Wunscher & Licha [2008]

FAMILY LAW - APPEAL – From decision of Family Court Judge – CHILDREN – The central question for the trial Judge was the time the child is to spend with each of her parents and who should have parental responsibility for her – Child had lived with the mother and spent irregular time with her father – Previous orders were made for the child to spend continuing time with her father – In earlier proceedings the mother alleged sexual abuse of the child by the father – In the proceedings which are appealed against, the trial Judge ordered that child live with the father and that he have sole parental responsibility for her – The mother was restrained from contacting or communicating with the child save as to when, in his discretion, the father arranged for time to be spent by the child with her mother and whether or not it was to be supervised – Mother appealed all orders – Basic challenge on appeal goes to the allocation of parental responsibility, the residential arrangements and absence of provision for the mother to spend time with the child – The appeal challenges the order that the mother bear the costs of any supervision and an order providing for the arrest of the mother without warrant, should she remove the child from the father’s possession – The mother seeks equal shared parental responsibility, with the child living with her and spending time with the father

FAMILY LAW - APPEAL – From decision of Family Court Judge – CHILDREN – Appeal against the exercise of the trial Judge’s discretion – Generic grounds of appeal – Complaints amounted to the proposition, not that the conclusion of the trial Judge was not open, but that another conclusion should have been reached – Merit found in one ground of appeal relating to the fact that the mother was not given any notice of a proposal that provision be made for her arrest without warrant

FAMILY COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1) That the appeal be dismissed.
(2) That the mother pay the father’s costs of and incidental to the appeal as agreed, and in default of agreement, as assessed.

IT IS NOTED that publication of this judgment under the pseudonym Wunscher and Licha is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Appeal Number: SA 24 of 2008
File Number: MLF 6928 of 2003

Appellant

And

Respondent

REASONS FOR JUDGMENT

1. Mr Licha and Ms Wunscher have a daughter, born in 1999, now nine years of age. In February 2008, issues about their daughter’s parenting arrangements were litigated before Brown J. In her reasons for judgment delivered in early March 2008 in respect of those issues, Brown J said:
   1. ... The central questions for the court are the time [the daughter] is to spend with each of her parents and who should have parental responsibility for her.
   2. Until 30 August, 2007, [the child] lived with the mother ... , in [T]. Her contact with her father had been fractured and irregular, despite numerous orders aimed at normalising it. On 30 August, 2007 Bennett J. ordered that [the child] spend continuing time with the father, an order confirmed by Carter J. on 13 September. [The child] moved to live with her father and his wife, ... .
   3. In earlier proceedings the mother alleged the father had sexually abused [the child]. Those allegations were, in theory, abandoned when final parenting orders were made on 14 February, 2007 but, as the evidence before me demonstrated, the abandonment was notional, rather than real.
2. Brown J ordered that the child live with the father and that he have sole parental responsibility for her. The mother was restrained from contacting or communicating with the child save in accordance with other orders and:

6. That it be within the absolute discretion of the father to determine :

(a) whether the mother may spend time with [the child], and the time, duration and place at which that may occur;

(b) whether any such time be supervised and if it is :

(i) the nature of such supervision; and

(ii) the identity of the supervisor;

(c) whether the mother can have telephone communication with [the child]; and

(d) the nature and extent of any such telephone communication;

and unless the parties agree to the contrary, the costs of any supervision of the mother’s time with [the child] be borne by the mother.

