Stott & Holgar
[2017] FamCAFC 152
•7 August 2017
FAMILY COURT OF AUSTRALIA
| STOTT & HOLGAR AND ANOR | [2017] FamCAFC 152 |
| FAMILY LAW – APPEAL – CHILDREN – The child lives with the maternal grandmother – The grandmother appeals orders for the child to spend time with the father – The primary judge misapprehended the evidence of the Family Consultant and failed to afford procedural fairness to the grandmother in relation to one of the orders – The primary judge found the father did not pose an unacceptable risk to the child – Where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case – Primary judge misapplied the unacceptable risk test and did not provide adequate reasons considering the nature, magnitude and potential effect of the risks for the child – Appeal allowed – The issue of the father’s time with the child remitted for rehearing – No order as to costs – Costs certificates issued. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application by the father to adduce further evidence in opposition to the appeal – No utility in the proposed further evidence – Application dismissed. |
| Family Law Act 1975 (Cth) ss 60CC(2)(a), 60CC(2)(b) Federal Proceedings (Costs) Act 1981 (Cth) |
| A v A (1998) FLC 92-800 Johnson and Page (2007) FLC 93-344 M v M (1988) 166 CLR 69 U v U (2002) 211 CLR 238 |
| APPELLANT: | Ms Stott |
| 1ST RESPONDENT: | Mr Holgar |
| 2ND RESPONDENT: | Ms B |
| INDEPENDENT CHILDREN’S LAWYER: | Norman Waterhouse Lawyers |
| FILE NUMBER: | ADC | 2199 | of | 2008 |
| APPEAL NUMBER: | SOA | 71 | of | 2016 |
| DATE DELIVERED: | 7 August 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Thackray, Kent & Watts JJ |
| HEARING DATE: | 24 February 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 August 2016 |
| LOWER COURT MNC: | [2016] FamCA 632 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Lewis |
| SOLICITOR FOR THE APPELLANT: | Georgina Parker Lawyers |
| THE 1ST RESPONDENT: | In person |
| THE 2ND RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr McQuade |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Norman Waterhouse Lawyers |
Orders
The appeal be allowed.
Paragraph 4 of the orders made by the Honourable Justice Berman on 5 August 2016 be set aside.
The issue relating to the first respondent’s time with the child be remitted to the Family Court of Australia for rehearing by a Judge other than the Honourable Justice Berman.
The Court grants to the appellant and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 and s 9 of the Federal Proceedings (Costs) Act1981 (Cth) respectively, 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 and the Independent Children’s Lawyer in respect of the costs incurred by them in relation to the appeal.
The Court grants to each of the appellant and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney‑General to authorise a payment under that Act to each of them in respect of the costs incurred by them in relation to the rehearing of the issue remitted.
IT IS FURTHER ORDERED:
The Application in an Appeal filed 7 February 2017 be dismissed.
IT IS NOTED THAT the making of Order 2 does not revive the operation of the orders made by the Honourable Justice Dawe on 13 May 2015 and does not preclude the first respondent from making an interim application.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stott & Holgar and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 71 of 2016
File Number: ADC 2199 of 2008
| Ms Stott |
Appellant
And
| Mr Holgar |
1st Respondent
And
| Ms B |
2nd Respondent
And
| Norman Waterhouse Lawyers |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
The central issue in this appeal is the amount of time C (“the child”), aged 10, should spend with his father who has a history of serious violence.
The child lives with his maternal grandmother, who challenges Order 4 of the orders Berman J made on 5 August 2016.
Order 4 permits the father to spend six hours with the child each alternate Saturday. The order also provides that, from November 2017, the father can spend time with the child from 10 am Saturday to 4 pm Sunday each alternate weekend.
Order 10 provides that the increase in time in November 2017 is:
conditional upon the father undertaking and completing a successful course of counselling and therapy with [Mr G] or such other like or approved organisation or service in respect of matters of family violence…
The Independent Children’s Lawyer (“the ICL”) supported the appeal. The child’s mother attended the hearing of the appeal, but only as an observer.
