of Federal Magistrate – CHILDREN – where child lives with maternal grandparents – where child has not seen father since 2002 – appeal by grandparents from orders allowing father to spend time with child – whether the Federal Magistrate made findings against the weight of evidence – whether the Federal Magistrate failed to give sufficient weight to evidence of psychiatrist – whether Federal Magistrate failed to give sufficient weight to the impact of mother’s mental health and her views regarding the father on the grandparents and their capacity to support the child spending time with the father – whether Federal Magistrate erred in his findings regarding father’s criminal antecedents – whether Federal Magistrate failed to give sufficient weight to alleged criminal and anti-social conduct of father and the effect on his parenting capacity and the grandparents – whether Federal Magistrate failed to give sufficient weight to the impact on the child of the fears and concerns of the grandparents – whether Federal Magistrate erred in accepting the recommendations of expert psychologist – whether Federal Magistrate erred by making orders inconsistent with recommendations of psychologist regarding supervision and review – where Federal Magistrate failed to provide reasons for order that a review by a psychologist take place after the introduction of unsupervised time – whether Federal Magistrate erred in making an injunctive order against a child who was not a party to proceedings and had no opportunity to be heard – Appeal allowed in part – re-exercise of discretion – variation of orders to provide for preparation of report prior to moving to unsupervised time – order restraining child discharged. |
| Family Law Act 1975 (Cth) ss 60CC |
| Gronow and Gronow (1979) FLC 90-716 House v The King (1936) 55 CLR 499 Bellenden (formerly Satterthwaite) v Satterthwaite (1948) 1 All ER 343 Bennett and Bennett (1991) FLC 92-191 |
| APPELLANTS: | Mrs Stephens & Mr Stephens |
| 1ST RESPONDENT: | Mr Taylor |
| 2ND RESPONDENT: | Ms Stephens |
| FILE NUMBER: | ADM | 1737 | of | 2005 |
| APPEAL NUMBER: | SA | 109 | of | 2007 |
| DATE DELIVERED: | 6 November 2008 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 23 May 2008 29 October 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 3 December 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 1035 |
REPRESENTATION
| COUNSEL FOR THE APPELLANTS: | Ms Pyke QC |
| SOLICITOR FOR THE APPELLANT: | Pederick Lawyers |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr McQuade |
| SOLICITOR FOR THE RESPONDENT: | All Family Law |
| COUNSEL FOR THE 1ST RESPONDENT: | Ms Detmold |
| SOLICITOR FOR THE RESPONDENT: | Jo-Anne Milen & Associates |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Bowler |
| SOLICITOR FOR THE RESPONDENT: | Legal Services Commission of South Australia |
Orders
That the appeal against orders (4)(a), (5), and (6) made by Federal Magistrate Lindsay on 3 December 2007 be dismissed.
That the appeal against order 4(b) made by Federal Magistrate Lindsay on 3 December 2007 be allowed in so far as the order provided for there to be unsupervised time spent immediately following periods of supervised time spent without any review by Ms S.
That the appeal against order (7) made by Federal Magistrate Lindsay on 3 December 2007 be dismissed in so far as the order restrains the father from disclosing his relationship to the child J born in December 2001.
That the appeal against order (7) made by Federal Magistrate Lindsay on 3 December 2007 be allowed in so far as the order restrains the child B from disclosing the relationship of her and her father to the said child.
That the appeal against order (8) made by Federal Magistrate Lindsay on 3 December 2007 be allowed.
That order 4(b) be varied to provide as follows:
“thereafter, between the hours of 10:00am and 4:00pm on three consecutive alternate Sundays to be exercised in the presence of the maternal grandparents or either of them or their nominee, and subject to the report by Ms [S] provided for in paragraph (8) hereof, between the same hours each second Sunday in the absence of such persons until the expiration of six months from the date of the first period of supervised time spent.”
That that part of order (7) made on 3 December 2007 restraining the child B from disclosing her and her father’s relationship to the said child be discharged.
That order (8) made on 3 December 2007 be varied to provide as follows:
“Upon the expiration of the third period of supervised time spent pursuant to paragraph 4(b) of this order, the maternal grandparents and the father and, if she is willing to participate, the mother attend upon Ms [S] at a time and place to be nominated in writing by the Independent Children’s Lawyer for the purposes of the preparation of a report as to the operation of the orders providing for the father to spend time with the child.”
IT IS NOTED that publication of this judgment under the pseudonym Stephens and Anor & Taylor and Anor 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 ADELAIDE |
Appeal Number: SA 109 of 2007
File Number: ADM 1737 of 2005
| MRS AND MR STEPHENS |
Appellants
And
| MR TAYLOR |
First Respondent
And
| MS STEPHENS |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by Mrs Stephens and Mr Stephens (“the maternal grandparents”) against certain orders made by Federal Magistrate Lindsay on 3 December 2007 with respect to the child J born in December 2001.
This appeal is being determined by me as a single Judge, following a direction by the Chief Justice pursuant to section 94AAA(3) of the Family Law Act 1975 (Cth).
On 21 April 2008 the appellants sought to file an Amended Notice of Appeal without leave. On 7 May 2008 I gave leave for the appellants to file that Amended Notice of Appeal.
The appellants appeal against orders 4(a), 4(b), 5, 6, 7 and 8 of the orders of the learned Federal Magistrate. Those orders provide:
“…
(4) The said respondent maternal grandparents and the mother do all such things as may be reasonably required to facilitate the father spending time with the said child as follows:
(a)three periods of two hours, not less than seven days and not more than fourteen days apart, by way of familiarisation sessions, being periods of supervised [sic] at all times by Ms [S] and exercised in the presence of the maternal grandparents or either of them or their nominee; and
(b)thereafter, between the hours of 10am and 4pm each second Sunday for a period of six months, the first three such periods to be exercised in the presence of the maternal grandparents or either of them or their nominee, with the balance of all such periods to be exercised in the absence of such persons.
(5) The time-spent by the father pursuant to paragraphs 4(a) and (b) hereof shall commence and conclude at the home of the maternal grandparents.
(6) The father shall be at liberty to be accompanied by his daughter,[B], during the exercise of all time-spent pursuant to this Order, including the familiarisation sessions referred to in paragraph 4(a).
(7) The father and the said child [B] be restrained and an injunction granted restraining each of them from disclosing their relationship to the said child until such time as the said Ms [S] shall have advised each of the parties (or in the case of the mother, her Litigation Guardian) of her opinion that it is in the best interests of the child for such information to be disclosed to her.
(8) Upon the expiration of the last period of time-spent pursuant to paragraph 4 of this Order, the maternal grandparents and the father and, if she is willing to participate, the mother do attend upon Ms [S] at a time and place to be nominated in writing by the Independent Children’s Lawyer for the purposes of the preparation of a report as to the operation of the orders providing for the father to spend time with the child.”