1. These reasons are in respect of the mother’s appeal, which, on its face, goes to all of the twenty-seven orders made by Brown J, but which basically challenges the allocation of parenting responsibility, the residential arrangements and absence of provision for the mother to spend time with the child. As well, the appeal challenges the order that the mother bear the costs of any supervision and an order providing for the arrest of the mother without warrant, should she remove the child from the father’s possession.
2. In the Notice of Appeal, the mother seeks an order that the parents have equal shared parental responsibility and that the child live with the mother and spend time with the father. In oral submissions, Mr Combes, counsel for the mother, asked that the parenting issues be remitted for rehearing.
3. The grounds of appeal are generic and familiar. They assert, without particulars, that the trial Judge erred in the exercise of her discretion, acted on wrong principles, allowed extraneous and/or irrelevant matters to guide her, made errors of fact, failed to take into account sufficiently, or at all, material considerations, made orders that are unreasonable and plainly unjust and failed to give sufficient reasons. They provide no direction to the appeal.
4. Some particularity emerges in the written summary of argument. There, about thirty-five assertions are made, arranged under the appeal grounds.
5. Notwithstanding the terms of those assertions – and leaving aside the challenge to the order for arrest without warrant (as to which there were no written submissions) – in no instance were we taken, either in the written or oral submissions, to any finding of fact or conclusion for which there was no evidentiary support, or, in the reasons for which, Brown J took account of some irrelevant matter.
6. In almost all instances, when complaints became focused during oral submissions, they amounted to the proposition - not that the conclusion of the trial Judge was not open – but that another conclusion should have been reached. A number of the conclusions contended for were, in our view, improbable.
7. As the appeal is against an exercise of discretion, it might well be disposed of without more. However, the orders made have an extreme effect on the involvement of the mother in the parenting of the child and it may assist the mother if we demonstrate by more expansive discussion the extent of our scrutiny of the trial Judge’s reasons for judgment.
8. Those arguments that we intend to further address are:
   • that either the trial Judge failed to appreciate that the likely result of her orders would be that the mother would spend no time with the child, or if she did appreciate that, it was an unreasonable result and/or one not adequately explained;
   • that the trial Judge confined the exercise of her discretion to the consideration of the potential effect on the child of either having unsupervised contact with the mother or no contact with the mother, whereas she should have addressed the mother’s proposals for supervised contact;
   • that the trial Judge erred in the exercise of her discretion in finding that the chances of any success of orders providing for unsupervised time between the mother and the child were negligible, despite the fact that the child had been living with the father for the previous six months;
   • that the trial Judge incorrectly applied the principles in Watson & Morton [2007] FamCA 497; [2007] FLC 93-331 and Rice & Asplund (1979) FLC 90-725;
   • that the finding that the mother would contravene an order if she believed there to be a good reason to do so, should not have gone against the mother as it stated no more than the defence of reasonable excuse referred to in s 70NAE of the Family Law Act 1975 (Cth);
   • that the trial Judge failed to adequately explain the nature and degree of risk to the child from unsupervised contact and to balance any risk against the benefit of the maintenance of a mother/child relationship;
   • that the trial Judge failed to consider the mother’s capacity to pay the costs of supervision; and
   • that the mother was not given any notice of a proposal that provision be made for her arrest without warrant.
9. We will return to these contentions after an outline of the approach taken by Brown J.
10. At trial, the father was legally represented, the mother not. An Independent Child’s Lawyer participated in the trial. The Independent Child’s Lawyer supported the father’s request that the child live with him and that he have sole parental responsibility.
11. The Independent Child’s Lawyer has not taken part in the appeal.

