Webb & Simpson
[2023] FedCFamC1A 15
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Webb & Simpson [2023] FedCFamC1A 15
Appeal from: Webb & Simpson [2022] FedCFamC1F 732 Appeal number: NAA 230 of 2022 File number: PAC 769 of 2017 Judgment of: TREE, CHRISTIE AND SCHONELL JJ Date of judgment: 17 February 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders providing that the child live with the father, the father have sole parental responsibility and the child spend time with the mother at the father’s discretion – Where the mother appeals those orders on various grounds – Whether the decision was plainly wrong – Where appealable error must be established with reference to material available to the primary judge – Mistake of facts – Where it is not open to the appellant on appeal to raise an argument not pursued at trial – Whether the primary judge failed to take into account material considerations – Adequacy of reasons – Where the appellant’s grounds are unsuccessful – Appeal dismissed.
FAMILY LAW – ORAL APPLICATION TO ADDUCE FURTHER EVIDENCE – Where the appellant sought to adduce further evidence at the hearing – Where the evidence would only be relevant if the Court were to allow the appeal and re-exercise the discretion – Application dismissed.
Legislation: Family Law Act 1975 (Cth) s 60CC
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.06
Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Housev The King (1936) 55 CLR 499; [1936] HCA 40
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 79 Date of hearing: 2 February 2023 Place: Sydney The Appellant: Litigant in person The Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Mr Hill Solicitor for the Independent Children's Lawyer: Kathryn Renshall Lawyers ORDERS
NAA 230 of 2022
PAC 769 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS WEBB
Appellant
AND: MR SIMPSON
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
TREE, CHRISTIE AND SCHONELL JJ
DATE OF ORDER:
17 february 2023
THE COURT ORDERS THAT:
1.The appellant’s oral application to adduce further evidence is dismissed.
2.The Amended Notice of Appeal filed 28 November 2022 is dismissed.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Webb & Simpson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE, CHRISTIE & SCHONELL JJ:
This is an appeal against final parenting orders which provided that 14 year old X live with her father who was to have sole parental responsibility for her.
X’s mother seeks that this Court allow the appeal, set aside those orders and re-exercise the discretion, so as to provide her with sole parental responsibility and care of X. Both X’s father and the independent children's lawyer oppose the appeal.
For reasons which follow, the appeal will be dismissed.
background
The primary judge recorded the relevant background as follows:
6. The parents commenced living together in March 2008. At that time the mother had a child, Ms E who was born [...] 1999, from a previous relationship. Ms E was in the primary care of the mother when the parties commenced cohabitation.
7. According to what the mother told [the single expert] Dr D, the relationship between the parties deteriorated in late 2013 and early 2014, but that she was too weak to leave the relationship. In her trial affidavit, the mother claimed that at some stage, possibly in 2014, she took Ms E took [sic] to a psychologist in City F where, according to the mother, Ms E was confirmed to be suffering from anxiety due to the father’s alleged abuse of the mother, Ms E and X and the heightened conflict between the parties.
8. The parties separated on 3 March 2015 and they agreed on a shared care arrangement pursuant to which the father cared for X five nights in a fortnight. In December 2015, Ms E left the home of the mother and returned to live with the father. According to the father’s evidence, in January 2016 the arrangements for X changed so that she was now in his care for six nights a fortnight.
Thereafter the primary judge dealt with events which occurred between November 2017 and January 2018. In November 2017, the respondent left X in the care of Ms E while he travelled overseas. Before he returned, X went into the appellant’s care. While in the appellant’s care, the appellant claims that X disclosed that Ms E had abused her, which caused the appellant to seek professional help for X. The appellant then withheld X from the respondent, although, eventually she was returned to his care by execution of a recovery order on 5 February 2018.
Later, the appellant sought to remove X from her school, contrary to orders, which led to an Apprehended Domestic Violence Order being made against the appellant for the protection of the respondent and X. Subsequently, the appellant has had intermittent phone communication with X, although X has evidenced some resistance to it. Supervised time between the appellant and X commenced on 3 August 2019, but in March 2020 the appellant indicated to the contact centre that she believed the court order for time was invalid and the contact centre suspended their services from 13 March 2020. Then, COVID-19 intervened, and when time thereafter commenced, it was not particularly successful. It ceased altogether in September 2020, and has not resumed, although phone communication continued and was still occurring at the time of trial.