The child lives with her maternal grandparents. The father has not had any contact with the child since late 2002 and now the child does not know who her father is. The mother currently lives in Sydney. The maternal grandparents and the mother oppose the father spending any time with the child.
Ms Detmold appeared for the mother at the hearing of this appeal. However, the mother failed to comply with any of my orders including for the filing of a written summary of argument and a list of authorities. Accordingly, I refused to allow Ms Detmold to make any submissions beyond supporting or opposing the appeal. Nevertheless after hearing the submissions of the counsel for the appellants and the counsel for the respondent I invited Ms Detmold to address the Court but she indicated that she had nothing to add to the submissions provided on behalf of the appellants. The mother supported the appeal.
Factual background
At the time of trial the father was aged 53 years and the mother 26 years.
The father has two adult children from a former marriage and a daughter from a previous relationship, B, who was aged 15 years at the time of trial. The father separated from B’s mother in 1997.
The mother and father met in 2000 when they were both working at S Hotel. The parties thereafter commenced a relationship. The mother kept the relationship secret from her parents.
The parties’ relationship ended in about October 2001 when the mother was approximately 7 months pregnant with the child J.
The child J was born in December 2001, and was aged almost 6 years at the conclusion of the trial. Following the child’s birth the mother lived with the child at her parent’s home. The father contended he was not able to find the mother until a month after the child’s birth.
Following the father locating the mother and J, the father, with his daughter B, had occasional contact with the child. The mother did not allow the father to reveal to the maternal grandparents he was J’s father, and in the presence of the child he was to be referred to as “man” and B as “girl”.
The father’s contact with the child ended in October 2002, after he made contact with the maternal grandmother. The father has not seen the child since this time.
In October 2004 the mother travelled to Japan, where her sister lived, leaving J in the care of her grandparents.
In October 2004 the father wrote to the mother and in December 2004 he placed an advertisement in the Adelaide Advertiser which read “Happy Birthday [J] from your father [A] and your sister [B].”
In April 2005 the mother returned to Australia.
In May 2005 the father commenced proceedings in the Federal Magistrates Court seeking final and interim orders, in relation to the child including a location order.
In June 2005 the mother again travelled to Japan.
On 23 September 2005 an order was made for the preparation of a Family Assessment Report by Ms S.
On 2 December 2005 Ms S provided a Family Assessment Report. She made the following recommendations:
“1. That the trial date be postponed until no later than 30 June 2006.
2. That the mother be directed to return to Australian (sic) no less than one week prior to the trial, and to appear at trial on the date set by the Court.
3. That the writer undertake a brief review prior to trial in order to interview the mother, and if appropriate observe [J] with her father, and submit an addendum report to the Court as outlined above.
4. That the writer undertake two familiarisation sessions over a two week period with [J] before introducing her to her father and half sister in a third session as outlined above.
5. That, dependent on [J]’s emotional response to such contact, ongoing supervised contact should be, say, for two hours once a month and be in the presence of at least one member of the maternal family.
6. That the father and [B] given (sic) a written undertaking to the Court that they will not disclose to [J] their familial relationship.”
On 6 December 2005 the Learned Federal Magistrate made orders that the child reside with the maternal grandmother and giving effect to the recommendations of Ms S for the father to have contact with the child supervised by Ms S. The maternal grandparents appealed against the orders for contact. That appeal was resolved by consent with no interaction taking place between the father and the child.
The trial commenced on 18 May 2006, continued on 19 May, 26 and 27 June, 30 October 2006, 5 and 6 February 2007 and concluded on 9 July 2007 when judgment was reserved by the Learned Federal Magistrate.
On 19 May 2006 the mother allegedly attempted suicide in Japan and was detained by mental health authorities. However she was released the following day.
The mother returned to Australia on 15 June 2006. Upon her return to Sydney, the mother attended St Vincent’s Hospital and was detained under the Mental Health Act. She became a voluntary patient shortly after her admission and after five days she was discharged. A few days after this discharge, the mother attended Royal Prince Alfred Hospital and was admitted to the Psychiatric Unit where she remained for 3 to 4 days.
On 17 July 2006 the Learned Federal Magistrate refused to make an order for the appointment of a Litigation Guardian for the mother. At the time his Honour considered there was inadequate medical evidence to support the application.
On 30 October 2006 the Learned Federal Magistrate made an order appointing a Litigation Guardian for the mother. By this time the Learned Federal Magistrate had the benefit of a report from Dr P, a psychiatrist, as to the mental health of the mother.
The Learned Federal Magistrate delivered his reasons for judgment on 3 December 2007.
On 17 December 2007 the maternal grandparents filed a Notice of Appeal against the orders of the Learned Federal Magistrate and sought a stay of his Honour’s orders until the completion of the appeal.
On 24 January 2008 the Federal Magistrate refused to grant a stay of his orders.
On 12 February 2008 the maternal grandparents filed a Notice of Appeal against the order of the Learned Federal Magistrate refusing the stay. I heard that appeal on 7 March 2008 and delivered reasons on that day. I made orders allowing the appeal, setting aside the order of the Learned Federal Magistrate and granting a stay of the operation of paragraphs 4(a), 4(b), 5, 6, 7 and 8 of the order made on 3 December 2007 pending completion of this appeal.
Reasons for Judgment of Learned Federal Magistrate
In a brief introduction to the matter, the Learned Federal Magistrate described the vigorous opposition to the father’s application by the mother and maternal grandparents, commenting it was “rare” for an application by a parent to be so strenuously opposed, but that the case was to be determined “in accordance with the same legal principles as more orthodox disputes about the level of time to be spent.” The Federal Magistrate determined it was in the child’s best interests that she have an opportunity to spend time with the father, and then proceeded to provide his reasons for this finding.
The Learned Federal Magistrate firstly dealt with the mother’s participation in the proceedings before him and recounted the unsuccessful attempts to have the mother give evidence. On the first occasion, 18 May 2006, the Federal Magistrate was advised of the mother’s suicide attempt and detention by mental health authorities in Japan. On the second occasion, in June 2006, following the mother’s return from Japan, she was again in hospital. The Federal Magistrate referred to the report of Dr P, a psychiatrist who had assessed the mother, dated 21 September 2006 noting his diagnosis:
“…
The client has developed a major depressive disorder which in my opinion remains inadequately treated. She is at significant risk of future self harm. (p10)
On the information available to me, Ms [Stephens] developed her major depressive disorder as a direct consequence of high level psychological stress associated with her ex-partner initiating legal proceedings in the hope that he will have contact with her child (p11).”