After hearing argument, we concluded the appeal had merit. Given the likely delay in publication of our reasons, we allowed the appeal, set aside Order 4 and remitted the matter for rehearing. These are our reasons.
Brief background
The mother and father separated in 2007. The child is the only child of their relationship, although the parents have children from previous relationships.
The child lived with his mother after the parents separated, but in 2014 an order was made for him to live with the maternal grandmother, who we will refer to as “the grandmother”. The primary judge found that the order was made in circumstances of “significant uncertainty” about the ability of the mother and the father “to provide a safe and protective environment for the child” (at [38]).
On 13 May 2015, Dawe J made an order permitting the father to spend time with the child each alternate Saturday. The father was not content with this and proposed that the child live with him and spend limited time with the grandmother. The grandmother argued that the father should not spend any time with the child.
The matter proceeded to trial over six days in March 2016, following which judgment was reserved. After an incident in April 2016, the grandmother applied to re-open. Although this application was refused, it was common ground in the appeal that the father has not seen the child since April 2016.
Grounds of Appeal
There were 22 grounds of appeal, but counsel for the grandmother recast these into four issues, which we have framed into the following questions:
1. Did his Honour misapprehend the Family Consultant’s evidence?
2. Did his Honour afford procedural fairness to the grandmother?
3. Did his Honour err in applying the “unacceptable risk” test?
4. Did his Honour give adequate reasons?
Did his Honour misapprehend the Family Consultant’s evidence?
Ground 15 asserts that his Honour:
… erred when determining that the Family Consultant was supportive of time continuing between the father and the child (Reasons of Justice Berman at paragraph 139) in the context of having erred in:
a.Finding the Family Consultant only provided two alternative recommendations (Reasons of Justice Berman at paragraph 119) when the Family Consultant provided three alternatives, which included the Family Consultants view that “consideration be given to stopping the fathers time with the child”. (Exhibit 3 tendered during the hearing at 226)
b.Finding that the Family Consultant was supportive of time when she gave oral evidence that this matter may be one of the matters where the Court finds that no time should be ordered.
c.Failing to consider that both of the two alternative recommendations referred to by the learned Trial Judge were subject to a finding of “no current risk to the child”.
The Family Consultant provided two reports, one in January 2015, and one in February 2016. His Honour identified these at [66] of his reasons, and then discussed them in detail in the following paragraphs, before summarising what he understood to be the two recommendations:
119. The family consultant considered that if there was evidence which substantiated or supported the allegations by the mother, maternal grandmother and the father’s two adult children that he engaged in coercive controlling family violence, then the current parenting arrangements should not be altered. If however the evidence did not support the allegations of violence, then the time with the child should increase to each alternate weekend from Friday night to Sunday afternoon.
His Honour then went on to discuss the oral evidence given by the Family Consultant, before concluding his discussion of her evidence by saying:
139.Generally, I consider the evidence of the family consultant to be insightful and was supportive of future parenting arrangements being generally similar to the current arrangements. In particular, I do not form the view that the family consultant was prepared to change her recommendation that the child should spend the same time with the father as currently occurs and without extension unless the Court was satisfied that the allegation and assertion of coercive conduct and physical violence perpetrated by the father were without substance.
Nowhere did his Honour refer to the fact that the Family Consultant said in her oral evidence that she had reviewed her reports prior to the hearing and felt that her recommendations were “unclear”, and that she had therefore prepared a document setting out a “more clear version” of the recommendations (transcript, 15 March 2016, p 72). This document, which ultimately became Exhibit 3, contained a crucial third recommendation:
226. If it is found that the statements by the three children who experienced the father’s parenting are true or that coercive controlling family violence is a feature of the father’s relationship with the mother, and that there is current risk to the child, then the time spending arrangements with the father should be for no more than one hour a month with professional supervision and that consideration be given to stopping the father’s time with the child.
