ASTIN & HARLOW
[2011] FamCAFC 89
•15 April 2011
FAMILY COURT OF AUSTRALIA
| ASTIN & HARLOW | [2011] FamCAFC 89 |
| FAMILY LAW - APPEAL – CHILDREN – Where an order was made for the child to spend time with the mother only if the child wishes – Whether the trial Judge erred by finding that the father would promote the child's relationship with the mother – The mother's argument was misconceived, as the trial Judge found the father did not intend to promote a relationship between the mother and child – Whether the trial Judge erred by giving "arbitrary weight" to the evidence of witnesses – No appealable error established in the weight given to the evidence of the witnesses – Whether there was actual or apprehended bias on the part of the trial Judge – There was no evidence of bias – Appeal dismissed – Mother ordered to pay the father’s costs of the appeal |
| Family Law Act 1975 (Cth) Family Law Rules 2004 |
| Aldridge & Keaton (2009) FLC 93-421 CDJ v VAJ (1998) 197 CLR 172 Champness & Hanson (2009) FLC 93-407 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 House v The King (1936) 55 CLR 499 Marsden & Winch (No. 3) [2007] FamCA 1364 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Mulvany & Lane (2009) FLC 93-404 Re K (1994) FLC 92-461 Slater & Light [2011] FamCAFC 1 |
| APPELLANT: | Ms Astin |
| RESPONDENT: | Mr Harlow |
| FILE NUMBER: | BRC | 5262 | of | 2008 |
| APPEAL NUMBER: | NA | 65 | of | 2010 |
| DATE DELIVERED: | 15 April 2011 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Thackray, Strickland and Ainslie-Wallace JJ |
| HEARING DATE: | 15 February 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 May 2010 |
| LOWER COURT MNC: | [2010] FamCA 391 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Potkonyak |
| SOLICITOR FOR THE APPELLANT: | Success Lawyers & Barristers |
| COUNSEL FOR THE RESPONDENT: | Mr Waller |
| SOLICITOR FOR THE RESPONDENT: | Carne Reidy Herd |
Orders
The appeal be dismissed.
The appellant mother pay the respondent father’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.
IT IS NOTED that publication of this judgment under the pseudonym Astin & Harlow 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 BRISBANE |
Appeal Number: NA 65 of 2010
File Number: BRC 5262 of 2008
| Ms Astin |
Appellant
And
| Mr Harlow |
Respondent
REASONS FOR JUDGMENT
Introduction
The mother and father have been litigating over their only child for the last decade.
The child has lived with her father since 2002. She has spent time with her mother, although more recently that time has been supervised.
Barry J has now ordered that the child will spend time with her mother only if she wishes. The mother can respond to any communication she receives from the child, but cannot initiate communication.
The mother has appealed these orders.
Background
The mother and father met in 1996. Their relationship ended not later than September 2000. The child was born in March 1998.
The father commenced proceedings concerning the child in November 2000. Since then there have been three “final” hearings, including the one giving rise to this appeal.
In 2002, following the first trial, Monteith J ordered that the child live with the father and spend alternate weekends with the mother.
The second trial commenced before Barry J in June 2006. During the hearing, at which both parties were represented, a compromise was reached which involved the mother having the child on four nights each fortnight. The consent orders also required the parties to obtain leave of the Court before commencing further litigation.
In October 2007, Barry J heard contravention applications brought by the mother, together with her application seeking leave to apply for orders about where the child should live. His Honour dismissed all of the applications. The mother appealed, but that appeal was dismissed in May 2008, with costs.
The latest round of proceedings was commenced in July 2008, when the father sought that the mother’s time with the child be suspended. This followed an incident in which Barry J found the mother had pinned the child to the ground and forced her to write a letter about her attendance at her speech and drama class.
His Honour made an ex parte interim order suspending the mother’s time with the child, but later allowed her to spend time with the child at a contact centre.
On 19 February 2009, the matter was listed for trial on 27 and 28 August 2009.
On 18 August 2009, the mother wrote to the Court requesting the appointment of an Independent Children’s Lawyer and the adjournment of the trial. These requests were denied at a hearing on 20 August 2009. The trial then proceeded over the allocated two days, following which judgment was reserved. The father was represented at trial, but the mother was not.
On 31 August 2009, the mother wrote to the Court concerning events said to have occurred at a recent visit at the contact centre. After a subpoena was issued to the centre, the matter was mentioned again on 9 October 2009.
On 19 May 2010, Barry J published his reasons for decision following the August 2009 trial and made the following orders:
(1)The child, [born March 1998], reside with the Father.
(2)The Father have sole responsibility for all decisions involving the care, welfare and development of the child.
(3)Pursuant to s 65L a Family Consultant attached to the Brisbane Registry of the Family Court is requested to consult with the child and explain to her the Orders made by the Court today and the reasons for same.
(4)The Mother spend no time with the child save at the specific request of the child with any such time to be supervised at a Contact Centre or supervised in such other form as the parties may agree in writing.
(5)The child be at liberty to communicate with the Mother by email, by post or by phone at any time the child wishes to do so.
(6)The Mother be at liberty to respond to any email or letter sent by the child.
(7)The Father is at liberty to peruse any mail or email addressed by the Mother to the child prior to the child’s receipt of same and may in his discretion if he considers the terms of the communication to be inappropriate determine the communication should not be given to the child but be returned to the Mother.
(8)The Mother is not to phone the child at any time either on her mobile phone or any landline.
(9)In the event the child expresses a wish to see her mother either on a periodic basis or for a single visit, the Father is to communicate with the [Contact Centre] with a view to arranging such visit or visits to occur at such Centre, if available. In the event such Centre is not available to offer its services, the Mother’s time with the child is to be otherwise supervised in such manner as the parties may agree in writing or is otherwise determined by this Honourable Court.
(10)The Father is to notify the Mother in writing of any medical treatment the child may require from time to time with details of the nature of the treatment and the medical practitioner providing same.
(11)The Mother is authorised to request any school the child may attend for copies of the child’s term school reports …
The trial Judge’s reasons
We will set out below those parts of the trial Judge’s reasons of most relevance to the mother’s complaints. It will later become clear why particular reference is made to what his Honour said concerning the receipt of some items of “evidence” and his approach to the report of Ms C, a Regulation 8 Family Consultant.
Having set out the background facts, his Honour recorded that the mother proposed that the child live with her and spend supervised time with the father. The father’s proposal was that the child continue to live with him and not spend time with, nor communicate with the mother.
His Honour then observed that the present proceedings were triggered by the child’s complaint that the mother had pinned her to the floor until she agreed to write a letter “to the effect she no longer wished to do speech and drama at [her] school”. His Honour then referred to evidence from the child’s school principal and the head of the junior school (“the school principals”) which he found corroborated what the child had told the father about this incident. He also recorded that in October 2006 the mother had had a “falling out” with the speech and drama teacher.
