Yuen & Ainsworth
[2021] FamCAFC 86
•7 June 2021
FAMILY COURT OF AUSTRALIA
Yuen & Ainsworth [2021] FamCAFC 86
Appeal from: Ainsworth & Yuen (No.2) [2020] FCCA 2214 Appeal number(s):
NOA 52 of 2020
File number(s):
BRC 4054 of 2016
Judgment of:
AINSLIE-WALLACE, ALDRIDGE & CAREW JJ
Date of judgment:
7 June 2021
Catchwords:
FAMILY LAW – APPEAL – PARENTING – Appeal against parenting orders providing for equal shared parental responsibility and a gradual increase of unsupervised time with the father – Unacceptable risk of harm – Best interests of the child – Findings open on the evidence – Decision of the primary judge not plainly wrong – Adequate reasons – No error of law – Appeal dismissed – Mother to pay father’s costs in a fixed sum.
Legislation:
Family Law Act 1975 (Cth) Pt VII, ss 60CC, 65D, 69ZN, 69ZQ, 117
Family Law Rules 2004 (Cth) Sch 3, r 22.22
Practice Direction No. 1 of 2017
Cases cited:
Akston & Boyle (2010) FLC 93-436; [2010] FamCAFC 56
Baghti & Baghtiand Ors [2015] FamCAFC 71
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Fitzgerald vFish (2005) 33 Fam LR 123; [2005] FamCA 158
Laremore v Speidell (2019) 60 Fam LR 250; [2019] FamCAFC 215
LC v TC (1998) FLC 92-803; [1998] FamCA 47
Logan & Logan (2013) FLC 93-555; [2013] FamCAFC 151
M v M (1988) 166 CLR 69; [1988] HCA 68
Porter v Byrne (2009) 40 Fam LR 644; [2009] FamCAFC 8
Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33
SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42
Family Court of Australia, Australian Standards of Practice for Family Assessments and Reporting (Report, February 2015)
Heydon, Justice JD ‘Practical Impediments to the Fulfilment of Judicial Duties’ (2004) 6(4) The Judicial Review 429
Division:
Appeal Division
Number of paragraphs:
96
Date of hearing:
10 May 2021
Place:
Heard in Brisbane, delivered in Sydney
Counsel for the Appellant:
Mr Cremin
Counsel for the Respondent:
Mr Baston
Counsel for the Independent Children’s Lawyer:
Mr George
Solicitor for the Independent Children’s Lawyer:
Jenny Boulton Solicitor
ORDERS
NOA 52 of 2020
BRC 4054 of 2016APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS YEUN
Appellant
AND: MR AINSWORTH
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
AINSLIE-WALLACE, ALDRIDGE & CAREW JJ
DATE OF ORDER:
7 JUNE 2021
THE COURT ORDERS THAT:
1.The appellant be granted leave to amend the Notice of Appeal by including an additional five grounds of appeal as set out in her Summary of Argument filed 8 January 2021.
2.The appellant be granted leave to rely upon the 19 page Summary of Argument.
3.The Independent Children’s Lawyer be granted leave to rely on written submissions which supplemented their Summary of Argument dated 10 May 2021.
4.The appellant’s Application in an Appeal filed 27 April 2021 be otherwise dismissed.
5.The appeal be dismissed.
6.The appellant pay the respondent’s costs fixed in the sum of $4,000 within thirty (30) days of the date of this order.
.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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Yuen & Ainsworth has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE, ALDRIDGE & CAREW JJ:
On 16 July 2020, a judge of the Federal Circuit Court of Australia made a final parenting order (“the order”) and delivered ex tempore reasons at the conclusion of a three day trial. The order concerns X (“the child”) born in late 2015. The child is the only child of the appellant Ms Yuen (“the mother”) and the respondent Mr Ainsworth (“the father”).
Among other things, the order provided for the parents to have equal shared parental responsibility and for the child to spend unsupervised day time with the father gradually increasing to alternate weekends, one other night each week and half school holidays. The mother appeals against the order on numerous grounds but, in particular, that the primary judge erred when finding the father did not pose an unacceptable risk of harm to the child by reason of the prospect of a “relapse” to excessive drinking, and in making the order for equal shared parental responsibility given the difficulties experienced by the parties in communicating with each other.
The appeal will be dismissed for the reasons set out below.
Application in the Appeal
At the commencement of the appeal, the mother’s Application in an Appeal filed 27 April 2021 was first determined. In her Application in an Appeal the mother sought the following:
(1)The affidavit of the mother filed 7 July 2020 be admitted on appeal.
(2)The full outline and argument be admitted and read.
(3)The Full Court to view the videos played at trial.
(4)The mother be given leave to file and read an updated List of Authorities.
