A & a

[2005] FamCA 43

[2005] FamCA 43

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT MELBOURNE  Appeal No. SA54 of 2004

File No MLM6121 of 2002

BETWEEN:

A

(Appellant Wife)

and

A

(Respondent Husband)

CORAM:  THE HONOURABLE JUSTICE KAY

DATE OF HEARING:          31 January 2005

DATE OF JUDGMENT:      11 February 2005

REASONS FOR JUDGMENT

APPEARANCES:

The Appellant Wife in person.

Ms Colla of Counsel, instructed by Hunter Newns, Solicitors, DX 30002, Hamilton, appeared on behalf of the Respondent Husband.

A
SA54 of 2004
CORAM:       Kay J
DATE OF HEARING:         31 January 2005
DATE OF JUDGMENT:     11 February 2005

Catchwords:           PARENTING ORDERS – PROVISION OF INFORMATION TO NON-RESIDENT PARENT  – Mother appealing orders that require her to authorize a school to provide the father with information concerning their child’s schooling –mother obsessed in her view that father should have nothing at all to do with the child - father had had no contact for over seven years nor had any information been released to him for over six years - 15 year old child said to not want information divulged – Federal Magistrate thought the long term interests of the child would be advanced by knowing his father was showing interest in his education – no appealable error demonstrated

1. This is the wife’s appeal against orders made by Bennett FM on 23 August 2004 that had the effect of requiring the wife to authorize a school that was attended by the child of the parties to provide the husband with information concerning the child’s schooling.  The wife seeks to have those orders discharged.

Background

1. The parties were formally husband and wife having married in November 1979.  They separated in early 1996 and their marriage was dissolved by decree which became absolute in April 1997.  They had two children of the marriage, A born in 1986 and C born in 1989.

1. Proceedings were commenced by the husband in April 1996 seeking orders that the children reside with the wife and that he have access to them each weekend and half the school holidays.  The wife opposed the orders and sought sole guardianship and custody of the children.

1. In August 1996 an order was made by consent that the wife have the residence of and day to day responsibility for the children and amongst other orders that a family report be prepared by Leanne Norris.

1. On 4 November 1996 a report was written by Leanne Norris which concluded by saying:

“…It is of concern that [the mother] seems to have a totally negative view of the relationship between the children and their father.  She seems unable to accept that they would benefit at all from a relationship with him and sees any form of relationship as providing a risk to them, both physically and emotionally.

…

[The father] appears to be a very straightforward sort of man who could offer his children a valuable relationship.  He and [the mother] are very different personality-wise but this does not mean that they do not have equally important things to offer their children, and [the father] is able to offer the boys a positive male role model as their father.”

1. The mother engaged Ms Esther Roodenburg, psychologist, to assess the boys and prepare a report.  She wrote a report on 18 June 1997.  Ms Roodenburg reported that the children had great fears and a sincere distaste for being with their father and recommended a discontinuance of forced access for at least 12 months. 

1. On 1 September 1997 Frederico J made orders by consent adjourning the proceedings until October 1998 and suspending the father’s access to the children.  Those orders included:

“3.The husband shall be entitled to write to the said children on a monthly basis.

4.In the event that the said children wish to have contact with the husband in any form (telephone, correspondence or face to face) the wife should use her best endeavours to facilitate such contact.

5.The wife shall provide the husband and the child representative with a contact telephone number and the name of the school at which the children attend.

6.The husband be at liberty to contact the school at which the children attend to discuss matters relating to their schooling and to receive school reports, photographs and other like items.

…

8.The wife keep the husband informed of any significant illness or injury relating to either of the said children or of the need for hospitalization.

9.The wife provide husband with photographs of the said children at six monthly intervals.”

1. Whilst there was resolution of some financial issues, the children’s issues remained unresolved and were never determined at any hearing.

1. On 7 March 2000 all extant applications were dismissed and the matter removed from the pending cases list.  To the extent that any orders then governed the situation inter partes they were the orders of 1 September 1997.

1. On 28 June 2004 the father filed an application seeking that the mother be dealt with for allegedly contravening Order 6 of the orders made 1 September 1997 in that she had given a direction to the headmaster of the school attended by the boys that the school was not provide an opportunity for the husband to contact the school to discuss matters relating to the children’s schooling and receive school reports, photographs and other like items. 

1. That application was initially returnable on 14 July 2004 but was subsequently administratively adjourned to 2 August 2004.  The father concluded his affidavit in support of the application with a request that the Court:

“…order that matters referred to at Order 6 of the Orders made 1 September 1997 be provided to me…”

1. On 2 August 2004 the wife successfully objected to some of the material contained in the husband’s affidavit in support of his application.  The husband sought and was granted an adjournment until 23 August 2004 to adduce further evidence.  The Magistrate went on to indicate that she had received an oral application from the husband for a parenting order.  She said:

“…He sought, in summary, that the wife be directed to recall all or any directions to the school not to allow the husband access to information and that the wife authorize the release of all documents countenanced in paragraph 6 of the orders made in September 1997 and an order pursuant to s.106A of the Act so that in the event the wife failed to comply with this order a Registrar of the court be empowered to take those actions on her behalf.”