His Honour accepted the evidence of the school principals, whom he found to be “intelligent, independent, honest witnesses whose account of events is corroborated in a significant number of ways”. His Honour went on to say:
43.The events involving the school which I have described as the triggering event was only the last straw in a long line of incidents which had continued unabated since shortly after the making of the consent orders in June 2006. The Father in his trial affidavit details conduct of the Mother which could only be described as not being in the best interests of the child and putting her own interests ahead of those of [the child].
His Honour next discussed the evidence of Dr V, a psychiatrist who had provided a report in the 2006 proceedings. He recited parts of that report including the following:
With respect to the father … he presents as having some obsessional traits and also as a fairly controlled individual and it is possible that he is also controlling but further data is required. All the same his personality would seem to fall in the normal range with several personality strengths.
With respect to the mother … it would seem that there is “a disorder of personality” which could be characterised as having histrionic, narcissistic and perhaps some paranoid traits. She tends to dramatise issues and has difficulty seeing things from any perspective other than her own. This has led to a situation where she is unable to take any responsibility for the awful predicament she is in with respect to contact with her child, a situation she deals with by externalising issues with excessive use of projection.
It seems to me that underlying her psychological difficulties is a problem of self esteem and self worth, such that the only way she can value herself as a mother is to paint the father in an extremely bad light. Her behaviour is self-defeating with a tendency to repetition, compulsion, despite negative consequences for her.
His Honour also recited the following responses Dr V had given in 2006 to questions from the Independent Children’s Lawyer:
Question:Whether either parent presents as suffering from a psychiatric illness or a personality disorder.
Answer:It seems to me that [the mother] has a personality disorder.
Question:If so, whether in your opinion the illness or disorder would impact upon that parent’s ability to be either a resident or contact parent as the case may be for the child.
Answer:The personality disorder of itself does not necessarily impact on [the mother’s] capacity to be a residential parent or a contact parent except insofar as she seeks a highly enmeshed relationship with the child to the exclusion of significant others. This is a situation that is not ideal for optimal development of the child. However the problem that arises is that in her desire to achieve such a relationship with the child she has behaved in ways that have been to her detriment in a self-defeating manner and moreover exposed the child to emotional abuse. - - -
The principal question is the extent to which if the mother were to be a contact parent that she would seek to undermine the child’s relationship with the father by making false allegations against the father and moreover coaching the child to do so which would be most harmful to the child’s development.
His Honour then recorded that in giving evidence at the August 2009 trial, Dr V had commented on a recent affidavit sworn by the mother and a letter written by her. On the basis of these, Dr V had opined that nothing appeared to have changed in relation to the mother making accusations against the father, and that what he had predicted in his earlier report had eventuated. His Honour accepted “the diagnosis” of Dr V (presumably that contained in his original report) and he also accepted what he had said in his oral evidence.
Under a heading “Mother’s Case”, the trial Judge observed that the mother had provided a list of affidavits on which she intended to rely. In addition to relying upon numerous affidavits she herself had sworn, his Honour noted that the mother wished to rely on affidavits by Ms H, Dr H and Reverend T. His Honour then observed that “before turning to a consideration of the mother’s evidence I shall briefly make comment on the witnesses she did call” [our emphasis added].
Turning first to the evidence of Reverend T, the trial Judge noted that the witness had recited a history of the mother’s upbringing which was largely based on what she had told him. He noted the Reverend’s evidence that he had “observed a warm loving relationship between mother and daughter”. Reverend T had also said that the mother had “constantly expressed her desire to be able to encourage [the child] to make choices, and increasingly make her own, age appropriate, personal decisions as she develops towards young adulthood”. His Honour noted that Reverend T’s evidence was contained in a letter attached to his affidavit, and that the letter had been written on 29 August 2008 (i.e. about a year before the trial).
His Honour commented:
57.The fact that the Mother may on occasions in the past appear to have a warm loving relationship with the child and to encourage her daughter to make choices, does not negate the fact that there is an abundance of reliable evidence she has on numerous occasions denigrated the Father to the child, obstructed the child’s extra-curricular activities, interfered with the child’s health issues and engaged in conduct towards the child that constitutes physical and emotional abuse (refer Father’s affidavit filed 12 June 2009, in particular paragraphs 86, 94 and 98).
His Honour concluded that Reverend T was “something of an apologist” for the mother and did “not have adequate insight into the other side of the story”.
His Honour next referred to the evidence of Dr H, a clinical psychologist, but found he could place “no reliance upon it whatsoever”. He commented that Dr H had not interviewed the father or the child, and had “seemingly taken the Mother’s account of events at face value”. He also found he had not demonstrated “appropriate qualifications” to critique Dr V’s reports.
The trial Judge then set out a list of the reports, dated from 2000 to 2005, which Dr H had purported to critique. His Honour noted these were “of historical interest only”, since they had been “superseded either by the orders of Monteith J in 2003 or the consent orders of 2006”. Included amongst the reports his Honour had listed was Dr V’s report of September 2005.
Turning to other witnesses, his Honour noted again that the mother sought to rely upon an affidavit of Ms H, which he said had been filed on 26 November 2008. His Honour recorded that the mother had been unable to contact Ms H to have her come to Court, and that in those circumstances he had not allowed the mother to rely upon her affidavit.
We were unable to locate any affidavit by Ms H in the appeal papers. It seems that the document on which the mother sought to rely may have been a one page statement dated 23 November 2008: Appeal Book 492. The statement purports to have been made by Ms H, but it is unsworn and unsigned (save for what appear to be Ms H’s initials).
His Honour also recorded that the mother wished to rely upon three affidavits of Dr L, a psychiatrist. He recorded that Dr L was not available for cross-examination, but he had allowed his reports “to stand”, although their value was “lessened by the fact of his unavailability”.
His Honour next referred to a number of “lengthy affidavits” sworn by the mother, on which she wished to rely. He observed that these “contained numerous annexures many of which had little or no relevance to the matters in issue”.
His Honour next recorded that in her affidavit sworn in June 2009, the mother had denied she had held the child to the ground and forced her to write a letter. His Honour then immediately referred to Annexure 1 to that affidavit, which consisted of handwritten notes from the child. His Honour said he was not prepared to place any weight on these, which he found were “written whilst the child was in the Mother’s care”. The notes were variously dated from January 2007 to July 2008.
His Honour said he was more than satisfied that the mother had acted in the manner described by the school principals (which was a reference to their evidence of how the child had explained how she had been pinned to the ground). He also found that the views the child had expressed in the notes attached to the mother’s affidavit of June 2009 were “quite contrary to the views expressed by the child to other witnesses (including Ms [C]) that she wishes to remain in her father’s care”.
