Tindall & Saldo - [2016] FamCAFC 146

FAMILY COURT OF AUSTRALIA

TINDALL & SALDO

[2016] FamCAFC 146

FAMILY LAW – APPEAL – CHILDREN – PRACTICE AND PROCEDURE – Where final parenting orders were made in 2012 providing that there was no face to face contact between the child and the father – Where the father sought a variation of those orders through a Rice and Asplund (1979) FLC 90-725 argument – Where the trial judge indicated she would conduct a threshold hearing separate to a final hearing – Where the trial judge subsequently determined the threshold matter and final hearing together – Where the mother had only filed an affidavit relating to the threshold issues – Where the mother was not given leave to rely on the entirety of an affidavit from the 2012 proceedings – Where the trial judge failed to afford the mother procedural fairness in not permitting her to put relevant evidence before the court – Appealable error demonstrated.

FAMILY LAW – APPEAL – CHILDREN – Whether the trial judge properly considered the principles in Rice and Asplund (1979) FLC 90-725 – Where the trial judge failed to consider any change in circumstance against the rationale that the identified change must justify a reconsideration of the issues – Appealable error demonstrated.

FAMILY LAW – APPEAL – CHILDREN – Where it was contended that the trial judge erred in the weight she attributed to various s 60CC factors of the Family Law Act 1975 (Cth) – Where the father had pleaded guilty and been convicted on charges of violence against the mother – Where the trial judge found she could not come to a definite conclusion about an assault involving the child – Where such a conclusion was unsupported by the evidence and was not open to the trial judge – Where the trial judge failed to give sufficient weight to the evidence of family violence in her consideration of s 60CC(2)(b) of the Family Law Act 1975 (Cth) – Where the child expressed a desire to see the father – Where the trial judge elevated the child’s views over the primary consideration of protecting the child from harm – Where the mother indicated concerns about the child’s safety and the father finding out where she lived if the child were to have contact with him – Where the trial judge gave insufficient weight to the mother’s fears without proper consideration of the evidence of violence – Appealable error demonstrated.

FAMILY LAW – APPEAL – COSTS – COSTS CERTIFICATES – Where neither party sought costs orders but both parties sought a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) should the appeal be allowed – Where the appeal was allowed on an error of law – Orders for costs certificates made.

Family Law Act 1975 (Cth) s 60CC(2)(a), 60CC(2)(b)
Federal Proceedings (Costs) Act 1981 (Cth)

Hunter v Chief Constable of West Midlands Police [1982] AC 529
International Finance Trust Company Limited v New South Wales Crime Commission (2009) 240 CLR 319

Marsden v Winch (2009) 42 Fam LR 1
McEnearney and McEnearney (1980) FLC 90-866
Miller & Harrington (2008) FLC 93-383
Rice and Asplund (1979) FLC 90-725
Rogers v The Queen (1994) 181 CLR 251
Saldo & Tindall [2014] FamCA 1036
Saldo & Tindall(No. 2) [2014] FamCA 1061
SPS and PLS (2008) FLC 93-363

APPELLANT:

Ms Tindall

RESPONDENT:

Mr Saldo

FILE NUMBER:

NCC

3176

2008

APPEAL NUMBER:

2016

SECOND APPEAL NUMBER:

2016

DATE DELIVERED:

10 August 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Aldridge & Kent JJ

HEARING DATE:

24 June 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATES:

27 January 2016
4 March 2016

LOWER COURT MNC:

[2016] FamCA 22
[2016] FamCA 134

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Kelly

SOLICITOR FOR THE APPELLANT:

Derham Houston Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Boyd

SOLICITOR FOR THE RESPONDENT:

Fielden & Associates –Family & Relationship Lawyers

Orders

The appeal against the orders of Cleary J made on 27 January 2016 is allowed and her Honour’s orders are set aside.
The matter be remitted for hearing by a judge in the Family Court of Australia other than Cleary J.
The appeal against the refusal of Cleary J to stay the operation of the orders of 27 January 2016 is dismissed.
There is no order as to costs as between the parties.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of 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 mother in respect of the costs incurred by the appellant mother in relation to the appeal.
The Court grants to the respondent father a costs certificate pursuant to the provisions of 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 father in respect of the costs incurred by the respondent father in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act1981 (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 of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tindall & Saldo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Numbers: EA 26 of 2016; EA 32 of 2016
File Number: NCC 3176 of 2008

Ms Tindall

Appellant

and

Mr Saldo

Respondent

REASONS FOR JUDGMENT

Ms Tindall (“the mother”) by Amended Notice of Appeal EA 26 of 2016 filed on 10 June 2016 appeals against parenting orders made by Cleary J on

27 January 2016 in respect of T, the only child of the mother and Mr Saldo (“the father”). The child T was born in April 2006. The mother also appealed against her Honour’s refusal to stay the operation of those orders, however that appeal was not pressed given that the principal appeal was listed before the Full Court for hearing.
The child has neither seen the father nor had personal contact with him other than the provision of cards and presents, since late July 2010.
The procedural history of the matter is lengthy and the relationship between the parties complex. It is necessary to give context to the issues agitated on the appeal to give some details of both.
The parties met and commenced a relationship in 1998. They separated in late 2008. The relationship was marred by significant physical and other forms of family violence perpetrated by the father against the mother. Such was the level of violence that in November 2009 the father was charged with serious criminal offences arising from his physical assaults against the mother. The father stood trial on those charges but changed his plea to guilty during the trial as a result of an agreement with the Crown. The father was convicted of the offence of assault occasioning actual bodily harm and two counts of kidnapping (one of them aggravated). He was sentenced to imprisonment of five years with a non‑parole period of two and a half years. He commenced that sentence on 19 July 2011 and was released to parole on 18 January 2014.
The separation of the parties marked the commencement of what seems to have been almost continuous litigation between them in relation to the child. Very shortly after separation the father refused to return the child to the mother and, on hearing an application for recovery of the child, the Court in December 2008 ordered the father to return the child and made interim orders that the child live with the mother and not spend time with the father pending the matter returning to the Court on 17 December 2008.
No final hearing eventuated and, in January 2009, the parties agreed on some interim parenting orders which provided for the child to live with the mother and spend regular time with the father to be supervised by the paternal grandmother. This accord did not hold and in September 2009 the mother alleged that the father had sexually abused the child. At this point an Independent Children's Lawyer was appointed and the Department of Family and Community Services intervened in the proceedings.
In November 2009 the parties again reached agreement that the child spend time with the father, the time to be supervised by a professional supervisor. The parties subsequently agreed that the paternal grandmother be the supervisor.
After the father was charged with the criminal offences, the mother sought and in May 2010 obtained an order which discharged the extant orders which provided for the child to spend supervised time with the father.
While the father was in prison, in July 2012, the trial judge heard final parenting proceedings between the parties and on 6 September 2012 ordered that the mother have sole parental responsibility for the child, that the child live with her and that there be no face to face time between the child and the father of any sort, although he was at liberty to send her gifts accompanied by a letter three times a year.
Her Honour’s findings and decisions consequent on that hearing are relevant to the issues agitated on appeal, not least because the parenting orders made on 27 January 2016 are expressed to be “further to the Orders of 6 September 2012.”