The Learned Federal Magistrate noted the doctor’s opinion that the mother was not capable of giving instructions and that in his view she would react “extremely adversely” if orders for contact were made in favour of the father. The Federal Magistrate recorded that on this basis he had made orders for the appointment of a Litigation Guardian. The Learned Federal Magistrate also referred to Dr P further report dated 1 February 2007 and his oral evidence noting that “essentially his opinion as to her condition and her prognosis remain the same as in his first report.”
The Learned Federal Magistrate then outlined the reason for his refusal to admit the mother’s trial affidavit, namely the mother’s failure to attend for cross examination, denying the other parties the opportunity to challenge her evidence. The Federal Magistrate found that the mother’s failure in this regard:
“…complicated and delayed the proceedings significantly. It is not merely a question of not providing an opportunity to test her account of matters in her affidavit. No opportunity is given to test the accuracy or reliability of the information she provides to Dr [P] or to the other doctors in Japan and Sydney”.
The Learned Federal Magistrate addressed whether all of the provisions of the Evidence Act 1995 were to apply to the proceedings and he confirmed his earlier statement in the proceedings, that he regarded the circumstances of the case to be “sufficiently exceptional to require the application of all of the provisions of the Evidence Act 1995 (Cth) which s.69ZT(1) of the Family Law Act 1975 (the ”Act”) would otherwise have rendered inapplicable to these proceedings.” The Federal Magistrate continued:
“[i]n the unusual circumstances presented by this case it seemed to me important that all of the parties knew clearly whether evidence was liable to be affected by the relevant statutory provisions. They were entitled to know at the outset that the evidence would be taken in accordance with the orthodox procedural requirements of the sections of the Evidence Act referred to in s 69ZT(1).”
The Learned Federal Magistrate concluded that regardless of the application of Section 69ZT(1), given the broad discretion in subsection (2) the weight that he would have accorded her affidavit would have been negligible, concluding it would be “simply inequitable to allow allegations to be promoted in a document when the deponent will not submit herself to cross examination.” His Honour also indicated that he would have refused to specifically admit the mother’s trial affidavit if asked to do so as an exception to his broad exclusion of Section 69ZT(1).
In deciding not to admit the mother’s affidavit, the Learned Federal Magistrate had regard to the reasons provided for the mother’s failure to give evidence and her failure to take up or consider options provided for her to give evidence via video link or another arrangement that would guarantee her safety. The Federal Magistrate accepted the evidence of Dr P regarding the mother’s anxiety about giving evidence, but found “there may be a number of reasons for that anxiety not all of which are associated with the fear of the father.” He did not accept that the mother refused to give evidence on account of fears for her physical safety.
The Learned Federal Magistrate commented on the mother’s failure to undertake treatment for her anxiety or depression:
“All of this raises a very real possibility in my view that the mother apprehends that by continuing to allow herself (in the sense of not seeking treatment) to be subject to these depressive and anxious episodes she is enabling herself to escape the responsibility of subjecting herself to the appropriate questioning in relation to the very serious allegations she has made…. I am satisfied that the mother has made a decision to leave her depressive and anxious condition untreated either by cognitive therapy or medication and that she has done so because it suits her purposes in that she avoids, she thinks, the obligation to attend Court.”
The Learned Federal Magistrate then referred to the evidence dealing with the mother’s anxiety about the father exercising time with the child, concluding that “[t]he mother is highly anxious about anything relating to the resumption of a relationship between the father and the child.”
The Federal Magistrate next considered the father’s evidence regarding the history of his relationship with the mother and the time he had spent with the child in the past. The issues agitated by the mother were put to the father in cross-examination, allowing the Federal Magistrate the opportunity to assess his responses.
His Honour stated:
“The evidence established to my satisfaction that the father has in the past and in particular during his relationship with the mother drunk to excess and has behaved towards her at times in a somewhat aggressive and discourteous manner and that he has taken illicit substances and in particular marijuana and that he has a very poor driving record. These are serious matters and are to be taken into account in evaluating the best interest of [J]. But these findings are a very long way short of establishing that the father behaved in the way alleged by the mother in her affidavits or that even a substantial or significant part of her allegations are true.”
The Learned Federal Magistrate was not satisfied that the father traded in substances other than marijuana, although indicated he may have.
Turning to the allegations made by the father, the Learned Federal Magistrate accepted that the mother required the father and B to refer to themselves as “man” and “girl” respectively in the child’s presence, and accepted the truthfulness of what the child B told Ms S on this issue. His Honour also accepted the evidence of the father that his relationship with the child and mother ceased upon him contacting the mother’s parents.
The Learned Federal Magistrate commented briefly on the mother’s apparent use of drugs.
The Learned Federal Magistrate found the father had not provided a satisfactory explanation for his delay in bringing proceedings and his Honour inferred that a “significant part of the explanation for the delay was his ambivalence about pursing a relationship with his daughter.”
His Honour commented that the father’s criminal antecedents were the subject of considerable cross examination by all opposing counsel. However, his Honour stated:
“…I thought the attempt to portray the father as having a serious criminal history in the sense of a history of serious and dangerous misconduct, fell well short of the mark. There are a number of reports relating to a clearly bad relationship he had with [B]’s mother but these aside his criminal antecedents relate to drinking and driving and using marijuana. I am not suggesting they are trivial matters but there was a lack of proportionality about the emphasis all three opposing counsel placed upon his criminal antecedents as a relevant consideration in determining the best interests of [J].”
In relation to the mother’s allegations of the father’s behaviour towards her, ranging from rape to administration of drugs to robbery and to threats, his Honour referred to the lack of evidence that the mother made any attempt to have the police deal with the matters, noting her claims remain untested due to her failure to present at trial. The Learned Federal Magistrate concluded there was insufficient evidence to make a finding regarding whether the mother’s fear of the father was genuine. His Honour again referred to the failure of the mother to give evidence using the safe and secure means offered to her, and indicated that the diagnosis of Dr P was only a partial, not complete explanation.
After discussing the father’s relationship with the mother of his daughter, B, the Learned Federal Magistrate concluded the father “clearly has had significant problems with alcohol” and there was “a lack of candour in his evidence of his recent drink driving charges which suggest it is an issue that he is yet to tackle seriously.” His Honour concluded, however, that whatever the father’s problems with alcohol it had not prevented him from providing effective and loving parenting for B and that the evidence regarding his drinking “falls well short in my view of providing any basis for (his) exclusion from the life of his daughter.”
The Learned Federal Magistrate found the father did his best to give an accurate account of his experiences with the mother, J and B’s mother, although at times the father’s evidence fell short of “complete frankness”. His Honour was of the view that the father had understated his level of drug taking during the time of his relationship with the mother, but accepted his denials that he behaved violently towards the mother or any other person. His Honour specifically rejected that the father had raped the mother and found there was no evidence to substantiate the mother’s allegation that the father had robbed a hotel.
