Oram & Lambert and Ors [2019] FamCAFC 4 (24 January 2019)

Last Updated: 31 January 2019

FAMILY COURT OF AUSTRALIA

ORAM & LAMBERT AND ORS

[2019] FamCAFC 4

FAMILY LAW – APPEAL – PARENTING – Procedural fairness – Interventions by the primary judge – Bias and prejudgment – Challenges to findings of fact – Whether the primary judge erred in her assessment of the risk posed to the children by the parties – Whether the primary judge ignored evidence of family violence – Adequacy of reasons – Whether the primary judge erred by treating the first respondent, who is not the biological father of one of the children, as a “parent” for the purposes of s 60CC of the Family Law Act 1975 (Cth) – Views of the children – Whether the primary judge erred in imposing an order for indefinite supervised time – No appealable error demonstrated – Appeal dismissed – No order as to costs. FAMILY LAW – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – Where the appellant seeks to adduce a number of documents which were available at the time of the hearing before the primary judge – Where the appellant seeks to adduce a character reference and documents relating to her health and education – Where the documents are inadmissible, irrelevant or seek to demonstrate changed circumstances – Application dismissed.

Family Law Act 1975 (Cth) ss 60CC, 93A(2)

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30 Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Burton & Churchin [2013] FamCAFC 180 Carpenter & Lunn (2008) FLC 93-377; [2008] FamCAFC 128 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96 De Winter and De Winter (1979) FLC 90-605 Donnell & Dovey (2010) FLC 93-428; [2010] FamCAFC 15 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 Huda & Huda and Laham (2018) FLC 93-837; [2018] FamCAFC 85 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76 Parsons & Masson (2018) FLC 93-846; [2018] FamCAFC 115 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Ralton & Ralton [2017] FamCAFC 182 Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84 Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

APPELLANT:

Ms Oram

FIRST RESPONDENT:

Mr Lambert

SECOND RESPONDENT:

Ms McCreadie

INDEPENDENT CHILDREN’S LAWYER:

Emalene Gemmell Solicitor

FILE NUMBER:

NCC

2354

of

2016

APPEAL NUMBER:

EA

67

of

2018

DATE DELIVERED:

24 January 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Aldridge & Watts JJ

HEARING DATE:

1 November 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

18 April 2018

LOWER COURT MNC:

[2018] FCCA 1214

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE FIRST RESPONDENT:

Ms Flintoff

SOLICITOR FOR THE FIRST RESPONDENT:

Moin Morris Schaefer

THE SECOND RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Bateman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Emalene Gemmell Solicitor

ORDERS

(1) The appellant have leave to file in court an Application in an Appeal to adduce further evidence.
(2) The application to adduce further evidence is dismissed.
(3) The appeal is dismissed.
(4) The applications of the respondent and the Independent Children’s Lawyer for costs are dismissed.

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 Oram & Lambert and Ors 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 67 of 2018
File Number: NCC 2354 of 2016

Ms Oram

Appellant

And

Mr Lambert

First Respondent

And

Ms McCreadie

Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

1. Ms Oram (“the mother”) appeals against parenting orders made in the Federal Circuit Court of Australia on 18 April 2018. The proceedings concerned Y who was born in 2011 and X, born in 2012. The other parties were Mr Lambert (“the respondent”) and the children’s maternal grandmother, Ms McCreadie (“the maternal grandmother”). An Independent Children’s Lawyer (“ICL”) represented the children’s interests in the proceedings before the primary judge and on the appeal.
2. Contrary to the case put by the mother and the maternal grandmother, the primary judge found that the respondent was the father of X. It was common ground that he was not the biological father of Y. Her Honour described him pithily and aptly, as we shall shortly explain, as her “psychological father”.
3. The orders of the primary judge provided for the children to live with the respondent who was to have sole parental responsibility for them. The children were to spend time with the mother, and the maternal grandmother if she so wished, for two hours each month supervised by a contact centre. The respondent, if he chose, could agree to further time and to determine whether that further time should be supervised or not. A further order provided for one hour of telephone time between the mother and the children once a fortnight.
4. In short, the basis for the orders was that the primary judge considered the mother posed a risk of harm to the children by exposing them to drug use, drug users and to a person who has been charged with child sex offences. The mother’s contention that she had turned her life around and that these events were in the past was not accepted.
5. In the event the appeal was successful, the mother sought to have all the orders set aside and that the children be returned to her care or that a new trial be ordered. She was strongly supported by the maternal grandmother who made extensive written and oral submissions to the same effect.
6. The appeal was opposed by the respondent and the ICL.

BACKGROUND

7. In order to understand the mother’s Application in an Appeal to adduce further evidence and to give context to the grounds of appeal, it is necessary to set out the history of the matter in some detail. This is largely taken from the reasons of the primary judge and, subject to the caveat that the mother asserts that the primary judge was biased against her, most of the history is not the subject of the appeal.
8. Y was born in early 2011 when the mother was 16. Y’s biological father has never had any relationship with her.
9. The mother and the respondent met later that year and commenced a relationship. X was born in late 2012. They separated at some time in 2013 or possibly 2014 (the evidence did not permit a more precise finding). At some stage, the mother obtained an Apprehended Domestic Violence Order against the respondent who had punched in a door at the mother’s house.
10. After separation, the children lived with the mother and spent time with the respondent by agreement. The evidence again did not permit a finding as to the extent of that time.
11. In mid 2015, the police searched the mother’s home where they found cannabis in zip lock bags, cannabis leaf, digital scales and a mobile phone. A search of the phone revealed that the mother had supplied cannabis and MDMA on over 150 occasions.
12. The police also found a handbag which contained an ice pipe, scales and two sachets of ice in the mother’s bedroom. The primary judge did not accept the mother’s denials that these items were hers and proceeded to find that they were in fact the mother’s (at [48]). That finding is not the subject of any ground of appeal.
13. In late 2015, the police again searched the mother’s house and found cannabis. No charges were laid, as it was not clear whether it belonged to the mother or other people living in the house.
14. The mother was charged with driving under the influence of methamphetamine after being stopped by police twice in 2016. She was later convicted on two offences of drug driving.
15. The mother pleaded guilty to the charges for possession and supply. She failed to attend the interviews for a pre-sentence report.
16. The mother was sentenced in mid 2016. Confident that she would be released, she left the children with the respondent. Instead, she was sentenced to 12 months imprisonment, with a minimum of six months to serve.
17. The children continued to live with the respondent. In September 2016, the maternal grandmother commenced proceedings seeking orders that the children live with her. It eventually became common ground that the children would live with the respondent until the mother was released, when the children would return to her primary care. Interim orders were made to that effect.
18. The mother was released in early 2017 and lived with the maternal grandmother for a few months. The children resumed living with the mother. The respondent moved to a town some distance away and saw the children less frequently.
19. The mother and the children then moved to a house to live with a man the primary judge described at [121] as “a known methamphetamine user who has serious mental health issues”.
20. In May 2017, the mother was charged for a third time with driving under the influence of methamphetamine. She was subsequently convicted of that offence.
21. Throughout this period, the parenting proceedings continued. In June or July 2017, the mother was ordered to undergo hair follicle testing for drugs. She did not do so, asserting that she could not afford it.
22. Interviews for the preparation of a family report were conducted in November 2017. By this time, the respondent had decided to seek orders that the children live with him, his new partner and their young child.
23. The report was released on 4 December 2017. On 19 December 2017, relying upon concerns raised by the family consultant, orders were made for the children to live with the respondent and to spend time with the mother on alternate weekends and during holidays.
24. The mother then moved out of the house she was sharing with the man referred to above at [19].
25. In January 2018 there was a difference of opinion about which school the children should attend. The mother wished them to continue at the private school they were attending whereas the respondent favoured a public school. They had exchanged firm emails setting out their respective positions.
26. Whilst the children were spending time with the mother, she said she received a Facebook message and email from the respondent in which he said that he had changed his mind and that the children could henceforth live with the mother and attend the school of her choice. As a result, the mother retained the children and did not return them to the respondent as required under the orders then in force.
27. The respondent denied that he had sent the email or posted the Facebook message.
28. On 31 January 2018, a recovery order was made and the children were returned to the care of the respondent. The time they were to spend with the mother was reduced to supervised time.
29. The primary judge subsequently accepted the respondent’s contention that he had not sent the email or Facebook message and found that the mother had either manufactured them or was knowingly concerned in their manufacture (at [67]). The mother was critical of that finding but it is not one of the subjects of this appeal.

