Trudeau & Andrewson
[2025] FedCFamC1A 26
•26 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Trudeau & Andrewson [2025] FedCFamC1A 26
Appeal from: Andrewson & Trudeau [2024] FedCFamC1F 547 Appeal number: NAA 232 of 2024 File number: BRC 11543 of 2020 Judgment of: ALDRIDGE, WILSON & CAMPTON JJ Date of judgment: 26 February 2025 Catchwords: FAMILY LAW – APPEAL – INTERIM PARENTING – Where the children had not spent time with the father for four years – Allegations of sexual abuse – Where the primary judge found the risk of harm was ameliorated by supervised time in the interim – Alleged failure to apply s 60CC(2) of the Family Law Act 1975 (Cth) – Submissions as to effect of interim time on the mother put higher on appeal than at first instance – Where the primary judge did consider the relevant risks – Adequacy of reasons – Where the primary judge could not decide a number of factual disputes due to the interim nature of the decision – Reasoning process is apparent – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CC, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
House v The King (1936) 55 CLR 499; [1936] HCA 40
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 59 Date of hearing: 10 December 2024 Place: Heard in Brisbane, delivered in Sydney Counsel for the Appellant: Mr Linklater-Steele Solicitor for the Appellant: Mills Oakley Lawyers Counsel for the Respondent: Ms Dart Solicitor for the Respondent: Damien Greer Lawyers Counsel for the Independent Children’s Lawyer: Dr Sayers Solicitor for the Independent Children’s Lawyer: Julie Harrington Solicitor ORDERS
NAA 232 of 2024
BRC 11543 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS TRUDEAU
Appellant
AND: MR ANDREWSON
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE, WILSON & CAMPTON JJ
DATE OF ORDER:
26 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 22 November 2024 is dismissed.
2.The appeal is dismissed.
3.The appellant pay the respondent’s costs fixed in the sum of $18,545.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Trudeau & Andrewson has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, WILSON & CAMPTON JJ:
This is an appeal from interim parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1), on 16 August 2024. The parties have three children; X born in 2012, Y born in 2014 and Z born in 2015. The orders provided for the children to spend up to two hours per fortnight with Mr Andrewson (“the father”), professionally supervised at a contact centre.
The parties separated in mid-2020. The children have not spent any time with the father since August of that year, after the children, particularly X, raised allegations of sexual abuse against the father.
In early 2021 the father was charged with criminal offences based on those allegations, but in early 2024, the Office of the Director of Public Prosecutions entered a nolle prosequi in relation to all charges.
The position at the hearing before the primary judge, therefore, was that the allegations remained to be tested.
The primary judge was, however, conscious of the “serious allegations” (at [27]) and the significant but untested evidence in support of them. His Honour considered that the risk of harm could be ameliorated by supervision, saying:
28Certainly, the Court would not be prepared at this stage to order unsupervised time, but that is not what the father seeks. I have formed the view that, at this time, supervised time will mitigate the potential risk of:
(a) the father sexually abusing the children;
(b)the father perpetrating domestic violence upon the children; and importantly; and
(c)because of the intense physical proximity which is exercised during supervision, to ameliorate any risk the father will use the contact visits to denigrate the mother; discuss the sexual abuse allegations or otherwise seek to influence the children’s feelings.
The mother, Ms Trudeau, has appealed against the interim orders.
The appeal is opposed by the father and the Independent Children’s Lawyer.
The Amended Notice of Appeal contained 12 overly detailed and particularised grounds. Counsel for the mother sensibly dealt with them in five groups.
Before turning to the grounds of appeal, it is useful to deal with the central argument raised by the mother and repeated under most of the grounds even when it did not particularly relate to them. Its particular place was under Ground 7.
The point was simple. It was that the mother and the children were so psychologically damaged and frail that any interim contact with the father was just too risky. Such contact, it was submitted, would pose a risk of psychological and emotional harm to the children or, as it was put to us, would not promote their safety. It was said, repeatedly, that the mother would decompensate to the detriment of the wellbeing of the children.
