BEST & BEST - [2013] FamCAFC 5

FAMILY COURT OF AUSTRALIA

BEST & BEST

[2013] FamCAFC 5

FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against orders providing for his time with the parties’ four children to be on a supervised and then unsupervised basis – Where the amended notice of appeal contained 37 grounds – Where the primary issue for determination in the appeal relates to an order serving as a condition to the father’s time with the children, that he attend a psychiatrist “no less than monthly” until the end of 2013 – Where part of the further evidence sought to be adduced by the appellant father demonstrates that, although involving no error at the time the order was made, to continue the requirement of “no less than monthly” consultations with the father’s psychiatrist can now be seen as erroneous – Where another order the subject of the appeal is incapable of enforcement – Appeal allowed to the extent that the orders be varied – Where the variation to the orders results in difficulty as to how the orders, in particular those regarding the father’s time with the children, can properly function – Where the proper course is to set aside the orders regarding the father’s time with the children and remit that issue for rehearing.

FAMILY LAW – APPEAL – Application to adduce further evidence – Where part of the further evidence sought to be adduced by the appellant demonstrates that, although involving no error at the time the particular order was made, that order can now be seen as erroneous – Where the appeal is to be allowed and the matter remitted for rehearing, at which time relevant further evidence could be considered – Where the application in the appeal is therefore rendered unnecessary – Applications dismissed.

Family Law Act 1975 (Cth) Part VII; ss 93A

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953)
94 CLR 621
British American Tobacco Australia Services Limited v Laurie and others (2011)
242 CLR 283
CDJ v VAJ (1998) 197 CLR 172
De Winter v De Winter (1979) 23 ALR 211
Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337
Edwards v Noble (1971) 125 CLR 296
Johnson v Johnson (2000) 201 CLR 488
Lovell v Lovell (1950) 81 CLR 513

APPELLANT:

Mr Best

RESPONDENT:

Ms Best

INDEPENDENT CHILDREN’S LAWYER:

Michael Davies

FILE NUMBER:

WOC 91 of 2010

APPEAL NUMBER:

EA 23 of 2012

DATE DELIVERED:

1 February 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, May and Ainslie-Wallace JJ

HEARING DATE:

19 November 2012

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

3 February 2012

LOWER COURT MNC:

[2012] FamCA 28

REPRESENTATION

THE APPELLANT:

Self Represented

COUNSEL FOR THE RESPONDENT:

Ms Christie

SOLICITOR FOR THE RESPONDENT:

DGB Lawyers

COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER:

Mr Jackson

SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER:

Maguire & McInerney Lawyers

Orders

The appeal be allowed.
Paragraph 4 of the orders made by Ryan J on 3 February 2012 be set aside and the issue of the father’s time with the children be remitted for rehearing.
Order 6.1 of the orders be varied by deleting from the said order the words “no less than monthly”.
Order 6.3 of the orders be set aside.
The Application in an Appeal to adduce further evidence filed by the appellant on 2 November 2012 be dismissed.
There be no order for costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Best & Best 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 23 of 2012

File Number: WOC 91 of 2010

Mr Best

Appellant

And

Ms Best

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

introduction

By Amended Notice of Appeal filed 6 June 2012 Mr Best (“the father”) appealed against orders made by Ryan J on 3 February 2012 pursuant to Part VII of the Family Law Act 1975 (Cth) in parenting proceedings between the father and Ms Best (“the mother”).
The substance of the orders of the trial Judge was that the children of the former relationship between the parties, who are now aged 13, 12, 7 and 5, live with the mother who was to have sole parental responsibility for them, and spend time with the father on a defined basis, initially supervised and, as and from the commencement of Term 4 in the 2012 school year unsupervised.
The trial Judge’s orders provided that time spent with the father be increased from two hours each alternate weekend (supervised) to each alternate weekend on an overnight basis, for school holidays and special occasions. The father’s time with the children was subject to a number of conditions including that he attend a psychiatrist, Dr D, “no less than monthly” until the end of 2013.
In lieu of the trial Judge’s orders, the father sought that the parties have equal shared parental responsibility for the children and that the children spend equal time with each parent on a “rotating fortnightly basis”.
The mother resisted the father’s appeal, as did the Independent Children’s Lawyer (“ICL”).
Subsequent to the making of final parenting orders by Ryan J, the father brought a contravention application for alleged breaches of those orders. Rees J dismissed the application with reasons on 28 September 2012. The father has also appealed from the decision of Rees J, in appeal EA 133/2012 filed