The reasons for decision of 6 September 2012

The issues for her Honour’s determination were identified by her as being whether there should be any and, if so, what communication between the child and the father. The father’s position, supported by the Independent Children’s Lawyer and the single expert, Dr R, was that he send the child letters and gifts. The mother contended that there should be no contact between the child and the father of any kind under any circumstances (at [4] to [8]).
At the hearing, as well as the affidavits filed by and on behalf of the parties, her Honour had before her the evidence of Dr N, a psychiatrist consulted by the mother (albeit that her Honour did not accept that Dr N had been a treating practitioner for the mother), and three reports from Dr R. Both of those experts provided affidavits and gave oral evidence at the trial.
The father’s conviction and the issue of family violence were prominent in her Honour’s reasons. She noted the facts and circumstances of the father’s plea of guilty. In particular her Honour noted that the father had signed a statement of Agreed Facts on which he was to be sentenced and that, although not the subject of a conviction, two further assaults of the mother had been taken into account on sentence.
Her Honour further noted at [18] and [19] that the father denied the criminal offending and contended that the mother lied about the assaults and manipulated him, third parties and professionals to bring about his conviction.
Her Honour said:
23. The possibility exists that the father did not assault the mother and did plead guilty to the charges out of pragmatism rather than acknowledgement of guilt.
Nonetheless, her Honour said at [24] that she refused the father leave to depart from the agreed facts and would not take that identified possibility into account in determining the issues before her.
Turning to the reports of Dr R, her Honour said that he prepared three reports for the hearing. She noted that in his first report of 20 January 2010, prepared before the father was charged with the criminal offences, Dr R considered that the mother’s allegations were spurious and he said that, “if the parents were unable to support the relationships of the mother with the child; the father should have the care of the child” (at [71]).
Her Honour said of Dr R’s third report of 18 August 2011, which was written after the father had been sentenced to imprisonment and after Dr R had received the statement of Agreed Facts which formed the basis of the father’s sentence on his plea of guilty:
74. The third report was one month after the sentencing of the father in 2011. Dr [R] had been provided with the agreed facts on which the father has been sentenced. The doctor resiled from his previous position:
I now believe that I was at fault in my previous report for not recognising the degree of violence and threat that had been perpetrated by the father against the mother and the child. Therefore I would like to apologise to the Court and to the mother for under-estimating the degree of violence perpetrated against her and what the father was capable of perpetrating.
The doctor went on to revise his assessment of the mental state of the mother:
The violent events that occurred could well have induced some anxiety and possible post-traumatic stress symptoms in the mother.
(Footnotes omitted)
Her Honour continued and said:
76. The doctor also revised his assessment of the father, “to be capable of such violence does cause concerns about personality which at least has anti social traits.” Unacceptable risk to the child when there was conflict between the parents was identified.
(Footnotes omitted)
Dr R, who had observed the child with the father, recommended “recognition contact” between the child and the father (at [77]).
Her Honour concluded:
104. I have found that it is in the child’s best interest to have sufficient written communication with her father to confirm that he is present in the world and most importantly thinking about the child in a loving and affectionate way. In that way the child can be reassured that nothing she has said or done has caused her father to lose interest in her and that one day she may be able to see him again.
Thus her Honour ordered that the father could communicate with the child by the sending of gifts and cards three times a year.
While not without difficulties, we understand that these orders were given effect.

Father’s application for further parenting orders

The father was released on parole on 18 January 2014 and on 4 April 2014 filed an application seeking a significant variation of the parenting orders made by her Honour in September 2012. In that application, the father sought interim orders for supervised time with the child at a contact centre, and on a final basis that the child progress to spending each alternate weekend with him from 8.00 am Saturday until 5.00 pm Sunday together with weekly telephone calls.
The further conduct of the proceedings before her Honour was delayed by matters unrelated to the family law proceedings and the hearing of the matter took place on 26 and 27 November 2015. Her Honour delivered reasons and made orders on 27 January 2016.
Her Honour ordered that for a period of six months commencing March 2016 the child was to spend time with the father for two hours each month supervised at a contact centre. Her Honour’s orders provided that for the next six months the child’s time with the father increase to the maximum period available at the contact centre but not less than two hours on one day of each alternate weekend, again supervised at a contact centre. The orders provided that thereafter, the child spend time with the father between 9.00 am and 5.00 pm each alternate Sunday. This time is also to be supervised but is not confined to being at a contact centre, and the father may bring other family members with him for the purposes of the visits.
It is against these orders that the mother appeals.

The appeal

The Notice of Appeal originally filed by the mother contained some 65 grounds of challenge to her Honour’s orders. On 10 June 2016 an Amended Notice of Appeal was filed and, at the same time, an amended Summary of Argument was sought to be filed. The mother was given leave to file this at the outset of the appeal. The Amended Notice of Appeal contained only 13 grounds of challenge. The Summary of Argument was somewhat confusing as it referred to the 13 grounds in the Amended Notice of Appeal and also to the earlier Notice of Appeal and its 65 grounds.
During the appeal hearing it was agreed that the appeal would be conducted by reference to the grounds raised in the Amended Notice of Appeal, and the Summary of Argument directed to those grounds. It was further agreed that reference to the grounds in the earlier Notice of Appeal could be regarded as particulars of the argued grounds if necessary. In the result it was unnecessary to go beyond the amended grounds and the amended summary.
Counsel for the mother argued the appeal grounds under broad headings and it is convenient if we adopt the same course.

Denial of procedural fairness

The mother contended that by reason of the way in which her Honour conducted the hearing in November 2015, she was not afforded procedural fairness. Principally, the complaint concerned her Honour’s approach to the determination of whether there should be a re-consideration of the parenting orders made in 2012.
To aid understanding of this ground, it is necessary to set out in some detail the process by which her Honour came to her decision to reopen the parenting issues.

Hearing of 7 November 2014: Saldo & Tindall [2014] FamCA 1036

On 7 November 2014, in response to the father’s application for parenting orders filed in April 2014, her Honour conducted a hearing to determine whether there had been a sufficient change in circumstances to warrant a

re-consideration of the parenting orders made by her in September 2012.
In her reasons for decision delivered on 11 November 2014 her Honour set out the relevant principles by reference to the well-known authorities of Marsden
v Winch (2009) 42 Fam LR 1 and Rice and Asplund (1979) FLC 90-725. Her Honour said:
13. As has been the case since the decision in Rice & Asplund in 1979, a decision must be made on the facts of each particular case. The relevant considerations are:
(1) The past circumstances, including the reasons for the      decision and the evidence upon which it was based;
(2)      Whether there is a likelihood of orders being varied in a           significant way as a result of a new hearing, and if there is      such likelihood; and
(3)      The nature of the likely changes which must be weighed against the potential detriment to the child caused by the          litigation, noting that small changes to orders may not have sufficient benefit to compensate for the disruption of     litigation.
(Footnotes omitted)
Her Honour recognised that the orders sought by the father represented a “huge change” to the then existing arrangements (at [35]). She continued, after referring to the father’s assertion that, despite his plea of guilty, he was innocent of the charges and said:
39. …There is a risk of psychological harm to the child if time and/or communication commenced that one or both of the parents could attempt to persuade the child of the rightness of their own position and the wrongness of the position of the other parent. The unleashing of pent up emotions could cause terrible harm to this child.…
The trial judge observed that her difficulty was that she did not know whether the child enjoyed the communication ordered in 2012 or if she had a memory of the father.
She concluded at [43] that the child should be afforded the opportunity to be spoken to about the prospect of communication with the father before coming to a conclusion about revisiting the orders and said:
43. … I do so with the third consideration of Marsden [v] Winch in mind. That is, that rather than simply dismissing the application or allowing it with the inevitable full family report and affidavits, that the less intrusive option is for the child only to be seen by a person qualified to elicit her views. In the event that no changes or small changes are contemplated, the disruption is minimised.
(Emphasis added)

