WGOC and GH & Anor
[2016] FamCAFC 199
•14 October 2016
FAMILY COURT OF AUSTRALIA
| WGOC & GH AND ANOR | [2016] FamCAFC 199 |
| FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against final parenting orders according the mother sole parental responsibility of one of the children – Where the child previously lived with the father but absconded and refused to return – Where the father refused to consent to the child attending a new school – Where the child had not attended school for a period for two years as a result – Where the father alleged the trial judge failed to consider the best interests of the child and properly apply the relevant provisions – Where it was found the trial judge appropriately applied the relevant provisions of the Family Law Act 1975 (Cth) – Where the orders were appropriate in the circumstances – Appeal dismissed. FAMILY LAW – COSTS – Where the appeal has failed and the father and mother are self-represented – No order as to costs. |
| Family Law Act 1975 (Cth) s 4, 60CC, 61DA(2), 117 |
| Sampson & Hartnett (Provision of [2010] FamCAFC 220 Transcript) (2013) FLC 93-542 |
| APPELLANT: | WGOC |
| RESPONDENT: | GH |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 11408 | of | 2009 |
| APPEAL NUMBER: | NA | 42 | of | 2015 |
| DATE DELIVERED: | 14 October 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Strickland & Ryan JJ |
| HEARING DATE: | 3 February 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 May 2015 |
| LOWER COURT MNC: | [2015] FamCA 356 |
REPRESENTATION
| FOR THE APPELLANT: | WGOC (in person) |
| FOR THE RESPONDENT: | GH (in person) |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr McGregor |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
The appellant father have leave to rely on his Amended Notice of Appeal tendered at the hearing of the appeal.
The appeal is dismissed.
Paragraph (3) of the Application in an Appeal filed 16 October 2015 is allowed and the Court dispenses with the requirement for a transcript.
No order as to costs.
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 WGOC & GH 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 BRISBANE |
Appeal Number: NA 42 of 2015
File Number: BRC 11408 of 2009
| WGOC |
Appellant
And
| GH |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed with leave at the hearing of the appeal, WGOC (“the father”) appeals orders of Hogan J made 15 May 2015. The father and GH (“the mother”) have two children, X born in 1998 (“X”) and Y born in 2000 (“Y”). At the time of trial, Y refused to have contact with his father and had not attended school for some two years because his father would not agree to his attendance at a school other than one nominated by him. X, was living with his father but not seeing his mother. The focus of the trial was the issue of a future relationship between the father and Y.
The orders of Hogan J provided that X live with the father and Y live with the mother, with each parent to have sole parental responsibility for the child in their care. The orders provided for X to spend time with the mother specified in the orders, and Y to spend time with the father if he wished to do so. The orders further provided for the mother to facilitate counselling sessions for Y with an independent counsellor.
Prior to the making of these orders and since December 2011, Y and X primarily lived with the father and spent time with the mother. This arrangement was in place by consent. In November 2013, Y ran away from the father’s home and commenced living with the mother.
The Application
On 16 October 2015 an Application in an Appeal was filed by the father, seeking either that the court provide him with a recording of the hearing before Hogan J, a copy of the transcript of that hearing or in the alternative, dispensation of the requirement for a transcript for the hearing of the appeal.
In his affidavit filed on the same date, the father explains that he does not have the financial resources to obtain the transcript. The father submits he would be “denied access to justice without the court making an order in the nature of that contemplated in the application filed herewith.”
During the hearing of the appeal, the father submitted two main reasons why a transcript should be provided by the court:
a)The cross-examination of the mother: the father submits that a number of issues were raised about the mother’s conduct, and her credit was challenged during cross-examination. The father states that this evidence is essential to his appeal grounds on the issue of the children being subject to psychological harm, and the mother’s overall attitude towards parenting.
b)Conduct of the Independent Children’s Lawyer (“the ICL”): the father also submits that a transcript is necessary to demonstrate the alleged inappropriate conduct of the ICL and the Report Writer.
The application was not supported by counsel for the ICL.
In particular, the father failed to agitate complaints about the ICL and Report Writer at trial and this was first raised on appeal. The reasons of the trial judge sufficiently explain the evidence of the mother.
