Zawadzki and Zawadzki (No. 2) - [2020] FamCAFC 131

FAMILY COURT OF AUSTRALIA

ZAWADZKI & ZAWADZKI (NO. 2)

[2020] FamCAFC 131

FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Unacceptable risk of harm – Whether the respondent’s time with the children should be supervised – Where the primary judge found that the respondent posed an unacceptable risk of harm to the children in 2014 – Where the primary judge found that the respondent no longer posed an unacceptable risk of harm to the children in 2019 – Where the 2014 findings were used as the touchstone against which the asserted changes in circumstances and the respondent’s behaviour could be assessed in 2019 – Issue estoppel – Application of s 69ZX of the Family Law Act 1975 (Cth) – Procedural fairness – Assessment of expert evidence – Where no oral or written submissions were directed to some of the grounds of appeal – Where no grounds of appeal succeed – Appeal dismissed – No order as to costs.

Family Law Act 1975 (Cth) s 69ZX

Bahonko v Sterjov (2008) 247 ALR 168; [2008] FCAFC 30
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Elmi & Munro (2019) FLC 93-912; [2019] FamCAFC 138
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Lee v Lee (2019) 372 ALR 383; [2019] HCA 28
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Wallis & Manning (2017) FLC 93-759; [2017] FamCAFC 14
Zawadzki & Zawadzki [2014] FamCA 238

APPELLANT:

Mr Zawadzki

RESPONDENT:

Mr A Zawadzki

INDEPENDENT CHILDREN’S LAWYER:

Forest Glen Lawyers

FILE NUMBER:

BRC

8417

2015

APPEAL NUMBER:

NOA

2019

DATE DELIVERED:

1 June 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Strickland, Aldridge & Austin JJ

HEARING DATE:

18 March 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

6 September 2019

LOWER COURT MNC:

[2019] FamCA 631

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Linklater-Steele

SOLICITOR FOR THE APPELLANT:

Parker Family Law

COUNSEL FOR THE RESPONDENT:

Mr Fisher (direct brief)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Williams QC

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Forest Glen Lawyers

Orders

The appeal be dismissed.
There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zawadzki & Zawadzki (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 89 of 2019
File Number: BRC 8417 of 2015

Mr Zawadzki

Appellant

And

Mr A Zawadzki

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

This appeal concerns the parenting arrangements for two children, B born in 2006 and C born in 2008 (“the children”). On 6 September 2019, a judge of the Family Court of Australia ordered that the children live with their elder brother, Mr Zawadzki (“the appellant”), who was to have sole parental responsibility for them “in respect of all major long term issues … other than the children’s names and changes to their living arrangements that would make it significantly more difficult for them to spend time with their father” (Order 3). As to the latter issues, the appellant and the children’s father, Mr A Zawadzki (“the respondent”), were to have equal shared parental responsibility (Order 5). The children were to spend time with the respondent in increasing periods, culminating in three nights a fortnight from February 2020 and half of the school holidays commencing at the end of Term 2 in 2020.
The appeal is opposed by the respondent and the Independent Children’s Lawyer (“the ICL”). This involved a change of position for the ICL, who had largely been supportive of the appellant’s position at the hearing before the primary judge.
In order to understand the appeal, it is necessary to explain how the proceedings came before the primary judge.
The children’s mother, Ms Zawadzki (“the mother”), and the respondent married in 1994 and separated in 2009. Proceedings between the mother and the respondent were commenced on 7 April 2011. An eight day hearing as to parenting and property issues was conducted before the primary judge in March and April 2013.
On 9 April 2014, orders were made and reasons for judgment were given (Zawadzki & Zawadzki [2014] FamCA 238) (“the 2014 reasons for judgment”), which relevantly provided that the children live with the mother who was to have sole parental responsibility for them. The children were to spend supervised time with the respondent on one occasion each fortnight at a contact centre. The basis for these orders was that the respondent posed an unacceptable risk of harm to the children that could only be ameliorated by supervision.
The mother died in late 2014 and the children passed into the care of the appellant, and since 2017, also the appellant’s partner. The children have continued to spend supervised time with the respondent, save for five visits of about four hours of unsupervised time, which occurred in August and September 2015 pursuant to orders made in the Children’s Court (at [3]; [8]).
The appellant initiated parenting proceedings in September 2015, seeking that the children continue to live with him and spend supervised time with the respondent. Interim parenting orders were made to that effect on 27 October 2015. In turn, the respondent sought orders that the children live with him, asserting that he no longer posed any risk of harm to the children and, that he was a changed man. The respondent also contended that the appellant posed an unacceptable risk of harm to the children through neglect and was not adequately looking after them.
The parenting proceedings were heard by the primary judge between 13 and 17 March 2017. In May 2019, orders were made which permitted the parties to re-open the evidence. Two days of hearing, including cross-examination and submissions, took place on 26 and 27 August 2019. Judgment was delivered by her Honour on 6 September 2019 (“the 2019 reasons for judgment”).

