Thornton & Little
[2022] FedCFamC1A 49
•8 April 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Thornton & Little [2022] FedCFamC1A 49
Appeal from: Little & Thornton (No 2) [2021] FedCFamC2F 434 Appeal number(s): NAA 70 of 2021
NAA 6 of 2022File number(s): MLC 6705 of 2019 Judgment of: ALDRIDGE J Date of judgment: 8 April 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the mother appeals against final parenting orders made which provided for the child to live with the father – Relocation – Consideration of evidence by the single expert – Where the evidence of the single expert was not consistent with the evidence in the proceedings – Where neither party posed a risk to the child – Findings of fact – Attribution of weight – Manner in which the hearing was conducted – Where the findings were not open on the evidence – Error established – Exceptional case – Appeal allowed and orders set aside – Matter remitted for rehearing – Orders made returning the child to the mother – Costs certificates granted. Legislation: Family Law Act 1975 (Cth) s 69ZW
Federal Proceedings (Costs) Act 1981 (Cth)
Cases cited: Banque Commerciale S.A., En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11
Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Franklyn & Franklyn [2019] FamCAFC 256
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Skorpos & Anor v United Petroleum Pty Ltd [2013] SASCFC 117
Stokes v The Queen (1960) 105 CLR 279; [1960] HCA 95
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12
Winship & Wrays (2019) FLC 93-928; [2019] FamCAFC 225
Number of paragraphs: 131 Date of hearing: 9 March 2022 Place: Melbourne (via video link), delivered in Sydney Counsel for the Appellant: Ms Smallwood SC Solicitor for the Appellant: AFL Kordos Lawyers Counsel for the Respondent: Dr Smtih Solicitor for the Respondent: Berry Family Law ORDERS
NAA 70 of 2021
NAA 6 of 2022
MLC 6705 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS THORNTON
Appellant
AND: MR LITTLE
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
8 APRIL 2022
THE COURT ORDERS THAT:
1.Appeal No. NAA 6 of 2022 is dismissed.
2.Appeal No. NAA 70 of 2021 is allowed.
3.The orders of 24 November 2021 are set aside.
4.The orders made on 19 October 2020, as amended on 15 March 2021 and 20 August 2021 are to apply.
5.The matter be remitted to the Federal Circuit and Family Court of Australia (Division 2) for rehearing before a judge other than the primary judge.
6.The Court grants to the appellant a costs certificate pursuant to s 9 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 the appellant in respect of the costs incurred by the appellant in relation to the appeal.
7.The Court grants to the respondent a costs certificate pursuant to s 6 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 the respondent in respect of the costs incurred by the respondent in relation to the appeal.
8.The Court grants to each of the parties a costs certificate pursuant to 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 the parties in respect of the costs incurred by them in relation to the rehearing ordered.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Thornton & Little has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
On 24 November 2021, a judge of the Federal Circuit and Family Court of Australia (Division 2) made a suite of parenting orders in proceedings between Mr Little (“the father”) and Ms Thornton (“the mother”) concerning their child, X (“the child”) who was born in 2019.
The orders provided for the father to have sole parental responsibility for the child who was to live with him, whereas previously the child had lived with the mother. The orders provided for the child to spend time with the mother initially to spend from 5.00 pm on Friday to 5.00 pm on Sunday every second week, with that time extending on 18 May 2022 to include the Monday morning until 8.00 am. From May 2024, the time with the mother is to become from 5.00 pm on Friday to 8.00 am on Tuesday every second week. Orders were also made for holidays and special days.
Appeal No. NAA 70 of 2021 is the mother’s appeal against these orders. The father opposed the appeal.
On 7 December 2021, the primary judge refused to stay the operation of the orders on 24 November 2021. The mother’s appeal against that refusal is Appeal No. NAA 6 of 2022. This appeal is now futile as the primary appeal has been heard and will be resolved by these reasons. The appeal from the refusal to stay the orders will be dismissed.
The primary judge found that there should be a change in residence, mainly for the following reasons:
434.… I regard the father as having good insight in relation to the detrimental impact which parental conflict will have upon the child and of his overall aversion to conflict. The evidence persuades me… that the [mother] is more likely to pursue a desire to obscure, sabotage and undermine any relationship between the child and her father… To this point, there is a deal of evidence the child has not been well socialised including because she has spent so significant an amount of her time exclusively with her mother or maternal grandmother. I accept there has been some change on this score.
435.… I accept the mother has demonstrated a near complete incapacity to support their child having a relationship with her father and extended paternal family…
…
437.Accepting the [father] is not without flaws or responsibility, from his evidence and presentation I do consider that he is probably far better placed to support [the child] to have a relationship with both parents and their extended families. By contrast, I was persuaded by the opinion evidence that the mother’s personality and functioning and interpersonal functioning have contributed significantly to where things presently are at. … Allied to those considerations is that there seems good reason to conclude the child will have an opportunity to live in a more stable and settled environment than if she is to live in the care of her father.
Clearly, in the last sentence of [437], his Honour intended to say “mother” and not “father’”.
Neither party was found to have posed a risk of harm to the child.
These reasons will explain that these findings were sufficiently influenced by the acceptance of the evidence of the single expert psychologist which was, in part, based on assumptions which were not consistent with the evidence in the proceedings.
It is well established that “[t]he basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based” (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (“Makita”) at [64], see also [65]–[66]). To this it may be added, of course as often occurs, the relevant facts upon which the expert’s opinion is based are established not by the expert themselves, because quite simply they have no knowledge of those facts, but by evidence called from other witnesses.
BACKGROUND
In order to understand the grounds of appeal, it is necessary to set out some of the factual matrix, as well as to delve into the procedural history of the matter at some length. Regard must be had to what occurred at an interim hearing on 19 August 2021. This is because the evidence of Dr C, the single expert forensic psychologist, was received in an unusual manner and because the evidence given on this day was taken into account in the reasons of the primary judge (see [37] and [378]).
The parties’ short relationship began in March 2018. The mother says that the relationship ended before the child was born in March 2019, whereas the father says that it ended in June 2019. The parenting proceedings were commenced shortly thereafter on 19 June 2019. The parties reconciled in September 2019 and the proceedings were discontinued two months later. According to the father, the parties finally separated in May 2020, whereas the mother maintained that it was March 2019.
The mother refused to allow the child to spend time with the father until orders were made on 19 October 2020 for the child to live with the mother and spend supervised time with the father, with proceedings having been recommenced on 8 July 2020.
On 15 February 2021, the parties attended on Dr C who prepared a report dated 19 February 2021. In that report, he recommended that the child spend more time with the father in a less structured environment.
On 15 March 2021, orders were made extending the time the child was to spend with the father and dispensing with the need for supervision. However, changeovers became more difficult, sometimes lasting as long as 45 minutes and on 11 May 2021 the mother again suspended the child’s time with the father.
The parties attended Dr C once more on 18 May 2021. The circumstances in which they did so are not entirely clear. Dr C described this meeting as “ad hoc” and it seems that it may have been arranged by the parties’ lawyers in an attempt to get assistance with changeover (Transcript 19 August 2021, p.32 line 25). At the meeting Dr C observed what he described as a disturbed and dysfunctional attachment between the mother and the child. He asked a colleague, Mr H, to observe what was taking place (Transcript 19 August 2021, p.32 lines 25–29). On 20 May 2021, Dr C conducted a teleconference with the parties’ lawyers to discuss his concerns. Dr C advised that he considered it desirable that the mother and child consult a bonding and attachment specialist. Dr C did not prepare a report at that time.