The mother opposed the canvassing of the child’s views. The father supported her Honour’s suggested orders.
In reasons for ordering the report on the child’s views, delivered on 19 November 2014 (Saldo & Tindall (No. 2) [2014] FamCA 1061), her Honour said, referring to the intention in seeking those views:
13. …To do this is to avoid the possibility of reopening with the obvious and immediate need for a full family report or simply, taking the case on its highest, and dismissing the application. That is very much what the mother submits; the dismissal of the application and the orders to continue, preferably until the child is 18. But I am left in a position of not knowing the independent views of a child at an age when she is likely able to articulate them.
14. It seems to me to be the least disruptive course for the child to have a conversation with the Senior Family Consultant, which will lead to a report, after which either party may vary their application. The possibility exists, and I accept this submission on behalf of the father, that he may withdraw his application or vary it.
(Emphasis added)
It can be seen from her Honour’s statements at [43] in her reasons of 11 November 2014 and [13] in her reasons of 19 November 2014 that her Honour identified it as “inevitable” and as an “obvious and immediate need” respectively that “a full family report” be obtained if there was to be a “reopening” of the parenting orders. It was precisely to adopt “the less intrusive option” that her Honour ordered a family report significantly limited in scope, addressing only one of the considerations found in s 60CC of the Family Law Act 1975 (Cth) (“the Act”) (the views of the child) as distinct from a full family report addressing the many other statutory considerations. That carried the corollary that her Honour identified the need for a “full family report” if the position was reached that the parenting orders were to be reconsidered.
It is unsurprising that in the circumstances of this case that her Honour would have identified it as an imperative for there to be a “full family report” if there was to be a reopening of the September 2012 parenting orders. For example, the fact that the father had historically been capable of such a significant degree of family violence involving serious criminal offending would be relevant to the assessment of the primary consideration expressed in s 60CC(2)(a) of the Act, namely, the benefit to the child of having a meaningful relationship with both of the child’s parents. Into that equation comes the evidence that the father, despite his previous plea and associated admissions, was continuing to contend that he was not in fact guilty of the offending but had been convicted effectively as a consequence of malicious lies of the mother. His profession of innocence extended to an apparent commitment to have his convictions quashed. That raised the significant spectre that the father would involve the child both in his profession of innocence and his claims as to the mother’s conduct.
Concomitantly, the second of the two primary considerations expressed in s 60CC(2)(b), namely, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence would be an obvious focus for an expert undertaking a family report. The effect or potential effect upon the mother’s parenting capacity would be another obvious consideration. It is thus of no moment that her Honour would identify the imperative of obtaining a full family report if a “reopening” of the parenting orders was to be considered. What is then of real moment is the fact that, as will be further discussed, her Honour ultimately proceeded with the reopening hearing and to make parenting orders, without any expert opinion beyond the limited report she ordered.
It is clear from her Honour’s reasons for decision on 11 November 2014 that she proposed to consider the threshold issue of whether there should be a reconsideration of the parenting issues as a separate hearing (at [43]).
Lest there be any contention on this point, we note that on 7 November 2014 when the parties appeared before her Honour, she confirmed that the matter was listed before her “for the purpose of a Rice & Asplund hearing” (transcript 7 November 2014, page 2 line 22). Her Honour said that the purpose of the hearing was to determine whether “there’s sufficient evidence to justify the court revisiting the issues” (transcript 7 November 2014, page 7 lines 21‑22). The parties had earlier filed affidavits relevant to that issue and the matter then proceeded by way of submissions.
On 19 November 2014 when the matter was again before her, her Honour said that she proposed to adopt a careful course and in her opinion seeking the child’s views was “considerably less disruptive than simply, for instance, allowing a reopening which would lead to a fully [sic] family report straightaway” (transcript 19 November 2014, page 21 lines 10-11).
We note these exchanges which, in our view, make it clear that her Honour had embarked on the determination of the threshold question as a separate inquiry from any consideration of the father’s application for further parenting orders.
Thus her Honour ordered that a report be obtained to provide an observation of the maturity for the age and intelligence of the child and the child’s views as to:
·Whether she has enjoyed receiving the letters, cards and gifts from the father;
·Whether she presently holds a memory of the father and/or his partner;
·Whether she has an interest in meeting with her father (and his partner) face to face; and
·Whether she wished to communicate with the father in any way, irrespective of whether she wished to meet him.
The report was released on 2 December 2014.

18 May 2015

On 18 May 2015 the matter was before her Honour for a procedural hearing and she indicated that she would “set the matter down for hearing” (transcript 18 May 2015, page 3 line 4). She then, in discussion with the legal representatives of the parties, discussed the evidence on which each party would rely. As part of that discussion it was suggested by both the father and mother that the family consultant who had interviewed the child and prepared the report on her views would be required for examination. Her Honour then set the matter for hearing commencing Thursday 26 and Friday 27 November 2015.