APPLICATION TO ADDUCE FURTHER EVIDENCE

30. At the hearing of the appeal, the mother sought leave to file an application seeking to adduce further evidence. As it was not opposed, that leave was granted. Not all the documents proposed to be tendered were then available but most have subsequently been provided. These documents were accompanied by further written submissions. As the parties were advised at the time, we do not propose to have regard to them, as no leave for the making of further submissions was sought or granted.
31. The mother also served a Notice to Produce upon the respondent. Ultimately, the respondent willingly provided the requested documents to the mother and she seeks also to rely on them.
32. The discretion to receive further evidence under s 93A(2) of the Family Law Act 1975 (Cth) (“the Act”) is not at large. The exercise of that discretion is guided by a number of considerations. The following matters, which are taken from the judgment of McHugh, Gummow and Callinan JJ in CDJ v VAJ (1998) 197 CLR 172 (“CDJ”), are relevant to the present application:
    • Evidence may be adduced to show that the decision under appeal is erroneous or to buttress the findings already made (at [109]);
    • Ordinarily justice will not be served by the admission of new evidence unless the Full Court is satisfied that the further evidence would have produced a different result, had it been available at the hearing (at [111]);
    • The evidence must be admissible according to ordinary principles and there should be no reason to believe the evidence is not credible (at [115]);
    • The discretion needs to be exercised with caution in parenting cases, especially where an order has been made for a change of with whom the children are to live and the appellant “seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare” (at [118]). The interests of the children are unlikely to be served by prolonged and repetitive proceedings (at [117] and [118]).
33. With these considerations in mind, we now turn to the proposed further evidence. It is convenient to deal with it in groups.

Evidence that was available at the hearing

34. This group consists of a number of documents, all of which existed at the time of the hearing.

Reasons of the primary judge of 19 December 2017 and 31 January 2018

35. The mother asserts that the reasons in these interim decisions show that the primary judge was biased against her. Certainly, the decisions were adverse to the mother but it has not been explained why they demonstrate bias.
36. Importantly, the mother was represented by a solicitor and barrister at the hearing the subject of the appeal.
37. No application was made for disqualification let alone one based on the earlier decisions, although the reasons were available to the mother and her legal representatives. It is now too late to take the point. As Brennan, Deane and Gaudron JJ said in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 (“Vakauta”) at 572, “[b]y standing by, such a party has waived the right subsequently to object” (see also Dawson J at 579 and Toohey J at 587).
38. The relevance of the earlier decisions is not evident and we will not have regard to them.

National Personal Insolvency Search

39. This search shows that the respondent was bankrupt from July 2012 to July 2015. The apparent purpose of this document is to show that the respondent’s evidence that he became bankrupt before his relationship with the mother was wrong.
40. Even if this is so, such a trivial point would have no possible effect on the outcome of the trial.
41. In any event, the search could have been obtained during the hearing and was available to be used then if it was considered to be of any assistance to the mother’s case.

Screenshot of the respondent’s Facebook page

42. This was available to be used at the hearing and will not be received.

Draft Consent Orders of 15 December 2017; Consent Orders of 27 September 2016, 27 November 2016 and 16 March 2017; Orders of 21 June 2017, 19 December 2017 and Draft Orders of 19 December 2017

43. We do not understand the relevance of the draft orders which were, in any event, available to be relied upon at the hearing. We will not receive the other orders. To the extent they become relevant, regard may be had to them as part of the court record.

Letter from Dr T and National Dental Care, both tendered at the 19 December 2017 hearing; screenshot of the mother’s business’s Facebook page; list of child support payments to 12 July 2016; Apprehended Violence Order between the respondent and the mother’s brother; photographs of the mother showing injuries, earlier affidavits not relied upon

44. Each of these documents existed at the time of the hearing. No evidence has been given as to whether or not they were available to be used. There is no apparent reason why they were not relied upon. They should not now be able to be tendered.
45. Further, we are not satisfied that they would have made any difference to the outcome of the hearing as they do not deal with the central issue, which was the nature and extent of the risk to the children posed by the mother.

Documents coming into existence after the hearing

A reference from Ms G

46. This is an undated reference which purports to give evidence. It is not admissible.

Documents referring to the mother’s health and education since trial

47. The mother seeks to rely on a Letter of Support from a drug and alcohol rehabilitation centre (which is assisting the mother with drug rehabilitation) dated 17 October 2018, a set of regular drug tests conducted this year, information as to the prescription of dexamphetamine and the transcripts from her partially completed degree and the My Health records of her and the children.
48. An earlier and shorter version of the letter from the drug and alcohol rehabilitation centre was before the primary judge (as an annexure to the mother’s affidavit filed 2 March 2018). It referred to the mother commencing weekly urinalysis.
49. Also before her Honour was a letter from Dr H, a psychiatrist, which simply stated:

I am [the mother]’s treating psychiatrist. I have diagnosed [the mother] with Attention Deficit Hyperactivity Order and have prescribed Dexamphetamine in accordance with Health NSW guidelines. [The mother]’s current dose is 5mg twice daily.

(As per the original)

50. The primary judge considered this and said:
    123. The mother did a hair follicle test after an interim order was made removing the children from her care in December 2017 but it was positive for amphetamines.
    124. The mother explained this away on the basis that providentially in January 2018 she had been to see a doctor and obtained a prescription for dexamphetamines because she allegedly had ADHD.
    125. The evidence attached to the mother’s affidavit about why the doctor prescribed dexamphetamines is very brief. The letter from the doctor consists of three lines and there is no explanation for why he prescribed the drug. There is nothing to suggest that the doctor made an independent diagnosis of the mother. The evidence in the mother’s affidavit about her ADHD was that she was diagnosed with it when she was in Year 1 or 3 at school and was prescribed Ritalin but there is no mention of her taking it after that time.
    126. The fact that the mother has obtained a prescription for dexamphetamine does not remove a concern from my mind about whether the mother is using illicit drugs or about whether that prescription explains why the mother is testing positive for amphetamines in the drug tests she has done since January 2018.
51. The documents now sought to be relied upon seek to address the concern raised by the primary judge as to the mother’s drug use and possible rehabilitation.
52. The weekly drug tests indicate that on each occasion the mother has tested positive for amphetamine. Presumably the evidence of Dr H is intended to explain the positive tests, yet the paucity of his evidence remains. It remains the position that there is no expert evidence to the effect that the positive tests for amphetamine are fully explained by the prescription of dexamphetamine.
53. The question of whether or not this further evidence demonstrates that the mother has turned her life around to a sufficient degree so as to constitute changed circumstances that would warrant reconsideration of the parenting orders is something that we consider is best left to an application for variation of the orders (CDJ at [119]). The interests of justice dictate that any such reconsideration should encompass all of the circumstances that exist at that time.
54. We shall not receive the s 60I Certificate dated 5 October 2018 because we do not consider it to be relevant to any issue.
55. The mother wishes to rely on a letter from the barrister who appeared for the maternal grandmother on 19 December 2017. The letter, oddly written on 30 October 2018 and not earlier, expresses some views about the conduct of the primary judge. It is not admissible.
56. The bus timetables that show the time the children now take to travel to school constitute changed circumstances as described before and will not be received.
57. Finally, the mother wishes to rely upon property leases entered into by the respondent as well as his Centrelink records and those of his partner, apparently to demonstrate that the evidence they gave at the hearing that they were living together was false. If these documents were admitted, an opportunity would need to be provided to the respondent and his partner to give evidence on the issue which would, most likely, be subject to cross-examination. That is not an apt course for an appeal. No explanation is given as to why the documents were not obtained and used at the hearing.
58. The application to adduce further evidence will be dismissed.