15 October 2012. The two appeals were heard together however it was appropriate given the discrete nature of the appeals to deliver separate reasons for judgment.
Three applications to adduce further evidence were filed by the father in the two appeals. The mother and the ICL resisted all three of the father’s applications.
On 23 October 2012 the father filed an application in EA 133/2012. The further evidence in that application related, correctly, to the contravention appeal. On

2 November 2012 the father filed an application in EA 23/2012. The further evidence in the application related, also correctly, to the substantive parenting appeal.
Subsequent to the hearing before us, on 21 November 2012 the father filed a third application to adduce further evidence, in EA 133/2012. As the content of the further evidence in that application relates in part to the substantive parenting appeal, we will in fact consider the application in these reasons for judgment in EA 23/2012. Orders dealing with the applications will be made in the respective appeal number in which the applications were filed.

background

A brief background to the proceedings is instructive.
The matters to which we shall refer find expression in the reasons for judgment of the trial Judge and are not controversial in the appeal.
At the date of the trial Judge’s judgment, the children were living with the mother and spending supervised time with the father for two hours each fortnight at a contact centre.
The parties separated in late 2008, subsequent to which the children’s time was spent equally between them.
That arrangement ceased in January 2010, “after the father informed police that he had wired his house with sufficient explosives to destroy the surrounding area” (reasons for judgment paragraph two). A lengthy siege ensued. Shortly thereafter, interim orders were made in effect denying the father face-to-face contact with the children.
Further interim orders were made in October 2010 which resulted in the father and the children resuming face-to-face contact. After one weekend pursuant to the October 2010 orders, in early November 2010 the interim orders were suspended, and orders made for the father to spend time with the children at a contact centre.
It was not until March 2011 that the father elected to spend time with the children at a contact centre pursuant to the November 2010 orders.
For the reasons which were articulated in considerable detail, the trial Judge concluded that the best interests of the children would be served by making the orders which give rise to the present appeal.

the grounds of appeal

The father agitated 33 Grounds of Appeal.