23 November 2015

On 23 November 2015, the Monday before the hearing was to commence, the matter was again before her Honour to consider an application made on behalf of the mother to adjourn the hearing dates set for later that week. It is apparent from the discussion between counsel for the mother and her Honour that there was some confusion as to what was to be determined at the hearing on 26 and 27 November 2015. Counsel for the mother observed that consequent on the father’s application seeking to reopen the parenting issues there was a hearing and submissions were made on that application “as a threshold basis” and that her Honour ordered the report about the child’s views which was released to the parties on 2 December 2014.
Counsel then asked whether, in the two hearing days later in that week, her Honour intended there to be further submissions in relation to the report of the family consultant about the child’s views. He also observed that, if her Honour had concluded that there was a basis for reopening the parenting issues, she had given no reasons. Her Honour said:
…I have had a look at all of the orders. And I agree with you. There isn’t a definitive statement that says there should be a reopening. It’s implicit, but it’s not explicit. I agree. I’ve looked at the material that has been filed. And it seems to me that your client’s affidavit – her affidavit sets out her submissions as to why it shouldn’t be reopened, as well as her opposition to the application itself.…
(Transcript 23 November 2015, page 3 line 37-42)
We interpolate here that we fail to see how it could fairly be observed that it was “implicit” from the earlier orders that there would be a reopening of the parenting orders on 26 and 27 November 2015. As we have sought to demonstrate, in her respective reasons for judgment of 11 and 19 November 2014 her Honour had expressed, in imperative terms, that a full family report would be required if there was a reopening. If her Honour’s reference is taken to mean that by, on 18 May 2015, setting a hearing for two days it was thereby “implicit” that there was to be a reopening, that ignores the feature that there was not included in the orders of 18 May 2015 an order for a “full family report” which had previously been identified by her Honour, in two separate sets of reasons, as a necessary part of the evidence to be considered if a reopening of the parenting orders was to occur.
Notwithstanding her Honour’s indication that implicitly she had determined the threshold issue, she said that she would entertain further submissions on the Rice and Asplund issue.
Counsel for the mother then contended:
…We don’t have any reasons from your Honour as to why we have crossed from a threshold discussion to proceeding into a final hearing. We don’t have any reasons as to why the child being interviewed by Ms [K] would cause that threshold to be crossed. And, to that end, we would ask that we have those reasons prior to the undertaking of any prior hearing. It just can’t be that we’ve been here and made two sets of submissions .…. interview. The report comes back. And if I could take your Honour to those parts of your reasons delivered on 7 November ’14 and 19 November ’14 it is stated that they are not – that your Honour was binging the matter back for further consideration after that report was done.
(Transcript 23 November 2015, page 6 lines 14-23)
Counsel for the mother pressed her Honour for reasons to be delivered before the Court gave any consideration to proceeding to a final hearing.
Her Honour said:
…I’m not closing you or Mr Boyd out of making further submissions about the Rice & Asplund point, although they’re fairly well canvassed in the affidavit. But I am content – I will hear from you, Mr Boyd, to air that first. Deliver the reasons and – but, I have to say, it seems to me that it’s implicit that the report raised the prospect of the child with an enduring positive relationship with the father that couldn’t have been predicted, given how long it is since she has seen him. And that was part of my thinking about it. But I'm agreeing with you. It’s not explicit. It’s implicit. And it can be dealt with first up on Thursday….
(Transcript 23 November 2015, page 6 lines 33-41)
Finally, counsel for the mother referred her Honour to her conclusions in her reasons delivered on 19 November 2014 in which her Honour said that a hearing on the parenting issues would require the production of a full family report whereas the only report before her Honour was that of the family consultant on the child’s views.
Her Honour declined to adjourn the hearing dates of 26 and 27 November 2015.

The hearing of 26 and 27 November 2015

At the commencement of the hearing on 26 November 2015, counsel for the mother re-agitated the question of the submission on the Rice and Asplund issue and her Honour indicated that she proposed to determine the threshold issue at the same time as she considered the wider issues going to the parenting issues. Her Honour indicated to counsel that he could make submissions on the threshold issue at the commencement of the case.
Her Honour then identified the evidence to be relied on by the parties in the hearing. Counsel for the mother sought to rely on the mother’s affidavit sworn on 23 January 2012 and filed on 24 January 2012 in the earlier proceedings, contending that the contents of the affidavit were important for the hearing. Her Honour rejected that course and said that the information in that affidavit was reflected in and informed her judgment (of 2012). Her Honour rejected the reliance on the affidavit and said:
...I’m not going to allow you simply to read this as fresh evidence because I’ve got a judgment based on it and the application is to vary orders for time and communication not – and they’re made in the context of a judgment that says that your client is – has been the victim of a crime.…
(Transcript 26 November 2015, page 9 lines 34-38)
Her Honour noted that her focus in the present hearing was on events that had happened since the 2012 decision and whether there was any justification for altering the orders.
In the result, the trial judge allowed the mother to rely only on certain parts of that affidavit.
It is important to observe that up to that time, the mother had on 29 October 2014, filed an affidavit in response to the father’s application for further orders in which she opposed any reopening of the parenting issues. This is, we observe, consistent with counsel’s understanding of how her Honour was to proceed in relation to the threshold issue of whether there was a sufficient change in circumstances to warrant a reconsideration of the parenting issues, and also consistent with her Honour’s indication that she would take that course.
It must first be said that there is no reason why the hearing of the threshold issue of whether a sufficient change in circumstances exists to warrant a reopening of parenting issues cannot be heard at the same time as the hearing into that reopening (see Miller & Harrington (2008) FLC 93-383 and Marsden v Winch (supra)).
The difficulty, however, is that her Honour conducted what was said to be a final hearing on limited evidence. The evidence before her Honour filed by the mother was certainly relevant to the threshold issue and the mother set out matters which supported her contention that there had not been a change sufficient to warrant reopening the parenting issues.
However, when her Honour concluded that the threshold had been reached, the focus on the issues changed and involved her Honour embarking on a consideration of the then existing parenting orders in light of the father’s application for significantly different orders to those made by her Honour in 2012. However, her Honour refused to allow the mother to rely on her affidavit of 2012 which, on any view, was relevant to her Honour’s consideration of that wider issue. In doing so, her Honour failed to allow the mother to put before her relevant and important information in support of her opposition to there being made orders for face to face time between the father and child.
Thus the effect of her Honour eliding the two separate enquiries and restricting the evidence on which the mother could rely was that her Honour erroneously constrained the evidence to be relied on by the mother. In doing so, her Honour failed to afford the mother procedural fairness in not permitting her to put relevant evidence on the issue before the Court.
This challenge to her Honour’s orders is made out.
The error is, in our view, of such significance that it vitiates the hearing and her Honour’s determination, and for this reason alone the appeal must be allowed and her Honour’s orders set aside.

Rice and Asplund

The mother further contends that the trial judge wrongly applied the principles relating to a reopening of parenting issues.
In Rice and Asplund (supra) at 78,905, which gave rise to the so-called “rule” about re-visiting parenting orders, Evatt CJ said of the position of a court confronted with an application to change an earlier order:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material. These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision.
(Citations omitted)
The rationale for the “rule” is to give expression to the principle that there must be an end to litigation particularly in relation to children (per Nygh J in McEnearney and McEnearney (1980) FLC 90-866 at 75,499).
Her Honour Evatt CJ continued and said at 78,906:
Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way.
In SPS and PLS (2008) FLC 93-363, Warnick J said at 82,451:
…
(iii) At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
…
(v) The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
(vii) Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.
In Marsden v Winch (supra) after discussion of the earlier authorities, the Full Court said of this issue:
47.We agree with those observations. Warnick J went on to consider each of these observations, recognising (at [74]) that once a court refrains from applying the rule as a preliminary matter and embarks upon a hearing the rule should not necessarily be cast aside although its force might be diminished. Importantly, Warnick J made the point that the implication should be avoided that if the rule is applied as a preliminary matter the parenting application is not dealt with on the merits. In particular, he noted that the “paramountcy principle” still applies to the decision to dismiss an application to vary: (s 60CA of the Family Law Act 1975 (Cth); see also Newling & Mole (1987) 11 Fam LR 974; (1987) FLC 91-856; In the Marriage ofF & N (1987) 11 Fam LR 664; (1987) FLC 91-813; McEnearny (supra)). We agree with the conclusion reached by Warnick J (at [81]) that:
[81] …when the threshold question described in Rice is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
48. In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
49.However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.
50. Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
(Footnotes omitted)

