SURIS & SURIS

[2020] FamCAFC 248

FAMILY COURT OF AUSTRALIA

SURIS & SURIS [2020] FamCAFC 248

FAMILY LAW – APPEAL – INTERIM ORDERS – Where the father appeals from interim parenting orders – Where the primary judge received oral evidence from a family consultant pursuant to s 11F of the Family Law Act 1975 (Cth) – Where the family consultant interviewed the subject children and both parents – Where the children were living with the father and spending limited time with the mother – Where the family consultant recommended the children live with the mother and spend no time with the father – Where the primary judge made such orders on the basis the matter would return in six weeks – Where the father challenges the primary judge’s reliance on the family consultant’s evidence – Consideration of the scope of s 11F of the Family Law Act 1975 (Cth) – Where Division 12A permits the primary judge to control the receipt of expert evidence – Where the primary judge was correct in identifying the limitation on making findings at interim hearings – Where there is no error demonstrated by the father – Appeal dismissed – Father to pay the costs of the mother in a fixed sum.

Family Law Act 1975 (Cth) Pt VII, ss 11F, 68L, 94AAA(3)

Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Edgar & Strofield (2016) FLC 93-711; [2016] FamCAFC 93
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Salah & Salah [2016] FamCAFC 100; (2016) FLC 93-713
SS v AH [2010] FamCAFC 13

APPELLANT: Mr Suris

RESPONDENT: Ms Suris

INDEPENDENT CHILDREN’S LAWYER: Smithson Lawyers

FILE NUMBER: BRC 1193 of 2019

APPEAL NUMBER: NOA 23 of 2020

DATE DELIVERED: 6 October 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 1 October 2020

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 27 February 2020

LOWER COURT MNC: [2020] FCCA 1341

REPRESENTATION

THE APPELLANT: Self-represented

COUNSEL FOR THE RESPONDENT: Mr Bunning

SOLICITOR FOR THE RESPONDENT: Ogge Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Kirkman-Scroope

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Smithson Lawyers

Orders

1. The appeal from the orders made on 27 February 2020 be dismissed.

2. The appellant father pay the respondent mother’s costs of and incidental to the appeal fixed in the sum of $7,973 within six (6) months of the date of this order.

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 Suris & Suris 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
BRISBANE

Appeal Number: NOA 23 of 2020
File Number: BRC 1193 of 2019

Mr Suris

Appellant

And

Ms Suris

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Mr Suris (“the father”) and Ms Suris (“the mother”) are the parents of X (born 2004 and aged 16 years), Y (born 2006 and aged 14 years) and Z (born 2008 and aged 12 years).

2. On 27 February 2020, the primary judge in the Federal Circuit Court of Australia (“the Federal Circuit Court”) made interim parenting orders and associated orders in parenting proceedings[1] between the parties and the Independent Children’s Lawyer appointed[2] to represent the children’s interests in the proceedings (“the ICL”), with the proceedings being adjourned for a further hearing on 6 April 2020. The relevant effect of the orders was that the two younger children were to live with the mother and an order was made for the father’s time and communication with the children to be suspended until further order. That represented a significant change for the two younger children in that they had been living with the father and having little or no time or communication with the mother. The oldest child was already living with the mother.

   [1] Pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).

   [2] Pursuant to s 68L of the Act.

3. As is clear from the terms of the orders made and the primary judge’s reasons for judgment, the interim parenting orders were made in contemplation of further interviews with a Family Consultant taking place on 6 April 2020 (pursuant to s 11F of the Act); and an oral report of that Family Consultant being provided to the Court on 6 April 2020 for the purpose of a further interim hearing taking place on that day. As the primary judge recorded at [37] of the reasons:

   37.The orders I have made are interim orders only.  The parents and the Independent Children’s Lawyer will be heard again on 6 April.  By that time, it may be that the psychiatric report that is to be undertaken by [Dr B] will be available.  This will be relevant evidence in light of the history and the concerns being raised about the father’s mental health, the father also raising concerns about the mother.

4. In short, the 27 February 2020 orders were made in contemplation of effecting parenting arrangements to be put in place from the date of the orders until 6 April 2020, a short period of less than six weeks. As will be discussed, the children’s views have been ascertained on a number of occasions and the obvious purpose of the orders was, as the primary judge explained, to provide an opportunity for the younger girls to have uninterrupted time with their mother and older sister (who already lived with the mother) and for their views to be ascertained at the end of the period.

