SANDWELL & SANDWELL

[2019] FamCAFC 24

FAMILY COURT OF AUSTRALIA

SANDWELL & SANDWELL [2019] FamCAFC 24

FAMILY LAW – APPEAL – PARENTING – Change in living arrangements – Single expert report – Father’s psychiatric health – Whether the primary judge erred by relying on assertions of risk of harm posed by the father’s psychiatric health in the single expert report as a basis for changing the older child’s residence – Where the primary judge determined parental responsibility and with whom the children would live based on the children’s strong attachment to the mother, the lack of a risk to them in her care and the desirability of the children living together – No error demonstrated.

FAMILY LAW – APPEAL – PARENTING – Supervised time – Where the primary judge ordered that the children spend supervised time with the father – Where the primary judge took into account the single expert’s opinion in ordering supervised time – Where any risk posed by the father’s psychiatric health could not be ameliorated by an order for supervision – Error demonstrated – Appeal allowed in part – Order for supervised time set aside – Interim parenting orders made in lieu by consent.

Family Law Act 1975 (Cth) ss 60CC, 61DA(4)

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42

APPELLANT: Mr Sandwell

RESPONDENT: Ms Sandwell

INDEPENDENT CHILDREN’S LAWYER: Foat Roberts Lawyers

FILE NUMBER: NCC 3665 of 2017

APPEAL NUMBER: EA 149 of 2018

DATE DELIVERED: 15 February 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace, Ryan & Aldridge JJ

HEARING DATE: 5 February 2019

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 26 October 2018

LOWER COURT MNC: [2018] FamCA 1030

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Cummings SC with Ms Lioumis

SOLICITOR FOR THE APPELLANT: Mullane & Lindsay

COUNSEL FOR THE RESPONDENT: Dr Barnett

SOLICITOR FOR THE RESPONDENT: Legal Aid New South Wales Newcastle Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Foat Roberts Lawyers

Orders

IT IS ORDERED:

1. The appeal against the orders made by Austin J on 26 October 2018 is allowed in part.

2. Orders 4, 5 and 6 made by Austin J on 26 October 2018 be set aside.

BY CONSENT IT IS ORDERED:  

1. In lieu of the orders 4, 5 and 6 dated 26 October 2018, that the children shall spend time with the father on Friday and Sunday from 10.00 am to 4.00 pm in accordance with the availability of H Contact Centre, F Centre or Relationships Australia (“the changeover facilities”), or at other times as agreed between the parties and in accordance with the changeover facilities, with the father to nominate his preferred changeover facility.

2. That the father shall be responsible for the costs of the changeover facilities.

3. That the parties do all things and sign all documents forthwith, and in any event within twenty-four (24) hours, for the changeover facilities to facilitate changeover. 

IT IS FURTHER ORDERED:

1. The appeal is otherwise dismissed.

2. That the appellant pay the costs of the Independent Children’s Lawyer fixed in the sum of $2,100.00 within twenty-eight (28) days of the date of these orders.

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 Sandwell & Sandwell 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 149 of 2018
File Number: NCC 3665 of 2017

Mr Sandwell

Appellant

And

Ms Sandwell

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This is an appeal against interim parenting orders made on 26 October 2018 by a judge of the Family Court of Australia.

2. Mr Sandwell (“the father”) and Ms Sandwell (“the mother”) have two children, X born in 2016 and Y born in 2017 (“the children”).

3. The orders the subject of the appeal provided for both children to live with the mother who was to have sole parental responsibility for them.  They were to spend time with the father twice a week for three hours supervised at a contact centre.  The parties were restrained from denigrating the other in the presence or within the hearing of the children and from permitting the children to remain in the presence of another person doing so.  The father was restrained from videoing or photographing the children for the purpose of verifying any physical injury.

4. The father appealed against the above orders, except for the two injunctions.

5. The Amended Notice of Appeal also appealed against the making of an injunction restraining the father from approaching within 100 metres of the mother’s residence.  The grounds of appeal did not address this order and no submissions were directed to it other than for the father to say, in passing, that he did not know where the mother lived and was worried about inadvertently contravening the order. We shall take it no further.

6. The father’s appeal was expedited and heard on 5 February 2018.  It was opposed by the mother and the Independent Children’s Lawyer (“the ICL”).