There can be no issue that the children were in a difficult psychological position. Ms E, who is a registered psychologist and was the Family Report writer, said:
285.Regardless of whether or not the allegations about [the father] are true, [X], [Y] and [Z] have experienced a major ordeal, trauma, and a disrupted life and attachment with their father (and within their broader family) as a consequence of alleged sexual abuse and anger by him. In my opinion, they need a healing process or at least certainty and a proper chance to adjust to the harsh realities of their life.
(Family Report dated 28 June 2024)
At that time, X was under the care of a “Mental Health Occupational Therapist and Animal Assisted Therapist” (Family Report dated 28 June 2024, paragraph 256). Z was seeing a psychologist for “emotional and behavioural dysregulation, anger, sleep disturbance and helping him feel safe in the world” (Family Report dated 28 June 2024, paragraph 241). Y was being assisted by a “Mental Health Social Worker/Art Therapist” (Family Report dated 28 June 2024, paragraph 231). Y and particularly X, were displaying significant refusal to attend school.
The children saw their father at the Family Report interviews for the first time in four years, which, according to her social worker, “definitely triggered” Y (Family Report dated 28 June 2024, paragraph 232).
Nonetheless, the following was recorded:
286.Given their reports herein, it’s possible the children (but not their mother) now want to put their ordeal behind them because they were each clear that they want to at some level spend time with their father. It is obvious that they each missed their father (at least) initially but they learned to live without him. They had some idea that they did not see their father for four years because of some wrongdoing by him. His perceived wrongdoing now seems centred on his previous anger rather than any sexually inappropriate touch. Given their experiences and knowledge, it is understandable that these children have some mixed feelings about their father. Reassuringly, they each feel happy, safe, and connected to their mother.
(Family Report dated 28 June 2024)
X wished to see the father regularly, Z was “okay” with that but wanted some support and did not want to be alone with him, and Y was not inclined to see him regularly or for long periods.
This led to the following recommendations:
298.It’s my opinion that for these children, the impact of not having a relationship with their father and his family and having unresolved longing and complex issues with him would be greater for these children’s current and future mental health than having safe, supported and supervised time with their father as per their wishes while they continue to receive appropriate support and psychoeducation or therapy.
299.Based on the mother’s stressed report, I am currently most concerned about how the mother might cope with the children having (even) safe, supported and supervised time with their father even though [Y’s mental health social worker] and [Z’s psychologist] are not at all concerned about the mother’s mental health, capacity or coping. I appreciate that the mother believes the father harmed the children and he is neither a safe nor healthy option for them. In my opinion, the mother has acted protectively and her actions and attitude were appropriate based on the information presented to her. I note that her psychologist encouraged her to default to believing the children and that is generally the advice given in situations such as these. She has probably tried very hard to do the right thing for her children and has been genuinely anxious, distraught, and scared. She might feel she has failed the children if they resume time with him. In my opinion, the mother has a great adjustment ahead of her if the children resume time with their father but she is seemingly capable of compartmentalising her distress to focus on the children.
(Family Report dated 28 June 2024)
The submissions that were made to the primary judge on this point were as follows:
[COUNSEL FOR THE MOTHER]: It then becomes – but there’s two other issues that the court needs to consider. One, the impact on the children of resuming time, which is unknown, but I will get to some evidence about that shortly. And secondly, the impact on the mother.
(Transcript 6 August 2024, p.80 lines 35–38)
And:
[COUNSEL FOR THE MOTHER]: She is currently – and [Ms E] puts it in fairly serious term, “most concerned about the mother’s ability to cope”.
HIS HONOUR: Yes.
[COUNSEL FOR THE MOTHER]: She then talks about the mother’s ability to compartmentalise as reported by the two counsellors.
HIS HONOUR: Can we stop there for a moment - - -
(Transcript 6 August 2024, p.91 lines 25–33)
And:
[COUNSEL FOR THE MOTHER]: And well, you also need to have regard to [Ms E’s] statement about how concerned she is about the mother’s ability to cope.
HIS HONOUR: Yes, but that’s just one factor…
(Transcript 6 August 2024, p.93 lines 1–4)
And:
HIS HONOUR: …You’re not saying to me, are you, that the mother’s capacity on the evidence is such that she will totally decompensate, that the kids – she won’t be getting up in the morning and giving them breakfast. I mean we’ve seen these cases.