5. The feature that the interim orders made the subject of this appeal were intended to operate for only a six week period provides important context in which the father’s appeal from the 27 February 2020 orders falls to be considered. The father was self-represented in the appeal. His appeal is opposed by each of the mother and the ICL.

6. The jurisdiction in relation to this appeal is exercised by a single judge pursuant to s 94AAA(3) of the Act.

7. For the reasons which follow, the appeal is to be dismissed. As I am of the opinion that the appeal does not raise any question of general principle, reasons for that decision will be given in short form.

Relevant background

1. The parties met in 2001, married in late 2003 and finally separated on 7 May 2017.

2. Between 2009 and 2017/2018 the father served in the public service involving him in several overseas postings including to Country C and Country D for many months at a time. The father’s overseas service had the unfortunate consequence that he acquired a condition which brought about the termination of his employment. The father relies upon a pension for his income.

3. The parents’ post-separation relationship and the subject litigation first instigated by the mother in February 2019 has been characterised by allegation and

   
   

   counter-allegation each parent levels against the other.

4. In summary and paraphrased form, and without being exhaustive, the father’s central allegations against the mother, all denied by her, include:

   a)That the mother is physically, psychologically and emotionally abusive of the children;

   b)That the mother abuses alcohol such that this impacts upon her parenting capacity;

   c)That the mother has possible psychiatric difficulties and possibly abuses drugs.

5. In summary and paraphrased form, and without being exhaustive, the mother’s central allegations against the father, all denied by him, include:

   a)That the father manipulates the children by pressure or influence and by exposing them to his denigration, and negative views, of the mother;

   b)That the father potentially has mental health issues;

   c)That the father perpetrates controlling, abusive and threatening behaviour sufficient to cause the mother to be fearful of him.

6. It bears emphasis that the nature, extent and breadth of time involved in each parent’s adverse allegations against the other cannot feasibly be determined by findings made otherwise than at a trial at which the case of each parent can be fully explored and tested.

7. Following the parents’ final separation in May 2017 they initially employed a week-about arrangement in terms of the children’s care. However, that arrangement progressively deteriorated and, as already noted, the mother instituted proceedings in the Federal Circuit Court, both in respect of parenting issues and for property settlement, in February 2019 following which a series of orders have been made, including orders to facilitate the Court being provided with independent and expert evidence.

8. Court orders made on 28 October 2019, which were the operative orders prior to the making of the orders the subject of this appeal, provided for the parties’ oldest child, X, to live with the mother and spend time with the father as agreed, for the parties’ youngest child, Z, to live with the father and spend time with the mother for two out of every three weekends from 5.00 pm Friday to before school Monday. As for the middle child, Y, she was to live with the father and spend time with the mother as recommended by the psychologist to whom the father was ordered to take the children for counselling.

9. Given the previous orders made in this matter, the subject orders represented a significant change in the parenting arrangements for the parties’ two youngest children. The children went from living with their father and spending limited, if any, time with their mother to solely living with the mother and not seeing or communicating with their father.

10. The proceedings came before the primary judge on 20 February 2020 as a result of an Application in a Case filed by the mother on the same day which sought orders to prevent the father from proceeding with surgery for the child Z’s arm. The father accepted that he had not consulted with the mother about such surgery despite the fact that he did not have an order conferring sole parental responsibility upon him.

11. The primary judge made orders on 20 February 2020 which, inter alia, prevented the father from proceeding with the surgery, required the father to remove certain social media posts containing videos of the children, restrained both parties from discussing the proceedings with the children or posting comments about the proceedings on social media and required the parties to attend upon a Family Consultant on 27 February 2020 pursuant to s 11F of the Act with that Family Consultant to then provide an oral report to the Court on the afternoon of 27 February 2020. No appeal was filed from those orders.

12. I interpolate here that a Child Inclusive Conference had been conducted by a Family Consultant on 17 May 2019 and the Memorandum of that Family Consultant dated 17 May 2019 was before the Court. Relevantly, that Memorandum records a number of statements adverse to the father’s case. On the issue of surgery upon Z’s arm, the father informed the Family Consultant that whilst he was working in Country C, Z had suffered an injury to her arm and he believed the mother had caused it. The mother had denied ever hurting Z. The Family Consultant records:

    During [Z’s] interview she stated “Dad makes up lies about Mum, especially about my broken arm. Mum didn’t do it. He tries to make me think Mum did it but I know she didn’t”.