7. Towards the close of the submissions, the parties agreed that the appeal against the order providing for supervision must succeed because the finding at [38] of the reasons was not available on the evidence which, in turn, affected the assessment of risk the father was said to have posed to the children. We agree such an error was made. On the application of the parties we allowed the appeal in part, set aside Orders 4, 5 and 6 and made the following orders:

   BY CONSENT IT IS ORDERED:

   (3)In lieu of the orders 4, 5 and 6 dated 26 October 2018, that the children shall spend time with the father on Friday and Sunday from 10.00 am to 4.00 pm in accordance with the availability of H Contact Centre, F Centre or Relationships Australia (“the changeover facilities”), or at other times as agreed between the parties and in accordance with the changeover facilities, with the father to nominate his preferred changeover facility.

   (4)That the father shall be responsible for the costs of the changeover facilities.

   (5)That the parties do all things and sign all documents forthwith, and in any event within twenty-four (24) hours, for the changeover facilities to facilitate changeover.

8. We otherwise dismissed the appeal; that is, we dismissed the appeal against the orders for sole parental responsibility and that the children live with the mother.  These are our reasons for doing so.

Background

1. In order to understand the grounds of appeal it is necessary to set out some of the history of the parties and the matter.

2. The parties separated in August 2017 when the mother left Australia, leaving X in the care of the father.  She returned in late October 2017.  She commenced proceedings in the Federal Circuit Court of Australia in November 2017.

3. Y was born shortly thereafter.

4. A number of interim parenting hearings took place.  It is sufficient to record that on 9 May 2018 orders were made for the parties to have equal shared parental responsibility for the children.  X was to live with the father and spend time with the mother from 11 am Monday until 5 pm Tuesday and 1 pm Thursday until 5 pm Friday.  Y was to live with the mother and spend time with the father twice a week for two hours each Monday and Thursday.

5. On 17 May 2018 an order was also made for the preparation of a report by a single expert psychiatrist.  It was released to the parties in early October 2018.

6. On 11 October 2018, Rees J made the injunctions as to non-denigration and photographing in the same terms as those we have set out earlier.

The appeal

1. The Amended Notice of Appeal raised five grounds of appeal.

2. Grounds 1(b), (c) and (d) were not pressed.

Grounds 1(a), 2 and 3

1. Grounds 1(a), 2 and 3 were argued together.  The complaint made, although presented in different iterations, was that the primary judge impermissibly entirely adopted and acted upon the report of the single expert, despite that report being disputed and, it was submitted, fundamentally flawed.

2. We do not accept the premise of the challenge and therefore do not need to consider the nature of the report and the asserted flaws.  We do not consider that the challenged orders were made taking into account the risk of harm to the children posed by the father that was suggested by the single expert.

3. As it was the primary focus of submissions and the parties, the primary judge referred to the single expert report at some length in his discussion of the matters to be considered under s 60CC of the Family Law Act 1975 (Cth) (“the Act”).

4. The primary judge said:

   23.At those interviews, the single expert found the eldest child appeared comfortable and relaxed in the mother’s presence, but he noted she asked to see the mother several times when she was observed in the father’s company. As for the youngest child, she was observed to be relaxed and comfortable in both the mother’s and the father’s presence. 

   24.The conclusions formed by the single expert about the children’s attachments with the parents, the meaningfulness of those relationships, and the benefit derived from them, appear encapsulated at page 24 of the single expert’s report. The single expert concluded:

   Both children had a strong emotional bond and attachment to the father and the mother. The children appeared comfortable and attached to both the father and the mother. From my psychiatric observation of the children with either parent, I found the children were more attached to the mother.

   …

   63.One other aspect of the evidence, remarked upon by the single expert as important, is the sibling relationship between the two children. The single expert said simply and frankly:

   It is in the children’s best interests to live with each other. I recommend that both children live with the mother. 

5. His Honour then turned to the issue of the psychiatric health of the father. His Honour summarised the medical history of the father and recorded the single expert’s diagnosis of a delusional disorder. In short, the delusional belief that was relevant was that the mother was harming the children.

6. The primary judge then turned to the conclusions to be drawn from the evidence and at [65] and [66] found that, in accordance with s 61DA(4) of the Act, the presumption in favour of equal shared parental responsibility was rebutted by the evidence that demonstrated that the parents could not “co-operate, civilly discuss, and reach consensus upon important issues related to the children”.

7. The reasons continued:

   67.As was opined by the single expert (on page 27 of the single expert report), sole parental responsibility for the children, at least in respect of all significant matters in their lives, should be allocated to the residential parent. The single expert suggested that should be the mother and I agree.

   68.In summary, although the children have meaningful relationships with both parents from which they derive benefit, I accept for present purposes that the children’s attachment to the mother is stronger. I do not accept the children are at any tangible risk of harm through either the mother’s abuse or neglect.  In my view, the children are best served by living together with the mother so their sibling relationship can be consolidated at their young age.  For those reasons, I intend to order that the mother be vested with sole parental responsibility for all significant decisions in the children’s lives, order that the children live with her, and order that the children spend time with the father.

