Willmore & Menendez
[2022] FedCFamC1A 73
•20 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Willmore & Menendez [2022] FedCFamC1A 73
Appeal from: Menendez & Willmore [2021] FamCA 595 Appeal number(s): NAA 8 of 2021 File number(s): BRC 354 of 2020 Judgment of: MCCLELLAND DCJ, BAUMANN & HARTNETT JJ Date of judgment: 20 May 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Best interests of the child – With whom the child lives and spends time – Discretionary judgment – Where the trial judge made orders for the child to live with the respondent and spend time with the appellant and for the respondent to have sole parental responsibility – Where the appellant submitted that she was encouraging of the relationship between the child and the respondent and that she had not manipulated evidence – Where the primary judge found there was a risk of harm to the child posed by the appellant’s entirely negative perception of the respondent – Where the primary judge found the appellant had factually changed events and fabricated allegations of sexual abuse to remove the respondent from the child’s life – Where the primary judge found that the appellant tried to exert control over the child’s relationship with the respondent – Findings as to with whom the child should live was open on the evidence – Where the primary judge failed to provide adequate reasons as to supervised time for an extended period – Appeal allowed in part – Matter remitted – Costs certificates granted. Legislation: Evidence Act 1995 (Cth) s 140(2)
Family Law Act 1975 (Cth) Pt VII, ss 60CC, 117
Federal Proceedings (Costs) Act 1981 (Cth) s 6
Cases cited: B and B (1993) FLC 92-357; [1993] FamCA 143
Bant & Clayton (2019) FLC 93-924; [2019] FamCAFC 198
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Blinko & Blinko [2015] FamCAFC 146
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Cheadle & Pointer [2020] FamCA 327
Donnell & Dovey (2010) FLC 93-428; [2010] FamCAFC 15
FJ & PN Curran Pty Ltd v Almond Investors Land Pty Ltd [2019] VSCA 236
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gong & Wei (2017) 59 Fam LR 1; [2017] FamCAFC 55
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
M v M (1988) 166 CLR 69; [1988] HCA 68
Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31
Owens & Benson [2014] FamCAFC 243
Reeves & Grinter [2017] FamCAFC 19
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
Wen & Thom [2010] FamCAFC 81
Number of paragraphs: 104 Date of hearing: 2 March 2022 Place: Brisbane (via video link) Counsel for the Appellant: Mr Foley Solicitor for the Appellant: DA Family Lawyers Counsel for the Respondent: Ms Murphy Solicitor for the Respondent: BGM Family Lawyers Counsel for the Independent Children's Lawyer: Ms Dart Solicitor for the Independent Children's Lawyer: Dooley Solicitors ORDERS
NAA 8 of 2021
BRC 354 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS WILLMORE
Appellant
AND: MR MENENDEZ
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ, BAUMANN & HARTNETT JJ
DATE OF ORDER:
20 MAY 2022
THE COURT ORDERS THAT:
1.The appeal is allowed in part.
2.Orders 4(b)–(f) and (5) made on 11 August 2021 be set aside.
3.The matter is remitted for rehearing before a judge other than the primary judge in respect of the issue of what time the child will spend with the appellant; in what circumstances and upon what conditions (if any).
4.The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
5.The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
6.The Court grants the Independent Children’s Lawyer (‘ICL’) a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the ICL in respect of the costs incurred by the ICL in relation to the appeal.
7.The Court grants to each of the parties and the ICL a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties and the ICL in respect of the costs incurred by them in relation to the new trial ordered.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 Willmore & Menendez has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ, BAUMANN & HARTNETT JJ:
INTRODUCTION
On 11 August 2021, final parenting orders were made by a judge of the Family Court of Australia (now Division 1 of the Federal Circuit and Family Court of Australia) in relation to the parties’ child, Child X, born in 2015 (“the child”). The child is now aged six years.
Following the primary judge’s decision, Ms Willmore (“the appellant”) filed a Notice of Appeal on 8 September 2021 and appeals Orders 1–12 of the orders made on 11 August 2021.
The respondent, Mr Menendez (“the respondent”), and the Independent Children’s Lawyer (“ICL”) resist the appeal.[1]
[1] Respondent’s Summary of Argument filed 28 January 2022, paragraph 67; ICL’s Summary of Argument filed 21 February 2022, paragraph 1.
The primary judge, in reaching her decision, concluded that the appellant was unlikely to facilitate the respondent spending unsupervised time with the child. Further, that the appellant had demonstrated a tendency to manipulate evidence to suit her case and had made allegations with the intention of removing, or at least limiting, the respondent’s relationship with the child. The primary judge determined that the appellant posed an unacceptable risk of psychological and emotional harm to the child, but that such risk could be ameliorated by the child living with the respondent and spending supervised time with the appellant, transitioning to unsupervised time after a two year period. The primary judge considered the presumption in favour of equal shared parental responsibility was rebutted, and ordered the respondent have sole parental responsibility and for the child to reside with the respondent.
There has been no stay of the orders.
BACKGROUND
The respondent, aged 45 at the time of the trial, and the appellant, aged 37 at the time of the trial, commenced their relationship in 2013 and began cohabitation in 2015. The child was born in 2015.
The parties separated, on the respondent's evidence, in October 2017 and, on the appellant's evidence, in November 2016. Whichever the separation date, the child remained in the primary care of the appellant.
The respondent commenced a relationship with Ms C in October 2019. They have a child together, Child Y, born in 2021.
Until April 2019, the subject child spent overnight time with the respondent for up to three nights each week. The appellant suspended time between the respondent and child during the period April 2019 and May 2019. The appellant wished for time to be spent between the child and the respondent during weekdays, which the respondent was not able to accommodate because of his work schedule. Thereafter, the child’s time with the respondent recommenced in June 2019, but during the day only.
