Archer & Archer
[2009] FamCAFC 149
•19 August 2009
FAMILY COURT OF AUSTRALIA
| ARCHER & ARCHER | [2009] FamCAFC 149 |
| FAMILY LAW – APPEAL – PARENTING – In an appeal from the Family Court of Western Australia – Appeal from interim orders made by consent – Where the appellant understood the nature of the interim consent orders – Whether the orders were in the best interests of the children – Where the orders reflected the recommendations of the expert – Whether the trial judge should have considered evidence the father contended he wished to place before the court although not available at the time prior to the making of consent orders FAMILY LAW - APPEAL – BIAS – Whether the trial judge should not have heard the matter – Where the trial judge heard an application between the parties in the past – Where no objection was raised before the trial judge during the hearing FAMILY LAW - APPEAL – Dismissed FAMILY LAW - COSTS – No order as to costs |
| Family Law Act 1975 (Cth) |
| House v The King (1936) 55 CLR 499 |
| APPELLANT: | Mr Archer |
| RESPONDENT: | Ms Archer |
| FILE NUMBER: | PTW | 5147 | of | 2003 |
| APPEAL NUMBER: | WA | 27 | of | 2008 |
| DATE DELIVERED: | 19 August 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Bryant CJ, Coleman & May JJ |
| HEARING DATE: | 3 July 2009 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT ORDER DATE: | 6 October 2008 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Appellant appeared in person |
| SOLICITOR FOR THE RESPONDENT: | Respondent appeared in person |
Orders
The appeal is dismissed.
No order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Archer & Archer is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 27 of 2008
File Number: PTW 5147 of 2003
| Mr Archer |
Appellant
And
| Ms Archer |
Respondent
REASONS FOR JUDGMENT
This is an appeal by the father from orders made on 6 October 2008 by Chief Judge Thackray. The orders were made with the consent of the parties but the father now appeals seeking that the orders be set aside. As he said at the outset of the hearing of the appeal, the central issue as he sees it is “the right to be heard” which he believes was denied to him.
The consent orders
The effect of the consent orders, expressed to be on an interim basis, is that the father may spend time with two of his children, a boy O aged 12 and a girl U aged 10, supervised by a community organisation for a minimum of eight occasions and that there then be a report from that organisation. The amount of time was two hours on a Saturday or Sunday. The father told us that he has complied with the order and a report has been obtained. No part of the father’s appeal involves any assertion that he did not understand the effect of the orders to which he consented. The next stage in the proceedings can now be taken except that the father is concerned that the order made by the Chief Judge could lead to that judge hearing the trial. In essence, that is the second limb of the appeal; that the Chief Judge should not have heard the case.
We would mention that the orders made by his Honour also provided that the matter can be re-listed before him after the report is prepared. This may be for directions only, as another judge may hear the matter on a final basis.
History
So far as this appeal is concerned, the history begins with the orders made on 28 September 2005 by Tolcon J providing that the children live with the mother and the father have contact with the children each alternate weekend from 5.00pm Friday to 6.00pm Sunday, each Tuesday from 5.00pm to 7.00pm, each morning by telephone, times on their birthdays, the father’s birthday, Christmas and half of the school holidays.
The orders sought in the application subsequently filed by the father on 11 December 2006 reveal part of the father’s case and were as follows:
1.For all orders dated granted 28th September 2005 by Justice Tolcon to be dismissed in there [sic] entirety regarding all contact with the children and for new order to be given in chambers with or without consent by [Ms Archer], and if the court feels that the three (3) children of the marriage, [A …], [O…] and [U…] are in danger by the mother and her defacto partner regarding all types of abuse towards them, that for day to day care to be given/transferred immediately to the applicant/father [Mr Archer] for the safety and well being of the children and for the children to reside with the father at the home of his choosing, and or interim residence at his mothers home […].
2.For [Ms Archer] and her defacto partner to have supervised contact only, with the three said children of the marriage as named and stated above.
3.For urgent make up contact with the children as named and stated above, to commence PM 12 December 2006 in which [Ms Archer] is to deliver the three children of the marriage to the Applicants mothers home […], contact time from 5pm - 8pm and from 8pm collect the children. (Subject to above order), and for the courts to give new/amended contacts orders for the applicant father and his family, so they may have holiday contact and Christmas contact with the children.