Having referred to the mother’s assertion that it was the father who needed “extensive and ongoing psychological and psychiatric assessment and assistance”, his Honour recited the mother’s affidavit where she said:
82.There has been no recent independent evidence filed in this Court regarding the child’s views. [Ms C]’s report is brief, and conflicts in many places. The Court should not rely on such a report which in one paragraph notes that she loves spending time with her mother, looking forward to holiday time, and in the next states that she doesn’t want to see her mother.
The trial Judge concluded his outline of the mother’s case by noting there were “numerous annexures” to the mother’s affidavit of 15 September 2008. He recorded he had considered the affidavit, but did not “intend to refer in any detail to same”. It is important to record that amongst the documents attached to that affidavit (Appeal Book 214 to 465) were notes from the child to the mother, upon which much emphasis was placed by the mother’s solicitor in his submissions before us.
We note that amongst other documents attached to the mother’s affidavit of 15 September 2008 were affidavits of five witnesses, all sworn in October 2005, and an affidavit of another witness, sworn on an unspecified date in 2007. Also attached to the affidavit was an undated, unwitnessed, statutory declaration signed by a further witness. Finally, we note there was an unsworn, unsigned, statement dated 18 August 2008, purporting to have been made by Ms H.
The trial Judge then commenced a new discussion under the heading “Credibility of the Parties”. He found the father to be “a well qualified highly intelligent individual, who at all times has had the child’s best interests at heart”. He went on to say:
71.… I agree with the assessment made by Monteith J more than seven years ago (quoted at paragraph 7 above):
“- - - He has, in my opinion, demonstrated time and time again, his commitment to a shared care arrangement. I accept his evidence that he wanted that arrangement to work. - - -”
In paragraph 7 of his reasons, Barry J had said:
7.Several points raised by Monteith J may be considered particularly salient to the current application. In relation to the willingness of the parents to promote a meaningful relationship, his Honour observed … :
“On the evidence before me, I find that the shared care arrangement failed to work primarily because of the difficulties created by the mother. If I were to place the child primarily in the care of the mother, I do not believe she would foster the child’s relationship with the father, or with her paternal grandparents. In fact, I believe that the mother would attempt to frustrate the child’s relationship with her father and her paternal grandparents. On the other hand, if I place the child in the care of the father, I am of the opinion that he will promote the child’s relationship with the mother, and with his parents. He has, in my opinion, demonstrated time and time again, his commitment to a shared care arrangement. I accept his evidence that he wanted that arrangement to work. In my opinion, he recognises the desirability of the child having the benefit of two parents.”
Having alluded to what he had said in paragraph 7 of his reasons, Barry J went on to find:
72.The Father has been the recipient of provocative aggressive behaviour from the Mother coupled with allegations of serious misconduct. At all times the Father has acted with dignity and has responded in a measured way. I have no hesitation in accepting his account of events particularly in circumstances where it is in conflict with the Mother’s account.
73.The Mother’s behaviour has been inconsistent in so many instances. She admitted to Dr [L] her behaviour has constituted emotional abuse, yet at other times she denies this. I find I can place no reliance on the Mother’s evidence. …
In the next part of his reasons, his Honour dealt with the evidence of Dr L. He observed that in the first of his reports, Dr L had provided a “recitation of facts which largely accord with the Mother’s version of events”. He also recorded that in his first report Dr L had said there was no reason to believe that the mother:
… would not be able to assume the role of primary care giver and successfully take over residency of [the child]. I believe that she would be well suited to undertake this role and from a psychiatric perspective there are no reasons why she should not be granted residency of her daughter.
In his second report, Dr L said:
Nevertheless over the past few months [the mother] has managed to achieve greater insight into the fact that her behaviour has exposed [the child] to a form of emotional abuse and indicated a wish to avoid this in the future … However, as Dr [V] notes, the central issue is to what extent [the mother] can modify her behaviour if directed by the Court. Whilst her belief that [the child] has been physically abused by her father is not delusional, this belief has the quality of an overvalued idea, carrying with it very strong emotions.
Dr L concluded his report by recommending that the mother “continue to undergo psychotherapy in order to maximise the chances of achieving a more satisfactory outcome for both herself and [the child]”.
The trial Judge next dealt with the event that had led to the proceedings being re‑opened in October 2009. It is unnecessary to recite the details, but his Honour found there was an “histrionic element” in the information the mother had provided about what had happened at the contact centre which had persuaded him to re-open the proceedings.
His Honour also recorded that the first supervised visit at the contact centre, following the suspension of the mother’s time with the child in June 2008, had not occurred until November 2008 “because of the Mother’s work commitments”. His Honour then recited some of the notes taken by supervisors at the contact centre during the mother’s visits.
These notes will assume importance in this appeal. Accordingly, when we come to consider issues raised concerning the child’s views, we will set them out in full. At this point it is sufficient to say that his Honour later summarised those notes as showing that:
… on a regular basis the child does not engage with her mother in a warm emotional way, turns her face when the Mother is attempting to kiss her and displays a general lack of warm affection towards her mother.
Under the next heading, “Objections to Evidence”, his Honour recorded that, notwithstanding objections to the mother being permitted to rely upon the affidavits of Dr H and Reverend T (because their expertise had not been established), he had ruled they could give their evidence.
His Honour next noted the mother’s objection to the father being permitted to rely upon the report Ms C had prepared in 2007 concerning the child’s views. In dealing with this objection, and having noted that “Section 69ZT deals with the rules of evidence not applying unless the Court decides”, his Honour said:
97.There was no formal application to strike out Ms [C]’s report. Had there been I would have over ruled same. I will refer in more detail later in these reasons to Ms [C]’s report. It is some independent evidence of the child’s wishes albeit the interview was conducted in October 2007.
His Honour then set out at paragraph 99, in a series of dot points, the reasons why he did not intend to make an order for the child to live with the mother. Given their importance to this appeal, we set these out in full;
• It reflects the status quo being the orders that have been in place since early 2003.
• The Mother constantly has made false accusations against the Father and continues to do so.
• The Mother has involved the child in making accusations against the Father.
• The Mother is quite unable to promote a relationship between
[the child] and her father and engages in conduct undermining the Father’s relationship with the child.• The Mother is unable to put the child’s needs ahead of her own, but one example being the incident of May 2008 when the Mother held the child down on the floor and forced her to write a letter contrary to the child’s wishes. It was the Mother who had the problem with [the speech and drama teacher], certainly not the child.
• Having regard to the numerous events over the last two years detailed in the Father’s affidavit, it is likely the Mother’s conduct will not change for the better and there must be some prospect it will deteriorate even further.
• Dr [V] refers to the Mother’s capacity for projection. All of her material would seem to be a textbook example of this projecting onto the Father or other witnesses, the Mother’s own failings.