Following the respondent seeking, on 13 January 2020, parenting orders in the then Federal Circuit Court of Australia (now Division 2 of the Federal Circuit and Family Court of Australia), interim orders were made on 2 March 2020. Those orders provided for the child to spend time with the respondent from 8.00 am to 7.00 pm Monday, Saturday and Sunday in week one, and from 8.00 am to 7.00 pm on Monday in week two. The appellant, however, whilst complying with those orders until June 2020, continued to oppose the respondent spending any time with the child, with her opposition predating her allegations of sexually inappropriate behaviour by the respondent toward the child. The Family Consultant, who conducted interviews with the parties in April 2020, recommended that the child spend two nights each week with the respondent. The appellant opposed that recommendation.
The appellant again suspended the child’s time with the respondent in June 2020, on the basis that she suspected the respondent had sexually abused the child. The appellant reported her concerns to the Department of Children, Youth Justice and Multicultural Affairs (“the Department”) and the police. The child was jointly interviewed by a male police officer and a female police officer in June 2020, and the 15 minute interview was video recorded. No further action was taken by the Department or police.
In October 2020, and during the preparation of a Family Report, the appellant indicated to the single expert Family Report writer that she opposed the child spending any time with the respondent because of a risk to the child of sexual abuse. The appellant also claimed that the child and respondent did not have a close relationship. The Family Report writer recommended that the child continue to live with the appellant but spend frequent unsupervised time with the respondent. That recommended unsupervised time did not occur, although supervised time did commence in November 2020. The child had not seen the respondent for five months and the respondent had agreed to see the child on terms as proposed by the appellant. At trial, supervised time was occurring for one hour each alternate Saturday and Sunday.
At the hearing, the appellant alleged that the respondent posed an unacceptable risk of sexual harm to the child and, further, that there was an unacceptable risk of the child being exposed to family violence perpetrated by the respondent. Accordingly, the appellant sought that the child have supervised time with the respondent, with such time to occur only if the child agreed, and that, otherwise, the child should live with her and she should have sole parental responsibility for the child.
The respondent alleged that the appellant intentionally manipulated evidence and made allegations of family violence and sexual abuse to remove the respondent from the child’s life, and in so doing posed an unacceptable risk of psychological abuse and/or emotional harm to the child. Accordingly, the respondent sought the child have twelve months of supervised time with the appellant and that otherwise the child live with him and he have sole parental responsibility for the child.
The ICL proposed that, if the Court found the appellant presented an unacceptable risk of psychological harm to the child, then the child should live with the respondent and spend supervised time with the appellant as agreed between the parties or, in the alternative, “on a Saturday and/or Sunday for up to six hours on each day” in week one, for up to two afternoons after school up until 7.00 pm in week two, and on Christmas Day, Easter Sunday and the child’s birthday for up to four hours.[2] In the event the Court found that the appellant did not present an unacceptable risk of psychological harm to the child, the ICL proposed that the child should continue to live with the appellant and spend five nights each fortnight, unsupervised, with the respondent.
[2] ICL’s Proposed Minute of Order tendered 8 July 2021 (Exhibit 17), Order 4.
The judgment of her Honour was predicated on her finding that there was no unacceptable risk to the child in the care of the respondent, but that there was unacceptable risk occasioned to the child by the appellant, who the primary judge found had exposed the child to psychological and emotional harm and engaged in conduct calculated to deprive the child of a meaningful relationship with a loving parent.
GROUNDS OF APPEAL
The appellant’s Notice of Appeal filed 8 September 2021 seeks to challenge a discretionary decision made by the primary judge, being a parenting decision made under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
The applicable principles for appeals regarding discretionary decisions is stated by the majority of the High Court in House v The King (1936) 55 CLR 499 at 504–505, namely:
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.
Where the challenge on appeal is to the weight given to evidence by the primary judge, the appellant must overcome a high hurdle, as adumbrated in Gronow v Gronow (1979) 144 CLR 513 per Stephen J at 519–520:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight…
The Full Court of the Family Court of Australia (“Full Court”) in Bennett and Bennett (1991) FLC 92-191 observed that “in general, the appellate court should be able to discern either expressly or by implication the path by which the result has been reached.”[3]
[3] (1991) FLC 92-191 at 78,267.
We will deal firstly with Ground 2, which concerns the appellant’s asserted denial of procedural fairness. Thereafter, we will deal with Ground 3 in the context where the appellant contended that Grounds 2 and 3 were the gravamen of the appeal. We then consider the remaining grounds of appeal.
GROUND 2
Ground 2 was as follows:
That the primary judge erred, at paragraph 145 of the Reasons for Judgment, in finding that the [appellant] had intentionally manipulated evidence with the intention of removing or at least limiting the [respondent’s] relationship with the child, and the matters relied upon at sub-paragraphs (a) to (j) of paragraph 145 of the Reasons for Judgment are not supportive of such a finding as made by the primary judge.
(As per the original)
As set out in the primary judge’s reasons at [9], the parties had identified, at a directions hearing conducted by her Honour, those significant issues that required determination at the trial. At the commencement of the trial, counsel for the ICL provided the appellant with a copy of that list of issues. Each of the parties were of the view that those issues remained outstanding and required determination. Included in those agreed issues, and not challenged as a matter for her Honour to determine, was the following question:[4]
…..
(5)Has the [appellant] intentionally manipulated evidence and made allegations of family violence and sexual abuse to remove the [respondent] from the child’s life?
Which was followed by:
(6)If so, does the [appellant] pose an unacceptable risk of harm to the child by being expose to psychological abuse or emotional harm?
[4] Reasons for judgment, at [9]; Transcript 7 July 2021, p.49 line 42 to p.50 line 6.
Although not raised as a ground of appeal, the appellant argued, on appeal, that question 5 was firstly ambiguous; secondly, was a question of a collateral nature, going principally to issues of credit and credibility; and thirdly, was varied unfairly with, inferentially, a lack of procedural fairness being afforded to the appellant.