This Court does not have funding for the provision of transcript to litigants. Only in the rarest of cases will the court provide the transcript, or part of it, to a party (Sampson & Hartnett (Provision of [2010] FamCAFC 220 Transcript) (2013) FLC 93-542). We will allow the father to argue his appeal without a transcript.
Background
The father was born in 1965 and is presently 51 years of age. The mother was born in 1970 and is presently 46 years of age. The parties commenced a relationship in 1991, married in 1998, and separated the following year.
The father re-married Ms HDS and they have three children, born in 2002, 2005 and 2011 respectively.
The mother re-married Mr H and together they have a child, B who is approximately 12 years old. The mother and Mr H are no longer in a relationship, and the daughter spends time with Mr H each week.
Y and X initially primarily lived with the mother. After a trial in 2005, on 1 July 2005 Barry J made final parenting orders providing the children live with the mother and spend time with the father on alternate weekends and half of the school holidays.
On 8 December 2011 Coates FM (as his Honour then was) made final parenting orders, by consent, providing that the children live with the father and according the father sole parental responsibility. Only the father had the authority to decide the schooling of the children. The children spent time with the mother on alternate weekends and half of the school holidays.
The events triggering the proceedings before Hogan J began in November 2013. Y ran away from the father’s home and ultimately commenced living with the mother. There were considerable difficulties including police involvement to assist in bringing Y back to the father, Y spent some time in foster care, and the mother herself attempted to return Y to the father. As a consequence of the December 2011 consent orders, the mother could not enrol Y in a school closer to her home and the father refused to consent to Y enrolling in a new school. To repeat, at the time of the trial, Y had not attended school since November 2013. The father would only agree to Y attending a certain private boy’s school of his choosing.
The oldest child, X, continues to live with the father. The father ceased facilitating X’s time with the mother after Y ran away, as he was concerned X “might be manipulated by the mother and fail to return to his primary care” (at [7]). The brothers have therefore not spent time together since November 2013.
Reasons of the Trial Judge
In view of the nature of the grounds of appeal, it is necessary to set out the Reasons in more detail.
Proposals of the parties
After explaining the extraordinary circumstances as to why Y has not attended school since November 2013, the trial judge set out the proposal of each of the parties.
At [9] the trial judge recorded that the mother proposed that X continue to live with the father, with the father to retain sole parental responsibility. The mother also sought to reinstate time with X on alternate weekends. As to Y, the mother proposed he live with her and she have sole parental responsibility, which would enable her to enrol Y in a local school. She also proposed that Y not be forced to spend time with the father against his will, and to restrain the father from coming within 200 metres of Y (and her other child).
The father proposed that Y return to his sole care, with his interaction with his mother to be restricted for “not less than six months and that [Y] attend counselling” to improve the relationship between the father and Y (at [12]). The father proposed a psychologist that had previously consulted with Y, who the trial judge found was clearly aligned with the father and that it was “highly unlikely [Y] would regard this person as either neutral or someone with whom he could develop rapport and/or in whom he could trust” (at [15]).
A central issue in the father’s proposal was that Y would achieve better results at school if he remained in his father’s care. Her Honour commented that the father’s attitude to Y’s academic success (or lack thereof) whilst with the mother was “hypocritical and even more incomprehensible” in light of his refusal to permit Y to enrol at a new school (at [20]).
In the alternative, the father proposed that Y live with the maternal grandmother. This proposal was immediately dismissed by the judge, as the maternal grandmother had not intervened in the proceedings, was not a party to the proceedings, had not been called as a witness and from her interview with the Family Report Writer, it was clear this proposal had not been properly canvassed with her. Her Honour noted:
18.That the father persisted with his proposal that [Y] simply be sent – like a chattel – to live with his maternal grandmother, despite Mr [C’s] unchallenged evidence about such an idea and the fact that the relationship between the mother and the maternal grandmother has broken down, provides further insight into his likely overall approach to dealing with parenting situations in which his views and [Y’s] conflict. It also clearly demonstrates his underlying view of the mother’s parenting capacities.
