AGF & LLS

[2005] FamCA 137

[2005] FamCA 137

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT BRISBANE

Appeal No. NA78 of 2004

File No. BR 5353 of 2003

IN THE MATTER OF:

AGF

Appellant/Father

- and -

LLS

Respondent/Mother

- and -

DIRECTOR-GENERAL, DEPARTMENT OF CHILD SAFETY

Intervener

REASONS FOR JUDGMENT

BEFORE:Bryant CJ, Kay, and Boland JJ

HEARD:17 February 2005

JUDGMENT:             9 March 2005          

APPEAL SUMMARY

MATTER:AGF and LLS and Director-General, Department of Child Safety

APPEAL NUMBER:  NA78 of 2004 (File No BR 5353 of 2003)

CORAM:Bryant CJ, Kay and Boland JJ

DATE OF HEARING:  17 February 2005

DATE OF JUDGMENT:                       9 March 2005

CATCHWORDS:

APPEAL – Interlocutory parenting orders – s 68F of the Family Law Act 1975 (Cth) – exercise of discretion – sexual and emotional abuse allegations – child in well-settled environment – absence of compelling reasons for change – refusal of father to contemplate supervised contact order – procedural fairness

Cowling v Cowling (1998) FLC 92-801
Cilento and Cilento (1980) FLC 90–847
C and C (1996) FLC 92-651
Rainer and Rainer (1982) FLC 91-239
Griffiths and Griffiths (1981) FLC 91-064
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Rutherford and Rutherford (1991) FLC 92-255
Gronow v Gronow(1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Johnson v Johnson (2000) 201 CLR 488

Appeal dismissed.

Introduction

1. This is an appeal by the father against orders made by Jordan J. on 1 December 2004 that, until further order, L reside with the mother, and the father be precluded from exercising contact with the child.  L is presently aged 9 years.  At the conclusion of the hearing of the Appeal we made orders dismissing the appeal and indicated we would publish our written reasons shortly thereafter.

2. The hearing before Jordan J occurred after a successful appeal to the Full Court by the father against orders made by O’Reilly J on 3 August, 2004.  The Full Court also set aside orders 1 and 2 of orders made by Barry J on 15 July, 2004, as a result of which orders L, who had been living with the father for approximately eighteen months after the parties’ separation, commenced living with the mother with no contact to the father.  The Full Court remitted the applications made in the mother’s Response filed 15 January, 2004 and the father’s Reply filed 3 February, 2004 for re-hearing in the Brisbane Registry and made other procedural orders and directions for the rehearing.

3. The orders, the subject of this appeal, were made following an interim residence hearing.  The Director-General of the Department of Child Safety, Queensland (“DoCS”) intervened in the proceedings before Jordan J and has become a party to the proceedings.   A Child Representative, Mr W, has been appointed for L and he also appeared by Counsel at the hearing.

4. The final hearing of the parents’ competing applications for parenting orders has been expedited and hearing dates for three weeks commencing on 18 July, 2005 have been allocated.

5. In his Notice of Appeal filed 3 December, 2004 the father set out the orders he sought in the event this appeal was successful.  Before us the father orally proposed different orders including, in the alternate, a proposal that pending the final hearing that L should live with the mother and father in a “week about” shared parenting arrangement.  Before us, and before Jordan J, the father strenuously opposed any order that he have supervised contact with L, and said that he would not avail himself of such contact if an order was made on the basis of his belief such contact was not in L’s best interests.

Orders the subject of the appeal

1. After delivery of an ex tempore judgment on 1 December, 2004 the trial Judge made the following orders:

   “1.That the child, [L], born 18 December 1995, reside with the MOTHER.

   2.That the MOTHER have sole responsibility for the said CHILD’S ongoing care, welfare and development.

   3.That there be no contact between the said CHILD and the FATHER.

   4.That the FATHER not approach within 100 metres of the MOTHER’S residence and not approach within 100 metres of the MOTHER’S workplace.

   5.That the FATHER not approach within 100 metres of the MOTHER personally.

   6.That the FATHER not telephone or attempt to telephone the MOTHER at any number on which she may be contacted.

   7.That the FATHER not telephone or attempt to telephone the said CHILD at any number on which she may be contacted.

   8.That the FATHER not attend within 100 metres of the school at which the said CHILD attends.

   9.That the FATHER not approach within 100 metres of the said CHILD save for the purposes of the preparation of any further reports in this matter.

   10.That in the event of a breach of any of the orders made today prohibiting telephone contact, the MOTHER be at liberty to tape such telephone conversations.

   11.That the MOTHER be at liberty to enrol the said CHILD in any other school of her choosing or keep the said CHILD away from school if deemed necessary for the well-being of the said CHILD.

   12.That the FATHER be at liberty to provide the said CHILD with Birthday and Christmas presents through the CHILD REPRESENTATIVE.

   IT IS FURTHER ORDERED:

   13.That the orders made by Justice Jordan on 16th June 2004 be discharged.

   14.That the MOTHER be released from her undertaking of 25th February 2004 not to bring the said CHILD into contact with [Mr G].

   15.That the parties and the CHILD REPRESENTATIVE have liberty to apply.

   16.That any applications for costs be reserved.

   17.That pursuant to Section 65DA(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 Annexures A and B and these particulars are included in these orders.”

Background

1. The trial Judge in his reasons set out the brief background of the parties’ history which history was not subject of challenge before us.

2. The father is currently aged 64 and the mother is aged 35.  The father has worked at a number of occupations principally as a civil engineer including work in the construction industry, and in retail car sales.  The mother has qualifications as an enrolled nurse, and was working in that occupation at the date of the hearing.

3. The parties commenced cohabitation in January 1995 and separated on 13 January 2003.  They have never married.

10.  L is the only child of the parties’ relationship.  She was born on 18 December, 1995.

11.  The father was incarcerated in 1995 after a conviction for stalking his second wife and for assault.  The mother had the sole care of L whilst the father was incarcerated for about 18 months.  The father has prior criminal convictions including convictions for forging and uttering for which he was imprisoned for four months many years ago.

12.  L lived with the father for a period of approximately 18 months from shortly after the parties’ separation in January 2003 until July, 2004 when orders were made by Barry J.  L has lived continuously with the mother since that date and has had no contact with the father. 

13.  The mother has a child from a previous relationship who is aged 15 and resides in the Philippines, where the mother was born and lived until she commenced cohabitation with the father.  The father has had two previous marriages.  He has three adult children from his first marriage.  The father has three daughters from his second marriage, AM, A and E who were aged 15, 14, and 12 years at the date of the hearing.  AM and A live with the father, and E lives with her mother.

14.  Whilst living with the father and AM and A, L attended [O] Primary School.  L presently attends [FS] School which is located close to the mother’s and the mother’s husband’s residence.