The Learned Federal Magistrate then turned to consider the evidence of the grandparents. His Honour found the grandmother impressed as a witness “doing her best to tell the truth and as someone who gave significant priority to the welfare of [J]”. His Honour found the care provided by the grandmother to have been “exemplary”.
The Learned Federal Magistrate commented on the relationship between the grandparents and mother, concluding the evidence “suggested a very strange dynamic at work in the relationships within the family.”
His Honour referred to the grandparents’ reliance on the information provided by their daughter, stating they should be cautious to do so, pointing out the mother is “a very troubled young woman with significant psychological problems.” The Federal Magistrate noted the grandparents had the opportunity to make their own assessment of the father at trial.
The Learned Federal Magistrate noted the grandmother suffers anxiety, and recognised the stress caused to the grandmother by the trial and evidence regarding the likelihood of her daughter self-harming if the father is successful.
The Learned Federal Magistrate was left with questions following the evidence of the grandparents, commenting on the grandparents’ apparent failure to take steps to have the mother return to Adelaide and live with them. His Honour was not in a position to determine the reason for the grandparents’ lack of action, and was left with the impression the relationship between the maternal grandparents and the mother was complicated, regardless of the involvement of Mr Taylor.
The Learned Federal Magistrate then turned to consider the evidence of Ms S and her recommendations, which his Honour stated included that safeguards be adopted in the reintroduction process and that there be a carefully monitored period of familiarisation in the presence of a grandparent. Ms S’s evidence was clear that it is in the best interests of the child for her to know not only that she has a father but who he is and the sort of person he is.
The Learned Federal Magistrate then had regard to the evidence of Dr P, stating he had no difficulty in accepting Dr P’s diagnosis, but noting Dr P was not in a position to assess the merit, fairness or accuracy of the identification by the mother of her stressors. The Learned Federal Magistrate was confident, however, that whatever the cause, the mother was emotionally vulnerable as described by Dr P.
The Independent Children’s Lawyer supported the position of the grandparents and mother, namely that it was not in J’s best interest to spend time with her father. The Federal Magistrate was not persuaded by the submission, however.
After setting out the provisions of Section 61DA of the Family Law Act 1975 the Learned Federal Magistrate concluded the only candidates to have parental responsibility for J were the maternal grandparents, finding it was not appropriate for the father to exercise parental responsibility and noting the mother had not indicated any intention that she wished to exercise parental responsibility. His Honour did not propose to apply the presumption in Section 61DA.
His Honour outlined the objects of Part VII in Section 60B of the Act before turning to consider the requirements of Section 60CC.
The Learned Federal Magistrate considered it was self-evident that the child will not have a meaningful relationship with the father if she has no relationship with him at all and agreed with Ms S that J has an entitlement to know who her father is and have a relationship with him.
The Learned Federal Magistrate was “far from satisfied” that there was any real risk of harm to the child or risk of being exposed to violence or abuse of any other person if she spends time with the father. His Honour concluded the father provided appropriate and loving parenting to his daughter, B, and repeated that the evidence does not establish the father’s alleged violence towards the mother, or any other person, or neglectful or abusive parenting of B. His Honour accepted the father’s denials regarding the mother’s allegations with respect to his parenting of B.
His Honour discussed the mother’s limited role in her daughter’s life, noting however that :
“It is not a case of promoting contact with one parent simply because the other one is opting out of an opportunity to have a proper relationship with her. We need to be very careful that we do not facilitate a relationship with the father just because of a perception that we need to “make up” for the absence of a relationship with the mother. The proposed relationship with the father must be evaluated on its own merits and our assessment of the benefits to the child from that relationship.”
His Honour recognised the difficulty for the grandparents if the father is allowed to see his daughter, and their apprehensions as to the daughter’s response to such an order, concluding that “[i]t is an invidious position for them to be in but if we were to lose our nerve in the face of such a possibility… the effect of such a course of action may be to deprive [J] of an opportunity of having a relationship with any parent.”
His Honour was of the view that the weight to be given to the concerns the mother may self-harm is reduced to some extent due to her unwillingness to seek treatment, and noted:
“the court is left with a high degree of concern that the mother has adopted the course she has because it obviates the need for her to address in an adult way a range of issues relating to her relationship with her own parents and her embarrassment or regret associated with her decision to have a relationship (and a child) with the father in the first place.”
He found that the mother was not at risk of harm from the father, but his Honour was uncertain as to whether the mother’s fears were genuine but irrational, or non-genuine.
The Learned Federal Magistrate was satisfied a graduated familiarisation program would be handled sensitively and would not interfere with the grandparents’ relationship with the child.
His Honour was also satisfied the father would not undermine the mother’s relationship with the child. The Learned Federal Magistrate was far from satisfied, however, that even if the father was “quarantined” from the child’s life, that J would have a relationship and regular contact with her mother.
The Learned Federal Magistrate recognised that he had to be careful not to “under-cut” the grandparents ability to meet the child’s needs by making an order for the father to spend time with J, but was satisfied the grandparents would continue to meet J’s needs.
His Honour considered that the parents’ attitude to the responsibilities of parenthood was of significance. In his Honour’s view, the mother had demonstrated an inability or unwillingness to fulfill her responsibilities. His Honour was also critical of the father, referring to his delay in bringing proceedings and his failure to participate in J’s life or contribute financially.
His Honour did not find the father’s failure to fulfill his responsibilities in the past determinative of the application, finding there was no reason not to give him the opportunity to do so in the future. His Honour specifically rejected the submission that any fault or neglect of the father in past should determine his relationship with J in the future.
The Learned Federal Magistrate reiterated he was not satisfied that the father was violent towards the mother and did not consider the “low-level and sporadic violence which accompanied the excessive drinking of the father and [B]’s mother” should preclude a relationship between the father and J.
The Learned Federal Magistrate thus concluded he was satisfied that it was in J’s best interests to spend time with her father, indicating his orders would reflect a “cautious and careful and graduated approach” as recommended by Ms S, with Ms S to report on the progress of the introduction before his Honour would deal with the matter in a final way.
Grounds of Appeal
The grounds of appeal in the Amended Notice of Appeal are as follows:
“1. The findings of Federal Magistrate Lindsay that he was satisfied that the mother has made a decision to leave her depressive and anxious condition untreated either by cognitive therapy or medication and that she has done so because it suits her purposes in that she avoids, she thinks the obligation to attend Court was against the evidence and the weight of evidence.
2. The Learned Federal Magistrate failed to give adequate or sufficient weight to the evidence and reports of Dr [P] as to the mental and emotional state of the mother and the impact that [J] spending time with the father would have upon the mother.
