Pruchnik & Pruchnik (No. 2) [2018] FamCAFC 128 (11 July 2018)

Last Updated: 12 July 2018

FAMILY COURT OF AUSTRALIA

PRUCHNIK & PRUCHNIK (NO. 2)

[2018] FamCAFC 128

FAMILY LAW – APPEAL – PARENTING – Orders changing children’s primary residence from the mother to the father – Where neither party proposed equal shared parental responsibility in relation to all aspects of parental responsibility – Approach to s 61DA(4) discussed – Circumstances which trigger s 65DAA – Adequacy of reasons – Whether adverse findings made without notice – Procedural fairness – Findings of fact – Adequacy of weight given to children’s views – Appeal dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Evidence of events that have occurred since the making of final orders – Evidence adduced to demonstrate that had the further evidence been known to the primary judge there would have been a different result – Where the evidence would not have affected the outcome – Application in an appeal dismissed. FAMILY LAW – APPEAL – COSTS – Costs sought by the respondent and Independent Children’s Lawyer – Where the appellant’s lack of success justifies an order for costs – Applications for costs granted – Fixed sum.

Family Law Act 1975 (Cth) ss 60CC, 61B, 61C, 61DA, 64B(2)(h), 65DAA, 65DAC

Beckham v Desprez (2015) 55 Fam LR 310; [2015] FamCAFC 247 Bolitho & Cohen (2005) FLC 93-224; [2005] FamCA 458 Bondelmonte & Bondelmonte (2016) FLC 93-698; [2016] FamCAFC 48 Browne v Dunn (1893) 6 R 67 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Chappell & Chappell (2008) FLC 93-382; [2008] FamCAFC 143 De Winter v De Winter (1979) 23 ALR 211 Doherty & Doherty (2014) FLC 93-571; [2014] FamCAFC 20 Doherty & Doherty [2016] FamCAFC 182 Dundas & Blake (2013) FLC 93-552; [2013] FamCAFC 133 Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jollie & Dysart [2014] FamCAFC 149 Kioa v West (1985) 159 CLR 550; [1985] HCA 81 Mellick & Mellick [2014] FamCAFC 236 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296; [1984] HCA 29 Newlands v Newlands (2007) 37 Fam LR 103; [2007] FamCA 168 SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd (2017) 345 ALR 633; [2017] NSWCA 132 SCVG v KLD (2014) FLC 93-582; [2014] FamCAFC 42

APPELLANT:

Ms Pruchnik

RESPONDENT:

Mr Pruchnik

INDEPENDENT CHILDREN’S LAWYER:

Claremont Legal

FILE NUMBER:

SYC

381

of

2015

APPEAL NUMBER:

EA

29

of

2018

DATE DELIVERED:

11 July 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan, Aldridge & Austin JJ

HEARING DATE:

30 May 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

23 January 2018

LOWER COURT MNC:

[2018] FamCA 24

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Kearney SC

SOLICITOR FOR THE APPELLANT:

Barkus Doolan

COUNSEL FOR THE RESPONDENT:

Mr Scarlett

SOLICITOR FOR THE RESPONDENT:

Aaron Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Ahmad

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Claremont Legal

ORDERS

(1) The appellant’s application in an appeal to adduce further evidence filed 11 May 2018 (as amended) be dismissed.
(2) The respondent’s application to adduce further evidence be dismissed.
(3) The appeal be dismissed.
(4) The appellant pay the respondent’s costs fixed in the amount of $5,000 within 28 days.
(5) The appellant pay the Independent Children’s Lawyer’s costs fixed in the amount of $2,178 within 28 days.

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 Pruchnik & Pruchnik (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 SYDNEY

Appeal Number: EA 29 of 2018
File Number: SYC 381 of 2015

Ms Pruchnik

Appellant

And

Mr Pruchnik

Respondent

REASONS FOR JUDGMENT

1. By Further Amended Notice of Appeal filed 3 May 2018, Ms Pruchnik (“the mother”) appeals parenting orders made by Hannam J on 23 January 2018. The mother and Mr Pruchnik (“the father”) have two children together, B (“the older child”), born in 2006 and C (“the younger child”), born in 2009 (collectively, “the children”). The father resists the appeal and seeks that the orders be upheld.
2. The parties separated in 2011 when the children were respectively 5 and 2 years of age. By agreement, the children lived with the mother and until October 2014 they regularly spent time with the father, which generally went well and without incident. However, in December 2014 the mother stopped making the children available to the father and they did not see him or have contact with him until mid-March 2015. Contact between the children and the father resumed but quickly broke down and once again, the mother refused to make the children available to spend time with the father. This was notwithstanding that orders for family therapy and the re-establishment of time between the children and the father had been made in the interregnum and, in relation to time between the children and the father, continued to be made. The mother’s on again, off again approach to the children’s time with the father continued, in relation to which the primary judge was satisfied that the mother withheld the children “without reason” [310].
3. Dr W (“the expert”), a child and family psychiatrist, was appointed to provide expert evidence in the proceedings. Her report was released in September 2016 and it was her recommendation that the children remain living with the mother on conditions; including that the mother and other family members continue to engage in family therapy and the mother not breach the orders for the children to spend time with the father [33]. Ultimately, at the final hearing, the expert was not prepared to make a recommendation about whether the children should continue to live with the mother or live with the father. The expert did, however, give evidence accepted by the primary judge; that “there are significant negative influences in the mother’s household about the father and the value of his role in the children’s lives” [311] and that the children were at risk of rejecting the father unless the family dynamics in the mother’s household qua the father changed [312]. These negative dynamics persisted and, in circumstances where it was to the benefit of the children for them to have a meaningful relationship with both parents [339], and if the children lived with the father their relationships with the mother were not at risk [318], the primary judge was satisfied that it was in the best interests of the children for them to live primarily with the father. This was notwithstanding that the children wanted to remain in the primary care of their mother [344] – [345] and that a change in their primary living arrangements would be difficult for them, indeed traumatic [412].
4. The orders provide, inter alia, that the father is to have sole parental responsibility for the children (Order 2), that the children will live with him (Order 4) and spend supervised time with the mother each Saturday for a period of two hours which will gradually increase to unsupervised overnight time (Order 5). Provision is made for the father and the children to engage in family therapy (Order 20). As to individual therapeutic support for the children (most relevantly the older child), it was accepted that in the exercise of his parental responsibility the father would arrange such therapeutic support as he considered was appropriate. The orders further provide that the mother is restrained from bringing the children into contact with her partner, Mr M (“the mother’s partner”), for a period of six months from the date of the orders (Order 17).
5. An application in an appeal filed by the mother on 11 May 2018 to adduce further evidence must also be considered. The further evidence being an affidavit filed by the mother on the same day (along with 45 pages of annexures which became Exhibit A in the appeal) and an affidavit of psychologist Dr H (“the older child’s therapist”) filed 18 May 2018, who the older child was seeing when he lived with the mother. Stated broadly this evidence seeks to establish that the children have not adjusted to their changed living arrangements and the older child has not continued to see his therapist since he commenced living with the father. In response, the father sought to rely on an affidavit by him which was filed at the commencement of the appeal. It is his position that the application to adduce further evidence should be dismissed.
6. An Independent Children’s Lawyer (“ICL”) was appointed to represent the children’s interests. At trial, the ICL maintained a neutral stance and did not submit in support of either party. Rather, two alternate sets of orders were provided to the primary judge which were “dependent upon the Court finding a justifiable reason to change the children’s primary residence” (Case Outline Document, para 2.1). Although, on appeal, the ICL conceded that errors as alleged by Grounds 8 and 13 were established, these errors were able to be corrected on appeal (in relation to family therapy) and did not otherwise vitiate the judgment. Otherwise, as best we can understand it, somewhat curiously the ICL neither concedes nor resists the appeal, contending that whether or not error is established is a matter for the court. Relevantly, the mother’s application to adduce evidence from the older child’s therapist was supported.

Background facts

7. So as to provide context to the appeal, a brief factual overview is required.
8. The parties commenced cohabitation in June 2002.
9. Their son was born in 2006.
10. The parties married in September 2006.
11. Their daughter was born in 2009.
12. The parties ceased to cohabit in 2011, following which the children continued to live with the mother in the north-western outskirts of Sydney. The father established a home close to the mother and children.
13. The parents were able to agree about the father’s time with the children which generally occurred each alternate weekend, with some flexibility built into this arrangement.
14. The mother commenced a relationship with her current partner in about 2012.
15. The father commenced a relationship with Ms N (“the father’s wife”) in about July 2013. They have married.
16. In October 2014 the mother began taking steps to sell her home and move to the Central Coast of NSW.
17. In December 2014, following allegations made by the older child to two teachers of abuse by his father, the mother stopped making the children available to spend time with the father. A few days later, she and the children moved to the Central Coast.
18. It is helpful to record at this juncture, that although the mother has made serious allegations of child abuse against the father in the past, she did not contend at the final hearing that the father poses any unacceptable risk of harm to the children. Rather, she said that her actions in withholding the children were, in the circumstances which prevailed, reasonable.
19. The mother commenced parenting proceedings in the Federal Circuit Court on 23 January 2015.
20. On 13 March 2015, orders were made providing that the father have telephone communication with the children and for family therapy with Dr T, a psychologist (“the family therapist’). Family therapy commenced and, on 9 April 2015, interim orders were made by consent that the children recommence seeing the father on the weekends in his mother’s presence. Further agreement was reached for the father to assume a significant role in the children’s care, essentially week about, during a period when the mother would be in hospital. However, the mother, not unreasonably, was unimpressed with the arrangement the father put in place and withdrew from the agreement. Indeed, she went further and for “no reason” reneged on the entire arrangement for the children to spend time with the father [128].
21. At the behest of the ICL, the proceedings were relisted on 15 June 2015. On that day further orders were made in accordance with recommendations of the family therapist to the effect that the children live with the mother and spend time with the father in the presence of the paternal grandmother, gradually increasing to unsupervised overnight time every second weekend and for twice weekly telephone contact [22]. The children spent time with the father in accordance with these orders until 28 November 2015.
22. On 11 December 2015, the father was due to collect the children from school for them to spend time with him in the Christmas school holidays. However, the children were withheld from school and the mother stopped contact between the children and the father because “she had been informed that the father had left the daughter alone in the care of the paternal grandfather” who, according to the mother had a history of “inappropriate sexual advances and innuendo” in the presence of her and another person [135]. A few days later, on 15 December 2015, the mother filed an application seeking interim orders that she have sole parental responsibility for the children and that the father and paternal grandparents have no contact with the children “due to further risk, bullying, intimidation and harassment of the children” [138]. Again, it is instructive to record that at the final hearing the mother did not contend that orders should be made to restrict the children’s contact with the paternal grandfather [136]. The primary judge was satisfied that the mother raised concerns about the paternal grandfather as a pretext for not making the children available in response to an indication by the father on 10 December 2015 that he would seek orders that the children live with him [149].
23. On 17 February 2016 orders were made reinstating time the children’s time with the father, the resumption of family therapy (which the mother had terminated) and that the children not be in the presence of the paternal grandfather alone. Further orders were made appointing the expert mentioned earlier. Contact between the children and the father resumed in accordance with orders and continued until early May 2017.
24. The expert report, dated 15 September 2016, was released on 26 September 2016. The expert recommended that:
    1. The children continue to live with their mother with conditions –
       1. [The older child] is supported in therapy with [the older child’s therapist]
       2. [The mother] meaningfully engages and is compliant with any recommendations by a treating family therapist
       3. [The mother] is compliant with any recommendations for medication for [the older child] by a treating child psychiatrist or [Dr J]
       4. She does not breach Orders
    2. The children spend time with their father and [the father’s wife] on alternate weekends, from Friday PM to Monday AM and half school holidays.
    3. Family therapy, aiming for reflective rather than reactive responses to the children’s concerns, as well as consistency in expectations and management of them in both households.