1. The wife opposed the making of the oral application.  Her counsel raised a number of matters.  Most relevantly the Magistrate said:

“…I take the wife to be saying that she ought not to be called upon to give evidence in relation to a parenting order application which may lead her to incriminate herself in relation to the pending contravention application…The wife also says that she will make a cross-application which, if granted, would have the effect of discharging the order that it sought that she has now contravened.”

1. The Magistrate went on to observe that no order giving the wife sole power to make decisions concerning the children had been made and that the matter was likely to be governed by the Act which would leave the parental responsibility for long term decisions to be shared between the parties.

1. When the matter came back on 23 August 2004 the husband had prepared and handed up an application in the terms outlined by his counsel at the early hearing.  The wife had filed an application seeking orders that paragraphs 3, 4, 5, 6, 8, 9 and 12 of the orders made at the Family Court of Australia at Melbourne (Ballarat sittings) on 1 September 1997 be discharged.  It was clear that the issue of whether or not it was appropriate for orders to be made requiring the wife to cooperate in the release of information to the husband regarding the children’s schooling was alive in the proceedings before the Magistrate on 23 August 2004.

1. On 23 August 2004 Mr Hannan appeared on behalf of the wife and Ms Colla on behalf of the husband.  The proceedings commenced with a discussion concerning the wife’s intention to rely upon an affidavit by a general practitioner who had been seeing the boys.  The medical practitioner has stated that the release of the information might cause the boys stress.  There was some discussion relating to the relevance of the affidavit to which Mr Hannan indicated:

“…I’m not instructed to press [the medical practitioner] on the basis of the stress.  I would argue the reports are relevant to reasonable excuse.”

1. Her Honour then indicated that she saw the application for contravention as fatally flawed in that paragraph 6 of the orders of 1 September 1997 did not appear to place any obligation on the wife to do anything.

1. At that point her Honour invited the parties to permit evidence to be taken from the principal of the school, the evidence being given by video link between Melbourne and the country town where the witness was.  Her Honour had asked whether counsel would consent to her receiving the evidence whether the matter proceeded or not.  No objection was taken to that course and the school principal was sworn in.  He adopted a Proof of Evidence in which he stated that he had not provided the husband with information set out in the orders of 1 September 1997 because the wife had expressly forbidden him to do so.  He said that the mother had told him that she was the sole guardian of the children and that any contact proceedings by the husband had been discontinued.  He said:

“7.The boys are both good students and confident members of the school community.  They do not have any special emotional needs as far as the school is aware.”

He went on to say that the information was available and the only reason it had not been distributed to the husband was because of the wife’s directions.  The school was willing to distribute the information referred to in the order to the husband.

1. In the course of cross-examination of the school principal there was some discussion as to the relevance of asking the school principal what he knew of the children’s medical condition.  The following exchange took place:

“MR HANNAN          Your Honour, if we’re not proceeding on the form 18 contravention---

HER HONOUR:        Assume that you are for the purposes of getting evidence from this witness because we’re not getting him back, but what you’re looking at, I assume, is to make inroads into paragraph 7, ‘The boys are both good students and confident members of the school community.  They do not have any special emotional needs as far as the school is aware’.

MR HANNAN:           That’s correct.

HER HONOUR:        You can go behind that, if you like, but it might be difficult.”

1. The witness acknowledged that the wife had told him the father had not seen the children for the seven years and that she believed they were suffering from emotional trauma in relation to their father.  He also said that he had no reason to be concerned over their emotional health by reason of the release of the school reports to them.  He said that he had attended seminars and courses touching on pastoral care and emotional health of young adults. 

1. At the conclusion of the school principal’s evidence there was discussion as to what would become of the medical practitioner’s evidence.  Counsel was asked how the medical practitioner’s evidence became relevant to which he replied:

“If we’re not dealing with the form 18, then I assume we’re dealing with my client’s application for variation.

HER HONOUR:        Let’s work out what we are dealing with.   Ms Colla, last time you put it very eloquently that it didn’t assist me to find that there was an order.  This time is there anything else that you want to say?

MS COLLA:   What my client has also done is filed an application.  I’m not sure if it’s reached the file.  I’m assuming that is has.  It’s an application for enforcement of paragraph 6 of the orders dated 1 September.  What my client is looking for is for the wife to recall that direction to the school and to allow the documents to flow to him.

…

…I should as a matter of fairness let you know that the wife has on foot an application seeking to discharge that particular order and the balance of the child welfare orders in the September 1997 order.  My client would in response say that that application should be dismissed and that should be the end of the matter.”