The Full Court then at [58] formulated the inquiry as:
a)for a prima facie case of changed circumstances to have been established; and
b)for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
Of particular potency in this case is their Honours’ discussion at [59]:
It is also important to highlight a certain class of case, of which this is one, where the court has made findings which have led it to conclude that there should be no face-to-face contact between parent and child. These cases can provide different challenges, both for the applicant and the court. Usually the reason for such a draconian order has been a finding about particular behaviour of a party, by reason of which it would be contrary to the child’s interest to allow face-to-face contact. Once made, those findings will stand and the changes asserted will usually be the passage of time and/or some amelioration in the underlying causes of the behaviour, such that it is unlikely to occur in the future. The passage of time is not of itself a factor but might become relevant where the risk to the child by certain behaviour is reduced or removed by the increasing age and maturity of the child.…
The thrust of the challenge was that her Honour failed first to determine whether the evidence did, in fact, amount to a sufficient change in circumstances to warrant reconsidering the extant parenting orders, and secondly, that she failed to weigh that evidence against the evidence and her reasons for decision in making the 2012 orders to determine whether a rehearing was justified.
The matters to which her Honour referred as forming the evidentiary basis for her conclusion that there had been a sufficient change in circumstances were:
76. The change of circumstances I identify and take into account are:
a) Positive conduct by the father, stability and lawfulness in the father during his imprisonment and since his release; and
b)Fresh evidence, namely the views of a child assessed as having the maturity to express them. Those views being a strongly held wish to spend time with the father.
(Footnote omitted)
So far as the conduct of the father was concerned, it was submitted that in considering the father’s conduct since he was released from prison, her Honour was obliged to weight that evidence against the background of violence against the mother by the father; that the mother had since 2010 concealed the whereabouts of her and the child from the father and maintained that she feared for her life if the father found out where she was living.
Further, it was argued that her Honour ought to have considered the evidence of the father’s conduct on being released against him no longer accepting culpability for his assaults of the mother and in contending that the charges brought against him were the result of her lies and manipulation. It was also argued that her Honour should have considered Dr R’s evidence as to the father’s propensity for violence, a matter to which her Honour referred in the 2012 reasons. These matters, it was submitted, militated against there being a significant change.
Her Honour noted the submission on behalf of the mother that the father being released from prison did not amount to a change of circumstances. However, her Honour referred to there being no evidence that the father had breached the conditions of his parole or breached the Apprehended Violence Order in place for the protection of the mother. Further she noted the evidence that the father had studied in prison and he had maintained his commitment to his partner while in prison and his commitment to the child.
Her Honour did not make explicit reference to the reports of Dr R at [19] where she set out the documents that she took into account in determining the issue. She did, however, by footnote, refer to Dr R’s report of June 2011 in finding that the child had maintained a bond with the father in the intervening years since the determination of 2012. However, her Honour made no other reference to Dr R’s report, especially that of 18 August 2011 in which he fundamentally revised his earlier opinion and accepted the mother’s claims of violence and in light of that re-assessment, considered the father as posing a risk of harm to the child when the parents were in conflict. Neither did her Honour refer to her earlier decision that there be no face to face contact and the underlying reasons for that decision. In failing to do this her Honour did not consider how the asserted changed circumstances of the father acted to cause the risk identified by her through her acceptance of Dr R’s opinion to be ameliorated such that the risk to the child was reduced or removed.
It is thus difficult to determine the basis on which her Honour came to the view that the father’s behaviour since he was released from prison was a change in circumstances sufficient to justify a reconsideration of the parenting issues.
We are left with the conclusion that her Honour instead determined that there was “fresh evidence” which, of itself and without reference to what had been decided before, justified the reopening of the parenting issues.
As to the child’s views, her Honour said:
43. I regard the following expressed views of the child:
a)         Positive about the father;
b)         Hopeful of a meeting; and
c)         Confident of the mother’s support despite their differing          views
as significant fresh evidence.
Turning to the orders made by her in 2012, her Honour said of the provision of gifts and cards:
65. On behalf of the mother it was submitted that there is no evidence before the Court that the child’s well-being is adversely affected by the level of contact with the father which she has enjoyed since September 2012. That is clearly the case. But the fact that the child has actively benefited from, and enjoyed that contact, is fresh evidence.
(Footnote omitted)
We observe that the relevant threshold determination is not met merely by a conclusion that “fresh evidence” exists. It is, as the cases demonstrate, the nature and quality of the change in circumstances that is relevant.
In relation to the views of the child, it was argued that the child’s view could not, of itself, inform a significant change where her Honour did not take into account that the child had not seen the father since she was four years of age and where there was no evidence before her Honour of whether these were genuine, realistic views or idealised views formed in the vacuum of the father’s absence.
We agree. Her Honour’s focus was on whether there had been changes in circumstances, rather than considering them against the rationale that the identified change must justify a reconsideration of the issues.
We find her Honour’s failure to give proper consideration to the well‑established principles to which we have referred was an error.
Having decided that the matters to which she referred justified a reopening of the parenting issues, her Honour then turned to the question of what orders should be made in the best interests of the child. It is in her Honour’s consideration of this aspect of the matter that it was further contended that she erred in significant respects.