(5)The mother be given leave to read and file an amended grounds of appeal to incorporate the relevant sections of the Family Law Act 1975 (Cth) (“the Act”).
(6)The mother be given leave to read and file an outline of arguments as to costs.
(7)The mother be given leave to read and file the affidavit filed in support of the contravention application against the father.
(8)The mother be given leave to amend the Notice of Appeal filed 13 August 2020.
As to (1), the mother did not require leave for the affidavit filed 7 July 2020 to be admitted in the appeal. It appears from the trial record that the affidavit was before the primary judge as no objection was taken to it[1] and the primary judge only refers to the mother requiring leave to rely upon older material.[2] The affidavit already forms part of the appeal record.
[1] Transcript 14 July 2020, p.12 line 31
[2] Transcript 14 July 2020, p.16 line 7.
As to (2), the mother’s Summary of Argument exceeded the ten page limit set by r 22.22(2)(c) of the Family Law Rules 2004 (Cth) (“the Rules”) and the 15 page limit set by Practice Direction No. 1 of 2017, and as such leave was granted for the mother to rely upon her 19 page summary.
As to (3), the videos formed part of the evidence before the primary judge and to the extent necessary to determine the appeal, will be reviewed.
As to (4), no leave was required to rely upon the updated List of Authorities.
As to (5), it was clarified by counsel for the mother, that the additional grounds of appeal are as particularised by the mother in her Summary of Argument.
As to (6), it was clarified by counsel for the mother, that what the mother sought was for costs to be reserved and argued at a later time. That application was refused.
As to (7), the mother’s application to rely upon an affidavit in support of a contravention application was refused in circumstances where it was conceded by counsel for the mother that the affidavit was controversial[3] and was sought to be relied upon for an extraneous purpose i.e. to demonstrate how the order appealed from has led to further proceedings.
[3] CDJ v VAJ (1998) 197 CLR 172 at [114].
As to (8), the mother was granted leave to amend her grounds of appeal in accordance with the five additional grounds set out in her Summary of Argument.
BRIEF BACKGROUND
By way of brief background: the mother is a Chinese citizen having been as born in China in October 1982. She lives in Brisbane with the child and is a health care worker. The mother works full time in Brisbane. The mother obtained a permanent residency visa in Australia in January 2017.
The father was born in Australia in 1976. He lives in Region G. The father is also a health care worker and works on a casual basis in Region G.
The parties met in early 2015 while both studying at university. They had a brief relationship between early 2015 and early 2016.
The child was born in late 2015 and experiences moderate to severe hearing loss requiring hearing aids and a “Roger system” device.
The father has an admitted history of excessive alcohol consumption and at the time of trial he was spending time with the child each Wednesday from 8.00 am to 5.00 pm supervised by one or other of the paternal grandparents.
At trial, the father was seeking to increase his time with the child and to remove the requirement of supervision. The mother was opposed to the increase in the father’s time with the child and sought to continue with supervision pending the father’s compliance with certain conditions directed to addressing the father’s history of excessive alcohol consumption. The mother also sought an order for sole parental responsibility.
THE GROUNDS OF APPEAL
The mother’s Notice of Appeal, as amended contains 16 separate grounds of appeal.
Ultimately, the mother abandoned a ground of appeal alleging that the primary judge “displayed apprehended bias” (additional Ground (1)) and also a ground relating to the failure to admit the mother’s reply affidavit (additional Ground (2)). As already noted, the appeal record indicated that the affidavit was before the primary judge. Turning then to consider the remaining grounds.
Without intending any disrespect to the mother or her counsel (who was retained by the mother on a direct brief) both the written Summary of Argument and oral submissions were somewhat tangential and difficult to follow. The written Summary of Argument does not address grounds 2, 3, 4, 5 or 9 nor do they address the further grounds of appeal. The oral submissions touched upon some of these grounds and developed some arguments in relation to the additional grounds. In order to adequately address all grounds relied upon by the mother, they will be considered seriatim.
Ground 1: The learned trial judge failed to deliver adequate reasons for each of the orders made by him
Despite contending a failure to give adequate reasons for “each” of the orders, submissions addressed only Order 1, which provides for the parties to have equal shared parental responsibility for the care, welfare and development of the child.
What will qualify as adequate reasons for a decision will depend upon the circumstances of each particular case, but as the High Court of Australia in DL v The Queen[4] recently held:
130.[R]easons must identify the relevant principles of law, refer to relevant evidence, state the judge's findings upon material questions of fact and provide an explanation for those findings and the ultimate conclusions reached by the judge.
