Independent Children's Lawyer & McGlennan and Ors [2012] FamCAFC 10 (3 February 2012)
Last Updated: 24 February 2012
FAMILY COURT OF AUSTRALIA
FAMILY LAW – APPEAL – CROSS-APPEAL – PARENTING – Parental responsibility and with whom the child should live – where the trial judge ordered that the child, who is autistic, live with the father and that the father have sole parental responsibility for the child – where the Independent Children’s Lawyer and the mother argued that the trial judge did not apply the legislative principles and afforded too much weight to the fact and consequence of the child’s autism when assessing the relevant matters under Family Law Act 1975 (Cth) s 60CC – where the Full Court found that the trial judge weighed and assessed all relevant factors under the legislation in the context of the child’s autism and the other evidence presented to him – no merit found in these grounds of appeal.
FAMILY LAW – APPEAL – CROSS-APPEAL – FINDINGS OF FACT – where the Independent Children’s Lawyer and the mother argued that further evidence from the child’s paediatrician was based on unreliable information from the father and therefore should not have been used by the paediatrician nor relied upon by the trial judge – where it was asserted that fresh evidence of the child’s assistant school principal was inconsistent, and that the trial judge failed to take into account evidence of the parties’ other children and a friend of the mother as to family violence and each parent’s ability to care for the child – where the Full Court found it was open to the trial judge to accept the evidence of the paediatrician, and that there was no relevant inconsistency in the evidence of the assistant school principal – the Full Court was not persuaded that the trial judge in reaching his decision exceeded “the generous ambit within which reasonable disagreement is possible” – no merit found in these grounds of appeal.
FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – where the Independent Children’s Lawyer and the mother argued that the trial judge’s orders restraining either parent from relocating the place of residence of three of their children and requiring both parties to attend all meetings organised by the child’s school were not sought by either party or canvassed by the trial judge with the parties during the course of proceedings – where the Full Court found there had been a clear failure by the trial judge to afford procedural fairness to the parties – appeal and cross-appeal allowed in part on these grounds only and orders set aside.
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SECOND CROSS RESPONDENT:
| Independent Children’s Lawyer for M McGlennan |
|
CROSS RESPONDENT:
| Mr McGlennan |
SECOND RESPONDENT/
CROSS APPELLANT: | Ms Don |
| DATE DELIVERED: | 3 February 2012 |
| JUDGMENT OF: | Thackray, Strickland and Ainslie-Wallace JJ |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 June 2010 |
REPRESENTATION
COUNSEL FOR THE APPELLANT/
SECOND CROSS RESPONDENT:
| Mr Fitzgerald |
| SOLICITOR FOR THE APPELLANT/ SECOND CROSS RESPONDENT: | Elliotts, Barristers & Solicitors |
COUNSEL FOR THE RESPONDENT/
CROSS RESPONDENT:
| Mr O'Donnell |
SOLICITOR FOR THE RESPONDENT/
CROSS RESPONDENT:
| Halfpennys Lawyers |
| COUNSEL FOR THE SECOND RESPONDENT/ CROSS APPELLANT: | Ms McArdle |
| SOLICITOR FOR THE SECOND RESPONDENT/ CROSS APPELLANT: | A. McLaren, Barrister & Solicitor |
ORDERS
(1) The appeal and the cross-appeal be allowed in part.
(2) Orders 7 and 8 made by the Honourable Justice Burr on 3 June 2010 be set aside.
(3) Otherwise the appeal and the cross-appeal be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym
Independent Children’s Lawyer & McGlennan and Anor has been approved by the Chief Justice pursuant to
s 121(9)(g) of the
Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 72 of 2010
File Number: DNC 148 of 2009
| Independent Children’s Lawyer for M McGlennan |
Appellant/Second Cross Respondent
And
Respondent/Cross Respondent
And
Second Respondent/Cross Appellant
REASONS FOR JUDGMENT
INTRODUCTION
- By Notice of Appeal filed 30 June 2010 the Independent Children’s Lawyer appeals against parenting orders made by Burr J on 3 June 2010. The mother also appeals against the same orders by Notice of Cross Appeal filed 19 July 2010.
- The orders appealed against provided that the parties’ youngest child, M, who is autistic, live with the father and that the father have sole parental responsibility for him.
BACKGROUND
- The father was born in 1964 and was 45 years of age at the time of the trial. The mother was born in 1966 and was aged 43 years.
- The parties reside in Darwin.
- The parties entered into a de facto relationship in 1981, and over the next 27 years the parties separated and reconciled on many occasions for differing lengths of time.
- There was a dispute as to the date of the final separation, the father alleging it was in 2004 and the mother alleging it was in April 2009. However, nothing turns on this, given that there is no question that they cohabited until well after 2004.
- The parties have six children. The eldest three, W, X and Y, were aged 26, 25 and 23 years respectively at the time of the trial and no longer reside with either parent. The three younger children, Q, L and M, aged 15, 14 and 9 years respectively at the time of the trial, were initially the subject of the proceedings. During the trial though consent orders were made that Q and L live with the mother.