During the course of the trial, counsel for the respondent and the ICL, by reference to this issue, discussed whether the phrase “malicious concoction” of the evidence was the correct term (as initially put forward by the parties in their agreed issues for determination), or whether it was more clearly expressed as “intentional actions to manipulate the evidence”.[5] Her Honour then enquired of counsel for the respondent whether he had put it to the appellant that she had manipulated the evidence. The exchange was as follows:[6]
[Counsel for the respondent]: Yes. I think I can certainly confirm that I have not put that trial issue to her as Browne & Dunn proposition, but I am comfortable enough that the question that I have asked fit a different wording of it.
HER HONOUR: All right. So you want to change the concocted allegations to manipulated allegations, do you?
[Counsel for the respondent]: Yes. Your Honour…
[5] Transcript 7 July 2021, p.46 line 43 to p.47 line 2.
[6] Transcript 7 July 2021, p.47 lines 13–20.
Noting that to be the case, and observing that the respondent’s counsel had asked questions about it in cross-examination, her Honour said:[7]
I think, probably, to be fair to the [appellant] she should know before she completes her evidence what the issues that I am being asked to determine are, and if there is a change to it - - - she should know that.
[7] Transcript 7 July 2021, p.47 lines 38–44.
The issue was then clarified by her Honour, for the benefit of the appellant, before the commencement of the cross-examination of her by counsel for the ICL.[8]
[8] Transcript 7 July 2021, p.49 line 42 to p.50 line 6.
In so far as it is asserted that the issue was said to be ambiguous, the terminology was not ambiguous, nor was its application at trial. We are satisfied that the appellant was aware that what was being considered was whether she had intentionally manipulated the evidence. There was no unfairness occasioned to the appellant in respect to the manner in which the issue was considered by the primary judge.
Counsel for the respondent and ICL argued that the primary judge’s conclusion was effectively two pronged: (a) that there had been an intentional manipulation of evidence by the appellant; and (b) that it was with the intention of removing or at least limiting the respondent’s relationship with the child.
The common law principles discussed in Briginshaw v Briginshaw (1938) 60 CLR 336 (“Briginshaw”) are now embedded within s 140(2) of the Evidence Act 1995 (Cth) (“Evidence Act”).[9] Reference should be made to the appropriate standard in the Evidence Act, particularly having regard to s 140(2)(c) of the Evidence Act, rather than Briginshaw.[10] Section 140(2) of the Evidence Act states:
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
[9] Owens & Benson [2014] FamCAFC 243 at [26]–[27].
[10] Johnson & Page (2007) FLC 93-344 at 81,890.
Counsel for the appellant submitted that the primary judge erred in failing to apply the standard of proof as set out in Briginshaw in determining an intentional manipulation of evidence. We disagree. At [144] of the judgment, the primary judge set out her findings in respect to instances where her Honour found that the appellant had manipulated evidence. At [145], the primary judge explained her reasons for concluding that the appellant had intentionally done so. At [145] from (a)–(j), referred to in this ground of appeal, her Honour explained that her decision was informed by a number of factual findings, which were:
(a)The [appellant’s] suspension of the [respondent’s] time with the child prior to any allegation of sexual abuse;
(b)The [appellant’s] consistently negative view of the [respondent] as expressed to [the Family Consultant] and [the Family Report writer];
(c)The [appellant’s] presentation of the [respondent’s] request to return the child to her earlier than 7.00pm as provided for in the court order, as his disinterest in the child, when in fact it was a very child focussed response to his observation that the child was tired by that time;
(d)The [appellant’s] fabrication of a vicious attack upon her by the [respondent] on 8 January 2014;
(e)The [appellant’s] continuing insistence that the [respondent] punched her in the face and head butted her in the nose when the contemporaneous photos do not corroborate her allegations;
(f)The [appellant’s] refusal to accept clear evidence that the child and [respondent] have a close and loving relationship and her belief that the child is fearful of the [respondent];
(g)The escalation of the allegations made against the [respondent] commencing with criticisms of his parenting style, to sexual abuse, to a history of imprisonment for [a serious criminal offence];
(h)The bizarre nature of some of the allegations against the [respondent] e.g. the [fetish] and the manipulation by the [appellant] of a confidence shared with her by the [respondent] about his childhood sexual abuse;
(i)The [appellant’s] unwarranted portrayal of herself as a victim and her tendency towards hyperbole as demonstrated by the following statement during her submissions:
Whether this [serious criminal offence] happened or not, the fact is that for the last seven years of my life I have lived in tremendous, silent fear of his attempt to threaten me with this knowledge. And at no point in time has he advised me that this was, in fact, a lie. I have felt paralysed in all aspects of my life, and have been unable to move forward in work, social life, hobbies, and my own happiness. This has also affected my ability to feel safe. The control, in itself, is something that cannot be seen, may not be believed, but as the one who experienced this, I will say that I will never want my son to have to be bound by this life any longer in which [the respondent] has imprisoned us psychologically. I knew that court was my only chance to protect my son as much as I possibly could.
(j)Such statements belie the apparent absence of fear when taunting the [respondent] at changeovers about his [fetish] and the issuing of her invitation to the [respondent] to join her and the child for Christmas Day 2020.
It is well established that appeal courts do not lightly interfere with the findings of fact made by a trial judge “unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’”.[11]
[11] Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43].
The appellant has failed to demonstrate error on the part of the primary judge in making the findings to which we have referred. The finding set out at [145(d)] of the reasons in respect to the most serious assault the appellant alleged the respondent had perpetrated, being the alleged incident that occurred on 8 January 2014, is also referenced in subparagraph (e) and, described in [118]–[124]. Her Honour clearly outlined her view that the appellant fabricated a story that has “blown [the evidence] out of all proportion in an attempt to bolster her case against the respondent and portray herself as a victim”.[12] This was particularly so in circumstances where the appellant conceded that there was no evidence of any injury to her nose and that no such bruising as she alleged ever resulted from the incident.[13]
[12] Reasons for judgment, at [123].
[13] Reasons for judgment, at [120].
The appellant's allegation, in respect to this incident, could not be said to be a mere “embellishment” or misinterpretation as put by the ICL at the trial.[14] Rather, the primary judge found that it was a deliberate falsehood and the evidence justified that finding.
