Perkin & Olsen [2009] FamCAFC 150 (24 August 2009)

[ 2009] FamCAFC 150

FAMILY LAW - APPEAL FROM FEDERAL MAGISTRATE - CHILDREN - where mother's evidence was mostly uncontested - where FM accepted that there was a significant risk of physical and psychological harm to the child by the father - where the FM accepted the expert evidence and the mother's evidence over the father's -whether FM gave adequate reasons for his findings and orders made - impossible to discern the path by which the result was reached - appeal allowed - matter remitted for trial.

Family Law Act 1975 (Cth), ss 60CC, 94AAA(3)

Moose & Moose [2008] FamCAFC 108

Gronow v Gronow [1979] HCA 63; (1979) FLC 90-716

House v The King [1936] HCA 40; (1936) 55 CLR 499

Bellenden (formerly Satterthwaite) v Satterthwaite (1948) 1 All ER 343

Bennett v Bennett (1991) FLC 92-191

[2008] FMCAfam 798

(1) That the appeal against paragraphs 3 to 8 inclusive and 10 of the orders made by Federal Magistrate Simpson on 30 July 2008 be allowed and those orders be set aside.

(2) That the appeal against paragraphs 1, 2 and 9 of the orders made by Federal Magistrate Simpson on 30 July 2008 be dismissed.

(3) That the matter be listed before a Federal Magistrate in the Adelaide Registry as soon as possible to determine any application for interim parenting orders and the procedural directions necessary for a re-hearing of the parenting applications.

IT IS NOTED that publication of this judgment under the pseudonym Perkin & Olsen is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

1. By Amended Notice of Appeal filed on 5 September 2008 the mother appeals against all of the orders made by Federal Magistrate Simpson on 30 July 2008 with respect to the child born December 2002.
2. Those orders provided as follows:
   1. Order 5 of the Orders of 9 August 2007 be discharged and dismissed.
   2. Until further order and subject to these orders the applicant father be and is hereby restrained from:
      1. attending upon or in the vicinity of any residence, child care facility or school at which the child ... born [in] December 2002 may from time to time reside or attend; and
      2. contacting or attempting to contact the child by direct or indirect means save and except that the father be permitted to communicate with the child by written communication addressed to the mother's solicitor, namely Adey Lawyers, Level 3, 55 Gawler Place Adelaide, which communication might include with it any photograph or gift which the father wishes to provide to the child.
   3. Within seven (7) days the parties do all things necessary to register for their acceptance into the Children's Contact Service at Hindmarsh ("the Service").
   4. Upon acceptance into the Service the father spend time with the child ... born [in] December 2002 for three (3) hours (or such lesser time as the service may be able to provide) on ten (10) calendar monthly occasions on days and times to be nominated by the Service, to be supervised by a worker from the Service and to commence on a date to be nominated by the Service.
   5. The parties have liberty to obtain a report from the Service after the sixth occasion of spending time.
   6. The parties do all such things as may be reasonably required to enable a family assessment to be carried out with respect to the competing applications for parenting orders before the Court to be undertaken by Ms Alexandra Cole if available or, if not available, a psychologist or counsellor to be agreed between the parties within fourteen (14) days of being advised of her unavailability or, in default of agreement, as may be fixed by the Court upon application after the expiration of that time such assessment to include observed interaction between the child and each parent and, at the discretion of the family assessor, home visits to each parent, with such report to be available by 30 May 2009.
   7. The Family Report to deal with the following matters:

1. any views expressed by the said child and any factors (such as the said child's maturity or level of understanding) that would affect the weight that the Court should place on those wishes; 2. the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);

1. the report if any obtained from the Service concerning the father's supervised contact with the child in 2008 and 2009; and