- In 2004 M was diagnosed with Autism Spectrum Disorder and Global Development Delay and he commenced attending K Special School in 2005.
- From August to November 2008 the mother went to live with the parties’ eldest daughter after the father “threw her out of [the home at A]”.
- M was admitted to hospital on 11 November 2008 suffering from malnutrition and abscesses.
- On 25 March 2009 the parties had an argument that resulted in the removal of the mother by the police. The following day the mother removed M from his school without the father’s knowledge.
- On 26 March 2009 the father filed his initiating application seeking orders that M live with him and that he have sole parental responsibility. A recovery order was issued by Terry FM on 27 March and on 30 March M was located by the police and returned to the care of the father.
- The mother says she left the father for the final time on 16 April 2009, accompanied by their youngest daughter, Q. The mother sought refuge at a women’s shelter and was subsequently provided with a house where she was still living at the time of the trial.
- On 21 April 2009 Terry FM made orders that Q live with the mother and L live with the father. Terry FM also made orders on 19 May 2009 that the mother spend time with M at Centacare once a week.
- In May 2009, after receiving numerous notifications regarding the welfare of the children, the Northern Territory Families and Children Services Department (“NTFACS”) commenced an investigation into allegations of abuse.
- The mother filed a Notice of Child Abuse or Family Violence on 29 May 2009.
- On 16 June 2009 NTFACS took M into the care of the Department after he made disclosures about abuse by the father.
- The mother filed a contravention application on 29 July 2009 alleging that the father failed to facilitate arrangements for M to spend time with her.
- On 2 October 2009 Burr J made orders that the mother spend time with M on a weekly basis, in adherence with M’s established routine so as to minimise any stress it might cause him.
- The father filed a contravention application on 12 October 2009 alleging that the mother had diverted from M’s established routine. On 15 October 2009 Burr J made further orders better identifying M’s routine.
- On 23 April 2010 the father filed an application seeking to reduce the mother’s time with M as he alleged it was causing M to regress in his behaviour. Burr J made orders reducing the mother’s time to fortnightly visits.
- The trial was heard before Burr J from 29 September to 2 October, then continued on 2, 3 and 6 November 2009 and then from 8 to 16 February 2010. His Honour reserved judgment on 16 February 2010.
- On 17 May 2010 his Honour admitted fresh evidence of some “disturbing behaviours” which M had developed.
- Burr J made orders and handed down his reasons for judgment on 3 June 2010.
REASONS FOR JUDGMENT OF THE TRIAL JUDGE
- The trial judge commenced his reasons for judgment by outlining the applications made by each of the parties. His Honour noted that the issues relating to Q and L were resolved during the trial by consent orders that they live with the mother. In summary then, each party sought orders that M live with them and that they have sole parental responsibility for him. Various orders were proposed for M to spend time with the other parent.
- His Honour went on to provide the parties’ background and the history of the proceedings, as set out above.
- The trial judge then outlined the evidence that was presented at trial and his assessment of the witnesses as to credit. Notably, his Honour found the parties’ eldest son W to be an impressive witness, whilst the parties’ eldest daughter X “appeared incapable of acknowledging anything good about her father”. The trial judge found the father was “difficult to manage in a trial sense”, especially prior to the withdrawal of the father’s counsel, however, this did not mean that his evidence could not be relied upon.
- His Honour summarised the evidence presented on the relevant aspects of M’s autism, including evidence given by M’s paediatrician, Dr B, and the assistant principal of M’s school, Ms H. His Honour also outlined the fresh evidence of Dr B and Ms H as to M’s regression in behaviour in April and May 2010, including extracts from notes kept by M’s teachers during February and March 2010. The trial judge concluded that the particular characteristics, features and routines of M’s autism were significant in the determination of the proceedings, indicating that as a result “[m]any of the norms and accepted tenets in the determination of parenting proceedings, do not apply in this case, or are of limited application”.
- The trial judge also outlined the evidence given by Dr B as to M’s other health issues, including his admission to hospital for malnutrition. Dr B reported that none of M’s other health issues could in any way be attributed to neglect by the father and that he had observed “an exemplary relationship between the father and [M]”.
- Turning to the relevant legislation, the trial judge referred to the Court’s approach to the primary and additional considerations set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”).
- In relation to the first primary consideration in s 60CC(2)(a), his Honour cited a number of authorities which considered the meaning of the phrase “meaningful relationship”. His Honour noted that meaningful relationships for M were “beyond the norm” as a result of his autism.
- The trial judge then outlined the expert evidence as to M’s relationship with his parents, including reports by Family Consultants, Mr V and Mr R. In summary, his Honour concluded that M appeared to “enjoy well settled and comfortable relationships with both parents, within the confines of his ability to express and demonstrate same due to his autism”.
- The trial judge went on to outline the evidence as to M’s relationships with his siblings and the evidence given by his siblings about their parents. His Honour also outlined the evidence given by friends of the parties, Ms D and Ms S.
- His Honour again noted the difficulty, due to M’s autism, of determining the benefit to the child of having meaningful relationships. His Honour concluded that the benefit to M of those relationships cannot be seen “in the usual light of the emotional support that such relationships generally provide”, but rather “[i]t is very much more the physical support which then has the incidental consequence of providing the emotional support”.