• The Mother has had supervised time with the child from the time of the making of the orders by Registrar Spelleken in mid-2004 through to June 2006 and again from the making of the orders by myself in July 2008 through to the present time. In other words, in a period of almost six years the Mother has had supervised time with the child for four of those years. I appreciate that some of the time in the period leading up to the second trial in June 2006 the Mother had spent time with [the child] outside the confines of the Contact Centre but nonetheless the time was still supervised. There is reference to this aspect in Dr [L]’s final affidavit. The sole reason why this situation has been brought about has been the Mother’s ongoing conduct. In the circumstances it would be far too risky to rely on the Mother’s assurances that she would not coach the child or attempt to alienate the child from her father.
• I accept from the report of [Ms C] annexed to the Father’s trial affidavit that the child has expressed a firm wish to reside with her father.
• I accept from the report of [Ms C] the child has expressed a firm wish not to spend any time with her mother.
• It is apparent from the detailed notes from the Contact Centre that on a regular basis the child does not engage with her mother in a warm emotional way, turns her face when the Mother is attempting to kiss her and displays a general lack of warm affection towards her mother.
• The Father has until now done his level best to promote a relationship between mother and daughter. After the lengthy hearing in 2002 the Mother continued her campaign of allegations the Father had abused his daughter. Notwithstanding this conduct which led to Registrar Spelleken ordering the Mother’s time with the child be supervised in 2004, in 2006 the Father consented to orders being put in place which saw a gradual build up of the Mother’s time such that it became unsupervised and she had the child in her care four nights out of fourteen.
• The Father has a demonstrated ability to put the needs of the child ahead of his own. The Mother is completely unable to do so.
His Honour next considered whether the mother should have any unsupervised time with the child. His Honour said:
102.I am prepared to make a finding on the available evidence on a consistent basis the Mother has shown herself to be incapable of acting in an appropriate manner towards the child. Examples of such conduct include:
•The incident with [the speech and drama teacher] in October 2006 where she endeavoured to video the child’s lessons.
•The incident in May 2008 of pinning the child to the ground and then forcing her to write a letter.
•Being consistently late in returning the child to the Contact Centre after contact periods.
•On a regular basis making inappropriate comments to the child particularly comments denigrating the Father.
•Engaging in verbal abuse of the child.
•Engaging in physical discipline to the child, paragraph 70 of the Father’s affidavit filed 12 June 2009. On the occasions referred to in paragraph 70 the situation had been reached of the child saying:
“I might strangle myself”.
“It is the only way out of this.”
Because of the Mother’s conduct arising from her personality disorder as described by Dr [V] involving as it does physical and verbal abuse of the child and ongoing denigration of the Father, it would be my view there would be a risk of a return to verbal abuse of the child and ongoing denigration of the Father if there was to be unsupervised time between the Mother and [the child]. I would not perceive this to be in the child’s best interests and accordingly do not consider unsupervised time to be a viable option.
His Honour then discussed the report prepared by Ms C in 2007 concerning the child’s wishes. Given their importance, we will set out the relevant paragraphs of his Honour’s reasons in full.
103.Annexure 4 to the Father’s affidavit of 12 June 2009 annexes a report of Ms [C]. Ms [C] is a social worker with considerable experience. She is a Regulation 8 Family Consultant. Her curriculum vitae which precedes her report demonstrates a wide range of experiences, particularly in the family law field. I accept that Ms [C] has not interviewed the parties to this matter but as distinct from the Mother’s witnesses of the Reverend [T] and Dr [H] she has at least interviewed the most important person namely the child. I have no reason to doubt the contents of Ms [C]’s report. At paragraph 7 of the report she records:
“7.It is [the child]’s expressed view that she no longer wants to spend time with her mother. She claims the reasons for this are because she does not feel safe in her mother’s care, adding that her mother has hit her on the last two weekends she has spent time with her. The child also reports that her mother denigrates her father to her every time she sees her – usually when they are in the car and there is no one else around. Additionally, that her mother sometimes yells at her, calls her names and sometimes fails to return her to her father on time.”
104. At paragraph 10 she records:
“10.It is the child’s view that if the Judge said she should continue with the current care regime, she would feel that the Judge was not listening to her because it is not about either her mother or her father but, “it is about me. I would think he wasn’t caring for me.” If the Judge said her time with her mother should be supervised, “it would be better but I don’t want to go at all” and she would refuse to accept the decision. She believes her father would be happy if she wanted to spend time with her mother.”
105. At paragraph 11 of her report Ms [C] notes:
“11.The child impresses as an intelligent, articulate young girl who was polite during interview. She presented to the interview with a comprehensive statement of her experiences of her mother both verbally and physically along with her feelings in response to these. My experience suggests that children rarely present to counselling with prepared written statements and it is unclear if her father has actively or passively informed her statements. However, if what this child says is reliable and valid her mother seems to be actively attempting to erode her relationship with her father and is hitting her. Further that this is impacting negatively on the mother/daughter relationship.”
106.I note that the interview for Ms [C]’s report was conducted back on 18 December 2007.
107.I did not order a family report in this matter on the basis that there was a plethora of reports dating from 2001 (refer paragraph 59 above) and as noted previously it was my intention to spare the child further involvement in the litigation process.
His Honour next considered whether the mother’s supervised time with the child should continue. He observed that, having spent no time with her from July to November 2008, the mother had been spending two hours a fortnight with the child at the contact centre. He also recorded there was “not a great deal of evidence” concerning the viability of long term supervised contact at a contact centre. Having discussed in general terms the desirability of long term supervision, his Honour recorded his “firm conclusion” that ongoing supervised time was not in the best interests of the child. His Honour then set out his reasons for arriving at that conclusion. The first of these was acceptance of the father’s evidence about statements the child had made. These were recorded in paragraphs 114 to 117 as follows:
114.I accept the Father’s evidence of the child’s concerns as set out in his affidavit filed on 12 June 2009 [sic] At paragraph 70 he notes (as previously quoted) the child saying:
“I might strangle myself”.
“It is the only way out of this.”
She told me that she did not want to go again.
115.For a child of this age to be making such statements is distressing and alarming.
116. At paragraph 82 of his affidavit the Father notes:
“The pressure from the Mother on [the child] to have her agree with the Mother’s wishes and views was increasingly bringing into question for [the child] her own set of values about basic matters, such as “truth and honesty” and “what is right versus what is wrong”. [The child] was becoming less accepting of what I said – she would repeat my answer to her question and then return to me with the same question seeking affirmation at a later point – she was in my opinion increasingly not sure whether what she has been told was reality.”
117.At page 89 of the same affidavit the Father records of [sic] the times she is required to go to the Contact Centre since November 2008:
“[The child] has not wanted to go but does. She is often a bit anxious.”
Having set out the father’s evidence, his Honour went on:
118.I accept the expressions of the wishes made by the child to [Ms C].
119.I have read the Contact Centre’s records. I see little value in requiring the child to attend a Contact Centre for supervised time with her mother for a brief period once a fortnight on an indefinite basis. The child has been attending Contact Centres for almost four years of the last six years.