1. There was then some discussion about what documents had actually been filed.  Her Honour then dealt with the contravention application and then invited the parties to make submissions on whether she ought vary the September 1997 order pursuant to Part VII as a consequence of having dealt with the contravention application or proceed to hear their more specific applications for variation.  Ms Colla on behalf of the husband invited the Magistrate to make orders that would enable the husband to receive the information that he was seeking from the school.  She submitted that it would be a child welfare order made in the best interests of the child.  She asked the Magistrate to pay attention to the evidence that had just been given in the enforcement proceedings concerning the school’s attitude towards the provision of the material.

1. Her Honour then said:

“…these parties have instituted fresh proceedings to get the – the wife to oppose any information being given and your client to get the information that he wants.  So why can’t I just deal with that as best I can today and dispose of those applications?

MS COLLA:   I’d like you to dispose of those applications.

HER HONOUR:        So first we have to find them.”

Ms Colla indicated that hers had been sent to the Court and Mr Hannan sought to hand up an application and an affidavit.  He then sought a short adjournment so he could get some instructions from his client and the matter was stood down for half an hour.

1. On return to the Court the Magistrate indicated that she thought it was a matter that could be disposed of that day.  There was then discussion about inspecting documents from the school that had been sought on subpoena.  Mr Hannan indicated that his client opposed the release of any such documents as they would “exacerbate emotional trauma to the children”.  He said:

“…In relation to the conduct of the variation applications today, my understanding, rightly or wrongly, is that today is the first return of each side’s variation application.  But that’s not my best argument, your Honour. 

I have instructions to seek that an updated report be prepared by Ms Esther Roodenburg...”

He went on to explain that Ms Roodenburg was a person who had prepared some reports in 1997 and 1998.

1. The matter was not pressed at that stage.  There was a ruling made on the release of the subpoenaed material for inspection and then there was further discussion relating to the competing applications that were before the Court.  Her Honour expressed a particular interest in drawing to the attention of counsel for the husband that several of the orders made in 1997 appeared to be now stale in light of events that had occurred since that time.

1. The matter was then stood down for an hour and a half and upon resumption Mr Hannan announced that his client was not in court but was waiting outside the front of the building.  He had asked to be excused from dealing with the minutes of orders proposed by counsel for the husband.  He said that he had instructions on the matters in proposed minutes but if there were any matters he could not answer he would go and get his client.  He said that he was ready to deal with the minutes with the instructions he had.

1. The case then proceeded with her Honour inquiring a little about the history of the matter from Mr Hannan and Ms Colla intervening or interjecting from time to time when she thought it appropriate.  Ms Colla drew her Honour’s attention to the existence of a report by Leanne Norris in 1996 and Mr Hannan indicated that Ms Roodenburg had also created some reports in 1997/1998 but he did not have access to them.

1. There was some discussion about the effect of the medical practitioner’s evidence and what use could be made of it, with the concession being made by Mr Hannan that the evidence of the medical practitioner was of a general nature without providing any specific details.  He said that it was drawn in that particular form on instructions by his client.  He specifically said:

“…we don’t have instructions to seek further a more detailed report from [the medical practitioner].  We don’t raise [? have raised] those issues with our client.  We don’t have those instructions.”

1. In the course of submissions the Magistrate read to Mr Hannan part of the report of Ms Norris and in particular the portion which said:

“[The mother] needs to seek some assistance herself to accept the reality of an ongoing relationship between the children and their father and may in fact need some psychiatric assistance to evaluate exactly what her view is of the children’s illness.  It is possible that if this is not addressed it may lead to a situation where Munchausen’s by proxy could possibly develop with the children constantly being labelled as ill and unable to function.”

1. The Magistrate then said that in light of that earlier report the general nature of the medical evidence now sought to be relied upon might be treated skeptically, to which counsel said

“I accept it’s general.

HER HONOUR:        But it’s worse than general because if what Ms Norris was talking about, it’s entirely consistent with your client taking the children to the doctor to have them diagnosed with something or for some reason which isn’t based in fact or need.

MR HANNAN:           I hear what you say, your Honour.  I did seek earlier on instructions that the matter go off for a report.  I understand, quite properly, you’ve determined that the matter should be dealt with today.  But absent a further report that may adduce the evidence that you’ve just – I don’t have any other evidence other than what I’ve got in the report of [the medical practitioner] and you’ve read to me the recent---

HER HONOUR:        It’s just that my view of her was that she was focused on the point of being obsessed and behaved in a borderline hysterical way when in court.  She simply couldn’t contain herself and that’s over two days.  You’ve had a very difficult job of it.  But one of the things I will in due course if I give reasons say is that I think these proceedings have to be gotten out of the way because I perceive a real risk of psychological damage to these children being in the same household in your client whilst she’s under the pressure of these proceedings.

MR HANNAN:           From my point of view it’s difficult to speak against that.”

1. Her Honour then entertained some submissions from Ms Colla and delivered a judgment.

Judgment

1. After identifying the issues and setting out some of the background, Bennett FM quoted extracts from a report of Esther Roodenburg where Ms Roodenburg reported that enforced access would not be in the children’s best interests.  She also quoted extensively from the conclusions of Leanne Norris previously referred to, concluding that the orders of September 1997 needed to be understood in terms of the material contained in those reports.