At trial, the appellant pressed for X to return to her primary care and for sole parental responsibility. However the primary judge made orders largely in terms of the minute of order sought by the respondent and supported by the independent children’s lawyer. Such orders were contemplated by and consistent with the evidence of the single expert.
the APPELLANT’S oral application to adduce further evidence
The appellant’s written submissions appeared to foreshadow an application to adduce further evidence, but during oral argument she accepted that the material she wished to place before the Court did not establish appealable error on the part of the primary judge, but may only be of relevance if the appeal were allowed and the Court re-exercised discretion.
In that respect, her application was not opposed by the respondent or the independent children’s lawyer. However, since the appeal will be dismissed, the further evidence will not be admitted.
the appeal
The Notice of Appeal contained seven grounds, however two were abandoned in the appellant’s Summary of Argument. All of the remaining grounds arise from the primary judge’s exercise of a discretion.
At the outset, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 (“House”) at 504-505 must be established. There, the majority of the High Court said:
… 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. …
Ground One: The Judge’s decision is plainly wrong
Two primary contentions were advanced under this ground; the first related to the parenting orders; the second related to a costs order made against both parties which required them to equally meet Dr D’s costs.
As to the former, the Family Law Act 1975 (Cth) (“the Act”) confers on a trial judge a broad discretion when making parenting orders, guided by statutory principle. Consistent with House, this Court will intervene only where the reasons, when read with evidence, demonstrate the decision was “plainly wrong” because the result is “no proper exercise of … [the primary judge’s] judicial discretion” (Gronow v Gronow (1979) 144 CLR 513 (“Gronow”) at 519). It is not sufficient that any or all of us, “…faced with the same material, would have reached a conclusion different from that under appeal” (CDJ v VAJ (1998) 197 CLR 172 at [186], per Kirby J).
Even where “the nature of the error may not be discoverable” the decision should not stand “if upon the facts it is unreasonable or plainly unjust”; the discretionary decision “is reviewed on the ground that a substantial wrong has in fact occurred” (House at 505).
As the respondent observes in his Summary of Argument, in advancing this aspect of the ground, the appellant focuses on events after the making of the primary judge’s final orders in aid of the conclusion that the decision is plainly wrong. The fact that the orders have not had the effect the appellant desired is not relevant to the assessment of whether they are, having regard to the material before the primary judge, plainly wrong.
As honed, the appellant’s argument appears to be that the orders have not created (or not yet created) a situation where she is seeing and spending time with X. This outcome was one which was clearly in his Honour’s contemplation. The complex history, as reflected in Dr D’s evidence, was that time between X and the appellant may be appropriate in due course. Further, the respondent may be best placed to assess if each of the necessary pre-conditions had been satisfied: X was stable and developmentally on track and the appellant had engaged in therapeutic intervention. It is no error of principle that the events post trial have occurred in a manner which was clearly contemplated by the orders.
We are not satisfied that the primary judge’s parenting orders were plainly wrong, and hence this aspect of Ground 1 fails.
As to Dr D’s costs, Order 12 of the primary judge provided:
Within seven days of the date of these orders, the mother shall pay to the father the sum of $5,500 being 50% of the cost of the single expert report of Dr D and 50% of Dr D’s fees and charges for giving evidence at the final hearing of this matter.
The appellant says this order was plainly wrong because it is impossible for her to comply and unreasonable, as proper consideration was not given to the amount she pays in child support and the period of time his Honour gave her to pay the sum ordered.
The first matter to note is that r 7.06(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides:
Unless the parties agree otherwise or the court otherwise orders, the parties (but not an independent children’s lawyer) are equally liable to pay a single expert witness’s reasonable fees and expenses incurred in preparing a report.
At [116] his Honour found that the appellant had the money to meet a costs order because she receives $100 profit from her rental property per week and has an income of $120,000 per year. His Honour took into consideration that the appellant pays a “significant amount” in child support but was ultimately satisfied that she nonetheless had the capacity to make the payment ordered.
There was little evidence in the appellant’s trial affidavit about her current finances. There was a small portion of cross-examination about her capacity to pay for the child’s private school fees. The appellant says at [58] of her affidavit filed 29 August 2022 that she has “turned [her] life around and [has] been able to recover from the financial abuse …”.