THE GROUNDS OF APPEAL

Did the primary judge intervene excessively in the proceedings and did those interventions, together with the reasons for judgment, indicate that her Honour was biased or had prejudged the case? (Grounds 1.1, 1.2 and 1.3)

59. It is clear that excessive interventions in the proceedings by a judge may result in a lack of procedural fairness (see the authorities collected in Huda & Huda and Laham [2018] FamCAFC 85; (2018) FLC 93-837 at [24]–[28]).
60. Such interventions, when coupled with other conduct, may also lead to the conclusion that an impartial observer might reasonably conclude that the trial judge had not brought an impartial mind to the process (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6]; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 492). In such a case, the judge ought to recuse him or herself.
61. The immediate difficulty for the mother is that she was represented by counsel throughout the hearing. At no time did counsel complain about the conduct of the proceedings or of the primary judge. No application for disqualification was made. As we have already observed, a party cannot stand by and then complain about a lack of fairness only after judgment has been given (Vakauta).
62. Further, we have read the transcript relied upon by the mother. We do not accept that the statements made and questions asked by her Honour during the hearing were in any way excessive or unfair.
63. It was submitted that the primary judge improperly allowed, or even required, the family consultant to act as an expert in drug use.
64. As to the first, no objection was taken by counsel for the mother to any questions about the mother’s drug use addressed to the family consultant. Had such been taken, the evidence may have taken a different course. It is now too late to raise the matter (Metwally v University of Wollongong (1985) 60 ALR 68 at 71).
65. The mother particularly pointed to the following question as well as the answer, which she submitted showed that the family consultant lacked the requisite expertise about the effects of drug use:

HER HONOUR: ... I don’t know if you’re able to comment on this but sometimes in cases of this nature experts give evidence about how long it is that a court needs to see a person, sometimes described as clean in the community, before they can be confident that they’ve overcome a drug use problem. Do you have sufficient expertise to give any evidence on that topic?

[THE FAMILY CONSULTANT:] It’s – it’s not specific expertise in relation to drug use but it is about their ability to demonstrate the abstinence and the ability to provide a stable environment for children to live in. Usually we would look at at least 12 months in matters where – particularly in this matter where there was no insight at all. There was no acceptance that the drug use and behaviour had impacted on the children.

(Transcript 28 March 2018, p.9, lines 37–46)

66. There was no objection to the question and when the mother’s counsel later cross-examined the family consultant, the answer was not tested by further questions. There is no force in this complaint.
67. We accept that the cross-examination of the family consultant by the mother’s counsel was more frequently interrupted than questioning by other counsel but that was because her Honour intervened to correct factual errors and ambiguities in the questions and to deal with objections made by the other parties and the ICL.
68. The mother complains that her counsel was unfairly given a truncated time to cross-examine the family consultant and, unlike other counsel, was told to stop. It is said the primary judge said “Mr Davies, we’ve run out of time”.
69. No such sentence is recorded in the transcript. Towards the close of the cross-examination by the mother’s counsel, the primary judge noted the time (4.45 pm) and that counsel for the ICL had not yet questioned the witness (Transcript 28 March 2018, p.38, lines 12–22). Her Honour indicated that the line of questioning then being pursued was not to continue because it was based on premises not established by the evidence. The exchange then continued:

[HER HONOUR:] But that line of questioning is not going to assist me, because, to be frank, subject to anything you might say in submissions, there is no evidence to support a concern in that regard. So ask another question, Mr Davies, on a different topic.

MR DAVIES: No. No. Thank you, your Honour. No further questions.

(Transcript 28 March 2018, p.38, lines 24–28)

70. Thus, contrary to the submission, counsel voluntarily ended the cross-examination.
71. It is also worth pointing out that the mother’s counsel cross-examined the family consultant for 1 hour and 12 minutes as opposed to 23 minutes for the respondent’s counsel and 17 minutes for the counsel for the ICL.
72. As to the second example, the mother submitted that the primary judge made “dismissive, derisory and sarcastic comments directed towards the mother”. She relied upon the following which was an exchange concerning private schools as opposed to public ones:

[HER HONOUR;] So do I, Mr Davies. But, I mean, things might have changed, I agree. But, I mean, the problem is in these matters, you can’t assume that these things are bad. If you’ve got some evidence they’re bad, bring it forward. But you can’t assume it’s bad, you can’t assume public – private is better than better, you can’t – public – private. You can’t assume that it’s bad for children to travel on a bus until they get a certain age. Put some evidence forward about it, and then I can consider it, Mr Davies.

(Transcript 26 March 2018, p.5, lines 33–38)

73. This comment clearly does not support the submission.
74. Whilst it is not our role to “hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds ... that such an examination may yield a conclusion of appellable error” (Bahonko v Sterjov [2008] FCAFC 30; (2008) 166 FCR 415 at [3]), we have read the transcript referred to by the mother. We cannot find anything that suggests a lack of procedural fairness or anything that would give rise to an apprehension of bias.
75. There is no merit in Grounds 1.1 and 1.2.
76. Finally, the mother submitted that the primary judge unfairly required her to sit in the public area of the court and not next to her lawyers. As the mother did not provide the relevant transcript, Ground 1.3 must also fail.

Did the primary judge make errors of fact? (Grounds 2.1, 2.2, 2.3, 2.5, 2.6, 2.7 and 2.9)

77. The mother asserts that the primary judge made a number of “findings which, on the balance of probabilities, were incorrect”. These errors were said to have “skewed the evidence which result[ed] in an unfair hearing”.
78. The primary judge said of the mother:
    • She was 26 years old when in fact she was 23 (at [131]);
    • She only completed Year 8 at school and she has no history of adult employment (at [113]);
    • Her life has been chaotic since she left school in Year 8 (at [214]); and
    • “[S]he does not have a work history but for a very good part of her life she was caring for young children. I do not intend to convey by that comment that the mother is some sort of an inferior person” (at [153]).
79. The mother submits that these findings were erroneous and that the primary judge overlooked her evidence that she had been studying at university since 2011 and that when she was 18 she established an online business which she later passed to a relative.
80. Accepting that to be so, it remains accurate to say that the mother’s life was chaotic since she left school in Year 8 and that she has been involved in drug use since then. The significant issues in the case were that drug use and the respondent’s ability to care for the children. The asserted errors are not material (De Winter and De Winter (1979) FLC 90-605).
81. As to the error about age, that was in the context of her Honour finding that the mother had been in trouble with the law and drugs since she was 15. We do not see any materiality in any error.
82. A trial judge is not required to mention every fact or allegation made in the proceedings (Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 259 per Kirby P and 270 per Mahoney JA; Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447 at [62]).
83. No error has been established and grounds 2.1, 2.2 and 2.3 fail.
84. The primary judge described the mother’s and the respondent’s relationship as lasting for about three years (at [43]), which the mother says is erroneous and contrary to the evidence. Her Honour had noted that the relationship began in 2011 and recorded:
    42. [X] was born [in] 2012 and the mother and father separated in October 2013 according to the father or perhaps earlier according to what the mother said to the family consultant. On the other hand the mother referred to attending the father’s sister’s wedding in [Town S] in 2014 so I cannot entirely get to the bottom of when the relationship ended.
85. It can thus be understood why the primary judge described the length of the relationship in general terms. Whether it covered somewhat less than two years or covered “about” three years is not material to any issue in the proceedings. Ground 2.5 therefore has no merit.
86. The mother complains that the primary judge erred in describing the cost of an expert’s report (Ground 2.6). During the course of the hearing, the following exchange occurred:

HER HONOUR: Well, the only reason I will make any comment, Mr Davies – and I’ve made this comment before and I will put it out there again - - -

MR DAVIES: Sorry, your Honour.

HER HONOUR: - - - is that at the interim hearing the mother, having said that she couldn’t afford to go to the family report interviews and couldn’t afford to do the drug test, proposed that I make an order that a report be prepared by [Dr W] and that she would pay the $13,000 [Dr W] wanted for the preparation of the report. Anyway.

MR DAVIES: ..... probably take issue with the 13,000, your Honour.

HER HONOUR: Well, I’m telling you what I remember about what happened at the interim hearing, Mr Davies.

MR DAVIES: Yes.

(Transcript 28 March 2018, p.23, lines 19–35)

87. The matter was not further pursued by counsel for the mother. The cost of the report was not mentioned in the primary judge’s reasons so even if the figure was wrong (and the evidence before us does not enable us to say) that error was entirely immaterial. We reject utterly the suggestion made by the mother that this question was a deliberate attempt to mislead the witness and demonstrated bias.
88. The primary judge referred to the mother failing to undergo a hair follicle test which was ordered in June or July 2017. The mother asserts that the request was in fact made in October (Ground 2.7). Again, the material before us does not establish this. Even if it did, the date was not important – the significance lay in the mother’s failure to take the test.
89. Ground 2.9 complains that the primary judge erred in “suggesting that the child support assessment for [X] was requested by the mother”. Her Honour did not make that finding. She said:
    74. There is also the mother’s conduct. She referred in her affidavit to there being a child support assessment in place in respect of [X] and she complained that she did not get child support from the father until she put the matter in the hands of the Child Support Agency. Pursuant to s. 29 of the Child Support Assessment Act the mother would not have been able to get that assessment unless both parents had told the Child Support Agency that the father was [X]’s father.
90. In her Summary of Argument, the mother accepts that in June 2017 she requested the Child Support Agency to start taking payments from the respondent.
91. The important points made by her Honour therefore are sound – the mother received child support payments from the respondent and sought to ensure those payments continued. That conduct is consistent with the respondent being X’s father. The Child Support Agency’s file was not before the Court and it cannot be established by whom the application was made.
92. There is no merit in any of these complaints.