4.For [Ms Archer] and her defacto partner to have a Competency Hearing regarding her/their mental state as this will impact the ability to be fit to stand trial regarding breach of contact orders and other criminal activities regarding the case and whether to have day to day care of the children.
5.For the said children of the marriage, as named and stated above to be screened by an independent court appointed therapist for sexual, emotional and physical abuse by [Ms Archer] and her defacto partner […].
Numerous orders have been made in this matter. On 21 February 2007 orders were made by a Family Law Magistrate. On 26 March 2007 it was ordered that the children be separately represented. On 4 April 2007, as a result of an application by the father, an order was made that the children be interviewed by a Family consultant “to ascertain their views on contact with the Applicant, [Mr Archer], and any reasons advanced.”
On 11 April 2007 the “existing contact orders” of Tolcon J were “suspended” by Magistrate Fleming. This order was made after oral evidence was given by a social worker, Mr F who had interviewed the children that morning. The evidence of Mr F was not before the Chief Judge as it was not relied on by either party or the Independent Children’s Lawyer.
On 16 April 2007 the father filed an application for Final Orders seeking that all the children live with him.
On the application of the Independent Children’s Lawyer, Dr W was appointed the single expert witness on 4 July 2007. Dr W is a clinical psychologist.
The consent orders from which this appeal emanates relate to the two younger children. Consent orders were made in relation to the older boy, A, on 19 July 2007. Those orders provided that he “spend time with the Applicant Father in accordance with his wishes”.
On 21 May 2008 the father filed a document setting out the orders he proposed be made. We will reproduce that document in part:
Child Welfare Issues
1.1
The Family Court of Western Australia to finally provide an order to protect the children of the marriage, [A] born …1992, [O] born…1997, [U] born…1999.
These children have had constant abuse and neglect by [Ms Archer] her partner […] and other parties including the Family Court of Western Australia for failing to protect the children even when all the evidence shows this, the court turned its back on the children.
1.2
The applicant [Mr Archer] (husband/father) to be sworn in and testify to account for the above statement (1.1).
In the mother’s application filed on the same date she asked:
1.That the children of the marriage continue to reside with the mother as recommended in the report.
2.Mr [Archer] attend reportable parenting classes for both adolescent and younger children.
3.Mr [Archer] attend reportable anger management course.
4.Mr [Archer] have supervised visits as per outlined in the report.
At the time of the hearing before the Chief Judge the father had not seen the children for 20 months.
Apart from the application and affidavits of the parties the judge had the expert report of Dr W to which we will shortly refer at some length. The parties represented themselves. Neither party relied on affidavits from other persons, although the father indicated he wished to call the school principal of the school the children attend.
The expert report – Dr W
In view of the complaints made by the father about how the case was conducted and various other complaints about the report of Dr W and how it was prepared, it is of interest to first observe from the report that not only were interviews conducted with the family and tests administered, but Dr W also read the affidavits and applications of the parties, previous orders, transcripts, police and school records.
The following are the relevant extracts from the report of Dr W:
In summary, Mr [Archer] appears to enjoy being a parent and to want to have an ongoing relationship with his children. He has a limited range of techniques to use for managing the children’s behaviour and this may contribute to occasions when he becomes irritated with the children because they do not respond as he had hoped.
…
Ms [Archer] does appear to be a little more detached from the children than most mothers but this may be due to being in a new relationship.
…
[U] also expressed concern that her father will try to take her away from her mother. The single expert did not have an opportunity to see [U] interact with her father as she is refusing to see him.
[U] was very positive about being with her mother and appeared very relaxed in the company of her mother. She appears to be well-bonded to her mother.
In summary, [U] appears to have some anxiety about her family situation which is understandable given the level of conflict between her parents.
…
[O’s] drawings indicate that he is anxious and depressed about his family situation.
…
[O] stated that he worries that his father will break into their house and take him and [U] away. … The single expert did not have the opportunity to observe [O] interacting with his father as [O] is refusing to see his father.
[O] does appear to have a very good relationship with his mother.
…
In summary, [O] appears to have a very strained relationship with his father and harbours a great deal of anger about the way his father has treated him in the past. He appears to have a good relationship with his mother.