...

(As per original) (Expert report, page 31)

25. On 4 May 2017, the mother took the older child to a hospital emergency department on the basis he was expressing suicidal ideation caused by what she said was concern about the child having to spend time with his father. The primary judge was satisfied that although the mother had good reason to suspend the father’s time with the children that weekend, there was no justifiable basis for the mother to continue to withhold the children from the father after this date, which she did [185]. This included the occasion of the father’s wedding which was scheduled to coincide with a weekend when the children were to be in his care.
26. The proceedings were transferred to the Family Court in early April 2017 and, pursuant to an order made on 14 June 2017, the mother presented the children to the Family Court’s Child Dispute Services where they were collected by the father. Thus, the father’s time with the children resumed and continued, other than on one occasion on 22 September 2017 when the older child refused to leave the school grounds to go with the father.

Applications to adduce further evidence

27. By an application in an appeal filed 11 May 2018, the mother seeks to adduce further evidence in the appeal, in the form of an affidavit sworn by her. The affidavit deposes to events that occurred before and since the making of the final orders, and were said to be related to grounds 1, 2, 3, 7, 8, 9 and 14 in the appeal. Before us, senior counsel for the mother also sought leave to amend the application of 11 May 2018 to also rely on an affidavit of the older child’s psychologist, sworn on 17 May 2018.
28. For his part, the father sought to file an affidavit in response, sworn 29 May 2018, which was given.
29. The ability of this Court to receive evidence in an appeal is constrained: CDJ v VAJ (1998) 197 CLR 172 (“CDJ”). Section 93A(2) of the Family Law Act 1975 (Cth) (“the Act”) is essentially designed to ensure that proceedings do not miscarry (CDJ at [104]). In this case the purpose of the further evidence is to demonstrate that the orders under appeal are erroneous and that had the further evidence been known to the primary judge there would have been a different result. In particular, that a change in the children’s primary care would see the older child denied ongoing therapy with his therapist and the children would be greatly distressed by leaving their mother’s care and losing contact with their mother’s partner.
30. The nature of the evidence invites the caution identified in CDJ:
    118. The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations. So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.
31. As we will shortly demonstrate these matters were well understood by the primary judge and admission of this type of evidence would not have affected the outcome because it only validates the primary judge’s finding that the change of residence would likely be traumatic for the children. In short it is not persuasive of error and the applications to adduce further evidence will be refused.

Grounds of appeal

32. Before we turn our attention to the challenges advanced by the mother, it needs to be understood that this is an appeal against an exercise of discretion which is to be determined in accordance with the principles set out in House v The King [1936] HCA 40; (1936) 55 CLR 499. A different view by an appellate court only on matters of weight by no means justifies a reversal of a decision of the primary judge (Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 at 519). This is particularly brought into focus in respect of parenting orders which inevitably involve “predictions and assumptions about the future” (CDJ at 218).

Sole parental responsibility and s 65DAA (Grounds 1, 2 and 3)

33. Grounds 1, 2 and 3 were argued together and are concerned with the order which conferred sole parental responsibility for the children on the father. In essence, it was asserted that by making this order, the primary judge erred in:
    • Failing to make a finding pursuant to s 61DA(4) of the Act with the consequence that she thereafter failed to apply s 65DAA of the Act (Ground 1);
    • Failing to give adequate reasons for conferring sole parental responsibility on the father (Ground 2); and
    • Denying the mother procedural fairness in circumstances where, until closing submissions, no party sought to exclude the mother from equal shared parental responsibility (other than certain aspects identified by the father) (Ground 3).
34. To put these challenges in context, by virtue of s 61C of the Act, each parent of a child has parental responsibility subject to orders. The definition of “parental responsibility” is contained in s 61B of the Act and is to the effect that parents have all the rights and duties (etc.) which by law parents have in relation to their children. When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the parents of the child to have equal shared parental responsibility (s 61DA(1)) other than when sections 61DA(2), (3) or (4) apply. If a parenting order provides or is to provide that parents are to have equal shared parental responsibility, s 65DAA of the Act (court to consider child to spend equal time or substantial and significant time with each parent in certain circumstances) is triggered. Further, where equal time and substantial and significant time are in issue, a judge is required to consider whether an order for equal time or substantial and significant time is in the best interests of the child and reasonably practicable (Beckham v Desprez [2015] FamCAFC 247; (2015) 55 Fam LR 310; SCVG v KLD [2014] FamCAFC 42; (2014) FLC 93-582 (“SCVG”)). Only if either one of those pre-conditions is negatived could the question of what outcome promotes the child’s best interests be treated, in effect, as at large (Goode & Goode [2006] FamCAFC 1346; (2006) FLC 93-286 at [65]).
35. As occurred here, an order may be made for parents to have equal shared parental responsibility in relation to an aspect, but not necessarily every aspect, of parental responsibility (Newlands v Newlands [2007] FamCA 168; (2007) 37 Fam LR 103; Chappell & Chappell (2008) FamCAFC 143; (2008) FLC 93-382; Doherty & Doherty (2014) FLC 93 571; Doherty & Doherty [2016] FamCAFC 182 (“Doherty”)). Doherty also considered whether an order for parents to have equal shared parental responsibility in relation to an aspect but not every aspect of parental responsibility is sufficient to trigger s 65DAA. In deciding that it was not, May and Ryan JJ said:
    33. ...As we mentioned earlier, s 65DAA is solely concerned with the effect of an order for equal shared parental responsibility for the child made in favour of the child’s parents. It speaks in absolute terms and proceeds on the basis that in relation to parental responsibility, the child’s parents’ are in every respect equal. It is for this reason that the section requires consideration of whether the child spending equal time with each parent would be in the best interests of the child. On the other hand, s 65DAC speaks to the effect of an order that requires two or more persons (who may or may not be the child’s parents) to share parental responsibility and the exercise of which involves a decision about a major long-term issue. The provisions do different things. There is nothing contained in either provision (or indeed the definitions of parental responsibility and parenting order) that limits the allocation of equal shared parental responsibility to the equal conferral of every aspect of parental responsibility. In this respect Doherty is particularly persuasive. It follows that we agree that an order for equal shared parental responsibility may be made in relation to a discrete aspect of parental responsibility.
    34. However, an order that a child’s parents have equal shared parental responsibility for some but not all aspects of parental responsibility, as we have just explained, would not trigger s 65DAA.
    35. It follows that the primary judge was not required to apply s 65DAA and the challenges raised by this ground must fail.
36. Kent J agreed and said:
    58. There is thus no substance in the father’s contention that because the trial judge made an order for the parents to have equal shared parental responsibility for only two discrete aspects of parental responsibility, with the mother to have sole parental responsibility for all other aspects, that this constituted an order for “equal shared parental responsibility” within the meaning of s 65DAA of the Act. The trial judge did not make an order for equal shared parental responsibility within the meaning of s 65DAA and thus the trial judge was not bound to apply that section of the Act.
37. We invited submissions about Doherty and no submission was made that it was wrongly decided or should be distinguished from this case. In any event, we are satisfied that the principles which emerge from Doherty apply in this case.
38. So as to understand the gravamen of these grounds, it is necessary to examine the manner in which the allocation of parental responsibility was pursued at trial.
39. The one matter on which the parties were agreed is that an order for equal shared parental responsibility should not be made. The mother moved on her amended application filed 4 July 2017 and, as is confirmed by her counsel’s case outline filed 16 November 2017, she sought sole parental responsibility for the children. By the father’s amended response filed on 3 July 2017 he proposed that he have sole parental responsibility “for the education and medical including medical therapy for the children” and that the parties otherwise have equal shared parental responsibility for the children. The orders he sought as to parental responsibility are now set out:
    2. Subject to Order 3 the parties have equal shared parental responsibility in relation to [the children].
    3. That the father have sole parental responsibility for the education and medical including mental health therapy of the children. Prior to making a decision in the exercise of his sole parental responsibility, the father will notify the mother in writing of the decision that it [sic] to be made and he will consider the views of the mother before making the decision. Once the father makes a decision in the exercise of his sole parental responsibility, the father will notify the mother in writing of the decision that is made.
    4. Notwithstanding Order 3 herein:-
       1. The mother shall be responsible for the daily care, welfare and development of the children whilst they are living or spending time with her; and
       2. The father shall be responsible for the daily care, welfare and development of the children whilst they are living or spend time with him...
40. At the commencement of trial the ICL did not submit orders as to the best interests of the children. The submission in counsel for the respondent’s written summary of argument, that at the commencement of the case the ICL sought an order for sole parental responsibility, is incorrect. After the evidence closed on 22 November 2017, directions were made for the ICL to file a minute of the orders she sought by 29 November 2017 and a timetable for written submissions was set. The hearing was adjourned so that counsel for the parties could, on the adjourned date, present final oral addresses.
41. In accordance with the direction, the ICL filed a minute of proposed orders in which two scenarios were presented for consideration. As to parental responsibility, in the event that an order was made that the children live with the father, the ICL sought an order that he have sole parental responsibility for the children. In the event that an order was made that the children live with the mother, the ICL proposed that the parties have equal shared responsibility.
42. Counsel who then appeared for the father filed written submissions on 13 December 2017 which included orders in substitution for Order 11 as sought in his amended response and other orders. None of those additional orders changed the nature of the relief sought concerning parental responsibility. However, in her written submissions (filed after the ICL and before those filed on behalf of the mother), counsel for the father wrongly summarised the collective position concerning parental responsibility thus “the parties all seek an order that the primary carer have sole parental responsibility for the children” (para 4). The mother did not seek an order for equal shared responsibility if the children lived with the father and simply maintained her stance that an order for sole parental responsibility in her favour was appropriate.
43. When the hearing resumed on 20 December 2017, counsel for the father confirmed that the orders he sought were as contained in his amended response and otherwise as set out in the proposed orders attached to her closing submission. The effect of this is that counsel did not seek to amend the father’s application to seek sole parental responsibility in his favour, and that her Honour’s summary of the competing proposals at [397] is correct. It follows that from at least some weeks prior to the final addresses and before counsel for the mother filed his written submissions the mother knew that the question of sole parental responsibility in favour of the father was in play.
44. As to the question of procedural fairness, in National Companies and Securities Commission v News Corporation Limited [1984] HCA 29; (1984) 156 CLR 296 Gibbs CJ explained at 312 that:

The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.