[14] Transcript 8 July 2021, p.60 line 47 to p.61 line 1.
The other findings made by the primary judge were also reasonably open to her on the evidence. The primary judge was not required to comment on every piece of evidence but did so adequately.
Moreover, the primary judge’s findings in respect to the matters to which we have referred were “affected by impressions about the credibility and reliability of [the appellant] formed by the trial judge as a result of seeing and hearing [her] give [her] evidence”.[15]
[15] Lee v Lee (2019) 266 CLR 129 at [55].
The second aspect of this ground of appeal relates to the finding by the primary judge as to the purpose of the appellant in intentionally manipulating her evidence. In that respect, the primary judge found at [145] that the allegations made by the appellant were “with the intention of removing or at least limiting the [respondent’s] relationship with the child.”
Again, that finding was reasonably open to her Honour having regard to the matters set out in [145] subparagraphs (a)-(j) of the reasons to which we have referred. The fact that the appellant changed her evidence, in significant respects, to suit her case was a factor, which was given significant weight by her Honour.
It was reasonably open for her Honour to conclude, on the balance of probabilities, that the appellant manipulated some of the evidence to suit her case in pursuit of “at least limiting the [respondent’s] time with the child”.[16]
[16] Reasons for judgment, at [145].
Before leaving this ground, we note that counsel for the appellant conceded that a procedural fairness challenge was not expressly contained within the wording of any of the grounds of appeal. It was nevertheless argued that, in the interests of justice, the Court should have regard to the fact that the appellant was unrepresented at trial.
We find that argument to be without merit. The primary judge commenced the trial by explaining to the self-represented appellant the procedures adopted at trial. That process as outlined by her Honour included that:
(a)the ICL would be invited to cross-examine the respondent first in order to assist the appellant, and we note this occurred; and
(b)the appellant should take a pen and paper into the witness box for the purpose of making a note as to evidence which she needed to expand upon, or clarify or correct, following cross-examination of her by counsel. The appellant did so and, when asked by her Honour whether there were any such matters she wished to raise, indicated that there was “nothing further”.[17]
[17] Transcript 7 July 2021, p.132 line 46.
The question of whether a cross-examination banning order pursuant to s 102NA of the Act had been made was canvassed by her Honour. That section of the Act prevents a party from cross-examining another party in circumstances where an apprehended violence order applies or, at the discretion of the Court, in circumstances where there are allegations of family violence.[18] Her Honour confirmed with the ICL and the appellant that the mandatory provisions did not apply.[19] In that respect, the primary judge observed that an ICL had been appointed; that no family violence orders existed; and that nothing in the subpoenaed police material lead either the ICL or the respondent’s counsel at trial to submit that a s 102NA order should be made. Significantly, the appellant was not to be cross-examined by the respondent personally. Her Honour further noted that the appellant herself had made no application for legal representation pursuant to s 102NA in the six month period following the listing of the matter for trial, and that the appellant could have “brought the matter [back to Court] if [she] thought that was something that should occur”.[20]
[18] Family Law Act 1995 (Cth) s 102NA(1)(c)(iv).
[19] Transcript 5 July 2021, p.26 lines 26–27; see also Transcript 5 July 2021, p.27 lines 14–17.
[20] Transcript 5 July 2021, p.27 lines 13–14.
While no error has been established in respect of this issue, we observe that it is probably useful, in particular where there is a litigant in person, for that exercise of discretion to be a matter considered in the case management process before a trial commences.
For the reasons we have set out, Ground 2 is without merit.
GROUND 3
Ground 3 was as follows:
That the primary judge erred in finding that the [appellant] posed an unacceptable risk of harm to the child by exposing the child to psychological abuse or emotional harm.
This ground as stated would appear to be a challenge to the exercise of judicial discretion by the primary judge, encompassing a challenge to the weight given to particular evidence by her Honour. However, the appellant's Summary of Argument also refers to the adequacy of the reasons and conclusion reached by the primary judge. The Summary of Argument refers to “the brevity of the findings and the submitted equivocal nature of the finding at paragraph 152”.[21]
[21] Appellant’s Summary of Argument filed 17 December 2021, paragraph 29.
In Bant & Clayton (2019) FLC 93-924, the Full Court from [38]–[41] explained that the assessment of unacceptable risk is to be considered in the context of principles adumbrated in light of M & M (1988) 166 CLR 69 and observed:
It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).
The process by which a risk is identified and its magnitude measured cannot in parenting cases, be subject to rigid mathematical or empirical assessment. As the High Court said in CDJ and VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:
…Given the nature of applications for parenting orders, there must often be real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order.
The appellant conceded in her Summary of Argument that the primary judge’s reasoning for finding that the appellant posed an unacceptable risk to the child was founded in [146]–[152] of the reasons.[22] The appellant contended, however, that the primary judge’s findings as to the nature of the harm to which the child had been, and was likely to be, exposed when in the appellant’s care (being emotional and psychological) did not lead to a conclusion that the risk was unacceptable. This was because her Honour’s finding was subject to a caveat as contained in [152] of the reasons, being:
…even if I am wrong in my assessment that the magnitude of the risk is unacceptable, there remains a risk and ultimately it is a matter of balancing the competing factors to determine where the best interest of the child lies.
[22] Appellant’s Summary of Argument filed 17 December 2021, paragraph 20.
We reject the appellant’s argument. Nothing in [152] of the reasons altered the primary judge’s ultimate conclusion. The primary judge did not place a caveat on her ultimate conclusion, but rather set out an alternative approach. Her Honour’s finding of unacceptable risk was open to her on the evidence presented and, save for one aspect to which we will subsequently refer, the primary judge properly exercised her discretion in light of that finding.