…
[ … ] [A] appears to be maintaining a relationship with his father though has hurt feelings about some of past interactions between them. He does not appear to have a great deal of respect for his father as a father. [A] appears to have a good relationship with his mother and seems happy to be living again in her home.
…
In summary, Mr [Archer] should be able to provide adequately for the physical and social needs of his children. He may have some difficulty in recognising the emotional needs of his children but not to such a degree that he should not have an ongoing relationship with them.
…
In summary, Ms [Archer] does appear to have the capacity to recognise and provide adequately for the physical, social and emotional needs of her children.
…
At the current time, it appears that it is difficult for Ms [Archer] to promote the relationship of the children with their father due to the level of animosity and anxiety she has in relation to Mr [Archer]. As a result, she finds it difficult to encourage them to see their father.
…
Mr [Archer] appears to still have a great deal of anger toward Ms [Archer] related to the divorce and her subsequent relationship with [her de facto partner]. According to the children, he does make negative statements about Ms [Archer] in their presence. It is felt that Mr [Archer] would have difficulty promoting the relationship between the children and their mother.
…
Each of the children indicated their wish to remain living with their mother.
…
[A] stated that he was happy with the current situation where he is able to decide when and how much time he spends with his father. [A] did indicate that he feels that [O] and [U] are afraid of their father.
[O] expressed no desire to have contact with his father. [O] said that he would not like to see his father even if there was supervision as he felt that his father would be “nice” until the supervisor left. He indicated that he might want to see his father when he is older. He continues to worry that his father will try to take him and [U] away.
[U] expressed that she did not want to have to see her father but would accept talking to him on the telephone. She also expressed concern that her father would act nice if there was supervised contact but that her father would go back to his old ways of interacting with her when the supervision was over.
…
There was no indication that the views of the children have been influenced by anyone. The children seemed genuine about their concerns.
…
All three children seem quite happy living with their mother and to be well cared for in her care. It is recommended that the Family Court consider keeping the children living with Ms [Archer].
…
There are no concerns about Mr [Archer] having contact with his children.
…
While it does not appear that Mr [Archer] intentionally behaved in a manner to frighten the children, he does need to understand that this is how they feel currently and that he must make a special effort to help them see him as someone not to fear. … Mr [Archer] will need to be very sensitive to their interpretation of his actions and, especially of the language he uses with them and the tone of his voice.
…
At this time, it appears that the only way in which the children would feel safe in his presence is if there is someone else present as well. It is recommended that the Family Court consider the children having supervised contact with their father for a period of two hours every two weeks. If this supervised contact goes well from the perception of the supervisor, then consideration could be made to having the contact every week with supervision. Again, if this goes well from the supervisor’s perspective, then consideration could be made that the children have an outing with their father and his girlfriend that would be for two hours as a trial for how well the children are coping with the contact with their father. After this trial, the matter may need to come back to the Family Court to determine if the children would be comfortable with unsupervised contact with their father.
It is recommended that the Family Court consider allowing [A] to determine the frequency and duration of his contact with his father as is the current arrangement.
...
It is recommended that the Family Court consider counselling for Ms [Archer] and Mr [Archer] to attend together to learn how to communicate with each other in a non-hostile way about the needs of their children.
It can be seen that the recommendations of the psychologist accord with the orders made. It was also the submission of the Independent Children’s Lawyer from the commencement of the trial that such orders should be made in the children’s best interests.
The arguments of the appellant
As mentioned earlier, the father’s appeal is largely confined to two matters which can be expressed as follows:
1.The consent orders should not have been made because the evidence which could have been before the judge demonstrated that these orders were not in the children’s best interests;
2.The Chief Judge should not have heard the application because of his connection with the matter in the past.
The answer to the first contention lies within the transcript of the hearing before the judge. In relation to the second, at no time did the father indicate to the judge any concerns about him hearing the matter, although the father certainly had such an opportunity.
The transcript reveals that at the outset, the Chief Judge explained that although it had been expected that Penny J would hear the matter, he would be hearing it as that judge was no longer available. The judge clarified with the parties and the Independent Children’s Lawyer what matters may have been put to Penny J at earlier hearings.