1. any other matters that the family assessors considers important to the welfare or best interests of the said child. 8. The costs of the such assessment and the report arising from such assessment to be borne equally by the parties with each of the parties to make arrangements direct with Optima Psychology as to payment of their half share prior to the assessment being undertaken. 9. Liberty to apply. 10. The matter is adjourned to 9.30am on 6 July 2009.
2. Although the appeal is against all of the orders made by the Federal Magistrate, the real complaint is about the order that the father spend time with the child. Indeed, there is no issue at all in relation to paragraphs 1, 2 and 9 of the orders, and accordingly I propose to dismiss the appeal against those orders.
   1. This appeal is being determined by me as a single Judge, following a direction by the Chief Justice pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth).
3. The father was unrepresented at the hearing before the Federal Magistrate and also at the hearing of the appeal. He attended the hearing of the appeal by telephone from Brisbane.
4. The father failed to comply with my orders made on 13 October 2008 and in particular he did not file a written summary of argument. As a result I initially determined that I would not hear any submissions from the father, but after hearing from the counsel for the mother I did permit the father to address the court.
5. The child was living in Adelaide with the mother at the time of the hearing before the Federal Magistrate and he had not spent any time with the father since about February 2007. At the date of the hearing before the Federal Magistrate, and at the time this appeal was heard, the father was living in Queensland.

1. The mother was born on in 1970 and at the time of the trial was aged 38 years. The father was born on in 1973 and was aged 35 years at the time of the trial.
2. The parties commenced living together in 2001 and the child was born in December 2002.
3. The parties separated on 17 June 2004. The mother states that she left due to the father's excessive alcohol and marijuana use which caused violent and aggressive behaviour by the father.
4. The parties initially agreed to an arrangement by which the child would live with the mother, and the father would spend time with the child each Wednesday from 9:00am to 6:30pm and each Sunday for four hours. In or about August 2004 though, an incident occurred in which the mother found the father passed out while the child was in his care. When the mother woke the father, he assaulted her and the police were called. Thereafter, the mother would only allow the father to spend supervised time with the child.
5. In January 2006, the father attended uninvited at the home of the mother and sought to remove the child from her care. The police were called and a restraining order was obtained against the father. On numerous occasions between the commencement of proceedings and the trial, the father breached this restraining order by attending at the mother's home or telephoning her.
6. The father filed his Application for Interim and Final Orders on 10 May 2006.
7. Orders were made on 6 July 2006 providing inter alia that the father spend time with the child each Sunday between 1:00pm and 5:00pm and each Wednesday between 9:00am and 1:00pm, with the paternal grandmother to supervise this time.
8. On 12 July 2006, the second occasion of supervised time between the father and the child, the father breached the terms of the order by not ensuring that the paternal grandmother was present. On 27 July 2006, the father attempted to mislead the Court (Lindsay FM) by instructing Counsel to submit that the paternal grandmother had been present at all times. His Honour heard oral evidence from the parties and the paternal grandmother and the father then admitted in his evidence that the paternal grandmother had not been present for the whole period. In his affidavit filed 7 August 2006, the father admitted to having perjured himself in giving evidence before His Honour.
9. On 18 August 2006 an order was made providing that the father spend time with the child each Sunday from 12:30pm to 6:30pm, such time to be supervised by both paternal grandparents. The paternal grandparents were required by this order to affect handover with the mother, and the father was not to be present.
10. However, at the first period of time spent between the father and the child pursuant to this order on 20 August 2006, the father was present at handover at the conclusion of the period and the paternal grandmother was not. The mother states that on this occasion the father then attempted to force his way into the mother's home.