The submissions on behalf of the appellant at the conclusion of the trial in respect of this issue were appropriately brief:
[Appellant’s counsel]: I just wish to raise one final issue, which is the payment of Dr D’s costs which are being sought by the mother for 50 per cent. I’m instructed that that’s opposed. My client doesn’t have capacity. She has got a mortgage. She’s also paying child support at this stage at $1000 per month, and you’ve seen the witness in the witness box. I imagine that if there’s going to be any order it would be very difficult. I’m not suggesting that she would be non-compliant, but I don’t feel that she has got any capacity at this stage to meet that order if there was one to be made.
(Transcript 7 September 2022, p.19 lines 40–47)
Given the state of the evidence before the primary judge, the decision to make an order that the appellant contribute half the costs of the single expert could not be regarded as plainly wrong, nor unreasonable.
No aspect of this ground is established and it therefore fails.
Ground Two: The Judge acted upon a wrong principle
As argued, this ground was advanced by reference to three themes.
Firstly, the appellant contends that the primary judge was in error when he found that the evidence did not support a finding that the respondent’s conduct met the definition of family violence.
This is not properly characterised as acting on wrong principle but more accurately understood as a complaint by the appellant that the primary judge’s finding was inconsistent with the evidence. We shall deal with it under Ground 5.
Secondly, the appellant submits that his Honour’s reference to the ability of the parents to communicate was an erroneous reference to repealed s 60CC(3)(c) of the Act which, when in force, listed as a consideration: “the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent”. That challenge is not made out. His Honour was plainly and appropriately referring to the provisions of s 60CC(3)(i) of the Act which provides: “the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents”.
Finally, the appellant submits that the primary judge failed to afford proper (or any) weight to the views of X.
At [87]–[88], the primary judge expressly considers X’s views. Thus the appellant’s complaint must be not that the primary judge failed to consider the child’s views, but rather that in assessing the weight to be attached to those views, he impermissibly took into account evidence from the respondent and the single expert about how an order implementing what were said to be X’s views would impact upon her. However plainly the primary judge was entitled to assess the weight to be given to X’s wishes in the light of that evidence.
Not only does such a challenge face a high bar (Gronow at 519) but in any event, his Honour’s approach to the consideration of X’s views was in line with the principles set out by the High Court in Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [34]–[35]. No error is demonstrated.
Ground 2 fails.
Ground three: The Judge allowed extraneous or irrelevant matters to guide or affect the decision
This ground was abandoned by the appellant in her Summary of Argument.
Ground four: The Judge mistook facts
Five factual errors are relied upon by the appellant in advancing this ground.
The first error asserted in the appellant’s Summary of Argument is the finding by the primary judge that the appellant had behaved in an uncontained manner during time with X.
The appellant argues, erroneously, that the primary judge was not entitled to rely on the respondent’s evidence in that regard. The primary judge sets out the respondent’s evidence which he accepted. It accorded with the single expert’s conclusions as recorded at [76]. It also accorded with the observations of the supervised contact centre as recorded in annexure BB to the respondent’s affidavit filed 18 August 2022. The primary judge therefore did not make a factual error.
The second matter relied upon by the appellant is the primary judge’s reliance on text message communication between the parties (exhibit 2) which the primary judge concluded was a graphic example of the difficulties the parties have communicating (at [102]). The appellant says that those text messages have been taken out of context. That submission begs the question what context would have convinced the primary judge to regard the message “Go fuck yourself [Mr Simpson]! Please note, record, highlight, underline and put in motherfucking italics you fucking Aspergers CUNT!!!!!” as anything other than a graphic demonstration of communication difficulties? No error in this respect is established.
The third asserted error is the reliance placed by the primary judge on Dr D’s report, although this is probably not accurately characterised as factual error. The appellant develops the submission that Dr D failed to comply with various of the Rules and accordingly, the primary judge was in error in relying on the report. The appellant was represented at trial and no objection was taken to the tender of the report into evidence. Indeed the appellant herself relied upon aspects of the report and it is listed in her Outline of Case Document under the heading “Documents relied upon”. It is not open to the appellant on appeal to raise an argument not pursued at trial; she is bound by her conduct of the trial (Metwally v University of Wollongong (1985) 60 ALR 68 (“Metwally”)).