131.Since parties must be able to see the extent to which their cases have been understood and accepted, a trial judge will ordinarily be expected to expose his or her reasoning on points critical to the contest between the parties. This applies both to evidence and to argument. If a party relies on relevant and cogent evidence which the judge rejects, the judge should provide a reasoned explanation for the rejection of that evidence. If the parties advance conflicting evidence on a matter significant to the outcome, both sets of evidence should be referred to and reasons provided for why the judge prefers one set of evidence to the other. Similarly, while a judge is not required to deal with every argument and issue that might arise in the course of a trial, if a party raises a substantial argument which the judge rejects, the judge should refer to it and assign reasons for its rejection. And in providing reasons, the judge is required to make apparent the steps he or she has taken in reaching the conclusion expressed, for reasons are not intelligible if they leave the reader to speculate as to which of a number of possible paths of reasoning the judge may have taken to that conclusion. Failure sufficiently to expose the path of reasoning is therefore an error of law.
(Footnotes omitted)
[4] (2018) 266 CLR 1 at [130]–[131].
As already noted, the primary judge delivered his judgment immediately following the conclusion of the third day of the trial. Prompt delivery does not, of course, relieve a judicial officer from their obligation to adequately explain why they made the order they did. However, in such circumstances an appellate court is more inclined to make assumptions in favour of the correctness of the primary decision because common sense dictates that material facts are less likely to have been overlooked if a judgment is delivered, as here, immediately after the conclusion of a trial as opposed to a considerable time after the event.[5] There is, however, an important limitation on the extent to which an appellate court will be prepared to make such assumptions, namely, the reasons must “have reached a minimum acceptable level to constitute a proper exercise of judicial power” (emphasis in original).[6] It is also important to note that an appellate court “is not obliged to uphold a judgment merely because the result may be said to fall within the wide ambit of the Judge’s discretion”.[7]
[5] Porter v Byrne (2009) 40 Fam LR 644 at [44] citing Heydon J, ‘Practical Impediments to the Fulfilment of Judicial Duties’ (2004) 6(4) The Judicial Review 429, 441; see also Akston & Boyle (2010) FLC 93-436 at [28].
[6] Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48].
[7] Bennett and Bennett (1991) FLC 92-191 at 78,267.
The adequacy of the reasons will depend upon the issues identified by the parties and the court as requiring determination.[8] A court is not required to make findings on every disputed fact.[9] Ultimately, the paramountcy of a child’s best interests in the circumstances of the particular case “cannot be diverted by the supposed need to arrive at a definitive conclusion”[10] on each and every factual dispute.
[8] SCVG & KLD (2014) FLC 93-582 at [78].
[9] Baghti & Baghtiand Ors [2015] FamCAFC 71 at [63].
[10] M v M (1988) 166 CLR 69 at 76.
Relevant to the order for equal shared parental responsibility, the primary judge identified the relevant statutory principles:
(a)The best interests of the child are paramount (at [31]);
(b)The main objective is for the child to have a meaningful relationship with both parents but only where she is protected from abuse, neglect or family violence (at [33] and [35]);
(c)The presumption of equal shared parental responsibility (at [50]);
(d)The presumption does not apply if there has been family violence (at [51]);
(e)The presumption can be rebutted (at [52]).
The primary judge made the following relevant findings:
(a)There is no longer any issue about the child attending a school close to the mother’s home, the father having made that concession prior to trial (at [12]);
(b)“Even though there are claims of family violence, that was not the case presented with regard to the need to protect [the] child” (at [37]);
(c)“The evidence [in relation to family violence] was presented in such a way that all that is before the court are allegations, because I could not possibly make a finding grounded on evidence” (at [85]);
(d)The parties have a capacity to argue in front of the child (at [87] and [114]);
(e)A way to control that is to have changeovers at a neutral place and to have as few changeovers as possible (at [109]);
(f)The mother suggested changeovers at a service station near her house which seems reasonable (at [111]);
(g)Family violence is not a particular issue as long as the parties are kept apart (at [176]);
(h)The parties are having trouble communicating and it seems they are going to communicate most effectively by written communication (at [249]–[250]);
(i)The father suggests a communication book and “I have not heard that is not acceptable” (at [251]–[252]);
(j)“Quite often it is not in the best interests of a child to exclude a parent who really wants to take part in raising the child but is simply prevented from doing so by the other parent. That becomes a power imbalance, and all sorts of decisions can be made excluding the other parent and that is not good for the child” (at [255]–[256]);
(k)“[N]ot satisfied that family violence existed to an extent that the presumption of equal shared parental responsibility does not apply here” (at [258]);
(l)The father has been present as much as he can when issues affecting the child are discussed and has taken the opportunity when he can to have input into the child’s future (at [259] and [265]);
(m)The father was not invited to take part in the assessment of the child for the National Disability Insurance Scheme (at [267]);
(n)The father’s views in relation to such matters are as valid as the mother’s (at [270]);
(o)The father’s questioning of the diagnosis of the child with generalised anxiety disorder arose because he did not have the opportunity to have input with the child’s treating practitioner but orders will allow the father to contact her so that he can be kept informed (at [298]–[299]).