The fact that this part of the evidence was overlooked is apparent not only from what was said at [119] but also at [245] and [252] of the reasons:
245.Whilst the family consultant was concerned at her observations of what appeared to be a lack of attachment and engagement between the child and his father, nonetheless, there seems to be some recognition that the relationship is one of benefit. The issue for the family consultant was that the extent of family violence, if proven, would militate against any extension of the father’s current time, but would not necessarily suggest that the current arrangements should be terminated.
…
252.… The recommendations of the family consultant would speak in favour of maintaining a relationship and therefore a recognition of a benefit to the child.
Although his Honour was not obliged to accept the Family Consultant’s recommendations, he clearly considered them to be very important. Indeed, we accept the submission that the Family Consultant’s recommendations were fundamental to the decision, as demonstrated by what his Honour said at [139].
The factual conclusions his Honour reached were consistent with those identified in the third recommendation of the Family Consultant and which, if accepted, would have led to the making of an order for the father to spend “no more than one hour a month with professional supervision” or alternatively to “consideration [being] given to stopping the father’s time with the child”.
The clear inference is that when his Honour came to prepare his judgment, he had in mind only the recommendations in the Family Consultant’s reports, and overlooked the significant revision contained in Exhibit 3. His Honour must therefore have also overlooked the ICL’s closing submissions in which he took his Honour through the three recommendations and specifically drew attention to the revised recommendation (transcript, 23 March 2016, p 471).
His Honour’s decision was therefore reached on a misapprehension of the expert evidence, on which he placed weight. On this basis alone we consider the appeal should be allowed.
Did his Honour afford procedural fairness to the grandmother?
Ground 19 avers that his Honour:
… denied the parties procedural fairness in failing to call for submissions on the requirement of the father undertaking counselling or therapy in respect of matters of family violence.
This complaint concerns Order 10 which made the father’s overnight weekend time conditional on him “undertaking and completing a successful course of counselling and therapy with [Mr G] or such other like or approved organisation or service in respect of matters of family violence …”
The father claimed that the prospect of him undertaking therapy was canvassed at trial, but he was unable to take us to any part of the transcript to establish this. We therefore accept, as was asserted by counsel for the grandmother and the ICL, that there was no consideration at trial of the father having more therapy. Mr G, who was named in Order 10 as a potential provider of the therapy, was not mentioned in the evidence, although we were informed by counsel for the grandmother that Mr G is “well known in Adelaide and his Honour would have understood that [he] had speciality in this area” (transcript, 24 February 2017, p 20).
Counsel for the grandmother submitted that if his Honour had given any indication that he was considering allowing the father to spend overnight time with the child so long as he undertook therapy/counselling, it would have been:
strongly opposed based on the evidence that his Honour had already heard; the evidence that the father didn’t learn anything from a 26 week course that he was compelled to attend. He couldn’t articulate before the court any of the issues that he learned from it. He couldn’t articulate before the court, when he was given a clear opportunity to do so, what insight he developed in relation to family violence, nor could he explain why he then continued to act violently post completing that course. It would have been my strong submission that his Honour ought not have made that order and ought not have contemplated the possibility of overnight time in those circumstances …
(Transcript, 24 February 2017, p 19)
Counsel for the grandmother also complained:
... my client doesn’t know [Mr G]. There was no exploration of his qualifications, there was no exploration of his availability, there was no exploration of what level of therapeutic intervention was contemplated by his Honour and none of those things were explored because his Honour didn’t provide procedural fairness to counsel in order to assist his Honour to deal with those things.
(Transcript, 24 February 2017, p 20)
While we accept that his Honour was not confined to the parties’ proposals, he was bound by the requirements of procedural fairness: U v U (2002) 211 CLR 238 at [30] per Gaudron J. This involved notice being given of the possibility of an order being made unless the making of such an order was obviously open to the judge on the “known material”: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9] per French CJ and Kiefel J.
As the grandmother and the ICL were not given the opportunity to be heard on this significant issue, and as neither party sought an order such as Order 10, we consider the making of the order was procedurally unfair.