The father contended that it was in Y’s best interest that he be returned to live primarily with him and relied on the opinion of the Family Report Writer, who in a family report prepared on 15 October 2014, found the father as having “a genuine interest in the welfare of his children”. This opinion was also apparently supported by the ICL. The trial judge expressly rejected this impression of the father and it is useful to repeat those findings in her Reasons:
21.Such attitude and his resolute determination, since early 2014, to refuse to permit [Y] to attend at any school other than one facilitated by him compels my rejection of both Mr [C’s] assessment of him - as a parent who has a genuine interest in the welfare of his children - and the submissions made by Counsel for the Independent Children’s Lawyer to the effect that the father is very interested in [Y’s] welfare.
22.I consider that no parent for whom their child’s best interests and/or welfare remains a primary and overriding focus could act as the father has in withholding from [Y] the opportunity to continue to obtain an education. That he gave no consideration to investigating whether the school at which [Y] was enrolled in 2013 would be prepared to provide him with the means to continue his attendance remotely whilst in his mother’s care is unfathomable. That the father himself has benefited from significant educational opportunities only magnifies the appalling nature of his behaviour.
23.A further appreciation of the father’s approach to the issue of [Y’s] non-attendance at school from 2014 onwards is obtained by referring to his response when asked by Counsel for the Independent Children’s Lawyer why [Y] had not been at school since December 2013: he said that he was enrolled at [Suburb E], his household had made it clear he should be returned to them, the mother failed to return him and so [Y] did not go to school. His position was clearly articulated: [Y’s] non-attendance at school was not as a result of anything that he did. I do not accept the submission made by Counsel on his behalf that it was not the fault of the father that [Y] was not at school.
The Child Y Absconding
As previously noted, Y ran away from the father’s home in November 2013. Y has consistently refused to remain in his father’s care since that time, despite a number of interventions such as involvement by the police, placing Y in foster care and Y being returned to the father by the mother. At [27] the trial judge sets out in detail the events of November 2013, and the actions of Y thereafter. It is clear that Y is absolutely determined not to return to his father’s care.
The father’s position is that this is a result of the mother’s intervention, and her apparent encouragement of Y to run away (at [28]). The mother in response accepts she did send messages and emails to Y about his time with the father, but denies she encouraged him to run away. The father brought such communication to an end, by changing Y’s password. The mother then created a new account for Y to contact her while he was at school. The trial judge accepted the mother’s evidence, finding this was not an action to undermine the father, but rather it was “a response to [Y’s] request for an opportunity to communicate with her more extensively than was permitted in the father’s household” (at [31]).
Views of the children
The trial judge referred to Y’s interview with the Family Report Writer, noting “he wanted nothing to do with his father” and would “not hesitate to [run away] again if the Court forced him to return” (at [40]). This view was supported by evidence given by the mother at the trial, noting Y had plans to run away again if someone came to get him. The Family Report Writer recorded Y had very negative views of his father, describing him as “angry and aggressive all the time” and was never happy at being “sent” to live with his father pursuant to the consent orders made in December 2011 (at [42]).
It was noted that Y had expressed suicidal ideation and self-harm (at [50]). Y’s account of living with the father was entirely negative, and it was reported he considered killing or hurting his father. The trial judge rejected any submission made by the father that the mother was complicit in or encouraging of Y’s negative views.
Her Honour found:
43.I accept Mr [C’s] evidence that the fundamental concern is that [Y] is emphatically rejecting of his father. I further accept his evidence to the effect that [Y’s] demonstration of this rejection is not limited to words but has found expression in his history of absconding from his father’s care.
44.I agree with Mr [C’s] opinion to the effect that, given [Y’s] age and developmental stage, it is difficult to see how this rejection is to be overcome. I further accept his evidence that, if an adolescent such as [Y] runs away from the parent’s home, there is a very real possibility he may end up on the streets and at risk.
Her Honour concluded that Y had formed these views on his own, and such views have been strongly held at least since November 2013. Thus, her Honour found that these views should be “accorded considerable weight”..
Although, as noted above, the Family Report Writer found the father had a genuine interest in the welfare of Y, he did not make a final recommendation as to the child’s living arrangements.
It was recorded that Y missed his brother X, but otherwise had no interest in his other half-siblings. Her Honour found that Y had a close relationship with his mother, and a “significantly fractured relationship with his father”.