The fourth asserted error relates to the admissibility of the Child Inclusive Conference Memorandum. It was plainly a document relied upon by the independent children’s lawyer in her Outline of Case Document. The appellant’s counsel did not object to its tender in the case of the independent children’s lawyer and, noting that, it is too late to now do so (Metwally).
Finally, the appellant contends that the report attached to the affidavit of psychologist, Ms N, was inadmissible. No such submission was made at trial and it now cannot be advanced (Metwally). The appellant relies on what she says are failures to comply with the Rules as they apply to single experts. Ms N was not engaged as a single expert. In any event there is no error of fact or at all.
The fact that the appellant disagrees with a finding is not the same as a factual error. The appellant has not established that the primary judge was mistaken as to any of the factual matters which underpinned his orders and accordingly this ground fails.
Ground five: The Judge failed to take into account some material considerations
The material considerations which the appellant says were omitted by the primary judge fall into the following categories:
(1)Not recognising family violence perpetrated by the respondent;
(2)Ignoring that the respondent failed to facilitate time between the appellant and child;
(3)Not acknowledging the appellant’s preparedness to undertake further psychiatric assessment;
(4)Overlooking specific details about X’s abuse;
(5)Not identifying that the appellant’s poor relationship with X was impacted by a lack of time since 2018;
(6)Overlooking that the appellant does not have a personality disorder;
(7)Ignoring that Dr D did not recommend supervision;
(8)Not recognising that the appellant had acted protectively; and
(9)Ignoring that X remains unsettled.
Family violence
It is necessary to understand the broader context of the proceedings to appreciate why no error is made out as a consequence of the primary judge’s approach to the appellant’s allegations of family violence.
Although the appellant says she was prospectively concerned about the potential for the respondent to perpetrate physical violence, she accepted that the respondent had not been physically violent, and hence her claim focussed upon psychological abuse.
The primary judge concluded:
104. Despite the mother’s assertions, I am not satisfied that any of the conduct of the father can be described as family violence.
105. A final Apprehended Domestic Violence Order was made against the mother in favour of the father and X on two occasions, with the most recent order only lapsing in March 2022.
The appellant’s Notice of Risk filed 22 March 2019, under the heading “Particulars of alleged family violence or risk of family violence” read:
The father has a history of emotionally abusing the mother and the child, 'gaslighting' - disregarding and challenging their experience and reality.
The father has a history of grooming and emotionally abusing the child's older sister Ms E (DOB …), since she was 15 years old. He does this in order to manipulate and control the older sister, and to alienate her from her mother. He also has a history of manipulating the older sister to use physical violence against the child.
The father's behaviour has escalated to using direct physical force against the child and the mother.
The father has a history of attacking the mother's ability as a parent and making cruel and insulting remarks about her sanity. He does this to portray the mother as 'Mentally disordered' in front of the child, the child's older sister, the court, family, medical professionals, and mutual friends
The father has a history of verbally abusing the mother and taunting her in front of the children
(As per the original)
The appellant’s Notice of Risk filed 14 May 2019, under the heading “Particulars of alleged family violence or risk of family violence” read:
The father has a long history of coercion and control, verbal abuse- swearing at the mother in front of the children and screaming at the older child, and physical abuse -pushing and standing over the mother
The father also has a history of psychologically abusing the mother and the children.
The appellant’s allegations of family violence as they appear in her affidavit evidence are set out under a heading “[Mr Simpson’s] Abuse of Me” and include:
12. [Mr Simpson] has a history of domestic abuse in the form of coercive control and emotional abuse toward me, and this worsened after I ended the relationship in 2015.
13. Before meeting [Mr Simpson], I had a 2-bedroom unit, had purchased a new car, and I regularly took my daughter Ms E on holidays. When [Mr Simpson] and I decided to move in together, I sold my unit, and [Mr Simpson] and I purchased a house together.
14. During my relationship with [Mr Simpson], he financially abused me. This worsened toward the end of our relationship when [Mr Simpson] relentlessly pressured me and coerced me into selling the family home at a great loss to the both of us. [Mr Simpson] blamed me entirely for the financial loss we incurred.