15.  The mother commenced cohabitation with Mr G in August, 2003.  They were married on 15 July, 2004.  At the date of the hearing the mother was pregnant with an expected date of confinement of 19 January, 2005.  Mr G has a criminal record for assaulting a police officer, resisting arrest and using obscene language associated with a drink driving charge in March, 1993.

16.  In August, 2004 A and AM were removed from the father’s care by officers of DoCS pursuant to a Temporary Assessment Order.  A and AM absconded from the temporary placements provided for them on about three occasions and returned to the father.  On 11 November, 2004 DoCS withdrew its applications before the Children’s Court of Queensland in respect of A and AM

Notifications of alleged abuse

17.  In August, 2003 a notification made to DoCS recorded L was alleged to have told the father she had been subject to sexual abuse by the mother and Mr G.  The allegations included the mother pulling down her pants, and saying “look [L], your bum is getting big”.  This was alleged to have occurred in Mr G’s presence.  L was also reported to say she had witnessed the mother and “the man” engaging in sexual intercourse.  The mother and Mr G deny the allegations.  The notifier also alleged the father had taped interviews with L for four or five days but no other disclosures had been made by her.

18.  Ms S, a Senior Practitioner employed by DoCS in an affidavit sworn on 2 August, 2004 for proceedings in the Children’s Court of Queensland noted that from her search of DoCS’ files that L was interviewed on 4 September, 2003 by the Juvenile Aid Bureau (“JAB”) and made disclosures that “(a) Her mother had pulled her pants down; (b) Her mother’s partner had smacked her bottom and then placed his fingers into the crease of her bottom”.  

19.  Ms S records that “Following the interview, [the father] advised JAB officers that he had questioned his daughter a number of times regarding the incident, and recorded her responses on tape.  [The father] alleged that during one of the tapings L disclosed another incident involving [the mother’s] partner, when she was in the bath”.

20.  On 14 December, 2003 L wrote in her mother’s diary “Daddy told me to say [Mr G] put his hands in my bum.  Today I saw Mum and I feel happy.  L”.  L made a further entry on the same page of the diary “I saw daddy scarhtch (sic) Joe’s car.  Daddy said don’t worry about it and shhhh.  Daddy said [Mr G] is going to jail for ten years.  L”.

21.  Ms S records in the same affidavit (paragraph 18) that on 15 September, 2003 L was examined by Dr B at the Child Protection Unit, [MC] Hospital.  The examining doctor’s diagnosis is recorded in an affidavit sworn by Ms S on 25 November, 2004 as follows: “L has reduced width of hymenal rim which is consistent with either (i) a single episode of penetration which would have resulted in extensive trauma and subsequent loss of hymen OR (ii) repeated penetration of the hymen”.

22.  On 2 January, 2004 a notification was received by DoCS alleging L reported to her mother sexual abuse by the father including waking up with the father’s hands between her legs, sometimes waking up without her pants on, and that she wet the bed.  The father denies these allegations.  He does not dispute that L slept in his bed during the period she lived with him.

23.  On 6 January, 2004 L was interviewed at the Police Station.  In Ms S’s affidavit sworn on 12 August, 2004 at paragraph 28 she deposes to L being interviewed by a DoCS officer and JAB officers.  L made no disclosure of any sexual abuse by the father.  Ms S deposed that L “said she was unaware of how she suffered injury to her hymen”, that the father told to her to tell the police that the mother’s partner had indecently touched her, and that if she said this the mother’s partner would go to jail.  Ms S further deposed to L being aware of her father taping her telephone conversations with the mother, and that “her father writes down what she says to her mother”.  She further deposed that L “said that her father would be proud of her when she said it and angry with her if she did not say what he wanted her to say”.

Expert reports

24.  Mr C, psychologist was instructed by the Child Representative, to conduct a family assessment.  He interviewed the parties, Mr G and L and prepared a report dated 21 June, 2004.

25.  An expert report was prepared for the interim residence proceedings by Professor N dated 15 July, 2004.  The father was not interviewed for the purposes of this report.  Professor N prepared a further report dated 10 November, 2004 having interviewed the parties, Mr G and L.  Professor N did not observe L in the father’s presence.

26.  The father relied on a report by Mr T, psychologist, annexed to his affidavit sworn 12 November, 2004.  Mr T prepared his report for a family conference associated with the Children’s Court proceedings.

Grounds of appeal

27.  The father’s Notice of Appeal contains 43 grounds.  They are reproduced below.  At the commencing of the hearing before us, Counsel who appeared for the mother, sought to make an oral application to strike out grounds 5,26,28,29,35,36,37,38 and 40 on the basis those grounds are scandalous and vexatious.   He further sought to strike out grounds 1,4,11,17,23,27,33,34,39 and 41 on a number of bases, including relevance, and that the grounds as framed did not constitute proper grounds of appeal.  Whilst we agreed with the Counsel’s submissions, particularly in relation the first category of grounds, and their impropriety, we did not accede to his application having regard to the fact that the father was self represented, and the time and delay which would have been occasioned dealing with the application.  We requested the father to direct his oral submissions to the grounds going to the substance of the appeal.

28.  The grounds of appeal are as follows:

“1.The judge said he has not read all of the material and it would take 3 days to read it

2.The judge did not read the psychiatric report of Dr [D] or the report of psychologist [Mr T] as requested and as appropriately filed.

3.The judge refused to read all the documents I relied on

4.The judge ignored the rules and imposed rules selectively which prohibited the presentation of the fathers (sic) case and was unfair

5.The judge ignored the incontrovertible affidavit evidence of the father in preference to submissions from the bar table some examples being the fathers affidavit of (sic) filed 28/7/04 and that of [AF] filed 28/7/04

6.The judge refused to read my affidavit of 19/2/04 to which was annexed the statement of [JT] L’s grade 3 teacher

7.The judge paid no heed to the orders of the full court and the failure to observe same by the Child Rep requiring the child to be interviewed with the father by Prof [N]

8.The judge allowed D.O.C.S. to intervene ambush style without notice on the morning of the hearing and allowed D.O.C.S. to read the affidavit of the discredited [S] which had been completely destroyed in other proceedings on 11/11/04

9.The judge acted on the report of [S] as if it were fact

10.The judge failed to give my sworn affidavits of incontrovertible fact at least the same credence as the hearsay of [S]

11.The judge said he was not interested in the truth

12.The Judge loaded his reasons to give and (sic) appearance of weighing the competing arguments and then acted contrary to the weight of evidence

13.The judge denied the rights of the child

14.The Judge said that L had said she was sexually abused by the father when in fact she had never ever said that nor is it alleged she ever said that other than by hearsay of a notifier which notifier was the mother on 2/1/04 after seeing the child on 31/12/03 at which time the mother failed to protect the child by removing her if it was true and similarly D.O.C.S. in possession of a T.A.O. on 6/1/04 similarly failed to protect the child on the same allegations if believed there then being no Family Court orders whatsoever.