The matter came before the Court on 19 August 2021 for interim parenting orders. By this stage, the father was seeking that the child live with him and the mother was proposing orders permitting her to take the child to live with her in Queensland. Very early in the course of the proceedings, the primary judge said:
HIS HONOUR: … I cannot recall evidence in a case where either [Mr] [H] or [Dr C] have gone down the corridor and said, “Hey, [Mr H], or hey, [Dr C], would you come and have a look at this?”:
I was advised by [Dr C] he was very concerned about [the child’s] behaviour with [the mother], which was “extremely unusual”. [Mr H] was pulled in to observe their interaction. [The child] was visibly withdrawn when [the mother] refused to engage with any of the staff. When she came into my care, however, she brightened almost immediately… completely changed. [Dr C] remarked how quickly she settled with me and said “She is a completely different child with you”.
Now, in the case of ..... evidence I had from the mother, the level of concern this gives me – and you know these cases inside out. The level of concern it gives me about the long-term damage to this child is really significant.
(Transcript 19 August 2021, p.5 lines 11–25)
The parties agree that the material quoted by the primary judge (set out in italics) came from the father’s affidavit in support of the interim orders he was seeking. That affidavit had not been formally relied upon at that stage, but nonetheless, it appears that the primary judge had read it. Shortly after his Honour said that, “[Dr C] had indicated a willingness to give oral evidence” (Transcript 19 August 2021, p.5 line 41). I am unable to ascertain from the material before me in this appeal, how the primary judge became aware of that fact.
Shortly thereafter, his Honour said:
HIS HONOUR: …But once this child is safely in the hands of the father, on one view of the evidence - - -
…
HIS HONOUR: She’s fine. There’s no risk there.
(Transcript 19 August 2021, p.7 lines 5–10)
The matter then continued with a discussion about procedural orders at great length. There was a discussion about whether there ought to be an interim hearing or an early final hearing.
The matter resumed at 2.36 pm. His Honour had proposed an early final hearing and asked the parties’ to address the possibility of it commencing on 8 November 2021. In the course of his submissions, counsel for the father said “[Dr C] is listening, your Honour” to which his Honour replied “[w]ell, we are sitting in open court” (Transcript 19 August 2021, p.21 lines 22–24). That somewhat anodyne comment belies the fact that the proceedings were being conducted by Microsoft Teams and not in person. The person controlling the Teams meeting, normally one of the judge’s associates, is the person who admits people to the proceedings. Thus whilst it is true that the proceedings were in open court and Dr C was entitled to be present, it remains entirely unexplained how it was that he became aware of the hearing and decided to attend.
After discussing a number of proposed orders, his Honour turned to what he described as a critical issue, which was whether the child should spend overnight time with the father pending the final hearing. His Honour posed the question as to “whether or not we proceed to hear from [Dr C]” before he heard from counsel for both parties (Transcript 19 August 2021, p.23 lines 25–26). The focus of the submissions then turned to whether the time the child was to spend with the father should end at 4.00 pm or 5.00 pm. The primary judge said “[w]ell, I want to know what [Dr C] thinks about that” (Transcript 19 August 2021, p.26 line 13). Further submissions were then made about overnight time and his Honour said:
HIS HONOUR: Why should [Dr C] not have the benefit of what he has observed in his years of experience? Why shouldn’t he provide the equivalent to a report to the court having listened to both of your submissions about these things?
(Transcript 19 August 2021, p.27 lines 33–26)
After extensive further submissions, his Honour then said:
HIS HONOUR: I would like to hear from [Dr C]. [Dr C], good afternoon.
(Transcript 19 August 2021, p.30 line 41)
After then giving an introduction to Dr C and reminding him that he had had the opportunity of hearing counsel for both parties address the Court, he was invited to “say the things you want to say” (Transcript 19 August 2021, p.31 line 4).
I interpolate here to note that Dr C was not sworn or affirmed to give evidence as one would expect, even with an expert witness. He was called by the primary judge and not by one of the parties, who were given no notice of what the expert witness proposed to say.
Dr C first addressed the issue of whether make up time with the child and the father should be from 9.00 am to 4.00 pm or 9.00 am to 5.00 pm. Unsurprisingly, he considered that to be of little significance. His Honour then, after a lengthy preamble, asked the following question:
HIS HONOUR: I’m just asking you to observe, for the purpose of today, would that, in your view, be another six or eight strands you might add to the cable [informing] your view about the reality of the difficulties present in this case.
(Transcript 19 August 2021, p.32 lines 17–20)
The answer was:
[DR C]: Your Honour, thank you for that question, I think that’s right. I think that the most powerful information for me in this matter was when I observed the transition between this little girl and her mother and father, when they came for an ad-hoc session with me. And I saw a transition that was fraught, and there was a lot of distress in this child, and this child physically wouldn’t leave her mother’s lap. It was profound. Indeed, your Honour, it was so profound that went and grabbed my colleague, [Mr H], to come in and just validate what I was observing because it was so anomalous. The child, literally, would not – even before the father entered the observation, the child would not leave her physical presence.
And the mother’s attempts to comfort this child and soothe this child were unsuccessful and unreciprocated. And then after the transition, which we worked – I assisted with, and we attempted to engage this little, and get her across to her dad, and I asked [the mother] to simply place the child on the ground and leave the room immediately, within the space of, you know, a very short period of time, 20 seconds, perhaps, at the most, this child was settled and was a completely different presentation. She was engaged. She was happy. She was curious, inquisitive, interacting really successfully with her father. And that was the most profound data point for me from a clinic perspective from this whole case. Quite aside from any of the narratives from the parents. So observing this child directly is key to me being able to understand exactly what these look like in situ.
HIS HONOUR: What would you take from that observational evidence and your experience in making any recommendation today upon this issue about overnight time?
[DR C]: At baseline, there is a disturbed attachment between this child and her mother. That’s my very strong opinion. I’ve been doing, you know, forensic reports and ..... for … years. I’ve never seen a presentation like it. It was so profound to the point that I required a colleague to come in and validate with me. So ..... disturbed attachment. This child spends very little time away from her mother. She doesn’t go to childcare. She’s not involved in any other activities that I’m aware of Little kids ..... Mini Maestros, some sort of, you know, early gymnastics ..... these sorts of things. She doesn’t do any of that. There’s questions around co-sleeping. Certainly an emergent enmeshment-type dynamic, in my ..... between this child and her mother. And that’s not to criticise [the mother].
I’m not suggesting it was any permissions malfeasance at play with any of that, but there is a dysfunctional attachment to ..... child. And when she’s in the care of her father, she exhibits far more ..... she’s far more energised and buoyant and enthusiastic, and I would argue that the better she is able to individuate away from her mother at this, what is a pretty critical developmental juncture for her at two years and three months, the better the outcomes will be in 12 months/24 months by the time she starts school. So I would certainly advocate at this point for the court to give due consideration to commencing overnight stays. I think that we could talk ourselves out of any scenario ..... we don’t know what ..... going to have ..... neither here nor there. So I think that there’s a very strong clinical argument for those overnight stays to commence.