Likely effect on the children of any changes in circumstances
It was accepted by the trial judge that it was “much more likely than not – and almost inevitable” that Y would run away again if placed in his father’s care. In her interview with the Family Report Writer, the maternal grandmother agreed with this proposition. If Y were ordered to return to his father’s care, it was likely that force would be required to effect this change. The trial judge concluded the she held “grave concerns that attempts to force him to do so will result in him absconding from his mother’s care also” (at [71]).
Parental capacity and attitude
It was again noted that one of the father’s central issues was that Y was performing better in school while in his care. In assessing the father’s parental capacity, her Honour noted:
74.The father’s approach to [Y’s] schooling provides a clear demonstration of his complete unwillingness or inability to yield in any way when circumstances are not as he considers they should be. It undermines completely his professed concern about the impact of an asserted lack of educational opportunities for [Y] if he remains living with his mother.
75.The father’s comment to Mr [C], when challenged about his decision to refuse to agree to [Y’s] enrolment at a school other than the one he attended before he ran away, provides a clear basis for Mr [C’s] assessment of him as a parent who believes his views are correct. I consider that his determination to continue to refuse to yield to the idea that [Y] attend at a school other than the one he had chosen is a clear demonstration of an inability to separate matters in the child’s best interests from his own determination to impose his will.
(Original emphasis)
As to the mother, the trial judge found that she was supportive of Y returning to school and would enrol him if orders permitted her to do so. While the Family Report Writer found there was “some ambivalence in the mother’s appreciation of her role with [Y]” her Honour concluded that the mother’s method of communicating “was in stark contrast” to the father. The trial judge found the mother facilitated counselling sessions with Y to assist with his absconding. It was also found the mother attempted to persuade Y to return to the father, and told Y initially that she could not take him into her care as it was in breach of the orders.
While some criticisms were made of the mother, it was ultimately concluded that such criticisms did not persuade the trial judge to force Y to resume living with his father.
Further proceedings
The trial judge noted that the parents had been unable to co-parent in any meaningful way (at [87]) and found that they should be “freed from the obligation to seek the views of the other” because it adds little benefit to the children and would ultimately result in further litigation.
Parental dynamics and responsibility
The Family Report Writer found, and it was accepted by the trial judge, that the parents had little or no communication. Her Honour noted that this strained dynamic was evident again in the father’s proposal that Y lives with the maternal grandmother, even though the maternal grandmother and mother have almost no relationship.
Neither parent sought an order for equal shared parental responsibility. The ICL also opposed such an order. Her Honour noted the presumption in s 61DA(1) of the Family Law Act 1975 (Cth) (“the Act”) and that it must be applied unless the court is satisfied of the matters in s 61DA(2). Ultimately, the trial judge found that the presumption was rebutted:
94. Given the findings outlined above, conclusions other than that:
a)there is absolutely no prospect at all that these parents are likely to be able to communicate and co-operate sufficiently to make decisions jointly about major long terms issues relating to the children; and
b)these parents are incapable of negotiating matters about long term issues relating to the children and incapable of making decisions about such issues jointly; and
c)the relationship between these parents is such that it would not be in the children’s best interests for their parents to have equal shared parental responsibility for them,
would be perverse.
Opinion of the Family Report Writer
The trial judge accepted the opinion of the Family Report Writer that X’s best interests would be met by living with the father, and spending time with the mother and Y.
Her Honour then concluded that Y’s views should be accorded great weight, as he had the experience of living with his father already and it was not a positive one for him. Y had consistently expressed his intention to run away again if he was ordered to live with the father. It was accepted that Y would be happier living with the mother and was able to enrol into school. Her Honour was “easily persuaded” that it would be in Y’s best interests to remain living with the mother.
The trial judge considered counselling would be appropriate for Y, and with the mother’s support to facilitate a more neutral counsellor than the one proposed by the father, it was deemed to be in Y’s best interests to make an order for counselling.
Contravention
The contravention application filed by the father on 5 February 2014 was dismissed. The father alleged a number of actions by the mother contravened the December 2011 consent orders, including that she had failed to return Y once he ran away, that she withheld the child and that she did not encourage the child to spend time with the father. The mother accepted that she had contravened the orders, however the trial judge found the mother had a reasonable excuse.