15. The financial abuse continued after the end of our relationship. At this point I wanted to work on weekends so that I could continue to support Ms E and X’s school and after school activities. Working on weekends would also mean that [Mr Simpson] could spend time with X while I worked. However, [Mr Simpson] was not happy with this and said words to the effect, “Weekends are important to me, and I do not want to have X every weekend”.
16. I have suffered from anxiety and depression at times in my life however this was due to stress. I have sought treatment and have been able to successfully manage my mental health. I have seen a Trauma Counsellor in Suburb K and am in the process of organising to see a Psychologist to treat the trauma I have endured worrying about X and not being able to spend time with X. I have undertaken grounding and mindfulness exercises and engaged in online stress-management self-help programs.
Broadly understood, the matters which the appellant said constituted coercive control related to the parties’ finances and to her perception that the respondent had manipulated Ms E.
It is significant that the parties reached an agreement after separation that provided that the child was in the care of the respondent in week one from after school Thursday to before school Monday and in week two from after school Wednesday to before school Friday.
Then, after proceedings commenced, the parties entered into consent orders which provided:
3. That pending further Order X live with the father as agreed between the parties and failing agreement, as follows:
3.1 From midday Friday 26 January 2018 until 9AM Tuesday 30 January 2018.
For the purposes of this Order the changeover on 26 January 2018 shall take place at McDonalds Restaurant, Suburb W.
3.2 During school term and during school holidays, on a 2 weekly rotation:
3.2.1 In week 1: Commencing Thursday 1 February 2018 from Thursday after school (or 4PM if holidays) until the following Monday before school (or 9AM if holidays).
3.2.2 In week 2: Commencing Wednesday 7 February 2018 from Wednesday after school (or 4PM if holidays) until the following Friday before school (or 9AM if holidays).
3.2.3 On Tuesday 6 February 2018 … from after school until 8.30PM.
…
5. That in the event the mother establishes permanent residence within 5 kilometres of U school, then:
5.1 during school term, time events shall commence and conclude at the school.
5.2 during school holidays:
5.2.1 The mother shall deliver X to the father’s residence at the commencement of a time event;
5.2.2 The father shall deliver X to the mother’s residence at the conclusion of the time event;
6. That subject to Order 7, in the event the mother establishes permanent residence more than 5 kilometres from U school, then:
6.1 during school term, time events shall commence and conclude at the school.
6.2 during school holidays changeovers shall take place at a public location nominated by the father.
To the extent that the appellant had concerns, they did not prevent her from reaching the agreement in the consent orders. We accept that the appellant’s preparedness to enter into these arrangements is not conclusive of whether the respondent exercised coercive control, but as part of the evidence which was before the primary judge, it is relevant to his conclusion.
At the trial the appellant characterised both the respondent’s failure to facilitate time between the appellant and X and the respondent’s pursuit of parenting orders through the courts as examples of continued family violence perpetrated by the respondent towards her (Transcript 6 September 2022, p.3 lines 10–25). The appellant’s subjective belief that these acts constituted violence were not consistent with the primary judge’s findings.
The appellant’s submissions on appeal repeat her position at trial, namely that the Court should find that the respondent’s actions constitute psychological violence.
Dr D gave evidence that she was aware of the appellant’s allegations of violence and, whilst she did not seek to usurp the fact finding role of the Court as regards those allegations, nonetheless observed that, while aware of conflict between the parties, she had seen no evidence that would suggest that the conflict was outside what may be regarded as a “normal range” within a relationship. She very carefully explained that the appellant’s experience is separate from whether the events occurred in a way which might be objectively characterised as coercive and controlling or financially controlling.
The respondent was not cross-examined about any of the appellant’s allegations concerning family violence. This is a significant factor supporting the finding of the primary judge.
In summary, the primary judge concluded that the respondent’s actions in the litigation were child focused and appropriate and that the appellant had led scant, if any, evidence of violence perpetrated by him. Those findings were available and support his Honour’s conclusions. There is thus no error.