Failure to afford sufficient weight to the evidence of family violence

It was argued that her Honour failed to give sufficient weight to the primary consideration of s 60CC(2)(b), namely the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In this regard, it was argued that her Honour failed to give sufficient weight to the evidence of family violence.
As we have said, the father pleaded guilty to charges of violence against the mother and was imprisoned.
The charges when first laid referred to assaults committed against the mother. The father entered a plea of not guilty and stood trial on six charges. The mother gave evidence in the trial and was cross examined over some two days by counsel then appearing for the father. After reaching agreement with the Crown, the father pleaded guilty to three counts on the indictment and two other counts on the indictment were taken into account on sentence.
On the sentencing hearing, the prosecution tendered a statement of agreed facts which related to the charges to which the father pleaded guilty and to the charges which, while he admitted his guilt, were not the subject of separate convictions but were taken into account on sentence. This statement had been signed by the father.
The charges to which the father pleaded guilty related to incidents which occurred on 1 July 2007 and, summarised from the statement of Agreed Facts were:
Assault of the mother occasioning actual bodily harm
In relation to this charge, the statement of agreed facts notes that: the father punched the mother in the legs, head and face while she was driving the car and he continued to punch her during the journey between the airport and the home where the parties were then living when he switched places and began to drive the car himself.
Aggravated kidnapping
The circumstances of aggravation being that at the time of the detention of the mother the father occasioned her actual bodily harm. The facts in relation to this charge are that: on arriving home the father ordered the mother to sit in a chair and he tied her to it with duct tape. He then assaulted her about the head, knocking her from the chair and dragged her by the hair to stand the chair upright.
In relation to the aggravated kidnapping charge, a further charge, namely common assault was taken into account on sentence. This charge was referred to in the proceedings as the “Samurai sword” incident and took place while the mother was tied to the chair.
The facts relating to this charge are:
·The father grabbed the child and carried her to the door of the bathroom and holding a Samurai sword to her chest, told the mother he would kill her as punishment for betraying him. The father called her a dirty slut during this and the mother begged for her life and the life of her daughter. She believed that both herself and her infant daughter were about to be killed such was the rage of the father.
·At one point the father poked the mother’s hands with the sword after she informed him she was losing circulation.
·The mother was pleading with the father and eventually passed out in the chair. When she regained consciousness she called out to the father whom she could hear in the hallway with her daughter. The father returned and released the tape from her arms. He then took a SIM card from the mother’s mobile phone and instructed her to eat it. In fear the mother broke the plastic and metal SIM card into small pieces and ate it. The father then put the phone on the ground and stomped on it to smash it.
Kidnapping
After the mother was released from the chair, the father demanded that she look after the child in the bedroom. When the mother was in the room with the child, the father tied the door shut locking her inside. He told the mother not to try and escape as he would be watching. The mother eventually escaped the room and left the house. The mother drove to a family member’s house and from there went to the police and reported the assault on 7 July 2007.
In relation to this last matter, a further charge of assault occasioning actual bodily harm was taken into account on sentence.
The facts of that assault are that the father threw a glass at the mother which struck a door, shattered and as a result the mother’s forehead was lacerated and required suturing.
On indicating a plea of guilty, a fresh indictment was prepared and the father was re-arraigned on it and entered pleas of guilty to the above charges. His Honour then asked the father:
…do you ask the Court when sentencing you in relation to count 2 on the present indictment, an aggravated kidnapping count, to take into account one further matter of assault involving throwing of a glass occasioning actual bodily harm and one count of assault by holding a knife to the chest of the child, do you ask me to take those two matters into account when imposing a sentence on the aggravated kidnapping?
(Criminal trial transcript 9 August 2010, page 12 lines 21-27)
The father agreed.
Lest it be misunderstood, the effect of the father’s agreement to the offences which were taken into account on sentence was that he acknowledged his guilt of those charges. Indeed, the trial judge said as much to the jury who heard the father enter his pleas of guilty (criminal trial transcript 9 August 2010, page 12 lines 43-49).
On that basis, the Crown did not proceed with the sixth count on the indictment against the father.
The father gave evidence on the plea. He expressed remorse for the effect his actions had on the mother and the child, however he denied the suggestion that there had been incidents of domestic violence over the years and sought to confine his conduct to 2007. His present partner, Ms Y also gave evidence on the plea on the father’s behalf. She said that he had told her that he had assaulted the mother as charged.
In coming to sentence the father, the judge noted that in relation to the charge of aggravated kidnapping, the maximum sentence was 20 years imprisonment.
The Court accepted that the father had expressed genuine remorse and contrition for his crimes.
Thus his Honour sentenced the father to a total sentence of five years imprisonment with a non-parole period of two and a half years.
In sentencing the father the trial judge said:
There is no doubt that when men use violence to dominate women for whatever purpose, whether they feel or do not feel in any way justified or whether there is any contributing inappropriate behaviour, the Court must clearly impose a sentence which categorically states that there can never be any justification for the application of force toward a woman by a man and there can never be any justification for the deprivation of a woman’s liberty. …
(Sentencing transcript 19 July 2011, page 6)
It is important to note that in the mother’s affidavit which she filed in the 2012 proceedings and which her Honour said “informed” her judgment of September 2012, the mother alleged family violence which involved both physical assaults of the type of which the father was convicted but also of other, no less serious types. For example the mother said that in 2005, the father started calling her “slut” and for months did not refer to her by name but called her “slut”. Further, the mother contended that after the child was born the father would not let her and the child live in the house but instead made her sleep in the car.
It is against this background that we turn to consider the challenge that her Honour failed to give sufficient weight to the evidence of family violence.
Although when the matter commenced before her Honour the father had been convicted, imprisoned and released to parole in relation to serious assaults on the mother, he contended before the trial judge that he was not guilty of those charges, and proposed to seek to have those convictions overturned.
Her Honour first referred at [14] to her decision in 2012 and said:
14. In July 2012 when the parenting proceedings were heard on a final basis by me, the father attended the hearing each day whilst incarcerated. His stated position before this Court was that he had not committed any of the offences but had pleaded guilty under pressure. The father was not permitted by this Court to depart from the Agreed Facts on the basis of which he had pleaded guilty.
(Footnote omitted)
Later in her Honour’s reasons, having noted that the father contended that he is not guilty of the offences and intended to apply to have the convictions quashed (at [79]), her Honour said:
86. Accordingly from her birth in April 2006, until the parties’ separation in November 2008, the child spent daily time with the father, which includes the July 2007 incident for which the father was charged with an assault.
87. The mother has asserted, and the father has denied, that he held a Samurai sword to the chest of the child:[1]
The [father] grabbed [the child] and carried her to the door of the bathroom and holding the Samurai sword to her chest, told the [mother] he would kill her as punishment for betraying him …
88. I am of course not in a position to come to a definite conclusion about the exact events of that day. The significant matters are that the father pleaded guilty to, and was convicted of and served a term of imprisonment for, the known charges. The transcript from the District Court of 19 July 2011 appears to confirm that although the incident was included as stated in the Agreed Facts, the father was not convicted of that offence.[2]
(Footnotes as in original)
[1] Affidavit of the mother filed 29/10/2014, Annexure D (Agreed Facts, page 35)
[2] Exhibit 4 (transcript of the District Court, Judge Ellis, page 14, lines 30-50) and Exhibit 5 (page 11, lines 36‑50 and page 12, lines 1-9)
Her Honour’s finding that she was not in a position to come to a definite conclusion about the incident is curious. First, as her Honour’s footnote indicates, she referred to the statement of Agreed Facts on which the father was sentenced and which, as we have set out, related to this incident.
While no conviction in relation to this charge was recorded against the father, he agreed to his guilt of the offence as part of the agreement that this offence would be taken into account in determining sentence for the aggravated kidnapping charge. As we have said, the father agreed to that course and as his Honour told the jury in the father’s presence, he had accepted his guilt of the charge.
Her Honour was incorrect both as to the effect of the plea and as to the reliance she could place on the facts of the incident. However, we point out, even had the father not accepted his guilt of that crime, the fact that he had pleaded guilty to other offences against the mother which he had maintained up to that time were fabrications by the mother, must have had weight in her Honour’s consideration of whether the allegation of this incident was a matter she should take into account.
Further, in the hearing before her Honour, the assault using the Samurai sword was put to the father in cross examination of him about his plea of guilty.
[COUNSEL:] The judge put to you, and had discussion with you, about you pleading guilty to holding a Samurai sword to [the child’s] chest and threatening to kill her?
[FATHER:] Exactly.
(Transcript 26 November 2015, page 37 lines 31-32)
Her Honour’s conclusion that she was not in a position to determine the facts in relation to that assault, was unsupported by the evidence and not open to her.
It is clear from the evidence to which we have referred that the father’s conduct involved him holding a Samurai sword to the child’s chest with accompanying threats directed to the mother that he would kill the child. This is notwithstanding that in her 2012 reasons for judgment her Honour erroneously referred to the incident as:
101.In this matter [the child] is progressing well, however the truth of her circumstances will inevitably be revealed to her. She will discover that her father assaulted her mother and went to gaol, she may also be told that she herself was present at an incident (aged 15 months) where a sword was held to her mother’s chest.
(Emphasis added)
That the father was capable of such conduct was fundamentally relevant to undertaking any assessment of risk to the child and to understanding the mother’s fears, as further discussed later in these reasons. Her Honour’s error referred to thus had a compounding effect upon her Honour’s consideration when she proceeded with a reopening of the parenting orders.