(Transcript 19 August 2021, p.32 line 32 to p.33 line 22) (Emphasis added)
In the extract of the transcript above, there was a reference to counsel for the mother saying the last two paragraphs. This is a mistake in the transcript as it was clearly Dr C who was speaking.
His Honour then asked counsel for the mother if he wanted to raise any issue “for me that I might raise with [Dr C]” (Transcript 19 August 2021, p.33 lines 24–25). Counsel for the mother then referred his Honour paragraph 24 of the mother’s affidavit which referred to her taking the child to weekly swimming lessons, weekly playgroups, play dates and various other attendances. Counsel for the mother then said, without challenge:
[COUNSEL FOR THE MOTHER]: So [Dr C] doesn’t have that. So what we have here is precisely the problem I sought to avoid which is that [Dr C] not having the full factual matrix before him.
(Transcript 19 August 2021, p.33 lines 41–43)
Counsel for the mother then referred to Makita and was told by the primary judge that the submission was not accepted. The exchange continued:
[COUNSEL FOR THE MOTHER]: The question, though, is this: what you have is conclusions being drawn from observable behaviour. One of the conclusions is demonstrably wrong. So the question becomes why is it that the other concludes which this expert seeks to draw are demonstrably right - - -
HIS HONOUR: Which is the demonstrably wrong one? What are you speaking?
[COUNSEL FOR THE MOTHER]: That this child has no experience of playgroup interaction with other kids and related activities. That was an inference - - -
HIS HONOUR: That’s not the - - -
[COUNSEL FOR THE MOTHER]: - - - that [Dr C] drew.
HIS HONOUR: ..... the observation. No, no, no. Look, you’ve really got to focus with the issue. I was speaking to you, and he was speaking to the court about what he observed at his professional rooms between the mother and child, and the father and the child, and what he asked [Mr H] to come in and validate for him and the opinions he expressed.
(Transcript 19 August 2021, p.34 lines 26–44)
Whilst his Honour was focused on the observation made on 18 May 2021, it did not stand alone because there were, in fact, two matters raised. The point of counsel for the mother was, it seems, entirely correct.
One of the set of facts that Dr C had relied on to draw his opinion, that the child spends very little time away from the mother, that the child does not go to childcare and is not involved in any other activity, was demonstrably wrong. That opinion, as these reasons will demonstrate later, became of great significance. I have already quoted the passage from his Honour’s reasons where he made the finding that the child had not been well socialised in the care of the mother. The genesis of that finding lays in the evidence of Dr C just quoted.
It is so obvious that it should not need saying, but Dr C was not in a position to give evidence as to the child’s attendance at playgroup and the like because he had no direct knowledge of it. He had not observed it. Thus any opinion of his which was based on the lack of attendance was based on that as an assumption. Unless and until that assumption was established by other evidence, any opinion of Dr C so based was not admissible and, if admitted, could not be given weight. The unchallenged position was that his assumption was entirely wrong.
The challenge that counsel for the mother raised at the time was therefore entirely correct.
So too was counsel for the mother’s second complaint that the statement made by Dr C that the child had not attended activities, was not an expert opinion based on the expertise of the witness. It was therefore inadmissible, save as an assumption only. Indeed, in light of the evidence, it was merely an incorrect supposition.
Orders were subsequently made fixing the matter for hearing on 8 November 2021 and provision was made for the father to spend overnight time with the child.
Orders were made for the preparation of a Family Report by Dr C. On being informed of the orders, Dr C advised that it was premature and too early to prepare a Family Report. Nonetheless, his Honour took the view at a subsequent directions hearing, that as a Family Report had been ordered, it should be prepared.
The matter became more unfortunate. The mother and the child did not attend the interviews. The mother’s evidence was essentially, that she thought they were not proceeding because of the view expressed by Dr C. She was wrong. The upshot was that the Family Report was prepared only with the involvement of the father. I shall return to the Family Report in more detail shortly.
The hearing commenced on 8 November 2021 and his Honour delivered reasons on 24 November 2021. The mother filed an application for a stay of the orders and somewhat surprisingly, given the very young age of the child, the extreme nature of the orders and the speed with which an urgent appeal can be brought on for hearing, the stay was refused by the primary judge and now the child is currently living with the father.
THE APPEAL
Counsel for the mother made the majority of her submissions under the rubric of the first four grounds of appeal, without attempting to identify the various submissions with the detail of those grounds. Those submissions were met with the response that none was in fact, an exposition of the error asserted in those grounds and that further, none was an appealable error, without conceding that the matters complained of were established. Finally, counsel for the father relied upon the fact that many of the matters raised by the mother were not the subject of cross-examination or of submissions before the primary judge.
I shall deal first with the mother’s submissions before returning to those made by the father.
The point of the mother’s submissions was to attempt to undermine the primary judge’s acceptance of the opinion of Dr C that the mother had a disturbed and dysfunctional attachment to the child (at [289]) and that the child was not thriving in the sole care of the mother (at [292]).
I accept the mother’s submission that these findings permeate his Honour’s reasons and are referred to at least 18 times by him.
The mother also challenges the findings by submitting that the opinion of Dr C was not soundly based on the facts established by the evidence and was coloured by a failure to take into account relevant material.
The essential opinions of Dr C were that the child had a disturbed and dysfunctional relationship with the mother, that the child was not thriving in the mother’s care, that the child had not been well socialised, that the mother had a near incomplete capacity to support the child having a relationship with the father and that the mother had and would seek out professionals who would support her view and not those who would challenge it. As we have seen, these opinions were adopted by the primary judge, sometimes in identical terms.
In the Family Report dated 28 October 2021, Dr C referred to the attendance on 18 May 2021 and said:
9.The parents then sought further advice about how to proceed, and attended my rooms to conduct another observation of the transition for [the child] between her parents. At this point, [the child] was noted to be clingy, uneasy, and socially inhibited. She refused to leave her mother’s lap. [The mother’s] attempts to soothe and engage the child were rebuffed. Opinion was provided to the legal representatives in the days following that [the child] was presenting with a disturbed attachment to her mother.
…
26.Given that [the mother] did not attend for the family report assessment, formal observations were not undertaken. When I consulted with the family briefly on 18/05/21, I did have the opportunity to observe [the child] informally with each of her parents. These observations demonstrated a disturbed attachment between the child and her mother. Even prior to her father coming into the vicinity, [the child] refused to leave her mother’s lap. She appeared unsettled, distressed, and uneasy. She shook her head. She wrapped her arms around her mother in a distressed state. [The mother’s] attempts to soothe the child were rebuffed, with [the child] pushing away toys, batting away her mother’s hand, and generally refusing to be comforted by [the mother]. She refused to explore any toys or items around the room, nor engage in any form of independent play. Upon [the father] entering the observation room, [the child] had to be pried from the mother and placed on the floor, resulting in the child becoming more overtly distressed. [The mother] left the room, with her father rapidly scooping up the child and attempting to comfort and distract her. Within approximately 10 seconds, [the child] was calm. Her presentation changed entirely. She became instantly confident, curious, exploring items around the room. Her vocalisations increased. She was amenable to being approached by other people. She impressed as happy, contented, and comfortable. For his part, [the father] was entirely supportive and appropriate of his daughter. He took educational opportunities as they presented. He played with her at an age-appropriate level. He was not noted to be intrusive or overbearing or unattuned in his interactions.