Did the primary judge ignore the allegations made by the mother as to family violence in the respondent’s household? (Grounds 2.4 and 12.1)

93. The mother alleged that the respondent’s new partner, Ms M, was mean and unpleasant to the children and smacked them constantly. She also alleged that the respondent was psychologically harmful to the children because he prevented them from freely communicating with the mother, even under a court order for telephone or Skype time. She submits that the primary judge erred by not accepting those contentions (Ground 2.4) and that the orders made by the primary judge failed to protect the children from physical or psychological harm (Ground 12.1).
94. The primary judge was well aware of these allegations, saying:
    89. The mother said in her trial affidavit that the children had a good relationship with the father and missed him but disliked his partner Ms M and what happened at the father’s house. She alleged that they were terrified of Ms M screaming and that [X] had dramatically demonstrated Ms M hitting her on her bare bottom.
    90. The children made some allegations to the family consultant about Ms M’s treatment of them and I will refer to that in the parenting capacity section of the judgment but there were no issues about the children’s interaction with Ms M and the father at the family report interviews. The family consultant said as follows:

I then collected the stepmother and [A] from a different part of Centacare and introduced the stepmother and [A] to the session with the father and the girls. The girls were happily playing with the father on entry. They both greeted [A] happily with lots of hugs. They did not initially display physical affection to the stepmother but there was immediate rapport with lots of direct verbal interaction (including the girls instigating conversation with her), repeated and consistent eye contact and smiles. There was no indication whatsoever that the girls were fearful, or even uncertain in their relationship with the stepmother. The session presented as very warm and comfortable with lots of free flowing conversation between all involved and lots of smiles and giggles from the girls. Both of the adults were very warm and engaging with the children and this was reciprocated by [X] and [Y]. I advised the girls that the stepmother and [A] would be leaving and they immediately without prompting got up to give her and [A] (who was on the father’s lap) big hugs. I escorted the stepmother and [A] out and returned to advise they also needed to say goodbye to the father. Again there were lots of big hugs for the father as he left.

91. I am satisfied that the children have a good relationship with their father and with Ms M. They also have a good relationship with [A]. The mother said in her affidavit that the girls missed [A].
95. Her Honour returned to this theme later in the reasons:
    156. A big issue raised by both the mother and the maternal grandmother was that the children had disclosed that when they lived with the father after the mother’s imprisonment, Ms M physically disciplined them. The mother put this down as being quite severe. She alleged that [X] said she was smacked on her bottom and could not sit down as a result of being smacked and [Y] talked to the family consultant about being smacked by Ms M.
    157. The family consultant did not feel that the children’s allegations as made to her were deeply concerning. She said as follows for example:

[Y]’s demeanour was incongruent with the reportedly distressing information she was conveying. Specifically, she continued to smile and she giggled while relating the information.

158. The interaction the family consultant observed between the children and Ms M at the family report interviews did not raise any concern at all. The family consultant said that the children had immediate rapport with the stepmother and that there was repeated and consistent eye contact and smiles and no indication that they were fearful or even uncertain in their relationship with her.
159. The stepmother admits that she smacked the children. She has never tried to hide it and I do not accept that she has minimised what happened. There are still people who smack children because they were brought up being smacked and they do not regard it as an inappropriate form on discipline. We are moving into a stage where a lot of people do consider it inappropriate but I do not accept that Ms M physically disciplined the children to an extent where it verged into an assault.
160. I accept that Ms M has taken on board the concerns raised about what happened and I do not accept the children are at any risk of harm from her. I was impressed by Ms M in the witness box and she supports the father’s application.
161. The family consultant said as follows in her report about the allegations about Ms M:

Whilst it is ultimately a matter for the Court to determine, I am not convinced on the information available that the children are at unacceptable risk of harm in the father’s household from the stepmother. In the first instance, at its highest, the stepmother has physically disciplined the children by smacking them on the bottom on top of their clothes. Whilst this is clearly different from what the children were used to, it does not equate to the children having been abused by her. I do have some concerns that the children’s reported responses to the stepmother (according to the mother being highly fearful and traumatised by her) are inconsistent with the children’s reporting of her behaviour. The stated fears are also clearly inconsistent with the children’s behaviour in the observation session with the stepmother.

162. The father and Ms M have their hands full with three young children in their household but a lot of people are in the same situation. I am satisfied that they are providing good day to day care for the children and that the children are not at risk of harm in their care.
96. This led to the following conclusions:
    208. There are some concerns about the father. He has his own history of drug use. He is currently living in a two-bedroom home with three children and two adults. There have been some issues with Ms M disciplining the children and the father was slow to step up to accepting full-time responsibility for the children. It would be a real concern for these children if I made an order that they lived with the father and the father let them down in the future.
    209. However there is no evidence that the father is currently using drugs and no evidence that he has done so for some little while. There is no evidence that he has an alcohol problem and no evidence that there is any family violence in his relationship.
    210. Ms M took on board and was very responsive to the complaints that were made about her smacking the children and she did a course or courses following on that issue being raised.
    211. The father is doing a very good job looking after the children. He does not have involvement with the police and have police calling at his home and conducting raids. He does not have recent criminal convictions and I am satisfied that he is more than capable of providing well for the children and that they will be safe in his care.
    212. The mother has historically been the children’s primary carer and that is a significant factor for the children. The children might have a little bit of difficulty adjusting to a long-term change of their residence no matter how well they get on with the father and how much they love their little brother. It is a big change for them at the age of 7 and 5 to commence living primarily with a different adult and they told the family consultant that their preference was to live primarily with the mother.
    213. However when I have the option of putting the children with the father, I could not possibly consider making an order that the children live with the mother.
97. The submissions of the mother and the maternal grandmother refer to the evidence on which they relied at trial, which in the main was given by them, and merely assert that the above findings were wrong. That is not sufficient to establish error. The primary judge was not obliged to accept the mother’s evidence to the exclusion of anything to the contrary. Indeed, her Honour was sceptical about the creditworthiness of the mother’s evidence, particularly as to her drug use and what she told the family consultant.
98. The factual findings made by the primary judge were open on the evidence taken as a whole. That led to findings that were not entirely favourable to the respondent and his partner, but which had to be balanced against the more serious findings made as to the mother’s drug use.
99. No error has been identified.

Did the primary judge err in her findings as to the diagnosis of ADHD? (Ground 2.8)

100. The mother submits that the primary judge’s scepticism regarding the mother’s ADHD diagnosis and the medication she has been prescribed for it resulted in incorrect findings about her drug tests and drug use.
101. The primary judge said:
     123. The mother did a hair follicle test after an interim order was made removing the children from her care in December 2017 but it was positive for amphetamines.
     124. The mother explained this away on the basis that providentially in January 2018 she had been to see a doctor and obtained a prescription for dexamphetamines because she allegedly had ADHD.
     125. The evidence attached to the mother’s affidavit about why the doctor prescribed dexamphetamines is very brief. The letter from the doctor consists of three lines and there is no explanation for why he prescribed the drug. There is nothing to suggest that the doctor made an independent diagnosis of the mother. The evidence in the mother’s affidavit about her ADHD was that she was diagnosed with it when she was in Year 1 or 3 at school and was prescribed Ritalin but there is no mention of her taking it after that time.
     126. The fact that the mother has obtained a prescription for dexamphetamine does not remove a concern from my mind about whether the mother is using illicit drugs or about whether that prescription explains why the mother is testing positive for amphetamines in the drug tests she has done since January 2018.
102. We have already set out the only information about the diagnosis of ADHD and prescription of dexamphetamine that was before her Honour at [49] above. Importantly, the doctor did not refer to any history of drug testing in the report. Whilst the diagnosis of the mother was no doubt regularly made, the history obtained from her upon which the diagnosis was based was not set out in the doctor’s letter. As the prescription obtained by the mother is similar to the drugs she previously used, the history and the basis for the prescription are matters that carry significant weight. So too would an explanation as to why the mother’s blood tests were positive and evidence about the effects of taking dexamphetamine on a person who had regularly taken amphetamines.
103. Given the cursory nature of the evidence, the primary judge was rightly sceptical about it and what effect the dexamphetamine would have on drug tests. The paucity of evidence made it difficult to ascertain whether the mother has ceased using other drugs.
104. As we have already recorded, the further evidence sought to be relied on by the mother in relation to this issue did not remedy these defects and was not received.
105. The primary judge’s findings were open on the evidence and no error has been demonstrated.