At [91] her Honour recorded:
91. Overall my impression was that the father, together with his partner, is focused on two things:
a)Restoring the relationship between himself and the child; and
b)Restoring his reputation and record with the application to quash his conviction.
Following her remarks about the father’s focus on “restoring his reputation” by having the convictions quashed, her Honour then considered the evidence of Ms Y, the father’s partner, in relation to whom her Honour said:
94. She readily conceded that she did not believe that the father had committed any of the offences for which he has been punished and also that she had no first-hand knowledge of the events.
Given that her Honour had before her the transcript of the proceedings before Judge Ellis on the criminal proceedings, her apparent acceptance of Ms Y’s evidence before her needed to be contrasted to Ms Y’s evidence before Judge Ellis in which she said:
Q. Were you aware as in regards to the allegations that [the father] has pleaded guilty to, correct?
A. Yes
Q. Can I ask this, and you’ve been in court when [the father] was asked questions by his Honour in regards to his background in violence?
A. Yes.
(Sentence hearing transcript 19 July 2011, page 16 lines 21-27)
Ms Y continued in her evidence on sentence and said that the father told her he was sorry about what he did and that she did not believe it would happen again.
Her Honour does not discuss the frank conflict in versions of events given by Ms Y, each on oath, in coming to accept Ms Y’s evidence in the proceedings before her that she did not believe that the father had committed the offences.
Further, we wish to point out that any attempt by the father to adduce evidence to demonstrate that he was not guilty of the offences of which he was convicted raised the possibility of it being an abuse of process.
It is a general principle of law that where a final decision has been made by another court of competent jurisdiction, a civil action cannot be used to initiate a collateral attack on that decision because to do so constitutes an abuse of process (Hunter v Chief Constable of West Midlands Police [1982] AC 529 at 541 per Lord Diplock; cited with approval by Heydon J in International Finance Trust Company Limited v New South Wales Crime Commission (2009) 240 CLR 319 at 383). That is because a re-determination of an issue already decided in earlier proceedings “is not only inconsistent with the principle that a judicial determination is binding, final and conclusive (subject to fraud and fresh evidence), but is also calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue” (see Rogers v The Queen (1994) 181 CLR 251 at 256-257 per Mason CJ).
Under the heading “[t]he need to protect the child from physical or psychological harm from being subjected or exposed to abuse or family violence” her Honour said:
130. The mother’s express concern is that the child and herself will be at immediate risk of harm if there is face-to-face time between the child and the father.
131. The matter proceeds on the basis that the father pleaded guilty to certain charges which involved assaults on the mother. The father denied in the 2012 proceedings, and continues to deny, that he did in fact assault the mother. He is now pursuing an application to quash those convictions.
132. I have no reason to doubt that the mother is genuinely fearful of the father, that is consistent both with the assaults having taken place and not having taken place.
133. However, there is no evidence or assertion of exposure to family violence since July 2007, when the child was 15 months of age.
With respect to her Honour this discussion does not in any way address the level, intensity and duration of the family violence which was established in the evidence before her. At [131] her Honour’s inclusion and reliance on the father’s denials of the violence does not take properly into account the evidence of family violence. It is to be recalled that in the reasons for decision of September 2012, her Honour set out Dr R’s opinion which we repeat:
76. The doctor also revised his assessment of the father, “to be capable of such violence does cause concerns about personality which at least has anti social traits.[3]” Unacceptable risk to the child when there was conflict between the parents was identified.
(Emphasis added, footnote as in original)
[3] Report of Dr R dated 18/08/2011, p 7
Further, it was argued that her Honour’s conclusion at [161] (emphasis added):
The evidence is that there has been not a hint of misconduct by the father in gaol, or since his release. There has been complete compliance with the current parenting orders. He has made no attempt to contact the mother. There is no particular evidence of the mother’s assertion that hers and the child’s health and safety are at risk if there is direct face-to-face contact. I consider that the mother is avoiding time between the child and the father for her own reasons, which do not relate entirely to the child.
supports the submission that her Honour failed to give proper consideration to the evidence of the father’s conviction for serious physical violence against the mother and, of itself, points to error.
We agree with the submission made on behalf of the mother that her Honour failed to give sufficient weight to the evidence of family violence in her consideration of s 60CC(2)(b) and thus erred.

Views of the child

It was argued that her Honour failed to properly assess the views of the child and failed to balance those expressed views against the other evidence.
Dr R, in his evidence before her Honour during the 2012 hearing, spoke about his observations of the child and the father. Her Honour noted at [80] of those reasons that the strong and warm bond between the child and the father was consistent with the reports of the supervisors at the contact centre who had supervised the child’s time with the father between 17 October 2009 and 20 February 2010. Her Honour accepted the expert’s opinion that the child was too young at five “to form a clear view about what is in her best interests” (at [88]).
In her 2012 decision, in coming to the conclusion that some contact between the child and the father was in the child’s best interests, her Honour said:
99. In this case, provided [the child] is safe, the benefit of keeping the relationship between her and her father, although at some emotional cost to the mother, outweighs the possibility that she might feel abandoned if the relationship is lost.
The contact ordered by her Honour consisted of the sending of gifts and cards three times a year.
It was argued before her Honour, and formed the basis of the challenge to her Honour’s conclusions about the child’s views, that there was no basis for finding that there had been a change in the child’s views which would justify a reopening of the parenting issues, and further, that her Honour failed properly to evaluate that evidence.
In her 2016 reasons for judgment, her Honour referred to the report of the family consultant about the child’s views and said:
71. Most significantly, the child has expressed a strongly held, even passionate view, that she wishes to meet with the father and to spend time with him, despite the fact that she understands two things:
a) That the father hurt the mother and went to gaol as a consequence; and
b) That the mother dislikes everything about the father, but the child herself does not.
Addressing the submission that there had been no change in the child’s views since 2012, her Honour said at [74] that it was a matter of great significance that the child who had not seen her father since she was four years old has “maintained a bond with him, in her own thinking, and has a very strongly held wish to see him and spend time with him”.
Her Honour further rejected the submission that she should not take the child’s views into account and said:
75. …In this context, a preliminary consideration of revisiting parenting orders, it would be contra to authority to ignore fresh evidence of this kind.
(Footnote omitted)
As has been seen, her Honour placed considerable reliance on the child’s expressed views in determining that there existed sufficient change of circumstances to warrant a reopening of the parenting issues. However, having come to that conclusion, the child’s views needed then to be considered in light of the wider issues concerning parenting.
That task required her Honour first to assess those views against the child’s age, maturity and characteristics to determine the weight to be attached to them. In this case, it is important to note that no Independent Children’s Lawyer was appointed to represent the child’s interests and thus her Honour’s only input on the views of the child was from the limited report ordered by her. In those circumstances, we accept the submission that her Honour ought to have proceeded with considerable care when taking those views into account.
Relevant too to this issue is the point made on appeal that her Honour misstated the family consultant’s assessment of the child’s maturity. Her Honour said at [137] that: “[t]he child is assessed to be mature for her age, articulate and thoughtful”. In fact, the consultant said: “[the child] presented as a child of at least average intelligence and ability”. While it might be thought that the point is a small one, when her Honour was faced with the task of assessing what weight to afford the child’s expressed view on very limited evidence, an accurate understanding of the expert’s assessment of the child’s capacity is, in our view, highly relevant.
However, assessment of the weight of the child’s wishes is not limited to the child’s age and maturity. It was contended that her Honour did not give sufficient weight to the context in which the views were given, namely that the child had not seen her father since 2010 and her recounted memories of him were scant.
There is no analysis in her Honour’s reasons which would suggest that her Honour did other than accept the child’s views as being a true representation of her desires.
The family consultant was not asked to assess the child’s views nor could she given the limitations on her task which was to seek the child’s views on whether she had enjoyed receiving gifts from the father, whether she wanted to see him or communicate with him or whether she had any memories of him or his partner. While the family consultant was also asked to provide an observation on the maturity of the child, she was not asked to assess this against the child’s views and in any event her Honour misstated this observation as we have discussed above.
We point out too that had her Honour adopted the approach to which she had referred when first considering the threshold issue, that is to obtain a full family report, she would have had before her far more comprehensive evidence in relation to the child’s maturity, sex, lifestyle and background than the very brief comments of the family consultant.
Even accepting the expressed views of the child, her Honour was then required to consider them against the other evidence, and in this case, the risk of harm to the child which was starkly identified by Dr R and to which we have referred. Further, her Honour was obliged to weigh the child’s views against her Honour’s findings and orders in the 2012 decision.
It was submitted for the mother that her Honour elevated the child’s views over the primary consideration of protecting her from harm. We agree. In this regard her Honour erred.