1. The Magistrate then set out the principles that apply in proceedings concerning parenting orders as contained in s 60B of the Family Law Act 1975 which she identified as:

(a)     children have a right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;

(b)     children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development;

(c)     parents share duties and responsibilities concerning the care, welfare and development of their children;  and

(d)     parents should agree about the future parenting of their children.

1. Her Honour observed that she had an opportunity to observe the parties in the body of the court both on 2 August 2004 and 23 August 2004.  She said they behaved consistently on both days:

“…the husband sat quietly.  The wife was highly agitated, fidgeting and not at all composed.  She made exclamations in Court and at one stage said she was leaving but did not do so.  I appreciate the opportunity of being able to observe the wife’s reaction to parts of the case and interchanges between me and counsel.  I found it to have been of some benefit in coming to my conclusion.”

1. Her Honour found that the wife made no secret of the fact that the boys should have no contact, even indirect contact, with the husband. 

1. She turned to deal with the competing applications before her by reference to the various considerations set out in s 68F(2) of the Family Law Act.  She accepted that the child B had told his mother he wanted no contact with the husband or to have any information about himself or his home passed on to the husband.  She indicated that the medical practitioner’s evidence was that he had been the family physician for seven years and had counseled the boys who had “a significant stress component”.  The doctor had indicated that the release of any information would result in increased stress levels and therefore aggravate any pre-existing health problems.  She indicated, however, that the medical practitioner’s evidence did not detail what condition was suffered by the children, particularly B and although the wife had been invited to provide that information it was not forthcoming.  Assessing as best she could the evidence from the limited material before her she concluded

“I have serious reservations about the capacity of [B] to express any views which is [sic] not entirely consistent with that of his mother.”

1. Her Honour observed that B’s relationship with his father at a practical level was non-existent.  The mother was his primary and sole caregiver.  Her Honour expressed significant concern with the wife’s demeanour concluding that any anxiety of the wife would be passed on to B in some way.  However, she said:

“Against that, I have to weigh the objects of the Act and the long term benefits that [B] may derive from the knowledge that the husband remained interested in his welfare.”

1. The learned Federal Magistrate then made reference to the application that had been made to call Ms Roodenburg.  She said:

“…I appreciate that natural justice requires that the parties be given an opportunity to present all relevant evidence to their case and that that opportunity has to be reasonable in all of the circumstances.  However, in my view, that does not justify an unlimited right to call expert evidence, especially when it is inconsistent with the interests of the children that one of the parties do so.  As I have indicated, the wife came to court today armed with an application to vary, an affidavit by herself and an affidavit by the children’s treating doctor.  In my view, to subject [B] to assessment and a report and to subject his household (his mother) to another hearing is likely to lead to significant turmoil or upset for him.”

1. She then turned to the evidence of the school principal of the school, and accepted his evidence, quoting from the proof of evidence that, amongst other things:

“…in [his] dealings with [the father] [he] had observed him to be reasonable, genuinely interested in the boys and wanting information under the order so he could see how the boys are growing up.”

1. Under the heading of “The need to protect the children from physical and psychological harm caused by abuse, ill treatment, violence or other behaviour” the Magistrate said:

“…the wife presented in a highly agitated state.  Her demeanor and behaviour in Court leads me to have some concerns about the extent to which she could withstand pressure of proceedings if they are left pending.  I had formed those concerns based on my own observation of the wife prior to being made aware of Ms Norris’ early report.  Importantly, I have concerns about the impact of her ability to emotionally care for [B] when she feels under threat of orders being made by this court which would give the husband even remote contact with the children.  However, the orders I make need not trouble [B] at all unless the wife makes it a problem for him.”

1. Under the heading “The attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents” the Magistrate said:

“I simply do not have enough evidence to comment on the attitude to the children to the responsibilities of parenthood demonstrated by each of the children’s parents, save that I am satisfied the wife would totally wish to exclude the husband from [B’s] life and also the life of his older brother.  I understand the husband has paid child support for at least 7 years.  There are child support proceedings listed in this Court in 2 days.”

1. She went on to say that it was an absolute imperative in this case to make an order that would be least likely to lead to the institution of further proceedings.  She did not, however, explain how an imperative could be met by any order that she actually made in the case.

1. The Magistrate then concluded:

“In assessing what is in [B’s] best interests I find that any information which the husband seeks should not necessarily impact upon [B].  It is not my intention for these orders to establish a conduit through which the husband can then communicate with [B] about experiences that he knows [B] has had by way of school performance and the like.  In my view, it is in [B]’s best interests that his father, the husband in these proceedings, has some knowledge of his progress at school and knowledge in the event that [B] becomes ill of that illness.  I think that is consistent with the object of the Act including that children have a right to know both parents.  I am seeking to preserve the (one-way) bond between the husband and his son (even if [B] is oblivious to it at this stage).”