11. On 20 October 2006, Lindsay FM made findings that the father had lied in his evidence about the events of 9 July 2006 to 20 August 2006 and that he was in breach of the Court order. His Honour ordered that the parties register with the Children's Contact Service in Hindmarsh in order for the father to spend supervised time with the child for two hours on alternate weekends.
12. On 14 December 2006, Ms Alexandra Cole, psychologist, provided a Family Assessment Report in which the following recommendations were made:
    • That [the child] spend time with his father on a regular basis, ideally weekly given his young age, but due to the difficulty in obtaining suitable supervision, this may need to be fortnightly.
    • That this time continue to be supervised until such time that the Court is confident that the reported risks to [the child's] safety do not exist (eg his father has demonstrated abstinence from alcohol and substance abuse, demonstrated a commitment to abiding by Court Orders, including the Restraining Order, and if the Court considers it appropriate, participated in an anger management and parenting course).
    • That Ms [Perkin] be encouraged to seek professional support to help her manage her anxieties around [the child] spending time with his father.
13. The father's supervised sessions with the child at the children's contact service commenced on 25 February 2007 and were to conclude on 6 May 2007. On 27 February 2007, the trial listed to commence that day was vacated to allow the production of a report from the Children's Contact Service as to the progress of the supervised visits. Other orders were made providing that the father provide a specimen to allow screening for illicit drugs within 24 hours of such a request and that the parties attend appointments with Ms Alexandra Cole to allow an updated family assessment to be completed. The father failed to provide such a sample when requested by solicitors for the mother until approximately two weeks later.
14. The mother says that on 8 March 2007 she was informed by South Australian Police that the father had been charged with cultivating cannabis at his home. The mother brought an application on 14 March 2007 for the father's time to be suspended, which was determined in the absence of the father who, although served, failed to attend court. On 5 April 2007, orders were made suspending the father's time with the child and noting inter alia, the father's failure to comply with the request to undertake drug testing within 24 hours of such request, and failure to notify the Court of the allegations with respect to the cultivation of cannabis.
15. On 9 April 2007 the father again attended at the mother's home in breach of the orders of 5 April. The mother brought contravention proceedings in relation to this and several other alleged breaches by the father, alleging that the father approached the mother's home with a view to spending time with the child. The contravention applications were heard in August 2007. On 9 August 2007 the father was convicted in relation to one of the contraventions and was put on a bond of $1,000 for a period of 24 months. Orders were also made restraining the father from approaching, contacting or attempting to contact the child, but allowing him to communicate with the child via written communication addressed to the mother care of the mother's solicitors.
16. The trial commenced before the Federal Magistrate on 7 February 2008.
17. On the first day of trial, orders were made by consent providing that the child live with the mother and that the mother have sole parental responsibility for the child. The only outstanding issue for determination therefore was whether the father should be allowed to spend time with the child and if so, with what conditions attached.
18. The father was unrepresented at the trial. He gave oral evidence that he had sold his business in Adelaide in September 2007, had bought a charter boat business and moved to Queensland in October 2007. At the time of the trial, the father was living on his boat near a suburb of Brisbane. The father has a brother living nearby. The father proposed that if he was able to spend any time with the child that he would fly to Adelaide to do so. The father was undecided about whether or not he would remain in Queensland.
19. The father admitted under cross examination by counsel for the mother that he started smoking marijuana in 1992 and stated that he used it up to 2007, when he was charged in February with growing six plants. The father also admitted to a conviction for possession of an unlicensed firearm. The father admitted that he would sometimes come home drunk but denied any physical violence against the mother, stating that he and the mother only ever had verbal arguments.