The approach taken by Brown J

1. In her reasons for judgment, Brown J commenced by noting that the child:
   1. ... was two when her parents separated under the one roof, and three at the time of their physical separation. She was still three when her father filed an application in the Federal Magistrates’ Court, seeking a shared parenting arrangement. She is now eight. Litigation between her parents has consumed much of the intervening years. Her history, and that of her parents, has been rehearsed in numerous reports and earlier judgments. So, too, has some of the evidence now before me. ...
2. At 79 pages in length, Brown J’s reasons represent a further lengthy review and attempted resolution of these parties’ difficulties. Whether that review was adequate is something that the appeal questions.
3. After, as earlier noted, recording that the child moved to live with the father following Carter J’s orders on 13 September 2007, Brown J outlined the mother’s subsequent time with the child:
   1. ... [The child] had supervised time with her mother at [G] until 30 November, 2007. The mother then refused to spend further time with [the child] at [G]. She has not seen [her daughter] since 30 November, 2007.
4. After some further short background and discussion of legal principles, her Honour reviewed the evidence. That of the Independent Child’s Lawyer included the evidence of Ms W, a family consultant, who had prepared five reports between mid-2004 and March 2006, as well as given lengthy evidence before Bennett J on 29 August 2007 and further evidence before Carter J on 13 September 2007. Dr R, a child and adolescent psychiatrist, appointed as a single expert witness, had given a report in relation to the child in November 2006 and, pursuant to orders of Guest J in February 2007, had played a continuing therapeutic role for the child. Dr A, a psychiatrist, had prepared psychiatric assessments of the parties. A co-ordinator of the services which facilitated contact and an educational psychiatrist at the child’s school also provided evidence at the request of the Independent Child’s Lawyer.
5. In recording the proposals of the parties, Brown J noted that both the father and the Independent Child’s Lawyer had proposed supervised contact and that the mother have liberty to seek unsupervised time with the child, if that was supported by a report from her psychiatrist, but that no application be made before 31 December 2008. Brown J did not accede to that proposition. Her treatment of that proposal is the subject of the argument that she incorrectly applied the principles in Watson and Morton (supra) and Rice and Asplund (supra).
6. While the mother’s primary submission was that the child should return to her care, she sought that if the child continued living with the father she have unsupervised time with the child, increasing until it became an equal sharing of the child’s care. The further alternative proposal of the mother was expressed by Brown J as follows:
   1. ... Were the court not prepared to make orders in those terms, there should be a regime of structured supervised contact, but with a supervisor of the mother’s choosing with whom [the child] was comfortable.
   2. Although the third proposal paid lip service to supervision, the mother submitted that during any periods of supervised time she should be free to go alone to [the child]’s school and curricular activities, ....
7. As to her assessment of persons significant in the child’s life, Brown J did not doubt the father’s commitment to the child having a continuing relationship with her mother. She thought the father’s current wife an impressive witness. Of the mother, Brown J said:
   1. Aspects of the mother’s evidence were inconsistent and illogical and she tended to reconstruct the evidence of others to suit the case she would like to make, something not unusual in a litigant who represents him or herself. Similarly, she tended to rely on one small piece of evidence, ignoring the context in which it was given, and attempt to build on that slender foundation an edifice supportive of her case.
8. The trial Judge recorded that Dr G, the mother’s treating psychiatrist, described the mother as someone with only partial insight and limited self understanding. She appeared to have an exaggerated sense of entitlement. Dr G diagnosed the mother as having a narcissistic personality disorder.
9. After detailed discussion of a great many incidents and events, from which her Honour drew conclusions which will be discussed so far as is necessary, later, her Honour turned to the mother’s past allegations of sexual abuse and present belief about that abuse:
   1. The court could have no confidence that the mother would accommodate and facilitate any form of unsupervised contact between the father and [the child], notwithstanding proposals advanced by her. On at least three occasions (26 May, 2003, 12 December, 2003 and 14 February, 2007) the mother consented to orders which provided for such unsupervised time. On each occasion, contact faltered, and ceased, at or soon after orders were made. The evidence satisfies me that the mother simply could not tolerate sending [the child] to stay at her father’s home overnight or for lengthy periods, because she believes him to be a paedophile. The chances of any orders in those terms succeeding are negligible.
10. After setting out principles relating to the approach to cases in which allegations of abuse arose, her Honour examined the history of the allegations and concluded:
    1. Considering all the evidence now before me, including the mother’s evidence of things said and done by [her daughter], as well as the evidence of the experts who have seen [the child], and the father’s evidence, I have no hesitation in finding that I am not satisfied the father has sexually abused [the child]. No court can ever assert that there is no risk a child will be harmed in a parent’s care. On the evidence before me I am satisfied that it is highly improbable [the child] is at any risk of sexual abuse when with her father.
11. Brown J next made findings in respect to the primary considerations set out in s 60CC of the Act and those of the additional considerations she found relevant. In only part of a detailed, careful discussion, she said:
    1. The father, [his current wife], Dr. [R] and Ms. [W] were all in agreement. Ideally, both of [the child]’s parents should have a meaningful involvement in her life. The dramatic improvement in [the child]’s psychiatric state since moving to live with her father must not be disrupted. The way the mother speaks and interacts with [her daughter] represents a psychological risk. The only way forward is to show that supervised contact can work and then build on that, initially, to more freedom within a supervised context, then unsupervised.
    2. The evidence which supports these propositions is overwhelming. For convenience, I will deal with relevant aspects of this evidence when considering the additional considerations, including s.60CC(3)(d), but make very clear the importance to [the child] of having a meaningful involvement with both parents, providing she can be protected from psychological harm.