45. Ultimately, questions of procedural fairness turn on their own facts. It is a fundamental aspect of fairness that a person has a right to be heard when an order is made which will deprive that person of some right or interest. Such a person is entitled to know the case against him or her and, relevant to the challenge mounted by the mother, is to be given the opportunity of replying to it (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 582).
46. The primary judge was attuned to the procedural fairness consequences arising from seemingly new matters raised in the written submissions and at the commencement of the hearing on 20 December 2017, she raised the topic. True it is, that the procedural fairness point was raised under the rubric of a discussion about an order sought by the father concerning the mother’s partner, but the point is there can be no doubt that the primary judge sought input from counsel to ensure that the any procedural fairness issues arising from the written submissions and additional orders was addressed. In response to the judge’s enquiries, counsel for the mother said that he was able to meet the relief raised concerning the mother’s partner. Importantly, and, even though the topic under discussion was procedural fairness, there was no complaint by him that he could not meet the case for sole parental responsibility in favour of the father now pressed (as one option) by the ICL. Given that the mother, in her own case indicated, (and, as by its terms, Ground 1 demonstrates) that s 61DA(4) applied and the presumption of equal shared parental responsibility was rebutted by evidence that it would not be in the best interests of the children for the parents to have equal shared parental responsibility; an assertion that she could not meet an argument to that effect mounted by the ICL would have been futile. No doubt this would explain why no application was made by the mother for an adjournment and/or to re-open her case. The absence of any attempt to address these supposed procedural fairness issues in the court below is fatal (Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68).
47. The effect of this is that there was no denial of procedural fairness and Ground 3 has not been established. It follows that the submission of the ICL to the effect that the mother was denied procedural fairness (but not in a material respect) is also rejected.
48. As to Ground 1, it was not open to the mother to assert that s 61DA(4) had been satisfied and to now complain that the primary judge did not, in identical language, make that finding. In SCVG, a case concerned with consideration of a mandatory statutory provision, the Full Court said:
    81. One question which must then be considered is whether it is necessary to couch any such concession or agreement in the language of the Act to amount to it being “consideration” of ss 65DAA(1) and/or (2) to the effect that orders of that type would not be in the child’s best interests. Or, whether the identification of the terms of the agreement and of the issues to be determined can be sufficient to establish facts from which an inference may be drawn that the court has considered and decided against an order for either equal time or substantial and significant time. Although it would be preferable and avoid doubt if s 65DAA was explicitly referred to, there are circumstances in which it can be safely inferred from the facts and circumstances of the case before the trial judge that the provision was considered. This is such a case. In this case the fact that the parties were legally represented and had for years engaged in litigation conducted under essentially the same statutory framework, where the transcript and reasons disclose a common view about the legal and factual matters in issue and the matter was not yet complete, the inference that ss 65DAA(1)(a) and (2)(c) was considered readily arises.
49. Senior counsel for the mother (and the ICL) relied on Dundas and Blake [2013] FamCAFC 133; (2013) FLC 93-552 and Mellick & Mellick [2014] FamCAFC 236 (“Mellick”) in support of the proposition that it was necessary for there to be explicit and cogent reasons (and thus evidence) why the presumption should be rebutted. Those cases are authority for that proposition, but only in the context of it being contentious as to whether or not the presumption had been rebutted or s 61DA(4) applied. However, they say nothing about the approach to be taken where, in a case such as this, the parents agreed that the conditions for the operation of s 61DA(4) were met. It follows that against the background of the mother’s concession as to the application of s 61DA(4) (a concession which, given the orders sought by the father, he also adopted), it was sufficient compliance with the provision for the primary judge to declare herself to be satisfied that “in these circumstances it is in the children’s best interests for the parent with whom the children are to primarily live to have sole parental responsibility for them” [408].
50. Furthermore, we are completely satisfied that when the whole of the discussion in the trial reasons under the heading of “Parental responsibility” is taken into account, the primary judge made it abundantly clear that s 61DA(4) applied.
51. The pernickety approach inherent in Ground 1 does not withstand scrutiny.
52. We also reject the contention, based on the relief sought by the father as to parental responsibility, that the mother had a reasonable expectation that s 65DAA would apply. As Doherty makes plain, had orders for parental responsibility as proposed by the father been made s 65DAA would not have been triggered.
53. The remaining aspect of these challenges concerns the assertion that the reasons for conferring sole parental responsibility on the father are inadequate.
54. The first component of this challenge focused on the primary judge’s conclusion “that in these circumstances it is in the children’s best interests for the parent with whom the children are to primarily live to have sole parental responsibility for them” [408]. It was said that this finding suborned the determination of who ought to have parental responsibility to a determination of who ought to have residence, which are separate considerations. The assertion being, that the answer to with whom the children should live “is not necessarily going to be determinative of parental responsibility, and they’re quite separate” (Appeal transcript, 30 May 2018, p 25, line 36). The following exchanges demonstrate the point:

[SENIOR COUNSEL FOR THE MOTHER]: At that point – and this is perhaps important as well – what her Honour doesn’t determine is who’s to have that sole parental responsibility. She determines the person with whom the children are to live or inhabit and why that is the case. If ultimately your Honour is correct in your submission that one looks to the foregoing reasons, it doesn’t engage with why it ought to be the residential parent. It certainly engages with why it ought not be my client, but it doesn’t engage with why it ought be the residential parent and in this instance the father.

AUSTIN J: But it would be absurd to allocate exclusive parental responsibility for a child to anyone other than the residential parent. Why would you have the children live with parent A but give exclusive parental responsibility to parent B who the child sees intermittently?

[SENIOR COUNSEL FOR THE MOTHER]: There could – and it doesn’t necessarily emerge on the facts of this case but it might. One might determine, as the father indeed sought, that in relation to medical issues then that’s something that ought be the subject of equal responsibility and – or ..... or

AUSTIN J: That’s not answering the question, with the greatest of respect, because you said there was a decision to allocate parental responsibility to the person with whom the children were going to live. We’re not talking about now fragmenting parental responsibility. I asked you a question as to why it would be anything other than absurd to allocate parental responsibility, if it’s going to be an exclusive conferral, to anyone but the residential parent.

[SENIOR COUNSEL FOR THE MOTHER]: Well, your Honour, the responsibility for long-term decisions isn’t one of necessity – either cuts across or denies the ability of a parent on the ground who has primary residence of the children to fulfil all of those obligations without more. It might be an unusual situation but it’s certainly not one that’s simpliciter absurd or precluded by in every circumstance

(Appeal transcript, 30 May 2018, p 24, lines 32 – 46, to p 25, lines 1 – 15)

55. As we will shortly explain, the primary judge provided ample reasons as to why an order for sole parental responsibility was required. The proposition that it was incumbent upon her Honour to also contemplate an arrangement whereby the children would live with one parent but that parent would have none of the necessary parental powers to make major long term decisions about the children (indeed perhaps at all) and that those rights, powers and duties would vest in the other parent need only be stated to be rejected. It propounds an inherently impossible living arrangement and is entirely inconsistent with the reasons why the primary judge was satisfied that an order for sole parental responsibility was required. Further, no submission was made to the primary judge to the effect that if the children lived with the father, the mother should nonetheless retain sole parental responsibility for them. Although it was proposed by the father that in some respects the parties would have equal shared parental responsibility for the children, his proposal was not accepted by the mother or the ICL. It is too late for the mother to now point to evidence which could have weighed in support of orders which at trial she had the opportunity to agree to but did not.
56. Turning then to the adequacy of the reasons given for sole parental responsibility in favour of the father. Under the heading “Parental responsibility”, the primary judge emphasised s 65DAC(2) which was correctly stated as requiring “that decisions about major long term issues are required to be made jointly and requires the parents to consult one another in relation to such decisions and make a genuine effort to come to a joint decision” [400]. At [402] – [403] examples were given of the parties’ different parenting styles and of their inability to make decisions together. Reference was made at [404] to the lack of “evidence that the parties have previously reached agreement about any major long-term issue” followed by examples of very significant decisions made unilaterally by the mother and the difficulties caused thereby. At [405] the primary judge refers to the parties’ “poor record in communicating with one another in relation to major long term issues” and other circumstances which satisfied the primary judge did not auger well for the future. Finally, the primary judge expressed her concern that an order for equal shared parental responsibility was more likely (than the various proposals including an order for sole parental responsibility) to lead to the institution of further proceedings (which was undesirable) in relation to the children (s 60CC(3)(l)). By this stage the primary judge had made a raft of favourable findings (many of which are unchallenged) as to the father’s parenting capacity.
57. The submission that the primary judge’s reasons as to sole parental responsibility in favour of the father stand and fall with [408] cannot be sustained. Ground 2 is not made out.

The children’s time with the mother (Ground 4)

58. By Ground 4, the mother asserts error by the primary judge “as a consequence of a failure to give any or any adequate reasons for the periods and regularity of time she determined that the children should spend with [the mother]”. The inadequacy of reasons relates to the period after the orders for supervision of time were spent. In other words, the challenge is addressed to the orders which provide for the mother to have unsupervised time with the children. The orders as to the children’s time with the mother provide:
    • (5) That the mother spend time with the children during school term time as follows:
      • (a) For a period of six weeks from the making of these Orders, each Saturday for a period of two hours supervised by [the G Service] or such other professional supervision service as advised by the ICL or as agreed between the parties. For this purpose the mother and the father shall contact the supervision service and sign all documents necessary and otherwise follow all directions from the supervision service for the mother to spend supervised time with the children. The mother is to bear the costs of supervision;
      • (b) Following 5(a), for a period of eight weeks, each Saturday from 10 am to 2 pm;
      • (c) Following 5(b), for a period of eight weeks, every second weekend from 10 am Saturday to 12 pm Sunday;
      • (d) Thereafter, every second weekend from the conclusion of school on Friday, or 3 pm if Friday is a non-school day, until 5 pm Sunday.
    • (6) That the mother spend time with the children during school holidays as follows:
      • (a) In the short school holidays at the conclusion of Term 1 of 2018, for one day in the first week of the holidays and one day in the second week of the holidays as agreed between the parties from 10 am to 2 pm;
      • (b) In the school holidays at the conclusion of Term 2 of 2018 and all school holiday periods thereafter, for one half of the school holidays from the conclusion of the last day of school until 5 pm on the half-way point.
    • (7) That the mother spend time with the children during all other times, and notwithstanding Orders 5 and 6, as follows:
      • (a) Commencing in 2018 and during the Christmas period as follows:
        • (i) From 2 pm Christmas Eve until 2 pm Christmas Day in even numbered years;
        • (ii) From 2 pm Christmas Day until 2 pm Boxing Day in odd numbered years commencing 2019.
      • (b) From 5 pm the day before Mother’s Day until 5 pm Mother’s Day, notwithstanding that overnight time may not have commenced in accordance with Order 5(c);
      • (c) For four hours on the mother’s birthday as agreed between the parties; (sic)
59. The primary judge was presented with one suite of orders proposed by the father in relation to the children’s time with the mother and another proposed by the ICL. The mother did not submit any such orders for consideration and no submissions were made on her behalf about which of the two proposals should be preferred. In the event, the primary judge made orders consistent with those advanced by the ICL.
60. In relation to the period under consideration, the differences between the two suites of orders are not substantial and both proceed on the basis that the children would spend time with the mother each alternate weekend, for half each school holiday period and on designated special occasions. The primary point of difference is that the father proposed weekends which would conclude before school on Monday whereas the ICL proposed Sunday evening. It was open to the mother to argue in favour of a Monday rather than a Sunday return. However, she did not do so and, as the primary judge was tasked with choosing between two reasonably similar proposals, it is important that we do not embark on an overly critical analysis of her reasons: Bolitho & Cohen [2005] FamCA 458; (2005) FLC 93-224.
61. It is accepted that the primary judge did not explain why a Sunday return was preferred to Monday. If, from the mother’s perspective, that matter was contentious or there was complaint from the father, the absence of reasons on the point may have been problematic. However that is not the case and in circumstances where the primary judge was very concerned about the negative influences in the mother’s household and made repeated references to any orders being in the best interests of the children it may be inferred that the shorter weekend was favoured because it provided the appropriate balance between enabling the children’s relationship with the mother and the risks this posed to their relationships with the father.
62. Furthermore, we agree with the submission of counsel for the father to the effect that the mother cannot now complain that the amount of time ordered for her is inadequate given that she did not seek orders in her favour at trial. The point being, that the primary judge could not be said to have erred for failing to make orders that he was not asked to make (see Mellick at [88]).