Ground 1.1

Ground 1.1 of the Amended Notice of Appeal provided:
1.The Judge erred in that she determined that the mother have sole parental responsibility despite the fact that:
1.1The presumption in favour of equal shared parental responsibility had not been properly rebutted ...
In support of this challenge, the father asserted:
Justice Ryan stated that the father held his sons wellbeing at ransom and as a result the father warrants strong criticism and this act by the father weighs heavily against the fathers desire for equal shared parental responsibility. However Justice Ryan’s recount of the events surrounding [O’s] time in hospital is full of factual errors and therefore her opinions & criticism are based upon a non-factual foundation and are unfounded.
The mother has undertaken an ongoing strategy of point blank refusing to communicate and or cooperate with the father and has done so in order to defeat the fathers claim for shared parental responsibility.
It is a simple fact, the mother has not acted in the best interest of the children, she has hit them, she has abused them, she has put them in danger, she has failed to provide them medical attention in a timely manner and she has not acted in a proper manner with respect to their long term wellbeing and under those circumstances Justice Ryan’s rebuttal of the fathers presumption to parental responsibility is in error. (Errors as in original)
To the extent that the father complains about the “strong criticisms” made of him by the trial Judge, as indeed her Honour did in her comprehensive reasons for judgment, this Court does not accept that anything to which it has been referred establishes that such criticisms were not reasonably available on the evidence before the trial Judge.
It is correct to assert, as the father does, that such findings weighed “heavily against the father’s desire for equal shared parental responsibility”. Clearly they did, and, given the terms of those findings as a matter of law, should have so weighed. In the face of such findings, the trial Judge could not have reasonably found that it was in the best interests of the children for the parents to have equal shared parental responsibility.
Nothing advanced by the father demonstrates that the trial Judge’s conclusions with respect to the child O’s hospitalisation were based on material errors of fact, although it is possible that other findings of fact may have been open to the learned trial Judge.
Nothing to which the Court has been referred demonstrates that the trial Judge erred in failing to find that the mother had “undertaken an ongoing strategy of point blank refusing to communicate and or co-operate with the father”, for the purpose asserted by the father, or otherwise.
As the trial Judge recorded at various places in her reasons for judgment, the father does not accept that his actions during the siege in 2010 could have had any impact upon either the children, or the mother’s willingness to “communicate” or “co-operate” with him. The mother’s stance in the light of the evidence of the siege was both understandable and reasonable.
To the extent that the father complained that the mother was found to have acted inappropriately towards the children in the past, the trial Judge referred to such matters in her reasons. None of the matters found proved by the trial Judge weighed significantly against the mother as the preferred primary carer of the children, or should have, when those matters were balanced against the father’s shortcomings as her Honour found them.
Nothing to which the father has referred the Court establishes that the trial Judge erred in making the findings of fact she did in relation to the mother’s care of the children. It is not insignificant that the trial Judge recorded a number of criticisms of the mother. It is unsurprising that, in the light of the criticisms the trial Judge recorded in relation to the father, those criticisms assumed comparatively minor significance when her Honour balanced the various factors which she was required to balance.