15.The proven false evidence of the mother numerous examples of which were pointed to in submissions by the father failed to alert the judge to the fact that the mothers (sic) evidence cannot be relied upon

16.The undisclosed criminal record of [Mr G] the child’s alleged abuser including resist arrest, obscene language and an unprovoked assault on a female police officer by kicking and punching was given no weight by the judge. The fact that he lied about it was similarly given no weight.

17.The judge condoned and rewarded, perjury and the illegal acts of 15/7/04 and continued to do so at this hearing.

18.The judge relied on selected portions of the expert’s reports he said he read and was referred to by the other parties without considering those portions favourable to the father

19.It was not open to the judge on the evidence to arrive at the conclusion he did

20.Best interests, 60(B)(1) and 68f factors were not observed by the judge

21.The judge ignored the principles of John and Rees, Re Z, and C and J.

22.The Judge gave weight to submissions that the stability of the child would be undermined if the father were to have contact when there was not the slightest evidence that could lead to this conclusion.

23.The judge failed to realise the (sic) it takes one paragraph to make an allegation but can take 20 pages to refute it

24.The judge gave no weight to the fact that a D.V order had been refused the mother at the end of a 4 day trial because every syllable (sic) her evidence after 12 hrs of Cross examination was destroyed and found by the Magistrate to be unbelievable

25.The judge and the Family Court are participants in the continueing (sic) abuse of the child

26.The judge and the Family Court by the orders of 1/12/04 are participating in a conspiracy orchestrated by the other parties to completely rob the child of her own free will and alter her mind.

27.The denial to the father of unrestricted contact with the child is totally the opposite of the contact the father advocated in respect of the mother on 16/6/04 viz orders and reasons of Jordan J of 16/6/04.

28.The orders of the judge encourage and promote non compliance

29.The orders of the Judge facilitate the isolation and programming of the child

30.The Judge ignored the evidence that the father was being demonised to the child by the mother and alienated from the father and told to call her alleged abuser DAD and to change her name all sabotaging the relationship between the father and the child.

31.The trial judge exhibited bias in favour of the D.O.C.S case and bias against the father (sic) failed to be alert to the inconsistent conduct of the DOCS.

32.The judge failed to note that the child told N the mother told her what to tell him whereas the child said her father said to “tell the truth”.

33.It is not good enough to say that there is not enough time to read the documents or say that truth is not to be considered when the life (sic) welfare of a child hangs in the balance.

34.No child should be kept prisoner, isolated, afraid and wondering where her father is or what is going to happen tot (sic) her. This is torture.

35.To order, to assist or to aid and abet the abuse of the child in the above manner is a criminal act and thus a criminal act by the judge and all those who condone and order it.

36.By allowing the abuse of the child to continue or to place the child in the household of her alleged abuser unsupervised when the allegations remain on foot and untested condones the criminal acts of Barry and O’Rielly (sic) JJ and corrupts the process of the court and detracts from the authority of the court.

37.The orders of Jordan J are no less criminally negligent than those of Barry or O'Rielly (sic) or infact (sic) the criminal acts and abuse of the DOCS which lead to their defeat on 11/11/04 in spectacular fashion and as reported in the media

38.The judge and the court demonstrates by its actions and rulings that it is more interested in protecting the reputations of its judicial officers and the legal representatives than the child the very person it is charged with protecting.

39.The orders of Jordan are bereft of logic or ratiocination or evidence to support them and cannot stand.

40.The magnitude of the destruction of the cast. instigated by Barry J and relentlessly pursued by police and D.O.C.S. in the same abusive and criminal manner as this case was given negative weight by Jordan J.

41.Jordan J's utterances and orders indicate that destroying the case of Govt Dept and forcing those Dept's to return children as well as causing them adverse press is indicative of irresponsibility by the father.

42.The orders of the judge are contrary to Family Law Act and contrary to the public interest

43.The judge gave undue weight to the Cowling and Cowling factors, was inconsistent in their application and failed to note the special, extraordinary and compelling factors in this ease which would negate the well settled principles of that precedent.”

29. It appears to us from reading of the father’s grounds of appeal, and having regard to his written and oral submissions that the gravamen of his appeal is that the trial Judge has acted in error in the exercise of his discretion by giving inappropriate weight to evidence relied on by the mother, the Child Representative and DoCS, and in failing to give appropriate weight to evidence favourable to the father, including a failure to give appropriate consideration to s.60B and relevant factors under s.68F(2) of the Family Law Act 1975 (Cth) (“the Act”).  The father’s grounds of appeal also raise issues of procedural fairness and bias.  We propose to address the father’s grounds of appeal under these broad categories.

Judgment of the trial Judge

30.  The trial Judge noted that the matter had been remitted by orders of the Full Court, and that the issue to be determined by him was “ongoing residence and contact” arrangements for L pending the final hearing.  His Honour noted the existing arrangements in place for L as a result of the orders made on 15 July, 2004 and 3 August, 2004.

31.  His Honour noted the complex nature of the matter and that “it would be simply impossible in the confines of today to cover all aspects of the past history and all the issues for the final hearing”.  His Honour then set out a number of uncontested background facts including details of the parties, and recent living arrangements.  The trial Judge noted the application made by DoCS in respect of AM and A and that this application had been withdrawn. He also recorded the intervention of DoCS in the proceedings that day, and that DoCS sought orders that L should remain living with the mother, and not have any contact with the father pending the final hearing.

32.  The trial Judge noted that the father had filed material himself and from witnesses.  His Honour noted, referring to the father, that “In the course of these proceedings, he has made reference to earlier material filed by him in his substantive application but, as I have indicated on a number of occasions, I have simply not had the opportunity to peruse all that earlier material which was prepared and presented for a final hearing”.

33.  The trial Judge further noted the interim nature of the proceedings, the usual procedure for the conduct of such proceedings, including limiting material to enable a matter to be heard summarily in a timely manner.  His Honour noted that because of the complexity of the matter, a full day had been set aside, and that he had read the most recent and “quite extensive” material filed by the father, and the most recent material submitted by the mother and the Child Representative.  The trial Judge set out the other documents he had read which included the reports of Professor N and Mr C, three affidavits filed on behalf of DoCS being two affidavits of Ms S, and an affidavit of Senior Constable M.

34.  In commenting on the material before him the trial Judge noted that “The totality of the material I have referred to discloses many potential concerns for the welfare of L in either household”.The trial Judge further noted the complexity of the issues and factual disputes to be determined at the final hearing which he anticipated would take many days, and noted that at that time the parties “will have the opportunity to place evidence before the Court and all will have the opportunity to test that evidence”.  His Honour noted that he was not called upon to resolve factual disputes at the interim hearing and that “it would be folly to do so”.