...

1. I do take into account [the child]’s expressed unhappiness at not seeing her mother and the observations of Dr. [R] and those at [G], indicative of the grief and sadness [the child] feels at the loss of her mother. I act on the basis that [the child] would dearly love to spend time with her mother.

...

1. While the father can acknowledge the significant relationship [the child] has with her mother, the mother cannot genuinely acknowledge the father’s relationship with her. ...

...

1. I have earlier found that the father is willing to facilitate and encourage a close and continuing relationship between [the child] and the mother. He has acted on professional advice. The current advice is that it is not presently in [the child]’s best interests to have unsupervised time with her mother.

...

1. I am satisfied that the father has the capacity to provide for [the child]’s emotional needs. I am confident he will continue to accept advice from professionals and to ensure she sees Dr. [R] and any other counsellors or medical practitioners suggested. He has undertaken a parenting course at [G] and is prepared to do another such program. [The child]’s progress since coming into his care is illustrative of his capacity to provide for her emotional needs, as well as her physical and intellectual needs.
2. The mother’s attachment with [the child] has been strong; she was her primary carer for many years and, I do not doubt, has always been solicitous about her daughter’s health and well-being. That said, I cannot find that she has been able to put [the child]’s emotional needs ahead of her own and she may not have the capacity to differentiate between them.
3. The mother showed a disconcerting tendency to attribute to [the child]’s health problems experienced by her and undesirable traits (in the mother’s eyes) of the father. ...

...

1. At the heart of the mother’s inability to understand the damage she is doing to [her daughter] is an incapacity to accept anything done or said by [the child] which is not consistent with her view. When cross-examined by the mother, Dr. [R] said that he thought it was hard for her to let [the child] say what [she] wanted to say and that the mother was imposing her psychological world onto [the child]. The mother’s evidence, cross-examination and submissions illustrate the ongoing nature of this problem.
2. Other parts of her Honour’s reasons, and the ultimate expression of her conclusions, will be set out later.
3. We turn to the main points raised in argument.

That either the trial Judge failed to appreciate that the likely result of her orders would be that the mother would spend no time with the child, or if she did appreciate that, it was an unreasonable result and/or one not adequately explained

1. This proposition, put in oral argument, is in part inconsistent with the first argument formulated in the written summary of argument, which is the second point set out earlier, as follows:

That the trial Judge confined the exercise of her discretion to the consideration of the potential effect on the child of either having unsupervised contact with the mother or no contact with the mother, whereas she should have addressed the mother’s proposals for supervised contact

1. It was also submitted that it was open to the trial Judge to order that there be no further supervision between the mother and child. In relation to this last point, even if true, that does not demonstrate that the rejection of such an avenue constitutes appellable error.
2. There is no validity in any of these arguments, as emerges from the following passages of Brown J’s reasons:
   1. From the outset of the trial, the mother’s position was clear, and consistent with her mother’s advice to Ms. [P]. She would not see [the child] at [G], under any circumstances. If that meant that she did not see her at all, so be it.

...