(Family Report dated 28 October 2021, paragraphs 9 and 26)
As to the mother, Dr C opined:
38.There are more substantial concerns in relation to the presentation of the [mother]. She has shown an abject unwillingness to support [the child] having a relationship with the other side of her family. Seldom has there been a visit of this little girl with her father that has been without incident. She attributes any malady, or scrape, or fatigue, or behavioural issue, exclusively to some malfeasance that has occurred within the paternal environment. She has not shown any modicum of goodwill or intent to co-operate and allow [the child] to have a meaningful relationship with her father. Despite professing to want a more cohesive situation, and support of [the child] having a relationship with her father, all of her conduct indicates the opposite view. Moreover, some of the allegations she has made, such as claims of aggressive behaviour during a changeover (which were witnessed by a professional supervisor), are provably inaccurate. It is my assessment that [the mother] will continue to obscure, sabotage, and undermine [the child] having a relationship with her father. Her motivation for this is not entirely clear, although the concrete and inflexible quality of her approach to the situation is clinically noteworthy. The court will no doubt benefit from the opinion of Mr B in relation to her mental state and personality functioning, although from the information I have been provided, there is a compelling reason to question whether she may present with some underlying (cluster B) personality disturbance. I would reiterate also that her care practices with this child would correlate with someone who is meeting their own emotional needs through the child. As [the primary judge] opined, “on the available evidence, including the observations made by [Dr C] of a disturbing dysfunctional attachment between the mother and child, the issue of a risk in this part of the case, his scale, content and how it might be appropriately addressed, is one that is appropriately deferred until trial upon the totality of the evidence being tested”. [The child] is not thriving in the sole care of her mother, as has been observed by various independent third parties, such as Child Protective Services. The court will need to test all of the available evidence and ascertain exactly why this is the case. At my most basic level, it is clear that [the mother] has not fostered circumstances in which it will be easy for [the child] to spend significant and substantial time with her other parent, notably because the child has not been well socialised over the course of her life, and continues to spend the totality of the time exclusively in the care of her mother (including practices such as breastfeeding, co-sleeping etc.).
(Family Report dated 28 October 2021, paragraph 38) (Emphasis added)
Again at least two different points are being made by Dr C. One is based on his direct observations made in May 2021. The second, which I have emphasised is not based on his direct observations made, is based on assumptions as the activities of the child.
The incorrect assumption that the child was not well socialised because she continues to spend the totality of her time exclusively with the mother is repeated. There was no evidentiary foundation to support that assumption as the Region BB Health documents, which Dr C had not seen and was not permitted to read (as explained shortly), demonstrated that the child, at least, was attending a playgroup. Dr C had, of course, been present on 19 August 2021 when counsel for the mother forcefully identified the evidence which showed his assumptions to be misplaced.
These points led Dr C to make a series of recommendations which included the opinion that “[the child] has a sufficiently robust relationship and familiarity with her father to allow the commencement of overnight stays” and that “there is at least some argument that [the child] would be better served by a change in residence” (Family Report dated 28 October 2021, paragraphs 41(e) and (k)).
Before turning to the oral evidence of Dr C and the particular submissions made by the mother, it is important to explain that at the outset of his oral evidence, Dr C said that he had read the further material provided to him by the father, but not that provided by the mother, because he had only recently received it (Transcript 9 November 2021, p.49 lines 17 to p.52 line 9). After extensive discussion between the primary judge and counsel for the mother, his Honour determined to proceed as things stood and not allow Dr C to read the additional material, which apparently, included the mother’s trial affidavit and documents produced on subpoena by Region BB Health. Those documents assume considerable importance and thus will be discussed shortly.
The effect of the improvement in the child’s behaviour
Both parties gave evidence that by the time of the hearing, there had been a significant improvement in the child’s behaviour. Such behaviour was recognised by the records of Region BB Health. That improvement was not referred to by Dr C in the Family Report. However, in his oral evidence Dr C said:
[DR C]: …if my understanding is correct, there has been some moderate improvement in more recent times.
(Transcript 9 November 2021, p.64 lines 33–34)
[DR C]: …I think that the background of the court involvement and the significant ..... that both parties are now subject to is probably a decisive factor in why there may have been some improvement, but, nonetheless, improvement is improvement.
(Transcript 9 November 2021, p.77 lines 1–4)
Dr C was then taken to a passage in the Region BB Health records where it is said that the child had reported a reduction in certain anxiety at home and improvement in daily living activities. Dr C was asked if it gave him any comfort at all, he replied:
[DR C]: It’s certainly encouraging. … If my formulation is correct – and I believe I leave open the possibility I might be way off – but if my formulation is correct and there are features of [the mother’s] personality that are contributing as to how things are unfolding, it’s a personality-bound issue. The likelihood of sustained amelioration is less, that’s the reality, so not only do we have to understand what’s occurring at the moment, and there may well have been, you know, improvement against the backlog of, you know, significant litigation and the oversight of the court. What happens into this time, that’s where my concerns are starting to correlate.
(Transcript 9 November 2021, p.79 lines 8–16
It is appropriate to record here that Mr B, a psychologist who conducted a personality assessment of the mother, disagreed that the mother’s traits were a personality bound issue and thought that the mother’s conduct merely reflected bad behaviour. There seems to have been no finding by the primary judge either way.
Dr C agreed that the fact that overnight stays have taken place for the last few months and that changeovers are no longer supervised was a significant indication of progress (Transcript 9 November 2021, p.76 lines 37–44).
His Honour recorded the improvement in the child’s behaviour. At [65], his Honour referred to the “supposed improvement” which “may have been attributed” to the outcome of the interim hearing. He noted similar comments in other documents produced by Region BB Health at [180]. At [242], his Honour noted that there was some evidence to suggest that the parenting arrangement had improved since the interim orders made in August 2021. Again at [442], the situation was regarded as “somewhat improved”.
It is to be noted that there are two things being conflated here. The first is whether the child’s regression had improved, which it clearly had. The toxic relationship between the parties had not improved and was unlikely to do so.
It is difficult to see where the improvement in the child’s behaviour was taken into account, either by Dr C, or by his Honour, as opposed to being merely recorded. Ordinarily, such a reference would indicate consideration but this matter, regrettably, cannot be seen as following an ordinary course.
The Region BB Health documents
The mother had significant involvement with Region BB Health. In short summary, their observations and conclusions were in marked contrast to those made by Dr C. It was Region BB Health’s view that there were no attachment issues between the mother and the child and that the child’s regression was caused by the toxic behaviour of both her parents and the conflict in which the child was now involved.
Concerns about the child’s regressive behaviour were first raised by the facilitator of the playgroup the child attended. The child and the mother were referred to Ms U, an enhanced maternal and child health nurse. The complaint made was that the child was unsettled after spending time with the father. On 21 May 2021, Ms U wrote to the Department of Families, Fairness and Housing (“the Department”) that:
162.…
I also have no concerns in regard to the attachment between [the mother] and [the child].