1. Her Honour then dealt with an oral application by the wife that the husband be restrained from attending at or near anywhere where she and the children reside or from making contact with any of them by telephone.  She declined to make the order on the basis that there was no evidence that there was any real risk that the father would approach B or his elder brother.  She concluded her judgment by directing that the copies of the orders and judgment be served upon the school principal and B’s medical practitioner so that each of them would have an understanding of the Court’s perspective in the event that B approached either of them about the orders.

The appeal

1. By her amended Notice of Appeal filed 14 December 2004 the wife sought to have orders 2 to 7 of the orders of the Federal Magistrate discharged.  Those orders provided as follows:

(1)THAT paragraphs 3, 5, 6 and 9 of the Orders made 1 September 1997, be, and are hereby discharged.

IT IS FURTHER ORDERED BY THE COURT:

(2)THAT in the event that the child [B] born April 1989 wishes to have contact with the husband, the wife facilitate such contact occurring.

(3)THAT the husband and the wife do all acts and things necessary and sign all such documents and provide all such lawful authorities as are required to enable the husband to contact the proper officer of the school at which the child [B] may from time to time attend for the purpose the following:

(a)To discuss with a proper officer of the school matters relating to [B]’s schooling;

(b)To arrange with a proper officer of the school for the husband to be sent school reports, photographs and other like items (the cost of postage and ordering photographs and any other charges associated with the provision of information to be at the sole expense of the husband);

(c)To ascertain from the proper officer of the school [B]’s enrolment status and the quantum at which [B]’s school fees are payable and the amount of any bursaries applicable to [B]’s attendance at the school;

(d)To ascertain from the proper officer of the school the name address and telephone number of any school to which [B] is subsequently transferred or to be enrolled.

(4)THAT paragraph 3 of this Order has effect from 1 September 1997.

(5)THAT the wife be, and is hereby, restrained from hindering the operation of paragraph 3 of this Order.

(6)THAT in the event that the wife fails to comply with paragraph 3 herein, within 48 hours oaf request to do so by the husband, pursuant to section 106A of the Family Law Act an officer of this Honorable Court be appointed to execute deeds and documents in the name of the wife to give full force and effect to the orderly implementation of paragraph 3 hereof.

(7)THAT paragraph 8 of the Orders dated 1 September 1997 be varied so that the wife keep the husband advised of any major illness, accident or injury in respect of the child, such advice to be given within 48 hours of an incident occurring (providing that nothing in this order requires the child to have contact with the father).

(8)THAT otherwise all extant applications be dismissed and removed from the active pending cases list.

(9)THAT the Court certifies that it was reasonable for the parties to employ an advocate.

IT IS DIRECTED:

(10)THAT my reasons for judgment this day be transcribed, and when transcribed, a copy be placed on the court file and one copy be sent to the solicitors for the wife and three copies be sent to the solicitors for the husband.

(11)THAT the solicitors for the husband cause a copy of these orders and the reasons for judgment this day to be provided to;

(a)[The School Principal];

(b)[The Medical Practitioner].

AND THE COURT NOTES:

THAT pursuant to S65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

1. In addition the wife sought the discharge of orders 4, 8, 11 and 12 of the orders made 1 September 1997 that provided:

“4.In the event that the said children wish to have contact with the husband in any form (telephone, correspondence or face to face), the wife shall use her best endeavours to facilitate such contact.”

“8.The wife keep the husband informed of any significant illness or injury relating to either of the said children or of the need for hospitalization.”

”11.That until further order the wife agrees to attend upon a counsellor for the purposes of receiving counseling and advice in respect of her parenting of the said children”

“12.That until further order the wife provide the husband with a post office box number for him to correspond with the children and keep her solicitor informed of her residential address.”

1. She further sought orders in the appeal

“That the father be restrained from contacting or attending the school or any place that the school attends.

That the husband be restrained from attending at or anywhere near the mother and the children, work or reside or at any family member’s property at which they may be attending, or from making contact with any of them by telephone.

That the father be restrained from making any further applications to the court without the approval of the court.

That the mother have sole long term care welfare and responsibility for the child [B].”

1. The grounds of appeal in the Amended Notice fell under eight headings with several sub-headings.  It is unnecessary that I set them out in detail but I shall endeavour to try to summarise them.  They are as follows:

1.      That the learned Magistrate failed to give any or any sufficient weight to the evidence presented, especially the affidavit of the medical practitioner and to the argument that the father had had no contact for over seven years nor had any information been released to him for over six years.

2.      That the learned Magistrate erred in failing to give any or any sufficient weight to the wishes of the child.

3.      That the learned Magistrate was in error in failing to adjourn the matter to allow the wife to obtain another expert opinion.

4.      That the learned Magistrate made factual errors including that the school principal particularly knew the child B well and was in a position to make a judgment on his emotional health and well being.

5.      That the learned Magistrate failed to give weight to several relevant considerations particularly that the husband provided no material evidence that the release of the information would benefit the child.