Ground 1.2, 1.2.1 and 1.2.2

Ground 1.2, 1.2.1 and 1.2.2 of the Amended Notice of Appeal complained:
1.The Judge erred in that she determined that the mother have sole parental responsibility despite the fact that:
1.2If the Judge was of the view that it had been rebutted then the she failed to give any or any adequate reasons for why she had formed that view despite the fact there being evidence before the court, including but not limited to, evidence of
1.2.1the mother having been and or is engaged in acts of family violence, including but not limited, to hitting the children with kitchens implements, denigration of the father to the children, failed to provide medical assistance to the children in a timely manner, engaging in emotional and psychological abuse of the children over a protracted period.
1.2.2the mother having contravened orders of the court and in doing so has impacted in a detrimental manner upon the relationship between the children & the father. (Errors as in original)
In support of these complaints, the father submitted that:
Records before the court show that the mother psychically [sic] hit the children with kitchen implements.
The trial Judge made findings in that regard and said:
176. As has already been mentioned there is no dispute that the mother has occasionally disciplined the children by giving them a smack, including on one occasion contrary to an order. The mother’s discipline of the children is not excessive and has evolved into basically time out and withholding privileges. Nor is her “yelling” an ongoing issue or behaviour which constituted an unacceptable risk of exposure to family violence. I am satisfied that the children are not at risk of exposure to family violence in the mother’s care. This finding weighs heavily against many of the injunctions sought by the father.
We find no basis for disturbing any of the foregoing findings.
It was further submitted by the father:
Upon my youngest child, [O] (at 4 years of age), suffering a broken leg due to the mothers failure to provide proper & adequate supervision the mother failed to obtain immediate medical assistant for [O] and delayed seeking that medical assistance for some hours. On a different occasion & as the direct result of the mother failing to seek [O] proper & adequate medical assistance, [O] ended up in very dire circumstances that resulted in my being informed that [O] may die from his illness, namely ITP, upon which the mother actively and knowingly did every thing in her power, including but not limited to court action and lying to police, to prevent my attending my son in order to comfort and support [O] along with assisting with the recovery of [O] from such a serious illness. I am well aware that the mother suffered a significant mental health breakdown during this period however the mother refuses to acknowledge this despite the fact the she has stated this fact to [Ms LL] on a number of occasions. (Errors as in original)
It is not apparent to us to what this complaint relates in terms of the trial Judge’s reasons. Whatever it relates to, the absence of reference to evidence before the trial Judge which was incompatible with such findings as her Honour may have made of the kind referred to in this submission denies the complaint any entitlement to success.
The complaint may relate to the trial Judge’s findings in relation to O’s admission to hospital with pneumonia on 28 May 2010. The trial Judge recorded in that regard:
85.On 28 May 2010, [O] was admitted to hospital with pneumonia. By Order 8 dated 21 January 2010 the mother was required to “forthwith advise the father (through his lawyer) of any change in the children’s health or medical treatment including particulars of any proposed procedures or operations involving the children”. I infer that because the admission occurred outside standard business hours, she informed the father by text message about the nature of their son’s illness, where he was hospitalised and who the treating doctor was. The father requested that he be permitted to visit [O] which the mother refused. In the morning, the parties each contacted their solicitors and discussions occurred in relation to the father’s desire to visit the child. Through her lawyers, the mother maintained her opposition to this course and confirmed that [O] was mobile, receiving antibiotics by drip and “running around the hospital”. The father communicated his disappointment and disgust that the mother would not consent to him seeing their son with “this potentially life threatening illness”. A complaint was also made that [C] had recently broken his tooth and in relation to the mother’s failure to involve the father in medical or other decisions in relation to the children. So that it is clear, there was no suggestion at that stage that [O] suffered a life threatening illness. Within two days [O] was discharged into the mother’s care.
Nothing to which this Court has been referred establishes that anything recorded by the trial Judge was not reasonably open to her Honour on the evidence before her.
To the extent that the complaint may refer to subsequent hospitalisations of O, to which the trial Judge referred in paragraphs 86, 87, 90 and 91 of her reasons for judgment, again, nothing to which the Court has been referred demonstrates that the findings of fact there recorded by her Honour were not reasonably open to her. Similar observations apply to the criticisms of the father which the trial Judge recorded in reliance upon such findings of fact.
The Court has not, by reference to the transcript, or documents tendered in evidence before the trial Judge, been referred to anything which otherwise establishes a basis for upholding this complaint. We appreciate that contained in the father’s application to rely on further evidence there is an affidavit of

Ms LL.

Ground 1.3

Ground 1.3 of the Amended Notice of Appeal provided:
1.The Judge erred in that she determined that the mother have sole parental responsibility despite the fact that:
1.3The Judge erred in that she failed or alternatively she appeared to fail in applying equally any test applied by the judge, upon all parties, in determining the rebuttal of presumption of parental responsibility and in doing so acted in a biased manner.
In support of this challenge, the father submitted:
Throughout Justice Ryan’s reasons for judgement there are occasions, apparent to even the most casual of readers, upon which two very different sets of rules, or values, are applied. For Her Honour to even suggest that I held my sons health at ransom is simply appalling. If my raising allegations of family violence constitutes serious manipulation of the mother or the court then that view ought to be applied equally to the mother. (Errors as in original)
The Court has not been referred to anything which establishes that the trial Judge erred in the manner asserted by this challenge. As is not in doubt, the challenge arises out of the reasons for judgment published by the trial Judge after a lengthy trial, at the conclusion of which all parties were afforded the opportunity to make submissions. No attempt has been made to support this complaint by reference to anything said by the trial Judge during the course of the trial of the proceedings.
Nothing to which we have been referred by the father begins to establish that the trial Judge conducted the proceedings in other than an impartial and judicial manner. This complaint fails.