Effect on the mother and the household of physical contact with the child

There was no doubt on the evidence before her Honour of the mother’s fears. Indeed her Honour quoted the mother as saying that the father would “kill me if he gets the chance” (at [99]).
Her Honour further noted that the mother agreed that if the father managed to have the convictions quashed her “own understanding of events regarding the assaults on her would be unaffected by that outcome” (at [111]).
Her Honour said:
113. In her affidavit, the mother set out with particularity that in her view the child’s safety and health was at risk if she spent time with the father, even in a professionally supervised setting and that her own safety and health was likewise at risk if the child spent time with the father, again, even in a professionally supervised setting.[4] There was no evidence to support the mother having ventilated those fears with an appropriately qualified expert, nor sought assistance in how to meet the child’s needs independently of her own.
(Footnote as in original)
[4] Affidavit of the mother filed 29/10/2014, pars 12-15
Although her Honour accepted that the mother’s fears were genuine at [132] she added a rider that there was no evidence or allegation of exposure to family violence since 2007 at [133]. We accept the argument of counsel for the mother that her Honour was incorrect in that finding. In the mother’s affidavit sworn on 23 January 2012 she attests to receiving abusive text messages from the father in January 2008 which included the following message:
No death is too easy! You will get yours in good time. You’ll eventually realise what you did yo [sic] [the child’s] life for a fuck with a loser! You will hurt a lot more
(Mother’s affidavit, filed 24 January 2012 at paragraph 151)
We appreciate that her Honour declined to allow the mother to read this affidavit in the hearing conducted in 2015 for the reasons she gave at the time, which was that the affidavit had “informed” her judgment in 2012 and that she was considering only the “fresh evidence”. However, that does not mean that her Honour could or should have put those matters out of her mind in considering the best interests of the child.
The family consultant was asked some questions about this in the hearing before her Honour. She was asked to give an opinion on the impact on the mother’s household of the child spending time with the father. The consultant said:
I think, generally speaking, in cases where there has been high levels of family violence that one of the issues that is critical is the effect on the parent – usually the mother – of a child having time with a parent that has been violent to her, and I think that is a consideration. And, I imagine, in this case for the mother that must be a very difficult thing for her to consider.
(Transcript 27 November 2015, page 186 lines 23-27)
Asked about the mother’s anxiety lest the child might disclose where they were living, the consultant said:
Well, I imagine the mother would be very concerned that that kind of situation could arise. I think it is difficult to make children not disclose information about their school or their activities. So I think that the – that would be an apprehension that the mother would realistically have that that sort of detail could come out. So – and I imagine that would then impact if she found out that had happened. She would immediately feel quite unsafe.
(Transcript 27 November 2015, page 186 lines 36-41)
Finally, the consultant agreed that she would need to do a “proper assessment to come up with any recommendations as to the impact of family violence in the household” (transcript 27 November 2015, page 187 line 14).
While this evidence was per force general in its nature, the consultant not having interviewed the mother, it was nonetheless relevant to the issue before her Honour. This was not the only evidence on this issue before her Honour who had the benefit of reports of Dr R and in relation to which her Honour had relied in coming to the parenting decision in 2012.
In Dr R’s third report dated August 2011 and prepared after he had been provided with the agreed facts on which the father had been sentenced he said:
Violence
One of the issues to be assessed is whether the violence from [the father] is habitual or contextual and the implications for the child. If the violence is more habitual this would augur much worse for the child. There appeared to be some evidence for both these scenarios of being possibly habitual and also being contextual. … The violence that [the father] had perpetrated on [the mother] was horrendous, unacceptable and heinous. Although there were other episodes of violence alleged it was not clear that there was relentless perpetual violence.
…
Because of the clear violence that has been perpetrated both against the mother and the child I now need to revise my view about the father’s risks. It is clear that when there is conflict with the mother the father can be an unacceptable risk to the child. This therefore, raises serious issues about how and when the father could have contact with the child.
Dr R commented that the mother, despite “enormous adversity, personality problems and the violence” has provided well for the child. He concluded that he had concerns that unless the mother could maintain stability, the child would suffer a great deal of adversity. Further, he said that the child may suffer significantly if she lost the relationship with the father.
Finally, in her affidavit filed in 2014, the mother deposed that she believed that the child’s safety and health would be at risk if the child were to spend any time with the father, even at a contact centre.
It was submitted that the trial judge gave no weight to the mother’s fears nor did she consider them in the light of the other evidence in the case. This was exemplified, it was argued, by the form of her Honour’s orders in which she ordered that the mother was to bring the child to a particular contact centre for the child to spend the time with the father. The trial judge made no orders nor took into account any means by which the mother could be protected from the father finding out where she and the child lived.
We agree that the form of orders made together with her Honour’s comments about the mother “avoiding time between the child and the father for her own reasons” lead to the conclusion that her Honour dismissed the mother’s expressed fears without proper consideration of the evidence of violence.
In this regard, her Honour erred.
Thus the appeal will be allowed and her Honour’s orders set aside. The parties agreed that in that event, the matter must be remitted for rehearing.

Costs

We sought the parties’ submissions on the question of costs at the conclusion of the appeal to save them the time, trouble and expense of returning to make those submissions after the appeal was determined.
Neither party sought a costs order against the other, but each submitted that should the appeal succeed because of an error of law made by the trial judge, each would seek a costs certificate referrable to the appeal and for the ordered rehearing.
We agree that in this case it would not be appropriate to make a costs order as between the parties and, further, we are of the view that the appeal having succeeded by reason of an error of law it is appropriate that costs certificates be ordered both for the appeal and the rehearing.

I certify that the preceding one hundred and sixty-seven (167) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie‑Wallace, Aldridge & Kent JJ) delivered on 10 August 2016.

Associate:

Date: 10 August 2016