We also consider there was merit in the submission that Order 10 was unacceptably vague, in particular given the difficulty of determining what constituted “a successful course of counselling and therapy”.
Did his Honour err in applying the “unacceptable risk” test?
Did his Honour give adequate reasons?
These questions are conveniently dealt with together.
The outcome of the issues already discussed and addressed is that the appeal has been allowed, as we ordered on 24 February 2017. As a consequence, the issue as to the child’s time with the father is to be reconsidered at the rehearing we also ordered on 24 February 2017. In these circumstances it is unnecessary, and potentially unhelpful to a trial judge exercising an unfettered discretion on the rehearing, for us to discuss in detail, or in conclusively definitive terms, each and every aspect of the challenges on appeal directed to these questions.
It suffices for us to record that, in summary and for the following reasons, we accept that the primary judge erred in applying the “unacceptable risk” test and that his Honour’s reasons are inadequate.
The father has an extensive and proven, via criminal convictions, history of violence against others. That proven history includes instances of family violence within the meaning of the Family Law Act 1975 (Cth) (“the Act”). In addition to the history proven by the father’s criminal convictions, the grandmother advanced at trial a significant body of evidence in her case, including via the father’s now adult daughter; the child’s mother and her teenage daughter (via the Family Consultant’s report), other instances and aspects of the father’s capacity or propensity to engage in coercive and controlling family violence.
The grandmother’s case at trial was that the father posed unacceptable risks of detriment to the child from the child himself being subjected to family violence and/or the child being exposed to the father perpetrating family violence and/or the child being exposed to the father’s attitudes and propensity for violence, including family violence, against others.
The “unacceptable risk” test articulated by the High Court, in the context of disputed allegations of sexual abuse, is expressed as follows in M v M (1988) 166 CLR 69 where the High Court said at 78:
In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
The “unacceptable risk” test applies also to other forms of risk, including risks to children associated with exposure to family violence: A v A (1998) FLC 92-800 at 3.15 and 3.25; Amador v Amador (2009) 43 Fam LR 268 at [89].
In B and B (1993) FLC 92-357 at 79,778, the Full Court described the test as:
the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
As an eminent former judge of this Court has said (emphasis added):[1]
… unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ …
[1] Hon. John Fogarty AM in ‘Unacceptable Risk – A return to basics’ (2006) 20 Australian Journal of Family Law 249 at 261.
We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm (N and S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier and Hepburn (2006) FLC 93-303, per Warnick J adopted with approval in Potter and Potter (2007) FLC 93-326 at [124] and [125]; Johnson and Page (2007) FLC 93-344 at [66] and [67]).
We find merit in the argument that this did not occur here, since it is difficult to discern from his Honour’s reasons what he considered to be the nature, magnitude and potential effect of the risks for the child (and the grandmother) of the father being permitted to spend unsupervised time with the child. The father’s proven history of violence, together with the grandmother’s case concerning the father’s family violence, required evaluation of these matters before it was possible to perform the balancing exercise involved.
All the more is this so in the face of findings by the primary judge that the father seemed incapable of accepting his history and was dismissive of his propensity to violence [169]; the father’s trenchant denials accompanied by “barely restrained anger when giving evidence” and being “aggressive” and at times raising his voice “to a frightening level” [190]; and findings that the father was not a truthful witness about either his criminal history or the nature of his engagement historically with the child’s mother [191] and [219].
It is also difficult to discern from his Honour’s reasons how the benefit to the child of having a meaningful relationship with the father ameliorated what would otherwise have been an unacceptable risk arising from the father’s violent tendencies. Once unacceptable risk has been found, it is important for a trial judge to provide adequate reasons to explain how an unacceptable risk has been ameliorated (see generally Bennett and Bennett (1991) FLC 92-191 at 78,267).
