Bass and Bass
[2012] FamCAFC 202
•6 December 2012
FAMILY COURT OF AUSTRALIA
| BASS & BASS | [2012] FamCAFC 202 |
| FAMILY LAW – APPEAL – CHILDREN –where the appellant father alleged that the trial Judge erred in making an order that provided that the 15 year old child spend no time with the father until he attains majority without consent of the mother – where the appellant father alleged that such an order was contrary to the evidence of the single expert and that the trial Judge had failed to give consideration to the practicality of an order prohibiting the child from seeing the father – where the Full Court was satisfied that the trial Judge had balanced the evidence of the expert as well as the views of the child and that it would not be not justified in interfering with the trial Judge’s decision on the basis of issues of weight – where the appellant father argued that the trial Judge erred in ordering the father’s name be removed as a trustee of the fund to support the child – where the respondent mother conceded that neither party sought this order nor was either party heard in relation to it making – order discharged by the Full Court – Appeal and Application to adduce further evidence of events subsequent to trial dismissed – Order that the father pay the mother’s costs in relation to the appeal. |
| Family Law Act 1975 (Cth) |
| CDJ v VAJ (1998) 197 CLR 172 Gronow v Gronow (1979) 144 CLR 513 |
| APPELLANT: | Mr Bass |
| RESPONDENT: | Ms Bass |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid New South Wales |
| FILE NUMBER: | SYF | 2801 | of | 2006 |
| APPEAL NUMBER: | EA | 54 | of | 2012 |
| DATE DELIVERED: | 6 December 2012 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Faulks DCJ, Finn & Strickland JJ |
| HEARING DATE: | 20 August 2012 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 April 2012 |
| LOWER COURT MNC: | [2012] FamCA 263 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Givney |
| SOLICITOR FOR THE APPELLANT: | Maclarens Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Kearney |
| SOLICITOR FOR THE RESPONDENT: | Broun Abrahams Burreket |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Sperling |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid New South Wales |
Orders
The appeal be allowed in part.
Order 16 be discharged.
The appeal be otherwise dismissed.
The appellant father pay the respondent mother’s costs of and incidental to the appeal with such costs to be assessed in default of agreement.
The application of the Independent Children’s Lawyer for an order for costs be dismissed.
IT IS NOTED that publication of this judgment by this Full Court under the pseudonym Bass & Bass has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 54 of 2012
File Number: SYF 2801 of 2006
| Mr BASS |
Appellant
And
| Ms BASS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by the father, Mr Bass, against the following orders which were made by Fowler J on 26 April 2012 in proceedings between the father and the mother, Ms Bass, in relation to the future living arrangements for the youngest of their six children, P, who is now 15 years old and who suffers from a mild intellectual disability:
· Order 4 which provides that the child is to have no contact of any sort with the father until he attains his majority, without the consent of the mother;
· Order 5 which restrains the father from approaching within one kilometre of the mother’s home and of the child’s school;
· Order 9 which restrains the father from obtaining a passport for the child, but which also requires the father to consent to the issue of any passport which the mother seeks to have issued for the child; and
· Order 16 which requires the father to be removed as a trustee of a fund for the support of the child.
The mother concedes that the appeal against Order 16 should be allowed on the basis that neither party sought that order nor was either heard in relation to its making. It is agreed that we should simply discharge that order.
In relation to Orders 5 and 9, we observe that despite being identified as orders being appealed against in the Notice of Appeal, there was no ground of appeal directed to them and no submissions made in support of any challenge to them. Thus, we are in no position to address these orders.
The appeal is thus limited to the issue of whether or not the child should spend any time with the father (except with the consent of the mother). In the event that the appeal is successful, the father seeks a re-hearing of that issue.
Both the mother and the Independent Children’s Lawyer oppose the appeal and seek to maintain Order 4.
Background
The father (who was born in 1947) and the mother (who was born in 1961) married in 1984. Between 1985 and 1994 they had five children, with P, their sixth child, being born in 1997. They separated under the one roof in 2004.
The parties physically separated in December 2005 when the mother and the children moved to their present home. Since that time the five older children have apparently had virtually no contact with the father. But as will be explained, P has lived with each parent at different times, and has been the subject of litigation between them from April 2006 until the present time.
