The case had come before the primary judge after orders had been made in 2010 in the Federal Circuit Court of Australia providing for the children to spend regular time with the father. However, in 2014 and 2015, difficulties arose in implementing this time and the children spent only intermittent time with the father. The child B, in particular, became reluctant to see his father. The child B had run away from school twice to avoid being collected by his father. Pending judgement delivered by the primary judge, the orders providing for the children to spend time with the father were suspended.
Primary judge findings
A significant factor in the order made by the primary judge providing that the children live with the father were His Honour’s findings that the children were “at risk of longer-term psychological harm in the mother’s household” and that if they remained in the mother’s care they would not have any real relationship with the father.
On appeal-Mother’s submissions
An area of contention raised by the mother in her submissions was regards whether inappropriate weight was given to the following matters and whether they had been the subject of incorrect findings:
- B’s views;
- B’s expressed fear of his father;
- The good care provided by the mother and the children’s attachment to her;
- The father’s parenting (which the mother asserted to be abusive);
- Family violence.
The mother submitted that the primary judge had failed to give sufficient weight to B’s expressed fear and dislike of the father.
On appeal- Full Court’s views
The Full Court confirmed that before a court on appeal reverses a decision of a primary judge, the appellate court must be satisfied that the primary judge was plainly wrong. In the absence of legal error or a plainly unjust result, the order made by a primary judge will stand, even if the appellate court would have reached a different conclusion.
In the case of Ralton, the Full Court said that where an appellate court has a different view of the weight to be given to different evidence, an appellate court should be slow to overturn a primary judge’s discretionary decision on that ground only.
B’s views and his expressed fear of father
The Full Court was of the view that the evidence “supported the primary judge’s findings that B’s entries in the diary, and indeed his expressed fear of his father, were influenced by the conduct of the mother”. The findings of the primary judge were therefore open on the evidence.
The findings of the primary judge significantly affected and reduced the weight that was to be given to B’s views and his expressed fear of the father. The Full Court said that it was therefore open to the primary judge to place limited weight on those considerations and not to give them the significant weight that had been proposed by the mother.
That the mother provided good care to the children, and the father’s parenting
The primary judge had accepted that the mother had been the children’s primary carer for all of their lives, that they had a strong attachment to her and that she provided good care of them. The primary judge considered that it was likely that the children’s poor attitude towards their father reflected what they see as their mother’s attitude.
At the time of the hearing, the children had a very limited relationship with the father. However, their interactions with the father when it has bene facilitated by professionals had shown that there were signs of an underlying relationship that could well be developed. The primary judge was of the view however that that certainly would not continue if the children remained with the mother. Whilst the primary judge saw that there was a risk of fracturing the relationship with the mother, the primary judge considered that the relationship with the mother would be fostered in the father’s household.
The primary judge was of the view that if the children remained with the mother, they would not have any real relationship with the father.
The need to protect the children from physical or psychological harm was considered. The primary judge found that the children were not at risk of physical or psychological harm in the father’s household. They were however found to be at risk of longer term psychological harm in the mother’s household given the attitudes towards the father that they were showing.
The primary judge had not made any finding of parental alienation or enmeshment. Instead, Hi Honour considered the circumstances confronting the children in each of the households and the behaviours they exhibited rather than engaging in a discussion of psychological concepts.
Whilst the primary judge accepted that the mother felt subjectively threatened by the father, His Honour was not persuaded that this was necessarily borne out by the father’s conduct. His Honour considered that incidents raised by the mother showed considerable anger and difficulties between the parties about separating and the children’s arrangements, but that they seem to have ceased relatively soon after separation. The Full Court took the view that the findings of the primary judge were open on the evidence.
Full Court’s decision
The Full Court dismissed the appeal, concluding that the primary judge’s findings were open on the evidence.
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