AGF & LLS

[2006] FamCA 923

[2006] FamCA 923

FAMILY LAW ACT 1975

IN THE FULL COURT      
OF THE FAMILY COURT OF AUSTRALIA                  Appeal No NA62 of 2006
AT BRISBANE   File No BRF5353 of 2003
(AND MELBOURNE BY VIDEO LINK)
BETWEEN:

AGF
Appellant Father
- and -
LLS
Respondent Mother
- and -
THE DIRECTOR-GENERAL, DEPARTMENT OF CHILD SAFETY, QLD
Intervener
INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

CORAM:  KAY, COLEMAN & BENNETT JJ
DATE OF HEARING:                 5 September 2006
DATE OF JUDGMENT:             5 September 2006

APPEARANCES:  The Appellant Father in person.

Mr Coulson of Counsel, instructed by Andersons Solicitors, Unit 22, 1048-1052 Beaudesert Road, Coopers Plains, Qld 4108, appeared on behalf of the Respondent Mother.

Mr Forrest of Counsel, instructed by the Crown Solicitors, 50 Ann Street, Brisbane, Qld 4000, appeared on behalf of the Intervener.

Mr Linklater-Steele of Counsel, instructed by Williams Lawyers, PO Box 340, Coorparoo, Qld, 4151, appeared on behalf of the Independent Children’s Lawyer.

AGF & LLS
NA62 of 2006
CORAM:  Kay, Coleman & Bennett JJ
DATE OF HEARING:         5 September 2006
DATE OF JUDGMENT:     5 September 2006

Catchwords:           APPEAL –  INTERIM CONTACT - 9 year old child currently residing with her mother and has had no contact with her father for 2 years – After 50 days of hearing the father brought an application for interim contact pending a further adjournment - The father asserted that just received expert evidence was that there should be an immediate resumption of contact – The trial Judge considered that the expert evidence was to the effect that contact be conditional upon there being counselling of the child and father and the father abandoning his case for residence, neither condition being met – Transcript of the expert’s evidence was not provided – The trial Judge’s interpretation is corroborated by other material before the court - no error in the trial Judge’s dismissal of the application.

COURTS AND JUDGES – Bias – After the father’s application for interim contact was dismissed the father sought that the trial Judge disqualify himself for bias – Many of the submissions regarding the bias application were bound up with the interim contact application – None of the aspects of the trial that the father complained of were indicative of bias.

KAY J:

1. In accordance with the provisions of s 94(2A) of the Family Law Act 1975 (Cth), the Court being of the view that the case does not raise questions of general principle, proposes to deliver judgment in short form.

1. The appeal is by the father against some interlocutory rulings made by Collier J in the course of a trial which has been ongoing now for some 14 months. 

1. The matters the subject matter of the trial relate to issues of residence and contact for a child of the parties, L, who was born on 18 December 1995. 

1. As a result of some interlocutory orders that were made by Barry J in 2004, the child has, since that time, been residing with her mother and there has been no contact between the father and child.

1. The proceedings before the trial judge concerned issues of residence, that is, with whom the child should live, and issues of contact, namely whether there should be any, and if so, what contact subject to conditions or otherwise between the child and either of her parents.  The matter has a very long and convoluted history as can be seen from the length of the proceedings so far.  It has been to the appellate court on several occasions in relation to the interlocutory proceedings and in relation to at least one semi-completed trial before O'Reilly J.  The matter was also before the Full Court following interim orders that were made by Jordan J.

1. The current appeal concerns two applications that were made to Collier J on 30 June 2006 when his Honour, having indicated that the trial would be resuming and hopefully concluding in what his Honour described as a "stanza" commencing on 11 September 2006, the father sought to make an application seeking interim contact with the child, L, and further, when that application was refused, sought an order that his Honour disqualify himself from continuing with the trial.

1. His Honour made orders on 30 June 2006 granting leave to the father to make oral applications for interim orders and for disqualification and then dismissed both applications. 

1. The father has appealed against the orders that were made and has challenged the reasons for judgment given by the trial judge in relation to both the non-contact order and the bias order.  The father has filed a notice of appeal that contains very many grounds of appeal and has filed written submissions in relation to the matter which occupy some 64 pages.

1. I do not propose in the course of giving short reasons for judgment to deal seriatim with each of the grounds of appeal, many of which are properly described in the submissions of the respondents to this appeal as being scandalous, offensive or rambling assertions.  There are, however, some substantial matters that I should draw short attention to.

Interim contact

1. At issue in relation to the interim contact arrangements was the question of whether it would be in L's interests to put into place a system of contact with the father in circumstances where there were serious allegations as to the child having been alienated by the mother against the father and as to the manner in which it might be appropriate, if those allegations were substantiated, to overcome the alienation or whether the imposition of a contact regime in the circumstances would be beneficial for the child or may do more damage than good.