Initially P lived in a shared care arrangement. From January 2006 until July 2008 he lived with the mother and saw the father one day each weekend. In July 2008, consent orders were made for a week about living arrangement. That arrangement lasted, albeit with some variation, until February 2010 when P went to live with his father, and thereafter spent less time with his mother.
In March 2011 the mother commenced the present proceedings which were heard by Fowler J over seven days in February 2012. In these proceedings, relevant to this appeal, the mother sought that the child live with her and that she have sole parental responsibility and that there be no contact with the father. Similarly, she sought that, if the child was to live with the father, there should be no contact with her.
The father also sought, inter alia, that the child live with him and that he have sole parental responsibility. In his case outline document (filed for the purposes of the trial) the father sought that in the event that the child lived with him, there should be some contact with the mother and this seems to have remained the father’s position throughout the trial.
Decision of the trial Judge
In his orders and reasons for judgment delivered on 26 April 2012, Fowler J determined that the child should live with the mother and that she should have sole parental responsibility. His Honour also determined that there should be no contact between the child and his father (without the consent of the mother) until the child reaches his majority.
As explained at the commencement of these reasons, it is only the orders which prevent contact between the father and the child that we will address in this appeal.
In his lengthy reasons for judgment, his Honour provided a very detailed history of this family and of their conflicts and difficulties before making the required findings under s 60CC and s 61DA of the Family Law Act 1975 (Cth) (“the Act”).
Save to the extent necessary when considering the grounds of appeal now pursued, we do not propose to canvass in these reasons his Honour’s reasons for judgment. It is sufficient to say that, in our opinion, they well support his orders that the mother should have sole parental responsibility for the child and that he should live with her. There is no appeal against those orders.
The grounds of appeal
We turn then to the three of the five grounds of appeal (contained in the father’s amended notice of appeal) which were ultimately pursued against the orders which prevent contact between the father and the child. These were Grounds 1, 2 and 3; Ground 4 was abandoned; and Ground 5, as earlier mentioned, was abandoned.
In essence the three grounds pursued assert that:
·
the “severity” of the order denying the child contact with the father beyond a period of six months was “completely” against the weight of evidence and contrary to the evidence of the single expert,
Dr S (Ground 1);
· the trial Judge erred in determining that there should be no contact between the father and the child in circumstances where no such proposition was put to the expert by any cross-examination or by the court (Ground 2); and
· the trial Judge failed to give any consideration to the practicality of an order prohibiting the child from seeing the father in that:
i)there was no evidence that the child could emotionally cope with such an order;
ii)the evidence indicated that he had been stressed and angry in the past in not being able to fulfil his wish to live with the father (Ground 3).
The position of the expert in relation to “no contact”
It will be seen that the first two grounds are essentially directed to the evidence of the single expert, Dr S, concerning the possibility of no contact between the child and his father. It will therefore be convenient to address those two grounds together.
As the court appointed single expert, Dr S, who is a child and family psychiatrist, prepared two reports, the first dated 1 August 2011 and the second dated 20 December 2011. In the first report she recommended that the child should continue to live with the father “so long as” he had contact with the mother every second weekend. The second report also concluded that the child should live with the father, but recommended that “if the father again tried to cease contact between [P] and the mother the residence be changed immediately to the mother.”
These recommendations were confirmed by Dr S in her oral evidence when, in answer to a question from Counsel for the Independent Children’s Lawyer, she said:
… My recommendation is that I would still prefer to leave [P] in the – in the current situation, but only if there was ongoing contact. If there is no ongoing contact, then the court should seriously consider changing residence to the mother, having a period of three to six months, probably six months, to have no contact with the father so that [P] has a time – a period of time to get settled into a new school, to settle into the new family, and then for the mother to reintroduce contact with the father.
(Transcript, 23 February 2012, page 59, lines 23-29).