It is apparent from the primary judge’s reasons, that despite the parents having difficulty communicating and exposing the child to arguments, the primary judge did not consider it to be in the child’s best interests to exclude the father from decisions relating to major long term issues. In order to address the issues concerning communication and exposure of the child to arguments, the primary judge included an order for a communication book to be utilised and for changeovers to occur at school or at a neutral place close to the mother’s home. In addition, the primary judge included orders requiring each parent to provide information to the other parent relating to the child’s health in a timely way and enabling both parties to attend appointments with health professionals.
There is no merit in this ground of appeal.
Ground 2: At Reasons [33] the learned trial judge erred in his application of s 60CC(2) Family Law Act
At [33] of the reasons, the primary judge said:
33.The main objective is that the child has the benefit of a meaningful relationship with each of you, but particularly with the parent the child does not live with.
This paragraph of the reasons, which merely reflects one of the primary considerations a court is required to consider when determining what is in the child’s best interests, is but one of many paragraphs in the judgment setting out the effect of the statutory provisions contained in Pt VII of the Act (see s 60CC(2)(a)). For instance, at [35] of the reasons goes on to state the important qualification to the primary consideration referred to at [33]:
35.The orders are to give her the benefit of the meaningful relationship, but only where she is protected from what is referred to as abuse, neglect or family violence.
This paragraph of the reasons reflects the second primary consideration (see s 60CC(2)(b)).
Counsel for the mother did not identify any error.
There is no merit in this ground.
Ground 3: Despite stating at Reasons [164] that he had dealt with the allegation of family violence, the learned trial judge had not done so, and erred in failing to do so
Importantly, the mother’s case at trial did not raise family violence as an issue relevant to the protection of the child (at [37]).
The primary judge asked counsel at the trial, whether there were any issues other than “time and parental responsibility” to which the mother’s counsel added “and alcohol”.[11] Counsel for the mother confirmed during the trial, on more than one occasion, that the two issues for trial concerned the father’s excessive use of alcohol and parental responsibility.[12]
[11] Transcript 14 July 2020, p.22 line 42 to p.23 line 15.
[12] Transcript 14 July 2020, p.110 lines 5–7, 20–37; Transcript 16 July 2020, p.262 lines 4–8.
When asked during cross-examination to articulate her concerns about the father spending time with the child, the mother indicated her focus was “mainly about alcohol relapse” and that she did “question [the father’s] memory loss”.[13]
[13] Transcript 15 July 2020, p.154 line 32 to p.155 line 13.
Despite family violence not being an issue raised by the parties as an issue for trial, the primary judge appropriately recorded that allegations of family violence had been made by the mother against the father (at [81]–[83]) and that the father denied the allegations (at [84]). The primary judge noted that the evidence relating to allegations of family violence were not “presented” in a way that would enable him to make any findings (at [85]).
Relevant to the allegations of family violence, it was not in contention that the mother’s application for a protection order in 2016 was unsuccessful[14] and that when police attended the former matrimonial home on 29 February 2016 the following assessment was made by police:[15]
… Based on the conflict in versions provided by both parties, there is insufficient to allege that a domestic violence incident has occurred and an application is not sought given the conflict in these versions. Both parties are attending relationship counselling and police are not concerned at this time that any further acts of domestic violence are likely to occur in the future…
(As per the original)
[14] Transcript 14 July 2020, p.101 line 19.
[15] Exhibit 1.
During the appeal hearing, the focus of counsel for the mother rested on Exhibit 3 in the trial containing five video recordings and it was submitted that “there was family violence by the father in four occasions where he confronted the mother with the child”.[16] Counsel for the mother conceded he was attempting to raise a fresh ground, namely, that the primary judge ought to have found the father perpetrated violence towards the mother in the videos. No application was made to add a further ground of appeal.
[16] Transcript 10 May 2021, p.27 lines 20–21.
The primary judge refers to the videos in his reasons at [25], [94]–[95], [97] and [107] and finds that the videos show the parties arguing with each other in front of the child and the mother yelling at the father. As a way of protecting the child from exposure to such arguments in future, the primary judge included an order for changeovers to occur at the child’s school or at a service station near the mother’s home.
Upon review of the videos, there is nothing in their content which suggests appealable error in the primary judge’s assessment and/or treatment of them.
There is no merit in this ground.
Ground 4: The learned trial judge at [37] erred in his understanding of the evidence
At [37] of the reasons, the primary judge noted that “[e]ven though there are claims of family violence, that was not the case presented with regard to the need to protect [the] child”. Other than asserting that the videos contained in Exhibit 3 show the father perpetrating violence, counsel for the mother did not expand upon this ground.
There is no merit in this ground.