1. The mother could not or would not concede that it would be better for [the child] to see her at [G] than not to see her at all. She was and remained adamant. She would not see [the child] at [G].
2. Orders sought by the father and the ICL provided for supervision (after a further period at [G]) by one of two named commercial supervisors, being Ms. [H] and Community Services.
3. Asked about commercial supervision (that is, using a paid, professional supervisor, who could supervise in locations in the community) the mother was initially more ambivalent but, eventually, just as adamant. She said it would involve other people and so would be more complex; it would be dependent on availability; there would be questions about the credibility of the supervisors and whether they were objective towards her rather than biased; it was a tenuous exercise; some professional businesses could have affiliations with religious groups or with social workers, or organisations like SECASA which, the mother believes, is affiliated with the Salvation Army because both organisations have offices in the same building.
4. In the witness box the mother effectively threw down the gauntlet, saying “either you exclude me totally or we have a normal family life”. She said that, eventually, the court will have to try unsupervised contact so it should start immediately, even if only as a trial. She said it has to happen and the sooner it does, the better. Asked in final submissions if that were still her position, she frankly confirmed it. In final submissions, too, she made it clear that she would not see [the child] if orders provided for her time with [the child] to be supervised by either Ms. [H] or Community Services.
5. The mother spoke, in final submissions, of nominating supervisors herself, and advanced the names of four women, some of whom she had seen as patients in her practice or been introduced to through work. She did not seem able to grapple with the probability that professional supervisors would be required if some form of supervised time were ordered. ...
6. ... Having regard to the mother’s construction of events and fervent beliefs, I could have little confidence that the named people could have a genuine understanding of the complex dynamics of this matter or be in a position to protect [the child] from the ramifications of her mother’s fears, concerns and preoccupations.
7. Ms. [W]’s report dated 13 October, 2005 illustrates the difficulty of obtaining a supervisor were an order to provide for one to be nominated by the mother, or agreed between the parties. ...
8. Although the last option put forward by the mother involved a private supervisor of her time with [the child], I could not find that to be advanced as a genuinely viable proposition. In the witness box the mother was given a number of opportunities to say whether she would or would not spend time with [the child] if that time were to be supervised by a professional, commercial supervisor. She clearly found it very difficult to answer that question and gave non-responsive and tangential answers. Eventually, in the course of her final submission, she said that she would not “take up” supervised contact if the supervisor were any of the ones offered by the father or the independent children’s lawyer, as she was concerned about bias.
9. I have no doubt that the mother would reject supervision by any commercial, professional supervisor and that her opposition to those advanced by the father and ICL stems not from any genuine apprehension of bias but from her conviction that she is entitled to spend time alone with [the child] and her aversion to the father and distrust of the ICL. Further, I have no confidence that the mother would spend time with [her daughter], supervised by one of the people she named, if orders required (as they would) those people to meet with Ms. [W] or the ICL to be informed of the reasons for supervision and the signing of detailed undertakings by them.

...

1. [The child] adapted reasonably well to the regime of seeing her mother at [G] because, as earlier noted, it fitted her model of parental interaction. She was able to relate well to her mother and uncle and to enjoy her time with them; it was the mother who found it difficult to focus on having a good time and on affectionate interaction, and who kept reverting to discussions about [the child]’s safety and living arrangements.

...

1. Both the father and the ICL proposed that orders provide for the immediate resumption of time at [G], and for its suspension were the mother to fail to attend on three successive occasions, without a bona fide excuse. An order in those terms would allow for very intermittent contact without suspension, as long as the mother did not fail to attend three consecutive appointments. ...
2. Ms. [W] noted that the mother’s behaviour in refusing to continue to see [the child] at [G] was consistent with her earlier advice to her, over a lengthy period, which was that she would drop out of [the child]’s life if [the child] were put in the care of her father. Cross-examined by the mother, Ms. [W] reiterated that the mother had made it clear to her on many occasions that she would withdraw from [the child]’s life if [the child] did not live with her.
3. In these circumstances, I cannot see that it would be in [the child]’s best interests to make orders for the mother to spend supervised time at [G], and assume that the mother will attend. I have no reason to believe that the mother does not mean exactly what she said in this respect, and what she said is consistent with a finding that she cannot tolerate a relationship with her daughter so long as her daughter is living with a man she believes to be a sexually abusive father. Unless and until the mother deals with that aspect of her personal functioning, it is highly improbable she will change her mind and see her daughter at [G]. Orders could provide for that potentiality, but in my view it would not be in [the child]’s best interests to make orders which disregard the mother’s stated position. It would also be disrespectful of the mother’s autonomy, but that is a secondary consideration.

...

1. Ms. [W]’s evidence was that she would be deeply concerned about any unsupervised contact between [the child] and her mother. ...

...

