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Lang & Partington [2017] FamCAFC 40; (16 March 2017)

Last Updated: 23 March 2017

FAMILY COURT OF AUSTRALIA

Bennett and Bennett (1991) FLC 92-191
Bondelmonte v Bondelmonte [2017] HCA 8
Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
SS & AH [2010] FamCAFC 13
Whisprun Pty Ltd v Dixon (2003) 200 ALR 423

REPRESENTATION

ORDERS

(1) The appeal is dismissed.
(2) The father pay the mother’s costs of the appeal as agreed or, in default of agreement, as assessed.

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 Lang & Partington 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).

Appeal Number: EA 176 of 2016
File Number: PAC 3176 of 2015

Appellant

And

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Mr Lang (“the father”) appeals from interim orders made by Judge Newbrun on 16 September 2016 in the course of contested parenting proceedings between him and Ms Partington (“the mother”).
2. The parties have a child, X (“the child”), who was born in 2009. His Honour refused the father’s application that the mother be restrained from bringing the child into contact with her new partner, Mr V.
3. Central to the appeal is the complaint that the primary judge did not accept the father’s contention that Mr V posed an unacceptable risk of harm to the child.

BACKGROUND

4. The parties separated in July 2013. Shortly thereafter they agreed to an arrangement whereby the two children of the relationship, X and Y, who was born in 2000 and who was not the subject of the proceedings, would live with the father and spend time with the mother every Thursday evening and each alternate weekend between Friday and Sunday.
5. In late 2014 the mother commenced a relationship with Mr V and in March 2015 she began living with him and his children in his house in C Town. The father considered that Mr V was not a suitable person with whom X should spend time and did not consent to him spending time with the mother in C Town. The mother was thereby obliged to spend the weekend living at her mother’s house in Suburb D so that X could spend time with her.
6. On 30 June 2015 the mother filed an Initiating Application seeking parenting and property orders. The parenting orders sought by her were largely uncontroversial and reflected the current arrangements.
7. On 25 August 2015 the father filed his Response, in which he sought orders that provided for X to spend one day per fortnight less with the mother than she had proposed. He also sought the restraining order against the mother.
8. It is important to understand that the sole issue before the court on the day the orders the subject of this appeal were made was whether the restraining order should be made pending a final hearing. The following exchanges make this abundantly clear.

HIS HONOUR: At this stage, as far as the court is concerned, this is a one-issue interim hearing.
...
MR WEAVER: The issue, your Honour is well aware of, is whether [X], who’s seven and a half years old, should be permitted to spend time with his mother in the presence of the mother’s current partner, Mr [V]. The father opposes that pending final hearing on the basis that the father’s position is that, given the evidence before the court, the court would find – well, wouldn’t be satisfied in simple terms that the court has the full story about Mr [V’s] circumstances and the information before the court is accurate and complete.
HIS HONOUR: But is the underlying submission that there would be, if the court permitted the child to spend time with the mother in the presence of Mr [V], that there would be an unacceptable risk of harm in some form to the child?
MR WEAVER: Yes, your Honour.
HIS HONOUR: I mean, is that the underlying submission?
MR WEAVER: That’s the underlying submission. And I’ve given - - -
HIS HONOUR: And is it also submitted or not – so just a moment. Just a moment. So it’s submitted on behalf of the father it’s an unacceptable risk to the child in permitting the mother’s partner, Mr [V], to be present when the child spends time with the mother.
MR WEAVER: Yes. Yes.
HIS HONOUR: And do you also submit that on the evidence before the court there is a need to protect the child from some relevant risk if he was to spend time with the mother in the presence of Mr [V]?
MR WEAVER: Yes, your Honour.
HIS HONOUR: And if so, what is the relevant need to protect? Is it a need to protect the child against the risk of – is it, do you submit, abuse; do you submit neglect; do you submit family violence?
MR WEAVER: The evidence that’s before the court, which I will take your Honour to, in the subpoenas, first of all ---
HIS HONOUR: But just tell me what is the relevant – if there is a relevant need to protect being one of the primary considerations, section 60CC, what is the need to protect the child from? Is it the risk of abuse, neglect or family violence, one of those or some of those? What is it?
MR WEAVER: It’s the risk to the child of coming into physical harm or psychological harm.
HIS HONOUR: Risk of physical or psychological harm.
MR WEAVER: Harm, yes.