When considering each of the relevant s 60CC matters, his Honour made extensive reference to Dr S’s evidence, including and relevantly for the present purposes, in the following paragraphs of his reasons (emphasis in the original):
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents
…
456.In the circumstances of this matter it appears that [P] has not been able to have a fully meaningful relationship with his mother as a result of the father’s attempts to undermine the mother, talk to [P] about the details of the Court proceedings, and his attempts to frustrate the times that the mother was to spend with [P], including his inability to encourage [P] to attend to spend time with the mother. The benefit of pursuing a meaningful relationship with both parents in this case is, in the Court’s view, outweighed by the prospect of injury to the child from the continuing dispute between the parents, and the prospect based on Dr [S]’s evidence that the nature of the relationship between the child and his father will become, given the father’s personality, different as it did with the other children when they became more individualised and that the father will likely treat him in the same fashion as he did the other children.
…
459.Dr [S] concluded in her second report that equal time has been attempted and is impossible due to poor communication between the parents and the distance between their residences. The Court on the evidence could not come to any other conclusion.
460.Dr [S]’s evidence is that [P] continues to need contact with his mother and siblings. She stated in her oral evidence that this need is for both his ongoing development to feel part of a family, and also after his parents’ demise so that he can have that constant connection with his siblings.
461.It was Dr [S]’s recommendation that [P] live with the father and spend regular overnight contact with the mother and siblings, and that that be ongoing throughout his school life, and that if it is not ongoing then the time [P] travels with the father during the school holidays should be forfeited so that the mother can make up the time she spends with [P].
462.Dr [S] did say however that if the father could not encourage [P] to go to contact with the mother and if regular substantial time did not occur then [P] ought to live with the mother. She stated it would not be hard for [P] to be placed with the mother, without contact with the father for a number of months, because [P] still loves his mother and his siblings.
463.Dr [S] conceded in cross-examination by counsel for the mother that this is the point that has been reached now; that is that the father has not encouraged or facilitated ongoing contact with the mother. She stated that she has done two reports approximately five months apart and that she did not see any shift in the father’s attitude to the mother or the siblings. The Court finds it more probable than not that there will be no shift and that accordingly there is no basis for possibility of improvement in the situation whilst this child resides with his father.
464.The core of Dr [S]’s recommendations in her first report was to re-establish the relationships with the mother and siblings, and if that did not occur then the Court should look at a change in residence. It was put to Dr [S] in cross-examination by counsel for the mother that that very recommendation ought to have been viewed as the carrot and stick for the father in terms of motivating establishment and maintenance of the relationship between [P] and the mother, with which she agreed. It was highlighted that such contact with the mother ceased on 27 November 2011 up until
19 February 2012.465.In cross-examination by counsel for the father, Dr [S] stated that in making her recommendation for [P] to continue living with the father she had considered a lot of reasons for doing so, but that it was with great reservation because she thinks that the father has shown himself to be such a poor parent in the past. She asserts that over the course of her two assessments she does not think that the father has shown any evidence of change. The Court accepts that this is so.
466.It is the Court’s view that the father has already demonstrated that he is unable to encourage [P] to spend time with the mother, even in the face of there being Court Orders mandating contact, and that the carrot and stick approach has not attained the desired outcome. Nor does the Court think that any such measure would alleviate the problems for this child arising out of continuing parental discord (which on the history of this matter seems inevitable) orchestrated by the father.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
…
471.Dr [S] stated that it is possible that [P] felt rejected by the mother when residence changed to the father in February 2010. The Court accepts that this may be true, but holds the view that the father sought to reinforce this view by making it difficult for the mother to see [P]. He also made concerted efforts to undermine [P]’s relationship with the mother and older siblings. Dr [S] also stated that the father has not been reducing [P]’s fears but inflaming them and encouraging him to express fear of his brothers, saying that he is having nightmares about his brothers coming to kill him and fears of kidnapping by his mother.
…
Additional considerations
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
473.[P] is a 14 year old with a mild intellectual disability. It was
Dr [S]’s evidence that [P] functions as a child of a much younger age, having an emotional age of about 8 to 10 years old. She stated that [P] still idolises his father, and most 15 year old children have grown on from that idolising age which most 8 to 10 year old children still maintain. She stated that because [P] is intellectually delayed, his understanding of the intellectual situation puts him behind a bit.…
479.Dr [S] concluded in her second report that her belief is that [P]’s expressed opinion is that of the father and his behaviour with the mother is at odds with that opinion. She stated that [P] has learnt to say what each parent wants to hear and also embellishes to make them happy.