3. The Learned Federal Magistrate erred in the exercise of his discretion in that he failed to give sufficient or adequate weight to the impact of their daughter’s mental health and risk of suicide or self-harm upon the grandparents and their capacity to support the child [J] spending time with the father.
4. The Learned Federal Magistrate erred in finding that (beside the clearly bad relationship he had with [B]’s mother) the father’s criminal antecedents related to drinking and driving and the use of marijuana. Such findings were against the evidence and the weight of evidence.
5. The Learned Federal Magistrate erred in the exercise of his discretion in failing to adequately take into account the extensive criminal and anti-social conduct of the father extending over a period of approximately 27 years and the impact of such behaviour upon his parenting capacity and as a role model for children.
6. The Learned Trial Magistrate erred in the exercise of his discretion in that he failed to give sufficient or adequate weight to the father’s criminal and anti-social behaviour and its impact upon the grandparents and their capacity to support the child [J] spending time with the father.
7. The Learned Federal Magistrate erred in the exercise of his discretion in failing to give sufficient or adequate weight to the potential impact upon [J] of the grandparents’ fears and concerns about the father and the mother, and their capacity to support [J] spending time with the father.
8. The Learned Federal Magistrate erred, on the evidence in accepting and acting upon the recommendation of the Psychologist [Ms S] that [J] should spend time with the father; The conclusions of Ms [S] when tested in cross-examination and in light of the evidence were not sustainable and did not accord with the best interests of [J].
9. The finding of the Learned Federal Magistrate that neither of the grandparents had taken any initiative to have their daughter returned to Adelaide and their failure to act and promote the return of their daughter or the resumption of her relationship with the child had tactical overtones was against the weight of the evidence and was not supported by the evidence.
10. The Learned Federal Magistrate failed to give sufficient or adequate weight to the impact upon the grandparents of the views, attitudes and perceptions of the mother about the father and to the impact of such views upon the capacity of the grandparents to support the father spending time with [J].
11. The Learned Federal Magistrate erred in the exercise of his discretion in that whilst adopting the recommendation of the psychologist [Ms S] that [J] should spend time with her father made orders which were inconsistent with her recommendations that supervised contact continue for a period of a year and be reviewed thereafter.
12. The Learned Federal Magistrate erred in making injunctive orders against the child [B], a person who gave no evidence and in respect of whom no order was made for service of the orders upon her or for any explanation of the orders or her obligations pursuant to the orders to be provided to her.”
Principles applicable to the appeal
The judgment of the Federal Magistrate in this case is what is known as “a discretionary judgment”. The principles applicable to an appeal against a discretionary judgment are well settled.
In Gronow & Gronow (1979) FLC 90-716, Stephen J stated at 78,848:
“The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.”
In House & The King (1936) 55 CLR 499, Dixon, Evatt and McTiernan JJ said at 504:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
Similarly, in Bellenden (formerly Satterthwaite) v Satterthwaite (1948) 1 All ER 343 at 345, Asquith LJ said:
“…It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”
Discussion
Before turning to the individual grounds of appeal, I mention that at the commencement of the hearing of the appeal the appellants’ counsel made a general submission by reference to authority to the effect that in considering paragraph 60CC(2)(a) of the Family Law Act 1975. There can be no presumption that a meaningful relationship is of benefit to the child. The evidence in the case may indicate that there is no capacity for a meaningful relationship or even if there is that the child will not in fact benefit from that meaningful relationship, and thus it would not be in the child’s best interest to spend any time with that parent. Ms Pyke suggested that this was such a case, but that the Learned Federal Magistrate did not properly address this. Ms Pyke asserted that the Learned Federal Magistrate did not consider whether there is a capacity here for a meaningful relationship between the father and J, and if there is whether it would be of benefit to the child. The appellants apparently say that there is no potential for the child to have a meaningful relationship with the father and even if there is there will be no benefit to the child from that relationship.
However, that is all very well, but there was no ground of appeal directed specifically to this issue. Ms Pyke suggested that the individual grounds of appeal were the examples of the Federal Magistrate’s failure to properly address paragraph 60CC(2)(a) and that in this way the overall submission that she was making was properly before the Court, but I do not accept that. It still needed to be the subject of a ground of appeal, and in any event there was very little attempt to relate the individual grounds of appeal to this general submission. Further, neither the other party nor the Independent Children’s Lawyer were given a proper opportunity to consider this argument and provide an informed response. That is of course why the submission needed to be the subject of a ground of appeal if it was to be agitated. Thus, I do not propose to address this issue as being an issue properly raised in this appeal.
That is not to say though that the Learned Federal Magistrate did not consider paragraph 60CC(2)(a) of the Family Law Act 1975, as he was obliged to. Indeed, in my view his Honour did properly consider this paragraph, and importantly he did not start from any presumption or given. He commenced this section of his judgment as follows:
“71. Self-evidently, [J] will not have a meaningful relationship with the father if she has no relationship at all with him, at least if the word meaningful is to be given a purposive interpretation. It is one of the difficulties confronted on account of the legislature’s choice of such an adjective. In a perverse sense, an abusive relation is capable of being meaningful. Having regard to the objects and principles of the Act, however, and to a use of the expression “benefit to the child” in sub-section (2)(a), meaningful must be taken to mean “other than token” or “significant in a beneficial way”.”
His Honour continued:
“73. I agree with Ms [S] that [J] has an entitlement to know who her father is and to have a relationship with him...
…
75. [J]’s entitlement to know her father is thrown into particularly sharp relief having regard to the likelihood that she will have a very limited opportunity of knowing her mother into the future…It is not a case of promoting contact with one parent simply because the other one is opting out of an opportunity to have a proper relationship with her. We need to be very careful that we do not facilitate a relationship with the father just because of a perception that we need to “make up” for the absence of a relationship with a mother. The proposed relationship with the father must be evaluated on its own merits and our assessment of the benefits to the child from that relationship. However, the absence from [J]’s life of any relationship with a parent encourages us to consider very carefully the difficulties that might confront the reintroduction of the father to her life so as to ensure that we do not take the easy way out. If a relationship with her father is in her best interests we should face up to dealing with any difficulties that may be presented to other adults by that relationship recommencing. There is no doubt that ordering time-spent with the father will complicate the life of the grandparents and will give rise to apprehensions on their part about how their daughter will respond and in particular whether she will self harm. It is an invidious position for them to be in but if we were to lose our nerve in the face of such a possibility and regard the time spent order as just too difficult in the circumstances the effect of such a course of action may be to deprive [J] of an opportunity of having a relationship with any parent.”
I accept the submission of the counsel for the respondent father that the evidence of Ms S was that a meaningful relationship could be established and that it would be beneficial. The Learned Federal Magistrate relied on this evidence.
