SULLY & REILLY
[2020] FamCAFC 225
•7 September 2020
FAMILY COURT OF AUSTRALIA
| SULLY & REILLY | [2020] FamCAFC 225 |
| FAMILY LAW – APPEAL – PARENTING – Appeal against orders allowing the child to have supervised time with the appellant father, for the respondent mother to have sole parental responsibility for the child and for the mother and the child to relocate from Sydney to Adelaide – Relocation – Best interests of the child – Assessment of risk – Challenges to the primary judge’s exercise of discretion – Weight challenges – Reasons given in short form pursuant to s 94(2A) of the Family Law Act 1975 (Cth) – Findings open on the evidence – Where the decision made by the primary judge was not unreasonable or plainly unjust – Appeal dismissed – No order as to costs. |
| Family Law Act 1975 (Cth) s 94(2A) |
| Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 |
| APPELLANT: | Mr Sully |
| RESPONDENT: | Ms Reilly |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 5651 | of | 2013 |
| APPEAL NUMBER: | EAA | 96 | of | 2019 |
| DATE DELIVERED: | 7 September 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney (via video link) |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Aldridge JJ |
| HEARING DATE: | 7 September 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 August 2019 |
| LOWER COURT MNC: | [2019] FamCA 605 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Hodgson (direct brief) |
| COUNSEL FOR THE RESPONDENT: | Ms Gillies SC |
| SOLICITOR FOR THE RESPONDENT: | Phoenix Legal Consultancy |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Harris |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders made on 7 September 2020
The appeal against the orders of 28 August 2019 is dismissed.
There be no order as to costs.
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 Sully & Reilly 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 SYDNEY |
Appeal Number: EAA 96 of 2019
File Number: SYC 5651 of 2013
| Mr Sully |
Appellant
And
| Ms Reilly |
Respondent
And
Independent Children’s Lawyer
EX TEMPORE REASONS FOR JUDGMENT
Ainslie-Wallace J
This appeal concerns the parenting arrangements for B who was born in 2008 (“the child”). Ms Reilly (“the mother”) wished to move to Adelaide from Sydney and sought orders that she have sole parental responsibility for the child and that the child live with her in Adelaide. She also sought orders that Mr Sully (“the father”) have no contact with the child. The father opposed those orders and sought orders that he have sole parental responsibility for the child and that the child remain in Sydney and live with him.
A judge of the Family Court found that the best interests of the child were served by the child living with the mother in Adelaide and orders were made to that effect. The orders provided that the mother have sole parental responsibility for the child and orders were made for the father to spend supervised time with the child in Adelaide once every two calendar months for five hours.
The father appeals these orders.
Background
It is useful to give some factual background to lend context to the grounds of appeal.
The parties met in 2005 and commenced a relationship in 2007. Their only child, B was born in 2008. The parties separated in about September 2012 and in September 2013 the mother commenced proceedings seeking parenting orders in relation to the child.
Whilst it will be developed more fully in these reasons for judgment, it is fair to say that the mother has always been the child’s primary carer and the child has always lived with her. This state of affairs has been the subject of deep and bitter acrimony between the parties and a consideration of the chronology of events contained in the reasons of the primary judge lends the impression that the parties have been in almost constant conflict over the child and her parenting arrangements. It has given rise to circumstances where the child has been retained by the father when she should have been returned to the mother, and more importantly to the extent that the child and the father both contend that the mother is violent and abusive to the child. The child’s expressed preference was to live with the father and never see the mother again. This is not what happened.
In April 2014, interim orders were made that the child live with the mother and spend time with the father broadly from after school on Thursday to before school on Monday in one week and from after school on Thursday to before school on Friday in the next week.
The final hearing of the parenting issues occurred in the Federal Circuit Court over a number of days in 2014, and in 2015 orders were made that the child live with the mother and spend time with the father. An appeal against those orders was conceded and the orders were set aside, although pending the rehearing of the matter, orders to the same effect were made in their stead on an interim basis.