The mother’s evidence about her attempts to return Y were accepted by her Honour:
124.In so far as the period from 7 November 2013 until 10 January 2014 – when she took [Y] to the [M] Hospital and contacted the Department - is concerned, I accept the mother’s evidence that [Y] would not return to live with the father and that she was concerned, if she forced him to do so, he would run away from her also. I further accept that she attempted to persuade him to resume contact with the father and that she provided the father with an email address by which he could contact [Y]. I accept she encouraged [Y] to contact a telephone counselling service and that her attempts to obtain supportive therapy for him via a mental health plan were stymied because of the existence of the order according the father sole parental responsibility for [Y]. I accept that she convinced him to go to the [M] Hospital by telling him that she could not continue to fail to comply with the order and that he should speak with someone from the Department.
125.I accept she told [Y] he needed to speak to his father and that [Y] told her he could not and did not want to. I also accept she facilitated [Y] speaking with his paternal grandmother, a person with whom he liked to speak. I also accept the mother’s assessment that attempts to ‘make’ [Y] have a relationship with his father has not and will not work into the future.
The trial judge found that the mother had a reasonable excuse for contravening the orders, as Y refused to return to his father’s care. It is noteworthy that the mother’s evidence about her attempts to return Y to the father were not challenged by the father (at [129] of the Reasons). The trial judge further found that the mother appropriately permitted Y to remain in her care because “she believed on reasonable grounds that her actions were necessary to protect his health and safety”.
The contravention application was therefore dismissed. The father’s application for costs of the proceedings was also dismissed, with her Honour finding the circumstances were not ones justifying a departure from s 117(1) of the Act.
The Appeal
The Father has nine grounds of appeal:
1.The Trial Judge erred in failing to consider the best interests of the children in:
1.1Failing to consider how best to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
1.2Failing to adequately consider the separation of the children from each other, and its relevance to, or effect on, their welfare;
1.3Failing to adequately consider the Respondent’s history of frustrating contact between the children and the Applicant father, and their siblings;
1.4Failing to adequately consider the Respondent’s undermining the children’s relationship with the Applicant father and their siblings.
2.The Trial Judge erred in failing to adequately consider the Respondent’s extensive history of failing to comply with court orders.
3.The Trial Judge erred in failing to adequately consider the evidence of the Applicant.
4.The Trial Judge could not reasonably rely on the evidence of the Respondent in the circumstances.
5.The Trial Judge erred in law.
6.The Orders of the Trial Judge cannot reasonably be expected to further the child [Y] in having a meaningful relationship with both parents.
7.The Independent Children’s Lawyer failed to adequately discharge their duty to the court in taking an adversarial approach to the Applicant.
8.The Independent Children’s Lawyer failed to adequately discharge their duty to the Court in not properly examining the Respondent in relation to her failure to comply with court orders.
9.The Family Report Writer failed to adequately discharge his duty to the Court in not reaching a conclusion as to with whom the child [Y] should reside.
Grounds 1 and 5 – Failure to consider best interests and properly apply the relevant provisions
These grounds formed the central contention of the father on appeal. They can be summarised as the trial judge erring by giving greater weight to the s 60CC(3) factors in the Act, including and in particular Y’s views, rather than the primary considerations contained in s 60CC(2).
It will be recalled that s 60CC provides:
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
…
(Emphasis added)
The focus of the father’s challenge is primarily against the following paragraph of her Honour’s reasoning:
39.There is no suggestion that the children have been subjected to harm from being exposed to family violence, neglect or physical abuse.
It is apparent that in [39], her Honour addresses the second of the primary considerations to the extent these matters were raised as issues in the trial before her.
Before us, the father was asked to identify how it was that s 60CC(2)(b) applied in this case. It was ultimately submitted that there was evidence of abuse, neglect and family violence. That may be so, but the section is concerned with protection (in the future) from the risk associated with those matters. Therefore, for example, if the behaviour was inconsequential or long past and there was no suggestion it had or might occasion psychological harm then a judge could safely conclude (as her Honour did) that there was no suggestion that the children have been subjected to harm or might be in the future.
In relation to family violence, the father agreed that the evidence he relied upon concerned an isolated incident at the school gate in the presence of X in 2009. He then instead focused on the submission that Y had been subjected to abuse. The definition of abuse is contained in s 4 of the Act:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
(Original emphasis)
The father submitted the evidence of abuse came within sub-clause (c) referred to above, that is, there was evidence that the mother caused Y to suffer “serious psychological harm” by involving him in the parental conflict and consequently subjecting him to psychologically abusive behaviour.