- In relation to the second primary consideration in s 60CC(2)(b), his Honour firstly outlined Chief Magistrate Bradley’s findings in 1999 that the parties were guilty of violence towards each other.
- The trial judge then summarised the evidence of the father’s violent behaviour given by the mother, the parties’ eldest son, Mr V and Mr ES from NTFACS. His Honour noted that in most respects the evidence of the mother, Q, L and X was corroborated by each other’s evidence, and the evidence of Ms BH, Children’s Support Worker at the Women’s Shelter was “corroborative in a number of respects of the intimidation and violence suffered by the mother and [L], at the hands of the father.” His Honour also outlined Ms D’s affidavit evidence as to violence perpetrated by the father against both the mother and the children.
- Turning to the issue of alleged violence by the mother, his Honour noted the evidence of the parties’ eldest son W, Chief Magistrate Bradley’s reference in 1999 to the mother’s physical mistreatment of X, and the evidence of Court security guard, Mr KN, who overheard the mother threaten the father’s witness, Ms S.
- The trial judge also summarised the police incident reports tendered by the mother in support of her allegations of violence.
- His Honour ultimately concluded that “over an extended period of years, despite a number of occasions when there were robust exchanges between the parties and the mother was guilty of violence to the father and of inappropriate behaviour, she was clearly the victim” and that “there was no excuse for [the father’s] violent, intimidating and threatening behaviour directed not just at the mother, but at times towards some of the children”.
- Turning to the issue of the father’s alcohol and marijuana abuse, the trial judge acknowledged the concerns expressed by the mother, X, Q and L. The father denied that he dealt drugs but admitted he used marijuana, although he claimed that in no circumstances did it impair his ability to care for himself or M. His Honour went on to outline the evidence given by the parties’ eldest son W, the father’s former solicitor, Mr David Story, and M’s school as to the father’s alcohol consumption. The trial judge recorded his own impressions of the father stating that “he gave no outward appearance of being an alcoholic or being someone whose faculties have been diminished by alcohol or drug abuse”. His Honour did however order that the father undergo random supervised drug and alcohol testing, which indicated the presence of cannabinoids and opiates, but no alcohol. The trial judge was satisfied on the evidence that the father occasionally used marijuana and that whilst he had regularly consumed alcohol to excess in the past, he drank less when not in a relationship with the mother.
- Ultimately, the trial judge concluded there was insufficient evidence to suggest that at the time of the trial the father’s consumption of alcohol or use of marijuana seriously impacted upon his capacity to care for M.
- His Honour examined each of the additional considerations in s 60CC(3) of the Act.
- In relation to paragraph (a) the trial judge determined that M’s autism rendered him unable to express any views to which the Court should have regard.
- With respect to paragraph (b) the trial judge found that the father had not done all he could and should have to facilitate the best relationship possible between M and the mother. His Honour also noted in relation to paragraph (c) that the mother did not always follow Court orders as to M’s routine, and thus concluded that “[n]either party appeared capable of demonstrating a willingness and an ability to be child focused and to put [M’s] needs above their own”.
- As a result of M’s autism, the trial judge considered paragraph (d) to be of equal if not greater significance than the primary considerations. Towards the conclusion of proceedings the mother proposed that M live with her during the school week and with the father on weekends, but no details were provided as to how such a transition should occur. His Honour determined that such a proposal demonstrated the mother’s “lack of appreciation of the severity of [M’s] autism and the implications that has for changes in his routines and specifically his living arrangements”. His Honour also noted the father’s demonstrated ability to deliver constancy in M’s routine.
- In relation to paragraph (f) the trial judge found the father had “remained the one constant in [M’s] life” and that, prior to spending regular time with the mother, M had been making encouraging progress and development in the sole care of the father.
- The trial judge went on to consider s 60CC(4) of the Act, particularly noting in relation to paragraph (a) the mother’s failure to indicate interest in M’s education and the fact she had not initiated any application for orders that M live with her (she always responded to applications made by the father). In relation to paragraph (b) his Honour found that the father was at fault for impeding the mother spending time with M.
- Turning to consider s 61DA of the Act, the trial judge determined that it was in M’s best interests for the father to have sole parental responsibility, given that M’s “many problems will require a number of immediate decisions to be made which cannot abide the necessity for detailed, and probably toxic, communication [between the parties]”.
- In summing up, the trial judge acknowledged that “[i]f it were not for [M’s] autism, nearly all relevant factors favour the mother’s application”. However, ultimately his Honour concluded that it was “entirely contrary to [M’s] best interests and in fact potentially dangerous to his health, development and wellbeing that in the foreseeable future he be moved from his father to live with his mother”. On the basis of the evidence presented the trial judge determined it was inappropriate “to experiment with [M’s] welfare by significantly affecting the environment, routine and structure which has been in place for so long”.
ORDERS MADE ON 3 JUNE 2010
- Both the Independent Children’s Lawyer and the mother appeal against orders 2, 3, 4, 7 and 8 made by Burr J on 3 June 2010, which state:
...