35.  The trial Judge then recorded the “nature of the concerns and issues raised” noting the allegations that L may have been sexually abused in the mother’s household by Mr G., that the mother and Mr G may have had inappropriate conversations, and engaged in sexual relations in L’s presence.  His Honour recorded that another area of concern was one of emotional manipulation and abuse of L, if the mother was manipulating her to make false disclosures against the father.

36.  The trial Judge also recorded issues relevant to the father’s household noting “there are like concerns that the father may have engaged in some sexual impropriety with his daughter, that he sleeps with his daughter, that she wakes up on occasions and finds his hands between her legs and that she wakes up on other occasions to find her underwear removed”.  The trial Judge noted as a further concern allegations that the father may be manipulating L to make false disclosures about the mother and Mr G, and “may be engaging in other forms of emotional abuse”.  He also noted that some concerns had been raised about the father’s personality and anger management and “his capacity to impose his will and assert inappropriate control over his children and, further, that [L] might be at risk of some physical abuse in his household”.

37.  The trial Judge noted that each of the parties and Mr G denied the allegations made against them, and that the father “strongly repudiates the evidence produced by the Department through the affidavits of Ms [S]”.  His Honour noted the particular concern raised by the findings on medical examination of L and that L had made disclosures of sexual abuse by both Mr G and the father, and identified each of them as the perpetrators of sexual abuse.

38.  Having identified the difficult task which fell to him the trial Judge noted he must turn to the given facts, the common ground, and “have some regard to the more objective evidence that might be available”.

39.  The trial Judge concluded from the objective evidence, including Mr C’s interview, that L displayed close attachment to each of the parties.  He also noted the evidence disclosed L as a bright, happy child who excelled at school and who socialised well.

40.  The trial Judge noted that L had been embroiled in the proceedings between the parties, and subject to numerous interviews by professionals as well as the parties themselves.  His Honour found that L had been “required to confront many issues likely to have been difficult for an 8 year old child”.  His Honour noted the changes imposed on L including the suspension of her relationship with the father, the change from her father’s primary care with consequent separation from her half siblings, as well as change of school and friends.  His Honour also noted the introduction of Mr G as a surrogate parent figure, and concluded these factors “would have required significant adjustments by [L]”.

41.  The trial Judge concluded that the changes and events to which L had been exposed during the preceding two years were the “overwhelming feature” of the case, and that “the Court must be extremely cautious not to impose upon this child yet more of the same unless there are, indeed, compelling reasons to do so”.

42.  The trial Judge referred to the principles to be applied by a court dealing with an interim residence application and noted that if the Court found the child to be in a well settled environment, then it should not impose a change of residence, unless it was necessary to do so for the welfare of the child.

43.  The trial Judge made a finding that L was well settled in the mother’s care, and that she had adjusted to her new school, that she liked her new home and had told Professor N that she liked Mr G.

44.  The trial Judge then turned to the question of whether there were reasons which would justify interfering with the existing arrangements and imposing another change on L.  He noted the risks in the mother’s household, but identified that the material indicated similar risks in the father’s household.  He concluded from his assessment of the evidence that the risks to L may be greater in the father’s household and thus a compelling reason for change was not established.  In making this finding the trial Judge noted the benefits which would flow to L if she was reunited with the half siblings.  His Honour noted however AM and A’s ages compared to L’s age, and that the evidence, whilst disclosing L’s missed them, did not disclose she was particularly stressed or troubled by the separation.

45.  The trial Judge dealt with the father’s submission that he was able to offer superior parenting to that provided by the mother.  His Honour concluded that the father would provide different parenting skills to L, and may be in a position to provide superior material and physical benefits to L.  However, he concluded the mother was providing well for L’s needs at the time of the hearing, and that these matters were not the issues to be determined at the hearing before him.

46.  The trial Judge made findings, having regard to the totality of the evidence before him, that another change of residence would not, pending a final hearing, be in L’s best interests.

47.   His Honour then considered the question of contact by L to the father.  He noted that the mother, the Child Representative and DoCS each submitted there should be no contact pending final hearing.  These submissions included submissions that the propensity of the evidence before the trial Judge suggested “the father is the more likely perpetrator of any abuse”, that the father by reason of his personality, would be unable to control himself during contact, and would seek to manipulate L, thus undermining the mother’s interim care.

48.  The trial Judge noted L’s right to an ongoing relationship with each of her parents and her half siblings, that the father loved her, and L in the past exhibited a loving attachment to the father.  However he noted that he was satisfied “there is some substance to the submission that there is at least the potential that L may be exposed to emotional and even physical harm from her father”.  His Honour also referred to “the outstanding issue of past sexual abuse”.

49.  The trial Judge then turned to the question of how L’s right to have a relationship with the father could be maintained, and concluded the appropriate manner in which such relationship could be maintained pending final hearing was to make an order for supervised contact.  His Honour noted however that the father both in oral submissions and written material made it clear “that he would not contemplate such an order”.  The trial Judge found, as the father rejected the making of an order for supervised contact, there should be no contact pending trial as he was “sufficiently concerned about the prospect of unsupervised contact to decide that, on balance, the interests of the child are best served by an ongoing suspension of contact pending the final hearing”.

50.  The trial Judge then noted his concern about the separation of L from the father and half siblings, and addressed this issue, finding the case should be given the highest priority so that the father could be afforded the opportunity to test the evidence filed against him, and to have his parenting application determined at the earliest possible opportunity.

Legal principles

51. Orders dealing with whom a child is to live and contact between a child and another person are “parenting” orders and as such are governed by the provisions of s 65E of the Act, namely that they are to be determined by the Court regarding the best interests of the child as the paramount consideration. Section 68F sets out the criteria that the Court must consider when determining what is in a child’s best interests. In an interlocutory hearing, where many of the issues remain in contest and there is no proper opportunity available to determine contested issues of fact or to make assessments of the parties themselves by observation of them whilst they give evidence and otherwise, the court is necessarily restricted in the manner in which it can give proper consideration to s.68F(2) requirements. The appropriate approach to be taken in such circumstances was extensively discussed by the Full Court in the decision of Cowling v Cowling (1998) FLC 92-801, where Ellis, Lindenmayer and Jordan JJ said at 85,005-85,007:

“15.The applicable criteria relating to the determination of an application for an interim custody order have been considered by the court in a number of authorities, particularly Cilento  and Cilento (1980) FLC 90–847, Griffiths and Griffiths (1981) FLC 91–064, Rainer and Rainer (1982) FLC 91–239 and C and C (1996) FLC 92–651. In our view, notwithstanding the passage of time since the delivery of three of those judgments, the increase in the number of applications before the court since then and the subsequent enactment of the 1995 Act, the criteria referred to therein, remain relevant in relation to an application for an interim residence order. Moreover the correctness of those decisions was not challenged on the hearing of this appeal.