1. The court does not have to speculate on the effect on [the child] of not seeing her mother, at least in the short term, as it has evidence of her response to supervised time with her mother, and her response since that ceased. [The child] is stressed and distressed about the loss of her relationship with her mother. ...

...

1. Dr. [R] did not attempt to minimise the strong avoidance and suppression of feelings about the separation from her mother demonstrated by [the child]. Cross-examined by the mother, he agreed that [the child] does have feelings about which she avoids talking. He spoke of the emotional cost to any child who has only one parent. Asked about the likely effect on [the child] were she to have no contact with her mother, he said it was likely to leave feelings of anger and hurt towards the mother. Although [the child] is settled in a good household there is an emotional cost for all children who have one parent. He said that he could not predict if the effect on [the child] would go beyond that and lead to major health problems.
2. Given the stark choice between unsupervised contact or no contact, Ms. [W] made it clear that [the child]’s need for emotional and physical safety must come first. However damaging the ramifications of no contact, that would be preferable to unsupervised contact.

...

1. There is no doubt that [the child]’s best interests would be met by being able to spend time with her mother, and to maintain and develop that relationship. However, I cannot find it to be in her best interests to have unsupervised time. Faced with the mother’s intransigent refusal to renew contact with [her daughter] at [G] or accept a professional, commercial supervisor proposed by the independent children’s lawyer, I have no alternative but to find that [the child] should not spend time with her mother or communicate directly with her mother, by telephone or by attending at her school or at extra curricular activities to speak with her. Orders will provide for the mother to send [the child] letters, cards and gifts and for [the child] to be encouraged to reciprocate.
2. This is a very sad outcome for [this child]. She deserves a relationship with both parents. Living with her father she has that opportunity, if the mother will play a part. I have confidence in the father’s expressed support of [the child]’s relationship with her mother and accept that he meant it when he said that “the minute” the professionals say that [the child] is ready to move on (that was said in the context of moving from supervised to unsupervised time), that would be okay. In those circumstances, orders will provide for the father to determine that it would be appropriate for [the child] to commence spending time with her mother. If the mother changes her mind, and is prepared to see [her daughter] at [G], or another supervised facility, the father will have the capacity to facilitate that arrangement, but it will be on his terms, and those of [G], rather than on the mother’s terms. Similarly, if the mother obtains further psychiatric assistance and, after a period of supervised contact at a contact service, seeks to spend time with [the child] outside such a service but with a commercial, professional supervisor, the father would be in a position to facilitate that.
3. There is no merit in contentions that the trial Judge failed to appreciate the likely result of her orders, or that result is not adequately explained, that it was an unreasonable result, or that her Honour failed to consider all options.

That the trial Judge erred in the exercise of her discretion in finding that the chances of success of any orders providing for unsupervised time between the mother and the child were negligible despite the fact that the child had been living with the father for the previous six months

1. The finding attacked here was that set out earlier in paragraph 127 of her Honour’s reasons:
   1. The court could have no confidence that the mother would accommodate and facilitate any form of unsupervised contact between the father and [the child], notwithstanding proposals advanced by her. On at least three occasions (26 May, 2003, 12 December, 2003 and 14 February, 2007) the mother consented to orders which provided for such unsupervised time. On each occasion, contact faltered, and ceased, at or soon after orders were made. The evidence satisfies me that the mother simply could not tolerate sending [the child] to stay at her father’s home overnight or for lengthy periods, because she believes him to be a paedophile. The chances of any orders in those terms succeeding are negligible.
2. The argument is that, in reaching her conclusion about the chances of success of unsupervised contact, Brown J overlooked that the child had been living with the father for the previous six months. Impliedly, that circumstance should have led the trial Judge to believe that the mother would therefore be more amenable than in times past to unsupervised contact by the father. Having regard to the trial judge’s findings about the mother already set out, that inference is certainly not compelling, if in fact open.
3. A related argument was that the trial Judge should not have concluded that the need for supervision of time spent by the mother with the child would increase, as the child settled with the father. The argument in the mother’s summary of argument was that, though Brown J’s finding had a basis in Dr G’s evidence,

The risk in relation to Dr [G]’s use of the word “suspect” is not quantified, nor is there consideration given to the ability of the mother to in part shield [the child] from her personal views, not the fact that [the child] is a mature child who is nearly 10.