Failure to evaluate the proposals and the reasons (Grounds 5 and 15)

63. Grounds 5 and 15 were argued in conjunction and assert that the primary judge erred by:
    • Failing to properly identify and then properly consider the parties’ competing proposals (Ground 5); and
    • Having regard to the established facts and the manner in which the hearing was conducted, failed to give adequate reasons for the parenting orders (Ground 15).
64. There is no suggestion, nor could there be, that the primary judge misstated the statutory provisions which applied (Part VII of the Act) or the manner in which those provisions have been interpreted. Rather, the essential complaint is, as cases such as Jollie & Dysart [2014] FamCAFC 149 at [49] demonstrate, the law requires reasoning which is adequate to evidence the process of analysis and to explain the path to the ultimate result.
65. The trial reasons comprise a detailed judgment of 416 paragraphs which extends over 78 pages. Although length does not equate to an appropriate level of engagement with the issues and analysis, as Ground 15 reveals the trial reasons resolve the central factual controversies and otherwise take into account a raft of matters which were uncontentious. Whether or not this was sufficient must be considered.
66. As to the parties’ competing proposals, these were summarised at [3] and [4] of the trial reasons and there is no suggestion that the reasons misstate one or other of the competing proposals. True it is that the competing proposals were not set out in full, but as they were well understood and identified in documents admitted at trial it was not necessary for the primary judge to reproduce the proposals word for word in the reasons. As has already been explained, the central question was whether the children should continue in the primary care of the mother or live with the father. The mother did not challenge the father’s proposals for the children’s time with her if he was successful on his primary application and there were only minor issues as to the structure of the children’s time with the father in the event that they remained with the mother. Her Honour’s analysis of the parties’ proposal at [3] and [4] was, in the circumstances of this case, sufficient.
67. Otherwise, there is no requirement for the primary judge to structure her reasons by reference to those proposals and the issue by issue approach which culminated in the application of the statutory provisions to the findings was completely orthodox. However, the point that it was essential that the primary judge address the critical feature of the alternate proposals is obviously correct. On a fair reading of the trial reasons, it can be seen that discussion of each of the relevant s 60CC(2) and (3) factors is followed by an indication of how this might influence the central question of whether the children should live with the mother or the father. Reference need only be made to s 60CC(2)(a) and [316] - [318], s 60CC(2)(b) and [337] – [339] and s 60CC(2)(d) and (f) and [368], [369] and [375] – [381] to demonstrate the point.
68. The assertion that the trial reasons are inadequate will be addressed next. In this regard, it was uncontentious that the children had lived their entire lives with the mother and, in her primary care following separation some seven years earlier. The children have a close, loving and meaningful relationship with the mother (albeit in relation to the older child, enmeshed) and they wanted to continue to live with her. Changing the children’s living arrangements would require them “to relocate to a new area and attend new schools” [376]. Although the father had some doubts about whether the older child has attention deficit hyperactivity disorder (“ADHD”), he had been diagnosed with ADHD, anxiety and depression, which diagnoses were accepted by the expert and the primary judge [375].
69. It was also common ground that the children would be traumatised at being removed from the mother’s primary care. These factors all weighed in favour of the children continuing to reside with the mother, which proposition was explained as follows:
    377. For these reasons I would need to be satisfied that the mother’s parenting capacity is significantly impaired to justify such a change in their circumstances. I would also need to be satisfied that there are no significant concerns about the father’s capacity to provide for the children’s needs.
70. Paragraph 377 of the trial reasons is of signal importance and demonstrates that the primary judge well understood the nature of the mother’s case and the gravity of the ramifications for the children of the changes proposed by the father.
71. In answering the propositions contained in [377] careful consideration was given to the extent and reasons given by the mother for disrupting the children’s time with the father. Each occasion of denial of time was carefully analysed and findings such as those at [92], [127], [149] and [185] culminated in findings that:
    310. Since these proceedings were commenced in 2015, orders have been consistently made for the father to spend time with the children. On at least three occasions, the mother has unilaterally withheld the children from the father despite court orders. I have made findings earlier in these Reasons that she did so without reason. The mother has also unilaterally made a number of significant major decisions with respect to the children, a matter to which I will return.
72. This segued to consideration about the effect this had on the children’s relationships with the father and acceptance of the expert evidence that:
    311. ...[T]here are significant negative influences in the mother’s household about the father and the value of his role in the children’s lives. The expert also opines that the mother continues to present as unable to protect the children from her own fears that the father is uninterested, largely absent and punitive which may be reinforced by the complaints of the children who appear compelled to repeat a negative narrative about the father and his wife.
73. The effect of which is that the children are at risk of rejecting the father if the dynamics in the mother’s household did not change [311]. This was significant because:
    317. Although the expert expressed concern about the mother’s incapacity to support the children’s relationship with their father, whether they continue to live with her in the future or move to live with him, clearly the risk is greater if they live primarily with the mother. This is a matter to which I attach significant weight when considering the competing proposals.
74. The father and his wife were found to have a good capacity to provide for the children’s needs and there was no suggestion that the children’s relationship with their mother was at any risk in the father’s household [412], [318]. These two findings are unchallenged.
75. The father had engaged in therapeutic intervention and followed the recommendations of the family consultant. On the other hand, the mother was aware that the expert was of the view that until the mother had processed her own vulnerable feelings and personal trauma, this would adversely affect her parenting capacity. Thus, notwithstanding that the expert recommended that the mother undertake therapy, in the 14 months between publication of the expert’s report and the hearing the mother engaged in therapy in a very limited way and her parenting capacity had not changed. Furthermore, the opinion of the expert, which the primary judge said was “alarming”, was that unless the mother’s parenting style changed the older child would likely be involved in the mental health system for the rest of his life [378].
76. Having made repeated references to the traumatic effect on the children of being removed from the mother, the primary judge concluded:
    411. In coming to the view that this arrangement is in the best interests of the children I attach particular weight to the risks to the children having a meaningful relationship with their father if they remain living with the mother in light of my findings about the family dynamics in the mother’s household. I also attach significant weight to the capacity of each of the parents and others in the respective maternal and paternal households. I do not attach any weight to the views expressed by the children for the reasons given.
    412. The most significant factor in favour of the children remaining in the primary care of their mother is that it is likely that the children will experience a change in their living arrangements as traumatic. However, a number of orders proposed by the father, as recommended by the expert, will provide support for the children during this difficult time. It is the intention of the children’s stepmother to work from home for some time following the change in the children’s care arrangements. They will also receive family therapy and orders will be made in accordance with the expert’s recommendation to assist the mother to contain her emotions during her time with the children. The adverse influence of the mother’s partner will in my view be mitigated by an order that he not be brought into contact with the children for a period of six months. I have also found that the father and his wife have good capacity to provide for the children’s needs, which will support them through this difficult time.
77. More could be said by way of analysis of the trial reasons, but the above discussion exemplifies the process of reasoning and how the key findings balanced out in favour of the parenting orders ultimately made.
78. Otherwise it is accepted that the primary judge did not explicitly state reasons for making Order 13. Order 13 is an injunction pursuant to s 68B of the Act which, in broad terms, restrains the mother from having the children in her care other than in accordance with orders, or as agreed between the parties. However, by way of inference there can be no doubt that this order was imposed to facilitate compliance with the primary order for the children to live with the father and designed to address difficulties the mother would have supporting an order that the children live with the father. It would operate to prevent her from encouraging the children to come to her outside of the orders and should the children turn up unexpectedly, she could not keep them with her. Given the structure of the primary orders, the order neither imposed an additional burden on the mother nor detracted from her rights under those orders. In these circumstances there is no deficiency in the reasons.
79. Grounds 5 and 15 have not been established.

Mother’s belief as to risk of harm (Grounds 6, 10 and 13)

80. The focus of these grounds is on the primary judge’s consideration of whether the mother had valid reasons for ceasing the children’s contact with their father and related findings. The grounds were argued together and assert that the primary judge erred as follows:
    6. ... [That her Honour] effected a denial of procedural fairness upon [the mother] in that whilst [the mother] made plain from the outset that she was not pursuing a case that [the father] posed an unacceptable risk to the children, [the father] did not at any relevant or fair time make plain that he was putting against her the case identified by her Honour in paragraphs 49, 86, 91 and 113 of her Reasons which her Honour then drew upon to inform her conclusions at paragraphs 92, 103, 110 and 310 of her Reasons and further in doing so, in those circumstances, unfairly drew inferences adverse to the case of [the mother] in the observations made in each of paragraphs 68, 72, 74, 77, 98 and 184 of her Reasons in circumstances where, had [the father]’s case been made plain, [the mother] could have called other evidence (which would otherwise have been irrelevant) and conducted her case differently.

...

10. ... by failing to give adequate reasons to explain the underlying facts that she saw relevant as to the mother’s background in paragraphs 104 and 385 of her Reasons and revealing how she had taken those matters into account, or in the alternative, she thus took into account irrelevant matters.

...

13. ... in evaluating whether [the mother] had a realistic basis for concerns about the conduct of [the father], her Honour failed to take into account relevant facts, namely the concessions made by [the father] in cross examination as to his conduct (Transcript 25.11.17 pages 101, 102 and 138).
81. Properly understood, the proposition raised by Ground 6 is that even where affidavits or case outlines, other evidence or documents, for example expert reports, have made it clear that particular assertions or evidence will be challenged, or adverse inferences drawn, procedural fairness requires that such matters be put to a witness if they are to form the basis for adverse submissions or findings. The proposition is based on the rule in Browne v Dunn (1893) 6 R 67. In SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd [2017] NSWCA 132; (2017) 345 ALR 633 McColl JA discussed the operation of the rule, including where evidence in chief is given in writing:

[136] The rule in Browne is an obligation of procedural fairness which counsel has when cross-examining a witness who counsel intends to submit should not be accepted. It is an obligation “to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of [the witness’s] evidence”. It applies both to party witnesses and witnesses generally.