13. The oldest child, [X], was interviewed and the Memorandum records in relation to that interview:

    She said, referring to her father, “he doesn’t like us seeing mum. He is the complete opposite person of how he presents. He is manipulative and I’ve had enough”.

14. As to the interview with [Y], the Family Consultant records:

    When discussing her father her body language was incongruent with what she was saying. For example she stated living with her father was fun yet she was highly emotionally and crying, pulling at her fingers and shaking her legs…

15. In relation to Z, the Family Consultant records in the Memorandum:

    Almost as soon as [Z] began speaking she burst into tears and stated “both dad and mum talk to me about the Court stuff and dad stops me from seeing my mum”. She said her father blames her mother for everything that has happened and her father made up lies about her mother hurting her. She said “dad lied about my broken arm. Mum didn’t do it and dad tries to make me think mum did it and I know she didn’t”. She described her father raising his voice and it made her feel scared.

16. That Memorandum was available to Mr E, the Court appointed expert psychologist, who prepared a Family Report dated 13 September 2019 annexed to his affidavit on 12 February 2020.

17. The report of the Family Consultant is detailed and comprehensive but relevantly, with respect to interviews of the children it contains the following, firstly with respect to X:

    6.12She said that when she went to live with her father, he told her that he knew that she would come back and that she was depressed “because of Mum”. She commented further, “basically trying to get me to hate her”.

    …

    6.16[X] commented, “we know Dad has drilled into [Y’s] head that Mum doesn’t love her”. Providing examples, she said that in the car, her father told [Y], “I didn’t want to say this to you but when you were born, your mother didn’t want you because you weren’t a boy”. She said that her father had also said that he was the parent who always had to look after them when they were young because their mum didn’t love them and that their mother used to hate [Y] from the moment she was born.

18. With respect to Y there is this observation:

    6.38[Y] said that she felt “weird” when she was living with her father and was separated from her sisters. She saw the guidance counsellor in the first term of this year. [Y] said, “Dad says the [condition] we have is because of her”. When I asked her, who had told her that she has [the condition], she said that it was her father; “because I’ve been telling him what’s been going on. Because of all the yelling just gave me bad memories from her”.

    (Emphasis as per original)

19. In referring to the Family Consultant’s interview on 17 May 2019 with respect to Y, Mr E noted:

    8.7I note that the interview with [Y] did not proceed because she was too distressed. The family consultant observed that [Y’s] body language was incongruent with what she was saying. I also note the incongruence of [Y’s] response to her mother on the day compared to the level of distress that she displayed to me during her interview.

20. As part of Mr E’s evaluation, Mr E observed:

    9.5The comments that have been provided by [X] and [Z] indicate that there has been significant denigration of [Ms Suris] within [Mr Suris’] household. [X] saw both parents as being as bad as each other in that regard, whereas [Z] tended to attribute the problem more to her father, stating that her mother does not say bad things about her father.

21. Each of the Child Inclusive Conference Memorandum prepared from interviews with the children and family on 17 May 2019, and the expert report of Mr E, psychologist, prepared from interviews which took place on 17 July 2019 were before the primary judge on 20 February 2020 and obviously informed her Honour’s decision both on that day and when making the subject orders on 27 February 2020.

22. On 27 February 2020, the Family Consultant gave an oral report to the Court which focused on Y and Z, given X was not the subject of any orders sought by either parent due to her age.

23. The Family Consultant’s evidence about Y was that she expressed a desire to live with the father and told the Family Consultant that the mother was and had always been abusive towards her and her siblings, as well as the father. As for Z, the Family Consultant reported similar statements from her about the mother being abusive and the father needing to protect the children from such abuse. Both children reported that the mother abused alcohol whilst the children were in her care.

24. Importantly, the Family Consultant also interviewed X who reported that the father was emotionally manipulative and psychologically abusive toward the children and that her belief was that the two younger children wanted to see or live with the mother but could not tell the father that out of fear. She informed the Family Consultant that the father placed the blame on the mother for the children’s anxiety and stress and would denigrate the mother constantly in the children’s presence.

25. The father reported to the Family Consultant his belief that the mother has physically and verbally abused the children and that they are at an unacceptable risk of harm in her care. The mother also expressed her view that the father undermines her relationship with the children such that they are at an unacceptable risk of harm in his care. Those are allegations each party has consistently levelled at the other throughout the life of these proceedings and is explored, in detail, in the Family Report of Mr E dated 13 September 2019.