The matter came before the primary judge, the matter having been transferred to the Family Court from the Federal Circuit Court. In those proceedings, the father sought orders that the child live with him and he have sole parental responsibility and that the child’s time with the mother, whilst his primary position was that it be by agreement, during the course of the hearing he adopted a more conciliatory approach.
The father’s principal contention was that the child was at risk in the mother’s care, that she was abusive and violent to the child and failed to care for her adequately. These complaints had been made by the child to the father, and which he propounded in the proceedings. The child made complaints to her school teachers and to her general practitioner of the mother’s violence towards her. It is apparent too from the reasons of the primary judge that the child’s antipathy towards the mother was expressed to the father and was delivered in the strongest of terms and sometimes conveyed to the mother.
None of these contentions was accepted by the primary judge.
The primary judge had the benefit of a report from a child and adolescent psychiatrist, Dr D. The expert opinion was not challenged on the appeal and it is of assistance in understanding the challenges to the primary judge’s orders to here set out his Honour’s assessment of and acceptance of her opinion.
His Honour accepted her opinion that the child is in a “triangulated” relationship with both parents (at [119], [121] and [152]) which is a pathological process in which the child becomes the means through which the parent’s conflict is played out. It is damaging to the child and the expert said that the father’s conduct is “severely undermining” the relationship between the child and the mother and has been going on for some time (at [122]). The child is so aligned with the father that little weight could be placed on her views.
In her observations of the child with the mother, the expert found her to be at ease and concluded that she and the mother shared a comfortable relationship. This relationship was evidenced by loving cards given by the child to the mother on her birthday.
His Honour said of the father’s parenting capacity:
135.[Dr D] described what she considered to be a limitation on the father’s parenting capacity. She said that he relates to the child from the point of view of his own needs, wishes and feelings and is less able to relate accurately to her needs and wishes. She said that he tends to see difficulties as located outside of himself or in others with a lesser capacity to see or accept his own failings. [Dr D] said that parents with prominent narcissistic attributes may go to great lengths to control their child’s environment, to create the perfect child in the perfect life. But she said that the child is treated as an extension of the parent so that the parent lacks the capacity to understand that the child’s needs and feelings may be different, especially in regard to the other parent and the tendency to grandiosity manifests as a certainty about what is best for the child. She said that these issues are readily apparent with the father.
136.[Dr D] said that the father’s difficulties manifest in a further and related issue which is the father’s relational style. As indicated above, she said that this features prominent triangulation, which is particularly apparent in how he deals with the conflict between himself and the mother. She said that triangulation involves avoiding direct person to person conflict resolution and instead implicates the child; that is, the father conveys that he is expressing the child’s wishes when in fact they are his own. [Dr D] said that this is of concern because eventually a young child may not be able to distinguish between her own feelings and ideas and those which have been projected onto her by the parent. The triangulation is the positioning of the child between her parents and the conflict is detoured through her with the result that she bears the brunt of it. [Dr D] said that metaphorically speaking, this is like pushing the child into “the line of fire” between the parents.
137.[Dr D] said that high conflict and triangulation are included as amongst the most damaging aspects of parenting disputes and that such children are likely to develop anxiety and involve both internalising and externalising problems, as well as suffering from not learning more adaptive modes of conflict resolution.
His Honour further accepted the expert’s opinion that the father’s parenting capacity was impaired as he lacked empathy and the ability to prioritise the child’s needs above his own (at [138]).
His Honour rejected the father’s proposal that the child live with him. He accepted Dr D’s evidence that the child was at “considerable risk of psychological and emotional harm” as a consequence of the triangulation of the parental conflict through the way in which the father related to the child (at [178]). The expert considered that the father’s narcissistic traits posed a risk that the child would accommodate his needs and may come to adopt his characteristics. She said that this was already apparent in the observed relationship between the father and the child (at [179]).
Further, the expert said and his Honour accepted that in the father’s care, the child’s view of the mother would become “severely devalued” and she would continue to allege that the mother was violent and abusive to her (at [180]–[181]).