[137] The rule in Browne is both “a rule of practice or procedure designed to achieve fairness to witnesses and a fair trial between the parties ... [and also] a rule relating to weight or cogency of evidence”. It “facilitates the tribunal’s assessment of the reliability and accuracy of the witness.” Even where, for example, the inference on which a party may intend to rely to impeach a witness is clear from the exchange of witness statements or affidavits or reports, “such notice ... does not absolve the party who seeks to impugn the witness’s credibility, from cross-examining as to those issues that the party intends to ultimately submit are of significance [so as to] provid[e] the basis upon which the tribunal of fact can make the necessary assessment of the witness in relation to those issues”. If “matters in controversy are not ‘put’ to the witness in cross-examination the tribunal’s capacity to assess the merit of the allegation subsequently to be made and the credit of the witness is likely to be impeded”.

[138] Thus, the parties “cannot by an agreement to which the court has acquiesced, authorise a course which denies elementary procedural fairness to a witness”.

[139] It might be accepted, as Mr George submitted, that the rule in Browne is of less importance where pleadings, affidavits or pre-trial preparation, have already made clear that the particular assertion or evidence will be disputed. However, “[e]ven when there has been an exchange of affidavits or statements, the rule in Browne will require a cross-examining counsel to put to a witness the implications which counsel proposes to submit can be drawn from the evidence, if those implications are not obvious from the evidence, or from other pre-trial procedures, or the course of the case.”

(Our emphasis) (Footnotes omitted)

82. We agree and thus are satisfied that even if the impugned findings were not the subject of cross-examination, provided the implications were otherwise plainly in issue there will be no want of procedural fairness.
83. In order to understand these challenges, it is necessary to set out the passages from the trial reasons which set the scene for the discussion as to the mother’s beliefs. Under the heading “The Matters in Dispute” the primary judge said:
    48. It is the father’s case that the children have been emotionally abused in the maternal household and that there is a risk of this continuing in the future if they remain living primarily in the mother’s care.
    49. In particular it is contended on behalf of the father that the mother has misinterpreted or inappropriately relied upon information given to her by the children and the children’s behaviour in the past and has come to believe that the children are at a risk of harm in the care of the father which has led to her withholding them from him from time to time. The father contends that the court should find that despite her assertions to the contrary and the orders she seeks, the mother currently believes that the father is a significant risk to the children and she will be unable for this reason to co-parent with him in the future if the orders are made as she seeks. The father contends that the mother is likely to continue to behave in this manner in the future. It is also contended on behalf of the father that the mother has acted as if she had sole parental responsibility for the children in the years following separation when they have lived with her and she is likely to continue to do so in the future.
    50. It is the mother’s case that she has either acted entirely appropriately on all occasions when she has withheld the children from spending time with their father or there has been a misunderstanding between the parents or a failure on her part to understand processes in the proceedings that have led to her ceasing the children’s contact with the father. It is further submitted on the mother’s behalf that her behaviour in recent months would lead the court to conclude that she has not played a part in causing the children to be aligned with her.
    51. These positions involve the resolution of some factual disputes particularly concerning the circumstances in which the children have not spent time with the father on various occasions.

...

91. As I understand the father’s case, it is his position that the mother has not ever genuinely believed that he physically abused the children or posed an unacceptable risk of harm to them on this basis. Alternatively, he contends that it was not a reasonable belief held by the mother and that she unreasonably and uncritically accepted complaints made by the children and misinterpreted the behaviour of the older child in particular. He contends that the mother’s actions in withholding the children from him from December 2014, making serious allegations against him and unilaterally making significant decisions about them indicate her incapacity from December 2014 to support the children having a meaningful relationship with him which continued at the time of the proceedings and is likely to continue in the future.

...

113. It is the father’s contention that the mother continues to believe that he poses a significant risk of harm to the children and that this informs the mother’s ongoing actions in withholding the children from him from time to time. A determination of these positions also involves the resolution of a number of facts in dispute concerning the further occasions on which the mother withheld the children in May 2015, December 2015 and May 2017.
84. It is conceded by the mother that the father did contend that the children were exposed to psychological abuse in her household. However, it is submitted that “the case otherwise contended by [the father] as identified by the trial judge was never disclosed in the trial. There was no opening, no such contentions were stated in [the father]’s case summary, and no such contentions were put to [the mother] in cross examination” (Summary of Argument, para 27). In the absence of notice of these contentions, it is argued there was a want of procedural fairness in relation to the following findings:
    92. I am further satisfied that the mother did not have a reasonable basis to believe that the father had physically abused the children when complaints were allegedly made by the older child to her in late 2014.

...

103. ...It is significant that the mother made a decision to cease completely all contact between the children and the father solely on the basis of reports made by an eight year old child which were inherently unbelievable and had features of exaggeration and influence by others, without any prior discussion with the alleged perpetrator with whom she had a good coparenting relationship at the time.

...

110. In my view, there is an element of opportunism by the mother in uncritically accepting the complaints made by the older child and relying upon them in suspending the father’s time with the children at a time when she was relocating due to difficulties in her relationship with her partner. Taking all of the foregoing matters into account I do not find, as the mother contends, that she acted protectively and reasonably at this time in withholding the children from the father and unilaterally making significant decisions about them without input from the father.

...

310. Since these proceedings were commenced in 2015, orders have been consistently made for the father to spend time with the children. On at least three occasions, the mother has unilaterally withheld the children from the father despite court orders. I have made findings earlier in these Reasons that she did so without reason. The mother has also unilaterally made a number of significant major decisions with respect to the children, a matter to which I will return.
85. There can be no doubt that the issue of the reasonableness of the mother’s belief in the older child’s allegations (leading to her finding at [92]) had arisen, as exemplified in the following exchanges with counsel for the mother during final addresses:

[COUNSEL FOR THE MOTHER]: ... [I]f [the older child] says or does something in the future, [the mother] should look at it with, perhaps, a greater degree of scepticism than she has in the past, because it’s quite – my client could not have known what was happening in the father’s home until his wife gave evidence in these proceedings, and couldn’t have known the cogency or otherwise until she saw it, and she has seen it.
HER HONOUR: Except that [the father]’s a man that she has had a very good co-parenting relationship with for years.
[COUNSEL FOR THE MOTHER]: Indeed.
HER HONOUR: Why would she suddenly start believing something that’s completely different to her own experience?
[COUNSEL FOR THE MOTHER]: Because, your Honour, that’s not the case. [The mother] believed [the older child] when he said he was hit by his father. She believed him when he said he was going to commit suicide. So why wouldn’t she believe him when he says he’s locked up in a bathroom?
HER HONOUR: Well, the question is why did she believe all those other things? It says, according to the expert, as much about her relationship with the child. The enmeshed relationship that she ought not be valuing these things in the way she has done and that valuing them the way she has done is what has exacerbated the problem.
[COUNSEL FOR THE MOTHER]: Indeed. And, your Honour, I will come to that in my closing submission, because there’s some things that have been raised in [the expert’s] report which go to that very issue, because one will remember, in [the expert’s] report, when it said it’s stark – difference in observations between the father and the mother, I think, a day apart. But anyway, I will come to that in a minute, ...
(Transcript, 20 December 2017, p 14, line 23 – p 15, line 5)

86. Counsel for the mother did not return to the issue but nonetheless the exchange demonstrates that the matter was clearly in issue and there is no merit in the suggestion that the mother was denied procedural fairness.
87. Similarly, the transcript of the mother’s cross-examination indicates that the issue of the older child’s tendency for exaggeration, the mother’s uncritical acceptance of what he told her and the allegation against of the mother of opportunism, which form the basis of the findings at [103] and [110], was clearly raised:

[COUNSEL FOR THE FATHER]: ... And so if her Honour accepts that my client was not bashing on the door, and if she doesn’t accept your son was distressed or inconsolable, do you accept that your son is capable of making those sorts of things up?
[THE MOTHER]: [The older child] has a over-reactive style of – at the time, we did what we could do by...
HER HONOUR: Sorry. Perhaps you haven’t listened to the actual question?
[THE MOTHER]: Can I have the question again, please?
HER HONOUR: Do you accept that he’s capable of making those sorts of things up?
[THE MOTHER]: No. I don’t accept that.
...

[COUNSEL FOR THE FATHER]: ... Well, the point is you accept then that [the older child] has this false belief about his father being violent to him. Do you accept that? Do you accept that?

[THE MOTHER]: ---No, I don’t.

[COUNSEL FOR THE FATHER]: You don’t accept that [the older child] said that to [the expert]?---

[THE MOTHER]: I accept that he said that to [the expert].

[COUNSEL FOR THE FATHER]: Right?---

[THE MOTHER]: If it’s in her report, yes.

[COUNSEL FOR THE FATHER]: So is it the case you don’t accept that that’s what he believes?

[THE MOTHER]: ---He does believe that – [the older child]. Yes.

[COUNSEL FOR THE FATHER]: Right. And you agree that it’s not true?

[THE MOTHER]: ---I don’t agree that it’s not true. I wasn’t there.

[COUNSEL FOR THE FATHER]: I’m not talking about the conversation. I’m talking about - - -?---

HER HONOUR: The fact that a child can have a memory of action of something that happened to him less than 12 months old?

[THE MOTHER]: ---Yes. I don’t believe that.

[HER HONOUR]: So that’s false?

[THE MOTHER]: ---I don’t believe he has memories from under 12 months old. No. Sorry.

[HER HONOUR]: Right. So if he says that he has a memory, then it must be a false memory?

[THE MOTHER]: ---It’s got to be false. Yes, I understand now.

[HER HONOUR]: Right?

[THE MOTHER]: ---Sorry.

[COUNSEL FOR THE FATHER]: And what I want to suggest is that [the older child] continues to believe that that’s what his father did to him?

[THE MOTHER]: ---Yes.

[COUNSEL FOR THE FATHER]: And that is – despite that – I withdraw that. And you have - - -

HER HONOUR: He continues to believe he has a memory of his father doing that.

[COUNSEL FOR THE FATHER]: That’s right. And you, I want to suggest, have never told him that it’s not true?

HER HONOUR: You’ve never told him that he can’t possibly have a memory of something that occurred - - -?

[THE MOTHER]: ---Yes.

HER HONOUR: - - - when he’s less than 12 months old?

[THE MOTHER]: ---Yes. I have. I have, yes.

[COUNSEL FOR THE FATHER]: And there’s nothing in any of the evidence, I want to suggest, that you’ve ever told him that he’s wrong?

[THE MOTHER]: ---I have, yes. But, no, there’s nothing in the evidence.