9. The father’s case thus was that the mother’s new partner posed an unacceptable risk of physical or psychological harm to the child. The precise harm to which the child might be subject was never identified.
10. Rather, the father relied heavily upon the fact that in December 2009 Mr V was charged with four counts of supply prohibited drugs, supply prohibited drugs on an ongoing basis and conspiracy to supply prohibited drugs. Mr V pleaded guilty to those offences and to an offence of possession of heroin. He was sentenced to six years and five months in prison for those offences.
11. The father also relied on the evidence of the mother’s adult daughter to which I shall refer shortly.
12. The primary judge recorded the following:
    32. Mr [V] denies ever having used heroin. He was previously a regular cannabis user. In December 2009, he was taken into custody and later pleaded guilty to various drug supply charges. He did not plead guilty to certain weapons charges. He stated that he pleaded guilty to a charge in relation to possession of an illicit substance, being heroin belonging to a woman, [Ms M], with whom he was previously in a relationship; he states that he lied to the police that he was a heroin user to protect [Ms M]. He was also convicted of supplying certain firearms. He was sentenced to six (6) years and five (5) months imprisonment, with the earliest possible release date of 31 January 2014. His criminal record is attached to his affidavit.
    33. Mr [V] refers to seeing a psychologist whilst incarcerated to discuss his anxiety. He was prescribed medication. He stopped taking this medication about 18 months before his release from jail. He states that he has not used cannabis since beginning his jail term.
    34. Whilst incarcerated, he completed the Getting SMART program in relation to prisoners who have had drug and alcohol problems. He also did a course called Managing Emotions. In 2012/2013, he was moved to a correctional section at [Suburb E]. He met the mother whilst working on job placement in April 2013...
    35. Mr [V] was released from jail in January 2014. At that time, his children were returned to his care. In March 2015, the mother moved into his Department of Housing premises in [C Town].
    36. Following his release from jail, he arranged to see a counsellor. He saw her six (6) times.
    37. On his release from jail, he began working as a driver for a ... company. He has been promoted [since]. He has been given a lot of responsibility at work.
13. The court also recorded that since his release on parole in January 2014, Mr V had worked constructively with the Department of Corrective Services and has been assessed as having no current substance abuse issues and that no intervention was currently required from the Department. The primary judge also recorded Mr V’s admission that he had lied to the police about the possession of heroin and that the sentencing judge had rejected some of Mr V’s evidence as being unreliable and untruthful (at [52]).
14. Upon his release from prison Mr V immediately resumed the care of his four children.
15. Taking these matters into account, the primary judge reached the following conclusions:
    66. The Court has considered carefully the evidence relating to Mr [V]. True it is that Mr [V] committed very serious criminal offences, however, he served his jail time, he sought to rehabilitate himself in jail, there was evidence of negative drug testing within jail, he was successful in obtaining employment whilst still serving his sentence, he served his parole time apparently without incident. He is now caring for his three (3) younger children in the [C Town] area. He has full-time employment. Mr [V] provided a sworn affidavit to the Court in these proceedings. He made frank admissions in that affidavit relating to his previously lying about his own use of heroin to protect his former girlfriend, [Ms M]. His affidavit includes evidence relating to his psychological issues and his past treatment in relation thereto.
    67. Whilst the father understandably has developed his own concerns about the child spending time with the mother in the presence of Mr [V], who has a serious criminal record, his concerns, as previously discussed in these reasons, including concerns expressed in his affidavits and statements to the Family Consultant at the Child Inclusive Conference, are not supported by any relevant objective evidence relating to Mr [V’s] present life and existence outside jail.
    68. The Court notes the matters raised in the affidavit of [Ms E Lang]. The Court notes that the allegations against Mr [V] in that affidavit are disputed by the mother, but in any event, the Court would place little weight on her affidavit by reason of her apparent present unsatisfactory relationship with the mother.
    69. The Court has considered the subpoenaed material from the Department of Corrective Services, New South Wales, including the criticisms of the sentencing Judge of Mr [V]. However, the Court refers to the significant positive material relating to Mr [V] referred to in that material, and again, the Court notes the frank admissions made by Mr [V] in his affidavit, referred to above.
    70. At this interim stage, based on the evidence before the Court, the Court is of the view that there is no unacceptable risk to the child in spending time with the mother in the presence of Mr [V]. The Court is of the view that there is no need to protect the child from the risk of abuse, neglect or family violence when spending time with the mother in Mr [V’s] presence.