His Honour concluded that there were serious parenting deficiencies in the father and there was a serious risk of psychological harm to the child if she was to live with him (at [184]).
By contrast, the primary judge found that the mother had a good understanding of and ability to meet the child’s needs and had managed the child well even in the context of the severe and ongoing conflict between the parties (at [143]).
His Honour considered the child’s complaints of the mother’s violence both as detailed by the father and as appeared in other documents. He took into account the mother’s evidence that there were occasions on which she took hold of the child or used her body to block the child from leaving because, in her opinion, it was necessary to control the child who was endangering herself. His Honour accepted that account and as to the other complaints, concluded that it was more than likely that the child had embellished what had occurred, accepting the view of the expert, that the father had encouraged the child to make complaints to him about the mother (at [165]). His Honour concluded that there was no unacceptable risk of harm to the child in the mother’s household.
The mother proposed that if orders were made that the child live with her, she wished to relocate the child’s residence to Adelaide where she had significant support from her family to whom the child was close.
Relying on the opinion of the expert, the primary judge concluded that were the child to relocate to Adelaide in circumstances where there was no provision made for her to spend time with the father, there was a risk that she would be profoundly angry and grieve because she could not see the father and her relationship with the mother would fail. While the expert said that it was possible that the child might feel relief from the relentless conflict, she could not predict which outcome would prevail (at [166]). Thus the expert recommended and the primary judge ordered that the child spend time with the father in Adelaide with a moratorium on time for a couple of months until the child’s situation had stabilised.
His Honour said:
185.On the other hand, if the Court was to continue the child’s primary residence with the mother and permit the mother to relocate the child’s residence to Adelaide, then the scenarios postulated by [Dr D], with their accompanying risk, would be likely to eventuate. This would involve the child being likely to experience grief and anger at the loss of ready access to her father, being required to leave her school where she is doing well and leave her friends and much of what has become familiar to her in life. But as indicated above, [Dr D] said that the child might experience such relief from being removed from the ongoing hostility and conflict between her parents, that she would quickly settle and commit herself to her new life, including a new school, making new friends and, developing her relationships with her maternal grandparents and other relatives.
186.The other possibility is that the change might involve such a strong sense of loss for the child that she might not settle but rather engage in (rebellious, obstructive, argumentative and disruptive) behaviour with her mother to the point where their relationship would be lost and she would move to live with her father and experience all the problems associated with that.
His Honour concluded:
189.If orders were made along the lines of either of the father’s proposed parenting arrangements, I am satisfied that not only would the psychological damage to the child continue but things would probably inexorably grind to a point where she had no relationship with her mother. [Dr D] has also said that for [the child] to lose her same-sex parent would be likely to damage her emerging female identity.
190.On the other hand, I accept that it is far from certain that if the Court was to order the child to live with the mother and permit the mother to relocate the child’s residence to Adelaide, the child would accept this change, settle down and adapt to a different environment, particularly without opportunity for the frequent and regular time to spend with her father with which she has familiarity.
191.In my view, for all the reasons referred to above, it is in the child’s best interests to offer her this opportunity, which would offer relief from the ongoing pervasive conflict and hostility between her parents which has caused her so much damage.
It is thus against this background that I turn to consider the challenges to the primary judge’s orders.
The appeal
In these proceedings, under s 94(2A) of the Family Law Act 1975 (Cth), this Court is entitled to give its reasons in short form in the event that the appeal is to be dismissed and if, in the opinion of the Full Court, the appeal does not raise any question of general principle. As, in my view, these conditions are fulfilled here, I propose to give reasons in short form.
Nine grounds of appeal were advanced in challenge to his Honour’s orders. Ground 3 was withdrawn during argument on the appeal.
Ground 1 seems to be a portmanteau claim which contends that the exercise of his Honour’s discretion erred in that the orders are “manifestly unjust and unreasonable”. As the argument developed, this ground is in effect a complaint that the result itself bespeaks an error in the exercise of discretion, the father being unable to identify where the error lies.
In Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419, Bathurst CJ and Leeming JA apropos a ground of appeal that contended the result to be “unjust or plainly unreasonable” said that those words taken in isolation may lead to error, and continued:
9.It is one thing for the reasons given by the primary judge to disclose appellable error. If so, that is addressed by the formulations of principle in the first half of the passage from House v The King. That is not an end of the matter. There may be cases where the reasons do not disclose why the impugned orders were made. In such cases, even though no error of principle or other well-recognised basis for appellate intervention may be discerned on the face of the reasons, an appellate court may nonetheless intervene. The reason is that it may be inferred in light of the result that there was appellable error in the unstated reasons which led to the order. This is plain from the passage when read as a whole (House v The King at 505):
“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 the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
10.It is wrong to seek to apply the references to “unreasonable or plainly unjust” in that passage in isolation. The premise of this aspect of the test in House v The King is that the reasons do not explain the result reached.
(Emphasis in original)
Thus, considered in this light, the ground must be that his Honour’s reasons do not explain how the ultimate result was reached. His Honour’s reasons make it entirely plain why he made the orders he did. It was not the order for which the father contended and this ground, I apprehend, seeks to challenge the overall result. It is misplaced. No error is established and I would not uphold this challenge.
Grounds 2, 4, 5 and 6 contend that the primary judge erred in failing to “place sufficient weight” or, in the case of Ground 4, “any or sufficient weight” on the evidence in the case. Ground 9 contends that the primary judge erred in giving “undue weight” to the father’s financial circumstances when concluding the father could not afford to travel to Adelaide to see the child.
In brief then, the grounds complain that the primary judge erred in:
·failing to give sufficient weight to the closeness between the father and the child (Ground 2);
·failing to give any or sufficient weight to the expert’s opinion that the child would suffer profound anger and grief if she was unable to see the father (Ground 4);
·failing to give sufficient weight to the adverse impact on the child and the significant change in her circumstances and relationship with the father if she relocated to Adelaide (Ground 5);
·failing to give sufficient weight to the child’s attachment to Sydney and her school and other activities in Sydney (Ground 6); and
·giving too much weight to the father’s financial circumstances and his inability to travel to Adelaide (Ground 9).
It is well known to the point of being trite that challenges to the weight or importance attributed to evidence in a hearing is, quintessentially, a matter for the primary judge and fundamental to the deference to be given by an appeal court to a trial court. Appellate intervention requires a very high bar indeed (see Gronow v Gronow (1979) 144 CLR 513 at 519; CDJ v VAJ (1998) 197 CLR 172 at [186]). That the appeal court or another judge might have come to a different conclusion on the evidence is not enough. Absent legal error or a plainly unjust result, the order of the primary judge must stand. Here it is not. There is no substance to these challenges and I would not uphold them.
Grounds 7 and 8 contend that the primary judge erred in making orders which involve a risk to the child’s welfare and in permitting the mother to relocate the child’s residence to Adelaide which involves a risk to the child if she does not settle in those new arrangements.
The challenge, so far as Ground 7 is concerned, is that the primary judge made parenting orders which involve a risk to the child’s welfare because they do not provide for or facilitate the meaningful relationship between the child and the father and that these orders necessarily involve a reduction from the time previously spent by the child with the father, to considerably less time.
As his Honour’s reasons make clear, the determination of the child’s best interests was a difficult one involving much nuance and required his Honour to carefully assess and balance the risks which, regrettably, potentially arose no matter what order was made. It is important to understand that the challenge does not go to the facts which underlie his Honour’s conclusions, but to the exercise of his discretion to make the orders he did.