X was exposed to an incident of family violence in 2009 and the risk could be seen to emanate from the father.
The evidence in relation to the 2009 incident of family violence is to be found in two places. First, in the father’s affidavit filed 5 February 2014, at [48], where he says “On 13 November 2009, when I finally did manage to collect [X] from his school, and attempted to collect [Y] from his school, I was assaulted by the Respondent and a number of others, leading the Magistrates Court of Australia to make a Domestic Violence Order against the Respondent on 12 April 2010, which Order was enlarged by consent. This incident was witnessed by my son [X]”.
This incident was also dealt with in the family report at [67]-[68] which provides:
67.On one particular occasion [WGOC] attempted to facilitate a transfer on the ‘off’ weekend. He collected [X] from the [M High] School and then went to [Y’s] school. [GH] claims that [WGOC] had to ‘strong arm’ [X] to get the child to accompany him. She claims that [X]’s resistance continued when they got to the … School, which [Y] was then attending. On interview [WGOC] spoke somewhat disparagingly of this school which, he alleges, teaches the children how to busk.
68.It seems that [WGOC] and [GH] arrived at the school at the same time. [WGOC] claims that he was detained and assaulted by the mother and the staff of the school. [GH] insists that the father’s claims are simply a fabrication and he was bruised as a consequence of [X] kicking out at him. It appears that the police were eventually called. I understand that no one was charged but the father did secure a Domestic Violence Order.
It is noteworthy that on 8 December 2011, in the consent orders, it was agreed that the children should have unsupervised time with the mother, including each alternate weekend and half school holidays. Implicit in those orders is an acknowledgment that the children were not at risk of physical or psychological harm from being exposed to family violence in either parent’s care including therefore arising from the 2009 incident.
This point is reinforced by the written submissions made by counsel who appeared for the father at trial. In this regard the father’s case before the trial judge concerning the application of s 60CC(2) included the proposition that there was evidence that the child Y needed to be protected from psychological harm caused by exposure to abuse, neglect or family violence. The proposition was advanced thus:
Physical or psychological harm
12.The Court is also required, under s60CC(2)(b) to consider the need to protect the child in this case from physical or psychological harm, and from being subjected or exposed to abuse, neglect or family violence.
13.In his affidavit [footnote 6 ie par 45 of his affidavit] the father deposes to his concerns about psychological harm to [Y] being exposed to sexually explicit content of the Respondent’s posts on her Facebook page.
14.Contact between [Y] and her former partner [Mr H], who was a habitual user of marijuana [footnote 7 see para 46 of the report writer’s report], encouraged by the mother, is a great concern to the father.
Paragraph 45 of the father’s affidavit filed 5 May 2015 records:
45.I am also concerned that the respondent is a Facebook friend to my son, and that he is exposed to the sexually explicit content which she regularly posts on her Facebook page. For example on 28th April, 2015, she posted:
“Is your orgasm more intense when you have a full bladder? Just read that so it must be true right? So girls and boys. Is it true for you? Do u have a more yummy orgasm with a full bladder.”
and then posted further:
“I’m a lucky girl that I love orgasms always yummy and never in single they are always mind blowing. So with my first test. I actually did not notice any difference. Just as yummy. However may be they are referring to internal orgasms I’ll have to get back to u on that one Lol. Xxx ps my video on DR is coming. Oh oh god!!! It’s coming. Well today… Sometime before midnight”
Of this, the trial judge said:
86.Whilst there is, I think, validity in the father’s criticisms of the mother’s laissez-faire approach to the management of her Facebook account, this aspect of her approach to parenting is not, of itself, sufficient to persuade me that it is in [Y’s] best interests to be forced to return to live with his father.
The father also complained that the mother was sending Y “secret” messages when he was living with his father. Of this, the trial judge said:
32.I do not accept the father’s assertion that the messages between [Y] and his mother were daily, secret, poisoned messages. A perusal of the contents of those which passed between [Y] and the mother from about July 2013 until about October 2013 reveals mostly supportive and encouraging comments from her to him. She clearly expressed to him her appreciation of him as a person and her delight in his existence. She exposed him to her view of the world as a place within which the expression of positive affirmations and beliefs can be used to influence behaviours and decisions and where each person, including children, has the power within themselves to make decisions.