Also, there have been no concerns re attachment in maternal and child history over the last two years, and [the mother] attended all visits…
(Emphasis removed)
The Department records noted:
There was again confirmation of secure and caring attachment between the mother and [the child].
(Exhibit T3, p.172)
A specialist team at Region BB Health became involved when Ms U referred the mother and the child to it on 13 May 2021. The child was referred to the Child Youth Mental Health Service were she was diagnosed with separation anxiety and a treatment plan was put in place.
On 30 June 2021, a team which included Ms U and Dr C, recorded that:
171.…
[Dr C] felt that the aetiology of [the child’s] regression was unclear and he did not witness distress from the child in his observation. He felt that both parents did not facilitate transition well and were somewhat “under resourced” in their parenting.
As to this passage in the notes, Dr C’s oral evidence was:
[DR C]: No, I don’t – I would probably query that. I think that we talked about all sorts of practise and at that point there was a paucity of information. We did all agree that there was some issue with how the child was to present, but I think I expressed the view that, in part, the difficulty between the two parents was a major contributing factor to why this child wasn’t seeing the ..... between - - -
[COUNSEL FOR THE MOTHER]: Do I take what you’ve just said, they reflect more in the second statement to that paragraph even, which is, obviously, you, [Dr C], felt that will both parents did not facilitate transition well?
[DR C]: Yes.
[COUNSEL FOR THE MOTHER]: Further reflection of ..... that means, yes, and the second statement attributed to you is that both parents were somewhat – and then suggesting it’s a direct quote from you – under-resourced in their parenting.
[DR C]: Yes. Broadly that’s the case, yes.
(Transcript 9 November 20201, p.65 lines 17–33)
The point from this passage is that Dr C agreed with Region BB Health that “a major contributing factor” was the behaviour of both parents.
On 2 August 2021, it was recorded that the child was “less clingy” to the mother and access seemed to go fine (at [174]). On 9 August 2021, the father was told that there had been good progress in the child gaining confidence.
On 18 August 2021, Ms R, an accredited mental health social worker and senior mental health clinician, recorded:
180.… “in the last four weeks I have observed good progress in the reduction of [the child’s] anxious behaviours in the clinic as well as [the mother’s] anxiety about access arrangements. [The mother] has also reported a reduction in [the child’s] anxiety at home and an improvement in daily living activities…”
Ms R opined on 12 October 2021:
The ongoing concerns I have for [the child] such as social difficulties, lack of eye contact, lack of reciprocity, sensory sensitivities, possible speech and language delay, are generally in “good enough” parenting situations are not related to parenting but other contextual issues such as trauma, stress in utero, neurodevelopmental delay, anxiety.
(Exhibit T2, p.50)
Dr C was only showed parts of the Region BB Health records in the course of his cross-examination, although obviously he was aware of its involvement because he attended the meeting in June. Somewhat surprisingly, he did not consult with them prior to preparing the Family Report. But again, regrettably, Dr C was not asked any questions about that.
In course of his cross-examination, Dr C said:
[COUNSEL FOR THE MOTHER]: Now, I just want to – are you aware that there was an intervention, a series of ..... organised by Children’s Health in relation to [the child’s] regression in May?
[DR C]: Yes. I think the information that I had available to me at that point was that [the mother] was working closely with a Child Health nurse who had expressed some concerns about the presentation of the child, including a [series] of regressive behaviours.
[COUNSEL FOR THE MOTHER]: But on your report at page 2 you list sources of information.
HIS HONOUR: I’m sorry.
[COUNSEL FOR THE MOTHER]: This is [Dr C’s] clinical report, 28 October 2021.
HIS HONOUR: Thank you. The second report.
[COUNSEL FOR THE MOTHER]: Yes. You list sources of information.
[DR C]: Yes.
[COUNSEL FOR THE MOTHER]: But you don’t list [Region BB] Health, do you?
[DR C]: Well, I ..... both. That’s probably because I wasn’t provided with any materials from [Region BB] Health.
[COUNSEL FOR THE MOTHER]: But you knew that there was a process that was going on with [Region BB] Health, didn’t you?
[DR C]: Well, that had been reported to me, yes.
(Transcript 9 November 2021, p.66 line 22 to p.67 line 4)
Dr C did however accept that the data “may have evolved since I was last involved” (Transcript 9 November 2021, p.59 lines 22–23). It is difficult to see where that improvement was taken into account by Dr C.
It is worthy of note that one of the recommendations of Dr C was that the child be neurologically examined so as to rule out that being a cause of difficulties. This was consistent with the opinion of Ms R, it seems who had, on one occasion observed the child to “fade and stare blankly”, have slow movements and difficulty in singing words (Transcript 9 November 2021, p.68 lines 24–28). This was accepted by the primary judge at [303] where his Honour said:
303.… The anomalous presentation was identified as a reason why some neurological issue might underpin her presentation and Dr C identified that this may be ruled out by testing.
The child was not examined to rule out the possibility of a neurological issue being a source of the regressive behaviour.
The primary judge referred to the Child Youth Mental Health Service documents and those from Ms U and Region BB Health at [171]–[183]. The observations and opinions of Ms U and Ms R in particular were not thereafter referred to by his Honour. Seemingly, they were dismissed by his Honour for the following reasons:
181.…Equally, the record omits any reference to Dr C’s observation that the attachment between the child and the [mother] was considered to be disturbed and dysfunctional. Nor was there reference to the child’s diagnosis of apparent Separation Anxiety. Given the earlier involvement of these persons from May 2021 with Dr C, this is notable.
It is difficult to reconcile that finding with his Honour’s earlier finding that “an available inference is that his observations of a disturbed and dysfunctional attachment had been raised with them and that those caseworkers disagreed with those observations” (at [163]).
His Honour added:
183.My consideration of the matters above was undertaken in the context that neither party called either Ms U or Ms R to give evidence and each of them was explicitly content for the court to examine the subpoenaed records upon which each of them placed reliance.
It is difficult to understand what his Honour meant by the above passage in which he seems to discount the weight that is to be accorded to the evidence of those persons when neither party sought to challenge it.
The Region BB Health material was of great significance because it was a consistent body of evidence provided after observing the mother and the child over a considerable period of time. Given it was entirely unchallenged, it is difficult to see why it was not taken into account and accorded significant weight. It did not need to be accepted of course, because there was evidence to the contrary, but it is difficult to see where it was accorded any weight whatsoever. The reasons for dismissing it, as I have just explained, are not at all cogent or persuasive.
Was the child not thriving in the care of the mother?
The primary judge found:
436.…As Dr C observed, [the child] does not appear to be thriving at the moment and certainly something does need to change.
In making that finding, his Honour clearly relied on the following comments made by Dr C in his Family Report:
38.[The child] is not thriving in the sole care of her mother, as has been observed by various independent third parties, such as Child Protective Services.
…
39.To reiterate, I do not believe that [the child] is thriving in the care of her mother, and I am unconvinced that the aetiology of these problems lies solely with her visiting once or twice a week with her father.
(Family Report dated 28 October 2021, paragraph 39)
As well as his comment:
[DR C]: As I’ve alluded to in my report, this child does not appear to be thriving at the moment and certainly something needs to change.