The primary judge clearly explained her conclusion as to with whom the child should live. In so doing, the primary judge weighed the relevant evidentiary matters and engaged in the exercise of a balancing of the benefits of the child’s relationship with the appellant as against the risks found by her Honour to be posed by the appellant. Having engaged in that task, the primary judge then considered how those risks might be ameliorated in order to advance the best interests of the child and gave consideration to what time the child should spend with the appellant, and in what circumstances.
In this consideration, however, we find the primary judge fell into appealable error in her failure to give adequate reasons for the making of Orders 4(b)–(f) and 5. Those orders went to what time the child would spend with the appellant and in what circumstances and the extent to which there would be communication between the appellant and the child.
The requirement for the giving of reasons is a fundamental requirement of the exercise of the judicial function, as it both demonstrates that justice has been done, and enables the proper challenge of a decision. The content required varies depending upon the circumstances of the case, but is generally that which makes apparent how the decision was arrived at.[23] The obligation is particularly significant where orders are made limiting the amount of time that a child will spend with a parent and the circumstances in which that will occur. In that respect, in Blinko & Blinko [2015] FamCAFC 146 the Full Court said:[24]
The authorities dealing with cases of unacceptable risk are replete with exhortations to trial judges to “consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard”: see for example N and S and the Separate Representative (1996) FLC 92-655 at 82,714. That extends not merely to the identification and analysis of the risk itself, but also to the imposition of conditions or other safeguards in relation to the non-resident parent.
[23] See Bennett and Bennett (1991) FLC 92-191 at 78,266.
[24] Blinko & Blinko [2015] FamCAFC 146 at [28].
The primary judge set out at [164]–[166] of the reasons her balancing of the child’s need to maintain his relationship with the appellant, with the risk of the appellant exposing the child to her distress about the outcome of the trial and her negative views about the respondent.
Whilst her Honour set out her reasons for the need for professional supervision for the first three months following the making of orders on 11 August 2021, her Honour failed to provide adequate reasons as to why she concluded it was in the best interests of the child for the period of supervision to extend over two years. Specifically, in reaching that conclusion, her Honour was required to carefully outline why the risks that she identified, when balanced against the benefits of the child maintaining a meaningful relationship with the appellant, could not be ameliorated such that the child could spend time with the appellant, more frequently and in part unsupervised, prior to the expiration of a two year period.
This is particularly so, in the context of the evidence accepted by her Honour, namely that:
(a)the change in the child’s residence which would follow the making of her Honour’s orders would be “traumatic” and “an extreme change in his life” for the child;[25]
(b)the child was a young child who had a “loving and secure relationship with the [appellant]” with whom he had “spent all his life”;[26] and
(c)the evidence of the Family Report writer was:
(i)“[b]oth the [appellant] and [respondent] reported that the child’s relationship with the [appellant] was very healthy and positive and that the child was closely attached to the [appellant]”;[27] and
(ii)“[t]he subject child appears to be a happy, healthy and personable young boy who is developing appropriately and confidently approaching life. The child appears to have strong positive feelings and security within his relationships with both the [appellant] and [respondent].”[28]
[25] Reasons for judgment, at [157–158].
[26] Reasons for judgment, at [157].
[27] Family Report dated 19 October 2020, p.12, paragraph 57.
[28] Family Report dated 19 October 2020, p.14, paragraph 66.
The primary judge, in our view, provided adequate reasons for making an order for the child to spend no more than two hours weekly with the appellant, for a period of three months. It is not apparent, however, why her Honour concluded that the child’s time should then be constrained to supervised time of six hours per fortnight, together with four hours on each of Christmas Day, Easter Sunday and the child’s birthday, and video calls, cards and gifts for a further period of 21 months.
In the circumstances of this case, less severe options required careful evaluation by her Honour.[29] This included, for example, considering the proposal of the ICL.[30]
[29] Blinko & Blinko [2015] FamCAFC 146, at [31]–[33].
[30] ICL’s Proposed Minute of Order tendered 8 July 2021 (Exhibit 17) p.1–2.
Nor is it clear why her Honour determined that this limited time could be further reduced in circumstances where the proposed contact centre may only be in a position to supervise the child’s time with the appellant for a shorter period. This was in the context where Order 6 of the orders made by the primary judge required the appellant to be responsible “for all costs of the supervised contact”.
The reasons provided by the primary judge should also, in our view, have explained why her Honour failed to act upon the evidence of the single expert Family Report writer, who, in oral evidence, stated that in the event it was found that the child was at an unacceptable risk of harm in the appellant’s care, “the child should live with the [respondent], but also still spend significant time with the [appellant].”[31]
[31] Transcript 7 July 2021, p.137 lines 23–24.
Further, it is not clear, on a reading of her Honour’s reasons, how her Honour determined that after such a restricted regime of time spent with the appellant, for the two years following the orders, the child’s best interests would be advanced by an immediate re-introduction of unsupervised overnight time, which included continuous days and one half of all school holidays. This was in circumstances where there were no orders for the appellant to undertake therapy or counselling to gain the necessary insight as her Honour referred to.[32]
[32] Reasons for judgment, at [154], [166(f)].
For these reasons, we find that there is merit in this ground in so far as the primary judge gave inadequate reasons as to her determination to make Orders 4(b)–(f) and 5.
GROUND 1
Ground 1 was as follows:
That the primary judge erred, at paragraph 141 of the Reasons for Judgment, in finding that the [appellant] would not encourage the child spending time with the [respondent] which was contrary to the evidence of the contact supervisor that the [appellant] was so encouraging.
The notes taken by various supervisors formed part of Exhibit 16 of the ICL’s tender bundle. None of the supervisors were required for cross examination.
It was not possible, on the evidence, for the primary judge to be satisfied that any of the supervisors had expert specialised knowledge, or to conclude solely, on the evidence of the supervisors, that the appellant was supportive of the relationship between the child and the respondent, in particular given the limited opportunity for the making of such observations. Such evidence was thus, appropriately, in our view, accorded a diminished weight by the primary judge in the context of the totality of the evidence and her balancing of that evidence.