1. We earlier set out some of Brown J’s findings about the incapacity of the mother to shield the child from the mother’s views. Her Honour also supported the finding about an increasing need for supervision of the mother’s time with the child, as follows:
   1. It is likely that the need for supervision will be even greater as [the child] settles further with her father. Dr. [G]’s opinion was that it is likely that with less contact with the mother, and ongoing psychotherapy with Dr. [R], [the child] may be more psychologically free and able to express thoughts and feelings that are undesirable to her mother. He suspected such feelings in [the child] would be very difficult for her mother to tolerate. Were [the child] to move to unsupervised contact with her mother now, and express those feelings, the consequences could be very detrimental to [the child].
   2. I am concerned that the mother might feel it necessary, and her maternal duty, to keep [the child] were she to have unsupervised time with her. She frankly admitted she would breach an order if she believed it to be necessary to ensure [the child]’s safety, and I doubt she would have the capacity to return [the child] to the home of a man she believes to be a paedophile.
2. There is no merit in these contentions.

That the trial Judge incorrectly applied the principles in Watson & Morton and Rice & Asplund

1. This contention relates to the following passage of Brown J’s reasons:
   1. The ICL and the father proposed that the mother have liberty to apply to seek further unsupervised time with [the child] if supported by a report from her psychiatrist, Dr. [G], recommending unsupervised time, but that no application be made before 31 December, 2008. As I noted in the course of discussion with counsel, it is unlikely such an order would be made, having regard to the principles discussed by the Full Court in Watson and Morton (2007) FamCA 497. Were the mother to bring an application soon after these proceedings are determined, she would need to adduce evidence of new facts and circumstances and, if the court were satisfied that the proceedings were frivolous or vexatious, could face the prospect of an order being made pursuant to s.118 of the Family Law Act 1975. The principles laid down in Rice v. Asplund (1979) FLC 90-725, which were reviewed and restated by the Full Court in Edwards v. Edwards (2006) FC 93-306, may well result in any fresh application of the mother being given short shrift unless changed circumstances or new factors were disclosed. That does not mean an order should be made restraining her from bringing an application in this court within an arbitrarily set period.
2. The proposition is that, had Brown J ordered that after a certain time the mother could apply for unsupervised contact, then somehow, the mother would be advantaged by comparison with her prospects in the absence of such an order, perhaps by not having to show a change of circumstance at all or at least to the same degree as if no such order permitting an application had been made.
3. We discern no such advantage, in circumstances where the trial Judge was persuaded at trial not to make an order for time between the mother and child and did not make a finding that any particular change was likely to occur at any particular time in the future, rendering a reconsideration appropriate.
4. A related argument was that the trial Judge did not place proper weight on the fact that both the father and Independent Child’s Lawyer proposed an order in the terms outlined. As just seen, her Honour specifically addressed the proposal and rejected it.

That the finding that the mother would contravene an order if she believed there to be a good reason to do so, should not have gone against the mother as it stated no more than the defence of reasonable excuse referred to in s 70NAE of the Act

1. Her Honour said:
   1. ... Her position during the trial before me was that she would contravene orders if she believed there to be a good reason to do so, “as every mother would”. I take her at her word.

...

1. ... Although at some point in her evidence the mother said she did not know, or was not sure, whether the father sexually abused [the child], I have no hesitation in finding that she maintains her conviction of abuse. ...
2. The answer to this contention is that here Brown J was referring to the fact that the mother already believed and would probably continue to believe, that the father had sexually abused the child. Thus, it was not a question of some belief that might arise in the future and constitute a good reason for non-compliance with an order, but of a pre-existing belief inconsistent with determinations made by Brown J that she was not satisfied the father had abused the child and it was highly improbable that the child was at any risk of sexual abuse when with the father.