Did the respondent give false evidence as to his drug use? (Ground 2.10)

106. The respondent was denied entry into the Australian Defence Force (“ADF”) in 2008 because of his drug use. In 2012, the ADF decided that he was then eligible to join. The mother submits that does not show that his drug use had ceased, but that he had lied to the ADF.
107. The respondent’s evidence in cross-examination was that he last smoked marijuana four to five years ago (Transcript 27 March 2018, p.22). He said he had only used it a few times (Transcript 26 March 2018 afternoon, p.14). He agreed that he undertook a drug test in 2012 which tested positive for cannabis (Transcript 26 March 2018 afternoon, pp.15–16).
108. The following question was later put in cross-examination:

And it was assessed that you had stopped the drug use that had prevented you joining the Australian Defence Force previously?---Yes.

(Transcript 27 March 2018, p.26, lines 6–7)

109. It was not suggested to the respondent that he had misled the ADF or that a positive test for cannabis would have prevented admission. Had that occurred, further evidence may have been called. It is too late to raise the matter now.
110. This ground does not succeed.

Did the primary judge fail to give adequate reasons? (Grounds 3.1 and 9.1)

111. The obligation on a judge to give adequate reasons is well-known (Bennett and Bennett [1990] FamCA 148; (1991) FLC 92-191 at 78,266–78,267). The reasons must enable the parties to understand the basis of the judge’s decision and the extent to which the parties’ arguments have been accepted (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [58]–[59]).
112. The mother submits that the primary judge failed to consider the proposals of all of the parties (Ground 9.1). Reference need only be made to [12]–[25] and [211]–[238] of her Honour’s reasons to demonstrate that this assertion is self-evidently wrong.
113. Contrary to the further submission of the mother, it is possible to discern how the primary judge arrived at the orders made (Ground 3.1). The reasons clearly show that her Honour took into account, weighed and assessed the relevant evidence and considerations.

Did the primary judge err in treating the respondent as Y’s father or “psychological father”? (Grounds 4.1, 5.1, 6.1, 7.1 and 7.2)

114. It is convenient to deal with these grounds together. In essence, the mother submits that the primary judge erred in finding that the respondent was the psychological father of Y and the biological father of X. She submits that the error was then compounded because her Honour treated the respondent as the father of both when determining what orders would be in the best interests of the children under s 60CC of the Act.

Was the finding that the respondent was the psychological father of Y open on the evidence?

115. The primary judge’s reference to the respondent being Y’s “psychological father” is supported by the following passages in the reasons:
     32. ... On numerous occasions in the mother’s affidavit she related things the children have said over the years in first person speech in which the father was referred to as “Daddy” and in respect of [Y] there were repeated references to her affidavit to [Y] calling the father “Daddy”. There are examples of it in paragraphs 67, 73, 90, 116 and 313 and in paragraph 67 the mother referred to the father as “Daddy” in a conversation she related concerning [Y]

...

45. After the parties separated the father spent time with the children by agreement. The parties disagreed at trial about the extent of the time and I cannot make any findings about that but one very important thing to note is that it is apparent from both the mother’s affidavit and the father’s affidavit that the parties always treated the children as a unit. There was never the smallest suggestion by the mother that the child who was not the father’s biological child should not go and the other one should and I have already made reference to the numerous occasions on which the mother reports [Y] calling the father “Daddy.”.

...

89. The mother said in her trial affidavit that the children had a good relationship with the father and missed him but disliked his partner Ms M and what happened at the father’s house ...

...

148. The maternal grandmother’s insistence that the father is not [Y]’s father and that this is of some huge significance is deeply concerning because [Y] has no other father ...
116. The mother’s submissions do not refer to these paragraphs other than to assert that her evidence was that the children do not call the respondent “Daddy”. She asserts that the reference to the contrary at [32] was based on events which all occurred after the children began living with the respondent. Accepting that, it remains the case that there was evidence upon which the primary judge could rely to find that Y regarded the respondent as her father. Indeed, she had known no other. The reality was that the respondent was treated by all as her father since the commencement of the relationship.
117. The description of the respondent as the psychological father of Y was open on the evidence and apt.

Was it open for the primary judge to find that the respondent is the biological father of X?

118. The mother submits that the primary judge erred in finding that the respondent is X’s father because he was not listed on her birth certificate, failed to undertake a DNA paternity test and because he was absent from X’s life for substantial periods.
119. The primary judge’s finding and conclusions were:
     70. The father is not on [X]’s birth certificate but I accept his evidence that he was not given the opportunity to be on it. The father seems to be somewhat of a laid back person who if he is confronted with forceful opposition by somebody tends at times to give in to it, although fortunately for the children that has not been the case so recently.
     71. There is not a shred of evidence in the mother’s trial affidavit to suggest that she had a concern about [X]’s paternity prior to these proceedings commencing.
     72. An order was made for DNA testing early in the proceedings, probably because this is an issue of huge significance for the maternal grandmother. I accept that the father’s evidence that he paid his share of the cost but the mother did not.
     73. No test was done and it was common ground between the mother and father that they recently agreed that paternity testing would not be carried out. In the mother’s trial affidavit she said as follows:

It is my understanding that when the matter was before the court on 16 March 2017, it was agreed between the parties that the DNA test was no longer necessary, although this was not included in the consent orders.

74. There is also the mother’s conduct. She referred in her affidavit to there being a child support assessment in place in respect of [X] and she complained that she did not get child support from the father until she put the matter in the hands of the Child Support Agency. Pursuant to s. 29 of the Child Support Assessment Act the mother would not have been able to get that assessment unless both parents had told the Child Support Agency that the father was [X]’s father.
75. There is also evidence of the mother regularly pestering the father about contributing to [X]’s school fees. There is absolutely nothing to suggest that the mother herself has doubt about the child’s paternity.
76. There is no issue in my mind about the father being [X]’s father.
120. The mother’s submissions merely restate her case as set out in [118] above. They do not attempt to demonstrate why her Honour’s finding involved error. Her Honour took into account each of the matters raised by the mother in reaching her decision which was open on the evidence.
121. This aspect of the grounds has not been made out.

Did the primary judge wrongly regard the respondent as the parent of both children when undertaking the s 60CC considerations?

122. The mother submits that the primary judge erred in her consideration of the 60CC factors because her analysis was undertaken on the basis that the respondent was the father of Y when he was not.
123. It is self-evident that some considerations required to be undertaken under s 60CC refer to parents and some do not. Sections 60CC(3)(c), (ca), (e) and (i) refer only to “a parent”. Section 60CC(2)(a) refers to the benefit of a meaningful relationship with both of the child’s parents, whereas s 60CC(2)(b) refers to the need to protect the child from physical or psychological harm in an unlimited way. “Parent” for the purposes of these sections is a biological parent or an adoptive parent (Donnell & Dovey [2010] FamCAFC 15; (2010) FLC 93-428 (“Donnell”) at [92]).
124. It has been clearly established that the reference to “parents” in s 60CC(2)(a) is a reference to the parents of a child and that to treat a person other than a parent as if they were for the purpose of that section is an error (Burton & Churchin (2013) FLC 93-561 (“Burton”) at [51]; see also Donnell at [101]).
125. However, that is not necessarily the end of the matter as the Full Court explained in Burton:
     54. His Honour was, of course, required to consider the nature of the child’s relationship with both the step-mother and the aunt specifically under s 60CC(3)(b). It was self-evidently important that he do so because it was ultimately only those two persons who were seeking orders in relation to the child, and it is apparent from his Honour’s reasons that his Honour did this. It must not be overlooked that s 60CC(3)(b) is contained within the set of factors described as additional considerations as opposed to the primary considerations set out in s 60CC(2). The additional considerations do include a catch-all provision (s 60CC(3)(m)), but it is plain that it cannot be relied on to elevate the benefit to the child of having meaningful relationships with the step-mother and the aunt to a primary consideration.
126. This is consistent with well-established authority: see Mulvany & Lane [2009] FamCAFC 76; (2009) FLC 93-404 at [77]–[78] and [82] and Donnell at [99]–[101] and [115].
127. It would therefore be an error if the primary judge elevated the relationship between the respondent and Y to one that must be considered under s 60CC(2)(a).
128. We now turn to discuss whether her Honour did so and, if she did, whether that error was material to the outcome.
129. The primary judge was well aware that X was a child of the mother and the respondent but that Y was not, observing at [95] of the reasons that “the father is Y’s psychological rather than biological father”. The discussion of parental responsibility commenced as follows:
     195. Pursuant to s. 61DA of the Family Law Act I am required to apply a presumption that it is in the children’s best interests that the parents have equal shared parental responsibility for them.
     196. That only potentially applies to [X] because she is the only child who is a child of the parties and in relation to her the presumption does not apply because the father undoubtedly committed an act of family violence.
130. The primary judge also acknowledged the different positions of X and Y at [100] and [101] of the reasons when discussing the parents’ obligations to maintain the children (s 60CC(3)(ca)).
131. Under the consideration of s 60CC(2) the primary judge said:
     185. The orders sought by the father would mean that the children would have no relationship with their mother; not only would they not have a meaningful relationship with her they would have no relationship with her at all.
     186. It does not reflect badly on the father that he sought those orders. There is nothing to suggest that he has a history of wanting to take the children away from the mother, in fact the reverse is the case. He probably should have stepped in a little earlier to protect the children. In my view he has made that proposal only because he has become increasingly aware of the issues to do with the mother’s drug use and immersion in the drug culture and because of concerns about her undermining the children’s relationship with him. I consider that he proposed those orders only because he is at the end of his tether.