I now turn to the specific grounds of appeal.
Ground 1
I do not consider that this ground of appeal has any merit. The Learned Federal Magistrate has a wide discretion in assessing the evidence and making a decision. As is clear from the authorities it is not enough that the judges of the appeal court might consider that placed in the position of a trial judge they would have reached a different conclusion. There must be an error made in exercising the discretion.
Here the issue is the weight his Honour attributed to the matters mentioned, and as has been pointed out by the respondent father’s counsel there is not only evidence which the Learned Federal Magistrate could rely on in making his finding but it was not within the expertise of the psychiatrist to determine the truth or otherwise of what he was told by the mother. Further, the Learned Federal Magistrate had the benefit of the entirety of the evidence and the knowledge of the history of the mother’s behaviour in the proceedings.
Although Dr P was asked in cross examination whether the mother had adopted strategic behaviour to avoid the proceedings, his response was a predictable one, namely, that he “proceeded with the interview with normal clinical scepticism”, and it was his view that she gave him “a forthright and proper history” and he was “not left at the conclusion of the consultation with a sense of disbelief”. This evidence of course does not prevent the Learned Federal Magistrate from making the finding that he did. Indeed, Dr P also said this in cross examination:
“I think we have – the best way to look at this young lady who is non-compliant with medication, to a degree of her own volition and partly because she fears that medication will have an adverse effect on her.” (Emphasis added)
As to her behaviour in the proceedings the Learned Federal Magistrate specifically referred in his reasons to the failure by the mother to present herself for cross examination despite the mechanisms that were available to enable her to give her evidence in circumstances where her safety could be ensured. The Learned Federal Magistrate also noted that in each instance of the wife demonstrating an intention to commit suicide the mother was released from hospital very shortly after the occasion to give evidence passes.
Ground 2
I do not consider that there is any substance in this ground of appeal, and for much the same reasons as with the previous ground.
As the counsel for the Independent Children’s Lawyer said, in his reasons for judgment the Learned Federal Magistrate referred extensively to the reports and the evidence of Dr P as to the mental and emotional state of the mother and the impact that J spending time with the father would have upon the mother.
His Honour accepted that “(t)he mother is highly anxious about anything relating to the resumption of a relationship between the father and the child.” However, on the totality of the evidence before the Learned Federal Magistrate it was open to him to find that the mother’s failure to undertake any meaningful treatment for her anxiety and depression effected the weight to be given to any concerns that the mother will self-harm. As the Learned Federal Magistrate said:
“The weight which we give to the concerns that the mother will self-harm as a result of her attitude towards the father resuming a role in [J]’s life is reduced to some extent by what we know of her unwillingness to avail herself of any proper treatment for her depression. At the end of the evidence, the court is left with a high degree of concern that the mother has adopted the course she has because it obviates the need for her to address in an adult way a range of issues relating to her relationship with her own parents and her embarrassment or regret associated with her decision to have a relationship (and a child) with the father in the first place. It is sincerely to be hoped that the mother will avail herself with the sort of treatment recommended by Dr [P] and allow herself to resume a significant role in the life of her daughter. I specifically find that the mother is not at risk of harm from the father if she were to return to Adelaide or if he were to resume a role in [J]’s life. I am uncertain as to whether her fears in this regard are genuine but irrational or whether they are non-genuine. Nothing in Dr [P]’s evidence enables me to find one way or another in the way that hearing the mother tested in cross examination was likely to enable me to do.”
The Learned Federal Magistrate found that the stressor of the father taking or seeing the child was not the only stressor contributing to the mother’s condition and that Dr P was not in a position to assess the merit, accuracy or fairness of the mother’s identification of her stressors.
Dr P clearly stated that the mother’s condition remained inadequately treated. He emphasised that although she suffered from a very significant major depressive disorder, it was still an illness from which she should make a recovery. Indeed Dr P outlined a comprehensive program which would allow her to overcome her illness, to cope better, and to get on with her life.
Grounds 3 and 10
These grounds can conveniently be dealt with together. They relate to the impact on the grandparents of the mother’s health and her views about the father, and the grandparent’s capacity to support the child spending time with the father.
Again, it is a question of weight and the exercise of discretion, and I am not persuaded that his Honour erred in the weight that he attributed to the matters mentioned.
The Learned Federal Magistrate referred extensively to the relationship between the grandparents and the mother, and his Honour had regard to the effect of the proceedings on the grandparents and particularly the grandmother, the distress that they felt, and the stress of the mother claiming that she would self-harm in the event that the child spent time with the father.
However, Ms S gave evidence that she thought the grandparents had the capacity to put the difficulties concerning the mother’s medical condition to one side when considering issues relating to the child’s wellbeing.
It is also clear from the evidence of both grandparents that their concerns regarding the father arose almost exclusively from what the mother has told them given that they have had little if any contact with the father. The grandmother has only spoken to the father once on the telephone and the grandfather has never spoken to the father.
As to this the Learned Federal Magistrate made this observation in paragraph 87:
“The antipathy of the grandparents to the father is not likely to abate in the short term but when it is borne in mind that it arises not from their own experience but from the accounts given by their daughter, which may have been coloured and exaggerated for all sorts of reasons given her complicated psychological position, there is some hope for improvement. The evidence persuaded me that they were capable of conducting themselves in a civil way towards the father and he towards them.”
Indeed, in her oral evidence the grandmother conceded that the father did not pose a “physical threat” to the child although she thought that there might be some emotional risk. Further, when being cross examined about Ms S’s recommendation she considered that some contact between the child, the father, and his child B could take place in the near future with some safeguards, and indicated that she would be prepared to cooperate with Ms S as to her proposal for a gradual introduction to the father over the period of the next month. She said that she has “every confidence in Ms [S]”, that she would do her “best” to cooperate in a process whereby the father was introduced to the child, and she would take the advice of Ms S and discuss with her any recommendations for an increase in contact.
I note that both in the written submissions and the oral submissions before me an issue was raised as to the knowledge of the grandparents of the condition of the mother before they gave the evidence just referred to. That evidence was given before Dr P prepared his second report, and the Learned Federal Magistrate refused an application made on behalf of the grandparents for them to be recalled as a result of this. However, it is quite apparent from the evidence before the Learned Federal Magistrate that when the grandparents gave their evidence they were well aware of the mother’s alleged attempt to commit suicide and her detention in Japan by mental health authorities, and that the mother had returned from Japan in a very distressed state and was admitted to a hospital in Australia.
The Learned Federal Magistrate acknowledged that providing for the father to spend time with the child will “complicate” the lives of the grandparents and “give rise to apprehensions on their part about how their daughter will respond and in particular whether she will self-harm.” However his Honour continued:
“It is an invidious position for them to be in but if we were to lose our nerve in the face of such a possibility and regard the time spent order as just too difficult in the circumstances the effect of such a course of action may be to deprive [J] of an opportunity of having a relationship with any parent.”