THE APPEAL

16. This appeal is being heard by a single judge pursuant to a direction under s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) given by the Chief Justice on 17 November 2016.
17. Counsel for the father, who appeared on the appeal, abandoned grounds 1, 4, 11 and 12 of the Notice of Appeal. Sensibly, she did not seek to rely on the Summary of Argument prepared by her predecessor.
18. In dealing with the appeal she grouped the remaining grounds of appeal into three headings. I shall deal with them in the same manner. She also made a supplemental submission as to s 60CC(2)(a) of the Act.

Grounds 2, 3 and 9

19. By these grounds the father contended:
    2. The Application by the father for an injunction restraining the mother from allowing the child to come into contact with [Mr V] was dismissed. [Mr V] served a sentence of imprisonment for supply of guns and drugs. At paragraph 52 of the Judgment of the Court, His Honour Judge Newbrun noted that “the sentencing Judge rejected certain evidence that Mr [V] as being unreliable and untruthful” whilst His Honour Judge Newbrun found Mr [V’s] untested affidavit to contain “frank admissions” as to the same subject matter.
    3. His Honour erred in his Application of Marvel v Marvel [2010] FamCAFC 101; 2010 43 FAM LR348, in finding that the child spending time in the presence of [Mr V] is “necessary but a temporary measure until all the evidence can be tested, evaluated and weighed at a Final Hearing”.
    9. The Court has erred in “placing little weight” on the Affidavit of [Ms E Lang] by reason of her “apparent unsatisfactory relationship with her mother”. Such finding is in error in that it gives a preference to the mother’s evidence over [Ms E Lang’s] evidence without reasons being explained and without testing the evidence of either witness by cross examination. The Court has erred in its’ finding that there is no unacceptable risk to the child in the presence of Mr [V].

(As per the original)

20. Under these grounds the father submitted that the primary judge committed the following four errors:
    • His Honour did not exercise the caution that should be required on hearing interim parenting cases;
    • His Honour made final findings of fact on an interim hearing;
    • His Honour failed to recognise that in certain circumstances when dealing with the immediate welfare of children, an assertion should not simply be ignored merely because its accuracy has been put in issue; and
    • His Honour failed to make findings at an interim hearing “with great circumspection”.
21. In support of these submissions the father relied upon the following well known passage from Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348:
    120. 120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing: s 61DB.
22. Counsel also relied upon the following two passages from SS & AH [2010] FamCAFC 13 per Boland and Thackray JJ, which were quoted with approval by the court in Marvel at [122] and [123]:
    88. In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

...

100. The intuition involved in decision making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested apart from relying upon the uncontroversial or agreed facts a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

(Emphasis added)

23. It was submitted that, taking a conservative approach, the primary judge should have treated the evidence that was before the court as sufficient to indicate that, at least on an interim basis, there was such a risk of harm that the injunction sought by the father restraining the mother from bringing the child into contact with Mr V should be granted. The submissions then moved to particular evidence, which it was submitted had not been taken into account or had been given insufficient weight. I shall deal first with those matters and then return to the first submission.
24. In Bondelmonte v Bondelmonte [2017] HCA 8 the High Court (Kiefel, Bell, Keane, Nettle and Gordon JJ) said at [31]:

The submissions of the father implicitly accept, as they should, that the question for the Full Court of the Family Court was whether the father had identified an error in the reasoning of the primary judge of the kind referred to in House v The King. It is only an error of this kind which will permit an appellate court to interfere with parenting orders made by a primary judge under s 65D of the Family Law Act. It is well recognised that orders made in the exercise of a judicial discretion under the Family Law Act, including orders as to the alteration of property interests, orders as to custody and parenting orders, can be set aside only on a strictly limited basis, in accordance with House v The King.
(Emphasis added) (Footnotes omitted)

25. An appellant who seeks to challenge the exercise of discretion by reference to matters of weight faces a high bar: Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513.
26. It was submitted that the primary judge failed to take into account the evidence that raised concerns about the mental health of Mr V.
27. In support of that submission the father relied upon the following two passages of the transcript before the primary judge:

MR WEAVER: That’s a case note regarding the father being at the [...] Correctional Centre, where he has seen regarding a referral for mental health issues. That is something that comes up through the subpoenas and I will refer to other areas that it comes up in. But when one looks at the father’s evidence, he talks about seeing a counsellor; he talks about some help that he got; there’s no specificity, no detail about what sort of help he has received from his mental health issues.
...
MR WEAVER: There’s an alert there regarding a self-harm incident, which I understand was 9 February 2014. And that goes to my submission that we don’t know what ---
HIS HONOUR: Sorry. And it’s down the bottom of the page, self-harm incident.
MR WEAVER: Yes, history of self-harm incident.

