Monday, 11 August 2008

Family Court case: was supervision necessary?

In the recent Full Court of the Family Court decision in Moose and Moose, the court had to consider whether an order for supervised time between the father and children was appropriate.

Ultimately the court remitted the matter back to the Family Court for rehearing.

Legal Principles

Three separate judgments were delivered by Justices May, Boland and O'Reilly. Although all agreed with the orders to be made, each contain some gems.

Justice May's Judgment

The most significant feature was this statement:

In my view, where an order is made that the time a parent spends with a child be under supervision indeterminately, there would need to be cogent reasons to support such orders.


Justice Boland's Judgment

The longest judgment, Justice Boland summarised the significant features of the 2006 amendments thus:

His Honour’s task was to make orders which were in the best interests of the children (s 60CA), and in determining those best interests to have regard to the matters set out in s 60CC(2) and (3) guided in his consideration of the provisions by the objects set out in s 60B(1) and the principles underpinning it contained in s 60B(2).

The provisions of the amending Act have been described as resting on “twin pillars” (see Mazorski & Albright (2008) 37 Fam LR 518 per Brown J at paragraph 3). The first pillar is the importance of a child having a meaningful relationship with both parents; the second pillar is the need to protect children from physical and emotional harm.

Brown J’s judgment in Mazorski contains, in my view, a well researched and thorough exposition of the amendments, with reference to the Explanatory Memorandum, and the legislation itself. Her Honour’s discussion is helpful and her conclusions about s 60CC(2)(a) are cogent.

At paragraph 24 of her Honour’s reasons she sets out the dictionary definitions of “meaningful”, and then explains her conclusions on the effect of the term “meaningful relationship”. I respectfully agree with her Honour’s conclusions at paragraph 26 where she says:

What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

In Godfrey & Sanders (2007) 208 FLR 287 Kay J said, in the context of discussing a relocation proposal which involved the father spending less regular periods of time with his child than he was at the date of hearing, “even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.”

The question then raised in this appeal is - Did his Honour appropriately consider, give reasons and craft orders to enable these children to have a relationship with their father, which was, even if not optimal, important, significant and valuable to them, or were orders which would have fostered such a relationship, inappropriate because of risk of physical or emotional harm to them?

In Taylor & Barker (2007) FLC 93-345 Bryant CJ and Finn J at paragraphs 61 and 62 of their judgment examined the question of the appropriate order in which a court should consider the provisions of Part VII after the introduction of the amending Act. Their Honours’ explained at paragraph 62 and 63:

The legislation gives no express direction or guidance on this issue. However given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsection (2) (“primary consideration”) and subsection (3) (“additional considerations”) of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.

We make it clear, however, that a failure to follow what we see as the logical approach would not lead to appealable error unless such error arose from a failure to give adequate reasons or to have regard to the matters which the legislation requires must be considered.

In Mazorski Brown J dealt with the “additional considerations” (s 60CC(3)), prior to dealing with the primary considerations (s 60CC(2)). I consider in a case such as the present one, it may have focused the trial Judge’s attention on relevant matters to be determined under s 60CC(2) if his Honour had first considered and made findings about relevant factors under s 60CC(3), particularly the nature of the children’s relationship with each of the parties, the capacity of the parties to provide for the needs of the children who believed, perhaps erroneously, that they had been abused by their father, and against that background, the likely effect any change in the children’s circumstances, including the likely effect on the children of any separation from the mother who had been their undisputed primary caregiver.

It is necessary in answering the question which I posed to have regard to the trial Judge’s finding (which is not subject of challenge in the appeal) that on the material before him, that he was satisfied there was no unacceptable risk, if the father spent time with the children, he would sexually abuse them. He did however find the father acted in “a most inappropriate manner” with the children.


Her Honour then dealt with the argument as to Russell and Close. Russell and Close was the decision that allowed parents, mainly mothers, to assert that they believed that their children had been abused by the other parent, and that this was a genuinely held, although mistaken belief, and that it was founded in some substance.

There has been speculation as to whether Russell and Close would still apply after the 2006 amendments. Alas, we still do not know. Her Honour said:

As we did not have the benefit of any substantial argument before us, and it is not necessary for the determination of this appeal, I consider it unnecessary to discuss the effects, if any, of the amending Act on the principles referred to in Russell & Close.


Her Honour went on to say that because there had been earlier orders made, and even though none of the parties had argued that Rice and Asplund applied (which governs the issue of the need to demonstrate a change in circumstances):

Although the trial Judge did refer at the commencement of his reasons to the long history of litigation in this matter, he did not consider whether there had been any significant or substantial change since the consent orders. Whilst the omission of consideration of the principles espoused in Rice & Asplund by the trial Judge may be considered explicable because of the manner in which the proceedings were conducted, his Honour should, in the circumstances of this case where allegations of sexual abuse were followed by the making of consent orders providing for unsupervised contact, have considered the earlier orders and whether there should be a departure from them.


Justice O'Reilly's Judgment

Her Honour stated:

The principal question in the appeal, in effect, is whether the trial judge adequately “considered” the matters in s 60CC(2) and (3).

“Consider” is defined in the Australian Concise Oxford Dictionary (relevantly) as “contemplate mentally”, “weigh merits of”, “give mental attention to”....
His Honour was required to consider all of the s 60CC(2) and (3) matters before determining the matter of the children’s best interests.

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