Grounds 4 and 5
These grounds can conveniently be dealt with together. Once again though it is a question of weight and the exercise of discretion, and I find that there is no substance in these grounds of appeal. I am not persuaded that his Honour erred.
The father’s antecedents were before the Learned Federal Magistrate and there was considerable cross examination of the father by all opposing counsel and by counsel for the Independent Children’s Lawyer. His Honour referred to this evidence extensively in his reasons for judgment and he found that, “the father has in the past and in particular during his relationship with the mother drunk to excess and behaved towards her at times in a somewhat aggressive and discourteous manner and that he has taken illicit substances and in particular marijuana and that he has a poor driving record”. However, his Honour accepted the father’s evidence as to the even more serious allegations made by the mother including that he had killed a person when he lived in Sydney, and that he had traded in drugs other than marijuana. His Honour also found that there was “almost nothing to be found in the evidence” to support other allegations by the mother which “ranged from rape to administration of drugs to robbery and to threats”. Indeed, as referred to already his Honour found that “the attempt to portray the father as having a serious criminal history in the sense of a history of serious and dangerous misconduct, fell well short of the mark”. It was open to the Learned Federal Magistrate to make these findings and in my view no error has been established.
Similarly, his Honour appropriately weighed up the allegations that the father had been violent to the child B’s mother including in the presence of B, and that his alcohol abuse had impacted adversely on his capacity to parent. His Honour found on the evidence before him that his problems with alcohol have not “prevented him from providing… effective and loving parenting of [B]”. For example, B’s accounts to Ms S indicate happiness with life with her father and a loving relationship between them. Further, his Honour found that the evidence fell “well short… of providing any basis for the exclusion of Mr [Taylor] from the life of his daughter.”
Again, this finding was clearly open to the Learned Federal Magistrate and no error has been established.
Ground 6
Yet again this is an issue of weight and the exercise of discretion by the Learned Federal Magistrate, and I find that there is no merit in this ground. No error has been established.
The evidence of the grandparents was that they have concerns regarding the father’s criminal history and behaviour. However, most if not all of their information comes from what the mother told them, and the Learned Federal Magistrate commented that they should be cautious in accepting what she says. His Honour said this:
“If they listened attentively to the evidence (and I have no reason to think that they did not) the picture that emerged was of someone who, whilst not exemplary in his conduct or in possession of the material advantages or personal standards of themselves, was nevertheless a person who is making a reasonable job of raising his daughter and who, whilst flawed, was not a person of the mere-daemonic (sic) stature their daughter had attempted to paint.”
To repeat a paragraph that I have already referred to from the reasons of the Learned Federal Magistrate, his Honour also relevantly commented as follows:
“The antipathy of the grandparents to the father is not likely to abate in the short term but when it is borne in mind that it arises not from their own experience but from the accounts given by their daughter, which may have been coloured and exaggerated for all sorts of reasons given her complicated psychological position, there is some hope for improvement. The evidence persuaded me that they were capable of conducting themselves in a civil way towards the father and he towards them.”
This finding was clearly open to the Learned Federal Magistrate on the evidence.
Ground 7
As with all of the grounds of appeal referred to to date, this alleges that the Learned Federal Magistrate erred in the exercise of his discretion in failing to give sufficient or adequate weight to various matters.
The same principles apply as I have referred to already, and once again I do not consider that an error has been established on the part of the Learned Federal Magistrate.
The summary of argument of the appellants identifies parts of the evidence given by the grandparents where they say in effect that they are suffering from stress over this issue and they are concerned about being able to shield the child from their concerns.
This was expanded on in oral submissions and reference was made to the evidence in cross examination by Ms S that the grandparents’ fear of the mother self-harming could “possibly” have a “negative impact” on the “nurture” that they are able to provide to J.
I was then referred to the relevant paragraphs from the Learned Federal Magistrate’s judgment and it was submitted that his Honour did not adequately deal with and address these issues. However, it is patently obvious that the Learned Federal Magistrate was aware of these as issues, and although his Honour did not specifically refer to the impact of the concerns of the grandparents on J and on their capacity to support J seeing her father, the Learned Federal Magistrate said this:
“83. The grandparents presently meet the needs of the child in a practical and financial sense and provide a safe and loving environment… I need to be careful that in making a time-spent order in relation to the father I do not under-cut the grandparents’ ability to meet these needs but having heard their evidence and in particular the evidence of the grandmother (who was clearly the person who shouldered most responsibility and whom I gained the impression was the dominant personality in the marriage) I am satisfied that they will continue to be able to meet [J]’s needs in this way.”
There was also the evidence of the grandmother herself to which I have already referred where she responded positively to the recommendations of Ms S and indicated guarded support for the child being gradually introduced to her father.
Ground 8
I find that there is no merit in this ground.
The alleged error appears to be that the Learned Federal Magistrate relied on the evidence of Ms S when the cross examination of Ms S revealed that her recommendations were not sustainable, and they were not in fact in the best interests of the child.
Ms S was an expert witness instructed by the Independent Children’s Lawyer to provide a report and to give evidence. She is an experienced psychologist and it was accepted by all parties that she had the requisite qualifications to give the evidence that she did.
Her recommendation was that it is in this child’s best interests to have “some knowledge about her biological father and some degree of relationship with him”. This was also important for J’s future development both as a child and as an adult.
In cross examination it was put to Ms S that her recommendation assumed that the mother will get treatment for her illness and she will not self-harm or suicide particularly if the child spends time with the father. Ms S agreed with this proposition and this appears to be the nub of this ground of appeal, namely that she has put aside the risk of the mother self-harming or suiciding when that is the greatest fear of the grandparents and it would obviously impact on the child as well as the grandparents in relation to their capacity to care for J.
Ms S says in effect that notwithstanding the risks associated with the mother’s reaction an attempt should be made to reintroduce J to her father and to her half-sister. She said that it was not appropriate to hold the child and her father “to ransom just because the mother is not having the treatment that she should be”.
However, the Learned Federal Magistrate was alert to the limitations of Ms S’s evidence. He said this:
“56. Ms [S] had an unenviable role in these proceedings but I thought she discharged it in a professional and thoughtful manner. The ultimate issues in these proceedings were not really matters which she as an expert was able to comment on although all of the parties at some point in their cross-examination of her sought to elicit her opinion on matters of controversy and then, somewhat unfairly I thought, sought to criticise the opinions she expressed. A good example of that was the questions she was asked about the likelihood of the mother self-harming and her opinion about the impact of that risk upon the attitude of the grandparents to the father having a relationship with [J]. Ms [S] has never had the opportunity to interview the mother because she would not participate in the assessment process. She is not in a position to dispute any of the opinions expressed by Dr [P] as to the mother’s mental health. She did not possess psychiatric qualifications in any event.”