[COUNSEL FOR THE FATHER]: Right. And this goes back to the statement that you made in 2015, that you have allowed your son to think he was assaulted by his father when he was little because you want him to think that?

[THE MOTHER]: ---No.

[COUNSEL FOR THE FATHER]: You don’t want him to have a relationship with his father and you want him to think his father is a danger to him?

[THE MOTHER]: ---No.

(Transcript, 22 November 2017, p 183, line 31 to p 184 line 5; p 250, line 16 to p 251, line 21)

88. In respect of [310], the unilateral nature of the mother’s actions in withholding the children, this issue was raised when counsel for the father challenged the mother about her assertion that she had done so on the advice or suggestion of experts (see transcript, 22 November 2017, p 251, lines 32 – 38). The mother maintained that such advice was given, however the primary judge was entitled, as she did, to find otherwise and comment on the unreasonableness of the mother’s actions in withholding the children. As to the finding that the mother had unilaterally made a number of major decisions with respect to the children, this was established at trial and was not in contention in the appeal.
89. There is no merit in Ground 6.
90. As to Ground 10, it is abundantly clear that the matters identified at [104] and [385] concerning the mother’s traumatic life experiences were relevant, as the expert opined, to the importance of her engaging in therapy to help her reduce her anxiety and be able to regulate her distress around the children [270]. The mother did not do this in a meaningful way and her parenting capacity continued to be significantly impaired [377]. These findings were not irrelevant and the primary judge was entitled to give these matters the significance which she did.
91. Turning now to Ground 13, the failure by the primary judge to discuss various admissions made by the father about his behaviour towards the children; in particular using a plastic spoon as a threat (but not to hit), threatening to smack the older child on an occasion in the car and by his manner causing the older child to be fearful. We do not accept that these matters required consideration by the primary judge. This is because the case was overwhelmingly concerned with the mother accepting exaggerated or false accounts of behaviour attributed to the father. The essence of exaggeration is that there is a germ of truth at the heart of what becomes a much larger and fallacious account of events. These admissions went to essentially unremarkable behaviour by the father which may have provided the germ of truth but bore no relationship to the style of allegations and fallacious account of events made against the father.
92. Ground 13 is not made out.

The older child’s vulnerabilities (Ground 7)

93. The gravamen of this ground is that the primary judge erred by making orders changing the older child’s residence in light of his particular vulnerabilities without expert evidence about how he would cope with the change and the consequences of the orders, being:
    • That he would be “deprived” from the continuing care of the mother;
    • That he would be removed from his current school in which he was happy and progressing well;
    • That he would not have the ongoing treatment of his therapist;
    • That he would not see the mother’s partner for six months; and
    • That the time he would spend with the mother would be limited, as prescribed in Orders 5(a) – 8(c).
94. Other than in relation to the child’s continued attendance on his therapist, the orders are substantially similar to those proposed by the ICL in the event that it was determined that the children should live with the father. The mother knew that a change in the children’s residence would result in them moving homes and school and being deprived of her continuing care; there was an issue about whether the older child would continue to see his therapist and that orders were sought in relation to her partner. She had the opportunity to give evidence about the amount of time she would seek with the children but failed to do so. The matter was relisted on 20 December 2017, after all parties had filed their closing submissions and proposed minutes of order, therefore if the mother believed that one or other of these factors had not been explored to her satisfaction it was open to her to apply to recall the expert (a second time). The expert was recalled once and no attempt was made to have her recalled to give evidence, for example on the effect on the children of not seeing the mother’s partner for six months.
95. A judge in the position of the primary judge is not obliged to receive expert evidence on each and every component of the ultimate decision. Her Honour placed considerable weight on the expert evidence, which included the expert’s opinion about “the traumatic impact upon the children and the older child in particular of any change of residence and the practical difficulties associated with a change in their care” [295]. This aspect of the case was well understood by the primary judge however the likely trauma to the children was balanced against the mother’s incapacity to support the children’s relationship with the father, a matter in which she attached significant weight [317].
96. The matter of the older child’s ongoing treatment with his therapist and the injunction against the mother’s partner are also canvassed in separate grounds of appeal and will be considered further below.
97. This ground has not been made out.

The older child’s attendance on his therapist (Ground 8)

98. By this ground the mother contends that the primary judge erred by failing to give any, or adequate, reasons in failing to make orders requiring and facilitating the older child’s attendance on his then therapist. In doing so, it is asserted that the primary judge failed to take into account:
    1. That [the older child’s therapist] had been engaged in substantial ongoing treatment with [the older child].
    2. That [the older child’s therapist]’s ongoing treatment was recommended by [the expert].
    100. That [the older child’s therapist] herself has recommended that she should continue with ongoing therapy with [the older child] irrespective whether [the older child] was residing with [the mother] or [the father].
    4. That the [father] had sought an order (wrongly described as family therapy) that [the older child] continue to attend [the older child’s therapist].
    5. [The older child’s therapist]’s evidence that it had taken a period of 6 months to establish a relationship of trust with [the older child].
    6. [The expert]’s oral evidence that if the children were to live with the father, then [the older child] should continue with [the older child’s therapist] and that it would contrary to [the older child]’s interests to stop that therapy.
    7. That the Independent Children’s Lawyer sought an order that would require [the older child] to continue to see [the older child’s therapist] in the event that the children were to live with [the father].

(Mother’s Further Amended Notice of Appeal, filed 3 May 2018)

99. We accept (as did the primary judge) that the expert recommended that the older child continue to see his therapist [274] and that the above factors accord with the evidence. However, the primary judge was not bound to implement the recommendations of an expert and it can be seen that she was persuaded that the recommendation of the expert that the father, his wife and the children attend a family therapist for twelve months following a change in the children’s primary care should be implemented and reflected in orders but an order for the ongoing attendance on the older child’s therapist should not be made [273], [282], [288], [412] and [415].
100. In respect of the older child attending on his therapist, the primary judge said:
     415. There also appears to be some confusion in relation to the role of the older child’s psychologist,... . [The older child’s therapist] is a psychologist who was engaged to provide therapeutic assistance to the older child. She was not engaged for the purpose of providing the family with family therapy, nor is there evidence that she would be prepared to do so. In any event, [The older child’s therapist]’s offices are located approximately one hour’s drive from the father’s residence and it is not practicable to require the father to continue to travel that distance for the purposes of the child’s ongoing attendance with that psychologist. The orders that I have made will permit the father to source family therapy for himself and the children with a therapist of his choosing. He will also arrange any therapeutic support for the children as he deems appropriate in the exercise of his sole parental authority.
101. The passage quoted above resonates with the expert’s evidence:

[HER HONOUR]: The psychologist practices on the central coast, and the father lives in [Suburb D]. The problem is the supports have been put in place when the children were living in – so I’m not sure about this [therapist]. We’ve got to be realistic and practical?
[THE EXPERT]: ---Yes, I know. That’s true. How long is it away from the father? How long would it take to drive him there? Because, your Honour, just along that line, you can’t suddenly stop a child’s therapy with her therapist; you need to – there needs to be some lead-up time into it where the child and the therapist are able to talk through and prepare for the separation. It shouldn’t just be stopped dead.
(Transcript, 20 November 2017, page 39 lines 28 – 35)

102. The expert continued, however, to give evidence about the importance of the older child’s therapy and there being an orderly termination of the sessions:

HER HONOUR: Okay. Current, fortnightly and an hour away?
[THE EXPERT]: So if it’s ongoing at the moment, it should not stop.
HER HONOUR: Right?
[THE EXPERT]: And an hour’s drive is lengthy, but in this situation I would support it continuing with the parent, the residential parent discussing with [the older child’s therapist] how long this should continue. I mean, that sort of discussion hopefully is already happening with [the older child’s therapist] and [the mother] anyway, [the older child’s therapist] and [the mother]. So should there be an order for the children to live with the father, the father needs to make himself known to [the older child’s therapist], needs to talk about supporting [the older child] through a period and – but with the eventual expectation be that the therapy gets terminated, whether it’s three months’ time, six months’ time, 12 months’ time. I mean, that really is up to how reasonable it is for [the older child] to be driving that period of time. But given [the older child]’s difficulties, if he’s well engaged with [his therapist], I think it would be really important to support him there, but one can’t be unreasonable with, you know, resources in a family; you can only do so much. So - - -
[COUNSEL FOR THE FATHER]: And there’s no – do you see that there’s any need for [the younger child] to be going at this stage?
[THE EXPERT]: ---Well, if she’s not symptomatic, no. If she becomes symptomatic and it’s not manageable by the parent the child is living with, then she should be given her own independent access to help, yes.
[COUNSEL FOR THE FATHER]: The same person, [the older child’s therapist]?
[THE EXPERT]: ---No, you never have children in the same therapist –with the same therapist.
[COUNSEL FOR THE FATHER]: Okay. Thank you?
[THE EXPERT]: I mean, in this case, you perhaps might ask the school counsellor to keep an eye on [the younger child] and just see how she is going and offer her extra support if she needs it or perhaps book in half a dozen, you know, catch ups and how are you going and ..... so that that’s – I mean, don’t forget that these children also have to change their school if they go to live with their father. So in that case, the schools are probably already on the alert, knowing these are children who are going through major life changes, and the school counsellor would be involved.
[COUNSEL FOR THE FATHER]: But for [the older child] that may actually be an advantage; do you agree? In terms of the fact he doesn’t seem very happy. He doesn’t seem to have many friends, does he?
[THE EXPERT]: [The older child] is going to have trouble wherever he is until he changes, until this situation changes and then until he learns the skills to be – to regulate himself and to be socialised so that he is able to make the connections and he isn’t so wounded when something that he is not happy with happens. So there’s no advantage to [the older child] changing schools. He is going – the new school would be the same until he can change.
(Transcript, 20 November 2017, p 40, lines 9 – 47)

103. During cross examination, the father stated that, after hearing the expert’s evidence, he would continue the older child’s appointments with [the older child’s therapist]:

[COUNSEL FOR THE ICL]: And have you discussed with [the father’s wife] how, if these orders are carried through – how the two of you will make sure that at a time when he changes residences, if that is so ordered, how the two of you would manage the mental health conditions of [the older child] in the situation?
[THE FATHER]: ---Yes. We’ve spoken about seeing a counsellor we have in mind, yes.
[COUNSEL FOR THE ICL]: Yes. And that is the fact sheet that’s annexed to your affidavit?
[THE FATHER]: ---Yes.
HER HONOUR: I’m sorry. What was that?
[COUNSEL FOR THE ICL]: And a reference to that psychologist and a fact sheet about that is annexed to your affidavit?
[THE FATHER]: ---Yes.
HER HONOUR: Well, the father said counsellor.
[COUNSEL FOR THE ICL]: Sorry. Have I mischaracterised it, your Honour?
HER HONOUR: I don’t know. He said the word counsellor, that’s all. Maybe it is; I don’t know. It might be a psychologist, but he used the word counsellor just then.
[COUNSEL FOR THE ICL]: So the step – what’s annexed to your affidavit is the inquiry you’ve made; is that right?
[THE FATHER]: ---Yes.
HER HONOUR: Just one moment. Well, she’s a mental health social work and an educator. You heard what [the expert] said about – and Dr or Ms [H] is a clinical psychologist?
[THE FATHER]: ---Yes.
HER HONOUR: Is it not your intention to continue with [the older child’s therapist], if the children come into your care?
[THE FATHER]: ---I believe I would, after hearing [the expert] had to say, yes.
HER HONOUR: Thank you.
(Transcript, 21 November 2017, p 144, line 42 to p 145, lines 1 – 23)

104. No doubt mindful of this evidence the primary judge decided to leave questions of whether and with whom the older child would receive therapy to the father’s judgment. She did so on the basis that continued attendance on the older child’s therapist was not practicable and thus the father could make such arrangements as he thought appropriate. In this regard it was common ground in the appeal that the father, his wife and children had commenced family therapy and the older child had seen a paediatrician in relation to mental health issues and on-going medication. The approach adopted by the primary judge was available and the reasons for approaching this issue in the manner she did are sufficient.
105. There is no merit in this ground.