1. The Federal Magistrate initially set out the evidence on which the mother relied, stating that the much of her evidence was uncontested and therefore substantially provided the background information set out in the judgment.
2. His Honour then considered the evidence from the family consultant, Ms Alexandra Cole as contained in her report of 14 December 2006 and her oral evidence at trial.
3. The Federal Magistrate assessed the witnesses as follows:

29. In assessing the witnesses in this case I have no hesitation in accepting the mother's evidence wherever it contradicts with that of the father. In doing so I make due allowance for the fact that the mother was legally represented at the trial and that the father was not. However, the mother's evidence, whether by affidavit or orally, has been consistent and believable. She impressed me whilst in the witness box as a person who was trying to assist the Court by giving direct and complete answers to questions. She did not seem to me to be exaggerating her complaints and concerns about the father's conduct.

30. The father on the other hand has shown to be a person who is prepared to say whatever he thinks that he needs to say to achieve the outcome he wants. I was unimpressed with him as a witness but impressed by his strong desire to play a meaningful part in his son's life.

31. The family consultant is an experienced child psychologist whose evidence I accept.

1. The Federal Magistrate then addressed the law to be applied referring to the relevant sections of the Family Law Act commencing with s 60B.
2. In considering the benefit to the child of having a meaningful relationship with both parents, His Honour noted that there is clearly a strong and meaningful relationship between the mother and the child, that Ms Cole's report indicates that the child appears to have a positive relationship with his father, and that Ms Cole considers it important to support the relationship and to allow it to further develop into a more meaningful one. His Honour considered that this could only occur if the father is able to avoid inappropriate behaviour, which would require him to comply with all Court orders, to avoid drugs and alcohol to the extent this may impact on the child, to ensure that the child is always safe and to avoid behaviour which might reasonably be expected to cause the mother to have heightened anxiety levels for herself and the child.
3. In considering the need to protect the child from physical or psychological harm, the Federal Magistrate said that the evidence before him indicates that this is a significant risk.
4. The Federal Magistrate determined that as the child was quite young (aged 6 years at the time of the trial) that he would not give the child's wishes significant weight. His Honour did note however that the child appeared to want to spend time with the father.
5. His Honour considered that the mother had been the primary caregiver for the child and that according to Ms Cole there was a positive relationship between the child and the father.
6. In addressing the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship with the other parent, the Federal Magistrate found that the father did not show any unwillingness or lack of ability to facilitate and encourage the mother to have a close and continuing relationship with the child, but noted that the mother is unwilling to have the child exposed to the father based on safety factors for the child. His Honour noted that this was a view which was not unreasonably held but stated that he expected the mother would see a benefit to the child of having a close and continuing relationship with the father should he correct his behaviour.
7. His Honour then noted that the father is not seeking any time with the child which would see the child removed from the mother's day to day care for any substantial period, which his Honour considered important given the age of the child and the strength of attachment between the mother and the child. His Honour said that any time with the father would need to be closely monitored and gradually increased.
8. His Honour was satisfied that the father having indicated that he would travel from Queensland to Adelaide to spend time with the child answered any potential difficulties which would be faced by the fact he lives in Queensland.
9. The Federal Magistrate was not convinced that the father has the capacity to provide for the child's emotional needs, as he would otherwise have not have behaved in the inappropriate way that he has in relation to breaching Court orders. His Honour also indicated his concern about the father's maturity, lifestyle and background and noted that these are matters that the father will need to properly address and maintain over a significant period of time before the Court is likely to give him any unsupervised time with the child. His Honour found that for these reasons, he had a genuine concern about the father's attitude to the child and responsibilities of parenthood, though there was no cause for concern in relation to the mother's attitude.
10. The Federal Magistrate then addressed the father's conduct in the context of family violence, noting the domestic violence restraining order which was made in January 2006.
11. In conclusion, the Federal Magistrate said as follows:

48. I have given careful consideration to making a final order that the child have no time with the father. Such an order is clearly reasonably open on the basis of the findings in relation to the father's past conduct. Protection of the child from the consequences of such conduct is of course an important matter in this case. However, a consequence of such an order would be that for these important early years in the child's life there would be no meaningful relationship between father and son.

49. Not without some misgivings, I have come to the conclusion that I should make an order that the father have supervised time with the chil [sic]. The supervision will ensure that the child is properly protected from the father's conduct should the father still behave in an inappropriate manner. I would hope that he does not. I am satisfied that the father has a genuine desire to have a significant role in the child's life and that, with appropriate behaviour by the father, the child will greatly benefit from his involvement. The father needs to understand that there must be no repetition of the conduct that marked his earlier relationships with the mother and child. I would hope that over time the father is able to demonstrate to the mother and, if necessary, this Court that he has corrected his ways and can be trusted to behave appropriately. If he behaves appropriately it may be possible to make other orders for spending time that are in the child's best interests. The way forward is very much in the father's hands.

1. His Honour determined that it was not appropriate for him to make a permanent supervision order, citing the Full Court decision in Moose & Moose [2008] FamCAFC 108 and the cases referred to therein. His Honour said that while a period of supervised contact is likely to be in the child's best interests, it should not be seen as a beneficial long term proposition to the child. His Honour thus proposed to defer making final orders until after the Court is informed of the results of the period of supervised time, and made interim orders for supervised time with provision for a review in 10 - 12 months time.

1. The mother set out the following grounds of appeal in her Amended Notice of Appeal:

1. That the order of the learned Federal Magistrate having regard to the totality of evidence was so unreasonable that it may be properly inferred that there has been a failure to properly exercise the discretion reposed in the learned Federal Magistrate.