480.Dr [S] stated in her second report that [P] idolises his father, but that unfortunately he cannot see the reality of the situation, that he is being manipulated or there are attempts to manipulate him by both parties.
…
(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
484.[P] idolises his father in the way that children of his emotional age do and clearly has a warm and loving relationship with his father.
…
486.Dr [S] stated that [P] had a strong and normal attachment with the mother but that he appeared to be struggling against it because he wants to be a good boy for his father. She stated that the more frequent contact with the mother has been easy and happy for him.
…
(c)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
…
492.Dr [S] stated that there needs to be a joint effort on all parties for them to encourage [P] to go to contact. She stated that one would hope the father would encourage [P] to spend time with the mother but that given the father’s consistent implacability she believes that is highly unlikely. The Court finds that this is so.
493.Dr [S] stated that the father continues to make it difficult for [P] to show affection to his mother and siblings, and to speak about them in the father’s company because he will make his father sad or angry. She stated that the father needs to be involved in encouraging [P] to see his mother and siblings; otherwise such a regime of contact with the mother will not work. The Court finds on the basis of past behaviour that it is improbable that the father would ever encourage [P] to see his mother, and that on his own evidence any such attempt has been accompanied by failure and there is no reason to think that that situation would alter.
…
497.Dr [S] recommended in both her first and second reports that if the father again tried to cease contact between [P] and the mother the residence be changed immediately to the mother. The Court finds that the situation has now been reached where the Court is obliged to move to the alternative position having regard to the father’s conduct.
…
500.In her oral evidence Dr [S] stated that the father seems quite implacable about there being no contact with the mother, and that his way of managing this is by convincing [P] that it is his own beliefs when it is not and it is obvious coercion. She stated that if that were to continue then the Court should consider changing residence to the mother. The evidence convinces the Court that it is improbable that it will not continue.
501.Dr [S] stated that she believes the father is unlikely to change and agreed that it is likely that [P] will be continuing to live in a climate where he is constantly told that his mother is not worthy of his attention, and that it is not a good thing to love his mother. Dr [S] recommended a carrot and stick arrangement in her first report, that being that overseas travel be contingent on there being ongoing contact with the mother. Dr [S] stated that despite making this recommendation in her first report, that it did not happen and that it was very disappointing.
502.Dr [S] stated that if the father continues with his way of denigrating the mother and the siblings that it is really detrimental to [P] in the long term, because in the end he is only going to have his siblings, and he will probably have his mother around for longer than the father. She stated that for [P] to believe that they hate him, that they lie, and any kind of affection they show him is just an act, is very damaging. She stated that after a while he would not be able to accept what they try and show him as love. She also stated that if the father continues to do that on weekend contact then [P] is going to get very distressed again.
…
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
506.Dr [S] concluded in her report that [P] has shown himself to be flexible. …
507.The Court finds that the child must be removed from the conflict which the Court finds is predominantly created and nurtured or provoked by the father.
508.Dr [S] stated that if the Court was to find that residence should be changed to the mother, she believes [P] would transfer quite easily as the more frequent contact with the mother has been easy and happy for him. She also said that he would be tolerable to such change as he is ambivalent; he loves both of his parents but only says he loves one of them because otherwise he knows he is going to upset his father.
...
513.Dr [S] stated that if residence was to change to the mother then he would need to spend uninterrupted time with the mother and siblings for at least a few months, without contact with the father, in order to change his opinion and accept his family through his own experiences. The Court does not propose to order that there should be any contact with the father.
514.Dr [S] stated that it would be more detrimental to [P] if the mother continued to refuse contact with the father, as he loves him unconditionally and idolises him. She stated that not seeing the father would be a major difficulty for [P]. She stated that the mother would need to encourage weekend contact with the father after approximately six months so that [P] could still see the father. The Court does not believe that this father can change his attitudes and behaviour and that any contact with him, even contact by telephone, is likely to lead to the child being again surrounded by turmoil and conflict which on past behaviour the father would directly involve [P] in.