Order restraining the mother’s partner (Ground 9)

106. The mother contends that the primary judge’s discretion miscarried in restraining the mother’s partner from coming into contact with the children for a period of six months from the date of the orders (Order 17). Ground 9(d) was abandoned and by the remaining sub-grounds it is alleged that the primary judge:
     • Erred in failing to give adequate reasons in making the order;
     • Failed to take into account that there was no evidence that the mother’s partner had directly or indirectly communicated his views to the children about their relationship with the father;
     • Failed to make any findings that the mother’s partner posed an unacceptable risk to the children; and
     • Failed to take into account and consider that the mother’s partner substantially lives with the mother.
107. Before considering this ground, it is important to remember that during the six months in which the injunction was to operate the children would spend limited time with the mother, namely two hours per week supervised for the first six weeks, which would gradually increase over the following 16 weeks until it culminated in time every second weekend. The mother’s partner does not live with her and the impact of the order on the mother (and indeed the children) could not be said to be as significant as perhaps might be first thought.
108. It was the father’s case, as part of his submission that the children were at risk of emotional harm in the mother’s care, that “[t]he children spend substantial time in the presence of the mother’s partner who has a negative attitude towards the father and is influencing the children to share his view” [324].
109. The mother’s partner was interviewed by the expert and cross-examined by counsel for the father at the ICL. Both the ICL and father sought orders restraining the mother’s partner from spending time with the children; the ICL absolutely, regardless of whether the children lived with the mother or the father, and the father for a period of six months.
110. The trial reasons establish that the primary judge carefully considered the evidence of the expert and the mother’s partner, including the expert’s views that a likely contributing factor to the older child’s mental health difficulties was the mother’s partner’s support of the notion that the child was not safe with “his allegedly uninterested, abusive father” [266] and the mother’s reliance on her partner in dealing with the father, which her Honour found concerning [333]. More telling is the expert’s unchallenged opinion of the mother’s partner’s “support of the notion that the children are not safe with the father and the negative influence of him... upon the children” [326]. Further, the primary judge considered the importance of the mother’s relationship with her partner, including that he spends up to ten nights per fortnight in her home [329].
111. It is not disputed that the mother’s partner told the expert that the father’s methods of parenting were “degrading and of concentration camp style” which has “scarred these children” [327] and that he hoped that the children would have “no access from the father by phone, TXT, email or person” [328]. However, at trial he said his attitude about the father had altered. In relation to this the primary judge found as follows:
     331. In my view the mother’s partner’s evidence concerning his views about the father’s attributes as a parent was confusing and at times contradictory. I formed the impression that although he was attempting to convey that he had changed his negative view of the father, when cross-examined closely it was revealed that his views had not changed. He said for example that his concerns about the risk of physical harm posed by the father to the older child had reduced until the incident in October 2017 when the older child had sent text messages from the bathroom of the father’s home to the mother and he had called police. He said as a result of that incident those concerns had “partially” returned. He said that on that evening he genuinely believed that the father may have physically harmed the child. He did not think even in hindsight that contacting the father would have been preferable to ringing police on that occasion.
     332. The mother’s partner also agreed that the mother had relied on him a lot in dealing with her issues with the father, and had sought his assistance in making decisions about contact [with the father] and what to do when the older child had an “outburst”. He agreed that his advice holds a degree of significance and influence over the mother.
     333. I am concerned that the mother still relies upon her partner in relation to dealing with matters concerning the father and the children. For example, when the older child sent a series of text messages to her on 22 September 2017 requesting that she collect him from school and indicating that he did not want to go with his father the mother said that she phoned her partner “to ask what should I do”. On the evening when the older child sent text messages from the bathroom of the father’s home, the mother panicked when she received the messages and asked her partner what she should do. It was the mother’s partner who then telephoned the older child and attempted to calm him down and decided to deal with the situation by contacting police and the mother felt it appropriate for her partner to intervene in this way.
     334. Although the mother’s partner said that he had taken the view in the last 12 months that it is the best outcome for the children to have both parents involved in their lives, it is of concern that as recently as September 2017 the older child continued to express extremely negative views of his father as indicated in the text messages sent on 22 September 2017. If the mother’s partner has in fact changed his opinion, he does not appear to be able to exert any positive influence over the older child as it appears he did when he had negative views of the father. An alternate inference which I draw in these circumstances is that despite his evidence to the court, the mother’s partner has not changed his negative view of the father and given his involvement in the family dynamics in the maternal household, he continues to exert significant influence over the children, informing their views about their father.
112. The above findings have not been challenged on appeal, and there can be no success in the suggestion that the primary judge failed to comprehend and evaluate the evidence or gave insufficient reasons for her conclusion that “[t]he adverse influence of the mother’s partner will in my view be mitigated by an order that he not be brought into contact with the children for a period of six months” [412].
113. Further, it was not necessary that the primary judge make an unacceptable risk of harm finding against the mother’s partner before making the injunction; the only requirement being that she consider that the order is in the best interests of the children (s 64B(2)(h)). Her Honour clearly did so:
     411. In coming to the view that this arrangement is in the best interests of the children I attach particular weight to the risks to the children having a meaningful relationship with their father if they remain living with the mother in light of my findings about the family dynamics in the mother’s household.

The reference to the mother’s household clearly includes the mother’s partner.

114. There is no merit in this ground.

Errors of fact (Ground 11)

115. The mother contends that the primary judge made a number of errors of fact which led to her Honour’s discretion miscarrying. The alleged errors are as follows:
     1. [the mother] conceded that she had no concerns about the paternal grandfather;
     2. it is was conceded on [the mother]’s behalf that she no longer had any concerns about the paternal grandfather; and
     100. [the mother] had “permitted’ the children to be told falsely that they had not been invited to [the father]’s wedding.

(Father’s Further Amended Notice of Appeal, filed 3 May 2018)

116. As to (a) and (b), the primary judge made the following comments about the mother’s historic concerns about the paternal grandfather:
     148. ... [T]he mother did not seek any orders with respect to the paternal grandfather at the final hearing and any concerns about his conduct did not feature in her case. It was conceded on her behalf at the final hearing that she no longer had any concerns about him.
     149. For the foregoing reasons I am of the view that the mother raised concerns about the paternal grandfather as a pretext for not making the children available to the father as he had raised for the first time the proposal that the children live with him. She then made an application for interim orders that she have sole parental responsibility and that the children have no contact with their father.
     150. The mother later conceded that she had breached the orders and now concedes that she has no concerns about the paternal grandfather. She has not clearly articulated what her concerns were in the past. In these circumstances I am of the view that the mother made a calculated attempt to undermine the children’s relationship with their paternal family and that her actions were not reasonable, appropriate or in any way necessary to protect the children from harm.
117. The concessions would seem to be reference to the following exchange:

[COUNSEL FOR THE MOTHER]: ... I think that was the circumstance where there was a difficulty with [the younger child] spending time with the paternal grandfather, and my client’s objection to that, but that got itself sorted out.

HER HONOUR: Now, I want to come to that, because everybody sort of mentions it in passing, and it has got itself sorted out. In fact, I think you even used the expression in your submission – or maybe it was the ICL. There’s a reference to it being resolved or – in the earlier proceedings, or – what – what is the position with paternal - - -

[COUNSEL FOR THE MOTHER]: My recollection - - -

HER HONOUR: You’re not – no one is seeking an order in - - -

[COUNSEL FOR THE MOTHER]: No.

HER HONOUR: No. So - - -

[COUNSEL FOR THE MOTHER]: My recollection was this: the mother alleged that the paternal grandfather had said something about her physique some time ago, after she had given birth to a child, and she found it to be – rightly or wrongly – a comment that she found inappropriate at the time. And she was concerned about that behaviour, and particularly the child – being [the younger child] – being exposed to it. I think that’s the whole thing in a nutshell.

HER HONOUR: Right.

...

HER HONOUR: Does the – does the mother still contend that there is some risk of harm posed by the paternal grandfather?

[COUNSEL FOR THE MOTHER]: Not to the extent that she would require an order.

HER HONOUR: Right. So it’s a nonissue.

[COUNSEL FOR THE MOTHER]: Yes.

(Transcript, 20 December 2017, p 7, line 38 – p 8, line 16, and p 8, lines 43 to p 9, line 3)

118. To the extent that the primary judge characterised the mother’s position as her having no concerns about the paternal grandfather, as opposed to not having concerns which justified an order, we agree that this is an error of fact, notwithstanding that counsel for the mother agreed that it was a “nonissue”. However, the essential point of the primary judge’s criticism remains valid. Namely, that the mother had earlier sought orders and denied the children contact with their father because of the unacceptable risk posed by his father. The primary judge was quite right that the two positions were contradictory and the conclusion reached about the cessation of time was available. It follows that these slight errors of fact are immaterial and do not vitiate the primary judge’s discretion. (De Winter and De Winter (1979) 23 ALR 211) (“De Winter”).
119. The challenge raised by (c), that the primary judge made an error of fact in finding that the mother “permitted” another person (the maternal grandmother) to falsely inform the children that they had not been invited to the father’s wedding, is based upon [203] of the trial reasons as follows:

I also find that the mother not only made a conscious decision to withhold the children from the father’s wedding, she permitted another person to falsely inform the children that they had not been invited. The mother agreed under cross-examination that she had discussed with her mother, (“the maternal grandmother”), that the children were supposed to be going to the wedding. The father’s wife was not challenged on her evidence that the children reported to her that the maternal grandmother told them the night before the wedding that they had not been invited. Although the mother said she did not accept that her mother must have lied to the children there was no affidavit filed by the maternal grandmother in the proceedings in relation to this issue.

120. It is accepted that in pre-trial preparation the primary judge indicated that she would not be assisted by evidence from the maternal grandmother and the comment made in the final sentence is unfair. It follows that in the face of the mother’s denial that she had permitted her mother to falsely inform the children that they were not invited to their father’s wedding, the finding she had done so was not available. However, the findings of real significance in this passage are that the mother decided to deny the children the opportunity to participate in this important occasion and that rightly or wrongly the children believed that their maternal grandmother had informed them that they were not invited. The “permitted” finding is erroneous but of such little significance it does not amount to appellable error (De Winter). Based on the evidence before her, the critical findings above were available. Otherwise it is noted that the mother provided no further submissions in support of this challenge.
121. Ground 11 has not been made out.