28. These passages refer to events that occurred during Mr V’s incarceration. The question is, do these events establish that Mr V poses a present risk of harm? The primary judge found that they did not. Further, a self-harm incident, whatever that may have been, on 9 February 2014 does not indicate that Mr V presently has a mental health issue, again whatever that may be, or that such an issue poses a risk to the child.
29. In any event, the primary judge specifically took into account that Mr V had seen a psychologist whilst incarcerated and that he had been prescribed medication which he stopped taking 18 months before his release from gaol. Whilst there was no mention of the self-harm incident, a primary judge need not refer specifically to every piece of evidence (Whisprun Pty Ltd v Dixon (2003) 200 ALR 423 at [62]; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 259 and 271).
30. It was submitted that the primary judge gave too much favourable weight to Mr V’s admissions that he had lied to the sentencing judge. That is a difficult submission to make good – it was clearly a matter to which some weight could be given. It is not obvious that it was given excessive or decisive weight.
31. Secondly, and importantly, even if Mr V’s evidence was ignored in its entirety, and if his assertions that he had not been involved in drugs since he was arrested and as to what he told the sentencing judge were put entirely to one side, that would not prove the contrary. The father would still bear the burden of establishing that the evidence available indicated that the child was at risk.
32. Finally, it was submitted that the primary judge wrongfully gave too little weight to the evidence of Ms E Lang because of her “apparent present unsatisfactory relationship with the mother” (at [68]).
33. It has to be said that that is a somewhat troubling finding, particularly on an interim hearing. This is for two reasons. The first is that it is not immediately apparent that because a child has become estranged from her parent, her evidence about that parent’s behaviour should be discounted. For example, it could also be said that such evidence should be given more weight because of the estrangement. In truth, both are too simplistic and much more would need to be known.
34. Secondly, generally speaking, it is not appropriate to make findings of credit at an interim hearing when witnesses have not been cross-examined and the evidence is incomplete.
35. However, the difficulty that faces the father in this case is that the evidence of the daughter does not establish that the primary judge was in error in finding that there was no unacceptable risk of harm to the child. Taken at its highest, her evidence was that:
    • She had seen her mother and Mr V drink a bottle of whisky and that he became “argumentative and snappy” and that he was “getting very close to my face while speaking”.
    • Mr V on one other occasion became “irate and aggressive” and that an argument between Mr V and the mother “was loud and I thought it necessary to take his children away so they did not witness the incident”.
36. Even if this evidence was given full weight it is difficult to see that it establishes that Mr V poses an unacceptable risk of harm to the child.
37. I return then to the primary submission. In short, the father’s position was that the evidence as to the circumstances surrounding Mr V’s criminal activities and the father’s concerns about the child spending time with Mr V were allegations of such seriousness that they should have carried the day. This is because, it is argued, the court should act cautiously regarding the need, in this case, to protect the child.
38. The primary judge did not ignore the father’s claims. They were considered and found not to establish a risk. Importantly, his Honour did not find that Mr V posed no unacceptable risk to the child. Rather, his Honour found that “[a]t this interim stage, based on the evidence before the Court, the Court is of the view that there is no unacceptable risk to the child” (at [70]).
39. Quite simply put, his Honour was of the view that the evidence was not sufficient to establish a risk. Indeed, the primary judge clearly raised with the father’s counsel that there was not sufficient evidence to justify the orders sought. Counsel at the hearing before the primary judge was unable to specify any risk other than a general risk of psychological or physical harm.
40. The finding that the evidence did not establish that Mr V posed an unacceptable risk of harm to the child is a finding that was entirely open to his Honour. That remains the position even if the evidence of the mother’s daughter was taken into account at its highest.
41. These grounds do not succeed.