His Honour then said, “I propose to make orders empowering [the child] as far as possible in the difficult circumstances that prevail”. He continued:
121.If [the child] wishes to communicate with her mother by email or by post or by phone she is at liberty to do so. The Mother may elect to respond to such email or posted letters but the Father, being solely responsible for the child’s wellbeing, would be at liberty to peruse the letters to ensure that nothing inappropriate is said. I do not propose to make an order permitting the Mother to phone the child. Having regard to the history of the Mother’s behaviour over the years I find there is a risk she would take the opportunity to denigrate the Father or in other ways act inappropriately.
122.In ten months time [the child] will be a teenager attending her final year of primary school. I do not see an open ended order for supervised time as being in her interests.
123.I have given consideration to making an order for a fixed time of say twelve months, but an order in such terms would mean [the child] would have spent the last two and a half years seeing her mother in the confines of a Contact Centre.
124.It would mean that over the last seven years the supervised time with the Mother would have been for a period of five years. It would prolong the litigation. It would have the impact of keeping the child as the focus of the ongoing dispute between the parents. Where the litigation has gone on for so long with such intensity, mainly generated on the Mother’s part, it is better to allow the child to withdraw to a neutral zone and give her permission to communicate with her mother if she chooses to do so.
His Honour concluded by noting that the orders he proposed had not been sought by either party, and he would therefore hear submissions before making final orders.
Grounds of Appeal
By her amended Notice of Appeal, the mother relied upon the following grounds:
1.The decision of the Trial Judge amounts to an abuse of discretion. His Honour erred in elevating additional considerations of s60CC(3), in particular subsection (c), to, or above, the level of the primary considerations of s60CC(2).
2.The Trial Judge erred in concluding that the father would promote the child’s relationship with the mother and with her parents, if the child is to live with him, while the mother would not do so.
3.The Trial Judge erred in refusing the Mother’s request for the appointment of an Independent Children’s Lawyer and failing to give adequate reasons for doing so.
4.The Trial Judge erred in assessing the witnesses and in giving arbitrary weight to their testimonies often based on irrelevant factors. This applies in particular to the expert witnesses with reference to Part 3.3 of the Evidence Act 1995 and Part 15.5 of the Family Law Rules 2004.
5.Actual bias by the Trial Judge or, in the alternative, an apprehension of bias, against the Mother.
Appellate principles relating to discretionary judgments
Whilst we recognise not all of the grounds of appeal relate to the exercise of discretion, it is important to note the limitations placed on appellate courts asked to interfere with discretionary judgments. These were explained in House v The King (1936) 55 CLR 499 at 504-5 in these terms:
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 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.
Ground 1 – exercise of discretion – error in weight placed on s 60CC(3); and
Ground 2 – error in finding the father would promote the child’s relationship with the mother
The Family Law Act 1975 (Cth) (“the Act”) provides that in parenting proceedings the best interests of the child are the paramount consideration. In determining what is in a child’s best interests, the Court is directed to take into account the matters in s 60CC of the Act. These are divided into “primary considerations” (of which there are two) and “additional considerations” (of which there are many).
In his written outline, the mother’s solicitor submitted that it was “certain that the Court does not have a discretionary power to give more weight to one of the minor (additional) factors over a primary factor”. We reject this bold submission as contrary to authority: see Slater & Light [2011] FamCAFC 1 at [45], Aldridge & Keaton (2009) FLC 93-421 at [74], Mulvany & Lane (2009) FLC 93-404 at [84], Champness & Hanson (2009) FLC 93-407 at [101-103] and Marsden & Winch (No. 3) [2007] FamCA 1364 at [76-78].
In any event, it was submitted his Honour had erred by placing particular emphasis on s 60CC(3)(c). This is one of the “additional considerations”, which requires the Court to consider the “willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent”.
As foreshadowed by Ground 2, the mother’s argument proceeded on the assumption that his Honour had found the father would promote the child’s relationship with her mother. It was submitted this could not be the case, since the father was seeking to terminate all contact.
This argument is entirely misconceived. Barry J did not find that the father intended to encourage a relationship between the child and the mother. He found only that the father had “done his level best” to promote such a relationship in the past. His recitation of Monteith J’s finding about the father’s willingness to promote the relationship with the mother was not designed to indicate that the father was still of the same mind. It simply placed the father’s proposal in its historical perspective.
The father’s case at trial was that it was no longer in the child’s interest to have a relationship with her mother. Barry J agreed, albeit he accepted that the child should be allowed to initiate contact with the mother if she wanted to pursue a relationship. His Honour therefore did not “elevate” the additional consideration in s 60CC(3) above the primary consideration contained in s 60CC(2)(a), which directs attention to “the benefit to the child of having a meaningful relationship with both of the child’s parents”. Instead, in dealing with s 60CC(2)(a), his Honour focused his attention, as the Act required him to do, on what “benefit” there would be to the child of having such a relationship. His Honour clearly concluded there was no benefit to [the child], save to the extent she wished to have a relationship with her mother.
The second “primary consideration” is that set out in s 60CC(2)(b). This requires the Court to consider “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”. The mother herself had relied upon the evidence of Dr L, who had recorded that the mother had “to achieve greater insight into the fact that her behaviour has exposed the child to a form of emotional abuse”. Dr L noted that the mother wanted to avoid exposing the child to such abuse in the future, but the trial Judge found she had not succeeded. Whilst we accept the conduct to which Dr L referred did not constitute “abuse” within the meaning of the Act, his Honour was entitled to give it significant weight, which he clearly did. His Honour also found the mother had engaged in physical abuse of the child. That finding was well open to him.
For these reasons, we consider Grounds 1 and 2 lack any merit.
Ground 3 – appointment of an Independent Children’s Lawyer
By this ground it is asserted his Honour erred in refusing the mother’s application for the appointment of an Independent Children’s Lawyer, and that he failed to give adequate reasons for his decision.
His Honour dealt with the appointment of an Independent Children’s Lawyer in paragraphs 28 and 29 of his reasons, where he said:
28.… In February 2009 trial dates were fixed for 27 and 28 August 2009. On 18 August 2009 the Mother forwarded a letter to the Registrar requesting an Independent Children’s Lawyer be appointed and an adjournment of the trial dates until that was done. I then heard the application on 20 August 2009 and dismissed the application for adjournment.
29.I formed the view that the Court would not be assisted by the appointment of an Independent Children’s Lawyer nor would it be in the child’s best interests to postpone the trial. There had been numerous reports prepared over the period of the litigation. I formed the view the child’s interests would not be served by further involvement in the litigation process which would be the inevitable result of the appointment of an Independent Children’s Lawyer. In addition such appointment had been previously rejected and the Mother’s application was brought too late.