[COUNSEL FOR THE MOTHER]: Well - - -
HIS HONOUR: She is coping.
[COUNSEL FOR THE MOTHER]: Firstly - - -
HIS HONOUR: Is she working, by the way? I don’t know if she is working.
[COUNSEL FOR THE MOTHER]: No.
HIS HONOUR: No. She is a full time mum.
[COUNSEL FOR THE MOTHER]: Firstly, she doesn’t have to fully decompensate before it’s a relevant factor. And just - - -
(Transcript 6 August 2024, p.96 line 36 to p.37 line 6)
The submissions at the hearing fell well short of the submissions advanced on appeal. Certainly, the effect on the mother, and indirectly on the children, of them spending any time at all with the father was raised but not in the bleak terms used in the appeal.
His Honour dealt with those submissions saying:
34As I observed during submissions, the history of this matter and since the events of 2020, the strong and currently entrenched views of the mother could have resulted in a very different presentation by the children to [the Family Report writer]. I might not have been surprised to hear the children provide some very negative views about their father – but they did not. This is likely to found a finding that the mother has been able to compartmentalise her views – in the children’s best interests. To maintain such a demeanour for over four years is a tribute to her strength of character.
WILL THE MOTHER STRUGGLE TO SUPPPORT TIME ON A SUPERVISED BASIS IF SO ORDERED?
35The mother’s affidavit deposes to the difficulty she feels she will face if the orders sought by the father (and supported by the Independent Children’s Lawyer) are made. Although there is no significant corroborative evidence available at this time to support these feelings, I am prepared to accept she will benefit from therapeutic support and seems to be a person not adverse to seeking help.
36I am of course concerned that the mother, as the primary carer of the children, could become so anxious by supervised time occurring, that her parenting capacity day-to-day might be significantly affected. True it is that the soon to be prepared and released report of [Dr F] might be useful evidence, however the history itself is a helpful predictor.
37Whilst the mother has not, since August 2020, had to really confront her fears of the children having any contact with the father, I was impressed however by her presentation as recorded by [the Family Report writer] where she demonstrated support for the children to be observed with the father.
38In circumstances where I believe the children will cope well with the orders I propose to make, it will be slightly easier for the mother to adjust to the children’s reactions to spending time with their father.
Whilst another judge could have come to a different outcome on the evidence, that is not a sufficient basis for a successful appeal. This is an appeal from a discretionary decision and the following principles apply (House v The King (1936) 55 CLR 499 at 504–505):
…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…
As will be explained shortly, we are not satisfied there is any such error in this matter and the appeal will be dismissed.
APPLICATION IN AN APPEAL
The mother sought to adduce evidence in the appeal to the effect that on 3 September 2024, the psychiatrist the mother and father were ordered to attend upon for preparation of a psychiatric assessment recommended that X urgently be assessed by a child psychiatrist and that her school refusal was a “psychiatric emergency requiring clinical intervention” (Annexure “[AM]-01” to the affidavit of the appellant mother filed 22 November 2024). The further evidence also included that X had since seen a psychiatrist four times and had started taking an antidepressant/anti-anxiety drug, was going to school more often but her other difficulties continued, and that the mother had seen a psychiatrist and been described as having symptoms consistent with chronic post-traumatic stress disorder.
Neither of the reports from the psychiatrists refer to the orders or to the children spending time with the father. It is difficult to see how they could demonstrate error on the part of the primary judge. As the appeal will be dismissed, the proposed evidence cannot be relevant to a re‑exercise of the discretion. The application will be dismissed.
THE APPEAL
Did the primary judge correctly apply s 60CC(2) of the Family Law Act 1975 (Cth)? (Grounds 1–4)
Part VII of the Family Law Act1975 (Cth) (“the Act”) was amended with effect from 6 May 2024. His Honour was therefore obliged to identify the best interests of the children by having regard to the considerations set out in the new s 60CC(2).