16. The relevant legislative provisions now governing an application for a parenting order are to be found in Pt VII of the Family Law Act. Section 60B sets out the objects of that part and the principles underlying those objects, while s 65E provides that, in deciding whether to make a particular parenting order in relation to a child, and an interim residence order is a parenting order, the court must regard the best interests of the child as the paramount consideration. Section 68F sets out a number of matters which the court must consider in determining what is in the child’s best interests.

17. The procedure to be adopted at the hearing of an application for an interim residence order was considered by this court in D and Y (1995) FLC 92–581 and C and C (supra). We agree with the conclusions reached by their Honours in both authorities for the reasons which they gave.

18. The Family Law Act does not draw any distinction between the principles to be applied in determining residence in interim and final proceedings. The essential difference between them is one of procedure. Interlocutory proceedings do not determine the long-term rights and obligations of the parties and their children. The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties. Accordingly, in determining what orders should be made, the court traditionally looks to the less contentious matters, such as the agreed facts, the care arrangements prior to separation, the current circumstances of the parties and their children and the parties’ respective proposals for the future. In some cases, it may also be necessary to consider child protection issues.

19. Having regard to the earlier authorities of the court to which we have referred and to the current provisions of the Act, we would summarise the relevant criteria for the determination of interim proceedings for residence and contact as follows.

20. First, having regard to the provisions of s 65E, in determining what interim parenting order should be made, the court must regard the best interests of the child as the paramount consideration.

21. Second, given the mode by which interlocutory proceedings are conducted, those interests will normally best be met by ensuring stability in the life of the child pending a full hearing of all relevant issues. Accordingly, as a general rule, any interlocutory order made should promote that stability.

22. Third, where the evidence clearly establishes that, at the date of hearing, the child is living in an environment in which he or she is well settled, the child’s stability will usually be promoted by the making of an order which provides for the continuation of that arrangement until the hearing for final orders, unless there are strong or overriding indications relevant to the child’s welfare to the contrary. Such indications would include but are not limited to convincing proof that the child’s welfare would be really endangered by his/her remaining in that environment.

23. Fourth, the court is entitled to place such weight upon the importance of retaining the child’s current living arrangements as it sees fit in all the circumstances. In determining what weight to place upon that factor, it is appropriate for the court to take account of the circumstances giving rise to the current status quo. In particular, the court may examine the following issues:-

•     whether the current circumstances have arisen by virtue of some agreement between the parties or as a result of acquiescence.

•     whether the current arrangements have been unilaterally imposed by one party upon the other.

•     the duration of the current arrangements and whether there has been any undue delay in instituting proceedings or in the proceedings being listed for hearing.

24. Fifth, where the evidence does not establish that at the date of hearing the child is living in an environment in which he or she is well settled, some limited evaluation of the relevant matters referred to in s 68F (2) needs to be undertaken to ensure that the result embodied in the order promotes the child’s best interests. In undertaking that evaluation regard must be had to the interim nature of the proceedings and the procedure referred to in C and C (supra).

25. Finally in determining whether, at the date of hearing, a child is living in a settled environment, consideration should be given, inter alia, to the following:-

•     the wishes, age and level of maturity of the child;

•     the current and proposed arrangements for the day to day care of the child;

•     the period during which the child has lived in the environment;

•     whether the child has any siblings and where they reside;

•     the nature of the relationship between the child, each parent, any other significant adult and his or her siblings;

•     the educational needs of the child.”

52.  In C and C (1996) FLC 92-651; (1995) 20 Fam LR 24 the Full Court confirmed that in order to appropriately balance the competing needs of litigants before the Court and to ensure that final hearings can be heard in a timely manner it is appropriate for a trial Judge to limit the duration of an interlocutory hearing and that as a general rule cross examination should not be permitted at such a hearing. The Full Court said at 82,674 that such an approach “should be encouraged if the court is to efficiently conduct its business and that of its litigants”.

53.  In Rainer and Rainer (1982) FLC 91-239 at 77,313-314; 8 Fam LR 210 at 215-216 the Full Court summarised the key principle of Cilento (supra), as clarified in Griffiths and Griffiths (1981) FLC 91-064; 7 Fam 322, in the following passage:

“Something needs to be said at this point about the decision in Cilento and Cilento (1980) FLC 90–847. That case was critical of procedures involving extended and repeated interim hearings prior to a full scale hearing at which all issues would be ventilated in full. It pointed to the danger of making interim orders on incomplete material, especially where such orders disrupted an established position. Even though the court is guided by the paramount concern for the welfare of the child, that welfare is unlikely to be promoted if the child’s established situation is disrupted pending the full hearing of the matter unless there are cogent reasons requiring a change:

‘No two cases are the same and it would be unwise to lay down any hard and fast rule. Nevertheless we consider that the interests of children will best be met by ensuring a degree of stability in their lives until the matter can be fully investigated by the court and a full hearing of the issues within a reasonable time. Unnecessary disruption to the life of the child should therefore be avoided.’

Cilento’s case was considered by Lindenmayer J in Griffiths and Griffiths (1981) FLC 91-064. He said (at p 76,500):

‘Now, of course, there is not in all cases an existing status quo presented to the court upon an application for interim custody and in such cases the court must necessarily undertake some detailed evaluation of the merits of the claims of both parties. However, as I say, it seems to me that the Full Court is saying in that case that where there  is  a clearly established status quo in relation to children, then upon an interim application that status quo should not be changed unless convincing proof is provided that the child’s physical or mental health or moral welfare will be really endangered by the child remaining where it is until the contested application is heard.’

That statement is a very clear exposition of the Full Court’s ratio in the Cilento case.”

54.  As can be seen from the decision in Cowling (supra), the frequently cited passage from Cilento (supra) has been ameliorated by the matters set out in paragraphs 23 and 24 of the decision in Cowling, namely that the preservation of a status quo is appropriate unless there are “strong or overriding indications relevant to the child’s welfare to the contrary”.

55.  It is also relevant to have regard to the established principles applicable to appeals from interlocutory orders (see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 and Rutherford and Rutherford (1991) FLC 92-255 at 78,715).

56.  Finally, it needs to be remembered that the appeal before us was from a discretionary judgment.  The circumstances in which the Full Court should interfere with a discretionary judgment are well known.  In Gronow v Gronow(1979) 144 CLR 513 Stephen J said at 519:

“The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his (sic) decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.”

57.  In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said at 504-5:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he (sic) allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.” 

The procedural fairness grounds

58.  The father submits that the trial Judge failed to read all of the material sought to be relied on by him including psychiatric and psychological reports, that his Honour “ignored the rules and imposed rules selectively”, and that he inappropriately allowed DoCS to intervene in the proceedings.