Ground 2(a) and 2(b)

Ground 2(a) and 2(b) of the Amended Notice of Appeal provided:
2.The judged failed to give any or any adequate reasons for concluding and accepting,
a)“Following the siege Dr [M] opined that the father was probably has Bipolar disorder II in relation to which he was hypomanic”
b)“There is no evidence to hypomania. ...”
when such a conclusion is conflicting with the evidence before the court, (Errors as in original and original emphasis)

It was submitted by the father in support of this complaint:
How could there be no evidence before the court of hypomania when the Judges own reasons for judgement makes the above statements. In addition evidence contained within Dr [M’s] report dated 2^nd February 2010 at page 5 records “... was clearly recovering well from his hypomanic episode”, at page 6 records “....He denies being hypomanic” at page 7 records “Criterion B: Presence of at least one hypomanic episode (precipitated by somatic antidepressant therapy)” at page 7 records “With regards to the diagnosis of recent hypomanic episode ....” – all of which was before the court as evidence. Not only has Justice Ryan misrepresented the facts in this instance but this statement by Her Honour demonstrates her scant regard to the facts put before her by the father. (Errors as in original and original emphasis)
The father has not identified the paragraph of the learned trial Judge’s reasons for judgment in which the findings complained of were recorded, much less identified, beyond his asserting it, the basis upon which it was not open to the trial Judge to conclude as her Honour did. Throughout his submissions in support of this and other grounds, the father repeatedly sought, on the one hand, to rely upon his mental health to downplay the significance of the 2010 siege, and other conduct of his which the trial Judge was critical, whilst seeking to minimise its impact in relation to numerous s 60CC(3) factors.
As is apparent from the trial Judge’s reasons, her Honour did not only have expert opinion evidence from Dr M, but also from Dr W and

Dr D. The trial Judge made findings critical of the father in terms of the reliability of his disclosures to Dr M including Dr W and Dr D.
Nothing to which the Court has been referred demonstrates that any finding of the trial Judge in relation to the psychological or psychiatric wellbeing of the father was not reasonably open to her. The trial Judge carefully examined all of the medical evidence, which was before her. It may be that other conclusions were also open to the trial Judge in reliance upon such evidence, however that has not been established, and even if it had, that would change nothing.
These challenges fail.

Ground 2(c)

Ground 2(c) of the Amended Notice of Appeal complained:
2.The judged failed to give any or any adequate reasons for concluding and accepting,
c)“It is appropriate to observe that the expert evidence does not indicate the mother suffers health difficulties.”
when there are records before the court that record the mother has suffered mental health difficulties, (Errors as in original and original emphasis)
The father submitted in support of this complaint that:
The mothers own medical records show that the mother has and does suffer from mental health difficulties notwithstanding the fact that the Judge refused to allow the father to cross examine witness’s about this very subject even though she knew that the father had intended to do so as it is outlined in the fathers documents submitted to Her Honour pre-trial. (Errors as in original)
The father has not referred the Court to any occasion, in relation to this, or any other topic, when the trial Judge “refused to allow the father to cross-examine” any witness who gave evidence before her Honour. When requested to identify where he asserted that he had been denied the opportunity to cross-examine, the father referred the Court to a case outline document contained in Appeal Book volume 4 at page 701.
The trial Judge recorded, at a number of places throughout her reasons for judgment, reservations about the parenting capacity of the mother. By comparison, the concerns which the trial Judge found, with respect to the father, rendered the mother’s shortcomings as almost inconsequential, as the trial Judge’s reasons reveal.
It has not been established that any of the trial Judge’s findings of fact in relation to any asserted “mental health” difficulties on the part of the mother was not reasonably open to her Honour. As with many of the father’s complaints, other than by accepting that because he asserts error, it must be so, this complaint cannot succeed.