At [141] of the reasons, the primary judge observed that despite the appellant's apparent encouragement of the child spending time with the respondent, as noted in the supervisors’ notes, her Honour was not convinced that the appellant would encourage the relationship between the child and the respondent and made findings in that regard. Her Honour was not, in [141], stating that she did not accept the evidence of the supervisors. Rather, her Honour placed that evidence in the context of the totality of the evidence before her of the appellant's behaviour and attitude toward the respondent. This included additional findings and observations in respect of the appellant's lack of willingness and inability to encourage and facilitate the child’s relationship with the respondent, which we have described above.
The findings made by the primary judge were clearly open to be made on the evidence before her Honour. Whilst her Honour acknowledged the content of the supervisors’ notes in her reasons,[33] she placed greater weight on the balance of the evidence in making her findings, as she was entitled to do. Some of that evidence was as follows:
110.The damaging effect of what I find to be the [appellant’s] fixation on the [respondent] being the cause for the child’s behaviour, is perhaps best demonstrated by a recording made by her of the child in the lead up to engaging with the [respondent] during a video call on 2 November 2020 [which was contained in Exhibit 9]. The [appellant’s] description of this recording is – “[The child] getting very distressed over having to talk to [the respondent]”. It is true that in the first 18 minutes of the recording the child is very resistant to speaking to the [respondent] in the upcoming scheduled call. The child repeatedly calls the [respondent] “stupid”. The [appellant] responds with a question: “Tell me why he is stupid”. The [appellant] repeatedly refers to the [respondent] as “HIM”. She asks the child leading questions such as “How does he make you feel when he laughs at you”. She presses the child for answers. Contrary to the [appellant’s] evidence, there was little in her responses to the child that could be described as “reassuring”. If anything the [appellant] encourages and exacerbates the child’s acting out. Miraculously, as soon as the video call with the [respondent] commences, the child engages with the [respondent] and they have a very happy exchange playing a game with Lego for the following 40 or so minutes. Despite the [appellant] acknowledging that the balance of the recording demonstrates the positive engagement of the child with the [respondent], she maintains her position that the child does not want a relationship with the [respondent] and suggests he may even be fearful of him.
111.The recording reflects very poorly upon the [appellant]. It appears that in her attempt to gather evidence (that she mistakenly believes supports her case), she has ignored the detrimental impact of her conduct on the child. It is apparent that the child is aware of the [appellant’s] negative view of the [respondent] and is internally conflicted by on the one hand, meeting his [appellant’s] expectations i.e. rejecting the [respondent], and on the other, communicating with [the respondent] whom he clearly loves.
[33] See for example reasons for judgment, at [156].
At [135] of the reasons, her Honour found:
The [appellant] has an almost entirely negative view of the [respondent]. It is through this lens of negativity that the [appellant] interprets every piece of information. Whether it is intentional or not matters little. The result is the same.
At [156] of the reasons, her Honour stated:
I have made findings that the [respondent] does not pose an unacceptable risk of harm to the child but that the [appellant] does. Unfortunately, I conclude that if the child remains with the [appellant] there is an unacceptable risk that the child will suffer psychological and emotional harm and in my view it would only be a matter of time before he ceased to have a relationship with the [respondent]. While at times the [appellant] outwardly indicates her support for the child having a relationship with the [respondent] (for example in the supervisors’ notes), her actions indicate otherwise. It also does her little credit that she contends she will permit the child to spend time with the [respondent] if the child agrees. The child is not yet six. If Exhibit 9 is anything to go by, the child’s apparent resistance would be relied upon by the [appellant] to sabotage the child’s relationship with the [respondent].
These findings supported the ultimate finding that the appellant would not encourage the child spending time with the respondent. The degree of weight given to particular evidence is ultimately a matter for the primary judge. The fact that the primary judge did not give parts of the evidence the relative weight as contended for by the appellant does not result in appealable error.
Accordingly, Ground 1 is without merit.
GROUND 4
Ground 4 was as follows:
That the primary judge erred in finding that if the child remained with the [appellant] it would only be a matter of time before the child ceased to have a relationship with the [respondent] with such finding being contrary to:
(a) The [appellant’s] asserted position at trial;
(b)The evidence of [the Family Report writer] that the [appellant] had not engaged in alienating behaviour; [and]
(c)The evidence of the supervisor that the [appellant] was encouraging of the child spending time with the [respondent].
The appellant’s position at trial – Ground 4(a)
Before the primary judge, the appellant sought orders for sole parental responsibility of the child; for the child to live with her; for the child to spend time with the respondent once every four weeks for up to three hours on a supervised basis, but only if the child agreed; for the appellant to be able to control whether the respondent was able to bring a third party to his time with the child; and orders that: [34]
(1)…the [appellant] and child can relocate wherever necessary for the purposes of safety, affordability, suitability, gaining employment and for the child’s developing needs and interests; and
(2)The focus is on the child’s rights to be protected from further harm and risk in that the child’s safety, wellbeing, and best interests remain paramount [sic] all times.
[34] Appellant’s Response to Initiating Application filed 4 July 2021 pg.3.
When cross-examined about a possible relocation, the appellant confirmed that it had “always been on the agenda”.[35]
[35] Transcript dated 7 July 2021, p.52 lines 45 – 46.
The appellant’s contentions in respect to her proposed orders included:
·the appellant’s assertions that there was an unacceptable risk of harm to the child in the care of the respondent;
·that the child did not want to spend time with the respondent; and
·that the child had rejected the respondent.
In support of those contentions, the appellant relied upon a recording made by her in November 2020 (marked Exhibit 9) for the purposes of attempting to establish that the child did not want a relationship with the respondent.
In her interview with the Family Consultant, at which time no sexual abuse allegations had been made by her against the respondent, the appellant expressed her view that there was no benefit to the child in having an ongoing relationship with the respondent. She stated that there be no time spent between the child and the respondent.
As was observed in Pointer and Cheadle [2020] FamCA 327 at [30]:[36]
Authorities also recognise that the advantage enjoyed by a trial judge extends to “inferences drawn by a trial judge from findings of fact, as distinct from findings of fact”. That advantage by a trial judge “includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts”.