2. That the orders made by the learned Federal Magistrate fell outside the reasonably generous ambit of the learned Federal Magistrate's discretion.

3. That the orders made by the learned Federal Magistrate were inconsistent with the findings of the learned Federal Magistrate.

4. That the learned Federal Magistrate erred at law in failing to give sufficient or adequate reasons for the learned Federal Magistrate's decision.

1. The orders sought by the mother in the Amended Notice of Appeal were as follows:
   1. That the child of the relationship ... born [in] December 2002 do live with the mother.
   2. That the mother do have sole parental responsibility for the said child.
   3. That the father be restrained and an injunction be granted restraining the father from:-

1. spending time with, communicating with via telephone or otherwise, or approaching in any way the said child of the relationship save and except that the father be permitted to send letters, cards and presents for the said child to an address nominated by the mother from time to time; 2. contacting or communicating, approaching, directly or indirectly, whether in person, via telephone, in writing or otherwise with the mother;

1. assaulting, harassing, threatening or intimidating the mother;

1. damaging or threatening to damage any property of the mother; 2. being on the premises at which the mother may from time to time reside, work or frequent; 3. being on the premises of the said child's school or at any other premises at which the said child may frequent or attend for day care, sporting or social purposes. 4. That the father do pay the mother's costs of and incidental to the within proceedings.
2. Thus, if the appeal is allowed the mother seeks that this court re-exercise the discretion and not remit the case for re-hearing.

1. This appeal is an appeal against an exercise of discretion by the Federal Magistrate. The circumstances in which an appeal court can interfere with a discretionary judgment are well settled, as outlined in Gronow v Gronow [1979] HCA 63; (1979) FLC 90-716 and House v The King [1936] HCA 40; (1936) 55 CLR 499.
2. In Gronow v Gronow (supra) Stephen J stated at 78,848:

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.

1. In House v The King (supra), Dixon, Evatt and McTiernan JJ said 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 discretion is reviewed on the ground that a substantial wrong has in fact occurred.

1. Similarly, in Bellenden (formerly Satterthwaite) v Satterthwaite (1948) 1 All ER 343 at 345, Asquith LJ said:

...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.

1. There is also an obligation upon a judicial officer to provide adequate reasons for his or her decision. If not, there has been an error. The test is to be found in Bennett v Bennett (1991) FLC 92-191 where the Full Court said this (at 78,267):

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 wider 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 the reasons must be extensive. Their adequacy must be judged by reference to the issues raised by the parties at trial... [T]he most important thing is that the appellate court must be placed in a 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.

1. In her written argument the counsel for the mother highlighted what she said were "errors" made by the Federal Magistrate. For example, Ms Leeson submitted that:
   • (1) The Federal Magistrate gave inappropriate weight to the fact that the recommendations of the family consultant were not current.
   • (2) The Federal Magistrate failed to make findings as to disputed issues.
   • (3) The Federal Magistrate placed inappropriate weight on the father's wishes.

However, these "errors" were not the subject of any specific ground of appeal, and at most they could only be considered as examples of the "unreasonableness" of the orders made given the evidence before the Federal Magistrate, or as examples of a "failure" to give adequate reasons. However, even that would be drawing a long bow.

In any event, it is quite apparent that the complaint of the mother is that given the Federal Magistrate accepted the evidence of the mother and of the expert, Ms Cole, it is impossible to discern from his Honour's reasons how he reached the conclusions that he did, namely that it was in the best interests of the child to in effect forthwith commence spending supervised time with the father at a children's contact service.

1. In this regard I note the following submissions of the mother's counsel:
   • (1) In considering paragraph 60CC(3)(c) the Federal Magistrate said this:

39. ... the father does not show any unwillingness or lack of ability to facilitate and encourage the mother to have a close and continuing relationship with the child. The mother is unwilling to have the child exposed to the father and justifies this position on the basis of the safety factors for the child referred to earlier in these reasons. The present concerns are not unreasonably held. Should the father correct his behaviour I would expect the mother to then see the benefit to the child of having a close and continuing relationship with the father.