Respondent’s poor facilitation of contact
The appellant submits that the primary judge failed to take into account the respondent’s conduct in preventing time between the child and the appellant. The appellant’s Summary of Argument contains the following:
1.9.When making orders, his Honour erred when he failed to properly consider that the father has a history of disallowing contact between X and I and blaming both X and I for his failure to adhere to court orders ([Mr Simpson]’s trial affidavit filed 18 August 2022, paragraphs 89, 90, 91, 92, 111, 115, 118, 119, 121,122, 124, 127, 128, 131, 132, 133, 152,153, 154,156, 157, 170, 190, 194). The Judge also erred when he failed to consider that the excuses provided in [sic] by the father in his trial affidavit and during cross examination are not acceptable reasons for non-adherence to court orders, that is, [Mr Simpson] not agreeing with the orders, and X allegedly not wanting to spend time with me or talk to me on the phone.
We infer from this submission that the appellant is arguing that, if the primary judge did not explicitly refer to all evidence, then he should be taken not to have considered it. This is not the position at law – a judge is not required to mention every piece of evidence in his or her reasons (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]). The primary judge had an appreciation that the respondent’s own evidence contained references to occasions on which either he had terminated a telephone call or X had declined to speak with her mother. The reasons make explicit reference to the evidence of the respondent terminating phone calls at [56]. The primary judge found that the respondent has historically supported X spending time with the appellant and sought professional advice to assist him and X in facilitating time. The individual occasions on which he supported X’s decision not to exercise time must be viewed in that context. This challenge fails.
Appellant’s preparedness to seek therapeutic assistance
The appellant challenges the primary judge’s conclusion that she had rejected Dr D’s opinion about the utility of her seeking therapeutic assistance. The appellant says this finding failed to take into account her preparedness to attend an assessment with a psychiatrist to “show that she has no other diagnoses other than ADD” (Appellant’s Summary of Argument filed 13 December 2022, paragraph 5.1). This submission misunderstands both the evidence and the primary judge’s finding. It does not establish a failure to take into account a material consideration.
The primary judge was making findings at the end of the trial where he had read the parties evidence, read the single expert report and listened to the oral evidence of both Dr D and the appellant. Dr D gave evidence at the beginning of the trial and so the appellant was cross-examined after having heard the oral evidence of the single expert. Dr D’s report spoke of the desirability of the appellant working with “a clinician experienced with dialectical behavioural therapy”. Dr D confirmed in her oral evidence that if things remained as they were when she interviewed the family then she confirmed that opinion. She said that the appellant working on her own mental health ahead of any therapy with X would be her “strong preference” (Transcript 5 September 2022, p.23 line 30).
This evidence grounded the primary judge’s finding that Dr D had concluded the appellant would benefit from assistance. The appellant’s own evidence confirmed that in the period between February 2018 and the hearing in September 2022, her sole mental health intervention was a single session with a trauma counsellor (Transcript 6 September 2022, p.5 lines 5–10). Plainly, the primary judge’s conclusion that the appellant would benefit from therapeutic assistance, but had been disinclined to pursue it, is unimpeachable.
Failure to give precise details of X’s alleged abuse
The appellant submits that the primary judge’s finding at [12] amounts to a failure to take into account a material consideration:
12.One of the difficulties in this matter is that the mother never said precisely what X disclosed to her about her alleged abuse by Ms E and when exactly it was said to her. …
The primary judge refers to the appellant’s affidavit filed on 29 August 2022 which is the appellant’s primary evidence of the allegations:
42.While in G Town, X had panic attacks at the thought of having to return to [Mr Simpson]’s home. X said to me words to the effect of, “they can’t make me go back there”. X then told me that Ms E was hitting, slapping, punching, kicking, and choking her. X also told me that Ms E would tell her words to the effect, “Dad isn’t here to protect you, X”.
The appellant says his Honour thus was in error as she had provided more than generalised evidence. In her Summary of Argument she provides a transcript reference which contains evidence by her about the alleged abuse that emerged during cross-examination:
[Respondent’s counsel]: Well, what did she tell you about what had happened?
[Appellant]: So she told me that Ms E had been – actually, I didn’t know. So, like – so initially what happened, I knew something was happening and then she didn’t really say much. And, like, just based on her physical appearance – she was, like, really dissociative. She – yes. Based on, really, her physical and mental health appearance, so I knew something was happening. So I started calling the FACS helpline, and they said, “You need to find out what it is. You need to take her to a hospital,” whatever. And so I didn’t know. Like, it was, like, I – I just knew there was something happening because there was a massive escalation in her presentation. And so we went to – which one [hospital] was the first one?