Importantly then, the Learned Federal Magistrate did not only rely on the evidence of Ms S, and he was able to take into account all of the evidence that was before him including the evidence of Dr P, and on that basis he reached the conclusion that it was in the best interests of J to adopt the recommendations of Ms S. This was a proper exercise of his discretion and no error has been established.
Ground 9
This ground also has no merit.
The relevant paragraph from the reasons of the Learned Federal Magistrate is as follows:
“55. At the end of the evidence of the grandparents I was left with a number of questions to which there did not appear to be answers. Whilst they had met the mother’s legal costs and whilst their accepting of responsibility for [J] was unambiguous I was left with an impression that neither of them had taken any initiative to have their daughter return to Adelaide to live with them and with [J] or at least to see [J] regularly. There was a high degree of passivity in their attitude to their daughter. One view would be that it is more convenient in their mind from the perspective of dealing with Mr [Taylor] for their daughter’s allegations to remain untested. On that view their failure to actively promote the return of their daughter or a resumption of her relationship with [J] has tactical overtones. On the other hand they may just find the whole prospect of dealing with their daughter and her problems too daunting and would prefer to focus their energies upon caring for their granddaughter. I am not in a position to say which of the two explanations is the more likely. Perhaps an element of both informs their current attitude to their daughter. I was left with an impression that the relationship between them and their daughter would have had many complications in any event, even if their daughter had never met Mr [Taylor].”
As submitted by the respondent father’s counsel there was no finding by the Learned Federal Magistrate that the grandparents’ failure to act and promote the return of their daughter or the resumption of her relationship with J had tactical overtones. This was just one of two explanations that the Learned Federal Magistrate put forward, but making it clear that he was not in a position to say which of the two explanations is the more likely.
Nor did the Learned Federal Magistrate make a finding that neither of the grandparents had taken any initiative to have their daughter return to Adelaide to live with them and with J or at least to see J regularly. It was just an “impression” the Learned Federal Magistrate had. In any event, it is clear that this impression did not provide any part of the basis for the Learned Federal Magistrate’s finding that it is in the best interests of J to know and to spend time with her father.
Ground 11
The evidence of Ms S was that a “softly softly” approach needed to be taken, that the need for supervision was to assist J with the “big change” in meeting her father and also to be cautious given the risk factors from the father’s history, and that how long supervision would be required would depend upon how J coped, but she suggested a year or so after which there should be a review.
The Learned Federal Magistrate found that the father posed no risk to the child, and thus the only need for supervision would be to reassure the child. His Honour then indicated:
“88. I am satisfied, having regard to the legislative provisions to which I have referred, that it is in [J]’s best interests to spend time with her father. The orders I propose to make reflect the cautious and careful and graduated approach to the issue which was reflected in Ms [S]’s recommendations. I propose to enable Ms [S] to report upon the progress of the implementation of the orders before dealing with the applications before me in a final way.”
The orders of the Learned Federal Magistrate provide for there to be three familiarisation sessions and then six hours each second Sunday for a period of six months with the first three occasions being supervised and then a review by Ms S at the end of the six months.
There was no magic about the suggested period of 12 months by Ms S. That was simply her estimate of the time that J would need to be reassured and to develop confidence and trust in the relationship with her father. It was clearly open to the Learned Federal Magistrate to fix a different period taking into account all of the evidence that was before him. Thus, to this point I do not consider that there is any substance in this ground of appeal, but I consider otherwise in relation to the complaint that there is no provision in the orders for a review before moving to unsupervised time. The difficulty is that the Learned Federal Magistrate did not provide any reasons for his order that the review take place following the introduction of unsupervised time. Indeed, the Learned Federal Magistrate did not say anything at all about this in his reasons and it is not possible “to discern either expressly or by implication the path by which the result has been reached” (Bennett and Bennett (1991) FLC 92-191, at p.78,267). This is a significant matter given the acceptance by the Learned Federal Magistrate of the evidence and the recommendations generally of Ms S including that caution in proceeding was required, and in the absence of any other evidence on the topic. Counsel for the Independent Children’s Lawyer was also very concerned about this issue, submitting that, “having found that it was appropriate for the child (to) spend time with the father, there should have been some mechanism for assessing the child’s response to this time prior to an immediate commencement after three periods of supervised time with the father (of) unsupervised time.” I therefore consider that his Honour fell into error in failing to identify the basis upon which he made the order that he did rather than provide for a review before moving to unsupervised time.
Given this finding my options were to remit that discreet matter for rehearing by the Learned Federal Magistrate or re-exercise the discretion. Unfortunately, this issue was not addressed during the hearing of the appeal and thus the parties were not given the opportunity to make further submissions if so desired. Accordingly I called the matter on again and invited any further submissions from the parties including the Independent Children’s Lawyer.
The counsel for the appellants submitted that I should re-exercise the discretion, and that in doing so, and subject to the result of the other grounds of appeal there should be an order for a report to be prepared by Ms S before there is any unsupervised time. She referred me to the report of Ms S and then to her oral evidence where she made it clear that in her view there should be a review undertaken after there has been supervised time in order to assess how J is coping and whether it is appropriate to move to unsupervised time. Ms Pyke says that I should accept this recommendation of Ms S.
The counsel for the respondent agreed that I should re-exercise the discretion rather than remit, and he indicated that if necessary his client would consent to an order that there be a review by Ms S before moving to unsupervised time.
The counsel for the mother adopted the submissions of Ms Pyke.
Counsel for the Independent Children’s Lawyer agreed that the discretion should be re-exercised and submitted that there should be a report by Ms S as to the progress of supervised time before moving to unsupervised time, and indeed before moving to any further time supervised or unsupervised.
In these circumstances I am quite prepared to re-exercise the discretion and I have no difficulty in finding that the appropriate order is for Ms S to provide a report as to the operation of the order for supervised time before moving to unsupervised time. This will entail not only a variation to paragraph (8) of the orders made by the Learned Federal Magistrate but also a variation to paragraph 4(b) of those orders, and to that extent the appeals against those paragraphs should be allowed.
Ground 12
I find that there is merit in this ground of appeal.
It was not open to the Learned Federal Magistrate to make the injunction against the child B. She was not a party to the proceedings (and no case guardian had been appointed for her), she had not been served with the proceedings and she had not been given the opportunity to be heard.
Thus the appeal should be allowed to the extent that the injunction made against the child B should be discharged.
I certify that the preceding 137 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 6 November 2008.
Associate
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