26. The Family Consultant’s evidence after interviewing each member of the family and having read the material on file was, in summary, that:

    a)the two younger children expressed very negative views of the mother, even more so than those expressed by them to Mr E, despite the children not having spent any or any significant time with the mother since those earlier interviews;

    b)the differences in the children’s statements from the interviews with Mr E and the interviews with the Family Consultant reinforce the Family Consultant’s view that the children are influenced by the father’s views of the mother;

    c)the two younger children presented as remaining extremely anxious and stressed despite being in the care of the parent they said they wished to remain with;

    d)the Court should place little to no weight on the expressed views of the two younger children;

    e)the Court ought order that the children live with the mother and that the children be re-interviewed by the same Family Consultant in two weeks to gauge their reaction to living with the mother.

27. Though that evidence was crucial, the primary judge also took note of the uncontested facts that, even though on 20 February 2020 her Honour had explained to the father her Honour’s displeasure at him videoing the children when they were upset in order to show the Court later, the father recorded a new video between then and 27 February 2020. Both videos were played to the Family Consultant. Moreover, it was uncontested that the father had failed to comply with earlier Court orders requiring him to take the children to attend upon a counsellor for therapeutic counselling but instead taking them to another counsellor without involving the mother.

28. Considering all those factors, the primary judge then made the orders the subject of this appeal and delivered her Honour’s reasons the following day. The matter was adjourned to 6 April 2020 for the purpose of further interviews with the Family Consultant.

29. Taken from the reasons for judgment the primary judge identified the central issue at [3] as follows:

    3.The determinative issue, orders having been made last night, involves the parenting arrangements for [Y] and [Z] and whether, on the proposal of the Independent Children’s Lawyer and the mother, the children should until 6 April, 2020 when the matter comes back before the Court and they are further interviewed by [Mr F] in a further Child-Inclusive Conference – whether the children should reside with the mother and their time with the father be suspended.  The father, however, is seeking orders in relation to [Y’s] time with the mother be varied such that [Y] be at liberty to determine her own arrangements with the mother, and in relation to [Z], that she spend a weekend once a month with the mother as opposed to the current arrangements that I shall shortly outline.

1. Her Honour noted the following at [13], [35] and [36] of the reasons:

   13.It is uncontentious that the father failed to comply with the orders of 28 October 2019 as I have outlined, in that he did not attend upon a psychiatrist nominated by the Independent Children’s Lawyer for the purpose of the preparation of a psychiatric report, that the family counselling that was to take place with [Ms G] did not happen, the father taking the children to another counsellor without the mother’s knowledge or consent and [Y] and [Z] have not been spending any time with the mother, particularly [Z] in the context of the orders that were made that she was to spend two weekends out of three with her mother.

   …

   35.The children are entitled to have a relationship with both their parents if they are safe.  It is a significant concern to the Court that the father has not engaged in the therapeutic counselling process to which he was prima facie committed in October of 2019, he asking the Court to make those orders and he signing the orders, because it was a matter that I raised with him when the matter was before me previously.  However, he told me from the bar table at that stage that he was coerced into signing the orders by his then lawyer, a lawyer, I note is a family law specialist known to this Court.

   36.He thereafter did nothing to rectify the matter, it being the mother who brought these proceedings, the father ceasing time, not taking the children to see [Ms G], taking them to see another counsellor, the mother not involved in that process, on the father’s case, it being the mother who was the problem, who logically, if his case is to be accepted, needed to be involved in that process so that the mother could repair her relationship with the children.  Concerningly the father also did not inform the children’s separate representative, Ms Smithson.

2. The central “concern” identified by the primary judge was referred to in the course of the following discussion within the reasons:

   26.These are interim proceedings.  I cannot test evidence.  I do place weight, however, on the evidence of [Mr F], an independent court expert, informed as I am in that context by, firstly, the report of [Ms H] of 17 May 2019, another court expert, and the very detailed report of [Mr E], the family assessment that he conducted, his report only being released in September and recently filed.

   27.I do not place weight on the views of the children, as expressed yesterday, for the reasons outlined in [Mr F’s] evidence.  A cautious response is required in that context.  For example, the views expressed by [Z] are incongruent with the views that she expressed to [Ms H] last year and to [Mr E] in his recent report, particularly in relation to her desire to see her mother and the complaints that she made in relation to the father and her feeling scared of him and hiding under blankets when he yelled at her.