59. The documents to be relied on and procedure to be followed on an interim hearing are set out in Part 5.2 of the Family Law Rules 2004 (“the Rules”) as follows:

“5.08     Interim orders — matters to be considered

When considering whether to make an interim order, the court may take into account:

(a)in a parenting case — the best interests of the child (see section 68F of the Act);

(b)whether there are reasonable grounds for making the order;

(c)whether, for reasons of hardship, family violence, prejudice to the parties or the children, the order is necessary;

(d)the main purpose of these Rules (see rule 1.04); and

(e)whether the parties would benefit from participating in one of the primary dispute resolution methods.

5.09       Admissibility of affidavit

(1)   The following affidavits may be relied on as evidence in chief at the hearing of an interim or procedural application:

(a)subject to rule 9.07, one affidavit by each party;

(b)one affidavit by each witness, provided the evidence is relevant and cannot be given by a party.

(2)   If an application is for a parenting order, the affidavit mentioned in paragraph (1) (a) must be in the form approved by the Principal Registrar.

Note 1   Subrule 15.06 (1) provides that an affidavit may be relied on at a hearing or trial only if it was filed and served in accordance with these Rules or an order.

Note 2   Section 75 of the Evidence Act 1995 provides that ‘In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source’. However, subject to sections 4 and 5 of the Evidence Act 1995, that Act does not apply to the Family Court of Western Australia or any other court of a State.

Note 3   Rule 15.21 provides that a party must not, without the court’s permission, request the issue of more than 3 subpoenas for the hearing of an Application in a Case (Form 2). However, a child representative may request the issue of more than 3 subpoenas (see subrule 15.21 (2)).

5.10       Hearing time of interim or procedural application

(1)   The hearing of an interim or procedural application must be no longer than 2 hours.

(2)   Cross-examination will be allowed at a hearing only in exceptional circumstances.”

60. At the commencement of the hearing the trial Judge noted that the hearing was, because of the complexities involved, to be conducted over the whole day rather than limited to the time provided in the Rules. The trial Judge indicated to the parties the material which he had read, and he allowed additional material, being school reports, to be tendered by Counsel for the Child Representative. No objection was taken by the father before the trial Judge at the commencement of the hearing about the material which was to be read in the application. In his submissions after the luncheon adjournment the father referred the trial Judge to a report by Dr D. The trial Judge confirmed that his report was not in the material which he identified as before him at the commencement of the hearing and the transcript reveals that the father replied “I know you can’t read everything. I understand all that. But I suggest you do read that.  That’s Dr [D].  He’s a very experienced man and I paid for it myself.  Went and got my own report”.

61.  We are satisfied that the trial Judge at the commencement of the hearing clearly identified the material to be read in the application and no objection was taken by the father.   We are further satisfied that his Honour had regard to the material relevant to the application before him, and that it was not necessary, practical or appropriate for him to have read the whole of the material filed in earlier proceedings.  Accordingly we are not satisfied that the father’s grounds directed to this area are made out.

62.  The father submits that the Judge “ignored the rules and imposed rules selectively which prohibited the presentation of the fathers (sic) case and was unfair”. We are satisfied that the trial Judge did not depart from the Rules in any manner which was unfair to the father. The transcript reveals that the trial Judge originally indicated that the available time for addresses should be divided equally between the parties. The father did raise with the trial Judge at the outset of his submissions his need to respond to the mother’s submissions as well as those of DoCS and the Child Representative. However, the trial Judge permitted the father to continue his submissions beyond the allotted time, and noted that the father was afforded twice the time of any other party to make submissions. We accordingly find no merit in this ground.

63. The father submits that the trial Judge did not afford him procedural fairness by allowing DoCS to intervene on the morning of the hearing. DoCS intervened as of right under s.92A(d) of the Act. That section authorises intervention in a case of alleged child abuse or risk of child abuse. DoCS is a prescribed child welfare authority as defined in s.60D of the Act. No objection was taken by the father to the material relied on by DoCS nor did he make any application for adjournment of the hearing because of the intervention on the first day of the hearing. The material relied on by DoCS raised no new issues and included material which had been relied on in proceedings before the Children’s Court of Queensland. The father in an affidavit sworn 29 November, 2004 annexed a copy of an affidavit sworn by Ms S on 12 August, 2004 in the Children’s Court proceedings which contained similar evidence to that contained in the affidavits of Ms S relied on by DoCS before the trial Judge. We are satisfied that the father was well aware of all issues raised against him by DoCS and the intervention did not result in any procedural unfairness to the father.

64.  The father submits that the trial Judge and the Child Representative did not have regard to the orders of the Full Court of 27 October, 2004 requiring the child to be interviewed with the father by Professor N.

65.  Order 10 of the orders made by the Full Court provides “That the remaining orders of the Honourable Justice Barry made 15 July being orders 3 to 14 inclusive remain in full force and effect save for order 9, which is varied to provide: ‘other than for the preparation of a report by an expert nominated or approved by the child representative’”.

66.  Order 10 merely permits contact between the father and L for the purposes of preparing a report.  It does not require that L and the father be interviewed together by Professor N.  The orders and directions made by the Full Court are directed to the rehearing of final parenting applications.  The trial Judge in this case had the benefit of an up to date expert report by Professor N a circumstance not generally afforded a trial Judge at an interim hearing.  Professor N has indicated in his report that it would be of assistance for a report for the final hearing for him to see L with the father.  We are satisfied that statement of Professor N does not support a finding of procedural unfairness, or there was any conduct of the Child Representative in respect of the Full Court’s orders of which the trial Judge should have taken account.

67.  The father sets out a number of purported grounds of appeal about the trial Judge and the Court which are inappropriate and scandalous.  We are unable to discern from the father’s submissions both written and oral any basis for what appears to be an allegation of bias. Having regard to the principles enunciated in Johnson v Johnson (2000) 201 CLR 488, our examination of the transcript and the judgment does not reveal any matter which would support a finding of bias in the trial Judge.

68.  We are satisfied that the trial Judge conducted the hearing in accordance with the principles enunciated in Cowling (supra) and the Rules, and that the father was afforded procedural fairness.

Exercise of discretion

69.  The substantial thrust of the father’s grounds of appeal are directed to his challenge to the exercise of discretion by the trial Judge.