The Appeal

The Amended Notice of Appeal filed on 20 December 2019 contains nine grounds of appeal, two of which expressly identify the issue of delay as a ground of appeal (Grounds 1 and 6) and two of which are said to have delay as their fundamental premise (Grounds 2 and 4), although that is not apparent from the terms of Ground 4.
In the appellant’s Further Amended Summary of Argument filed with leave on 18 March 2020, counsel for the appellant grouped his written submissions under the headings “Delay” and “Use of the 2014 judgement, Issue estoppel, Section 69ZX(3) & the conduct of the Trial” (as per the original) and then specifically addressed Grounds 5 and 8 under their own respective headings. Seemingly, the appellant’s Further Amended Summary of Argument did not address Grounds 3, 7 and 9.
Notwithstanding that omission, we were informed by counsel for the appellant, during the course of oral submissions at the appeal hearing, that all grounds of appeal were pressed. The oral submissions made by counsel for the appellant were placed under the general heading of delay, with Grounds 5 and 8 being separately addressed. Ground 4 was not separately addressed, and as it is similar to Ground 5, we shall deal with these two grounds of appeal together.
We shall deal with the appellant’s submissions in the same manner.

Delay (Grounds 1, 2 and 6)

It is first necessary to identify what is said to be the delay in the proceedings before the primary judge. It is not the delay between the ultimate conclusion of the hearing before the primary judge on 27 August 2019 and her Honour’s delivery of reasons for judgment on 6 September 2019, which is no delay at all. Rather, the appellant focuses, as the relevant delay, on the period between the conclusion of the first hearing on 17 March 2017 and its resumption on 26 August 2019 for the hearing of further evidence and submissions.
In cases where there has been a lengthy delay between the hearing and the delivery of reasons for judgment, the trial judge’s reasons may be the subject of greater scrutiny, and challenged findings of fact may be examined with special care (Wallis & Manning (2017) FLC 93-759 (“Wallis”) at [10]–[11]).
The following passage from Wallis is apt here:
12.Thus, while the “label of delay adds little” it should be accepted that delay can infect the decision-making process: “[w]hat must be considered is the effect of the passage of time on the quality of the decision-making”. Importantly that can include “the perception of an effect”. As the Western Australian Court of Appeal has said:
… a long delay can give rise to disquiet … because of the suspicion, on the part of the losing party, that the task may have become too much for the trial judge and that he or she had been unable, in the end, to grapple adequately with the issues.
(Footnotes omitted)
The appellant’s contention as to delay was first put in the following passage from his Further Amended Summary of Argument filed with leave on 18 March 2020:
25.The Appellant’s contention is that the failure to properly engage with evidence and to weight it with the totality of the evidence including the previous findings amounts to error and that reasons delivered do not disturb the active apprehension that the pressure to deliver judgment saw the Court fail to give the second body of evidence in August and the submissions of the ICL and the Appellant proper consideration in its determination as to risk that lifting supervision posed to the children emotionally or physical and to the stability of their primary care arrangements.
(As per the original)
The essence of that submission is that the evidence and submissions provided in August 2019 were not properly considered by the primary judge due to the delay. There is no logic to that submission as there was no relevant delay between the hearing before the primary judge in late August 2019 and the delivery of her Honour’s reasons for judgment on 6 September 2019.
It was then put by the appellant that the primary judge erred by failing to give adequate effect to key findings from the 2014 reasons for judgment (as detailed in the appellant’s Further Amended Summary of Argument at paragraph 27, which identifies 26 such findings), and made findings contrary to them. The appellant’s submissions on this aspect ranged widely, including submissions as to issue estoppel and the application of s 69ZX of the Family Law Act 1975 (Cth) (“the Act”).
We do not accept this description of the 2019 reasons for judgment. As we shall now explain, we consider that the primary judge started with the findings made in the 2014 reasons for judgment, which led her Honour to the conclusion that, at that time, the respondent posed an unacceptable risk of harm to the children, and then found that, in the circumstances which existed in 2019, including the respondent’s changed behaviour, the respondent no longer posed such a risk to the children.
It is then necessary to turn to the 2019 reasons for judgment.
The primary issue for determination was described by her Honour in the following terms:
10.The first, and what I regard as the major, issue for determination in these proceedings between [the appellant] and [the respondent] is whether the [respondent] continues to pose an unacceptable risk to the children such that their interaction with him requires the continuation of supervision or whether the risk he was previously found to pose has, by virtue of the combination of:
a)the passage of time and the consequent impact of the same on the children’s ages and maturity; and
b)his behaviours since the findings were made; and
c)the continued presence in his life of his partner of some nine years, Ms [M],
been ameliorated to such an extent that it can be regarded as no longer amounting to an unacceptable risk.
11.If it is found that the [respondent] continues to pose an unacceptable risk to the children, then the continuation of supervision over their time with him is necessary to ensure that they are protected from physical or psychological harm from being subjected or exposed to abuse or family violence; further, consideration then needs to be given to the frequency at which the children will continue to spend time with [the respondent].
12.If it is found that the [respondent] no longer poses an unacceptable risk to the children, then the most significant additional issues to be determined are whether it is in their best interests now to move from [the appellant’s] primary care to live with [the respondent] (as [the respondent] seeks) or whether their best interests will be met by continuing to live primarily with [the appellant] and spend increasing amounts of unsupervised time with [the respondent].