Counsel submits that it is "unclear" as to the "reasoning" the Federal Magistrate applied in making this latter finding. In my view though this was a finding that was open to his Honour on the evidence. In cross examination Ms Cole said this:

Was there anything in the mother's presentation that caused you concern about the mother's capacity to understand that it was still an important relationship, the father-son; son-father relationship? - my impression was that she did appreciate that that was an important relationship and she did appreciate that [the child] can quite enjoy spending time with her [sic] father, but her concerns about the broader safety issues she considered to be paramount.

Does that bode well then, if there is ultimately no order for face-to-face contact, in terms of the mother's capacity to still maintain a positive perception of the father to the child? - I think in some ways not putting the demand of face-to-face contact on the child and the mother may increase her capacity to be able to do that, and the mother did present as child-focused throughout my assessment. It would be a child-focused thing to do, to be able to promote that relationship, assuming that the child is safe.

Thus, I do not accept the submission made in this regard by the mother's counsel.

(2) In considering paragraph 60CC(3)(d) the Federal Magistrate said this:

40. Sub-section (d) requires me to consider the likely effect of any changes in the child's circumstances including any change that might result in separation from parent, siblings, grandparents and the like. I do not consider that this has a significant impact in this case as there is no suggestion on behalf of the father that he is seeking any time with the child that would see the child removed from the mother's day to day care for any substantial period of time. I consider it important that a child of this age with such a strong attachment to his mother does not get separated from the mother for any substantial period of time. Any time with the father would need to be closely monitored and gradually increased.

Counsel submits that the Federal Magistrate failed to give "adequate reasons" to support these findings. On the one hand, despite the recommendations of Ms Cole in her earlier report, there is her unchallenged oral evidence that:

(a) There should be a delay in any reintroduction of the relationship between the child and his father until the father has addressed and acknowledged issues that have occurred in the past, for example as to his abuse of alcohol and his violence and the impact that has had on the mother and the child;

(b) That delay should be until the child is of an age where he is more emotionally resilient and has settled at school, or until the child is able to understand the restrictions and reasons for supervision, and in this regard Ms Cole suggested that that would not be until the child is at least seven years of age and possibly not until he is ten years of age;

(c) That it may even be necessary to wait until the child is nine or ten years of age when he can participate in a "therapeutic" re-establishing of contact.

Yet, in the end result the Federal Magistrate ordered that the child should now commence spending time with the father supervised at a children's contact service. It is said, to repeat, that it is impossible to discern from the reasons how the Federal Magistrate came to this conclusion, and particularly in the light of the unchallenged expert evidence from Ms Cole that there should be a delay in the commencement of even supervised time spent. I agree with this submission by counsel for the mother.

(3) In considering paragraph 60CC(3)(f) the Federal Magistrate said this:

42. ...I am by no means convinced that the father has the capacity to provide for the child's emotional needs. Had he that capacity he would not have behaved in the inappropriate way that he has in relation to the breaching of the court orders as detailed earlier in these reasons.

Further, in considering paragraph 60CC(3)(g) the Federal Magistrate said this:

43. ...I do however have concerns about the father's maturity, lifestyle and background. These are matters that the father will need to properly address and maintain over a significant period of time before a court is likely to give him any substantial unsupervised time with the child. The father will need to carefully reflect on his behaviour since becoming a father and to ensure that he takes appropriate steps to correct his conduct.

Counsel submits that it is unclear from his Honour's reasons how he has taken these findings into account in making the orders that he did for supervised time at a children's contact service. Again, I agree with this submission.

As counsel also submits, it is not apparent from his Honour's reasons what if any consideration was given to the clear evidence that "the father has not and is unlikely to take any steps to address his behaviour in that he denies the behaviour, has avoided drug screening testing as requested in March 2007, has given misinformation to the Drug and Alcohol Abuse counsellor as to the level of his consumption and involvement in cultivation of cannabis, and the fact that the father has had the opportunity to realise the consequences of such behaviours namely the suspension of his time with the child in April 2007 and has failed to make any constructive changes in that regard."