- That [M] live with the father who shall have sole parental responsibility for him.
- That save and except as otherwise agreed between the parties, the mother spend time with [M] each Saturday from 10.00 am until 5.00 pm UPON NOTING that:-
- (a) such time shall include a visit to the [C] swimming pool;
- (b) such time shall include time spent at the mother’s residence;
- (c) the mother will arrange lunch for [M] which includes Red Rooster chips.
- That all handovers at the commencement and conclusion of each period of time that [M] spends with the mother shall be conducted at the premises of Catholic Care SAVE AND EXCEPT that in the event that Catholic Care are not prepared to make their facilities available to the parties, then handovers are to be conducted at the main entrance of the S Shopping Centre.
...
- That the parties are restrained and an injunction is hereby granted restraining each of them from relocating the place of residence of the children [Q (“Q”)] born ... October 1994, [L (“L”)] born ... February 1996 and [M] from the greater Darwin area.
- That the parties attend all meetings organized by [M’s] school convened to promote his education, welfare and development and do use all reasonable endeavours to abide the school’s directions and programmes proffered by the school including any suggestion or proposal for [M] to spend more or different time with the mother, [Q] or [L] when the school is of the view that such changes are beneficial for [M] and could be accommodated by him.
...
GROUNDS OF APPEAL AND ORDERS SOUGHT
- The grounds of appeal contained in the Notice of Appeal filed by the Independent Children’s Lawyer on 30 June 2010 are as follows:
- That in the context of the substantive, evidential and factual complexities of the case, the learned Trial Judge failed to give adequate and/or sufficient reasons.
- That the learned Trial Judge failed to afford procedural fairness when making Order 8 of the Orders made 3rd June 2010.
- That the reasons for judgment are marked by substantial and significant errors of fact and/or evidence that it maybe properly inferred that there has been a failure in the exercise of discretion reposed to the learned Trial Judge
Particulars:
- That the learned Trial Judge proceeded on material mistakes of fact;
- That the learned Trial Judge made material findings which were against the weight of the evidence and/or inconsistent with the weight of the evidence;
- That the learned Trial Judge failed to take into account material considerations;
- That the learned Trial Judge placed a disproportionate weight upon extraneous and/or irrelevant matters;
- That the learned Trial Judge failed to apply (and/or in the alternative, misapply), the law and/or appropriate principles applicable to Part VII proceedings;
- That the learned Trial Judge applied and/or proceeded upon erroneous principles.
Particulars:
- By finding that the [sic] most of the usual relevant factors (the considerations under Section 60B and/or Section 60CC) do not apply or are of limited application.
- That the learned Trial Judge made Orders which were not open to him.
- That the learned Trial Judge made orders the consequence of which were not interest [sic] of the child [M McGlennan] born ... September 2000.
- That as a consequence of the errors and failures noted herein the learned Trial Judge’s exercise of discretion is unsustainable on the facts and/or at law and he therefore fell into error in the exercise of his discretion in making the orders he did.
54. At the commencement of the hearing before us counsel for the Independent Children’s Lawyer indicated that Ground 6 was not being pursued, and during the hearing he conceded that Grounds 7 and 8 were no more than “summaries of earlier grounds”.
- With the remaining grounds of appeal we observe that they lack any specificity. Even the so-called particulars provided no insight into the specifics of the complaint being made. Thus, it is necessary to look closely at the written outline of argument to provide the basis for considering these grounds. Unfortunately though that proved a difficult task because the submissions were difficult to follow and we were unable to make sense of parts of them. This applied equally to those aspects of the later submissions presented by the Independent Children’s Lawyer that we were prepared to take into account.
- To explain the latter reference, on 27 May 2011 the Independent Children’s Lawyer filed what was described as a “Reply and Supplement Summary of Argument to First Respondent and Cross Respondent”. There was no warrant to file such a document and particularly just prior to the commencement of the hearing before us. Indeed, none of the other counsel had received it and nor had the father considered it. We adjourned briefly to allow counsel to read the document but ultimately Mr O’Donnell objected to us receiving it.
Ms McArdle did not oppose its reception saying that there was no prejudice to her client, the mother.
- In the circumstances, we determined to receive the document but not to take into account any new matters raised therein where they were not responsive to other submissions or where they sought to augment the initial submissions of the Independent Children’s Lawyer.
- The grounds of appeal as contained in the Notice of Cross Appeal filed by the mother on 19 July 2010 are as follows:
- The Lower Court erred by making orders beyond the purview of the issues in the case before him and or without according the parties natural justice;
- The Lower Court failed to apply and or misapplied the law as set out in Part VII of the Family Law Act 1975 and the principles of law and precedent applicable to the proceedings before it under that Part;
- The reasons for judgment are unreasonable or plainly unjust that it may be properly inferred that there has been a failure properly to exercise the discretion which the law reposes in the Lower Court:
PARTICULARS
(i) The facts of the case do not support the reasons for judgment;
(ii) The Learned Trial Judge made mistakes of facts;
(iii) The Learned Trial Judge proceeded to make material findings based on mistakes of fact and or against the weight of evidence and or inconsistent therewith;
(iv) The Learned Trial Judge allowed extraneous or irrelevant matters to guide or affect his reasoning and or decision;
(v) The Learned Trial Judge failed to take into account matters of material consideration;
(vi) The Learned Trial Judge erred by failing to maintain continuity and consistency in the evaluation process;
- Consequently, the orders made by the Lower Court were not in the best interests of [M McGlennan] born ... September 2000.