So framed, it can be seen that her Honour did not intend to reconsider the findings made in the 2014 reasons for judgment.
This is confirmed by the following passages:
30.A number of matters expressed in the 2014 Reasons are particularly relevant to the consideration of whether spending unsupervised time now with the [respondent] would expose the children to an unacceptable risk of harm. In those Reasons I expressed and/or recorded that:
a)I did not accept the [respondent’s] denial of the suggestion that he had kissed the children on the bottom; and
b)I did not accept that [B] had been coached by mother; and
c)I was persuaded to conclude it was likely that the children had been exposed to sexual behaviour or abuse; and
d)Dr [V], Consultant Psychiatrist, had considered that, until the children were of an age where they were comfortable to report any concerns and reject any approaches, unsupervised time with the [respondent] appeared to be too high a risk; and
e)I was persuaded that the children would be at an unacceptable risk of exposure to inappropriate intimate behaviour from the [respondent] if they spent unsupervised time with him and noted that I had arrived at this conclusion having considered the evidence about the children’s behaviours, [B’s] comment at [T day care], [B’s] statements to Departmental officers in February 2011 (which I considered suggested, at the very least, that he has witnessed sexual intimacy) and the other expert evidence I indicated I had accepted; and
f)I was left with the uncomfortable feeling that the [respondent’s] experiences within his own family as a child and his consequent interaction with his sister … had resulted in him failing to appreciate appropriate boundaries in his behaviour with the children; and
g)I was persuaded, as Dr [V] was, that, at present, any unsupervised time between the [respondent] and the children came with too high a risk that they may be harmed; and
h)I also accepted the mother’s evidence that the [respondent] had previously been “verbally, emotionally and physically abusive” of [the appellant]; that it was more likely than not that, over the years, he had engaged in unregulated and, on occasion, explosive behaviour toward [the appellant] and that I accepted that, in the children’s presence, the [respondent] had previously referred to the mother using names like “whore”, “slut”, “lazy bitch”, and “fucked up sick bitch”; and
i)I considered that ongoing exposure to this type of behaviour was unlikely to provide benefits to the children in terms of either their functioning or the modelling of socially appropriate behaviours and that I thought it likely this behaviour by the [respondent] had its source in his difficulties in regulating the expression of emotion and managing his anger and that such conclusions provided an additional buttress for the determination that the children would then have been be at an unacceptable risk of harm if their time with the [respondent] was unsupervised; and
j)Dr [G], a Clinical and Forensic Psychologist, had recommended the children continue to have supervised time with [the respondent] until the risk of further sexual abuse notifications was assessed as low, something he thought would occur following a reduction in the [respondent’s] feelings of hostility and stress and upon his participation in specified interventions; and
k)I was not then persuaded that Ms [M] had sufficient capacity to supervise the children’s time with [the respondent]; and
l)I accepted Dr [G’s] assessment that the [respondent] had demonstrated deception, impulsivity, aggressive actions, marked instability in mood (primarily irritability and frustration), chronic feelings of emptiness and difficulty controlling anger; and
m)I did not accept Mr [J’s] assessment that the [respondent] was “not a hostile or violent person”; and
n)I accepted Dr [G’s] opinion that because of the [respondent’s] personality, his relationship with his children – and significant others – was likely, in the future, to remain turbulent and involve episodes of dysregulated behaviour; and
o)I accepted that the [respondent] would probably struggle to manage the children’s manifested behaviour; and
p)I accepted that the evidence established the [respondent] had often struggled to manage his anger and regulate his behaviour and that, in 2002, he assaulted the mother in a much more significant and serious manner than he admitted and had hit her to the head, ribs and arm which caused significant bruising to her face and head and which caused her to flee the home with [the appellant].
31.I turn to consider whether, nearly five and a half years after those findings about the [respondent’s] behaviours were made, the children would now be at an unacceptable risk of harm if their time with him is unsupervised.
(Footnotes omitted)
Her Honour proceeded to consider whether there was a “future potential risk” to the children (at [32]).
It follows that there is no force in the appellant’s submissions that the primary judge failed to have regard to her Honour’s earlier findings.
The appellant submits that having regard to the reasons, “uncertainty remains as to how the earlier judgment and ultimate findings were used by her Honour in matters of issue estoppel and/or whether in reality the Court was utilising s69ZX” (Appellant’s Further Amended Summary of Argument filed with leave on 18 March 2020, paragraph 35).
Issue estoppel has no role to play in parenting proceedings, as is explained in Elmi & Munro (2019) FLC 93-912 at [27]–[36]. Nonetheless, that does not necessarily give free rein for every earlier finding to be revisited at any subsequent hearing. Section 69ZX(3)(b) of the Act permits the Court, to “adopt any recommendation, finding, decision, or judgment of any court” in child related proceedings. This obviously permitted her Honour to rely on the findings in the 2014 reasons for judgment.
This is plainly what the primary judge did in the quoted paragraphs above. The findings in the 2014 reasons for judgment were not reconsidered but were used as the touchstone against which the asserted changes in circumstances and the respondent’s behaviour could be assessed.
The appellant submits that the primary judge denied the appellant procedural fairness because her Honour did not, in the course of the hearing, identify how s 69ZX of the Act was to be applied or how it was actually applied. As to the latter proposition, it is obvious from what we have already written that this submission fails because the primary judge clearly explained how the earlier findings were used.