   28.Further, in relation to [Y], notwithstanding her now being 14 years of age, I also note the matters raised by [Mr F] yesterday in relation to his observations of [Y] and the further observations of [Ms H] in May of last year, where she noted when [Y] was discussing her father that her body language was incongruent with what she was saying, and where when she stated, for example, that living with her father was fun, she was highly emotional and prying and pulling at her fingers and shaking her legs when she relayed that particular view.

   29.For all of the reasons raised by [Mr F], the court needs to take a cautious response to the views expressed by the children in circumstances where in the words of [Mr F] and also possibly [Ms H], I am just not sure as I meant to look that up, referred to one or both the children being burdened or at least [Y] being burdened and the exposure of these children to their parents’ conflict.

   30.The concern is that in the father’s primary care the children’s relationship with the mother is getting worse, not better, in circumstances where [Y] and [Z] are no longer spending time with the mother, and if you accept the father’s case, where a reduction or a cessation of that time with the mother should have relieved the pressure that he asserts is on the children to the point that he asserts [Y] is at risk of self-harm, and yet the evidence in relation to what one would expect where a situation produces a relief for them, that evidence is not before the Court.

   31.The concern is that if things remain the same, there will likely be a continuing hardening of [Y’s] views and an alignment for [Z] with the father that was not in evidence in the earlier reports since time was put in place pursuant to the consent orders in October for [Z] to spend regular time, at a time when [Z] was indicating to the report-writer, [Mr E], that she wanted to live with her mother.

   32.The change proposed on the orders that I made last night, is a significant change for the children which I acknowledge in circumstances where they had evidenced instability in their care arrangements for some time. However, for all of the reasons outlined by [Mr F], there is evidentiary support for the change, which may assist him to better understand the barriers and the children’s confusing presentation in the evidence that he gave yesterday.

   33.[Mr F] raised the spectre of alienation of the children in the father’s household.  He said it was a word that he did not like, however it was a word that he used.  The father’s further videoing of [Z] since the matter was before me last week, with [Y] involved, is a concerning development.  It happened after I made clear to the father that I was concerned about his earlier videoing of [Z] in a distressed state with her dog, which he then chose to post on his social media site.  The concern, of course, is that it is evidence-gathering and further involving the children, who are already involved in significant conflict between their parents.  The Court is unable to conclude that the father’s actions were child-focused.

3. Ultimately it can be seen that the following matters were determinative of the orders made:

   42.I do not view the orders that I have made yesterday, for the reasons that I have given today that the short adjournment as likely impacting upon the children’s important relationship with their father or their mother, with whom they, in relation to the father, have a relationship of meaning. However, under the father’s sole care, there has been a change in their relationship with the mother with no persuasive evidence to suggest that they would not derive some benefits from spending time with her or that doing that presents on the evidence of [Mr F] an unacceptable risk to either of them.  Indeed, the father’s proposal that [Z] spend time once a month with the mother, rather than two out of three weekends, does not logically at face value address his concerns.

   43.The Court would be reluctant to cease [Y’s] time on the father’s proposal without at least trying to repair her relationship with the mother in a therapeutic environment.  In that regard, that counselling or that therapeutic process, was effectively frustrated by the father’s noncompliance with the order in October, and that noncompliance has to be viewed in the context of what [Mr E] noted at paragraph 9.14 of his report, and that is that the father having failed to complete a men’s domestic violence education and intervention program, as recommended by the Family Consultant and as detailed in the then interim orders before the Court.

   44.Placing weight on [Mr E’s] further views in relation to the further difficulty with respect to the father’s lack of insight with regard to his need to quarantine the children from his views in relation to the mother and his extremely anxious state with respect to his safety concerns, combined with the evidence of [Mr F] yesterday, the Court is satisfied that the best interests of the children would be met by the orders that the Court made last night.  The father’s proposal with respect to [Y] does not suggest a way forward that the Court could conclude would be in her best interests at this stage.