6.      That the judgment was made on inadequate materials and that further information could have been obtained if the case had been adjourned to a final hearing as requested.

7.      That the learned Magistrate erred in law in relation to the best interests of the child.

8.      That the learned Magistrate exhibited bias in the proceedings.

1. At the hearing of the appeal the mother appeared in person.  She brought an application seeking to admit further evidence which application was refused by me.  She then proceeded to argue her appeal without any apparent reference to the manner in which the matters were set out in the amended Notice of Appeal.

Appellate principles

1. I think it is appropriate and necessary that I identify at this stage some appellate principles which are likely to influence the outcome of these proceedings.

1. This is an appeal from a discretionary judgment.  It is insufficient for the appellant to demonstrate to the Court that a different outcome to the proceedings might be preferable.  The limited nature of the appeal process must be recognised, as the numerous authorities in relation to the appellate review of discretionary orders demonstrate:  see, for example, House v The King (1936) 55 CLR 499 at 505; Lovell v Lovell (1950) 81 CLR 513 at 519; Gronow v Gronow (1979) FLC 90-716; (1979) 144 CLR 513. Unless there has been

·         an error in approach or principle,

·         the failure to take into account relevant circumstances,

·         the taking into account of irrelevant circumstances,

·         the making of findings of fact unsupported by the evidence,

the challenge must be that the orders fell outside a reasonable exercise of discretion, that is, that the orders were “unreasonable or plainly unjust”.

1. It is not open to the appellant to endeavour to reargue the case in a manner that is fundamentally inconsistent with the manner in which the case was run by her counsel at trial, unless it can be clearly demonstrated that her counsel acted with such incompetence that the welfare of the child was clearly jeopardised by the manner in which the case was presented.  (See OP v TP an Another (Conduct of Counsel) (2002) 30 Fam LR 281). In order to interfere with a discretionary judgment the court must be satisfied that incompetence on the part of counsel has been established; and that the result would have been different had the alleged incompetent handling of the matter by counsel not occurred. (See Strickland v Washington 104 S Ct 2052 [1984]; DB v Director of Child, Family and Community Service [2002] BCCA 55.)

1. It is not open for the appellant to assert that the Magistrate was biased by reference to the Magistrate’s conduct in the course of the trial when her counsel made no application to the Magistrate to disqualify herself by reason of any perceived bias.  (See Vakauta v Kelly (1989) ALJR 610.)

1. Apart from a momentary attempt to seek an adjournment in order to obtain a further psychologist’s report no attempt was made on behalf of the wife at trial to adjourn the proceedings nor was any objection taken to the manner in which the proceedings were heard.  No request was made to cross-examine the husband nor was any suggestion made that the wife’s evidence should be expanded.  When the Magistrate drew to the attention of the counsel for the husband her observations relating to the wife’s demeanour in the body of the court, no attempt was made to explain that demeanour by reference to other matters such as physical impairments of the wife or other aspects of her health that would explain it in a way that was inconsistent with the conclusions the Magistrate appears to have ultimately drawn relating to the demeanour.

Oral argument

1. The wife’s first complaint as argued before me is that the Magistrate placed inappropriate reliance upon the evidence of the school principal in that his evidence was given in a different set of proceedings, namely the enforcement proceedings, and the school principal had not demonstrated himself to be an expert on the child’s emotional health. 

1. It was clear that when the witness was interposed in the proceedings her Honour was intending to apply the evidence to the parenting proceedings as well as the enforcement proceedings, even though it was apparent from the discussion that the enforcement proceedings were doomed to failure.  Mr Hannan never objected to the evidence being used in the parenting proceedings.

1. It was in my view open to the Magistrate to accept the school principal’s evidence that the school was unaware of any special emotional needs of the children and that the school could see no reason why the information sought could not be handed to the children’s father.  His evidence was that he was experienced in pastoral care of students and their families and it was open for the Magistrate to accept that evidence.

1. The second ground orally argued was that the Magistrate was wrong in rejecting the medical practitioner’s evidence.  It is to be remembered that an adjournment of the proceedings had been obtained so that the medical practitioner could prepare his evidence.  It consisted of an affidavit annexing three reports, one of July 2001, one of 17 March 2004 and the most recent report of 17 August 2004.  In the first report, without detailing what illnesses the boys experienced, the medical practitioner says that no doubt stress contributes to them.  In the second report the medical practitioner says as follows:

“I am a Medical Practitioner at…and in this capacity I have been seeing [A] & [B] for seven years. 

Having spoken with [A] & [B] over the years I am aware that they do not wish to have contact with their father in any way. 

Furthermore any release of personal information would likely be detrimental to the health and welfare of these children.”

1. The third report refers back to the second report saying:

“The theme of not wanting to have any contact with their father or the release of personal information has been a consistent theme for several years. 

The release of such information therefore would result in increased stress levels and therefore would aggravate any pre-existing health problems.”