The question which then arises is: was this evidence (in the absence of expert evidence) capable of establishing that in a mother’s care the child has or would suffer psychological harm. In our view, it does not and with respect to the father, the proposition advanced is no more than the father being concerned about the possibility of psychological harm. Not even the father suggests that the evidence established “serious psychological harm”.
There is no suggestion of the need to protect the child from psychological harm because of exposure to family violence. That does not appear to ever have been part of the father’s case.
The issue raised at [14] of the father’s affidavit (referred to in [58] above) is simply stated as being a concern and there is no evidence at all about how that could equate to a risk of psychological harm from exposure to abuse, neglect or family violence. It follows that her Honour was quite correct in her conclusion at [39] of the Reasons.
At trial, counsel for the father did not submit that the judge should find that there had been family violence. There can be no doubt that on both parties’ cases the 2009 incident was of such antiquity and, as an isolated incident, irrelevant to the determination of the parenting applications in 2015.
As to the various allegations of psychological harm upon which the father relied before us, involving the child in parental conflict and encouraging him to run away, those issues are dealt with at length in her Honour’s reasons to which we have referred. The preconditions which trigger the application of s 60CC(2A) were not established by the father.
It follows that her Honour considered the application of the primary considerations and the weight issue in the manner contended for by the father at trial. In effect, under the rubric of the secondary considerations, the judge went on to consider his contention about the potential for psychological harm from alienating behaviour by the mother. On the evidence before her Honour, the judge was entitled to reject the submission that Y had been subjected to abuse.
Error as suggested has not been established.
Grounds 2, 3 and 4
These grounds variously assert that the trial judge erred in:
a)Failing to consider the mother’s “extensive history” of non-compliance with previous orders;
b)Failing to consider all of the evidence of the father; and
c)Relying on the evidence of the mother.
As to sub-paragraph (a) above, the father suggests that the mother’s conduct in returning the child to the hospital after he had run away, instead of straight to the father, was a “wanton refusal” to comply with orders.
The trial judge expressly addressed the mother’s history of non-compliance. At [85] of the reasons, the trial judge noted that criticism should be made of the mother’s inaction to enable Y to return to school. Her Honour returns to this issue in greater detail at [121] where the father’s contravention application is considered.
As to sub-paragraph (b) and (c) above, the father suggests the trial judge erred by failing to consider his evidence that he attempted to enrol the child in a school other than at Suburb E, being Suburb K. We have been unable to locate such evidence and were not taken to any specific reference in the appeal books. Notwithstanding, if such evidence exists, it does not alter the result that Y did not attend school for a period close to two years.
As correctly submitted by the ICL, the trial judge certainly also had regard to a number of other matters raised by the father. These include, but are not limited to, the history of parenting arrangements (at [9]), that Y was encouraged by the mother to leave the father’s care (at [27]), and as mentioned, that the mother was sending messages to Y (at [28] – [33]), and Y’s schooling achievements (at [73]).
It must be acknowledged that the trial judge did not refer to all of the father’s complaints, such as X’s absences from school and Y’s name originally being registered as “J”. But as correctly submitted by the ICL, the case did not turn on these issues. A primary concern for her Honour was the best parenting arrangements that would ensure Y returning to school and to not make orders that would place Y at risk. Therefore, error in these grounds has not been established.
Ground 6
The father argues that the trial judge erred by failing to make orders that fostered or furthered a relationship between himself and Y. To determine this ground it is useful to refer to the relevant orders in relation to time to be spent between the father and Y, all of which were subject to the child’s wishes:
(9)Subject to his wishes, the child [Y] spend time and communicate with the father as follows:
…
(10)In order to facilitate [Y] spending time with the father in the manner outlined above:
(a)the mother, or her representative, will deliver [Y] to the [Suburb A] train station at 5.00 pm on Fridays and at the commencement of [Y’s] holiday time with the father; and
(b)the father, or his representative, will deliver [Y] to Pioneer Park, [Town Z] at 5.00 pm on Sundays and at the conclusion of [Y’s] holiday time with him.