Ground 5: At Reasons [85] the learned trial judge erred in refusing to making a finding as to whether there had been family violence, despite Reasons [81], [82], [83], [103], [113] and [176]
At [85] the primary judge said:
85.The evidence was presented in such a way that all that is before the court are allegations, because I could not possibly make a finding grounded on evidence, which is what the requirement is, based upon the allegations.
The content of the remaining paragraphs referred to in his ground are as follows:
81.As the matters proceeded through the court other issues arose, especially claims of family violence.
82.The mother accused the father of a history of inflicting violence upon her, saying that she was pushed whilst she was pregnant.
83.She names a date in… February 2016 when she says the father assaulted her by pushing her – separation occurred not long after that.
…
103.However, I do not have evidence to confirm any physical violence as claimed by the mother.
…
113. It seems to me that the allegations of family violence then have been made.
…
176.Violence was not a particular issue then, as I do not think it is now as long as the parties are kept apart and that violence seems to be within the realm of abuse.
No submissions were made in relation to this ground.
In any event, the primary judge considered the evidence relating to family violence, such as it was, and put in place various measures to protect the child and parents from the prospect of future exposure to family violence by including provisions in the order for changeovers to occur at school or, where that was not possible, at a public place.
There is no merit in this ground.
Ground 6: The learned trial judge erred at [171] in making parenting orders when he had admittedly not determined the magnitude of the risk presented by the father’s alcohol abuse, and the occurrence of family violence
At [171] of the reasons, the primary judge said:
171.Referring to the evidence of the alcohol usage and the evidence of the violence, I cannot determine the magnitude of the risks occurring.
It is incorrect to submit, as the mother does in her Summary of Argument at paragraph 38, that the primary judge erred in finding the father posed no risk to the child. It is tolerably clear from the reasons, that the primary judge did assess the father’s history of excessive alcohol consumption as a risk to the child but determined that the risk was not unacceptable (at [339]) and that there would be orders “where supervision can occur if the father does not control his drinking” (at [341]). The risk of a relapse could be ameliorated by including provisions in the order as set out below:
(9) That the father is restrained from consuming alcohol during his time with the child and no less than 48 hours prior to the commencement of his time.
(10) That the father engage with a psychologist for the next two years to assist him in abstaining from excess alcohol consumption and that he attend at such times as recommended by the psychologist.
(11) That the father provide a report to the mother every three months from his psychologist.
(12) That the father complete CDT tests once every three weeks during the 12 month period from the date of these orders, and the results of such tests are to be provided to the mother as soon as they become available.
(13) That in the event that any of the CDT test results indicate probable excessive alcohol consumption or words to that effect, or the father fails to provide the results within 48 hours of receiving them to the mother, the father shall only spend supervised time with the child on alternate Sundays from 8:00am to 5:00pm until such time as the father has produced CDT results for a period of four months which do not indicate probable excessive alcohol consumption or words to that effect and thereafter all provisions of time as set out in these orders are to take effect.
(14) That in the event that the father’s time is to be supervised then it is to be supervised by either:
(a) [Mr B]; or
(b) [Ms C].
Importantly, the order made by the primary judge must be considered in the context of unchallenged evidence from Dr K that, on the basis of the results of the many carbohydrate deficient transferrin (“CDT”) tests undertaken by the father over a period exceeding twelve months, he had been either abstinent or consumed minimal alcohol since at least May 2019 (at [150] and [158]).
There is no merit in this ground.
Ground 7: At Reasons [50], [51], [52] and [258] the learned trial judge erred and applied an incorrect test as to the effect of a finding of family violence on the application of the presumption of equal shared parental responsibility
The primary judge’s reasons at [50]–[52] and [258] are as follows:
50.I then have to apply a presumption that you two will exercise parental responsibility equally.
51.The presumption does not exist if I am satisfied that there has been family violence.
52. The presumption can be rebutted on suitable evidence.
…
258.I am not satisfied that family violence existed to an extent that the presumption of equal shared parental responsibility does not apply here, but I can rebut the presumption.
Counsel for the mother was unable to demonstrate any appealable error in the above statements nor in the application of any “test”.
There is no merit in this ground.
Ground 8: Having regard to Reasons [127], [128], [129] and [161] the learned trial judge failed to find that the risk of the father abusing alcohol whilst the child was in his care was an unacceptable risk of harm to the child
The primary judge’s reasons at [127]–[129] and [161] are as follows:
127.It is fairly clear that he breached some alcohol testing orders early in the proceedings.
128.It is fairly clear that he did not attend to what he had to attend to under the orders.
129. There is only one reason for that – he was still using alcohol to excess.
…
161.The court knows that the father has overused alcohol, because the court knows that he did not supply tests as ordered because he must have been using alcohol, and orders can be crafted so that the child is protected if the father’s alcohol usage goes up.