The father then made a number of complaints about Dr W’s report. This included his considerable concern about an alleged allegation against him emanating from the children’s school. The father wished to call the school principal as Dr W had not made investigations into the alleged incident.
The difficulty about the claim in relation to Dr W is that no adverse inferences were drawn against the father. In fact, some positive findings about him were made as we have set out in those parts of the report reproduced in this judgment. There are two difficulties about the father’s proposal to call the school principal. First the father agreed that there was no issue about the children’s progress at school and, secondly, the evidence proposed to be given by the principal was hearsay. In addition, although the father remains greatly aggrieved by the allegations, it was no longer an issue in relation to what orders should have been made by the Chief Judge on that occasion. Therefore it is entirely understandable and correct that the Chief Judge indicated that there would be no good purpose in calling the school principal.
As to other complaints about the expert’s report, the Chief Judge carefully explained to the father that the role of fact finding and the making of conclusions based on those facts was his, not that of the report writer. His Honour would only take the recommendations into account with all the other evidence. We do not see that his Honour could have explained this any better to the father.
The Independent Children’s Lawyer in providing a preliminary outline of the case to his Honour said:
The problem is that Mr [Archer] seeks a change of residence based on the considerable volume of facts that he wishes to bring before the court. The second problem in my preliminary opinion is that he has nothing but his own evidence on which to convince the court to change the residence. (T/script p.7 […])
In addition, reference was made to the previous decision of Tolcon J and the need for the father to demonstrate a change in circumstances. The father seemed to have some difficulty in appreciating these points and was of the view that as he had “done nothing wrong”, he should either be seeing the children regularly without supervision or have them living with him.
After the father had been given a considerable period of time to explain his position, the Chief Judge in an entirely appropriate manner encouraged the parties’ to consider an arrangement on an interim basis. As his Honour reminded him, the father did not have the subpoenas which he said he wished to have, nor any other witnesses to rely upon other than his own contentions.
Ultimately, with the assistance of the Independent Children’s Lawyer, the parties’ agreed on the orders. The only matter for his Honour’s determination was how the cost of supervision was to be met. The orders made were not a matter directly raised as part of the appeal before us.
The father submitted to us that the judge should have taken into account evidence that he might have placed before the court. The transcript reveals to us that at no time did his Honour ignore any attempt by the father to place before the court any evidence other than for good reason, in relation to the school principal to which we have already referred.
Returning to the second matter raised by the appellant father, that the judge should not have heard the matter, he submitted to us that in 2005 the Chief Judge heard some application in relation to the parties. As we have mentioned, as there was no objection to the judge hearing the matter and as no real basis for an allegation of apprehended bias was placed before us, this part of the father’s submissions is rejected. We discern nothing emerging from the transcript of the proceedings, or elsewhere from the material before us, which suggests that his Honour should not have heard the case, or that he should have raised with the parties his suitability to hear the case.
Of course, if there is some basis that his Honour should not hear the matter relating to some historical matter there would be no difficulty in the father raising this before the judge should the matter be listed before him in the future.
Conclusions
In determining that there is no merit in this appeal, we recall what was said in the well known passage from House v The King (1936) 55 CLR 499 at 504 - 505:
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he 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.
No submissions were made to us that would reveal a basis, as described in House v The King, that the appeal should be allowed. In essence, the father is of the view that somehow he was dealt with unfairly, whereas it can be seen from the transcript that the judge was extremely careful in explaining the process to him. Ultimately the father agreed to the terms of the interim orders.
Costs
Section 117 of the Family Law Act 1975 (Cth) provides that each party shall bear his or her own costs. The court may make an order for costs where there are circumstances that would justify such an order, those matters being listed in s 117(2A).
In this case, it must be said that the appeal was entirely unmeritorious however, it relates to a matter which has been highly contentious for many years and culminated in a consent order between the parties. In addition it was ordered by his Honour that the father would be meeting the costs of three out of four of the supervised contact visits.
In the transcript, there was discussion about the cost of such supervision which was not inconsiderable. The transcript also reveals some information about the parties’ financial circumstances including the child support being paid by the father.
The mother filed no material in the appeal and appeared for herself. There was no appearance by the Independent Children’s Lawyer. Overall in our view there should be no order made for costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 19 August 2009
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