4. In the event, the further interview with the Family Consultant contemplated to occur on 6 April 2020, and the further proposed interim hearing on that date did not occur. In the interim, on 18 March 2020, the matter came back before the primary judge. It is not entirely clear from the record as to the basis upon which the matter returned to Court but the primary judge made orders on 18 March 2020 which, inter alia:

   a)restrained the father from having direct or indirect contact with either of the two younger children, attending within 500 metres of the children’s sport Association;

   b)required the father to remove Facebook posts dated 3 March 2020 and 5 March 2020; and, importantly

   c)transferred the matter to the Family Court.

5. No appeal was filed from those orders.

Relevant principles

1. In Edgar & Strofield (2016) FLC 93-711, the Full Court observed:[3]

   14.The parameters to legitimate appellate intervention with respect to a discretionary judgment are well established.  Those parameters have a particular focus when the discretionary judgment under appeal is an interim determination pending a final trial.  Moreover, as is recognised by the High Court in CDJ v VAJ (1998) 197 CLR 172 (McHugh, Gummow and Callinan JJ) the exercise of discretion in determining parenting orders necessarily involves predictions and assumptions about the future; and perceptions, predictions and even intuition and guesswork can all play a part in the making of a parenting order, with the consequence that there may be a real chance that the order under appeal is not in the best interests of the child or children; but is, nevertheless, the product of a legitimate exercise of discretion.

   15.However, the limits to an interim hearing are well known. Disputed issues of fact cannot be resolved at an interim hearing, and, axiomatically, those disputed issues of fact may be fundamentally important to one or more of the s 60CC (of the Family Law Act 1975 (Cth) (“the Act”)) considerations by which the Court determines what orders are in the best interests of children.

   (Footnote omitted)

   [3] See, also, Goode & Goode (2006) FLC 93-286; Eaby & Speelman (2015) FLC 93-654; Salah & Salah [2016] FamCAFC 100.

2. Also relevant to this appeal is the following statement of principle from SS v AH [2010] FamCAFC 13 where the Full Court said, at [100]:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested.  Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

Grounds of appeal

1. The father’s Amended Notice of Appeal filed on 7 August 2020 sets out seven grounds of appeal. Those Grounds can be summarised in the following way:

   1.That the primary judge erred in permitting the Family Consultant to give his report orally, denied the father procedural fairness by not allowing him to cross-examine the Family Consultant and consequently erred in relying on his evidence.

   2.That the Family Consultant lacked the necessary qualifications to give evidence about the children’s best interests.

   3.That the primary judge erred in ordering the mother to not consume alcohol beyond the legal limit because such order is unenforceable.

   4.That the primary judge erred by vacating the 18 March 2020 hearing and by ordering a further oral report from the Family Consultant.

2. It is immediately apparent that Ground 4, as summarised, is futile given the transfer of the matter to the Family Court, in light of the absence of any appeal from that order.

3. With regard to the order preventing the mother from consuming alcohol to a level higher than the legal limit to operate a motor vehicle, the father contends that the only people who could give evidence as to the mother’s breach of such an order are the children or the mother herself and, therefore, it is meaningless, irrelevant and ought be set aside. That is the father’s position, even though, on his case, it is the children who informed him of the mother’s intoxication and who, on the evidence of the Family Consultant informed the Family Consultant of same. Though I do note the qualifying aspect being that the Family Consultant placed little weight on the words of the children.

4. In any event, the children are clearly not opposed to reporting intoxication to the relevant persons should it be an issue and, beyond that, the father raises no argument sufficient to found error in the making of that order. I also note that the children will be residing with the mother, along with their older sister, X, who is also capable of reporting the mother’s intoxication, if it were to occur. Indeed, it was an order made to directly address a problem which the father highlighted as amounting to a risk to the children.

5. Moreover, the father’s argument seems to conflate two propositions; enforceability of an order and the correctness of that same order. Merely because an order may be difficult to enforce does not, of itself, invite the interference of an appellate court. There is no merit in this aspect of the father’s appeal.

6. The balance of the father’s appeal is directed to the use made by the primary judge of the evidence of the Family Consultant.

7. It ought be noted at the outset of this part of the discussion that interim hearings of parenting proceedings have obvious limitations which have often been referred to in the authorities. In an ideal world the Federal Circuit Court and the trial division of this Court would have sufficient resources to conduct early trials of proceedings to obviate the need to conduct interim hearings with all of the constraints involved in that circumscribed process. As the primary judge noted at [26] of the reasons, within the constraints of an interim hearing she was not able to test the evidence.