70.  In summary, the father submits that the trial Judge:

·accepted Ms S’s evidence;

·said that L was sexually abused by the father;

·placed undue weight on the evidence of the mother who is an unreliable witness;

·failed to give appropriate weight to Mr G’s criminal record and that Mr G lied about that record;

·relied on parts of the expert reports favourable to the mother without considering or balancing parts of the export reports favourable to him;

·accepted the submission that the stability of the child would be undermined if the father had contact when there “was not the slightest evidence that could lead to that conclusion”;

·failed to afford sufficient weight to the fact that the mother’s application for a domestic violence order was dismissed;

·gave no weight to the evidence that the child was being alienated from the father by the mother;

·failed to afford proper weight to the recording in Professor N’s report that L reported the father had told her to tell the truth compared to the reporting of the L’s instructions by the mother that “the mother told her what to tell him”; and

·failed to properly follow the principles enunciated in Cowling (supra) and failed to take into account “compelling factors”.   

71.  We examine the submissions of the father which are directed to the exercise of discretion by the trial Judge having regard to the evidence before the trial Judge, and his reasons for judgment.

That the trial Judge accepted Ms S’s evidence

72.  The trial Judge had before him two affidavits of Ms S sworn respectively on 2 August, 2004 and 25 November, 2004, each affidavit annexing a Child Protection Report prepared by Ms S from files maintained by DoCS.  Also before him was Ms S’s affidavit sworn 12 August, 2004 prepared for the Children’s Court of Queensland proceedings which was annexed to the father’s affidavit sworn 29 November, 2004.

73.  In Ms S’ affidavit sworn 12 August, 2004 she deposes to extracting information from DoCS’ files including a crisis care notification of allegations that L had observed the mother and Mr G having sex, and that the mother had taken the child’s pants down in the presence of Mr G.  She set out disclosures made by L at interview on 6 September, 2003.  She recorded the father’s advice to JAB officers that he questioned L a number of times about the allegations and had taped her responses.  She also noted the report of L’s clinical examination at the Hospital.  She noted that on 3 October, 2003 the father initially refused a request to permit L to be interviewed, but noted that the father subsequently delivered L to be interviewed.  She noted L was returned to the father after she became “highly distressed”.  She also noted that on 14 December, 2003 L retracted her statements about Mr G.

74.  Ms S also deposed to police and departmental officers listening to a number of tapes and CD recordings between L and her mother.  She deposed “The recordings contain evidence of L becoming increasingly distressed, as her father could be heard repeatedly telling L that her mother does not love her and prompting her to make inappropriate comments to her mother”.  Ms S summarised a child protection notification made on 2 January, 2004 including allegations that the father had inappropriately touched L.  She also summarised details of L’s interview by a departmental officer and JAB officers on 6 January, 2004 when L reported that she had made the allegations against Mr G at the father’s request.  L was noted not to make any disclosures about the father, and to have “said she was unaware of how she suffered injury to her hymen”.Ms S deposed “The initial Assessment outcomes of both these notifications were recorded as Substantiated, with sexual harm and emotional harm being identified”.  Ms S recounted the father’s criminal history, part of the orders made on 15 July, 2004, and details of information provided to a departmental officer on 16 July, 2004 concerning AM and A.  Later in her affidavit, Ms S summarised material contained in affidavits filed in the proceedings between the father and his second wife.

75.  In her report dated 2 August, 2004 annexed to her affidavit of the same date Ms S sets out a summary of notifications from the DoCS file.  Under the heading “Current Department Assessment and Contact” she noted that L “has suffered sexual abuse, identified by medical examination”.  She also noted that Mr G was no longer a suspect because of his denials and L’s admission she had “lied to the police” in respect of her allegations.  Ms S recorded:

“14.[The father] has demonstrated that he is unable to protect L from sexual abuse, and in fact is considered the person most likely to have caused the sexual abuse since he has been her primary carer and has had the opportunity and motivation to do so.  In addition [the father] seems unconcerned about the harm that L has suffered, and caused [L] to lie in her reports about having been sexually assaulted, likely causing her a significant level of emotional disturbance.

15.I have formed the opinion that L would be at risk of further sexual abuse should she be returned to her father’s custody, as per rationale in point 10.”

76.  In point 10 of her report, Ms S opines as follows:

“The outcomes of both these notifications were recorded as Substantiated, with physical and emotional abuse and neglect being identified.  [The father] was named as the maltreater.  As the then Senior Practitioner, I reviewed the Department’s file and I substantiated sexual abuse, in addition to physical, emotional abuse and neglect, based on risk factors which include:

·Medical evidence during examination of 15 September 2003 that ‘L has reduced width of hymenal rim which is consistent with either

(i)a single episode of penetration which would have resulted in extensive trauma and subsequent loss of hymen, OR

(ii)repeated penetration of the hymen’

·[The father] was [L]’s primary carer and had the opportunity to sexually abuse her.

·[The father] is believed to have coerced [L] into providing inaccurate information to her mother, the police and the department about Mr [G].

·The above information suggests that [the Father] seeks to control [L]’s contact with her mother and any other persons or agencies in a manner that may isolate [L] from sources of support and/or scrutiny of his care of [L].”

77.  In her report dated 25 November, 2004 Ms S summarised DoCS’ contact with the family.  She noted DoCS had received three notifications concerning L on 20 February, 2003, 31 August, 2003 and 2 January, 2004.  Ms S also summarised information provided by Senior Constable M of JAB.

78.  Ms S noted an appeal by the father against orders made in the Children’s Court had been allowed.  Under the heading “Current Departmental Assessment and Contact in relation to the Risks to [L]” Ms S repeated the evidence in her report of 2 August, 2004 about L suffering sexual abuse, and that Mr G was no longer a suspect.  At paragraphs 28 and 29 of her report she repeated paragraphs 14 and 15 of her earlier report.

79.  In his judgment at paragraph 12 his Honour noted “The totality of the material I have referred to discloses many potential concerns for the welfare of [L] in either household” and “the Court cannot today begin to unravel the vast array of issues and factual disputes which will occupy the Court at the final hearing for so many days, when each of the parties and the legal representatives for the child and the Department, if they remain in the matter, will have the opportunity to place evidence before the Court and all will have the opportunity to test that evidence”.  In paragraph 13 of his reasons his Honour noted at an interim hearing it was not his task to begin to unravel factual matters.  In paragraph 14 he records concerns in the mother’s household including possible sexual abuse by Mr G.  In paragraph 15 he also notes the father may have engaged in some sexual impropriety with L.  He later refers to the evidence of possible manipulation of L.

80.  Without making any findings on the factual issues in dispute, including who, if anyone, had perpetrated sexual abuse on L, at paragraph 29 the trial Judge noted that the combined effects of the objective evidence may indicate that “the risks are greater in the father’s household”. 

81.  There was objective evidence before the trial Judge, not disputed by the father, that L slept in the same bed as he did, that he had questioned her about the sexual abuse allegations involving Mr G, and he had tape recorded her telephone conversations.  The trial Judge did not making any factual finding that he accepted the evidence of Ms S.  His Honour had regard not only to Ms S’s evidence, but to all of the other evidence before him.  The trial Judge made no finding that he accepted Ms S’s evidence.  We are satisfied that this submission of the father has no weight.