59. We observe that these grounds of appeal (and the “particulars”) suffer from the same difficulties that we identified above with the Independent Children’s Lawyers grounds of appeal namely, lack of specificity. Again we need to have reference to the written outline of submissions to understand the specific complaint being made.
- The Independent Children’s Lawyer seeks that orders 2, 3, 4, 7 and 8 made on 3 June 2010 be dismissed.
- The mother seeks that orders 2, 3, 4, 7 and 8 made on 3 June 2010 be set aside and that the cross-appeal be allowed and the case remitted for a retrial.
DISCUSSION
The appeal by the Independent Children’s lawyer
Ground 1
- The challenge here relates to what counsel for the Independent Children’s Lawyer called the “principal argument”, namely the trial judge elevated the child’s autism to being the most important factor to be considered, without providing any adequate or sufficient reason for so doing. In particular, it is said that his Honour did not explain why the evidence of the father’s violence gives way to the fact of the child’s autism.
- There is an obligation upon a judicial officer to provide adequate reasons for his or her decision, and the law with respect to this is well settled. In Bennett and Bennett (1991) FLC 92-191, the Full Court (Nicholson CJ, Simpson and
Finn JJ) said this at 78,266:
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: —
(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments. ...
And further at 78,267:
... At the very least the failure to give adequate reasons places a duty on an appellate court to scrutinise the decision with particular care.
In the absence of adequate reasons, the Full Court is not obliged to uphold a judgment merely because the result may be said to fall within the wide ambit of the Judge's discretion. In general, the appellate Court should be able to discern either expressly or by implication the path by which the result has been reached.
We stress that we are not suggesting that reasons must be extensive. Their adequacy must frequently be judged by reference to the issues raised by the parties at trial. ...
...
The important thing is that the appellate court must be placed in the position of being able to follow the trial Judge's line of reasoning, as must the parties, if they are to be satisfied that justice has been done.
- It is apparent to us that his Honour did sufficiently disclose his reasoning in approaching the case in the way that he did.
- The pivotal paragraphs of his Honour’s reasons are 147 and 151:
- Whilst the Independent Children’s Lawyer was of the view that the two primary considerations were the most significant in the determination of this parenting dispute, it is my view that this sub-section of the additional considerations [s 60CC(3)(d)] is of at least equal significance if not greater significance. That situation arises due to [M’s] autism. As I have recited in detail above, the evidence of [Dr B] and [Ms H] is that [M] simply cannot accommodate change unless it is gradual, carefully managed, properly structured, supported by his parents and patiently applied. Over a long period of time, the father has demonstrated to those experts that he has been able to deliver on constancy in [M’s] routine whilst still exploring [M’s] very limited capacity for development and gradual change.
...
- In my view, the mother’s lack of appreciation of the evidence she heard from [Dr B] and [Ms H] and her lack of appreciation of the severity of [M’s] autism and the implications that has for changes in his routines and specifically his living arrangements, was starkly demonstrated by the proposal she advanced to the Court through her Counsel at the very conclusion of the proceedings. It was the mother’s final proposal to the Court that [M] live with her during the school week from the end of school on the Monday until the commencement of school on the Friday and live with his father every weekend from Friday after school until Monday at the commencement of school. Thus, she is asking that [M] accommodate a massive change in his routine during the week from living with the father to living with her, accompanied with another change on weekends in spending all of that time with the father, having just gotten [M] accustomed to spending some Saturdays with her, [Q] and [M] [sic].
- His Honour did give primacy to the fact and the consequences of the child’s autism, but that was in the context of his Honour considering, weighing and assessing the other relevant matters that he is required to under s 60CC of the Act in order to determine what living arrangements are in the best interests of the child.
- For example, his Honour considered at great length the evidence of violence on the part of both parties that was before him. He even concluded as follows in paragraph 136 of his reasons for judgment:
However, not only am I satisfied on the balance of probabilities, I am left in no doubt that over an extended period of years, despite a number of occasions when there were robust exchanges between the parties and the mother was guilty of violence to the father and of inappropriate behaviour, she was clearly the victim. No matter what provocation the father may have believed that he had, including her alleged and acknowledged infidelities, there was no excuse for his violent, intimidating and threatening behaviour directed not just at the mother, but at times towards some of the children.
- Nevertheless, his Honour determined that the fact of and the consequences of the child’s autism ultimately dictated where the child’s best interests lie, and he set out his reasons for that in some detail in his summary and conclusions (paragraphs 179 and 180).
- Ultimately, as was conceded by counsel for the Independent Children’s Lawyer as well as by counsel for the mother, this challenge was about weight rather than lack of reasons; i.e. whether the trial judge afforded too much weight to the fact and consequences of the child’s autism and too little weight to the factors such as the father’s violence.