The bulk of the Summary of Argument which deals with these grounds is largely an exegesis of what the mother asserts the law to be after the amendments which, it seems to be assumed by the author, effected a substantial change in the law that must be explained at appellate level. We do not accept that to be so, but in any event, it is not the task of the Court to provide an advisory opinion on matters not raised in the appeal (Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at [45]–[49]).
The closest the submissions came to identifying error was:
67.The present appeal engages with an outcome where it said the Court in reality, simply assumed a safe environment leaving it determined at trial on a proper examination on the evidence, where there was a significant body of evidence capable of supporting a finding that the proposed environment was not only unsafe, but presented a serious risk of harm. Therefore, s 60CC (2) being properly applied there it could not be a determination as a fact, that these children were safe under the order made. The determination it is submitted can not be seen to have applied correctly the requirements of s 60CC and 60CC(2)(e).
(Mother’s Amended Summary of Argument filed 14 November 2024)
The submission did not deign to explain why the professional supervision centre was not safe.
Section 60CC(2)(a) is one of the sections that was significantly amended. It now provides:
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
The mother wrongly submitted that the correct interpretation of this subsection meant that a trial judge was obliged to make orders that ensured the children were safe. That is not so. Rather the Court must consider what arrangements would promote the safety of the children and any person with caring responsibility.
Where the assessment of safety is in issue, it must involve an identification and assessment of the risk to that safety. There is no reason at all why that would not be done in accordance with the principles set out in Isles & Nelissen (2022) FLC 94-092. We note that this was the approach urged on the primary judge by the mother (mother’s Written Submissions filed 5 August 2024, pages 3–4). It is difficult for her now to take a different stance on appeal.
The risk of emotional harm to the children is very relevant to the question of safety. We have already discussed and quoted some of the passages where his Honour dealt with the questions of the risk of psychological and emotional harm to the children and to the mother and will refer to others shortly. This consideration was given significant weight by the primary judge. It cannot be said that s 60CC was not correctly applied.
Did the primary judge err in the identification of unacceptable risk? (Grounds 5–7)
Under these grounds it was submitted that the primary judge “failed to appropriately take into account the mandatory considerations pursuant to s 60CC of the Act and to engage with the requirement to consider the question of safety” and “did not consider the fundamental factors (such as their vulnerabilities) material to children’s safety and wellbeing of the children and the potential risk of emotional harm” (mother’s Amended Summary of Argument filed 14 November 2024, paragraph 74 and 75).
Again, the complaint, apart from the reference to safety, is too general to be of assistance.
To deal with this submission, and subsequent grounds, it is necessary to turn to his Honour’s reasons and to survey them briefly.
At [22] the primary judge noted the limitations of an interim hearing, which generally does not determine contested issues of fact, and identified the matters for consideration as follows:
22As I explore, to the extent necessary and where all advocates were conscious of the limitations that arise from making findings on hotly contested facts, much of the oral submissions focussed on:
(a)the mother’s assertion that the father is an unacceptable risk to the children, both in respect of possible sexual abuse but also family violence; and
(b)what the children are recorded as saying to the report writer, and whether, as the Independent Children’s Lawyer and father contend (and the mother rejects), supports a desire of the children to have any time with the father; and
(c)even if the form of supervision proposed by the Independent Children’s Lawyer and father can ameliorate or mitigate the risks asserted by the mother, whether the best interests of the children are met where:
(i)the mother says, as the primary carer, she would struggle to support such orders; and
(ii)after many years of no time, or communication, between the father and the children, attempts to engage should wait until a final hearing, before contemplating such engagement.
This entirely accords with the approach taken in SCVG & KLD (2014) FLC 93-582, where the Full Court confirmed that the consideration of s 60CC(2) matters is focused on those raised by the parties, especially in interim hearings.
His Honour then dealt with each of these matters at [26]–[42].
It is plain enough from [26]–[29] that the primary judge found that there was a risk of harm which he considered could be ameliorated by professional supervision (see [28] as quoted above).
At [30]–[34] his Honour considered and gave some weight to the wishes of the children to spend some time with the father.
The question of whether the mother will struggle to support supervision was the subject of discussion at [35]–[38], leading to the conclusion that the children will cope well with the supervised time making it “slightly easier” for the mother to adjust to the children’s reactions at seeing the father (at [38]).
