Pilot & Silver (2022) FedCFamC1A 191

The matter of Pilot & Silver [2022] FedCFamC1A 191 is a parenting appeal. 

It is an appeal from Interim Parenting Orders that provided that the children spend professionally supervised time with their mother and live with the father pending trial. 

It was an unacceptable risk case. 

The Order was made on 21 November 2022. This matter is set for trial for a parenting dispute starting in May 2023. The appeal was dismissed and the father and independent lawyer’s costs of appeal were fixed. 

The case involves twin children. The litigation began when they were 18 months old. 

The father was the original Applicant and the mother’s case was that the children were exposed to an unacceptable risk of harm in the father’s care.

Eventually, Consent Orders were made on a final basis in October 2020 with the parents to have equal shared parental responsibility for them to live with the mother and spend substantial and significant time with the father with time being from after school Thursday to before school on Monday, school holidays and special days. 

The father was again the Applicant on 30 May 2022. 

The mother had again replicated her pattern of behaviour, making allegations to multiple agencies as to the father being physically and potentially sexually abusive towards the children. The father sought sole parental responsibility and for the children to live with him and spend supervised time with the mother. 

A child protection co-located worker gave evidence before the Court. There were by then concerns about the mother’s mental health and “the mother putting the emotional and psychological wellbeing of the children at risk”.

The Department wasn’t worried about the children in the father’s care but they did have concerns about the mother making seemingly “unsubstantiated or baseless allegations of harm to the children in the father’s care”. 

The Primary Judge’s Reasons recorded the position of the Department as follows:

“Child Protection determined that the children were at risk of significant emotional or psychological harm in the care of the mother and recommended that the children live with their father and spend supervised time with their mother at a contact centre.”

Both parents presented their cases as the other being an unacceptable risk of harm to the children. 

The ICL’s Orders were in similar terms to those sought by the father. 

The Court Child Expert was cross-examined at this interim hearing. The Court Child Expert gave evidence after seeing material produced on subpoena by the Victorian Police. 

This is not a matter where the findings of an interim hearing might be limited because of untested expert opinion. 

The Child Expert even recommended that a month or two of no time “would give the children the opportunity to settle in the father’s care”. In practice, we tend to call this a “moratorium”.

The mother filed a Notice with 17 Grounds of Appeal. 

1 and 3 were abandoned. 

2, 8, 15 and 16 were abandoned during the course of the appeal. 

The Court said, “It was difficult to distil the gravamen of some of the grounds of appeal as prosecuted.” 

The Court determined that Grounds 4, 6, 10, 12(b) and 17 were in essence about errors of principle as to a valuation of risk. 

The Court said:

“It was on that polarised landscape, the scope of which was carved out by the parents and the ICL, that the primary judge was asked to determine what parenting arrangements were in the children’s best interests.”

The Primary Judge recognised “that the decisive issue to be determined at this interim stage of the proceedings was how best to protect the children from potential exposure to an unacceptable risk of harm”.

At paragraph 82, the Judge said:

“Overall, and doing the best I can on the substantially untested evidence currently before the Court, it appears that the concerns expressed by the Independent Children’s Lawyer, the father, the police and Child Protection regarding the mother’s ability to provide a safe and secure home for the children are more plausible than the mother’s allegations that the children are at significant risk in the father’s care. That is, when I weigh all the evidence and assess the probability of the parties’ competing claims, it seems that the father does not pose an unacceptable risk to the children such that his time with them needs to be supervised. However, there does appear to be on the untested evidence a greater likelihood that the children are at risk of emotional and psychological harm if they continue to spend significant and substantial time in their mother’s care on an unsupervised basis.”

 The Full Court said:

“The primary judge’s task was to assess the evidence and identify whether either risk as asserted was unacceptable. The process of evaluation by the primary judge as to the probabilities of the competing claims was substantial, considered and correctly completed.” 

The Full Court rejected the mother’s complaint. 

The Appeal Ground 9, error of law by accepting expert opinion evidence of a contested fact was the next ground considered. 

The Full Court said:

“The genesis of these conclusions of the primary judge was the evidence given by the Court Child Expert in cross-examination. Hence, this ground in reality asserts error in the primary judge’s acceptance of the opinion of the Court Child Expert because it was given in an abridged interim hearing process.” 

The Court interestingly said this:

“There was some misapprehension in the prosecution of the mother’s appeal that at an interim hearing the Court is prohibited from making any finding of fact on a controversial issue.” 

The Full Court said, “the Court is both expected and required to give credible evidence appropriate weight”.

Paragraph 37 says this:

“There was no probative submission made at the appeal hearing by the mother as to why the primary judge should not have accepted the Court Child Expert’s evidence as it emerged in cross-examination.”

The Court said:

“The evidence relied upon by the primary judge of the Court Child Expert was not [untested]: it was tested and was credible.” 

Grounds 5, 7, 11 and 17 were described by the Court as “errors of principle and issues as to weight relating to family violence”. 

At paragraph 44, the Court said:

“Such conclusion does not reflect a rejection of the mother’s allegations for want of corroboration. Rather, it reflects the primary judge appropriately weighing the mother’s allegations of family violence in the context of them being uncorroborated in circumstances where corroboration might have been expected.”

The Court said of this complaint:

“The primary judge’s assessment of the evidence was exacting and her attribution of weight to that evidence was appropriate.”

Ground 12(a) was categorised as “inadequate or insufficient reasons”.

The Court said:

“Contrary to the assertion of the mother, the primary judge’s reasons on this issue make it entirely plain how findings on this subject matter underscored the orders made.”

The next ground, 14, was based as a failure to make a proper decision. 

That ground failed. 

Ground 13 was that the result was unreasonable and unjust in all the circumstances. 

This ground had been conceded by the mother. 

Costs were awarded.