…
516.In her oral evidence Dr [S] stated that if residence were to change to the mother that at first [P] would feel betrayed by the Court. He would feel very disappointed and sad, and possibly sad for a long time missing his father. She stated however that having seen how he behaves with the mother, it is very clear to her that there is a lot of love, understanding and nurturance possible in the mother’s residence, and she thinks that the father is not the only one who can provide that. She stated that if [P] were to live with the mother for an uninterrupted period of months then he would be able to resume the feeling of “I can get nurturance from these people. They are genuine”.
517.Dr [S] did say that given [P]’s knowledge of the mother’s application, if residence were to change to the mother then [P] could possibly feel that his father was right all along because the father told him that the mother was going to do this “and kidnap me again”. Dr [S] stated however that this is not a matter that causes her concern regarding [P]’s ability to maintain a relationship with his mother and his siblings, because he needs the experience of being with his mother to get the feeling that she is genuine again.
…
(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
…
523.In her first report Dr [S] stated that the father had no insight into the emotional distress that he had caused his children over the years and took no responsibility for their behaviour. This conclusion is born out by the evidence taken as a whole.
…
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
540.In her second report Dr [S] stated that while the Court is still supervising the father’s parenting that he is doing a reasonable job, but that she does not believe that contact with the mother would continue unless it was mandated through the Court. In her oral evidence Dr [S] confirmed that she still believed that contact needs to continue to be mandated by the Court.
541.In her oral evidence Dr [S] stated that she did not believe the father was still doing a reasonable job and that she was very disappointed that the contact with the mother had not been ongoing. She stated that she thinks it is clear that the father’s belief is that it is not important for [P] to have contact with the mother, and that it is important to the father that he appears to win the case and influence [P] against the mother and extended family.
542.Dr [S] stated that the father had distilled what [P] told him about contact into a negative view and repeated this and encouraged [P] to recite these words. He has then encouraged [P] to give these opinions as evidence to the Court, both in writing and in spoken form.
543.Dr [S] is of the belief that if [P] were to disagree with the father or to try and make his own decisions when he is older, he would no doubt be treated as his older siblings, which is to be completely rejected. She has no doubt that this would happen as it has been the father’s repeated behaviour. She stated that the father has done this with his five older children with callous disregard for them and their needs.
544.The Court has real concerns, having regard to the past history of compliance with Orders by the father, that it could have confidence that any mandated Order would be complied with by the father.
It will be useful in this context also to set out subsequent paragraphs in
his Honour’s reasons, in which he further explained his conclusion that the child should live with the mother and have no contact with the father:
563.The father has already demonstrated an unwillingness and/or incapacity to encourage [P] to spend time with the mother, and has shown an inability to change his attitude and behaviour over the course of the proceedings. It is likely that this will continue if [P] is to live with the father.
564.Placing the child with the father given the mother’s view as to what should then happen would perhaps create a cessation of hostilities, but the price for this child of his association with his siblings as well as his mother is too high a price to pay. That is not to say that no emotional costs will be incurred as a result of the Orders the Court proposes, but it is in the Court’s view the lesser of two undesirable results given the history of this matter and the nature of the parties.
565.The Orders that are proposed to be made in these proceedings are, in the Court’s view, the best that it can do in such circumstances where the father has sought to alienate [P] from his mother and siblings. The Orders are the only way in which [P] can have a continuous relationship with the mother and siblings without the interference of the father, and the Court hopes that the father will facilitate these Orders as they are in the best interests of [P] and in time it is hoped that [P] can have a relationship with all of his family members absent any conflict. It should be borne in mind that the Court is not a Court of unlimited tolerance to disobedience of its Orders. They are more than advice to be disregarded at whim. There is an expectation that they will be obeyed. There are proceedings available which can impose significant and long lasting sanctions for any attempted interference either directly or through others with the implementation and operation of the Orders that the Court makes.
…
574.In this case the mother has submitted that if an Order is proposed by the Court to be made which provides for continuing contact between the child and his father that she would prefer in his interests that the child live with the father and not have contact with her. She says that the child has had enough conflict and it is not in his interests to remain in this state. She is convinced, as is the Court, that were there to be continuing contact with the father there would be continuing conflict and manipulation surrounding the child. There will be a detriment to the child in not having continuing contact with the father until he is mature but the Court finds in this case regretfully that such is the nature of the father’s past conduct (and the likelihood that it will continue so strong) that that detriment is outweighed by the advantage of removing the child from the toxic position in which he finds himself with a father relentlessly and insensitively pursuing his purpose in this dispute.