As to the first, the appellant submits that “[h]er Honour made a number of statements in the course of the evidence in March 2017 and in August 2019 ‘that she was not conducting a retrial’” (Appellant’s Further Amended Summary of Argument filed with leave on 18 March 2020, paragraph 29) (Footnote omitted).
Consistently with those statements, the primary judge did not conduct such a retrial.
Returning then to the 2019 reasons for judgment, it can be seen that at [32]–[82], her Honour discussed the evidence as to the risk that the respondent was said to pose to the children in 2019.
The expert evidence included a report from a psychiatrist, Dr YY, dated 19 October 2015 and reports from a clinical psychologist, Mr WW, dated 21 January 2017 and 2 August 2019, as well as oral evidence given by them both at the hearing in 2017 and, by only Mr WW at the hearing in 2019. This evidence was discussed at [34]–[57].
The following conclusion was drawn:
58.I am not now persuaded that the children remain at an unacceptable risk of being exposed to inappropriate intimate behaviour by [the respondent] if their future time with him is unsupervised.
59.I have arrived at this conclusion given the nature of the behaviours considered in the 2014 Reasons, the time that has passed since then and the consequent significant difference in the children’s ages since mid-February 2011 (when they last spent unsupervised time with [the respondent]), their consequent increased maturity, resilience and capability, their consequent ability to report about any behaviour by [the respondent] that may make them feel uncomfortable, their likely much stronger relationship with [the appellant] in whom they can confide, the evidence given by Dr [YY] (which was not given during the hearing in April 2013), the observations made by the Contact Centre of the [respondent’s] behaviours over the lengthy period of time the children’s time with him has been supervised, the continued presence of Ms [M] as his partner and the [respondent’s] completion of the various courses to which reference has earlier been made. I have also taken into account that, during his evidence in March 2017, [the appellant] said that the children’s behaviours when they returned from spending unsupervised time with the [respondent] was pretty much the same as it had been when they returned from spending supervised time with him, although I also accept that limited reliance that can properly be placed on such observations given the small number of visits.
60.I accept the submissions made by Counsel for the [respondent] to the effect that the evidence now persuades of the conclusion that the [respondent] is now a very different person vis-à-vis his emotional regulation than the person the evidence considered at the March/April 2013 trial established him to have previously been. I note that, despite these proceedings having remained unfinalised since the conclusion of the March 2017 tranche of the hearing, there is no evidence to suggest that there has been any reported domestic violence between the [respondent] and Ms [M]; I note that there was no evidence before me during the March 2017 tranche of the proceedings to suggest that there had been occurrences of domestic violence between the [respondent] and Ms [M].
61.Given the ongoing observations made by the supervisors at the Contact Centre (as discussed below), I accept the [respondent’s] evidence to the effect that the courses he has done have helped him to learn to be a more patient person and accept things which he would not previously have accepted. I accept he has undertaken work that was less stressful for him; I accept that he has continued to attend on a psychologist to have the opportunity to express his feelings. I accept the [respondent’s] evidence to the effect that, during his participation in the various courses he has completed, he met people whose circumstances matched or were worse than his own and, from that, he has learned to appreciate the positive things in his life.
62.As noted during the March 2017 tranche of the proceedings, I consider that, in the answers he gave in responding to [the appellant’s] questions about what he had learned from the various courses which he has completed, the [respondent] demonstrated some insight, reflection and identification of the issues which had contributed to the circumstances in which he has found himself and his role in the same.
Her Honour proceeded to discuss the issue of supervised time, noting that “the reports of the children’s supervised time with [the respondent] also establish that he has consistently regulated his emotions appropriately and demonstrated better emotional control than previously” (at [64]). Nonetheless, it was accepted that a risk remained. Her Honour said:
68.I accept that a move to unsupervised time between the children and [the respondent] carries with it the risk that the [respondent] may make comments to them that somehow undermines or destabilises their sense of security in [the appellant’s] care of them. I also note and accept Mr [WW’s] evidence to the effect that it would be distressing for the children to be told that [the appellant] has harmed or neglected them. I also accept Mr [WW’s] assessment that the children’s age, resilience and loyalty to and confidence in [the appellant’s] care of them to date makes it more likely that the risk of destabilisation is minimised.
…
74.Counsel for [the appellant] raised that a further risk to the children, if their time with [the respondent] was unsupervised, arose because of the [respondent’s] capacity to persuade his treating psychologist to breach his ethical duty and become an advocate for him during the 2013 trial: it was advanced that, given this prowess, there was a risk that the children would not be able to withstand any attempts by the [respondent] to, for example, convince them that [the appellant] had sexually abused them. Given the limitations in the children’s interactions with [the respondent] since about mid-February 2011 and what I consider to be their primary loyalty to [the appellant], I am not persuaded that it is likely that the [respondent] would be able to convince these children, at their ages and with their lived experience of [the appellant’s] care of them, to believe something adverse of him. For the same reasons, I also think it unlikely that the [respondent] would be able to persuade the children not to speak with [the appellant] about any issues they might have whilst in his (the [respondent’s]) care.
The primary judge dealt with a submission made by the ICL that the respondent’s “persistent complaints about [the appellant’s] care of the children … may expose them to the possible consequent destabilisation of their existing care arrangements” (at [77]). After discussing the relevant evidence, the ICL’s submission was rejected by the primary judge as follows:
81.Counsel for the Independent Children’s Lawyer submitted, in August 2019, that there is nothing in the evidence to allow the Court to be satisfied that the [respondent] has reconciled himself to the fact that the children are in [the appellant’s] care. I suspect that, as may be the case with many other parents who are unsuccessful in their quest to have their children live primarily with them, the [respondent] will never be reconciled to this fact; that does not, however, persuade me that the children will be at an unacceptable risk of suffering harm if their time with him is now unsupervised. Similarly, I am not persuaded that the fact that the [respondent] continued to press for orders which would see the children live primarily with him means that they will be at an unacceptable risk of harm if their time with him is unsupervised. I do not accept the submission that the Court cannot be confident that the children are now of an age and stage of development where it is likely that they can self-protect against any statements the [respondent] may make to them that are critical of [the appellant’s] care of them or adverse to him.
The primary judge’s conclusion was:
82.For the reasons outlined above, I am not now persuaded that the children will be at an unacceptable risk of harm of exposure to inappropriate, intimate behaviour by the [respondent] or to his unregulated emotions or to inappropriate expressions of anger or to verbal abuse if their time with him is now unsupervised.
83.I am, though, persuaded that their best interests will now be met by affording them the opportunity to spend unsupervised time with [the respondent] so that they can continue to develop their relationships with him, relationships which I find are at a very real risk now of deteriorating as a consequence of the impact of ongoing supervision.
To repeat, the appellant’s submission (as set out above) that the findings made by her Honour in the 2014 reasons for judgment were not taken into account, cannot be accepted. They were taken as the starting point for the primary judge’s consideration but findings were made that the circumstances and, particularly, the respondent’s behaviour, had changed.
The next aspect of the appellant’s submissions was put in a number of ways. The appellant submits that the primary judge did not undertake an active consideration of the risk posed by the respondent as demonstrated by his continuing conduct in 2019 and that insufficient weight was given to it, and that the primary judge did not come to grips with the appellant’s 2019 evidence and did not address it.
Neither the appellant’s oral nor written submissions deigned to identify the evidence of the 2019 events that were said to be so important, other than to say that the respondent continued to make complaints about the appellant.
In an affidavit filed on 3 April 2019, the respondent made a number of assertions as to what he says was poor parenting of the children by the appellant. This was in support of the respondent’s claim that the children should live with him.
The respondent’s allegations were discussed and rejected by her Honour at [84]–[100].
In turn, the appellant’s evidence in his affidavit filed on 20 August 2019 was to the effect that the children were doing very well in his care. The appellant then made a number of allegations against the respondent, including stalking and the making of unreasonable accusations to various authorities against him and his care of the children. The appellant’s submission was that the allegations made in the affidavits and the various complaints by the respondent to various authorities indicated that the respondent had not changed.
Although the primary judge did not accept the respondent’s complaints about the appellant, her Honour found that the lack of communication between the appellant and the respondent “provided fertile ground for the [respondent’s] concerns” (at [138]).
The allegations of the respondent stalking the appellant and the children were discussed by the primary judge at [125]. The original complaint was made by the appellant in 2017, but the appellant’s evidence did not point to specific incidents since that time, other than to say “[h]e has continu[ed] to ‘stalk’ us” (Appellant’s affidavit filed on 20 August 2019, paragraph 14).
Thus, there is no merit in the proposition that her Honour failed to engage with the appellant’s case. It was considered but not accepted.
The appellant’s submissions did not identify how any delay from 2017 to 2019 impacted on these findings and the reasons given for them (noting, again, that the 2019 evidence was given only shortly before the 2019 reasons for judgment were delivered), other than to say that the findings ought to have been different. That is not enough to establish error.
The appellant submits that the oral evidence of Mr WW as to the risk of sexual harm that the respondent posed to the children was not taken into account. Reference was made to the cross-examination of Mr WW as to whether the children were now old enough to raise any improper behaviour by the respondent which would afford them some protection (Transcript 26 August 2019, p.35 to p.36).
Her Honour expressly referred to this evidence at [53]. Mr WW’s evidence that “the children are of an age and developmental stage where it can be anticipated they have some protective capacity” was accepted at [57].
This aspect of the appellant’s submission is rejected.
Ultimately, the appellant’s submissions descended into issues of weight and the assertion that the finding that the respondent had sufficient insight into his former issues, so as to change them, could not have been made.
Issues of weight are particularly matters for a trial judge and appeals from them face a high bar (Gronow v Gronow (1979) 144 CLR 513). This is particularly so in parenting matters, where it is accepted that there is no one correct result and that quite different orders can be properly made by different judges acting on the same evidence (CDJ v VAJ (1998) 197 CLR 172 at 218-219).
We consider that the findings made by the primary judge were open to her Honour. As can be seen, each of those findings had a sound evidentiary foundation. Whether another judge would have followed a similar course, is not to the point. There was no challenge to the effect that the evidence could not have been accepted (for example, as discussed in Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at [43]; Lee v Lee (2019) 372 ALR 383 at [55]).
There is no merit in Grounds 1, 2, and 6.