1. His Honour expressed in his reasons for judgment dismissing the interim application that the evidence that was before his Honour that would support an immediate resumption of the contact arrangement was that of Professor Nurcombe, who had provided some psychiatric reports relating to the situation that the child found herself in.  His Honour said of the evidence of Professor Nurcombe:

‘Without making any concluded finding in this regard, I had understood the evidence of the professor to have at least two conditions, one of which there should be some counselling first and, secondly, that the father must abandon his application for residence.  As I understand it, that is not part of the proposition put to me by the father in advancing his argument.’

1. The father, in the course of his submissions to us, said that he understood the professor's evidence to clearly be that the welfare of the child demanded an unconditional and immediate resumption of contact and that it was not then open to the trial judge in the circumstances to act other than in accordance with that recommendation.  We have not been provided with the transcript of the professor's oral evidence that had taken some three days and had concluded apparently immediately before this application was made. Accordingly I am unable to accept as accurate the suggestion by the father that the professor's evidence was that which he asserted in the course of his submissions, namely as I have already indicated, an unconditional and unequivocal suggestion that the only outcome that was consistent with the child's best interests was the immediate resumption of cohabitation.

1. There is corroboration, however, within the material that is before us of the understanding of the evidence as expressed by the trial judge and without having to rely on the principle that the appellant asserting error must demonstrate error, I can in fact go further and say that there is evidence that not only was there no error but that the finding by the trial judge is absolutely consistent with the evidence as it was.

1. We do have some of the transcript annexed to the submissions on behalf of the independent children's lawyer and there are two passages that corroborate entirely the understanding expressed by the trial judge.  At p 5836, whilst Mr F is making some submissions relating to the question of contact, Mr Linklater-Steele, who is counsel for the Independent Children's Lawyer says as follows:

‘I am loathe to interrupt Mr [F] in submission, but just on a point of clarity, it was certainly my recollection of the evidence that I asked whether the counselling was a precondition and the response was "yes".  So if Mr [F] has misheard that, he is in error, but he properly in the course of submission, your Honour, should, having known the true position as to  the evidence, perhaps if he wishes to modify his position as to counselling.

MR [F]:  If in fact Mr - I heard all that.  If in fact what Mr Linklaterr-Steele is - correct, and I have no reason to doubt that it is at the moment, then we just simply defer contact until next weekend...’

1. This is in my mind an admission and corroboration of the first of the two preconditions that were necessary, that is, that there would have to be some counselling first, albeit that Mr F seems to suggest that that could be in effect some cursory counselling rather than some complex, detailed and ongoing counselling that would lead to a reconsideration of the position before contact was resumed.

1. The second precondition that his Honour talked about was that the father must abandon his application for residence.  That is a precondition that it was said Professor Nurcombe had to be met before he could see contact being resumed; that is, the child must feel effectively secure in her present residential arrangements which on the evidence before the trial judge was where the child was progressing satisfactorily in most aspects of her life.

1. There is corroboration for the professor having said that in the submissions that were being made by Mr F at p 5850 where he says as follows:

‘Well, the issue is simply this:  at no time in this trial, up until the view was expressed yesterday by Prof [N], was there any suggestion from anyone, including your Honour, that I should abandon my case for residence, no-one has ever mentioned it, not in any report, not in any affidavit, not a suggestion.  Now, out of the - a bolt out of the blue, suddenly Prof [N] is heard to say or appears to have been - well, he was heard to say it - but he appeared to be under the - well, of the opinion that I should abandon my case for residency as a precondition to contact. 

Now, clearly I was taken by surprise…’

He then went on to make it abundantly clear that he was not abandoning his case for residence. 

1. So in the circumstances, the trial judge was faced with a situation where the child had not seen the father for some two years.  The issue before the trial judge that has not yet been concluded is whether any contact was appropriate, and if so, what contact, as well as the competing residence applications, and in the circumstances, the trial judge concluded that he was not satisfied that it was appropriate to make an order at that time. 

1. This is an appeal from a discretionary judgment. Unless it can be demonstrated that the judgment offended the legal principles that were relevant or was based on a misunderstanding of the evidence or reached a result that was patently unjust, it would be quite inappropriate for an appellate court to interfere with the judgment.  In the circumstances, I am not satisfied that any error has been demonstrated in the manner in which the trial judge dealt with the issue of the interim contact arrangements.