Finally, his Honour considered the question of “the benefits of starting time against waiting until a final hearing”.
Given the discussion at [26]–[29] and [35]–[38], it is difficult to accept the submission that safety and the children’s vulnerabilities were not taken into account.
Did the primary judge engage with the needs of the children and s 60CC(2)(c)? (Grounds 8 & 9)
Section 60CC(2)(c) requires the Court to consider the developmental, psychological, emotional and cultural needs of the child when making a parenting order. The submission made was that “the particular needs of the children are not demonstrated to have been assessed generally or considered specifically from the perspective of their safety or risk of harm” (mother’s Amended Summary of Argument filed 8 November 2024, paragraph 83).
It is not obvious how this ground differs from those just discussed.
The “particular needs of the children” where not identified to us or to the primary judge. Indeed, this subsection only received passing attention from the mother in her Written Submissions to the primary judge (see the mother’s Written Submissions filed 5 August 2024, paragraph 2.12–2.13). It is difficult then to see how this ground could be sustained.
However, for the reasons already given, it is clear that his Honour took this consideration into account.
Were the reasons inadequate? (Grounds 10–12)
It was submitted that the reasons were inadequate in that no reasons, or inadequate reasons, were given or that the primary judge failed to engage with 17 different factual findings identified in the grounds.
The obligation to give reasons is well known. In Bennett and Bennett (1991) FLC 92-191, the Full Court adopted the following test (at 78,266):
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will … be inadequate if:–
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
In Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, the NSW Court of Appeal expounded:
57.The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes “a sense of grievance” and denies “both the fact and the appearance of justice having been done”, thus working a miscarriage of justice.
58.The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.
59.The reasons must do justice to the issues posed by the parties’ cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted… it is necessary that the primary judge “ ‘enter into’ the issues canvassed and explain why one case is preferred over another”.
(Citations omitted)
His Honour’s reasons supported interim parenting orders which are to be in place until a final hearing. The children had not seen the father for some four years and, to some degree, wished to see him in circumstances where the mother was particularly vulnerable and the allegations against the father had not yet been considered by a court. In such a case, it is rare that a trial judge can make findings of fact on disputed issues.
The content of reasons is affected by these matters as well as the parties’ approaches to the hearing. It is well established that a judge does not need to mention every fact or argument relied upon (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]) and the appellate court will “avoid an overly critical, or pernickety, analysis of the primary judge’s reasons” (AMS v AIF (1999) 199 CLR 160 at [150] per Kirby J).
For these reasons we will not deal with each of the 17 separate issues raised by the grounds. This is consistent with the mother’s approach in both her written and oral submissions which largely dealt with the mother’s, and hence the children’s, difficulty in coping with the children spending time with the father.
As appears from the passages we have referred to in his Honour’s judgment the reasoning process is apparent and it can be seen why the orders were made. It follows that the reasons are adequate.
Disposition
No ground of appeal has enjoyed merit. The appeal will be dismissed.
COSTS
In the event the appeal was unsuccessful, the father sought indemnity costs in the sum of $40,157.95. In the alternative, the father sought costs calculated in accordance with the scale set out in Sch 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) in the sum of $18,545.46.
The Independent Children’s Lawyer did not seek costs.
An order for costs requires the Court to be satisfied, in all of the circumstances, that such an order is just. In considering that, the Court must take into account the matters set out in s 117(2A) of the Act. Indemnity costs are only awarded in exceptional cases (see Kohan and Kohan (1993) FLC 92-340).
The father submitted that the mother tried to run the appeal like it was a test case and that none of the matters raised were argued before the primary judge. This is not a “special or unusual feature” (Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233 per Sheppard J) which justifies an order for indemnity costs in this case.
Whilst there were some obvious difficulties with the form of many grounds of appeal, we are not satisfied that this an exceptional case which warrants indemnity costs. The appeal was, however, wholly unsuccessful and the mother will pay the father’s costs fixed in the sum of $18,545.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Wilson & Campton. Associate:
Dated: 26 February 2025
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