...

188. The father’s proposal would mean that the children would not have a meaningful relationship with both of their parents, only with him, but s. 60CC(2A) says that the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence has to take priority and there is abundant reason to be concerned that the children would not be safe in the mother’s unsupervised care at present.
189. I cannot be satisfied that she has overcome her drug problem. I cannot be satisfied that she has ceased to be immersed in the drug culture. I cannot be satisfied that she will continue with the rehabilitation she is currently undertaking.
190. There is nothing to suggest that the children would be at any physical risk of harm in the maternal grandmother’s care. My concern about the maternal grandmother, and it is also a concern about the mother which is relevant to the primary considerations, is that they may undermine the children’s relationship with the father if they spend regular, unsupervised time with the children or even have regular unsupervised telephone communication with them.

...

194. If the children spend regular unsupervised time or have regular unsupervised telephone communication with the mother or maternal grandmother there is a risk of complaints emerging or the children’s relationship with the father ad [sic] Ms M being undermined and the children becoming unsettled.
132. We do not read [188] as elevating the respondent to the status of Y’s natural parent. The primary judge had already made plain at [95] of the reasons that the father was Y’s psychological rather than biological father. In that context, the primary judge commented that the respondent’s proposal for the children to have no time with their mother meant that he was the only parent with whom the children could have a meaningful relationship. This was consistent with the earlier observation at [89] that “[t]he mother said in her trial affidavit that the children had a good relationship with the father and missed him”.
133. The discussion of a meaningful relationship, in express terms, is limited to a discussion of the loss of the benefit of that relationship if the child were to spend very limited time with the mother. The reference to a meaningful relationship with the respondent in [188] falls short of considering that relationship under s 60CC(2)(a).
134. It is true that in [190] and [194], the primary judge spoke favourably of the relationship between the respondent, his partner and the children and considered that it should be maintained. In the circumstances, it was clearly a relevant consideration. We are of the view, however, that in doing so, her Honour did not elevate any consideration of the benefit to Y of having a meaningful relationship with the respondent to one under s 60CC(2).
135. As already mentioned, under her consideration of s 60CC(3)(c), which refers to parents, her Honour said:
     95. Although the father is [Y]’s psychological rather than biological father, in considering the section 60CC (3) matters I am going to treat both children as being his children for the purpose of making determinations.
136. It is important to read this paragraph together with [180] and [181] of the reasons which are in the following terms:
     180. I must consider any other fact or circumstance the Court thinks is relevant.
     181. I have already covered everything in discussing the other particular headings.

(Emphasis in original)

137. The statement in [181] is an acknowledgment by the primary judge that the authorities, referred to earlier, make clear the matters that must be considered under s 60CC(3) which refer to “parents” may also be relevant considerations in relation to non-parents. The latter may be considered under s 60CC(3)(m) which allows the Court to take into account “any other fact or circumstance that the court thinks is relevant”. Thus it was entirely proper for those considerations to be undertaken under the latter subsection.
138. We consider that this was the course that her Honour took, albeit in a perhaps shorthand way rather than again going through the considerations under paragraph (m).
139. We have earlier referred to the primary judge’s acknowledgment that the children were in different positions when considering matters pursuant to s 60CC(3)(ca).
140. It follows that each of the primary judge’s findings at [98], [107]–[109] and [165] of the reasons should be read as a findings relevant to s 60CC(3)(m) in respect of Y and ss 60CC(3)(c), 60CC(3)(e) and 60CC(3)(i) respectively in relation to X.
141. It is clear from the other passages we have quoted that her Honour was well aware of the distinction between parent and non-parent for the purposes of the various sections within Part VII of the Act and there is no reason to think that this distinction was suddenly lost. Indeed, [95] appears to us to be a recognition of it.
142. In this case there was no difference in the way the considerations applied to the two children save that the respondent was a parent of one and not the other. The mother did not suggest any. There was therefore a sound factual basis for treating them in the same way.
143. We consider that her Honour appropriately undertook the paramount consideration of determining what was in the best interests of the children by taking into account all relevant matters. The mother’s submissions adopt an “overly critical, or pernickety” tack which is not appropriate (AMS v AIF (1999) 199 CLR 160 at 211).
144. As we have observed, the primary judge did not conduct the s 60CC(2)(a) consideration as if the respondent was a parent of Y. Further, we have not identified any error in the application of s 60CC(3)(m).
145. The mother submitted that her submissions were supported by Parsons & Masson [2018] FamCAFC 115; (2018) FLC 93-846. We do not agree as that case was concerned with an entirely different set of circumstances involving a sperm donor. Nonetheless, we consider that a passage in that case supports our approach. At [94], Thackray J, with whom Murphy and Aldridge JJ agreed, said:

Although I accept it would have been necessary in any event for her Honour to consider, in relation to all parties, all of the factors in s 60CC, that does not pardon the error of treating a person as a “parent” who legally is not a “parent”. The case is thus distinguishable from Mulvany & Lane [2009] FamCAFC 76; (2009) FLC 93-404 where the trial judge had correctly found that one of the parties was not a “parent”, but then consciously considered at least the s 60CC(3) factors in relation to that person, including those which were expressed to apply only to a “parent”.

(Footnote omitted)

146. As we have explained, the primary judge did not fall into the error described.
147. These grounds do not succeed.

Did the judge err in making orders that did not enable the children to have a meaningful relationship with their mother, “biological fathers” and maternal family? (Ground 7.3)

148. The premise of this ground is flawed because s 60CC(2)(a) does not oblige a court to make orders ensuring a meaningful relationship between the parents and the children; rather, the court must consider the benefits of such a relationship.
149. As we have observed, the primary judge conducted such a consideration in relation to the mother, but found that the risks to the children outweighed the benefits. The biological father of Y had played no part in her life and was not a party to the proceedings. We have already concluded that it was open to her Honour to find that the respondent is the biological father of X.
150. This ground fails.

Did the primary judge give insufficient weight to the views of the children and making orders in their best interest? (Ground 7.4)

151. As the primary judge recorded, the children told the family consultant that they wanted to live with the mother and spend time with the respondent. Her Honour regarded the other evidence as to the child’s views as being unreliable.
152. The mother’s submissions merely repeat the evidence and do not attempt to identify error in her Honour’s reasons.
153. The children’s views are not determinative. The weight to be given to them was particularly a matter for her Honour. Challenges to weight face a high bar (Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 (“Gronow”)).
154. No error has been identified.

Did the primary judge err in failing to apply Part VII of the Act in such a way as to maintain the integrity of the objects of the Act as set out in s 60B, including the UN Convention on the Rights of the Child? (Ground 7.5)

155. The bulk of the mother’s submissions under this ground are merely a rehearsal of her submissions to the primary judge. The mere fact that her contentions were rejected does not establish error.
156. The United Nations Convention on the Rights of the Child is given effect to in Australia by Part VII of the Act and is not to be given separate consideration (see Ralton & Ralton [2017] FamCAFC 182 at [18]).