(Transcript 6 September 2022, p.16 lines 19–28)
It is then established that the hospital was H Hospital and the evidence continued:
[Respondent’s counsel]: …You went to a sexual assault counsellor. Is that right?
[Appellant]: Yes. So what happened was I went into ED and I said to the nurse, “I’m really worried that, you know, something has happened to her. And I – I don’t know. It might be sexual. I don’t know”. And then the nurse ran with that, called in the sexual assault counsellor. The sexual assault counsellor turns up. And the sexual assault counsellor later told me, “I’ve just been told that somebody has been sexually assaulted”. She told me that after.
(Transcript 6 September 2022, p.16 lines 40–46)
Having regard to the evidence to which the appellant draws the Court’s attention in her Summary of Argument, the conclusion of the primary judge that the appellant had not provided precise evidence of disclosures remained open, and hence this challenge fails.
Appellant’s poor relationship with X the result of lack of time
The next issue raised by the appellant was that his Honour, in finding that the relationship between the appellant and child needed repair, failed to take into consideration that repair was required because of the extensive period during which the appellant and child had not spent adequate time together. His Honour clearly appreciated that the relationship between the appellant and child had been effected by a number of factors including the lack of time since the recovery order in 2018. The appellant does not seem to seriously challenge the finding that such repair is necessary. She is concerned with whether the primary judge understood and took into account all of the factors which led to the need for repair. We are confident he did, and hence not persuaded that any error is established.
Appellant does not have personality disorder
The appellant submits at [5.6] of her Summary of Argument that the primary judge’s failure to refer to Dr D’s evidence – that the appellant did not suffer from a personality disorder – is an error. If the primary judge had found that the appellant did suffer from a personality disorder then the appellant’s claim of failure to take into account a material consideration would be valid. However since the primary judge made no such finding, then a failure to record this piece of evidence does not amount to error.
Single expert did not recommend supervision
The appellant says that when the primary judge found at [62]: “Dr D did not suggest that … therapy would necessarily lead to anything other than supervised time”, he failed to take into account that Dr D’s position was that supervision was “not necessary or beneficial for contact to be supervised” (Appellant’s Summary of Argument filed 13 December 2022, paragraph 5.7). The difficulty with that submission is that it is contrary to the recommendations in Dr D’s report, as reconfirmed in her oral evidence. This challenge is without merit.
Appellant acted protectively
The appellant’s Summary of Argument at [5.8] argues that the primary judge failed to take into account that she had acted protectively in withholding X in 2018. Whilst at trial the appellant’s case was that in doing so, she was acting protectively, the primary judge did not accept that, given the opinion of the single expert, the records of JIRT and the lack of any objective evidence of risk. The appellant has therefore not demonstrated error.
X remains unsettled
The appellant’s Summary of Argument asserts at [5.9] that the child is not settled. The submissions read as though they are evidence of matters which have occurred since the making of the final orders. This Court cannot treat them as evidence. As outlined above, matters which take place after the final hearing cannot ground a successful appeal in reliance upon the argument that the primary judge failed to take into account a material consideration. The material consideration said to have been overlooked must be a material consideration in existence (and in evidence) at the time of trial.
Evaluation
As none of the matters which the appellant asserts under this ground have been established, she has failed to demonstrate error, and thus Ground 5 fails.
Ground six: The Judge made a decision that upon the facts is unreasonable or plainly unjust
This ground was abandoned in the appellant’s Summary of Argument.
Ground seven: Inadequate reasons were given by the Judge
The appellant disagrees with the reasons given by the primary judge, but did not effectively articulate either in written or oral submissions why it is that the reasons themselves were inadequate.
Reasons will be inadequate where it is not apparent how the decision was reached, upon what evidence the decision was reached or the pathway that lead to a stated conclusion (Sun Alliance Insurance Ltd v Massoud [1989] VR 8 cited with approval in Bennett and Bennett (1991) FLC 92-191). That is not the position here. The appellant has not demonstrated error, and this ground fails.
Conclusion
None of the grounds advanced by the appellant are made out and the appeal will be dismissed.
Costs
The parties have each appeared on their own behalf. The independent children’s lawyer did not seek costs. There will be no order as to costs.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Christie and Schonell. Associate:
Dated: 17 February 2023
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