Contrary to the mother’s submissions, the primary judge accepted what the mother had maintained at trial, namely, that the father had breached earlier orders by not submitting to alcohol testing because he was still using alcohol to excess. The mother’s argument was said to be, “in a nutshell”, that the primary judge should have ordered the father’s time with the child to be supervised until he had completed “relapse therapy”. Unfortunately for the mother, a failure to achieve the outcome she desired does not, of itself, demonstrate appealable error.
There is no merit in this ground.
Ground 9: The learned trial judge failed to consider or properly consider ss. 60CC(3)(c), (d), (f), (i), (j), (k) and (l) of the Family Law Act
No submissions addressed this ground.
In any event, the primary judge considered the relevant sections of Pt VII of the Act commencing at [30] through to [57] of the reasons.
Ground 10: The learned trial judge erred in admitting and relying upon the evidence of [Ms J]
The primary judge deals with Ms J’s report, the mother’s challenges to it and to the expertise of Ms J at [182]–[227] of the reasons. At [219] the primary judge described Ms J’s qualifications as “extensive” and her evidence as being “grounded in [her] experience” (at [224]). At [185] the primary judge set out the observations of the child with each parent made by Ms J in her report, which were not of themselves challenged.
The gravamen of the mother’s submission was that Ms J had not complied with the “Australian standards of practice for family assessments and report as contained on the Federal Circuit Court of Australia website” (“the guidelines”),[17] in that she was neither a registered psychologist nor a social worker.
[17] Exhibit 6.
Paragraph 2 of the guidelines provide as follows:[18]
2.Family assessors must be qualified social science professionals and function as independent and impartial assessors.
[18] Family Court of Australia, Australian Standards of Practice for Family Assessments and Reporting (Report, February 2015) at 9.
Ms J holds a Bachelor of Science majoring in psychology which was conferred in 2005. From 2005 to 2013 she worked for the then Department of Communities (Child Safety and Disability Services) including as a child safety investigation officer, an acting team leader and Court coordinator. Since 2013 Ms J has provided family reports for the Family Court of Australia, the Federal Circuit Court of Australia and has provided social assessment reports for a State court. Ms J’s recommendation for the father to spend gradually increasing unsupervised time with the child was conditional upon him “continuing to demonstrate compliance with addressing his past alcohol use”.[19]
[19] Annexure “A” of the affidavit of Ms J filed 8 July 2020 at paragraph 10.
It was open to the primary judge to find that Ms J was an appropriately qualified social scientist and to accept her evidence and opinions.
There is no merit in this ground.
Ground 11: Despite stating at Reasons [59]–[61] that he would not deal with the issue of the child travelling to China, the learned trial judge at Order 30 dismissed the mother’s application
It became apparent during the appeal hearing that, contrary to the mother’s belief, there was in fact no application before the primary judge for her to be “permitted” to travel to China with the child. The mother’s Amended Response to the father’s Initiating Application filed 27 August 2019 sought the following order:
1.The father do all acts and things and sign all documents necessary to facilitate the issue of a passport for the child… born [late] 2015, AND The mother, by her solicitors, send to the father as soon as practicable completed passport applications for the child… via Express Post to his home address.
2.If the father should fail to return to the mother’s solicitors, within seven days after posting, the passport applications signed by him a Registrar of this Court may sign the applications instead of the father and his signature and consent otherwise be dispensed with.
…
The mother’s Case Outline filed 7 July 2020 included a minute of the order she sought at trial in the following terms:
…
10.That the father signs all documents for [the child] to travel to China on holidays and to other destinations outside Australia.
…
Consistent with her Amended Response, the mother’s Minute of Order related to travel documents. The mother’s Case Outline also identifies that the issue in dispute concerned the “[p]assport for [c]hild”.[20]
[20] Mother’s Case Outline filed 7 July 2020, page 7 at paragraph 4.
The primary judge’s dismissal of the mother’s application for the child to be permitted to travel overseas was therefore otiose as there was no such application.
That application for the father to sign travel documents is yet to be determined.
Additional Ground (3): The learned trial judge erred in limiting the issues to two issues which precluded trial counsel pursuing issues highly relevant to the findings he has to make in relation to making correct parenting orders with respect to sole parental responsibility and unsupervised visitation, thereby denying the [mother] procedural fairness
It seems the gravamen of this ground is that the primary judge should have permitted the mother’s counsel to go through each paragraph of the mother’s affidavit and formally “put” the matters contained therein. It is noteworthy that at trial, counsel for the mother repeatedly confirmed to the primary judge that the issues relevant to the determination of what parenting order was proper (see s 65D(1) of the Act) related to the risk to the child of the father’s relapse to excessive alcohol consumption and whether the mother should have sole parental responsibility.[21]
[21] Transcript 14 July 2020, p.22 line 41 to p.23 line 15 and p.109 line 14 to p.110 line 41; Transcript 15 July 2020, p.114 lines 41–43; Transcript 16 July 2020, p.262 lines 4–8.