That the trial Judge failed to adequately explain the nature and degree of risk to the child from unsupervised contact and to balance any risk against the benefit of the maintenance of a mother/child relationship

1. Her Honour found:
   1. Giving evidence, Ms. [W] referred to the need for supervision as a response to three perceived risks. The first was the risk of emotional abuse as a result of the mother’s imposition on [the child] of her own psychological world. The second was the potential for [the child] not to be returned to her father at the end of a period of time with her mother. The third was the risk, however minor, of the mother physically harming [the child].
   2. Dr. [R] adverted to the same three risks, being the risk of physical harm, psychological harm or absconding. ... Dr. [R] saw a psychological risk to [the child] from the way the mother spoke and interacted with her. ...
   3. Although the mother saw Dr. [G] as supporting the immediate introduction of unsupervised contact, that is not the sense of his report, he saying (under Summary and Opinion) that he thought she should continue to have contact with her daughter and that “over time this could progress to a more usual unsupervised relationship”. He saw psychotherapy as assisting her to see herself more objectively and, over time, to become more psychologically robust, and he was prepared to provide that ongoing psychotherapy.
2. In view of these passages and those earlier set out, we consider there is no merit in these contentions.

That the trial Judge failed to consider the mother’s capacity to pay costs of supervision

1. This contention takes no account of the following paragraph:
   1. I am not satisfied that questions of difficulty and expense have affected or would affect in the future the mother’s time with [the child] at [G]. Before Bennett J., the mother advised that she would cease financially supporting [the child] if she did not live with her and her evidence was of a substantially diminished practice since ceasing to see [the child]. She pays no child support. She has received financial help from her family in the past and is a woman with professional qualifications. I do not doubt that she could find the funds to pay for professional supervision, whether that was a starting point or the second stepping stone (after further time at [G]) to an unsupervised regime. The factor which substantially affects [the child]’s right to maintain personal relations and direct contact with her mother on a regular basis is her mother’s refusal to see her, save on her terms.

That the mother was not given any notice of a proposal that provision be made for her arrest without warrant

1. Brown J dealt with this matter in the final paragraph of her reasons as follows:
   1. Orders will provide that the mother will spend time with [the child] and communicate with her only as set out in the orders. To give force and effect to that, I am satisfied that [the child]’s best interests will be served by an order which makes it clear that were the mother to remove [the child] from the father’s possession, or the possession of another person with whom he has entrusted [the child], the mother could be arrested without warrant. Again, I make it clear that there is no evidence that she will do that, save inferences arising from her own evidence that she would breach orders if she believes [the child]’s welfare demands it. It is important that the orders are clear on their face, not only to the parties, but to others who may be involved in [the child]’s care.
2. The point was only lightly touched upon before us. Her Honour’s reasons for making the order are clear, and in our view, sufficient.
3. However, Mr Scriva for the father accepted that the prospect of an order that the mother be arrested without warrant if she interfered with the living arrangements for the child was not raised at trial. As Kirby J said in Johnson v Johnson (No.3) [2000] HCA 48; (2000) FLC 93-041 (at 87,637):

46. ...

2. ... Unless the adjudicator exposes the trend of his or her thinking, a party may be effectively denied justice because that party does not adduce evidence or present argument that could have settled the adjudicator’s undisclosed concerns ...

1. In our view, there has been a denial of procedural fairness and we ought re-exercise the court’s discretion in relation to this aspect. We invited submissions from Mr Combes on the question of whether or not we ought ourselves make such a provision. Mr Combes argued that there had been no evidence to support an order for arrest without warrant and that the provision was “draconian”.
2. We are satisfied that there is a risk that the mother will act contrary to the terms of Brown J’s orders on the basis of beliefs which Brown J found to be without reasonable foundation and that the provision for arrest without warrant is an appropriate way to minimise that risk.

Conclusion

1. Though we have found merit in the appeal against the provision for arrest without warrant, upon a re-exercise of discretion, we have reached the same result as the trial Judge. In our view, there is no merit in any of the other grounds of appeal or arguments put forward in support of them, and the appeal should be dismissed.

Costs

1. The father seeks an order for costs against the mother. We think of the relevant factors under s 117(2A) of the Family Law Act 1975 (Cth) the result and nature of the proceedings renders an order for costs appropriate.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 23 October 2008