8. It follows that the primary judge’s decision as to parental responsibility was based on the children’s strong attachment to the mother, the lack of a risk to them in her care and the desirability of the children living together.  The decision was not based on any consideration of a risk of harm posed by the father.

9. In contrast, when discussing whether or not there should be supervision of the time the children spend with the father, his Honour said:

   69.I have struggled with the decision as to whether the time spent by the children with the father should be supervised or not. I am disinclined to react impulsively to the untested evidence of the single expert, particularly in circumstances where I am told the expert evidence is the subject of dispute. But, adverting to the comments of the Full Court in Salah & Salah, Eaby & Speelman, and Whitby & Zeller, although I cannot and will not make findings about the extent of the father’s psychological troubles at this point in time, the issue seems to be serious enough to pay heed to it as a risk which warrants a cautious approach. His psychological instability seems to pre-dispose him to erratic responses to the children’s interaction with the mother. On balance, I therefore intend to impose a condition of supervision.

10. There, unlike the earlier paragraphs, his Honour referred to and took into account the single expert’s opinion as to the father having a delusional disorder which could adversely affect the children, noting that it was disputed and recording that he could not and would not make findings one way or another. However, the primary judge considered the risk that had been identified justified taking a cautious approach to the issue of supervision.

11. Thus, in contrast to the discussion of the issue of supervision, on the face of the reasons, the opinion of the single expert in relation to the mental state of the father played no part in the decision as to parental responsibility or that the children live with the mother.

12. Faced with this understanding of the primary judge’s reasons, the father submitted that despite what was said in those reasons, the primary judge had, in fact, accepted the single expert’s evidence as to the risk of harm the father posed to the children.  It was submitted that this could easily be inferred because only the risk identified by the expert could have justified the order moving the residence of X; it could not be explained merely by reference to a stronger attachment to the mother and the desirability of the children living together.

13. This is a difficult submission to establish because it flies in the face of the clear statements of the primary judge.  That, of course, is not a complete answer, but courts of appeal do not lightly infer that a trial judge did not follow the path of reasoning expressly stated by him or her.

14. In this case, the children were young.  The evidence was that it was in the best interests of the children to live together.  At no stage did the father propose that Y live with him.  Thus, the choice faced by the primary judge was to make orders for X to continue to live with the father, as she had done for the last 14 months, and Y to live with the mother or for both children to live together with the mother.

15. We consider that the matters to which the primary judge referred were capable of supporting the orders for the children to live with the mother, accepting that this was a significant change in the living arrangements for X.

16. The children, according to the single expert, “evinced a strong and close emotional bond to each other” (single expert report, p.25).   

17. It is evident from the passages of the reasons to which we have referred that the primary judge gave significant weight to this consideration, as he was entitled to do. We consider that his Honour’s decision can be amply supported by the matters he indicated were taken into account.

18. It follows that the only significance the primary judge attached to the father’s behaviour identified by the single expert was to take it into account on the issue of supervision and not otherwise.

19. In short, we are not persuaded that the orders the subject of this challenge were predicated on acceptance of the evidence of risk of harm.  It follows that the grounds cannot be made out.  It is not necessary, therefore, to consider whether or not the single expert’s report was flawed in the manner suggested by the father.

20. These grounds do not succeed.

Ground 4

1. Ground 4, which asserts that the primary judge erred by failing to take into account the injunctions as an appropriate way of dealing with the risk of harm, falls away for the above reasons.

Ground 5

1. Ground 5, which was described as a challenge to the adequacy of the primary judge’s reasons, can be dealt with shortly.

2. The basis for the change of residence clearly emerges from the primary judge’s reasons at [68] as quoted above.  Although brief, they explain why the orders were made and are therefore adequate (Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267).

3. The father also submitted that the reasons were inadequate because they did not deal with the following issues:

   ·X had lived with the father for 14 months without difficulty or any problems arising; and

   ·No attention was given to the effect on X of the change of residence.

4. The father did not address any submissions on these issues to the primary judge and it is therefore not surprising that they were not the subject of discussion over and above the satisfactory nature of the child’s relationship with the mother (SCVG & KLD (2014) FLC 93-582 at [78]). As they were not raised, the primary judge did not err by failing to determine them.

Application to adduce further evidence

1. It remains to add that the father sought leave to file an Application in an Appeal seeking to adduce further evidence in relation to the single expert’s report.  As the proposed evidence was relevant only to the risk of harm, there is no need to address the application for leave further.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) delivered on 15 February 2019.

Associate: 

Date:  15 February 2019