1. The objection taken to the probative value of the reports was that without having some understanding of what it was that the children were suffering from, the Court was in no position to determine whether the release of any information from the school concerning B’s academic progress would have a detrimental effect on his health.  When the wife was invited to apply to seek to have any further information forthcoming from the medical practitioner her counsel indicated that he was under strict instructions to oppose any further adjournment of the matter for that purpose.

1. In those circumstances it is difficult to see what the Federal Magistrate was to make of the evidence of the medical practitioner or how she erred in making an order which would enable the school to provide material concerning B’s academic progress to the husband.  In the absence of any material from the treating doctor or other suitably qualified person it was quite open in my view for the Magistrate to reject the submission that there would be a detrimental effect to the child if the information was released.

1. The next matter raised by the mother was that there was no basis upon which the Magistrate ought to have concluded that she had serious reservations about the capacity of B to express any views which were not entirely consistent with that of his mother.  She submitted it was quite inappropriate in forming those views for the Magistrate to have relied upon the untested family report created some seven years earlier.

1. Ms Norris’ report found its way into evidence by reference to it by counsel for the husband with no objection from counsel for the wife. Its significance, if any, was that there appeared to be no diminution of the mother’s views over seven years that the father had little if anything to offer his children and that her resistance to the orders now sought was consistent with the views that she had provided seven years ago. The Magistrate coupled that with her observations in Court of the wife during the proceedings, and the energy that she appeared to have put into the proceedings to conclude that any wishes of the child B would be unlikely to be anything other than those which had been shaped by those of his mother. What appeared to flow from that is that it was a basis upon which she concluded that whilst the wishes may exist, they were not necessarily wishes that were consistent with the best interests of the child. Indeed, her Honour read s 60B as importing that the best interests of the child were most consistently served by enabling that child to have some form of relationship with the father. Whilst a direct relationship was impossible in this case, at least ultimately the knowledge in the child that the father was showing some interest in him might serve the best interests of the child in the long term. Such benefits it was said would outweigh any potential risk that the child might suffer by being distressed upon learning that the father had access to his school records.

1. Next the appellant sought to take objection to the apparent reliance by the Magistrate on her demeanour in the courtroom.  In Zantiotis (1993) 16 Fam LR 418 the Full Court remitted the matter for rehearing after allowing appeal on the grounds that the trial judge had drawn inferences from demeanour of a person sitting in the body of the court without giving the parties or their counsel an opportunity of answering or in some way dealing with the inferences that were to be drawn from that demeanour. In the course of their reasons for judgment the Full Court quoted from the headnote in Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 where it was said:

“Judges may make their own observation of witnesses outside the witness box but if these observations are to have a significant influence on the decision, counsel must be informed and given adequate opportunity to respond.  Otherwise (per Kirby P) there will be a breach of the requirements of procedural fairness.”

1. In this case as already referred to, the Magistrate drew to the attention of counsel for the husband her observations of the client’s behaviour in the courtroom stating that the inference that she would draw was that the mother was likely to create a real risk of psychological damage to the children whilst under pressure of the proceedings.  Her counsel took no objection to that course at the time nor did he ask for an opportunity to seek instructions and see if he could explain her demeanour. 

1. Ultimately the Magistrate used the demeanour to reach a conclusion that the mother’s anxiety is likely to be somehow influencing the child B and that all the more attention needed to be placed when making orders that are likely to exacerbate that situation.  Notwithstanding that position she still concluded that there was benefit to B if his father was kept abreast of his school progress in the forlorn hope that one day B may well appreciate his father’s continued interest in him.  It is difficult to see what, if any, error the Magistrate committed in passing comment upon the mother’s demeanour and taking it into consideration in determining whether or not it was appropriate to make an order contrary to her instructions and application.

1. The mother next argued that the order that required the wife to keep the husband advised of any major illness, accident or injury was contrary to the evidence of the medical practitioner and to a concession made on behalf of the husband’s counsel in the course of argument.  For reasons already explained, the medical practitioner’s evidence was discounted.  As far as counsel’s supposed concession was concerned the discussion took place in context of an examination of whether or not it was appropriate to maintain order 8 of the earlier orders that the wife keep the husband informed of any significant illness or injury relating to either of the said children or the need for hospitalisation.  Whilst Ms Colla said that having regard to the age of the child she did not have an objection as a barrister for letting that one go, her Honour interrupted saying:

“Except I do think he needs to be advised of significant illness or injury.

MS COLLA:  Significant illness or injury absolutely because he needs to know what’s going on and that, just given the context and the circumstances, is important.”

Even if there had been a concession made by Ms Colla it was quickly withdrawn when the mood of the court was detected and nothing was subsequently put by Mr Hannan that sought to rely upon such a concession having been made.