Nor is it clear why his Honour considered the child was at unacceptable risk when spending overnight time with the father (implicit in the requirement for the father to have counselling or therapy before having overnight time) but the child was not at unacceptable risk when spending time unsupervised with the father during daylight hours. Further, while his Honour accepted that the father had moderated his behaviour in recent years, this does not sit comfortably with the finding about his behaviour in court.
We therefore accept that the primary judge was in error in the manner in which his Honour approached the question of unacceptable risk and that the reasons for judgment are inadequate in explaining the approach taken, by contrast with binding principles governing the approach.
One further aspect relevant to the adequacy of the primary judge’s reasons we ought to address concerns the grandmother’s case at trial as to her capacity to provide for the child’s needs, as his primary carer, being potentially compromised by orders for the child to spend time with the father.
In the course of discussing the father’s criminal history and propensity for violence, the primary judge recorded an adverse credit finding about the father’s evidence as to, inter alia, his “engagement” historically with the child’s mother and in that context found that the child’s mother and the grandmother “were entitled to be fearful [of] and feel threatened by the father” [191]. The primary judge earlier recorded a finding that the grandmother impressed as being genuine in respect of her fear of the father and that she held the firm belief that the father was capable of hurting the mother and her 14 year old daughter (the child’s half-sister) [91].
Further relevant findings were:
a)The primary judge’s acceptance “without equivocation, the evidence of the maternal grandmother that the father has engaged in violent activity and family violence directed both to the mother in particular, but to other persons as indicated by the father’s criminal history and convictions” [258];
b)In that context the primary judge found “[i]t is difficult to imagine conduct more consistent with a finding of family violence than as presented in these proceedings. It is a regrettable feature of the father’s conduct that the violence directed towards the mother was not limited to an isolated event, but rather, was a consistent pattern of behaviour and conduct over a number of years” [259];
c)That the suggestion or thought of speaking to the father made the grandmother nauseous [203];
d)It was the strongly held view of the grandmother that the child was at risk of abuse by the father [238];
e)There were no circumstances where a trusting relationship could develop between the parties [176];
f)There was no hope of the grandmother softening her view that there was no benefit of the child having a relationship with the father;
g)The grandmother had to parent a child who had considerable special needs which required special management [134];
h)The apparent acceptance of the Family Consultant’s evidence that the depth of feeling of the parties’ negative views of the other was likely to impact on the child particularly given the child’s autism [106].
With respect to the primary judge, we do not discern from his Honour’s reasons for judgment a path of reasoning reconciling, on the one hand, the grandmother’s case about potential compromise of her capacity, with the orders for time the child was to spend with the father the trial judge resolved to make. We therefore find substance in this aspect of the challenges on appeal.
Father’s application to adduce further evidence
The father applied to adduce further evidence in the appeal. The application was opposed by both the grandmother and the ICL, although the facts the father sought to have introduced were largely uncontentious.
Even if the proposed evidence was accepted, it would not overcome the deficiencies in the reasons we have identified. We did not formally dismiss the application when we made orders disposing of the appeal, but will now do so.
Orders disposing of the appeal
When making our order allowing the appeal, we set aside only Order 4. There was no need to set aside Order 10, as it falls automatically with Order 4.
The remitter was limited to the issue of the father’s time with the child, since other orders his Honour made were not the subject of appeal or cross‑appeal.
Given the findings concerning the father’s violence, and given the father has not seen the child since 30 April 2016, we made a notation on our orders that the setting aside of Order 4 did not revive the orders made in May 2015. Accordingly, if the father wishes to spend time with the child pending the re-trial, it will be necessary for him to make an application at first instance.
Costs
The grandmother did not seek an order for costs in the event the appeal was allowed, but did seek a certificate pursuant to the Federal Proceedings (Costs) Act1981 (Cth) in relation to the appeal, and, if the matter was remitted, in relation to the rehearing. The ICL sought the same certificates. As the appeal succeeded on questions of law, we granted certificates as sought.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Kent & Watts JJ) delivered on 7 August 2017.
Associate:
Date: 7/8/17
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