(Citations omitted)
[36] Citing FJ & PN Curran Pty Ltd v Almond Investors Land Pty Ltd [2019] VSCA 236 at [203] referring to Lee v Lee (2019) 266 CLR 129 at [55].
It was clearly open to the primary judge to find that the appellant’s asserted position at trial was consistent with an intention on the appellant’s part to sever the child’s relationship with the respondent.
This ground is without merit.
The evidence of the Family Report writer – Ground 4(b)
The primary judge was not obliged to set out in her reasons every piece of evidence before her, nor to resolve every disputed fact.[37] The Family Report writer’s evidence in relation to possible alienating behaviour was in the context of the totality of his evidence, and the evidence as a whole.
[37] CDJ v VAJ (1998) 197 CLR 172 at [152].
Whilst this ground of appeal does not identify with particularity the evidence to which Ground 4(b) relates, the respondent and the ICL submitted that the ground was intended to be a reference to an exchange between the Family Report writer and counsel for the respondent at the trial.[38] Counsel for the appellant did not cavil with that submission. That exchange was as follows:
[38] Transcript 7 July 2021, p.149 line 34 to p.150 line 26.
[Counsel for the respondent]: [Family Report writer], if the court forms the view that the [appellant] is likely, if the [respondent] spends any unsupervised time with the child – if the child spends any unsupervised time with the [respondent], I should put it – if the court finds that there is a real risk that the [appellant] will continue to raise issues about the [respondent’s] care or what happens with the child when he is in his care, that represents a different risk to [Child X], doesn’t it?
[Family Report writer]: Yes, and that’s what I was alluding to before. I think – I think that is – that is the real – I guess the real – should be the real test here with the [appellant] – that I think – I think, in some ways, she needs to – she needs to demonstrate that she can put the child’s interests first in regards to encouraging and facilitating a relationship with the [respondent], not engaging in the things that you just talked about. She needs to demonstrate that – that she can do that.
…
[Family Report writer]: Well I was just going to say, if she – if she can’t do that – if she can’t demonstrate that, in the context of – and I should probably preface this by saying, you know, it seems like the [appellant’s] – I guess, the concerns that are being talked about here, in terms of how the [appellant] has withdrawn time with the child and the [respondent] – you know, interfering with phone conversations, etcetera, etcetera – all of those behaviours are what seem to be quite – the – the – the [appellant’s] attempt to sort of exert some control over the situation. She’s not necessarily engaged in – she’s not necessarily engaged in alienating behaviour per se. She’s not – the child doesn’t seem to be just aligned with her and rejecting the [respondent], is what I’m saying.
…
[Family Report writer]: Well, I guess what I am saying, just to finish, is that that – that control that – that she seems to be attempting to exert is the real issue here. And so if she – if – if she is placed in a position where the control is effectively taken away from her, that is, the child spending significant time with the [respondent] – therefore, not reliant on the [appellant] to facilitate such time, or – or, you know, not interfere with phone calls or has a say on how things – how the time is spent between the child and the [respondent], etcetera – if that control is taken away in that – in that sense, then I think that would be the real test to see if the [appellant] can do what – what, I guess, I think she needs to do.
[Counsel for the respondent]: There would be considerable concern for the court based on the [appellant’s] past behaviour, wouldn’t there be?
[Family Report writer]: Well, I mean, yes, that’s true in some regards, sure. The past – the past can predict the future – past behaviour can predict the future behaviour, but there’s also plenty of exceptions to that.
As noted by the Full Court in Reeves & Grinter [2017] FamCAFC 19:[39]
Numerous authorities of the Full Court of this court make it plain that the ultimate decision is for the trial judge and it is a matter for the trial judge’s discretion as to what weight is to be given to expert evidence in the context of all the evidence to be considered (citations omitted).
[39] Reeves & Grinter [2017] FamCAFC 19 at [15], see also [16]–[17].
The relevant evidence was considered by the primary judge in the context of the entirety of the evidence before her, including evidence that the Family Report writer did not have before him at the time of writing the Family Report. The weight given to that evidence was a matter for the primary judge. Her Honour stated that she was not convinced of the appellant’s encouragement of the child spending time with the respondent. In doing so, she had proper regard to the evidence of the Family Report writer who, himself, described the appellant’s behaviour as attempting to exert control over the child’s relationship with the respondent, and not putting the child’s interests first in encouraging and facilitating the relationship. There is no error in her Honour’s weighing of the evidence, which, again, is a matter for the primary judge.
This ground is also without merit.
The evidence of the supervisor – Ground 4(c)
As noted in our consideration of Ground 1, some of the evidence before the primary judge included that of the professional supervisors of the child’s time with the respondent. Her Honour accepted the evidence of the supervisors, but where that evidence went to the appellant’s demeanour, described as ‘positive’ and/or ‘supportive’ on presenting the child to the supervisors, her Honour gave such evidence little weight for the reasons already discussed in Ground 1. That evidence was considered in the context of the various allegations the appellant continued to make throughout the trial, some of which the primary judge found were “quite bizarre” (at [96]). Her Honour rightly gave each of the parts of the evidence such weight as she determined.
This ground is without merit.
GROUND 5
Ground 5 was as follows:
That the primary judge erred in finding that there ought be a change of residence for the child from the [appellant] to the [respondent] having regard to:
(a)The evidence of [the Family Report writer] that such an outcome would be an extreme result;
(b)The finding of the primary judge that a removal of the child from the primary care of the [appellant] would be no doubt traumatic for the child, at least initially.
As we have earlier observed, it is clear that the primary judge had regard to the evidence of the Family Report writer. Her Honour stated at [155] “I agree with [the Family Report writer’s] opinion that removing the child from the primary care of the [appellant] would be an extreme outcome”.[40]
[40] Her Honour also went on to state that such an outcome “may be necessary depending upon the findings made.”