Despite the father’s complaints that the mother had failed to foster his relationship with Y, actively manipulated Y or campaigned against the father, it must be recalled these orders were made not solely based on the mother’s opinions, but on the specific and clear views of Y as recorded in the Family Report. Y expressly referred to his negative feelings about his father, reported suicidal ideations and contemplations of self-harm, and also spoke of an incident where he wanted to hurt his father.
Having regard to all the findings of the Family Report Writer (at [50] – [52] of the Reasons) and having already determined Y’s views should be accorded significant weight (at [59]), it is clear her Honour made appropriate orders that were entirely within her discretion and in the child’s best interests.
Additionally, Order 13 specifically provided for therapeutic intervention for Y in a bid to repair the relationship he had with his father:
(13)The mother shall ensure that [Y] attends upon a counsellor or psychologist, nominated by the Independent Children’s Lawyer, for the purpose of assisting [Y] to repair his relationship with his father and:
(a)such counselling shall continue for as long as the therapist considers appropriate; and
(b)each party shall participate in the counselling in a manner deemed appropriate by the therapist.
It must be recalled that Y’s previous experience with counselling had been a negative one, it being with a counsellor who was clearly aligned with the father and who told Y his feelings about the father were without merit (at [14] of the Reasons). The fact the father pressed his own views demonstrates his lack of insight. Her Honour ordered that counselling continue, but to be with a person nominated by the ICL.
This ground of appeal must fail.
Grounds 7 – 9
The father variously asserts in these grounds that the ICL and Family Report Writer failed to adequately discharge their duties. In his summary of argument, the father alleges that counsel for the ICL adopted “a combative and adversarial approach”. The father further asserts that the ICL did not properly cross examine the mother, but did not explain how.
It was made clear to the father during the hearing of the appeal that these grounds could not succeed, unless the father could demonstrate that the failings of the ICL and the Report Writer led to an error by the trial judge. The father was unable to demonstrate such error.
Additionally, as the written submissions of the ICL advance, the father was represented by counsel during the trial and had every opportunity to challenge the conduct of the ICL if required. No such action was taken. Further, the ICL correctly notes that counsel for the father also had the opportunity to cross - examine the mother and could have raised and challenged aspects of her parenting.
The father criticised the Family Report Writer for failing to make a recommendation for Y’s living arrangements. The ICL quite appropriately submits that it is not always appropriate for such recommendations to be made, particularly in view of the strong opposition voiced by Y about his father. When regard is had to the father’s written submissions in the trial, filed by leave on 7 May 2015, it can be seen that the absence of a recommendation by the Family Report Writer was not then raised.
Further, when one has regard to the Family Report, it is clear the Report Writer was careful in his conclusion:
169.I do have the view that [Y] should live with one of his parents and that he needs to be in school. I also support the notion of counselling to involve both [Y] and his father. I could envisage some potential for the inclusion of the mother.
In these most unusual circumstances it was proper for the Report Writer to be constrained in expressing his opinions about where the child should live.
Two issues remained abundantly clear to all. Y would not live with the father, and the father would not consent to Y enrolling in a new school (despite the father suggesting otherwise). The consequence was Y missing nearly two years of schooling, at a critical stage of his development. Such an impasse could only be resolved by making new orders for Y to live with the mother, and to empower the mother to enrol Y in a new school. Grounds 7 to 9 are not made out.
Appeal against contravention and costs orders
At the outset of the hearing of this appeal, clarification was sought by us as to whether the father sought to appeal Order 20, which provided that “All outstanding Applications are dismissed.” The father confirmed he was still appealing this order, but failed to properly articulate any submissions in support. It follows that this aspect of the appeal must also fail. We accept that her Honour’s finding that the mother established a reasonable excuse for her non-compliance with the orders was open.
Conclusion and Costs
For the reasons discussed, it is clear that the appeal must fail, there being no error demonstrated.
At the conclusion of the hearing of the appeal, the parties were asked for submissions in relation to costs. The father sought a costs certificate in the event the appeal succeeds and a re-hearing is ordered. The ICL made no submission on the issue of costs.
The mother represented herself. In these circumstances, although the appeal has been unsuccessful, it is appropriate that there be no order for costs.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Strickland & Ryan JJ) delivered on 14 October 2016.
Associate:
Date: 14 October 2016
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