Grounds 4 and 5

Ground 4 asserts as follows:
The primary [j]udge erred in principle in failing to sufficiently identify in the course of the trial, how section 69ZX(3) was going to be applied by her [Honour] in regard the previous determination of the Court and to the evidence lead (sic) by the parties.
Ground 5 asserts as follows:
The primary judge denied the parties procedural fairness in failing to give the parties a proper opportunity to know or challenge how section 69ZX(3) was actually applied by her [Honour] in regard the previous determination of the Court and to the cases advanced by the Appellant and the ICL specifically to:
a)the Court’s previous finding of a lack of credit against the Respondent and the finding by the ICL and the Appellant that this remained and should be confirmed;
b)The Court’s previous finding that the children had been exposed to sexual behaviour or abuse;
c)The Court’s previous findings based on the evidence as outlined in p210 - 211 & 213 of the Reasons for judgment delivered 9 April 2014
d)The Court’s acceptance of the risk factors advanced by Dr [G] in the first trial:
e)The harm that would be caused by an unfettered ability to undermine the Appellant’s care of the children;
f)That the [respondent] had failed to demonstrate a major change given the history of emotional and domestic violence since the last trial;
g)That the effluxion of time had made any actual difference to the facts as found in judgment delivered 9 April 2014, or to the risks posed by the [respondent];
h)how or why her Honour had rejected the submissions and case advanced by the Appellant and the ICL that the [respondent] posed an unacceptable risk to the children and that totality of the evidence called for Orders to be made reducing the children’s supervised time with the [respondent].
(As per the original)
The appellant’s submission in support of Ground 5 states:
44.The Appellant elucidates eight material matters which in the circumstances the Court was either required to provide greater reasons for a change in the Court’s assessment and/or if the Court was minded to move from the findings that it had made on the previous occasion then it was incumbent upon the Court to give the Appellant proper notice that such a proposal was exercising the mind of the Court.
The logic behind these grounds of appeal is difficult to follow because the entire premise of the respondent’s case before the primary judge was that, notwithstanding the findings made in the 2014 reasons for judgment, the circumstances and his behaviour had changed, to the extent that he no longer posed an unacceptable risk of harm to the children. The position of the appellant was that nothing had changed. Thus, the whole of the hearing before the primary judge was, to the obvious knowledge of the appellant, whether there was such a change.
As we have already explained, her Honour said during the course of the hearing that she did not propose to reconsider the findings made in the 2014 reasons for judgment. Her Honour did not do so.
We see no lack of procedural fairness as alleged.
In any event, as we have explained, her Honour relied on s 69ZX(3)(b) of the Act and identified the propositions taken from the 2014 reasons for judgment. Her Honour did not move from those findings, but instead found that the risk then identified, no longer existed.
The real complaint of the appellant is that the findings made in the 2014 reasons for judgment were not applied, regardless of what subsequently occurred. Such a proposition is untenable. What orders are in the best interests of the children must be determined in the light of all the circumstances known to the Court at the time that the orders are made.
Grounds 4 and 5 are therefore not established.

Was the primary judge’s ultimate conclusion that the respondent did not present as an unacceptable risk of harm to the children vitiated by her Honour’s erroneous assessment of the evidence of Mr WW? (Ground 8)

This ground of appeal focused on the evidence of Mr WW, which was to the effect that as the children became older, they would be more able to protect themselves from any untoward behaviour by the respondent and, report it.
The primary judge recorded her Honour’s earlier finding that it was “likely that the children had been exposed to sexual behaviour or abuse” (at [30(c)]), as explained at [102]–[111] of the 2014 reasons for judgment.
The appellant submits that Mr WW:
·was not qualified to give an opinion on the “discovery, detection, assessment or presentation of sexual abuse” (Appellant’s Summary of Argument filed with leave on 18 March 2020, paragraph 48);
·had scant regard for the 2014 reasons for judgment; and
·his opinion as to any improvement by the respondent was little more than speculation.
Further, the appellant submits that the primary judge fell into error by “adopting, without critical appraisal, the opinions of Mr [WW]” (Appellant’s Summary of Argument filed with leave on 18 March 2020, paragraph 54).
As the 2014 reasons for judgment make plain, there was no finding that sexual abuse had taken place, although it seems tolerably clear that the children had been exposed to material or conduct most unsuitable for children and that the respondent lacked appropriate physical boundaries. To the extent then that the appellant’s submissions assume actual sexual abuse, they are misplaced.
The first and third points noted at [66] above can be simply disposed of because, at no stage during the hearing before the primary judge, was any objection taken to Mr WW’s written or oral evidence on the ground that he lacked any relevant expertise, his answers went beyond his expertise or his evidence was impermissible speculation.
We note that Mr WW “outlined that the findings expressed in the 2014 [reasons for judgment] stood as ‘a fact’” (at [52]), but in his evidence in 2019, he proceeded on the assumption that the respondent did not pose an unacceptable risk of sexual harm to the children. Mr WW said that if there was such a risk to the children, he would not recommend any visitation (Transcript 26 August 2019, p.49 lines 23–39).
The appellant particularly relied on the following passage of the cross-examination of Mr WW:
[COUNSEL FOR THE APPELLANT:] Right. Well – but isn’t one of the things that you rely upon in part for the lifting of supervision the notion that the children, you assume, are self-protective?
[MR WW:] I think they’re more – I think they have a greater protective capacity now - - -
[COUNSEL FOR THE APPELLANT:] Yes, but - - -?
[MR WW:] - - - than they did at the trial in 2014 five years ago.
[COUNSEL FOR THE APPELLANT:] Why, because they’re older by fact?
[MR WW:] ---Yes. And more resilient and more capable.
[COUNSEL FOR THE APPELLANT:] Right?
[MR WW:] ---Yes.
[COUNSEL FOR THE APPELLANT:] Well, isn’t the golden test for that to explore whether they actually made any complaint about sexually inappropriate behaviour?
[MR WW:] ---To – whether they’ve made - - -
[COUNSEL FOR THE APPELLANT:] Yes?
[MR WW:] --- Now, listen, you know, boys – there are times when I’ve asked children if anybody has ever touched them in ways that make them feel uncomfortable – if I think that’s pertinent. Boys often get discomforted by those kinds of, you know, discussions – and, you know, frankly, when I interview parties – adults, I’m not troubled if they feel uncomfortable, but I don’t really want to contribute to the discomfort of children when I conduct interviews. That’s not saying if there’s – if there’s – you know, in some cases where I think it’s really important to ask those questions, but - - -
[COUNSEL FOR THE APPELLANT:] Right?
[MR WW:] ---I’m mindful – I’m mindful of going gentle with children.
[COUNSEL FOR THE APPELLANT:] Well, how do we assume then that your concerns about boys raising such issues would, in fact, occur after this trial? How can we assume that they will have the fortitude to raise embarrassing matters with somebody?
[MR WW:] ---So if – if they’re sexually abused - - -
[MR COUNSEL FOR THE APPELLANT:] Yes?
[MR WW:] - - - would they raise it with somebody?
[COUNSEL FOR THE APPELLANT:] Yes?
[MR WW:] - - - You’re asking me if I have confidence. Look, there’s an abundance of cases that we’ve all been exposed to where children of that age and older haven’t been able to disclose child sexual assault.
[COUNSEL FOR THE APPELLANT:] Yes?
[MR WW:] --- So I’m not saying to you that I have an abundance of confidence. I guess ... what I said earlier was I’m not certain that those children were sexually abused by the [respondent] or that there’s risk of it, but if you’re saying, “Well, there is risk”, then – “and that could happen”, then I’m not confident that they would make appropriate disclosures – and I think, sir, you mentioned earlier that once they have that experience that there’s fairly significant damage done – and I agree with that.
(Transcript 26 August 2019, p.35 line 21 to p.36 line 15)