(Transcript 9 November 2021, p.59 lines 35–37)
It is difficult to see how Dr C could make an observation as to the child’s condition at the time of the hearing given that he had not seen her since May 2021, nor had he read the mother’s evidence, or the Region BB Health records. However, again no objection was taken to this opinion. Dr C does not identify, other than by reference to Child Protection Services, even generally, the facts that he relied on to form that opinion.
The Department of Families, Fairness and Housing (effectively what Dr C described as Child Protection Services) prepared a report under s 69ZW of the Family Law Act 1975 (Cth). In that report, the following appears:
During Child Protection involvement, [the child] has been sighted multiple times and no concerns were raised regarding her care. Follow up occurred with the Enhanced Maternal Child Health Nurse (EMCHN) who identified a healthy attachment between [the mother] and [the child] and raised no other concerns. Other professionals, including the facilitator at the support playgroup confirmed having observed a regression in [the child] at 19 months of age. Child Protection also contacted Child & Youth Mental Health Services (CYMHS) wherein it was reported that [the child] appeared to have severe anxiety. Child Protection were advised that this was something they would continue to unpack with [the mother] and would include [the father] in relation to therapeutic services.
…
Child Protection assessed both [the father] and [the mother] as responsible for harm in not protecting [the child] from Emotional or Psychological Harm. Child Protection closed their involvement following a period of Protective Intervention with limited evidence to warrant ongoing Child Protection involvement and with relevant professionals working with the family to address [the child’s] anxiety.
…
Through the various Child Protection assessments, parental acrimony, and its demonstrated impact on [the child’s] emotional and psychological wellbeing, has been identified as a primary concern.
(Department of Families, Fairness and Housing Report dated 27 August 2021, p.5)
It is therefore difficult to see the basis for Dr C’s statement that the child was not thriving in the care of the mother at the moment, as noted by the Department and various independent third parties (Family Report dated 28 October 2021, paragraph 38). Quite simply, such a thing was not noted by the Department and no other note was brought to my attention. The “various independent third parties” were never identified. Similarly, there was no basis for the finding made by his Honour.
Was the child properly socialised?
The primary judge found:
434.…there is a deal of evidence the child has not been well socialised including because she has spent so significant an amount of her time exclusively with her mother or maternal grandmother. I accept there has been some change on this score.
One would have thought that the issue of whether or not the child had been spending time in groups and activities away from the mother had been put to rest by what occurred on 19 August 2021, which I have set out in some detail. That was not so. In his Family Report, to repeat, Dr C said:
38.…At my most basic level, it is clear that [the mother] has not fostered circumstances in which it will be easy for [the child] to spend significant and substantial time with her other parent, notably because the child has not been well socialised over the course of her life, and continues to spend the totality of the time exclusively in the care of her mother (including practices such as breastfeeding, co-sleeping etc.)
(Family Report dated 28 October 2021, paragraph 38)
Earlier in the Family Report, Dr C said:
Although [the mother] has more recently advised that she has attempted to socialise [the child] to a greater degree (which, I would posit requires scrutiny), for much of this child’s life, she has spent time almost exclusively with her mother or the maternal grandmother. She does not attend childcare.
(Family Report dated 28 October 2021, paragraph 33)
Here, significantly, Dr C links the lack of socialisation with the failure of the mother to foster circumstances which would make it easy for the child to spend time with the father. Dr C added:
39.Indeed, although it would be a significantly disruptive step, there is at least some clinical argument that a change of residence would result in a more settled, well-adjusted, well socialised, and emotionally happier child.
(Family Report dated 28 October 2021, paragraph 39)
In the course of his oral evidence, the following exchange took place:
HIS HONOUR: …When we were before the court in August and you gave evidence, yes, on your feet in the witness box that day, you referred to concerns that Stephanie was not being socialised properly, that she, yes, wasn’t going to playgroup and there was a – that there was a deficit in her socialisation, in the broad. Do you remember giving that evidence to that effect?
[DR C]: I do, yes.
[COUNSEL FOR THE MOTHER]: But the interaction with the [Region BB Health] that was triggered on 13 May, I’m just going to scroll up – well, I just lost – there’s a paragraph where I just put the cursor. “[The child] was referred to the state of this child seen on 13 May.” Can you see that paragraph?
[DR C]: I’ve lost your screen, [counsel]. I can’t see it.
[COUNSEL FOR THE MOTHER]: Okay. The reason why you can’t – is that better now?
[DR C]: That’s fine. Yes.
[COUNSEL FOR THE MOTHER]: Okay. So for everyone else in the courtroom, this is page 76 of the [Region BB Health] bundle, 84 of the electronic package. And then there’s a paragraph towards the top of the page there, [Dr C]. “[The child] was referred to the specialist child team on 13 May 2021 by [Ms U].” Next sentence, “[The child] was referred because of concerns about changes in her presentation at playgroup.” So would you accept from that that [the child] was going to the playgroup?
[DR C]: I’m sure she went to playgroup if that’s the evidence that’s before the court, I’m sure that’s right, yes.
(Transcript 9 November 2021, p.65 line 40 to p.66 line 20)
The acceptance that the child had been to playgroup undermined the assumption made in the Family Report that there was no such activity, yet the opinion based on that incorrect assumption was not revisited by Dr C. Unfortunately, counsel for the mother did not ask him to do so.
As an opinion of an expert must be based upon facts or assumptions that are established by the evidence and as Dr C seems to have been mistaken as to the evidence, his opinion that the child was not well socialised was based on an incorrect premise. It was not admissible and even if admitted carried no weight. The finding made by the primary judge that the child was not well socialised because she only spent time with the mother appears not to have been available on the evidence.
Was the mother seeking out professionals who supported her own view of the case?
The primary judge found:
397.In the course of the expert conclave, cogent evidence was adduced from each expert which drew attention to the [mother’s] propensity to seek out professional assistance that would be corroborative of her own views and her aversion to consulting others whom she considered held views inimical to her interests. The experts drew attention to the degree to which the [mother] had engaged with Region BB Health and others. By contrast, the [mother] appears to have engaged with Mr B only reluctantly and to have refused to do so with Dr C.
…
434.…I am also persuaded she will continue to seek out the opinions of those whom she believes may be persuaded to support her views in relation to the underlying source of the child’s difficulties at any time including those of health and allied services, Victoria Police and the Department.
As a result of his observations in May 2021, Dr C recommended that the mother see a bonding and attachment consultant. At the time of the hearing, the mother had not done so. The mother’s evidence was to the effect that she had made many attempts to locate one, but had not been able to do so.
The primary judge referred to this in the following terms:
47.One matter raised by Dr C was the desirability of the mother and child consulting a bonding and attachment specialist. While the mother immediately reported this recommendation to the Maternal Health Service she did not obtain an appointment of this kind. While some difficulty of obtaining such appointments may be accepted, upon her evidence in cross examination it is clear the [mother] had and has no intention of seeking assistance of this type. By the time of trial, it was the collective view of Mr B and Dr C that the [mother’s] personality profile formed part of the explanation for her resistance to do so. Relatedly, an available inference is that the [mother] was also resistant (to a greater or lesser extent) to consulting with each of Mr B and Dr C. While the [mother] eventually consulted Mr B, following the observations made by Dr C on 18 May 2021, she would adopt the twofold stance that she would not attend a further appointment scheduled by Dr C and purportedly withheld her agreement for the consultation to proceed without her.