Did the primary judge err in making an order for the respondent to have sole parental responsibility when this was not in the best interests of the children? (Ground 8.1)

157. As we have recorded, the primary judge found that it was in the best interests of the children for the respondent to have sole parental responsibility.
158. Once again, the mother’s submissions are a restatement of her case and are a complaint that they were not accepted. This does not establish error.

Did the primary judge err in imposing an order for an indefinite regime of supervised access? (Ground 10.1)

159. The mother submits that the order for the children to spend only supervised time with her should not have been made because:
     • It was not in the children’s best interests;
     • It did not permit the children to have a meaningful relationship with her or the maternal family;
     • As there was no provision as to when or how the supervision would end, the only course open to the mother was to seek a variation to the orders, which she says would be met with the assertion that there had not been a material change in circumstances;
     • Long-term supervised time is undesirable; and
     • The primary judge’s reasons omit consideration of the family consultant’s evidence and the recommendations of the ICL.
160. The first two points may be dealt with briefly. They do not identify error, but merely assert that the mother’s contentions were not accepted. As we have pointed out earlier, s 60CC(2)(a) does not require the making of orders that ensure a child has a meaningful relationship with both parents. Rather, the benefit of such a relationship is to be considered and determined in the light of any findings under s 60CC(2)(b) and s 60CC(3).
161. The primary judge was well aware of the undesirability of orders for indefinite supervised time saying “[i]t is not ideal to make that kind of an order but it is all I can do” (at [238]).
162. Although such orders are not commonly made, they may be made in appropriate circumstances (see, for example, Champness & Hanson [2009] FamCAFC 96; (2009) FLC 93-407 at [209]–[225]; Carpenter & Lunn (2008) FamCAFC 128; (2008) FLC 93-377 at [291]). The primary judge clearly took this consideration into account.
163. Her Honour’s reasons for the order were:
     224. If I was going to order that the mother spend time with the children the only order I could consider making would be an order for supervised time. The mother has only recently engaged in drug and alcohol counselling. The dexamphetamine prescription raises a red flag as does the dilute creatinine result. She has no insight into the harm she has caused the children. I have no evidence that she has ceased to associate with the people she was previously associating with.
     225. There is also a serious risk that if the children spent unsupervised time with the mother she would undermine their relationship with the father and unsettle their placement with him. I am concerned about the plethora of allegations about the father in her affidavit. I am very concerned about the incident in late January 2018.
     226. If I was going to order time I could only consider ordering supervised time and there are difficulties with that kind of an order. One is that supervision may not be available for any length of time. I cannot be sure if Suburb A Children’s Contact Centre will continue to provide supervised time after final orders are made and if so for how long. If I make an order for supervised time there is a high risk that the matter may come back to Court because no supervision is available and people want the Court consider some other option.
     227. The Independent Children’s Lawyer proposed that I order supervised time for six months, then order unsupervised time during the day and then after six months order unsupervised overnight time.
     228. The problem with that approach is that there is nothing to indicate that after six months the mother’s situation is going to be any different. I could only make that kind of an order if it was hedged in with a whole lot of conditions about things the mother had to do and evidence she had to provide about her counselling and drug use prior to unsupervised time commencing.
     229. It would be difficult to draft such orders and I cannot be sure that the mother is going to arrive at a point where she can satisfy the Court that it is safe for the children to spend unsupervised time with her.
     230. Six months is an arbitrary time period. There is no reason in this particular case to suggest that after six months things are going to be different.
     231. The other problem is that there is nothing to suggest that after six months the mother is going to have a different attitude to the father and that the risk of her undermining the children’s relationship with him will be reduced.
164. As can be seen, the submissions of the ICL were directly referred to and considered.
165. The primary judge commenced her consideration of the orders with the following:
     205. The recommendations in the family report are clear. The family report writer said as follows

If the court finds that the children are not at risk of harm in the care of the father, then it is recommended that he has sole parental responsibility for the children, and that they immediately live with him. It is recommended that if the mother is to spend time with the children, that such time be supervised, and it is recommended that the children spend time with the maternal grandmother on one day per month.

206. Recommendations in a family report always deserve consideration because family reports are written by skilled people who are not emotionally involved in the matter. However I always have to make my own decision taking the family report into account as a piece of evidence. Also in this particular case as in other cases I have to factor in any events which have occurred after the report has been released.
207. The recommendations in the report deserve considerable weight in this case because the report is extremely thorough. The opinions expressed in it are properly underpinned by evidence and evidence which is congruent with the findings that are open to me and that I have made. Nevertheless I have to make my own decision taking into account the report, the other evidence I have heard and of course the incident that happened at the end of January 2018.
166. Thus, the family consultant’s recommendations were also recorded and considered.
167. Finally, it remains to consider whether the orders are permanent in the sense that circumstances will never materially change so that an application for variation will never be successful (see Rice & Asplund [1978] FamCA 84; (1979) FLC 90-725 at 78,905).
168. The basis for the orders is plain enough. Her Honour said:
     188. The father’s proposal would mean that the children would not have a meaningful relationship with both of their parents, only with him, but s. 60CC(2A) says that the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence has to take priority and there is abundant reason to be concerned that the children would not be safe in the mother’s unsupervised care at present.
     189. I cannot be satisfied that she has overcome her drug problem. I cannot be satisfied that she has ceased to be immersed in the drug culture. I cannot be satisfied that she will continue with the rehabilitation she is currently undertaking.
     190. There is nothing to suggest that the children would be at any physical risk of harm in the maternal grandmother’s care. My concern about the maternal grandmother, and it is also a concern about the mother which is relevant to the primary considerations, is that they may undermine the children’s relationship with the father if they spend regular, unsupervised time with the children or even have regular unsupervised telephone communication with them.
     191. I am satisfied that the mother either orchestrated what happened in late January 2018 or was knowingly concerned in it and in doing that she messed with these children’s heads; it was cruel.
     192. The affidavits of both the maternal grandmother and the mother are full of complaints about the father including complaints about his choice of school, the food he gives the children, the children’s health, the children’s alleged loss of weight and the children being unfairly treated vis-à-vis [A]. There are page after page of complaints about the father’s parenting of these children.
     193. I am particularly concerned about several references in the maternal grandmother’s affidavit to [Y] sitting on the father’s lap or to the father being in the bathroom when she is showering. There is not the slightest evidence to suggest that the father has any perverse inclinations and it is deeply and gravely concerning that the maternal grandmother refers to those matters in her affidavit not once but on at least three occasions.
     194. If the children spend regular unsupervised time or have regular unsupervised telephone communication with the mother or maternal grandmother there is a risk of complaints emerging or the children’s relationship with the father ad [sic] Ms M being undermined and the children becoming unsettled.
169. We have already recorded the primary judge’s criticism of the paucity of the evidence of the psychiatrist, the recent changes in the mother’s living arrangements and the attacks made by her and the maternal grandmother on the father.
170. There is therefore scope for the mother to be able to demonstrate at some time in the future that she no longer poses a risk of harm to the children and that she would support a relationship between them and the respondent.
171. We would also point out that, as far as we can tell from the material before us which is admittedly far from complete, the mother did not seek orders which would have provided for the proceedings to be adjourned so that she could be given time to demonstrate that she was free from the issues involved with her drug use whilst she was spending limited supervised time with the children, which is essentially the position for which she now contends.
172. The decision as to supervision involved the exercise of a wide discretion. Error in the exercise of such a discretion must be established in accordance with the principles set out in House v The King (1936) 55 CLR 499 (“House”). The primary judge took into account all the matters raised by the mother. The decision, taking into account all the circumstances, is not unreasonable or plainly unjust so it cannot be reviewed on the basis that although the nature of the error might not be discoverable a substantial wrong has in fact occurred (House at 505).
173. This ground does not succeed.

Did the primary judge err “in her assertions that access could be altered at the whim of the 1st respondent, after having specifically stated she was not able to make such an order to allow another person to make such decisions”? (Ground 11.1)

174. The submissions made under this ground diverged somewhat from its terms. Essentially, the mother challenged this finding made by the primary judge:
     248. I intend to order that the mother’s time with the children be supervised unless otherwise agreed between the parties in writing. I do that with some trepidation given what happened in January 2018 but sometimes people do not need to come back to Court because they agree that something different should happen for their children. The father is not implacably opposed to the children having a relationship with their mother. If a time arrives where she is able to demonstrate that things are different for her I do not believe that he would stand in the way of alternative time occurring. Whether that is ever likely to happen I don’t know but I am going to put that order in there.