It is important to note that there is no suggestion from the appellant that
his Honour misunderstood, misinterpreted, or misrepresented the evidence of
Dr S in any way. Rather the assertion in the grounds in question is that given the evidence from Dr S concerning the strength of the child’s relationship with the father and the importance of the father in the child’s life, coupled with the lack of evidence from Dr S as to the likely impact on the child of no contact with the father, that the order prohibiting any contact with the father should not have been made.
In support of these grounds it was submitted by Counsel for the father that, notwithstanding the concerns which Dr S had identified in her reports concerning the father (and which Counsel set out in paragraph 11 of his written summary, but which we need not repeat here), she did not contemplate in her reports or oral evidence that it would be in the child’s best interests not to see his father at all. It is thus said that his Honour erred in not accepting Dr S’s opinion that there needed to be contact.
In both his original written submissions and in supplementary written submissions (provided at the hearing of the appeal) as well as in his oral submissions, Counsel provided us with references to evidence from Dr S regarding the strength of the child’s feelings for the father. These references, as expressed by Counsel, included the following:
[P] would be “terribly miserable” not seeing his father (First Report, page 31).
Genuinely loves his father (First Report, page 34).
Idolises his father (Second Report, page 6).
[P] believes his father is heaven and earth (Transcript 23 February 2012, page 58, line 5).
Wants contact with both parents (Second Report, page 12).
Detrimental if mother continued to want no time with father (Transcript 23 February 2012, page 57, line 38).
Loves his father unconditionally, loves and adores and idolises him father (Transcript 23 February 2012, page 57, line 40).
Quite detrimental to lose father [given that he currently believes his father is heaven and earth] (Transcript 23 February 2012, page 58, line 4).
Had a close relationship with father and enjoyed seeing him “absolutely” (Transcript 23 February 2012, page 75, line 37).
Everyone agrees [P] loves his Dad (Transcript 23 February 2012, page 82, line 2).
Would have a devastating effect on him [in context of simply moving his residence] (Transcript 23 February 2012, page 88, line 37).
[P] would believe that he would feel betrayed by the Court very disappointed and sad for a long time (Transcript 23 February 2012, page 58, lines 21-23).
It has to be acknowledged that not all passages from Dr S’s evidence, which were relied on by Counsel for the father before us, were referred to by
his Honour either in the paragraphs from his reasons which we have set out above, or indeed anywhere else in his very lengthy reasons. However, it must also be acknowledged that the overall thrust of these passages from Dr S’s evidence is readily apparent in the paragraphs from his Honour’ reasons set out above; see for example paragraphs 473, 480, 484, 514, 516, 517 in paragraph 20 above.
It cannot therefore be validly asserted that his Honour overlooked Dr S’s evidence concerning the strength of the child’s feelings for and his attachment to his father. Moreover, the difficulty that the father must confront in relation to this matter is that his Honour had to balance the evidence concerning the child’s attachment to his father against other evidence (including evidence from Dr S), which would support a conclusion that because of the need for the child to have a relationship with his mother and siblings, any contact with his father would not be in the child’s best interests; see in this regard the evidence recorded by his Honour in paragraphs 460, 462, 493, 502, 523 and 541 in paragraph 20 above.
Ultimately, therefore, as Counsel for the father was prepared to concede, the first ground of appeal involved a challenge based only on weight. The limitations on appellate interference with a discretionary judgment (such as this is) on the basis only of the weight given to particular matters are well known (Gronow v Gronow (1979) 144 CLR 513). Having regard to the passages from his Honour’s reasons which we set out above, being not only the passages in paragraph 20 above in which his Honour canvassed the evidence particularly of Dr S in great depth, but also the passages in paragraph 21 above in which his Honour explained his conclusion, we would not be justified in interfering with his decision on the basis of the issues of weight raised by the first ground of appeal.
In relation to the second ground of appeal, we do not consider his Honour fell into appealable error by making an order prohibiting contact in circumstances where no counsel for any party had chosen to ask Dr S’s opinion concerning such an order. His Honour had to do the best that he could with the evidence which was before him, and in our view, he did so. Thus, the second ground of appeal has no merit.