Grounds 5, 6, 7 and 8

42. The father’s complaints under these grounds are that:
    5. The Court erred in determining the child’s expressed wish to spend more time with his mother (said to the Family Consultant and recorded in Child Inclusive Conference memorandum) meant that the child should spend exactly the same time with his mother, but in the presence of [Mr V].
    6. The Court erred in finding that the child’s meaningful relationship with the mother would be harmed if [Mr V] was excluded from the mother’s time with the child.
    7. At paragraph 63 of the Judgment the Federal Circuit Court says “should this arrangement continue... [being the arrangement of [Mr V’s] exclusion from the mother’s time with the child] there is a real risk that the child’s relationship with the mother will not be enhanced and maintained”. The Court has erred in this finding. There is no evidence to support it, noting that the mother has spent regular time each fortnight for an entire year before Interim Hearing and delivery of Judgment.
    8. It is not an issue that the child has maintained and will continue to maintain a meaningful relationship of exactly the same duration with the mother, whether or not [Mr V] is present. The Court has erred in its reasoning at paragraph 64 of the Judgement when it says “the Court gives significant weight to this meaningful relationship primary consideration”.
43. Under these grounds the father submits that it was not open on the evidence for the primary judge to find that if the child was not permitted to spend time with the mother in her usual home, there was a real risk that the relationship with the mother would not be enhanced and maintained. It was submitted that what the primary judge was really saying was that the child’s relationship with the mother would be harmed if the injunction was made.
44. The child told a family consultant that he would “feel weird” if he had to continue to spend time with the mother at the maternal grandmother’s house, because this would mean that he would not get to see the mother’s actual house and what it looks like. Indeed, the child told the family consultant that he wanted to spend more time with his mother. This evidence was not challenged.
45. Thus it was quite open to the primary judge to find that the child spending time with the mother at her house in C Town, which she shared with Mr V, would enhance and maintain the child’s meaningful relationship with the mother. It is not a necessary corollary of that finding that the relationship between the mother and the child would be harmed if the child continued to spend time with the mother at the maternal grandmother’s house – it is quite possible that that arrangement too would maintain the relationship. That, however, does not preclude the finding to which I have just referred being made on the evidence – they are not alternatives.
46. In any event, as was submitted by the counsel for the mother, given the finding that the evidence did not establish a basis for the restraining order, that was the end of that issue. It was not in dispute that the child had a meaningful relationship with both parents. Whether or not the meaningful relationship between the mother and the child would be enhanced or diminished if the restraining order was made has no significance when there was no basis for making the order. Thus, although the primary judge noted that the child wanted to spend more time with the mother, that too was irrelevant.
47. These grounds are without merit.

Ground 10

48. Ground 10 is that:
    10. The Court has erred in taking into account the mother’s assessment of her seven-year-old child as being “mature” and drawing the conclusion therefore that the Court should give significant weight to his views. Whilst failing to make reference to the Court expert’s concerns about the mother prioritising her own interests over those of her son, the Court has erred in giving significant weight to [X’s] views, at age seven and a half, (which is that he wants to spend more time with his mother expressed to the consultant). He has not expressed any view about Mr [V] per se.
49. It was submitted that the primary judge did not display his reasoning process in deciding to give significant weight to the child’s views.
50. His Honour said:
    77. Whilst noting the age of the child [X], and also taking into account the mother’s assessment of this child that he is outgoing and mature, the Court nevertheless gives significant weight to his views.
51. In my view, this passage succinctly states why his Honour gave weight to those views. That is all he is required to do (Bennett and Bennett (1991) FLC 92191; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110).

Section 60CC(2)(a)

52. This section requires the court, when applying the consideration set out in s 60CC(2) of the Act – that is, the benefit of the child having a meaningful relationship with both of the parents on the one hand and the need to protect the child from physical or psychological harm on the other hand – to give greater weight to the need to protect the child from physical or psychological harm. It was submitted that the primary judge did not refer to and consider this section.
53. It is sufficient to say that his Honour did not need to consider this section, because he did not find there was a risk to the child.
54. I pause to observe it is not entirely clear that the primary judge was obliged to engage in a detailed consideration of s 60CC(2). It is not certain whether the order sought by the father was a parenting order (see s 64B(1) of the Act) or an injunction under s 114. If it was the latter and the order was not a parenting order, the provisions in Part VII of the Act, as to how the best interests of the child is to be determined, do not apply. That is not to say, of course, that the child’s best interests would not be an important, if not critical, part of deciding whether or not to grant the injunction.
55. However, neither the primary judge nor the parties considered this question and I will say no more about it.
56. For the above reasons I am not satisfied that there is any merit in the appeal and the appeal will be dismissed.

COSTS

57. As is usual, I sought submissions on costs at the time of hearing the appeal. The appeal was entirely unsuccessful (s 117(2A)(e) of the Act). None of the other considerations set out in s 117(2A) was referred to by the parties. There are, therefore, circumstances that justify an order that the father pay the mother’s costs of the appeal.

I certify that the preceding fifty seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered 16 March 2017.

Associate:

Date: 16 March 2017