In the following exchange between the primary judge and counsel for the mother, the primary judge was attempting to focus the cross-examination on matters of relevance:[22]
[22] Transcript 14 July 2020, p.109 line 1 to p.110 line 37.
HIS HONOUR: All right. We’re going to leave it here for today. How much longer have you got tomorrow? You want to play a video.
[COUNSEL FOR THE MOTHER]: Yes. Look, I’ll probably be an hour with that, your Honour. I’m just going to run through this – I’m going to run through the mother’s affidavit, put it all to him, and that’s it. I’ll be very quick. I’ll just put it to – I can put the answers in, but I’ll just run it past him.
HIS HONOUR: Well, you don’t need to run all those issues.
[COUNSEL FOR THE MOTHER]: Well, it has to be put to him, your Honour, what the mother’s allegations are.
HIS HONOUR: Well, no, they don’t because the – unless there are other issues besides risk of – risk to the child from alcohol consumption, or family violence, I really don’t know what else is - - -
[COUNSEL FOR THE MOTHER]: I’m not - - -
HIS HONOUR: - - - going to be relevant to - - -
[COUNSEL FOR THE MOTHER]: …not so much interested in the family violence. I think that’s – you know, except abuse, but I think that there’s a lot to be said for, you know, whether or not he is likely to abuse alcohol again. And one - - -
HIS HONOUR: Well, that’s a submission. But I’m just wondering, if that’s the case, and that’s the case I’ve identified and you seem to have confirmed it, why you need to go through paragraph after paragraph of this long affidavit - - -
[COUNSEL FOR THE MOTHER]: Only - - -
HIS HONOUR: - - - putting things to him, because - - -
[COUNSEL FOR THE MOTHER]: Only that - - -
HIS HONOUR: - - - inevitably it’s not going to be relevant to anything.
[COUNSEL FOR THE MOTHER]: Well, your Honour – okay, let’s see if we can shorten the process down between us. I’m in your hands.
HIS HONOUR: Right.
[COUNSEL FOR THE MOTHER]: We’re on the same team for a change.
HIS HONOUR: No, I’m here to make decisions.
[COUNSEL FOR THE MOTHER]: Yes, I know. But we’re trying to work together to get it through the court here; that’s what I’m talking about. So the thing you want to know about is simply the alcohol; is that the main thing that you want to talk about?
HIS HONOUR: Well, it seems to me that that’s the main part of the mother’s case.
[COUNSEL FOR THE MOTHER]: Yes.
HIS HONOUR: If it is not, tell me. But that seems to me to be the risk she alleges.
[COUNSEL FOR THE MOTHER]: Yes.
HIS HONOUR: I mean, besides the fact they don’t talk to each other, I’ve made numerous notes of the communication difficulties. I will consider - - -
[COUNSEL FOR THE MOTHER]: But - - -
HIS HONOUR: - - - what I should do - - -
[COUNSEL FOR THE MOTHER]: - - - the two issues - - -
HIS HONOUR: - - - about that.
[COUNSEL FOR THE MOTHER]: Sorry. Two issues - - -
HIS HONOUR: Yes.
[COUNSEL FOR THE MOTHER]: - - - that I see. Alcohol, is that the main issue?
[COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER]: Well, relapse actually.
[COUNSEL FOR THE MOTHER]: Relapse, yes. And - - -
HIS HONOUR: Yes. I understand that.
[COUNSEL FOR THE MOTHER]: - - - the next one? And sole parental responsibility; are they the only two issues?
Trial judges have an obligation to “actively direct, control and manage the conduct of the proceedings” before them (see s 69ZN(4) of the Act). In order to give effect to this principle, trial judges must “decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily” (see s 69ZQ(1)(a) of the Act). The primary judge’s intervention did no more than comply with the principles and obligations imposed upon him by the Act. Importantly, he did not do so in some arbitrary way but rather sought the input from counsel.
It seems that counsel for the mother was under the misapprehension that he was obliged to cross-examine the father about every contentious matter. That is not the case.[23] In proceedings where evidence-in-chief is by affidavit, the focus of cross-examination should be on those matters which form the “cornerstone of the party’s case”.[24]
[23] Laremore v Speidell (2019) 60 Fam LR 250 at 254, [13] citing LC v TC (1998) FLC 92-803.
[24] Logan & Logan (2013) FLC 93-555 at [53]–[54].
Counsel for the mother did not identify any “highly relevant” issues that he was precluded from pursuing at trial.
There is no merit in this ground.