In support of this ground of appeal, the mother’s solicitor submitted:
14.In paragraphs 28-29 of his Judgment … his Honour gives reasons for not granting leave for the appointment of an Independent Children’s Lawyer … His Honour’s reason given in paragraph 29, namely, “such appointment had been previously rejected and the Mother’s application was brought too late”, should be rejected as invalid. It is obvious that the Mother being too late in requesting the appointment of an ICL was the result of his Honour’s refusal of the Mother’s application at some earlier point in time which could not have been also “too late”.
In the father’s submissions in reply, it was said the decision not to appoint an Independent Children’s Lawyer had been made on 20 August 2009, and the application for such an appointment had not been renewed during the trial. It was submitted there had been no appeal against the decision of 20 August 2009 and that, by the passage of time, the mother had lost her right to appeal.
Although the mother’s solicitor declared in his submissions that it was “obvious” the mother must have applied for the appointment of an Independent Children’s Lawyer at some time earlier than August 2009, we were not informed of the stage at which it was claimed such an application had been made. Had such a request been made, and refused, it seems surprising that the request would have been renewed in August 2009, just a few days before trial, absent some evidence of a development which warranted the issue being revisited.
Whether the application for the appointment of an Independent Children's Lawyer was first rejected on 20 August 2010, or at some earlier time, there was no appeal filed against that decision within the time provided by the Family Law Rules 2004. The mother’s Notice of Appeal, in which this issue was sought to be agitated, was not filed until 16 June 2010, and there is no application to extend the time for filing a Notice of Appeal against the particular order.
Even had we been prepared to entertain this complaint, we were not provided with a copy of any reasons for decision relating to the refusal of the appointment of an Independent Children’s Lawyer, save for those contained in paragraphs 28 and 29 of the substantive reasons. Nor were we provided with a transcript of the argument advanced at the time(s) the appointment of the Independent Children’s Lawyer was sought. In the absence of these basic materials, it would be difficult for us to determine that his Honour erred.
The mother’s solicitor also submitted that his Honour had failed to deal with the application for appointment of an Independent Children’s Lawyer by reference to “the generally accepted guidelines given in Re K”. We accept that the Full Court in Re K (1994) FLC 92-461 laid down what are now well established guidelines concerning the circumstances in which an order for the appointment of an Independent Children’s Lawyer should be made. We accept the present case had features which may have resulted in the appointment of an Independent Children's Lawyer, had the guidelines been followed. However, the Full Court (at 80,773) was careful to state that:
The guidelines that we propose are simply guidelines; they are not rigid rules of law and it does not follow that a departure from them will necessarily vitiate a judgment, although judges, judicial registrars and registrars should, we think, give sufficient reasons for departing when they consider a departure is appropriate …
It is also important to note that in Re K the Full Court also said (at 80,773):
In relation to appointments of separate representatives we consider that the broad general rule is that the Court will make such appointments when it considers that the child’s interests require independent representation.
In our view, the reasons his Honour gave in his substantive judgment adequately explain why he decided not to accede to the request for the appointment of an Independent Children’s Lawyer. Most importantly, his Honour determined it would not be in the child’s best interests. We consider that finding was open to the trial Judge, and we therefore find no merit in Ground 3.
Ground 4 – weight given to evidence, especially expert evidence
By this ground the mother seeks to impugn the trial Judge’s orders on the basis that he gave “arbitrary weight” to the evidence of “the witnesses”, in particular “the expert witnesses”.
In support of this ground, it was asserted by the mother’s solicitor that his Honour had selectively accepted and rejected evidence, and that as a consequence there had been a miscarriage of justice. It was, for example, suggested the trial Judge should not have accepted the evidence of the school principals; however, nothing put by the mother’s solicitor persuaded us that his Honour erred in any way in accepting their evidence.
The mother’s supporters
Many of the arguments of the mother’s solicitor in support of this ground assumed the accuracy of the witness statements/affidavits attached to the mother’s affidavits. We were not persuaded that the mother had seriously sought to rely upon these at trial, save for the “evidence” of Ms H, which we considered was properly excluded. To the extent they may have been relied upon, we consider they had little or no evidentiary value. Thus, for example, the mother’s solicitor sought to support his argument that the father may have influenced the child by referring us to an unsworn, unsigned statement by a person who was not called to give evidence and who declined in her statement to provide her full name and address: Appeal Book 483 to 485. In another instance, the mother’s solicitor sought to rely upon a statement by a witness, whose “evidence” about injuries said to have been sustained by the child was hearsay and of no probative value: Appeal Book 356.
Reliance on evidence of psychiatrists rather than psychologists
Although not properly raised by the ground of appeal as drafted, it was also submitted by the mother’s solicitor that a psychologist, rather than a psychiatrist, should have been appointed as the single expert witness. It was boldly submitted that if that had been done “the outcome would have been vastly different”. According to the mother’s solicitor, had a psychologist been appointed “The outcome would have been exactly as the Act envisaged: the best interests of the child would have been served”. Advocacy such as this falls well short of what is to be expected in this Court. Like so many of the arguments advanced by the mother’s solicitor, the proposition needs only to be stated to reveal its absurdity.
It was further submitted that his Honour should have accepted the evidence of the clinical psychologist, Dr H, or alternatively he should have ordered an updated report from Dr H, “with all three parties subjected to an interview”. Our attention was not drawn to any application for an adjournment to allow Dr H an opportunity to undertake further interviews. Although we accept the trial Judge did not explain why Dr H did not have “appropriate qualifications” to critique Dr V’s reports, we consider he was entitled to place no reliance on his evidence, given his finding that he had “seemingly taken the mother’s account of events at face value”, and had made a firm recommendation concerning the outcome, without ever having met the father or interviewed the child.
Dr V’s evidence
The mother’s solicitor criticised his Honour’s acceptance of Dr V’s evidence on the basis that he had given his oral testimony without being informed that the father had applied for a complete cessation of contact between the mother and the child. It was suggested that because Dr V had not been told about this, he was “still of the opinion that it was the Mother who is trying to undermine the relationship between the child and the other parent while, in truth, it was the Father”. Regrettably, like other propositions of the mother’s solicitor, this submission was made with little regard to the facts. Dr V specifically acknowledged in his evidence (Appeal Book 948) that he had read the mother’s affidavit filed 15 September 2008, in which she stated that the father had applied for an order that she have no contact with the child. (Appeal Book 218 at para 11)
Another criticism of Dr V’s methodology relied on what had been said in expert writings, however these had never been put to Dr V, and they were not the subject of any application for the introduction of further evidence on appeal.