(Emphasis added)

175. The mother submits that the emphasised finding is contrary to the following evidence given by the father:

[COUNSEL FOR THE MOTHER:] Can I – you will see there that what you are asking the court to do is to make an order that the children spend no time with their mother?---Yes.

I think you have a view, don’t you, that the mother was attempting to diminish your relationship with the children?---Yes.

Do you consider seeking an order that the children spend no time with the mother would do otherwise than diminish their relationship with their mother?---Yes.

...

Back in 21 February, were you of the view that the children would have a relationship with [the maternal grandmother] and [the mother]?---Yes.

Yes. Well, when did you change that view to the one that the children spend no time with the mother? And, presumably, no time with [the maternal grandmother]? When did you change your mind?---So where are we now. So it would have been – it would have been at least nearly a – about a week or two ago now. So yes.

A week or two ago?---Yes.

HER HONOUR: So why, Mr [Lambert]? What we want to know is why?---Based on everything that had been happening, the amount of frustration that I’ve been getting from the other side, the manipulation and the – and the – sorry, the – I’m trying to find the word for it – interrogation that the children were subject to from [the mother] and [the maternal grandmother] on a weekly basis. I couldn’t bear to see my children go through that more.

(Transcript 27 March 2018, pp.29–30)

176. Her Honour clearly considered the basis for the respondent’s change in approach, saying:
     186. It does not reflect badly on the father that he sought those orders. There is nothing to suggest that he has a history of wanting to take the children away from the mother, in fact the reverse is the case. He probably should have stepped in a little earlier to protect the children. In my view he has made that proposal only because he has become increasingly aware of the issues to do with the mother’s drug use and immersion in the drug culture and because of concerns about her undermining the children’s relationship with him. I consider that he proposed those orders only because he is at the end of his tether.
     187. The father set out in some detail in his affidavit why he had come to the view that the orders he sought were necessary to protect the children. He said as follows:

At that time I was of the opinion that it was in the Children’s best interests to return to live with Ms Oram. Whilst this decision played heavy on my heart, I honestly thought I was doing the right thing. I could see that the Children missed their mother dearly and I believed that Ms Oram was making an effort to sort out her addictions and behaviour. It was only when material was subpoenaed in the course of these proceedings that I became aware that Ms Oram had not been working to deal with these issues, including not completing her post incarceration program. It was at this time that I realised that living with Ms Oram was not safe and in the best interests of the Children. I already held concerns about Mr B’s influence on the children and their environment, and this steeled my resolve to seek that the Children be removed from Ms Oram’s care as I did not believe they were safe. As Ms Oram’s DUI charge had come from a period when she was still living with Ms McCreadie, I am also concerned about Ms McCreadie’s ability to provide for and care for the Children and their safety.

I remained (and continue to remain) concerned as to the potential of Ms Oram relapsing into her previous addictions.

177. These paragraphs make it clear that the change in the respondent’s proposals followed the receipt of information which led him to believe the orders sought by him were necessary to protect the children. It follows that he may not be of that view if circumstances change. Thus, it was open to her Honour to find that he was not “implacably” opposed to the children having a relationship with the mother.
178. The mother also sought to rely upon a report of Dr W in respect of this ground but it was not before her Honour.
179. We are not satisfied that any error has been identified.

Did the primary judge err by “relying almost entirely on a single expert’s opinion to determine the matter” (Grounds 13.1 and 13.2)

180. It is correct to say that the primary judge included a number of quotations from the family report in her reasons. Such a course is unremarkable.
181. However, as her Honour herself observed in a passage which we have already quoted, the family report is a piece of evidence which is to be taken into account with all the other evidence in the case.
182. The mother does not say why acceptance of all or part of the family report or the family consultant’s evidence was an error, other than to assert that the “significant risk of harm in the [respondent’s] household of poly-substance abuse adults which were substantial” was ignored. This is not so. The father’s drug use was expressly considered at [149]–[152].
183. We have already dealt with the submission that the family consultant gave evidence outside her expertise.
184. No error has been identified.

Did the primary judge fail to undertake an adequate assessment of the risk of harm posed by each of the parties to the proceedings? (Ground 14.1)

185. We do not agree that the primary judge did not undertake the relevant risk assessments. Whilst her Honour’s reasons largely focussed on the mother, the maternal grandmother was also found to be an unsuitable person to care for the children (see [142]–[148] and [220]).
186. Similarly, any risk posed by the respondent and his partner was extensively discussed (at [149]–[162]).
187. The weight to be given to these matters was particularly a matter for the primary judge.
188. This ground fails.

Did the primary judge fail to give sufficient regard to the respondent’s: (a) failure to disclose his drug use and the impact of that use on the children; (b) history of alcohol abuse; and (c) history of family violence and anger issues? (Grounds 14.2, 14.3 and 14.4)

189. We have sufficiently recorded that the primary judge specifically considered the mother’s allegations as to the respondent’s drug and alcohol use and family violence.
190. Whilst the mother contended for different findings to those made by the primary judge, there is nothing before us that indicates those findings were glaringly improbable or contrary to compelling inferences. Indeed, we consider them to be open on the evidence.
191. As we have said, the weight to be given to particular factors is a matter particularly for the trial judge. In Gronow at 519–520, Stephen J said

The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight. In the present case it should not have done so at all.

192. No error has been identified.

Did the primary judge fail adequately to consider the steps taken by the mother in combatting any risk of harm her previous drug use may have posed? (Ground 14.5)

193. This ground is based on the premise that the mother’s drug use and association with other drug users had ended. The primary judge was not satisfied that such use and associations had, in fact, ended.
194. The primary judge said:
     214. The mother’s life has been chaotic since she left school in Year 8. She has a number of criminal convictions. She was using drugs in the 2015/2017 period and I consider it highly probable that she was using ice much more extensively than she is willing to admit.
     215. The mother was dealing cannabis until she was caught in July 2015. She expresses no remorse for that. She has no insight into what that meant for the children and the potential and actual harm that she was exposing the children to in dealing drugs and using ice.
     216. The mother had another conviction for driving with methamphetamine in her system after she was released from prison and she did not commence any counselling in relation to drug use until after an order was made for the children to live with the father.
     217. The mother has her priorities totally skewed in terms of what is important for these children. She seems to think that if she can afford to pay for the School D school fees then it doesn’t matter that the children are exposed to drug use, drug users and people like Mr R.
     218. The mother did not stop associating with Mr B, who has an appalling history, until the Court made an order for the children to live with the father.
     219. In circumstances where there is absolutely no evidence to support a finding that the mother has turned a corner in relation to her lifestyle and drug use or has begun to develop any insight into the harm she has done to her children, I could not possibly consider making an order that the children live with her.
195. We have amply canvassed the evidence and findings that led to these conclusions earlier in these reasons. The conclusions reached by the primary judge were available to be made on the basis of that evidence. The complaint is, in essence, that the mother’s case was not accepted. That of itself does not establish error.

Did the primary judge err in making findings of credit? (Ground 15.1)

196. The complaint here is that the primary judge should have found that the respondent was not a witness of credit.
197. The primary judge said:
     35. The father also had some credit issues. He was not frank about his past drug use.
198. Similar but more extensive findings were made against the creditworthiness of the mother (at [28]–[30], [36], [38]) and the maternal grandmother (at [31]–[34], [36] and [38]).
199. The mother’s submissions invite us to reconsider those findings. In the absence of incontrovertible evidence that demonstrates that they were wrongly made, we cannot do so (Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 at [43]).
200. This ground fails.

Was an error made by failing to make enforcement orders? (Ground 16.1)

201. The mother submits that the primary judge failed to make enforcement orders against the respondent in respect of earlier orders for him to pay school fees and psychologist’s expenses.
202. There is nothing in the material before us that suggests such an application was made and this ground must fail.

CONCLUSION

203. It follows that the appeal will be dismissed.

COSTS

204. The respondent sought an order for costs in the event that the appeal is dismissed. The ICL “formally” sought an order for costs. As the mother appears to be bereft of assets and any significant income, it is appropriate that there be no order as to costs and both applications shall be dismissed.

I certify that the preceding two hundred and four (204) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Aldridge & Watts JJ) delivered on 24 January 2019.

Associate:

Date: 24 January 2019