The “practicality” of no contact given the child’s attitude
The father’s third ground of appeal asserts that the trial Judge failed to give any consideration to the practicality of an order prohibiting the child from seeing the father in that:
i)there was no evidence that the child could emotionally cope with such an order;
ii)the evidence indicated that he had been stressed and angry in the past in not being able to fulfil his wish to live with the father.
In oral submissions in support of this ground Counsel for the father did no more than refer us to a paragraph from the first report of Dr S (at page 32) and then to paragraph 5 of his own written submissions directed to this ground.
The relevant paragraph from Dr S’s first report reads as follows:
The amount of weight the Court should put on [P]’s stated views is small, as there is no doubt that his view has been heavily influenced by the father and inculcated over five or six years or more. This has been internalised as his own and will take a very long time to shift by positive contrary experiences of the mother and his siblings.
The relevant paragraph from Counsel’s written submissions reads as follows:
5.During the course of Dr. [S]’s cross-examination by the ICL counsel [Transcript 23 February 2012, page 48, line 20] in which Dr [S] confirms her views as to which parent [P] should live with but significantly bases that view on the following matters:-
5.1 His attendance at an excellent school.
5.2 [P] wants to stay at the school.
5.3 [P] says he wants to live with his father.
5.4Dr [S] thought it was important to try and fit in with his wishes.
It will be seen therefore, that at least as argued, the complaint in this ground is essentially directed to the child’s wishes and to the uncertainty as to how he might react to his wishes not being granted.
In responding to this ground, Counsel for the mother relied on the oral evidence of Dr S given on 23 February 2012 (Transcript 23 February 2012, page 48). It is unnecessary that we set out that evidence as we consider that it is more than adequately recorded in the trial Judge’s findings in relation to the matter contained in s 60CC(3)(a) being:
any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
In order to satisfy ourselves that the trial Judge gave adequate weight to the evidence concerning the child’s views, we will set out the greater part of
his Honour’s reasons concerning this issue (not withstanding that some of the following paragraphs have been set out in an earlier context):
473.[P] is a 14 year old with a mild intellectual disability. It was
Dr [S]’s evidence that [P] functions as a child of a much younger age, having an emotional age of about 8 to 10 years old. She stated that [P] still idolises his father, and most 15 year old children have grown on from that idolising age which most 8 to 10 year old children still maintain. She stated that because [P] is intellectually delayed, his understanding of the intellectual situation puts him behind a bit.
…
475.Dr [S] stated that [P] will say whatever is necessary to keep his parents happy. She stated that what [P] has said to his mother and father are at odds with what happened in her office during the interviews, and also at odds with his behaviour on the DVD at Annexure 59 of the mother’s affidavit, and also at odds with what has been reported in the nursing/clinical notes in Exhibits 19, 20 and 24. Dr [S] stated that this is a common occurrence when you have children who are involved in acrimonious marriage breakdowns and that [P] responds no differently in that regard to other children. She said the only difference is that [P] functions as a child of a much younger age. She stated that he does not realise the unstated motives of people and that makes him much more vulnerable.
476.In her second report, Dr [S] stated that her impression was that [P] wants to have contact with both parents but is not allowed to express his love for the other. She stated in her oral evidence that she believes that [P]’s reactions in the company of each parent, rather than what he has actually stated to each of them, should be looked at more and given more weight. For example [P]’s conduct when in Dr [S]’s office, the attendances at the hospital and the experience shown on the DVD.
477.The evidence before the Court suggests that [P] has a tendency to make statements which are not the whole truth, and to make statements to both the mother and the father which he believes they want to hear. A contentious issue in this matter is whether the views that [P] has expressed to the father, mother and in written form are, or any of them are, his genuine views and feelings.
478.It was notable that [the child’s teacher] indicated that the letter allegedly written by [P] to the Independent Children’s Lawyer, which became Exhibit 9, was in all probability not written by [P], suggesting that somebody else had written this letter, and therefore the Court cannot accept this letter as representing [P]’s genuine views.
479.Dr [S] concluded in her second report that her belief is that [P]’s expressed opinion is that of the father and his behaviour with the mother is at odds with that opinion. She stated that [P] has learnt to say what each parent wants to hear and also embellishes to make them happy.