Dr V was also criticised by the mother’s solicitor for allegedly suggesting that evidence of “treating psychiatrists cannot be trusted because of their purported ‘identification with the patient’”. Dr V did not say that such evidence could not be “trusted”. He said that the acceptance of such evidence was a matter for the Court, but it was his opinion that the Court needed to be “sceptical about reports from treating psychiatrists because of identification with the patient” (Appeal Book 957). Although his Honour did not expressly adopt that opinion, in our view there is nothing objectionable about it. Whilst it could not be doubted that a longstanding “treating psychiatrist” may have insights concerning their patient that a forensic expert might not possess, the fact they have an ongoing therapeutic relationship also needs to be acknowledged.
A further criticism of Dr V’s evidence was that it was inappropriate for him to conclude that the mother had a personality disorder, since his expertise was confined to psychiatry, and the diagnosis of personality disorder was within the professional expertise of a psychologist. There was nothing other than the assertion of the mother’s solicitor to support this proposition.
It was also noted that Dr V’s evidence was more than four years “out of date”, and that he had been expected to update his diagnosis of the mother based only on her affidavit and an affidavit of the father. Reference to Dr V’s evidence, however, indicates that he was well aware of the limitations associated with him giving evidence in the current proceedings. Early in his evidence, he recognised he was at a “disadvantage because this report is now four years old, and I have had no knowledge as to what has been happening between … then and now … other than the affidavits”. However, he went on to note that what “strikes me about the affidavit material is that nothing seems to have changed with respect to the mother’s accusations and behaviour”. He then immediately acknowledged he was dealing only with “affidavit material [and] at the end of the day it’s … a matter for his Honour to make judgments of fact as to whether she has modified her behaviour or not”. (Appeal Book 949) Later in his evidence (Appeal Book 954), Dr V said:
I would stress again that if the behavioural traits that were problematic are not enduring, in other words they have ceased, I’m quite willing to say my diagnosis was wrong. If, on the other hand, the problematic behaviour has continued … I would suggest that the personality disorder is manifesting with lack of insight and lack of ability to change behaviour.
His Honour was clearly of the opinion the mother had not modified her behaviour since Dr V provided his report in the earlier proceedings, and hence he was prepared to accept the earlier diagnosis of Dr V. We are not persuaded that his Honour erred in arriving at that decision.
Ms C’s report and other evidence of the child’s views
The remaining complaint advanced on behalf of the mother in support of Ground 4 related to the trial Judge’s acceptance of the evidence of Ms C concerning views expressed by the child. Significantly, it was counsel for the father who properly drew our attention to the fact that Barry J had indicated during the course of the trial that he proposed to place no weight or “virtually no weight” on the report of Ms C (Appeal Book 821 and 854), and yet it is apparent that he did place weight on it. It is important we note that it was counsel for the father who drew our attention to this fact, because the mother’s solicitor did not seek to identify any forensic disadvantage suffered by the mother as a result of his Honour having foreshadowed that he was not going to place little weight on Ms C’s report.
The primary focus of the attack made by the mother’s solicitor on Ms C’s report was that she was not independent because the father had commissioned the report. In support of this proposition it was submitted that “in order to communicate to Ms [C] the purpose of the report, the Father must have had a conference with Ms [C]”. This proposition ignores the statement in Ms C’s report that she had not been:
… provided with any information about the matter and neither parent was interviewed. Her father delivered [the child] to the interview. The writer did not engage in a conversation with her father, other than to inform him of the likely length of time [the child] would be interviewed.
The secondary focus of the mother’s attack was that Ms C considered that the child was “susceptible to coaching”. It was therefore submitted it was “quite likely” the father had coached the child on what to say to Ms C. In support of this proposition, the mother’s solicitor noted that Ms C had reported how the child told her “that her mother denigrates her father every time she sees her”. It was submitted that when writing expert reports, “the reporters usually quote exact words used by the child” and that “The word ‘denigrate’ is not normally found in the vocabulary of eight years old children. If indeed … [the child] used that word it is definitely the result of the instruction by the Father”.
In examining Ms C’s report, we find no reason to assume that she intended the reader to conclude that the child had used the word “denigrate”. On the contrary, we are satisfied she was merely summarising the effect of what the child told her. In other parts of her report, when she was intending to convey precisely what the child had said, Ms C made this clear by the use of quotation marks.
The fact nevertheless remains that his Honour failed to explain why he moved from a position of saying, during the trial, he intended to place little or no weight on the report of Ms C, to a position of placing significant weight on it when he came to prepare his judgment. However, we consider that if his Honour erred in his treatment of Ms C’s report, it was in what he said during trial about its value, rather than what he said when he came to consider all of the evidence and prepare his reasons. In this regard it is important to record that no issue was taken with his Honour’s findings that:
Ms [C] is a social worker with considerable experience. She is a Regulation 8 Family Consultant. Her curriculum vitae which precedes her report demonstrates a wide range of experiences, particularly in the family law field.
His Honour properly noted that Ms C had not interviewed the parties, but as he said, she had “at least interviewed the most important person namely the child”. He also recognised that her evidence was somewhat out of date, and he did not rely upon Ms C’s evidence alone in determining that the child did not wish to have ongoing contact with the mother. This is apparent from that part of his reasons in which he referred to Ms C’s evidence as only “some independent evidence of the child’s wishes albeit the interview was conducted in October 2007” [our emphasis added].
It is clear to us that, in arriving at his decision concerning the child’s views, his Honour placed weight not only on the report of Ms C, but also on other evidence. This included not only the evidence of the father, which was accepted, but also the evidence of the school principals, who had recorded what they had been told by the child about difficulties in her relationship with her mother.
It is also clear the trial Judge placed weight on observations recorded at the contact centre where the mother had been seeing the child. His Honour considered these were of sufficient importance to recite at length. We also consider they are important, and we therefore set out below the paragraph of his Honour’s reasons in which he collected the relevant extracts.
92. At page 5 of the notes it is recorded:
“[The mother] put her arms around [the child] and told her, “I love you”. [The child] did not respond and did not move to return the hug.”
At page 8 of the notes of the report of this visit it is recorded:
“[The child] stated that she was nervous about seeing mum and told senior co-ordinator and facilitator that she didn’t want mum to question her about home and dad. - - -
[The child] remained seated at first when [the mother] entered the room. There was no show of affection.
[The child] sat opposite [the mother] on the other side of the table. [The child] interacted freely with [the mother] listening, responding and asking questions.”
At page 9:
“[The child] said good-bye, she did not reciprocate or respond to [the mother’s] hug and farewell greetings of, “I love you”.”
Notes from Visit - 21 December 2008
Page 5 of the notes:
“No signs of affection during the visit. [The mother] gave her a hug at the beginning of the visit and said to [the child] at the end of the visit, “You know I love you don’t you?”
Page 7:
“[The child] showed no obvious signs of emotion, mostly spoke in monotones.”
Page 8:
“[The child] looked up when [the mother] walked into the room and stood up and put her arms around [the mother] when she walked towards her.”
Notes from Visit - 4 January 2009
“[The mother] asked [the child] for a hug and moved towards [the child] with her arms around her.