…
302.As to the proposal for assistance with bonding, Dr C identified a tendency for persons to often gravitate towards professionals who expressed views that aligned with their own and in that respect did not consider the mother’s conduct to be entirely unsurprising, adding:
She has – when I have had involvement with [the mother], she has fundamentally expressed for the ..... of me that the child is being deleteriously impacted by spending time with the dad, and she reports the child is being returned dishevelled and unkempt, with bumps and scratches and nappy rash, biting her lip, and all sorts of ..... which she attributes to her spending time with her father, and so it’s entirely unsurprising that she will seek input from professional people who express a view that’s similar to that and gravitate away from people who express a contrary view (P.11)
Mr B generally assented in the view that people gravitated toward supportive experts and conversely, in the case of persons with resistant traits, would resist consulting with those whom they perceived would hold a view which may be inimical to their own.
(As per the original)
The following exchange then occurred:
HIS HONOUR: - - - do you see – are you able to express any view whether the decision or, if you like, a decision not to engage with a bonding attachment consultant would be reflective of a view that you didn’t want to obtain that type of treatment?
[DR C]: Look, I think that’s right. That’s – in fairness, that’s a subspecialty within a subspecialty and people who offer that sort of service are pretty rare on the ground, and I understand that there were challenges and I – our offices were approached innumerable times saying can you offer a further recommendation about ..... so I do think that there were some practical signs there also.
(Transcript 9 November 2021, p.57 lines 19–28)
Given that last part of evidence, and the mother’s unchallenged evidence that she had tried to contact all of the people identified to her by Dr C, but without success, it is difficult to see any basis for a finding that the mother had not gone to a bonding consultant because she did not want to, or, because that consultant might come to a view she did not like. Observations made by the two witnesses as to what people might generally do cannot overcome that evidence.
As to “health and allied services … and the Department” (at [434]), as can be seen from the material already discussed, the mother consulted them before Dr C made any recommendations. In particular, the health services were already providing the mother and the child with treatment. There is no evidence whatsoever to suggest that she was going to them because they were providing a different opinion to Dr C.
Finally, as to “Victoria Police” (at [434]), it is undoubtedly the fact that the police were involved by both parties. There is also no doubt that there were family violence intervention orders (“FIVO”) in place against the father in favour of the mother. He consented to at least one of them. I do not see how seeking a FIVO from the police for protection is a case of seeking out a professional that the mother can persuade to her point of view. Surely, the police are acting properly on the material they have before them, as they consider to be appropriate.
There was a delay in the mother seeing Mr B but the primary judge made no findings on the mother’s claims that she had faced difficulty in obtaining an appointment him and that Mr B had himself cancelled an appointment that was made.
Again, the foundation for Dr C’s opinion has no basis. I consider this finding is not available on the evidence.
The ‘validation’ by Mr H
The evidence discloses that during the attendance on 18 May 2021, Dr C asked one of his colleagues, Mr H, to observe what was occurring. The mother agrees that Mr H was present for approximately 5 minutes and saw the child exhibiting clearly regressive behaviour.
Mr H’s presence at the time was not an issue in the proceedings.
At [378], his Honour recorded evidence given at the August 2021 hearing, that Dr C asked Mr H to “come in and validate what [he] was seeing”. Thus, the purpose of Dr C inviting Mr H into the room was to validate the observation.
Mr H did not give evidence. Thus, whilst we know from the evidence of the mother what he saw, we do not know what his interpretation of that observation was.
That however did not stop the primary judge from making the following finding:
394.The independent expert evidence of Dr C (which I accept was validated by his colleague Dr H), is of some real significance in this case as informing the [mother’s] capacity to provide for the child’s needs, including her emotional needs.
The independent evidence of Dr C was not validated by Mr H (who is not a doctor, as the primary judge misdescribed him), it was only the observation of the behaviour. We do not know what Mr H thought of Dr C’s conclusions or opinions.
His Honour referred to this “validation” 11 times in the reasons and clearly it carried significant weight. This finding of course, reinforced the later finding as to the nature of the relationship of the child and the mother and the mother’s culpability for it.
Again, there is no basis for Dr C opining that Mr H had validated his opinion.
In her oral submissions, senior counsel for the mother raised a number of, what she asserted to be, inaccuracies in his Honour’s reasons. I do not propose to deal with them. If the matters discussed already are insufficient to establish appealable error, these additional matters, even if established, would not suffice to carry the day, either alone or in conjunction with the above matters.
Are the errors raised by the Amended Notice of Appeal?
Ground 1 states:
1.The findings that the child had a disturbed and dysfunctional attachment and/or relationship with her mother and was not thriving were not open as a matter of fact and/or omitted consideration of other possible explanations for the behaviour relied upon.
Ground 6 (c) states:
6. That the learned Trial Judge erred and His Honour’s discretion miscarried by:
c. Failing to take into account or did not place proper weight to numerous material considerations, such as the evidence produced under subpoena supporting that there were no concerns as to the relationship between the mother and child; …
These grounds sufficiently encompass the above errors. I accept that many of those points were not well expressed in the mother’s Summary of Argument filed on 4 February 2022, but counsel for the father said he was in a position to meet them.
The conduct of the hearing
Counsel for the father made the primary point that the hearing was not run in a way that raised the issues now raised by the mother. He said:
[COUNSELF FOR THE FATHER]: …One thing I of course point out to your Honour is that what we are about to go through, or what my learned friend spent this morning going through, none of this was argued before the trial judge. And as was perhaps more obliquely than I wanted to be, the point I sought to make when I pointed out how this case was closed by the mother’s counsel was that it wasn’t – in fact, more than it wasn’t just that [Dr C’s] evidence wasn’t in any way challenged whether in – or in any meaningful way challenged, I should say – whether in cross-examination or during the closing address. More particularly, it was relied upon in parts.
And, in my submission, what we see today is the mother coming and saying, “Well, look, here are all these things that the trial judge didn’t consider”, but he was never asked to. He was never asked to find the – you know, to draw a comparison between what was in the mental health records, for example, and [Dr C’s] report. He was never asked to consider whether or not the child was not thriving. And, in fact – and I will take you to this point in just a moment. In my submission, it would be on some levels common ground that the child wasn’t thriving. The blame to that might be a different matter. But all these points that my learned – [Mr H], no objection was ever taken to. So I will take your Honour to all those now. But what, in my submission, is occurring on appeal is a recasting of the mother’s case in a way that it was never put before the learned trial judge.
(Transcript 9 March 2022, p.52 lines 13–32)
This is correct. Apart from the objection made in August 2021, no objection was taken to any part of Dr C’s evidence. The issues discussed above were not raised.
This is the issue of real difficulty in this appeal.
In Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, the High Court said at 438:
The circumstances in which an appellate court will entertain a point not raised in the court below are well established. Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards. …
…
The present is not a case in which we are able to say that we have before us all the facts bearing on this belated defence as completely as would have been the case had it been raised in the court below.
In Metwally v University of Wollongong (1985) 60 ALR 68 the High Court said at 71:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
This principle was stated again in less absolute terms in Water Board v Moustakas (1988) 180 CLR 491 at 497, where it was said:
Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied.