Ground 5(a) does not however reflect the totality of the evidence of the Family Report writer. His evidence was also:[41]
… if the [appellant] can’t accept that it’s in the best interests of the child to spend time with the [respondent] because the court has ruled that there is – there isn’t a risk of harm to the child with the [respondent], then that would be very troubling. I think that the [appellant’s] – the emotional – the risk – the child would be at risk of – certainly, at risk of emotional harm given that situation, and therefore as I sort of alluded to before, I would be much more aligned with the – the child living with the [respondent] and spending some time with the [appellant]. And perhaps if she was undermining that time, if that was – if that was her view and – that she wasn’t accepting of that and she was undermining that time, that then perhaps that time with the [appellant] should be supervised and limited.
[41] Transcript 7 July 2021, p.138 lines 31–40.
The primary judge found that “the child has spent all his life with [the appellant] and removing him from her care will no doubt be traumatic for the child, at least initially.”[42] That finding accorded with the view expressed by the Family Report writer, during cross examination, that the impact on the child “could be quite profound”, considering that the child “seems to have a quite secure relationship attachment with the [appellant].”[43] Common sense and human experience suggests that such trauma was a distinct possibility and for that reason, among others, orders changing a young child’s residence from their primary carer should be approached with great care. Her Honour was clearly aware of the likely impact upon the child, but nevertheless identified a number of other factors that, in the exercise of her discretion, she considered justified making such an order which she acknowledged would result in “an extreme change in his life.”[44]
[42] Reasons for judgment, at [157].
[43] Transcript 7 July 2021, p.139 lines 10-17.
[44] Reasons for judgment, at [158].
At [158]–[163] of the reasons, her Honour set out her consideration of those factors being:
(a) The capacity of the [respondent] to meet the emotional needs of the child;
(b)The willingness of the [respondent] to promote the child’s relationship with the [appellant];
(c)The frequency and nature of time spent with the [appellant] if the child lives with the [respondent]; and
(d) The resilience of the child.
At [143], her Honour recorded the following finding which clearly bore upon her ultimate conclusion:
Having observed and listened to the [appellant] throughout the trial, I conclude that the [appellant] will not accept findings by this Court that the [respondent’s] time with the child does not require supervision. The [appellant] is unlikely to facilitate the [respondent] spending unsupervised time with the child…
It was submitted by the appellant that the primary judge failed to consider s 60CC(3)(b)(i) of the Act. The reasons at [157] however makes plain that the primary judge did consider the nature and quality of the child’s relationship with the appellant and with the respondent. That the primary judge did not expressly refer to a provision of the legislation is not an appealable error.[45]
[45] Gong & Wei (2017) 59 Fam LR 1 at [44]; see also Donnell & Dovey (2010) FLC 93-428 at [103].
There is no error in her Honour’s consideration of the evidence that went to her removal of the child from the appellant’s care. The weight of such a consideration was quintessentially a matter for her to decide. In reaching her conclusion, her Honour was cognisant of the totality of her findings as set out in the reasons with those findings including that the respondent did not pose an unacceptable risk of harm to the child, but that the appellant did. Accordingly, her Honour concluded that if the child remained living with the appellant there would be an unacceptable risk that the child would suffer psychological and emotional harm. Following an appropriate path of reasoning her Honour explained why she concluded that it would only be a matter of time before the child ceased to have a relationship with the respondent.[46]
[46] Reasons for judgment, at [156].
Ground 5 is without merit.
GROUND 6
Ground 6 was as follows:
That the primary judge failed to provide any or adequate reasons why the [appellant] was to bear all the costs of supervision in circumstances where the evidence was that the [appellant] was on a disability support pension and the [respondent] was in employment as a [technician].
As set out in [164] of the reasons, her Honour considered the child’s need to maintain his relationship with the appellant while at the same time being protected from the appellant’s distress about the outcome of the trial and her negative views about the respondent. The primary judge concluded that the child’s time with the appellant was best managed by professional supervision for at least three months following the making of the orders. Her Honour noted that the parties had been happy with the Family Centre P supervisors engaged by them, whose unchallenged evidence was before the primary judge. In that context, her Honour indicated that she would order supervised time between the child and the appellant.
The primary judge acknowledged that professional supervision was expensive, but found, from the evidence before the Court, that the appellant had $38,000 in savings.
Additionally, the evidence of the appellant during the course of cross-examination by the ICL’s counsel, in response to questioning as to whether she could afford to fund some supervised time on a regular basis, was “I would make that happen”.[47]
[47] Transcript 7 July 2021, p.74 lines 1-4.
The primary judge was aware that the appellant was in receipt of a disability support pension, and that the respondent was in receipt of income as an auto electrician in the sum of $1,216 per week. Her Honour was also clearly cognisant of the respondent’s history of payment of professional supervision since its commencement in November 2020, and of the respondent’s responsibility to support the child whilst the child resided with him, with any child support payments from the appellant being minimal in nature.
The primary judge balanced carefully the relevant considerations as to the costs of supervision, at least for a three month period, and her reasons disclosed to the Court “the path by which the result has been reached”.[48]
[48] Bennett and Bennett (1991) FLC 92-191 at 78,267.
Ground 6 is without merit.
CONCLUSION
We are satisfied that the judgment is affected by error in so far as it fails to sufficiently state the reasoning of the primary judge for making Orders 4(b)–(f) and 5 of the orders made 11 August 2021. Accordingly, the matter will be remitted for rehearing before a judge other than the primary judge in respect of the issue of what time the child will spend with the appellant and in what circumstances and upon what (if any) conditions.
COSTS
Each of the parties sought costs certificates in the event the appeal was successful. Pursuant to ss 6, 8 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”) we are satisfied that it would be appropriate for the Attorney-General to authorise a payment under the Costs Act to each of parties and the ICL and that cost certificates should be issued to the appellant, the respondent and the ICL for the appeal and the rehearing.
I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Baumann & Hartnett. Associate:
Dated: 20 May 2022
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