“[The child] put her arms stiffly around [the mother] and diverted her face. [The child] did not respond when [the mother] said I love you.”
On page 9 of the report under the heading, “Any Other Observations” there is recorded the following note:
“At the end of the visit [the child] asked to speak to the facilitator about something that was worrying her – she stated that she did not like her mum talking about the Contact Centre. [The mother] had said to [the child], “You know that this is not a lifestyle. We have now used three Contact Centres, [R], [N] and here.” [The child] stated to the facilitator that she felt her mother was trying to force her into saying that she wanted to go with her and she doesn’t. She stated that she felt that her mum couldn’t do anything whilst she was at the Centre, that mum wouldn’t say anything in front of the staff.”
Notes from Visit - 18 January 2009
At page 9 it is recorded:
“[The child] played ball with the facilitator. She stated to facilitator that it worried her when [the mother] asked her about school, “When are you going back to school”. [The child] said she was worried that she might turn up at the school.”
Notes from Visit – 1 February 2009
At page 9 after the conclusion of the visit it is recorded:
“[The child] stated that she did not like that [the mother] asked about school and did not want to bring her school work to the next visit as [the mother] wanted her to. [The child] further stated that she did not like [the mother] talking to her that, “She wished to live with mum”.”
Notes from Visit – 15 February 2009
At page 9 of the report:
“When [the mother] requested a hug [the child] lent over and gave her a hug. When [the mother] told her that she loved her she did not respond.”
Notes from Visit – 15 March 2009
Additional Notes
There is recorded that at 4.55 pm the Mother phoned the Contact Centre and asked to speak to the facilitator. The note records [the mother] seeking to cross examine the Centre about events of that day.
I have perused the notes from 29 March 2009 through to 30 August 2009. There was a quite consistent pattern of [the child] being courteous to her mother, listening to her mother and doing her mother’s bidding, but there was no record of the child being spontaneously affectionate towards the Mother. To the contrary there was evidence of the child not wanting to engage emotionally with her mother.
In our view, absent any complaint by the mother’s solicitor of any forensic disadvantage caused by the trial Judge foreshadowing that he would place little weight on Ms C’s report, we are not persuaded that his Honour erred in giving some weight to that report.
It was further submitted that in assessing the child’s views, his Honour had overlooked the communications the child had sent to her mother from late 2007 to May 2008, which it was argued showed they had a good relationship. There is no substance in this proposition. His Honour specifically referred to these communications, which were attached to the mother’s affidavit, and said he was not prepared to place any weight on them. In any event, the mother’s solicitor properly conceded in his oral submissions that the child might say one thing to her mother, but something quite different to an independent person, such as Ms C.
We accept his Honour could have required an updated report to be obtained, as the child’s views/wishes had not been formally ascertained since she saw Ms C in late 2007. However, in light of what had been observed by the staff at the contact centre, viewed in the context of the other evidence, we are not persuaded his Honour erred in deciding it would be contrary to her interests to be interviewed again.
It is important to stress that his Honour’s orders do not prevent the child from seeing her mother, or having communication with her. On the contrary, his Honour expressly said that he was making orders to allow the child to contact her mother or seek to spend time with her on the basis that such orders could be seen as “empowering” the child.
We are therefore not persuaded there is any substance in Ground 4. We should add, however, that if we are wrong in concluding his Honour was entitled to place weight on Ms C’s report, on a redetermination of the matter we would have found that the orders made were strongly supported by the rest of the evidence, and we would have made the same orders.
Ground 5 – actual or apprehended bias
Although the mother’s solicitor made no reference to this fact in his submissions, we observe that on 19 February 2009, long before the trial, his Honour rejected an application by the mother for him to disqualify himself on the basis of bias (Appeal Book 54 at [10] and Appeal Book 56 at [18]). There was no appeal against that decision. Nor was our attention drawn to any renewed application by the mother during the trial for Barry J to disqualify himself.
Importantly, the mother’s solicitor conceded in his submissions before us that nothing his Honour had said or done prior to, or during the course of, the trial, gave any indication that he was biased. The argument he advanced in support of this ground was that the trial Judge must have been biased, since otherwise he would not have dealt with the evidence in the way he did, and would not have arrived at the decision he did.
The complaint is put in the alternative, namely, an allegation of actual or apprehended bias. With an allegation of actual bias, that is often another way of suggesting that the trial Judge has pre-judged the relevant issue. Indeed, as amplified in her solicitor’s oral submissions to us, that is what the mother’s initial complaint appeared to be.
A complaint of actual bias is quite difficult to make out given that it requires the complainant to establish the subjective motives, attitudes, predilections or purposes of the decision-maker. The test is that set out in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 per Gleeson CJ and Gummow J at 531, namely, that the decision-maker’s mind is “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.” However, we were not taken to anything by the mother’s solicitor that persuades us that this test is satisfied and that the trial Judge has pre-judged any issue in dispute. Indeed, during his oral submissions to us, the mother’s solicitor appeared to change the focus of the challenge from one of bias to one of error in the exercise of discretion, and, specifically, a failure to take into account all of the evidence.
With the alternative claim of apprehended bias, it must be shown that a “fair-minded lay observer” would consider that the trial Judge might decide the case other than on its merits. As the High Court said in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345, two steps are involved in arriving at such a decision. The first is “the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits”, and the second is an “articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.
The argument advanced on behalf of the mother falls at the first hurdle. She has not identified anything that would lead a fair‑minded lay observer to consider the trial Judge would decide the case other than on its merits. On the contrary, according to the concession made before us, even the mother had no reason to arrive at such a conclusion. It was only after the mother had read the reasons that she concluded the trial Judge must have been biased.
There is therefore no merit in Ground 5.
Further evidence
The mother filed an Application in an Appeal on 28 January 2011, in effect, seeking leave to adduce further evidence in the form of an affidavit of herself which she filed on 31 January 2011. The father consented to this application and, accordingly, on 15 February 2011 we allowed the application.
In summary, what the mother deposed to in her affidavit was that she had had no contact with the child since just before the final orders were made. She said that she arranged for her solicitors to forward correspondence to the father but the father had not responded. Finally, the mother also expressed concern that she was unaware of what was happening about the child’s health.
Having considered this further evidence, we find that it does not assist us in determining this appeal. It does not demonstrate that the trial Judge erred in making the orders challenged in the appeal (see CDJ v VAJ (1998) 197 CLR 172 at [109] per McHugh, Gummow and Callinan JJ).
Conclusion and costs
There being no merit in any of the mother’s complaints, her appeal will be dismissed.
The father applied for costs in the event the appeal was dismissed. We consider the mother should pay his costs of the appeal. She has been wholly unsuccessful. She is a well qualified professional, in full time employment and has acquired real estate on the Gold Coast (Appeal Book 216).
I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland and Ainslie-Wallace JJ) delivered on 15 April 2011.
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