The maternal grandmother did not give evidence (Ground 12)

122. The essence of Ground 12 is that the primary judge erred in failing to take into account that the reason the mother did not call her mother to give evidence (in relation to concerns as to the paternal grandfather) was because the primary judge herself had directed that such evidence could not be relied on.
123. It is uncontroversial that the mother withheld the children from the father from 11 December 2015 until 17 February 2016. Her Honour summarised the mother’s evidence on the topic as follows:
     135. According to the mother’s affidavit she did “stop [the father]’s time with the children” in December 2015. The mother deposes that she did so as she had been informed that the father had left the daughter alone in the care of the paternal grandfather which the mother says she “assessed as placing [the daughter] at risk”. According to the mother’s affidavit her mother and another person previously filed affidavits in the proceedings “outlining [the paternal grandfather]’s history of inappropriate sexual advances and innuendo whilst in their presence”. Although the mother did not rely on those affidavits in these proceedings she maintains that she has “concerns about [the paternal grandfather] being left alone with the children”. In her trial affidavit the mother also deposes in this context that in about March 2006 at a family gathering the paternal grandfather “suggested that he had sex with [her] that morning”.
     136. The mother did not contend at the final hearing that the paternal grandfather posed any risk to the children and does not propose orders in any way restricting his contact with them. The paternal grandparents did not feature at all in the final hearing and any alleged concerns held by the mother in about December 2015 were not set out in her affidavit.
     137. The mother did not provide any other explanation in her evidence for her decision to cease the children’s time with their father from December 2015.
124. It is submitted that the statement in the penultimate sentence of [135], the essence of which is repeated at [146], is unfair because, as the primary judge explained at page 335 of the trial transcript, when making trial directions, the judge said she “did not want to hear from that person and it wouldn’t assist me”. Counsel for the ICL did not make submissions in the appeal on this point and those made on behalf of the father do not cavil with the assertion that the mother thus had a good reason for not relying on her mother’s earlier affidavit.
125. However, the question which must be considered is whether this oversight by the primary judge was relevant. In our view it was not. The primary judge was essentially concerned to understand the significance of the mother’s failure to make the children available to spend time with the father, including contrary to orders, and what appeared to be a pattern of making allegations that the children would be at risk of harm in the care of the father, but yet at the commencement of the trial when those allegations could be tested, they were withdrawn. Indeed, the mother’s case opened on the basis that one of the issues for determination was “whether the paternal grandfather poses and [sic] unacceptable risk for the children” yet, as the primary judge correctly recorded at [148]:

Significantly, the mother did not seek any orders with respect to the paternal grandfather at the final hearing and any concerns about his conduct did not feature in her case. It was conceded on her behalf at the final hearing that she no longer had any concerns about him.

126. We have already acknowledged that the final sentence in the above paragraph is wrong. However, with or without the maternal grandmother’s affidavit, there can be no doubt that the mother’s stance in relation to the paternal grandfather was confusing and the mother’s contention “that she once again behaved reasonably” [142] in terminating time was not reconciled with her position at trial not to pursue her claim that in effect he presented an unacceptable risk to the children from which the father could not be trusted to protect them. There is no merit in this ground.

The older child’s views (Ground 14)

127. The challenge mounted by this ground is that the primary judge erred by “reaching the conclusions that she should not give weight to views expressed by [the older child], she failed to take into account evidence of [the older child’s therapist] that supported a contrary conclusion or give reasons to explain her reaching conclusions contrary to that evidence”.
128. It was common ground that the children wanted to live with the mother and that the strength of their views meant, as the father said to the expert, it would be “really tough” for them to move to him. The opinion of the expert that “it would be very distressing for [the children] to move to live with him” was unchallenged and accepted [271], [370]. Because removing the children from the mother’s primary care would be so “tough” for them, the primary judge was satisfied that consequences of any such change was one of the “most important matters in this parenting dispute” [368], so much so that the primary judge explained that she “would need to be satisfied that the mother’s parenting capacity is significantly impaired to justify such a change in their circumstances. I would also need to be satisfied that there are no significant concerns about the father’s capacity to provide for the children’s needs” [377].
129. It is against this background that the primary judge considered the evidence as to the children’s views and the weight that should be afforded to them. As the trial reasons correctly record, each of the parties gave evidence about statements by the children which they intended to be treated as “evidence of the children’s views”. Somewhat curiously, the primary judge said this was not “evidence as such” and determined that she would “only consider the views of the children as expressed in the course of their assessment by the expert” [341]. There can be no doubt that the parties’ evidence about what the children said was evidence (s 69ZT of the Act) and was admitted without objection. The qualifying words “as such” seem to be intended to signify that the children’s statements to their parents about what they wanted would be given virtually no weight and that it was their statements made to the expert which required consideration.
130. In the passages that follow the primary judge discussed what the children said to the expert about the father in the presence of the mother and when seen on their own, compared with the manner in which they related to the father and the father’s wife the following day. Both children described the mother and other members of the maternal household “in entirely positive terms” [342], [345]. When interviewed alone, the older child was almost entirely negative about the father [345] whereas the younger child made statements that were both positive and negative about the father [344]. In relation to the children’s subsequent interaction with the father, her Honour found, uncontroversially, as follows:
     343. When interviewed the following day in the presence of the father and his wife the older child was comfortable in his father’s presence and smiled as the father spoke of current positive experiences together. The child was observed by the expert to be more “outgoing, chatty and with a positive affect” when seen with the father and stepmother.

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346. The expert also noted a marked difference in the younger child’s presentation when observed with her father and his wife. The child sat in her father’s lap throughout the assessment and was described as having obvious affection for him.
131. In relation to the older child, the primary judge determined that she would not attach “any weight to the views expressed by the children to the expert” [347]. This was because, in regards to the older child in which this ground specifically relates:
     • The older child had an anxious, enmeshed relationship with his mother who appeared to join him in his distress rather than contain him [347];
     • The older child’s views had been influenced in the maternal household by his older half-brother and the mother’s partner, both of whom presented with a very negative opinion of the father [349]; and
     • The opinion of the expert that the older child’s marked negativity about his father was not matched by his positive engagement with him [349].
132. Notwithstanding these findings, the primary judge accepted that the children would be traumatised if they were removed from the mother’s primary care and placed with the father. The primary judge said:
     375. It is not in contention that both children will experience trauma if their primary residence were to be changed. The oldest child has demonstrated his alignment with the mother and the youngest child has experienced separation anxiety from her mother in the past. As has been discussed earlier in these Reasons, the older child, now aged 11, presents with a number of vulnerabilities including ADHD, anxiety and depression. Other stresses for the children include that the older child has expressed a marked reluctance to spend time with his father.

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412. The most significant factor in favour of the children remaining in the primary care of their mother is that it is likely that the children will experience a change in their living arrangements as traumatic.
133. The use of the word “trauma” is revealing and demonstrates that the primary judge was satisfied that the children genuinely held extremely strong views that they wished to live with the mother and would be greatly distressed if a contrary decision was made.
134. It is accepted that her Honour did not discuss the unchallenged evidence of the older child’s therapist to the effect that he feels happy with the mother, trusts her and can talk about matters with her. However, those aspects of the older child’s relationship with the mother were understood and are reflected in the evidence of the expert which was accepted. It follows that in relation to the “evidence as such” given by the parties and the older child’s therapist as to the older child’s views, this accords with that given by the expert. Provided the primary judge was satisfied that the children genuinely and strongly wished to continue to live with their mother, which on a fair reading of the trial reasons is made plain, the failure to discuss this aspect of the older child’s therapist’s evidence and to have regard to the statements the parents attributed to the children is of no consequence.
135. Otherwise for this challenge to have been made good it was necessary to establish that the decision of the primary judge to accept the evidence of the expert about the enmeshed nature of the older child’s relationship with the mother was unsustainable and that the other factors upon which the primary judge relied to determine that the older child’s views should not be afforded weight, were not available. Given that the older child’s therapist, did not investigate the nature of the older child’s relationship with the mother, and did not challenge the expert’s opinion that their relationship was enmeshed, it is easily understood why this did not happen and why there is no challenge to the finding of enmeshment.
136. In Bondelmonte & Bondelmonte [2016] FamCAFC 48; (2016) FLC 93-698 Ryan and Aldridge JJ said at 81,169:

It is important to record at the outset that it is not, and never has been, the case that a judge in his Honour’s position is obliged to make orders consistent with a child’s stated views (H v W (1995) FLC 92-598; Maldera & Orbel (2014) FLC 93-602). Rather, a primary judge is obliged to consider the weight which should be given to any stated views. Of course, a range of factors may affect the weight given beyond simply the age and level of maturity of the child. In other words, context is critical and it is a matter for the judge to determine how giving effect to a child’s stated view accords with the child’s best interests (R v R (Children’s Wishes) [2002] FamCA 383; (2002) FLC 93-108; Gillard & Gillard [2015] FamCAFC 169 at [81]).

137. This is precisely what her Honour did. This ground has not been established.

Conclusion and Costs

138. The mother has failed to establish error and the appeal will be dismissed.
139. As is customary, following the hearing we sought submissions from the parties in relation to costs in the appeal. In the event that the appeal was unsuccessful the respondent sought an order for costs against the mother calculated on a party-party basis.
140. For his part, the ICL seeks an order for costs against the mother and the father, in equal shares in the amount of $4,356 ($2,178 each).
141. The issue of costs of an appeal is governed by s 117(1) of the Act which provides that each party to a proceeding under the Act bear his or her own costs, unless the court is of the opinion that the circumstances justify the making of a costs order (s 117(2)). In determining what order (if any) should be made under s 117(2), the court must have regard to the relevant factors in s 117(2A).
142. In regards to a costs application by an ICL, s 117(4)(b) must also be considered. By that provision the court must not make an order in favour of an ICL if the court considers that making such an order would result in financial hardship to the affected party.
143. The mother resists the application for costs. Counsel for the father was not able to quantify the amount sought. We are satisfied that the mother’s lack of success justifies an order in favour of the father. However, it will be apparent that we have made little reference to the arguments advanced by the father in the appeal. This is because both the written summary of argument and oral addresses barely came to grips with the matters raised in the appeal. For example, no attempt was made to provide us with references to the trial transcript and where the evidence could be found to support the findings under challenge. We could continue but it is sufficient to say that an order in favour of the father in the amount of $5,000 is warranted.
144. No submissions were made that the order for costs as sought by the ICL would result in financial hardship on the part of the mother. In this respect we understand she has full-time paid employment and was able to arrange her financial affairs to meet the cost of senior counsel. An order for the ICL’s costs as sought against the mother will be made, in the amount of $2,178. We do not accept that an order should be made against the father.

I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Austin JJ) delivered on 11 July 2018.

Associate:

Date: 11 July 2018