(4) In considering paragraph 60CC(3)(i) the Federal Magistrate said this:

44. The next factor that I consider is sub-s.(i) which requires that I consider the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child's parents. I have no cause for concern in relation to the mother's attitude but for the reasons mentioned earlier have genuine concerns about the father's attitude to the child and to the responsibilities of parenthood.

Once again counsel's submission is that it is impossible to discern for the reasons how the Federal Magistrate took this into account, and particularly given that the order that the Federal Magistrate made is inconsistent with any concern about the father's attitude to the child and to the responsibilities of parenthood.

(5) In considering paragraph 60CC(3)(j) the Federal Magistrate said this:

45. Sub-section (j) requires that I consider any family violence involving the child or a member of the child's family. I take into account the matters referred to earlier in these reasons so far as the father's conduct is concerned.

At paragraph 36 of the judgment the Federal Magistrate found that there was evidence before him which indicated that there is a significant risk of the child being subjected to or exposed to abuse, neglect or family violence by the father.

Again counsel submits that it is not apparent from the reasons of the Federal Magistrate as to how his Honour has brought this risk and the father's conduct to account in making the order for supervised time before the father has addressed his alcohol abuse and aggressive behaviour and the impact of that behaviour on the mother and the child, or before the child has reached an age where he can understand why he is only seeing his father on a limited supervised basis. Ms Cole's evidence as to this was clear and unchallenged. For example, she said this in cross examination:

Can I suggest this, that from [the child's] perspective, really the father needs to show some progress and some insight and child-focused behaviour really before his Honour can look at putting in place with any confidence a regime of orders for the father to spend time with him, albeit on a limited supervised basis? - That's my opinion from [the child] at this young age.

Once again I agree with the submission of the mother's counsel in relation to this issue.

48. I have given careful consideration to making a final order that the child have no time with the father. Such an order is clearly reasonably open on the basis of the findings in relation to the father's past conduct. Protection of the child from the consequences of such conduct is of course an important matter in this case. However, a consequence of such an order would be that for these important early years in the child's life there will be no meaningful relationship between father and son.

Counsel submits that the Federal Magistrate failed to give adequate reasons "as to how supervised time", and I interpolate, in the light of the evidence of Ms Cole, "will result in a meaningful relationship", and I add, at this time. I agree with this submission.

His Honour continued in paragraph 49 of his judgment:

Not without some misgivings, I have come to the conclusion that I should make an order that the father have supervised time with the child...

Counsel submits that it is "unclear" from the Federal Magistrate's reasons how his Honour comes to that conclusion and what the nature of the misgivings are and how they have been taken into account. Again I agree with this submission.

1. Thus, I find that in considering the relevant factors under s 60CC to determine whether it is in the best interests of the child to spend time with the father and under what conditions, the Federal Magistrate has erred in failing to provide any adequate reasons for his findings and the orders that he made. To use the phraseology from Bennett, it is impossible to "discern either expressly or by implication the path by which the result has been reached" from the reasons given by the Federal Magistrate. In my view that constitutes an appellable error.

Re-exercise of the discretion or re-mission for re-hearing

1. The failure by the Federal Magistrate to provide adequate reasons for his findings and ultimately his order that supervised time commence as soon as can be arranged through a children's contact service means regrettably that it is not possible for this court to re-exercise the discretion and that there must be a re-trial. However, in the circumstances of the Federal Magistrate not in fact making final orders, and providing for a review with a report from the relevant children's contact service and a further family report from the expert after a period of time, alleviates some of the usual consequences of having a re-hearing. Further, I note that it is agreed between the parties that the orders of the Federal Magistrate have not been carried out because the father has not made the necessary arrangements to allow any supervised time to take place at the children's contact service, and thus no time has been spent, there is no report from the children's contact service, and no further report from Ms Cole.
2. The consequences of the appeal being allowed against paragraphs 3 to 8 inclusive of the orders is that those orders will be set aside. That will leave in place the order of 9 August 2007, but that is of no real consequence or significance. It will also leave in place the consent order that the child live with the mother, and the orders by way of injunction against the father. It is important though that the matter be listed before a Federal Magistrate to determine any application for interim parenting orders and to give procedural directions necessary for a re-hearing of the parenting applications.

I certify that the preceding 54 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 24 August 2009.