The orders his Honour made reflected what the primary judge considered to be the child’s best interests both in the short and long term. His Honour took into account the child’s relationship with the father and by providing for time to take place between them in Adelaide, sought to obviate the risk of which the expert warned if the child moved to live in Adelaide and spent no time with the father. The challenge is, in essence, that the primary judge did not make the orders for which the father contended and which the father believed were in the child’s best interests. The evidence before the primary judge did not support the orders the father desired. It is unfortunate but it is not the basis for appellate intervention and I am of the view that this challenge should fail.
Ground 8 asserts that in permitting the mother to relocate the child’s residence to Adelaide and the accepted upheaval that this most probably will cause, failed to take into account the risk that if the child did not settle in Adelaide, it would inevitably lead to further proceedings and, it was somewhat boldly asserted, other parenting arrangements may have to be made. It is difficult to understand what the asserted error is. Some clarity is obtained on this point from the father’s Summary of Argument filed on 9 June 2020.
It was argued:
55.By permitting [the child] to relocate to Adelaide, the [t]rial [j]udge has avoided one risk but created another which he clearly recognises. He acknowledges that such relocation would cause a “huge” change for [the child]. He was not persuaded by the [m]other’s view that it would be in [the child’s] best interests to have no contact with the [f]ather, as for [the chid] not to have any prospect of spending time with her father would be a further risk because it would push her to run away or engage in other risk-taking behaviour. (Reasons for Judgment paragraph 193)
56.It is submitted that the extremely limited time which [the child] is permitted to spend with the [f]ather would not reduce the risk which the [trial judge] has recognised in paragraph 74 above and by inference, he recognises this risk as continuing to exist notwithstanding the time [the child] is to spend with the [f]ather in accordance with his orders. It is submitted that he could have further reduced this risk by permitting [the child] to spend more time with the [f]ather or by not permitting [the child’s] relocation to Adelaide.
(As per the original)
The matters referred to in paragraph 55 of the Summary of Argument are the reasons the primary judge concluded that it would be in the child’s best interests that she continue to spend time with the father on a supervised basis. The balance of the submission asserts, in the absence of any evidence of the fact before the primary judge, that more time spent with the father would ameliorate the risk or if the child remained in Sydney the risk of distress from moving to Adelaide would be obviated. The second aspect, if indeed that is what is meant, is with respect, a statement of the obvious. However, as his Honour’s reasons reveal, there were significant risks to the child in Sydney from the father. Perhaps, while the risk inherent in a change of location would be obviated, other risks would obtain.
Finally in Ground 9 is the assertion that the primary judge placed undue weight on the father’s lack of funds in making the orders for time with the child in Adelaide. The argument devolved to a discussion of orders the primary judge could have made had he thought it appropriate. It is to be understood that the father’s case before the primary judge was that the child should return to Sydney and he did not contemplate a relocation to Adelaide and made no submissions in relation to what orders would be appropriate to make in that event. Equally too, there was no evidence, it seems, of the father having a source of funds by which he could travel to Adelaide more frequently and the evidence was that he was in arrears in child support.
Possible arrangements for the child in Adelaide if relocation was permitted was discussed at length with the expert in the cross-examination of counsel for the Independent Children’s Lawyer. The issue having been squarely raised in the hearing before the primary judge, the father gave no evidence that any of those possible arrangements were acceptable to him and made no submission that in the event that there was a relocation, some would be more acceptable than others.
Equally too, the orders made by the primary judge were largely as submitted by the Independent Children’s Lawyer and were not addressed by the father.
Even taking into account that the father acted for himself in the hearing, he cannot be absolved from being fixed with the case he ran (Metwally v University of Wollongong (1985) 60 ALR 68). The primary judge’s orders reflected the evidence before him and in my view there is no error established.
Thus, there being no proper challenge revealed in this ground, in my view it should not be upheld and the appeal should be dismissed.
The orders proposed shall be:
(1) The appeal against the orders of 28 August 2019 is dismissed.
(2) There be no order as to costs.
Ryan J
I agree with the reasons given by the presiding judge and the orders proposed.
Aldridge J
I also agree.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) delivered on 7 September 2020.
Associate:
Date: 10 September 2020
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