1. It may well be ultimately that it is in the best interests of this child to resume a relationship with her father.  That may well have to be appropriately structured and it may have to be advanced very slowly indeed, but these are matters which the trial judge will no doubt have to give due consideration to in determining the eventual outcome of the proceedings.

Bias

1. The second aspect of today's appeal concerns the refusal of the trial judge to disqualify himself for bias.  Much of the bias submission is interwoven with the interim contact judgment.  At one point in his submissions to us, Mr F said if the judge was not wrong on interim contact, there is no basis for a disqualification.  When he was asked to expand upon his disqualification argument, he then took us to some other aspects of the trial that he was complaining of.  He said that the trial has taken far too long, and it would appear on the face of it that that is correct, but the fact that it has taken far too long may be as a result of many complicated issues, none of which would demonstrate that the trial judge has in any known sense of the appropriate test demonstrated an issue of bias or a prejudgment of the issues that have to ultimately be determined.

1. I think I should for a moment just indicate the relevant principle which I do not think is under challenge.  It is repeated by the trial judge in the course of his reasons for judgment, that is, whether a fair-minded lay observer might reasonably apprehend that the judge may not bring an impartial and prejudiced mind to the resolution of the issues.

1. The issues to be resolved in this case concern the residence of the child and contact issues.  Those issues have been aired now, as we have been reminded, for over 50 days.  The whole of the evidence is not before us and indeed, very little of the evidence is before us.  There is no record of the comments that have been made by the judge that would lead one to conclude that the judge has expressed a predetermined view at this stage or a view that would demonstrate to the mind of the fair-minded lay observer that the father is getting anything other than an unbiased and fair hearing in the proceedings.

1. In the circumstances, it is my view that there is no substance in the bias ground and accordingly, I would dismiss it. 

1. I make one other comment in relation to it:  it is clear that when the father first mooted the proposition that he wanted some interim contact, that is, the day before the judgment in relation to interim contact, the trial judge said that he would not entertain such an application and he said so in some fairly strong terms.  However, he retreated from the proposition that he would not entertain the application.  He did entertain the application and he then ruled against the application.

1. Even if his Honour had been wrong in saying that he would not entertain the interim application, that does not in my view amount to an observation that he would bring an unprejudiced view to the ultimate applications that he had to deal with in these proceedings and for which he was asked to disqualify himself, namely the determination of the ultimate issues relating to residence and contact.  The fact that he felt it was inappropriate to entertain at the closing stages of the proceedings an application for interim contact where there had been none for two years does not in my view reflect upon his Honour's integrity in determining the issues that ultimately will fall for him to determine in these proceedings.  In the circumstances, I dismiss the appeal.

COLEMAN J:

1. I concur that the Court should dismiss the appeal for the reasons given by the presiding judge.  There is only one matter in respect of which I would add a brief comment and that relates to the absence of transcript.  The appellant has submitted repeatedly that his ability to prosecute his challenges to the two orders with which this appeal is concerned has been impeded by his inability to afford, he suggests, the $70,000 cost of the transcript.

1. As the reasons for judgment of the presiding judge and a reading of the transcript of the 16 pages during which the appellant made the submissions to the trial judge, namely pp 5821 and 5837, make clear, the transcript of Professor Nurcombe’s evidence, albeit perhaps in a different way than as is now suggested and was suggested at the trial, was always going to assume critical, if not decisive significance in respect to the first complaint agitated by the appellant. 

1. The oral submissions made to the court today suggest that the appellant anticipated that the transcript was likely to assume decisive significance, at least in the way the appellant perceived his complaint to be framed with respect to the second count.  The affidavit which the appellant proposed to place in the appeal book from p 65 and following is difficult to reconcile with the suggestion that the appellant could not have afforded to obtain transcript of Professor Nurcombe’s evidence, which in oral submissions the appellant suggested to have involved expenditure of about $6000.

1. It is easy for these sorts of claims to be made and in my view worth setting the record straight in terms of the realities in respect of the transcript.  Assuming that the total transcript may have cost $70,000, there was never any necessity to obtain the whole transcript.  All he required was, at the most, $6000 for Professor Nurcombe’s evidence.  The absence of that transcript is in my view not inadvertent.  I otherwise have nothing to add to the reasons provided by the presiding judge and I would make the orders that he proposes.

BENNETT J:

1. I, too, would dismiss the appeal against the two orders.  I agree with the reasons of the presiding judge and those of Coleman J and I have nothing further to add.

KAY J:

1. The orders of the court will be:

1.        The appeal filed 28 July 2006 be dismissed.

2.        The appellant pay the costs of the mother and the independent children's lawyer in the sum to be agreed and in default of agreement, as assessed, and that the appellant pay $2500 towards the costs of the intervener.

I certify that the  preceding
 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.



Associate