- The difficulties confronting the father in succeeding in a “weight challenge” are well known.
- In Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513, Stephen J said at 519–520:
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 Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, Brennan J said at 539-540:
The difficulties in the way of developing guidelines beset an appellate review of the exercise of a discretion under
s. 79. Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made is not just and equitable. How does the Full Court arrive at that conclusion? In
Bellenden (formerly Satterthwaite) v. Satterthwaite [1948] 1 All ER 343 at p.345, Asquith L.J. stated the rationale of an appellate court's approach:
“It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
- Here it has not been demonstrated to us that his Honour in reaching his decision exceeded the “generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong”.
- We are not persuaded that his Honour erred in either giving weight to the fact and the consequences of the child’s autism or in failing to provide adequate reasons for that course.
Grounds 4 and 5
- Counsel for the Independent Children’s Lawyer dealt with these two grounds together because as he said, “they were part of the same argument”. We agree, and it is convenient for us to also address these grounds together.
- The complaint is that his Honour departed from “the statutory imperative”. It was far from clear what was meant by this. Apparently though it is meant to suggest that his Honour did not apply the principles contained in Part VII of the Act, and in particular s 60CC.
- His Honour’s error in this regard is said to be evidenced by what he said in the opening two sentences of paragraph 179 of his reasons for judgment, namely:
However, as I indicated earlier, it is [M’s] autism which throws an entirely different complexion upon the relevant issues in this case. Most of the usual relevant factors and appropriate tenets and principles to be applied in parenting matters, simply do not apply in this case because of [M’s] autism.
- However, his Honour went on in paragraph 179 to provide detailed reasons for this view, and then he concluded as follows in paragraph 180:
I am satisfied that it is entirely contrary to [M’s] best interests and in fact potentially dangerous to his health, development and wellbeing that in the foreseeable future he be moved from his father to live with his mother. It is not a change supported by the evidence of [Dr B] or [Ms H]. The level of change and the potential consequences are so significant and potentially severe for [M] that I consider it to be dangerous to do so. It is inappropriate in the face of the evidence received in the trial of these proceedings, to experiment with [M’s] welfare by significantly affecting the environment, routine and structure which has been in place for so long. This is especially so given the progress that was so recently demonstrated by [M] in 2009. I am satisfied that it is simply not possible presently to replicate in the mother’s care, all of the features of constancy, routine and care provided by the father no matter how devoted to [M’s] care the mother may be.
- In any event, we find this challenge to be baseless.
- In the space of over 50 pages of his reasons for judgment his Honour carefully and painstakingly traversed s 60CC of the Act including addressing in respect of each subsection and paragraph the evidence and the expert opinion specific to the same.
- It can be readily seen that at each step his Honour weighed and assessed the evidence and applied the relevant legislative principles to that evidence. Indeed, how his Honour approached the decision that he had to make in this way was not seriously challenged by counsel for the Independent Children’s Lawyer or counsel for the mother for that matter. What is complained of though by counsel for the Independent Children’s Lawyer is expressed in this way in paragraph 49 of the written outline of argument:
... Yet without discernible nexus his Honour departs, deliberately, from applying the said findings and tenets and principles ... by focussing, it would seem, on a single issue, which can be conveniently described as preserving the status quo. ...
Further, in paragraph 55 of that written outline of argument the following appears:
His Honour, at a number of places, impermissibly and erroneously elevates the import of the underlying fact of the child’s autism to a principal which subjugates the appropriate tenets and framework to be applied in parenting cases ...
- However, the difficulty that we have with that submission is that there is nothing in Part VII of the Act, or in any authority to which we have been referred that says “a single issue” cannot be the determinative factor in deciding where the best interests of a child lie.
- In this case it was obvious that the fact and consequences of the child’s autism would be the issue that would colour and shape the decision-making process. It was not a matter of “elevating” this issue above all others, or “subjugating” the legislative principles to be applied in parenting cases, and plainly this is not what his Honour did. He necessarily weighed and assessed all relevant factors under the legislation in the context of and through the prism of the child’s autism (see paragraph 68 of the reasons for judgment), and he gave particular importance to s 60CC(3)(d) and (f) of the Act (see paragraphs 147 and 157 of the reasons for judgment).
- We agree that it was an unfortunate turn of phrase for his Honour to suggest as he did in the second sentence of paragraph 179 of his reasons for judgment. However, we consider that his Honour was in effect saying that after considering all of the relevant factors the most significant issue here is the fact and consequences of the child’s autism. In so finding we are satisfied that
his Honour did in fact address and apply the principles emanating from the legislation to the complex factual matrix that confronted him.
Ground 3
- The complaint here is that his Honour’s decision is based on “substantial and significant errors of fact and/or findings of evidence”. This complaint was particularised under four headings although in the written outline of argument only three of those were pursued, namely a, b and c, with two of those being dealt with together, namely a and b. It is convenient for us to address this ground in the same way.
Ground 3 a and b
- The factual material identified here as being material which could not support the findings of the trial judge was the further evidence of Dr B and
Ms H, the assistant school principal, admitted on 17 May 2010, and the evidence of the adult child of the parties, W.