See also Coulton v Holcombe (1986) 162 CLR 1 and Banque Commerciale S.A., En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 284.
However, the mere fact that the facts have been established beyond all controversy does not mean that the mother is free to raise any new point she wishes. The appellate court must still be satisfied that it is expedient and in the interests of justice to permit that course. See the discussion by Kourakis CJ in Skorpos & Anor v United Petroleum Pty Ltd [2013] SASCFC 117 at [26]–[34]. His Honour concluded:
34.Plainly enough there are both semantic and substantive difficulties in the proposition that a judgment is attended by error if the issue which it is contended was wrongly adjudicated was never submitted to the court. Nonetheless, the interests of justice may on occasion demand a reversal of the decision. It is not possible to be prescriptive about the conditions and considerations which will bring about that result. In ascertaining where the interests of justice lie it should be recognised that there are competing considerations. On the one hand it is in the interests of justice that the orders of courts reflect the correct application of the law to the facts as found. On the other hand, the public interest in the finality of litigation demands that parties be bound by the conduct of their case at trial. To say that a judgment will be set aside on a point not taken at trial only in exceptional circumstances should be understood as an observation about what will commonly be the result of the evaluation of those competing principles and not as a presumptive rule.
I respectfully agree.
It must be recalled that the hearing took an unusual course. It is clear that the primary judge took into account what occurred on 19 August 2021. At that time, a proper objection was made to aspects of Dr C’s evidence which was rejected. The objection could and should have been repeated at the hearing but was not.
Remarkably, however, the misapprehension of Dr C as to the activities, although completely dispelled, as is noted in passing by Dr C and his Honour, seemed nonetheless, to continue to support the opinion of Dr C and the findings of the primary judge. That was so despite the opinion being not being based on established facts but on misapprehension. What was lost sight of was the need to accept that even a single expert’s opinion must have a solid basis. If an opinion is posited on the basis of facts which are not proven or worse, shown to be wrong, the opinion is based on a flawed premise and can carry no weight.
I consider this to have occurred, notwithstanding that the false premise was identified at the outset in August.
It was not suggested therefore that this was a case where had the point been raised before the primary judge, the course of the trial would have been different and evidence called to meet the point. First, at least the initial point was taken as discussed, even if the exact submissions made on appeal were not put before the primary judge. Secondly, there was no contest as to the child attending activities outside the home. The mother said so (in August 2021 and in her trial affidavit filed on 20 October 2021) and her evidence was confirmed in part by external documents. Simply, there was no issue as to this. As to Dr C’s comment that the child was not thriving in the care of the mother and was confirmed by the Department and other independent third parties, those documents were in evidence and did not do so. Their view was that the child was anxious because of the toxic relationship between the parties.
It is possible that if the submissions as to the “validation” by Mr H had been made at trial, evidence could have been called from him. However, if that submission is rejected on this basis, the others still stand.
In Warren v Coombes [1979] 142 CLR 531 the majority of the High Court said at 552:
Again with the greatest respect, we can see no justification for holding that an appellate court, which, after having carefully considered the judgment of the trial judge, has decided that he was wrong in drawing inferences from established facts, should nevertheless uphold his erroneous decision. To perpetuate error which has been demonstrated would seem to us a complete denial of the purpose of the appellate process. The duty of the appellate court is to decide the case – the facts as well as the law – for itself.
It is not a question of merely coming to a different view of the facts. Error must be established, as it has been here. The difficulty that arises is the manner in which the hearing was conducted as opposed to the appeal.
I am conscious of the weight of authority, to which I have referred.
Here, the case concerned what parenting orders were in a very young child’s best interests. The orders made had the very significant effect, described as “destabilising” by Dr C, by moving the child from her primary carer when neither parent was found to pose a risk of harm to the child (at [379]).
The errors made were of a particular kind as described and one of the most significant was identified and raised at the August 2021 hearing. Taking all these matters into account, I am satisfied that this is an exceptional case where there was error, where no evidence could have been called had the points been raised, or re-raised, and where the subject matter of the proceedings carries its own unique and significant weight.
The other major submission put by the father that there were findings made by the primary judge other than those specifically referred to above which amply justified the making of the orders and, therefore, notwithstanding error in some of them, the appeal should be dismissed. Examples of such findings are:
(1)There is a complete breakdown of trust between the parties (at [428]);
(2)The father has good insight into the impact of parental responsibility on the child (at [434]);
(3)The mother is more likely to pursue a desire to obscure, sabotage and undermine any relationship between the child and the father (at [434]);
(4)The child has not been well socialised in the care of the mother (at [434]); and
(5)The father is better placed to support the child to have a relationship with both parents (at [437]).
The fourth point is affected by the difficulties raised in the appeal.
There is force in the submission that the remaining matters could well justify the order that was made but, ultimately, it cannot be accepted.
If an error of law or misdirection “is of such a nature that it could not reasonably be supposed to have influenced the result a new trial need not be ordered” (Stokes v The Queen (1960) 105 CLR 279 at 284–285; see also Conway v The Queen (2002) 209 CLR 203; Winship & Wrays (2019) FLC 93-928 and Franklyn & Franklyn [2019] FamCAFC 256).
Here the impugned findings clearly influenced the result and were material to the outcome, as explained above.
The orders will be set aside and the matter remitted for rehearing. The question then becomes what orders should be in place until the proceedings return to Division 2.
If the orders are set aside, then the consent orders made on 19 October 2020, as amended on 15 March 2021 and 20 August 2021, would revive. Pursuant to those orders, the child would live with the mother and spend time with the father from 9.00 am on Tuesday until 1.00 pm on Wednesday each week and from 9.00 am to 4.00 pm each Friday. That was the arrangement which was in place at the time of the hearing and had seemed to have improved matters somewhat.
I bear in mind that save for the last four months, the mother has been the primary carer for this child and that the basis for the child to move to the residence of the father was attended with significant flaws. The primary judge specifically found that the child was not at a risk of harm in either party’s care.
I also bear in mind that when Dr C saw the regressive behaviour in May his response at that time was to recommend that the mother see a bonding specialist. In August, again based on that observation in May, he recommended that overnight time with the father commence. The suggestion that a change in residence might be considered was only made in the subsequent Family Report, which, as discussed, was attended with some difficulties. It follows that Dr C did not consider the behaviour observed in May was, of itself, a compelling reason for an immediate change in residence.
The improvement in the child’s behaviour whilst still in the primary care of the mother is to be accorded some weight.
The child is currently in the primary care of the father. It would be undesirable for the child to be returned to the mother with that order to be reversed at the final hearing, because it is likely to be traumatising for a child to have her primary carer changed so often. This is a consideration which deserves considerable weight.
I have no evidence as to what has occurred since the hearing.
I do not know when a rehearing may take place.
Doing the best I can on the material available and taking the above matters into account, I consider that the best interests of the child will be met by returning the child to the mother. The orders will be set aside so that the earlier orders, as discussed, come back into operation.
Obviously, the rehearing should be conducted with all the urgency that can be mustered.
In the circumstances, there will be costs certificates for the parties under the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and the rehearing.
I certify that the preceding one hundred and thirty-one (131) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 8 April 2022
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