The cross-examiner, being counsel for the appellant, then turned to evidence as to suggested inappropriate sexual conduct with other children in households associated with the respondent and the following exchange occurred:
[COUNSEL FOR THE APPELLANT:] As I understood your evidence, you thought it was unlikely that he would have raised that with [the respondent]?
[MR WW:] ---Yes, sir.
[COUNSEL FOR THE APPELLANT:] The [respondent] suggests he did. You say, “Well, I don’t believe”, effectively, “that that happened because he’s, perhaps, too embarrassed.” If he’s too embarrassed to raise it with [the respondent] who is he going to report sexual abuse to, after this trial, if, indeed, [the respondent] sexually abused him?
[MR WW:] ---I think his relationship with [the appellant] is probably a little stronger.
[COUNSEL FOR THE APPELLANT:] Right. So he will be reporting to [the appellant]?
[MR WW:] ---I – you asked me before if children who are sexually assaulted – if we can have confidence that they will make disclosures promptly - - -
[COUNSEL FOR THE APPELLANT:] Yes?
[MR WW:] - - - and I suggested to you I don’t think we can.
[COUNSEL FOR THE APPELLANT:] Right. Well, what then is the protective umbrella that you’re giving these children in terms of unsupervised time with [the respondent]? What’s the protective factor?
[MR WW:] ---Okay. So – my apologies if I’m repeating myself.
[COUNSEL FOR THE APPELLANT:] No. That’s okay?
[MR WW:] ---I said if – if the assumption is that there’s a genuine risk of sexual abuse then my recommendations will be quite different.
[COUNSEL FOR THE APPELLANT:] Right?
[MR WW:] ---My recommendations are made on my belief that on the balance of probability there is no significant risk of the boys being sexually abused by their [the respondent].
[COUNSEL FOR THE APPELLANT:] Right?
[MR WW:] ---So I – I don’t know if I, you know - - -
[COUNSEL FOR THE APPELLANT:] Yes?
[MR WW:] ---So if you’re saying, “But if they are what are they gonna do?” - - -
[COUNSEL FOR THE APPELLANT:] No. You conclude, as I understand it, that because in your report you seem to suggest the department made a finding about sexual abuse - - -?
[MR WW:] ---Yes.
[COUNSEL FOR THE APPELLANT- - - and that in some way you take the view that that has been displaced by either Mr [H’s] report or, indeed, [Dr YY’s] observation, but how do you reconcile the judgment of this court where this court went through all of the evidence and found an unacceptable risk, potentially, of sexual abuse?
[MR WW:] ---I – I – there is no way that I would second-guess or critique the judgment of the court. What I do in terms of the assessments, I think, is to take a snapshot in terms of the circumstances at that time. It’s not my job to go back and offer any kind of critical review of a court decision.
[COUNSEL FOR THE APPELLANT:] But you are. You’re saying that the judgment of the court, that found that there was an unacceptable risk at that time, in some way should be disturbed; that there are now factors that would give you confidence that that risk has abated - - -?
[MR WW:] ---Yes.
[COUNSEL FOR THE APPELLANT:] - - - or ameliorated to the point where you say, “We can trust the [respondent] in unsupervised time” - - -?
[MR WW:] ---Yes.
[COUNSEL FOR THE APPELLANT:] - - - yes?
[MR WW:] ---Yes.
[COUNSEL FOR THE APPELLANT:] Right?
[MR WW:] ---And the biggest difference is the children are five years’ older.
(Transcript 26 August 2019, p.37 line 7 to p.38 line 10)
The primary judge dealt with this aspect of Mr WW’s evidence in the following paragraphs:
53.During his March 2017 cross-examination, Mr [WW] also said that, as the children aged, they would develop an increased protective capacity; they would also develop the capacity to speak about their experiences. Given this, he then recommended that supervision of their time with [the respondent] cease after the expiration of 12 months (that is, by about March 2018) and that consideration be given to having Ms [M] present during visits for a subsequent 12 months. He said he thought that these periods of time might assist the parties to accept whatever decision was made and allow the children’s capabilities (in terms of the development of protective skills) to be enhanced. Despite arriving at these recommendations, Mr [WW] also said that he remained a little concerned that, as the children age, there was the prospect that they might start to exercise some independence, not be as mindful of [the respondent’s] attempts to manage their behaviour and that the [respondent] might tend to react to this in an authoritarian way.
54.Mr [WW] also explained that the concern he expressed in the January 2017 report – namely, that there was a risk that unsupervised time between the [respondent] and the children would provide the [respondent] the opportunity to undermine their confidence in [the appellant’s] care of them – was based on: the [respondent’s] proposal (as it then was) that, if the children lived with him, their time with [the appellant] should be supervised; the [respondent’s] dissatisfaction that [the appellant] and the children maintained an ongoing relationship with Ms [U] (a friend of the late mother); and the possibility that the [respondent’s] multiple pre-March 2017 notifications to the Department were a manifestation of frustration and angst, which he might struggle to contain during unsupervised time with the children. He explained that the combination of these matters made him a little concerned that the [respondent] would struggle to support [the appellant] in his role as the children’s primary care-provider.
