Aiken & Cassone (2022) FedCFamC1A 220

Aiken & Cassone FedCFamC1A 220 is a December 2022 parenting appeal. 

This revisits an important point for practitioners. 

The primary judge is not obligated to accept and act upon opinion evidence given by a court child expert. 

At the appeal, the Appellant was in person; the Respondent was represented by Victorian Legal Aid; and the Independent Children’s Lawyer was represented by a firm of solicitors. 

The ICL was not successful in obtaining an order for costs of the appeal. 

The parties’ relationship commenced in 2013. The parties separated in August 2019.  They have children born in 2015 and 2017.  

In October 2019, Consent Orders were made with the children to live with the mother and spend only supervised time with the father. 

Fortnightly supervised visits have continued. 

The father and the children have regularly remained in touch by telephone. 

In December 2021, the father consented in the midst of a hearing to defend the application to an indefinite Family Violence Order.  He did so without making any specific admission. He did not proceed with a cross reciprocal Family Violence Order against the mother. 

In September 2022, a parenting judgment was delivered.  

The mother was granted sole parental custody. The children were to live with the mother.  The children were to see the father with supervision on four occasions each year and the children could communicate voluntarily with the father by telephone, with the father permitted to send written correspondence to the children on their birthdays and Christmas and the children being able to travel overseas without the father’s consent. 

These Orders reflect largely what the mother sought; they had broad support of the ICL and were “generally consistent with the opinion evidence given by the court child expert“.  

The father had sought to retain equal shared parental responsibility and increased frequency and duration of visits with the children to achieve equal time. 

The primary judge found that in relation to the father, it was “unlikely his behaviour would change” and that “he poses risks of harm to the mother and children”.

The court would not permit the father to adduce further evidence.  They said this at paragraph 17:

“17. The proposed evidence is rejected because it would be contentious, it would not help establish appealable error by the primary judge, and its reception now would tend to obliterate the distinction between original and appellate jurisdiction. The father’s right of appeal is only the right to evaluation of whether the exercise of discretion miscarried, not an opportunity to try and make the case he wishes he had at the trial.”

The Full Court described the father’s ground in this way:

“This ground is misconceived in so far as it purports to challenge a finding, as distinct from orders, by reason of the weight attributed by the primary judge to certain parts of the evidence. Such “weight” submissions are only pertinent to contentions of discretionary error infecting orders, characterising them as being “unreasonable or plainly unjust” or “plainly wrong.”

The Full Court adopted a statement by the primary judge:

“This dispute is fundamentally about risk: what risk the children face, if any, in the care of either parent and how any such risk can be mitigated. This case brings into sharp focus, therefore, the balance that needs to be struck by the court when making parenting orders between the benefit to a child of having a meaningful relationship with both parents, on the one hand, and the need to protect the child from harm on the other.

…

this case brings into sharp focus the balance to be struck between the two primary considerations set out in section 60CC(2).”

The Full Court said:

“As stated, in balancing the two primary considerations, greater weight must be given to the need to protect the children from harm.”

The trial judge said:

“I find that there is an unacceptable risk posed by the father having regular and unsupervised time with the children and that this outweighs the need to facilitate a meaningful relationship between the children and their father…”

The father complained that the primary judge had no reasonable regard to an aspect of the decision, and the Full Court found that that was without foundation. 

Importantly, we are reminded in this case as follows:

• “The discretion to make orders in the children’s best interest rested with the primary judge, not the court child expert.”  The court referred to U v U [2002] HCA 36 and Albert & Plowman [2020] FamCAFC 23.

The Full Court was satisfied that there was a “satisfactory evidentiary foundation for the finding made about the risk of harm the father poses, which means this ground fails”.

Again, there were a series of no reasonable regard grounds. 

This case simply reminds us that the primary judge determines the findings and although assisted often by a court expert, we should not forget that the court expert is not the judge.