- As to the evidence of Dr B, it was to the effect that because of the disturbing behaviour of the child as reported to him by the father, he was recommending “a return to [M’s] previous stable routine in which he is progressing satisfactory [sic]”. The complaint is that because this was information that came from the father it was unreliable, and thus it should not have been used by Dr B to found his opinion which in turn should not have been relied upon by his Honour. Indeed, it is put that the “contention of the father” that “the disturbing behaviour was occurring on Mondays and settling during the week and / or the behaviour was a direct consequence of the Mother’s interaction with the child”, “was not supported by the school as was found by His Honour”. However, that is not quite correct. What his Honour did say in paragraph 63 of his reasons was as follows:
It was the father’s case that most of the examples of [M]’s regressed, angry and violent behaviour were on a Monday following the weekend time spent with the mother. Certainly 7 of the examples quoted above were on a Monday (being 15 February, 22 February, 1 March, 8 March, 15 March,
22 March and 29 March 2010) although the behaviours witnessed on 29 March 2010 followed a weekend when the mother did not see [M]. In any event, it was [Ms H’s] evidence that [M’s] challenging behaviours were not confined to Mondays.
- As to the fresh evidence of Ms H, his Honour summarised in some detail that evidence in paragraph 64. The effect of that evidence is that based on her assessment of the child, the child’s behaviour had deteriorated, his progress had regressed, and the triggers for his poor behaviour were changed. It is said that that evidence “did not support the assertions to [Dr B] by the father”, and his Honour so found in paragraph 63.
- The apparent basis for referring to the evidence of W in this challenge was to suggest that his Honour incorrectly portrayed what W said in evidence about who of his parents could handle the child appropriately. His Honour in paragraph 99 of his reasons for judgment said that it was W’s evidence that it was his father, but the mother submits that that was not W’s evidence.
- We fail to see what material mistake of fact the trial judge has made in relation to this evidence. In our view it was clearly open to his Honour to accept the evidence of Dr B albeit it was based partially on information from the father. Apart from the fact there was no necessary basis to suggest that the father’s information was incorrect, Dr B made his own observations as well, and on which he based his opinion. His Honour was quite sanguine about relying generally on the evidence of the father, and that is not the subject of any challenge on this appeal. Further, there was no challenge to the qualifications and expertise of Dr B, and nor to his evidence generally.
- We also find no relevant inconsistency arising from the evidence of
Ms H.
- In the circumstances, we are far from persuaded that the trial judge “made material findings which were against the weight of the evidence and/or inconsistent with the weight of the evidence”.
- Counsel for the Independent Children’s Lawyer also suggests in his written outline of argument that despite his Honour finding at paragraph 63 of his reasons for judgment that the disturbing behaviour referred to above was “not solely attributed to the mother (as asserted by the father)”, that later in his judgment his Honour failed to deal with “the import of his findings ... particularly regarding the child’s deterioration.” First, his Honour made no such finding as is suggested in paragraph 63 of his reasons for judgment, and secondly his Honour in paragraphs 140 to 146 painstakingly addressed the import of his findings as to the child’s behaviour.
- Thus we can find no error by his Honour here.
Ground 3 c
- The “material considerations” that it is said the trial judge failed to take into account were identified in the written summary of argument of the Independent Children’s Lawyer.
- They include evidence from X alleging the father was violent to the child, evidence from W as to a number of issues such as the father being violent to the mother, the mother having a good relationship with the child, the father’s environment being noisy, and that the mother can handle and look after the child, and evidence from a friend of the mother, Ms D, as to allegations of violence perpetrated upon the children by the father.
- The submissions of counsel for the Independent Children’s Lawyer are that firstly his Honour did not take this evidence into account, secondly he failed to set aside his general reservations regarding X’s veracity, so as to give full weight to her specific evidence as to the violence given that it was corroborated by L and Q, and thirdly his Honour failed to accept the assertion by the Independent Children’s Lawyer that there was positive evidence of the child’s need for change or capacity to accommodate change.
- Plainly, this is another weight challenge and the principles set out above apply here as well. Again though, we are not persuaded that his Honour erred.
- His Honour carefully addressed the evidence of each witness called, and made his assessment of what weight he would give to that evidence. It is apparent that his Honour was impressed with the evidence of W, but not with the evidence of X or Ms D. That of course does not mean that he was obliged to accept all that W said or reject all that X and Ms D said, and it has not been demonstrated to us in what way his Honour has erred in assessing and taking into account their evidence.
- The trial judge enjoyed advantages which we lack. In the High Court’s decision in Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167
(at 178) McHugh J (with whom Mason CJ, Deane, Dawson and Gaudron JJ concurred) referred to “the power of the Court of Appeal” and to the judgment of Lord Sumner in SS Hontestroom v SS Sagaporack [1927] AC 37 (at 47):
...not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge's conclusions of fact should, as I understand the decisions, be let alone.