55.Despite such concern, Mr [WW] said, in March 2017, that he considered the children’s relationship with [the respondent] to be an important one; he opined that if his concern about the possibility that the [respondent] might undermine the children’s relationship with [the appellant] was put to one side, the children would probably be quite safe to spend unsupervised time with him. Such opinion obviously rested significantly on the belief noted in paragraph [52] above. He also opined that Ms [M’s] presence during the children’s time with [the respondent] may assist or be the equivalent of providing oversight, as he thought her presence might help the [respondent] contain any frustration or impatience he might experience when the children were in his care; in saying this, Mr [WW] also said, though, that he was not sure about whether Ms [M] would “stand up to” the [respondent] or intervene if he did not do the right thing.
56.Mr [WW] interviewed the [respondent], Ms [M], the children and [the appellant] on 31 July 2019. The contents of his 2019 report complement the contents of his January 2017 report.
57.I accept Mr [WW’s] evidence in his 2019 report to the effect that it is clear that the children are of an age and developmental stage where it can be anticipated that they have some protective capacity; I also accept that it is much more likely than not that they have the ability to articulate their experiences clearly. I note that Mr [WW] was unconvinced that the children’s relationship with [the respondent] should continue to be restricted by continuing the imposition of supervision over their time together. Such opinion again clearly rests on the belief noted in paragraph [52] above and Mr [WW] said, when cross-examined, that if the Court concluded that the children would now be at an unacceptable risk of being sexually abused by [the respondent] if their time with him was unsupervised, he would in fact recommend that they not spend any further time with him at all.
(Footnote omitted)
As can be seen, the finding was that the children had “some protective capacity” (at [57]).
The appellant’s submissions do not explain why it is said that the primary judge was in error in accepting Mr WW’s evidence in making this finding, nor do they identify the “critical appraisal” said to be lacking.
It was, of course, for the primary judge and not Mr WW to find whether or not an unacceptable risk of harm by the respondent continued. Once her Honour had found that it did not, we do not see what impediment there was to the acceptance of Mr WW’s opinion based on the assumption that there was no such risk. Nonetheless, Mr WW’s opinion was that to the extent that there remained a risk of improper behaviour, the children had some protective capacity to deal with it and report it. Her Honour explained it in the following way:
158.I note that Mr [WW] said that he did not get any hint from the children during their interaction with him that they thought that they might have been the victims of sexual abuse; I accept [the appellant’s] evidence that he has not said anything to the children about this issue; I also accept that the [respondent] has not spoken with them about this issue. Given my conclusion that it is in the children’s best interests to spend unsupervised time with [the respondent] on an increasing basis, I consider that they are likely to be assisted in managing this change to have the opportunity to speak with Mr [WW] before such time occurs overnight so that he can speak with them about the importance of telling [the appellant] (and the [respondent]) about any issues that concern them at school or home and about the importance of telling an adult (be it [the appellant] or [the respondent] or both) if they are exposed to any behaviour by any person (be it another child or an adult) that makes them feel uncomfortable in any way. Given [the appellant’s] evidence that he had the sense that the children feel comfortable talking to him about their time with [the respondent], it may be that Mr [WW’s] information does little more than reinforce for them that they should feel free to tell him about what happens during their time with [the respondent] and, similarly, should feel free to tell [the respondent] what happens in their lives when in [the appellant’s] care. Additionally, given the evidence about the children’s comments to [the respondent] during supervised visits about bullying, it may also assist them if Mr [WW] speaks generally with them about this topic also. Mr [WW] could also helpfully provide the children with age-appropriate answers to any questions they might have about the change to their care arrangements once they have had an opportunity to experience the same (noting, as I have elsewhere in these Reasons, [the appellant’s] evidence about how he thought the children would cope with spending unsupervised time with [the respondent]).
Once again, the appellant’s submissions do not identify why the above finding was arrived at erroneously.
We are not persuaded that her Honour has erred in the manner suggested by this ground of appeal.

Grounds 3, 7 and 9

These grounds of appeal were not the subject of any direct submissions. The appellant was represented by experienced counsel. We, therefore, will not take on the task of investigating these grounds of appeal for ourselves (Bahonko v Sterjov (2008) 247 ALR 168 at [3]).

Conclusion and Costs

It follows that the appeal will be dismissed.
No orders for costs were sought by the respondent or the ICL.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Aldridge & Austin JJ) delivered on 1 June 2020.

Associate:

Date: 1 June 2020