The trial Judge has made a finding that L said she was sexually abused

82.  In Ground 14 of the father’s Notice of Grounds of Appeal he asserts inter alia “The Judge said that L had said she was sexually abused by the father when in fact she had never ever said that…other than by hearsay of a notifier which notifier was the mother on 2/1/04”.

83.  In paragraph 14 of his reasons the trial Judge notes that there are concerns that the mother may have engaged in manipulating L to make false disclosures against the father.  The trial Judge notes at paragraph 15 “there are like concerns that the father may have engaged in some sexual impropriety with his daughter”.  The trial Judge does not make record or make a finding there is any direct evidence of L herself making such disclosure.  It is clear from the material before his Honour that the allegations of sexual impropriety by the father are from a notification in the DoCS file, and that when interviewed on 6 January, 2004 L did not make any disclosures about the father inappropriately touching her, although she did report the father telling her to make allegations against Mr G, that he told her what to say to the mother in telephone conversations and recorded her conversations.  We find no substance in this ground.

That the trial Judge has place undue weight on the mother’s evidence; that the trial Judge failed to afford appropriate weight to the fact the mother’s application for domestic violence, was dismissed

84.  We consider it is appropriate to examine these two grounds together.

85.  It is clear that the trial Judge considered the application before him having regard to the principles enunciated in Cowling (supra).  He found, having regard to objective evidence including the most recent school reports and after school care reports, that L was “a bright, intelligent, largely happy child who excels at school and socialises well”.  His Honour had the benefit of Professor N’s reports.  The trial Judge found that the mother was able to provide appropriate physical care for L, and significantly that L had been embroiled in the proceedings including multiple interviews, change of residence and school and that she should not be subject of another major disruption.  The trial Judge recognised that there were problems associated with the mother’s household, but found, having regard to the task required of him at an interim hearing, that L was in a settled environment.  We are satisfied that the trial Judge identified and gave appropriate weight to all of the evidence.  We find no substance in the father’s assertion that the trial Judge gave inappropriate weight to the mother’s evidence, or that he failed to take into account matters of concern in the mother’s household.

That the trial Judge failed to give sufficient weight to Mr G’s criminal record

86.  There was evidence before the trial Judge of Mr G’s criminal record as a result of convictions in 1993.  Mr G did not disclose these convictions to Professor N at interview and this fact is subject of comment in Professor N’s report dated 10 November, 2004 where he noted “that Mr [G] did not inform me of his full criminal history”.  The trial Judge in his judgment identified Professor N’s report as one of the documents he had read, and noted “The totality of the material I have referred to discloses many potential concerns for the welfare of L in either household”.  We are satisfied the matters referred to in Professor N’s report, including the nature of and date of Mr G’s criminal history, were considered by the trial Judge and taken into account by him in the exercise of his discretion.

That the trial Judge relied on parts of the expert reports favourable to the mother without considering those portions favourable to the father  

87.  This submission of the father raises issues similar to the preceding submissions.  We are  satisfied that the trial Judge, without making factual findings, had regard to all of the evidence before him, and relied on objective evidence in determining that L was in a well settled environment, and in his consideration of whether there were compelling reasons requiring a change of residence.  The trial Judge carefully recorded the matters of significant concern for L in the mother’s household.  We find that he gave appropriate weight to objective matters in the expert evidence relevant to L’s welfare including her evidence to Professor N that she liked her home (with the mother) and Professor N’s concern that the father would interrogate L or continue to harass the mother and Mr G impacting on his ability to provide proper care for L during contact.

That the trial Judge accepted the submission that the stability of the child would be undermined if the father had contact when there “was not the slightest evidence that could lead to that conclusion”

88.  The trial Judge noted at paragraph 34 of his reasons the submissions of the mother’s Counsel, the Child Representative and DoCS about “features of the father’s personality”.  The trial Judge referred to his earlier recording of aspects of the father’s personality (paragraph 15 of his reasons).  He recorded the submissions of Counsel that during contact the father would seek to impose his will upon L and manipulate her, undermining the mother’s care.  The trial Judge did not make a positive finding that the father would manipulate L, but noted the “submissions are open on the evidence”. We are satisfied that there was evidence before the trial Judge in the reports of Professor N and Mr Campbell about the father’s personality.  Professor N opined at the conclusion of his report concerns about the father’s conduct and the impact of that conduct on L during contact.  We are satisfied there was evidence to support the finding of the trial Judge that there should not be unsupervised contact.

That the trial Judge failed to afford proper weight to the recording in Professor N’s report that L reported the father had told her to tell the truth compared to reporting of L’s instructions by the mother that “the mother told her what to tell him”

89.  Professor N at paragraph 48 of his report in recording his interview of L notes “She could not remember what her mother told her about coming to see me.  Her father told her to ‘say the truth’”.  The father has misquoted Professor N’s report.  We are satisfied there is no merit in this submission.

The trial Judge failed to properly follow the principles enunciated in Cowling (supra) and failed to take into account “compelling factors”

90.  Having regard to the content, structure and analysis discernible in the judgment, we are satisfied that the trial Judge was well aware of, and followed, the principles enunciated in Cowling.  His Honour structured his reasons having regard to the principles identified to be applied at an interim residence hearing. The trial Judge’s reasons demonstrate that he had L’s best interests at the forefront of his determination as recorded in paragraph 13 of his reasons.  His Honour found, on the objective evidence before him, that L was well settled.  At paragraph 26 the trial Judge considered matters relevant to the test established in Cowling at 85,006 as to whether there was “convincing proof that the child’s welfare would be really endangered by his/her remaining in that environment”, and, on balance,  found that there were greater risks for L in the father’s household.  The trial Judge noted that whilst there had not been acquiescence by the father to the present arrangements, the crucial matter for this child was to prevent further upheaval in her life until all the disputed evidence could be subject of testing at a final hearing.  

91. The trial Judge took into account the relevant factors under s.68F(2) including L’s relationship with each of the parties and Mr G., the loss of her relationship with the father and her half siblings as a consequence of the orders pending a final hearing, and the ability of the mother to provide for L’s needs including her physical and educational needs pending a final hearing. Accordingly we find this ground has no merit.

Conclusion

92.  The trial Judge was faced with the difficult task of making orders to provide for the welfare of a young girl who had been subject to considerable instability over a two year period.  The ability of the trial Judge to consider whether a supervised contact order should or could have been made was thwarted by the father’s refusal to even contemplate such an order pending the final hearing.  Ultimately the exercise which the trial Judge was called upon to make was one of judicial discretion.  The exercise of that discretion could not, in the circumstances of this case, be said to have lead to a result which was clearly wrong.  It is for the foregoing reasons that we dismissed the appeal.