- In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] HCA 3; (1999) 160 ALR 588, having extensively reviewed the history of “Appellate review of facts”, and the “Emphasis on the duty of appellate review and its constraints”, Kirby J explained “the trial judge’s real advantages”. In the course of his judgment (619, paragraph 90) his Honour said:
The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are the real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge. These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge has been driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified. [footnotes omitted]
- His Honour was extremely mindful of the evidence given as to the issue of violence, and as referred to above his Honour accepted that the father exhibited “violent, intimidating and threatening behaviour directed not just at the mother, but at times towards some of the children”. Thus, in our view, it cannot be said that his Honour failed to take the evidence of this behaviour into account.
- Likewise his Honour was satisfied that the child enjoyed “well settled and comfortable relationships with both parents”, including obviously the mother, and his Honour plainly took this into account.
- His Honour was also very much alive to the issue of the respective ability of each of the parties to care for the child given his autism, and more particularly their respective ability to handle the child when his environment, routine and structure had changed. In that context, it was clearly open to his Honour to make the finding that he did in paragraph 180 of his reasons for judgment, and again it has not been demonstrated to us that his Honour has erred in this regard. Once again we are not persuaded that his Honour, in reaching his decision, exceeded “the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong”.
Ground 2
- It must again be said that the written summary of argument by the Independent Children’s Lawyer was extremely difficult to follow. It ignored the Rules of Court and also failed to deal discretely with each ground of appeal, with the most glaring omission being this ground.
- Fortunately, the mother addressed this issue in her written summary of argument in support of Ground 1 of her cross-appeal. She also expanded the ground to encompass a challenge to Order 7 as well.
- The complaint is straightforward, namely, that “the proposed orders were not canvassed by the learned trial judge with the parties during the course of the proceedings, nor was it [sic] proposed by the parties and accordingly procedural fairness was not afforded.”
- It is beyond doubt that neither party sought either Order 7 or 8, there is also no question that his Honour failed to raise with either party that he was contemplating making such orders, and he certainly did not seek submissions about that prospect. There was a question of whether there should be a round table discussion involving the parties and the relevant Department, and during the course of the hearing the father in person and the mother through her solicitor indicated that they would be willing to partake in such an exercise, but as can be seen the terms of Order 8 went much further than this.
- The requirements that parties be afforded procedural fairness is a well-established principle recognised in general law. The principle is succinctly summarised in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 by Mason J at 582:
It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it: ...
- Here there has been a clear failure by the trial judge to afford procedural fairness to the parties and there is merit in this challenge.
- We also observe that with Order 7 the injunction extends to the children Q and L who were not the subject of these proceedings. Thus, in any event, that part of the order cannot stand.
The cross-appeal by the mother
- With Ground 1, the challenge is to Orders 7 and 8 made by his Honour.
- In relation to Order 8 that was also the subject of Ground 2 of the appeal by the Independent Children’s Lawyer, and in addressing that complaint we dealt with Order 8 as well and we do not need to say any more. We have found that
his Honour failed to afford procedural fairness in making those orders, and the appeal should be allowed to that extent.
- In relation to Ground 2, that raises the same complaint as Grounds 4 and 5 of the appeal by the Independent Children’s Lawyer, and accordingly must suffer the same fate.
- Turning to Ground 3, that is a ground which is difficult to follow. In the opening words it challenges the exercise of discretion in the way outlined in the well-known High Court decision of House v The King [1936] HCA 40; (1936) 55 CLR 499. However, there are then particulars provided which signify that there are in fact discernible specific errors by the trial judge which make it unnecessary to rely on the inference in the opening words. This is highlighted by how the High Court expressed it in House v The King, namely, as follows (at 504):
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
- In any event, we find that there is no merit in this ground of appeal, on whichever basis it is put, be it the general or the specific.
- The particulars cover the same ground as was raised by the Independent Children’s Lawyer in Ground 3 of her appeal, and again must suffer the same fate. We observe though that despite it being suggested by the mother that
his Honour made “material mistakes of fact” the mother’s counsel in effect conceded before us that the complaint was not about mistakes of fact but “about weight”. That brings into play the principles from the authorities referred to above, and as we have found with the appeal by the Independent Children’s Lawyer we are not persuaded that “the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong”.
CONCLUSION
- We have found merit in the appeal and the cross-appeal insofar as they challenge Orders 7 and 8 made by his Honour. Thus, the appeal and cross-appeal should be allowed in part and Orders 7 and 8 set aside, otherwise the appeal and cross-appeal must be dismissed.
- Given that we propose to allow the appeal and the cross-appeal against Orders 7 and 8 as a result of a lack of procedural fairness in that neither party sought those orders, we do not either need to re-exercise the discretion or remit the proceedings to the Family Court of Australia; the orders can simply be set aside.
COSTS
- At the conclusion of the hearing we sought submissions as to costs.
- In the event that the appeal and the cross-appeal were successful no order for costs was sought, but costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) were applied for.
- There is a real issue as to whether a costs certificate can be given to the Independent Children’s Lawyer, but we do not need to decide that here because we are not persuaded that in allowing the appeal against just Orders 7 and 8 it is appropriate to order costs certificates.
I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland and Ainslie-Wallace JJ) delivered on 3 February 2012.
Legal Associate:
Date: 3 February 2012