480.Dr [S] stated in her second report that [P] idolises his father, but that unfortunately he cannot see the reality of the situation, that he is being manipulated or there are attempts to manipulate him by both parties.
481.Dr [S] stated that what [P] states as his wishes are what the father wants for [P]. She stated that [P] can never say “I want to see Mum” or “I want to see my siblings” to his father.
482.[P]’s School Counsellor, […] was called to give evidence by the father. [P’s School Counsellor] asserts that [P] has expressed to him that he loves attending EHS; that he is very happy there; that he has a lot of good friendships there; that he is very happy in a support unit; that he is very happy with the teachers, and he has stated to him on numerous occasions that he would not like to change schools.
483.By reason of the matters adumbrated above the child’s views are given little weight especially in the context of the risk of harm which attends them being given weight.
It is clear from these paragraphs that his Honour had proper regard to the evidence concerning the child’s wishes and the weight that should be accorded to them given his level of maturity and the influences to which he was subject. It is also clear that his Honour concluded that the child would be at risk of harm if his apparent wishes were given effect to. That risk of harm is well explained in various passages from his Honour’s reasons earlier cited and which we do not need to repeat here.
As to the specific matter raised in the first sub-paragraph of Ground 3, being the child’s ability to cope emotionally with an order changing his residence, the following passages from Fowler J’s reasons where he sets out evidence from the expert, Dr S, are relevant and can be said to dispose of the matters raised in sub-paragraph (i):
462.Dr [S] … stated it would not be hard for [P] to be placed with the mother, without contact with the father for a number of months, because [P] still loves his mother and his siblings.
…
508.Dr [S] stated that if the Court was to find that residence should be changed to the mother, she believes [P] would transfer quite easily as the more frequent contact with the mother has been easy and happy for him. She also said that he would be tolerable to such change as he is ambivalent; he loves both of his parents but only says he loves one of them because otherwise he knows he is going to upset his father.
…
514.Dr [S] stated … that not seeing the father would be a major difficulty for [P]. She stated that the mother would need to encourage weekend contact with the father after approximately six months so that [P] could still see the father. The Court does not believe that this father can change his attitudes and behaviour and that any contact with him, even contact by telephone, is likely to lead to the child being again surrounded by turmoil and conflict which on past behaviour the father would directly involve [P] in.
Accordingly, we would not be justified in interfering with his Honour’s decision on the basis of the complaints made in relation to Ground 3.
The refusal of the mother’s application to adduce further evidence
It is convenient in the context of the last discussed ground to mention that at the hearing of the appeal, the mother sought to adduce further evidence in order to buttress the findings made by the trial Judge (CDJ v VAJ (1998) 197 CLR 172 [109]). The further evidence was directed to the arrangements for the child and his progress since he had come into her care following the trial Judge’s orders. Counsel for the Independent Children’s Lawyer supported the admission of this evidence.
As Counsel for the father submitted that that further evidence would be controversial and thus would need to be the subject of cross-examination, we were not prepared to receive it, and accordingly, dismissed the mother’s application at the commencement of the hearing of the appeal.
Conclusion in relation to the Appeal
As none of the grounds of appeal, which were argued, have succeeded the appeal must be dismissed.
Costs of the Appeal
In the event that the appeal against the parenting orders was to be dismissed Counsel for the mother sought that the father should pay her costs including any costs relating to the appeal against Order 16 (which required the removal of the father as a trustee of the fund for the support of the child).
Given that the father has been unsuccessful in his appeal against the parenting orders (s 117(2A)(e)), we are satisfied that there are circumstances which would justify an order that the father pay the costs of the mother of, and incidental to, the appeal, including any costs relating to the appeal against
Order 16. Such costs are to be assessed in default of agreement. We consider that the costs in relation to the appeal against Order 16 would be likely to be so minimal that no purpose would be served in trying to identify them and subjecting them to separate treatment.
Counsel for the Independent Children’s Lawyer also sought an order for costs against the father in the event that the appeal was unsuccessful (save in relation to Order 16). We are not persuaded that the circumstances justify an order for costs against the father in favour of the Independent Children’s Lawyer.
I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 6 December 2012.
Associate:
Date: 6 December 2012
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