Additional Ground (4): The learned trial judge failed to afford the [mother] procedural fairness in refusing to allow trial counsel to reply to the orders tendered by the [father’s] counsel, resulting in orders that were defective. Trial counsel requested that he be given the right to address his Honour on the orders handed up by the father’s counsel and approved by the Independent Children’s Lawyer (“ICL”) when trial counsel had not previously seen these orders
At the conclusion of the three day trial, and just prior to commencing her submissions, counsel for the father provided to the primary judge a Minute of Order sought by the father, on the understanding that counsel for the mother and the ICL had been provided a copy.[25] The Minute of Order was marked as Exhibit 5 in the proceedings. There was no indication by either counsel for the mother or the ICL that the father’s counsel’s understanding was misplaced. The primary judge noted that Exhibit 5 differed slightly from what the ICL proposed but that the ICL had no difficulty with what was proposed by the father.
[25] Transcript 16 July 2020, p.265 line 2.
Submissions concluded and the court was adjourned at 12.03 pm. At 1.02 pm the primary judge delivered ex tempore reasons for judgment. There were some further limited submissions on particular aspects of what parenting order should be made.
Counsel for the mother then proposed to email to the court, “the mother’s view” on “parts of the order that she wants”. The primary judge noted that the proposal was very disorganised and that the mother’s proposed orders should already have been before the court. Nevertheless, the primary judge gave the mother’s counsel the opportunity to address him on what orders the mother might “want which are not covered” and the mother’s counsel said “[t]hat’s fine”.[26] Subsequently, the mother’s counsel complained that the primary judge was “going to make orders and [the mother] hasn’t got a choice about putting anything in”. The primary judge noted that he had already referred to the order being sought by the mother and counsel for the mother did not press the issue.[27]
[26] Transcript 16 July 2020, p.279 lines 2–34.
[27] Transcript 16 July 2020, p.280 lines 1–18.
Importantly, the transcript does not support the contention that the primary judge “failed to afford [the mother] procedural fairness in refusing to allow trial counsel to reply to the orders tendered by [the father’s] counsel” nor that “[t]rial council [sic] requested that he be given the right to address his [H]onour on the orders handed up by the father’s counsel and approved by the ICL when trial counsel [had] not previously seen these orders”.[28]
[28] Mother’s Summary of Argument filed 8 January 2020 at page 17.
Counsel for the mother conceded during the appeal hearing that it may well have been his mistake not to ask to see Exhibit 5 (the Minute of Order sought by the father) prior to it being tendered.
No submissions were directed to which parts of the order were “deficient”.
There is no merit in this ground.
Additional Ground (5): The learned trial judge’s decision was plainly unreasonable and unjust
Counsel for mother complained that the order was plainly unreasonable and unjust for the following reasons:
(a)The order did not make specific provision for the mother to be able to have telephone or video communication with the child when she was in the father’s care while such a provision was included for the father’s benefit;
(b)The mother was restrained from enrolling the child in any additional extra-curricular activities without the consent in writing of the father (Order 6); and
(c)The mother was subjected to a mandatory injunction to provide the child’s hearing aids and Roger system to the father when the child was spending time with him (Order 20).
In relation to (a), the mother had every opportunity to include such an order in her proposed orders either before or during the trial or during submissions. In any event, Order 17 requires each parent to “encourage and facilitate reasonable telephone communication between the child and the other parent whilst the child is in their care as requested by the child”.
In relation to (b), nothing on the face of the order indicates that it is unreasonable or unjust. At the time of trial the child was participating in a number of extra-curricular activities. There is nothing in the order which would preclude her continuing with those extra-curricular activities but if there are to be additional ones, the mother needs to obtain the father’s written consent.
In relation to (c), when it was pointed out to counsel for the mother, that he had in fact conceded the inclusion of such an order,[29] he contended that there was no need for the order to be made given the concession that the aids and device would be provided.
[29] Transcript 16 July 2020, p.268 line 35.
There is no merit in this ground.
COSTS
Generally, each party bears their own costs in proceedings under the Act (see s 117 (1)). However, if the circumstances justify a costs order, the Court may make such order as it considers just (see s 117(2)). In considering whether or not to make a costs order, the Court must have regard to the matters contained in s 117(2A), so far as relevant. It is sufficient for one factor in s 117(2A) to be present.[30]
[30] Fitzgerald vFish (2005) 33 Fam LR 123 at [41].
The mother has been wholly unsuccessful in the appeal (s 117(2A)(e)).
The father seeks a costs order for a fixed sum of $4,000.
Having regard to Sch 3 (Itemised scale of costs) of the Rules the sum claimed appears to be entirely reasonable. An order will be made to that effect and the appellant will have 30 days to pay.
No costs order was sought by the ICL.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Ainslie-Wallace, Aldridge, Carew.
Associate:
Dated: 7 June 2021
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