1. The wife next sought to argue as there was no explanation by the father as to why he had sought little if any information about the children since 1999 that it was in the child’s best interests to make the order.  It seems from reading the judgment that the Magistrate was conscious of the pace at which proceedings had developed.  The husband’s evidence was that he had made a request of the school in March 2001 for information and received no response.  He telephoned them a number of times during 2001 and 2002.  He raised the issue with the wife’s solicitors in 2003 and finally sought and obtained legal advice on the matter in March 2004.  He was not cross-examined upon his affidavit and the material was clearly before her Honour.  There is nothing to suggest that the apparent lack of court room action relating to the enforcement of the order was something that ought to have attracted the Magistrate’s attention.  She was conscious that the information had not been made available to the father for several years but formed the view that in the long term it would be of benefit to the child to at least know that his father was showing some interest in him.

1. It was submitted that there was no professional evidence upon which the Magistrate could reach such a conclusion.  However, judicial officers applying the Family Law Act are frequently called to decide upon issues relating to the welfare of children based upon their own perceptions of that welfare unassisted by any views expressed by psychologists, counsellors and the like.  It is ultimately the responsibility of the judicial officer hearing these decisions to harken to the evidence but to make the order that the judicial officer concludes in all of the circumstances is appropriate to the welfare of the child.  There are not necessarily universal views held amongst persons as to how the best interests of a child will be served but absent any clear conflicting evidence which is in itself compelling, the matter is particularly at large.

1. In her oral submissions the mother returned to the theme of the process conducted by the Federal Magistrate as being unfair.  The difficulty that the mother faces in succeeding in that submission is that the matter was conducted by counsel on her behalf who took no objection to the process nor sought to complain about it.  He was invited to address the Court upon the evidence that he wished to rely upon and to make submissions in relation to the orders as they were sought by each of the parties.  Those submissions appear to have been given consideration by the Magistrate although in many circumstances they were rejected.

1. Following the hearing of 2 August 2004 the mother was given an opportunity to present such evidence as she thought might be relevant in the proceedings. She filed an affidavit of her own and one by the medical practitioner. An application to further adjourn the proceedings to enable a psychologist’s report to be prepared was raised by counsel on her behalf but was not persisted with when the Magistrate expressed the view that the proceedings should be heard and determined on 23 August 2004. The Magistrate’s dealing with that application was entirely consistent with s 97(3) of the Family Law Act which provides that “in proceedings under this Act the court shall proceed without undue formality and shall endeavour to ensure that the proceedings are not protracted”.  It was clearly open to the Magistrate having regard to the history of the proceedings as they were outlined to her to conclude that a further adjournment and the preparation of a psychological report was likely to be much more damaging to the child than the provision to the father of material relating to the child’s educational progress.

1. There are some aspects of the orders that were made about which there is substance in matters raised complained of by the mother.  Order 3(c) includes the provision of information relating to the quantum of school fees payable for B.  There is no present liability for the father to meet such school fees, and whilst his obligation to make capital payments to the wife under property orders are calculated by reference to amounts provided to the child by way of a school bursary, the amount of the fees themselves do not appear to be relevant to any issue that was before the Magistrate.  In the appeal before me counsel conceded that it would be appropriate to allow the appeal to remove the reference to the school fees.

1. Order 4 provided that the mother was to withdraw her opposition to the provision of material retrospectively from 1 September 1997.  Given that the father had an opportunity to inspect all of the relevant documents that had been produced by the school in response to the subpoena on 23 August 2004 there seems little purpose to be gained by ordering a retrospective obligation on the mother or the school to now produce those documents again.  There is nothing in the reasons for judgment that explain why it would be appropriate to make that particular order and in my view it is difficult to justify its existence by leaning it upon the crutch of the supposed long term benefit that B may derive from the knowledge that his father was able in 2005 to obtain his old school reports.

1. Section 65D empowers a court exercising jurisdiction under the Family Law Act to make such parenting order as it thinks proper.  Section 64B(2)(d) provides that the parenting order may deal with any aspect of parental responsibility for a child.  It has not been submitted to me that the orders that were made in this case were made in an excess of jurisdiction.  What has been submitted is that evidence before the Federal Magistrate did not support the making of the orders.  The issue of what ultimately is in the best interests of the child and is thus a proper order to make falls squarely within the discretion of the judicial officer called upon to make the order.  Frequently there are powerful reasons asserted why the order should not be made.  However, ultimately the making of the order is an exercise in judicial discretion which an appellate court can only interfere with in the circumstances outlined earlier in this judgment.  The orders as made may be seen as only having some theoretical benefit for the welfare of the child whilst at the same time carrying with them some risk that the mother may somehow communicate with the child the perils of the father having access to some information.  However these were matters that were weighed up by the Magistrate and nothing has been demonstrated that would indicate that either the process that was adopted nor the matters that she gave consideration to, fell outside the proper ambit of the exercise of her discretion.

Orders

1. The appeal be allowed in part.

1. The orders made by Federal Magistrate Bennett on 23 August 2004 be amended by deleting from paragraph 3(c) the words “and the quantum at which B’s school fees are payable” and by deleting paragraph 4 of those orders.

   I certify that the preceding 74 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Kay
   The 11th day of February 2005
   
   Associate: Elizabeth Hore