8. However, what is notable in this case is that unlike many interim cases the primary judge had available to her several sources of expert evidence. Moreover, given that the expert evidence was directed to ascertaining the views of relatively mature children, the expert evidence in the case had particular resonance to the extent that it recorded what the children themselves were saying with the experts making observations of the changes in those views from time to time. In particular, the feature that the two younger children were expressing even more negative views about the mother over time in circumstances where they were having little, or no time, spent with the mother.

9. Of course, all of this needs to be fully tested at a trial. However, it is not without significance that in this case there is an abundance of expert evidence, gathered over time, in relation to the views of children of the ages of these children.

10. Section 11F of the Act specifically grants the Court the power to require parties to attend upon a Family Consultant for the purposes of seeking the advice of the Family Consultant pursuant to s 11E. Importantly, a Family Consultant is a defined position under s 11B. Here, there is no evidence that the Family Consultant was not properly appointed pursuant to s 11B and so there can be no doubt that the Family Consultant was appropriately qualified and, indeed, legislatively mandated to give his opinion as required by the Court. There is no merit in this aspect of the appeal.

11. As for the method by which the evidence was given, the father suggests there is a requirement that such evidence is given by a written report “like they normally do”. That is apparently a reference to the earlier s 11F report of 17 May 2019 conducted by a different Family Consultant. However, nowhere in Part III of the Act or, indeed, anywhere in the Act is there such a requirement. It is routine practice of the Court to require Family Consultants to give oral reports, particularly where there are matters of urgency such as this. Moreover, Division 12A of the Act and, more specifically, s 69ZX of the Act allows the Court to give directions about how an expert is to provide their evidence. There is no merit in this aspect of the father’s appeal.

12. Next, the father contends he ought to have been afforded the opportunity to

    
    

    cross-examine the Family Consultant. Though no party cross-examined the Family Consultant, the primary judge invited submissions from all parties after the giving of the evidence as to what would be the appropriate orders in light of that evidence. It is important to note that this was an interim hearing with all the attendant limitations of such a hearing including that cross-examination of witnesses does not occur unless in exceptional circumstances.

13. At no point did any party seek to cross-examine the Family Consultant. I find no merit in this aspect of the father’s appeal. The primary judge was entitled to control the interim proceedings before her in the manner her Honour did with a view to as speedy a resolution of an urgent matter as possible. The very nature of an interim hearing precludes the testing of evidence and the making of any concluded findings.

Conclusion and costs

1. There being no merit in any of the father’s grounds of appeal, his appeal ought be dismissed.

2. At the hearing of this appeal I emphasised to the father that it seemed that, rather than an appeal from the orders of 27 February 2020, his better course might be to pursue a further interim hearing now before the trial division of this Court to which the proceedings have been transferred given that the further interim hearing on 6 April 2020 contemplated by the orders of 27 February 2020 did not in fact take place.

3. Obviously enough there is nothing to prevent the father from seeking to obtain from the trial division of this Court, as soon as possible, a further interim hearing. I was informed by the bar table that expert psychiatric evidence has now been obtained which would be available. It may well be necessary to obtain updated expert evidence as to the current views of the younger children, given their experience now of living with the mother and their older sister for a significant period, but the point of emphasis is that an interim hearing can be pursued by the father in an effort to obtain different parenting arrangements to those currently prevailing.

4. Moreover, it ought be possible to advance the proceedings to a final trial particularly given the availability of the expert evidence referred to.

5. In the event the appeal were to be dismissed the mother seeks costs of the appeal on a party and party basis in the fixed sum of $7,973.

6. Whilst the financial circumstances of each party are constrained, and reference has already been made to the feature that the father’s sole source of income is a veteran’s pension, I was informed at the hearing of the appeal that an order previously made for property settlement between the parties is the subject of s 79A proceedings brought by the father.

7. In my judgment in circumstances where the father has been wholly unsuccessful in this appeal, there exists justifying circumstances for an order for costs to be made in the mother’s favour. It is not apparent that the father simply does not have the financial means to meet an order for costs and in any event impecuniosity of a party ought not otherwise prevent an order being made when an order is justified.[4]

   [4]Northern Territory v Sangare (2019) 265 CLR 164.

1. I will therefore order that the father pay the mother’s costs of and incidental to the appeal fixed in the sum of $7,973 but I will afford the father a time period of six months to meet payment of those costs.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent Court delivered on 6 October 2020.

Associate:

Date:  6 October 2020