Ground 2(d)

Ground 2(d) of the Amended Notice of Appeal complained:
2.The judged failed to give any or any adequate reasons for concluding and accepting,
d)“His allegations generally had little foundation and to often constituted a serious misrepresentation of the facts”
when there are records before the court that supports the fathers allegations and the Judge failed to demonstrate these serious misrepresentations of the facts, (Errors as in original and original emphasis)
The father submitted in support of this complaint:
Miss-representation of which facts, to my knowledge the only fact I had wrong was a single misreading of [Ms J] (family/marriage counsellor) hand written notes that where subpoenaed and placed before the court. Hardly what one would call serious. (Errors as in original)
In what way the trial Judge erred in any of the respects apparently asserted by this ground has not been identified. The trial Judge’s reasons amply reveal why she made the finding complained of by the father. Nothing to which we have been referred establishes that her Honour erred by so finding, or erred by failing to find as the father asserts that she should have.

Ground 2(e)

Ground 2(e) of the Amended Notice of Appeal complained:
2.The judged failed to give any or any adequate reasons for concluding and accepting,
e)“For example he countered evidence of serious family violence by him with an allegation that he to was a victim of family violence”
when determining that the fathers allegations where false and or baseless, (Errors as in original and original emphasis)
The father submitted in support of this complaint:
I was, along with the children, subjected to the mothers family violence or at the very least what I perceived or experienced, in my view, as being family violence. Family violence that directly contributed in a significant manner to a depressive illness and a break down in the family unit. That is a view that I am entitled to hold, without Justice Ryan’s criticism and I do so after much research & reflection upon our family circumstances. Justice Ryan erred in that she failed to accept or take into account that family violence takes many forms and not just that which is violence from a father towards a mother. (Errors as in original)
To read the father’s submissions is to understand why this challenge must fail. A balanced reading of the trial Judge’s judgment and the unchallenged circumstantial evidence provide abundant support for rejecting this complaint in the absence of any attempt to refer the Court to any evidence at trial in support of it.
The fact that the complaint is made in the face of the overwhelming evidence in support of the trial Judge’s conclusions with respect to family violence serves only to reinforce the correctness of her Honour’s decision. As the trial Judge clearly recognised, the father relied upon his mental state to avoid the sanctions of the criminal law in relation to the siege in 2010 but, in the parenting proceedings before her, did not accept or acknowledge that he had any such difficulties, or that such difficulties could have impacted upon the mother or the parties’ children.

Ground 2(f)

Ground 2(f) of the Amended Notice of Appeal complained:
2.The judged failed to give any or any adequate reasons for concluding and accepting,
f)“Even if true, the mothers behaviour did not constitute family violence either as that term is defined in proceedings under the Family Law Act (1975) (“the act”) or in common use.”
despite the fact that the Judge says emotional & psychological abuse is family violence, (Errors as in original and original emphasis)
The father submitted in support of this complaint:
Justice Ryan herself says that emotional & psychological abuse is family violence so how could it possible be that the mothers own behaviour towards the father and or the children could be anything else other than emotional & psychological abuse manifesting itself as family violence. The mothers denial of access to our son whilst he was seriously ill in hospital could only be described as emotional abuse towards the father & [O]. She refuses to communicate and by her own words is aware that such refusal to communicate is an act to frustrate the father and behaviour that she has knowingly pursued. (Errors as in original)
The father has not referred the Court to anything which advances this challenge. The trial Judge made comprehensive findings of fact in relation to the matters referred to in this ground. Those findings were based upon the evidence of the parties, expert opinion evidence, documentary and circumstantial evidence. No finding made by the trial Judge has been shown to be unsafe.
The father has referred the Court to nothing which calls into question any of the findings referred to in this complaint or the conclusions of the trial Judge in reliance upon them.

Ground 2(g) and 2(h)

Ground 2(g) of the Amended Notice of Appeal complained:
2.The judged failed to give any or any adequate reasons for concluding and accepting,
g)“.... The father maintained he is a victim of family violence raised serious questions to which he sought to manipulate the mother and the court.”
i.despite the fact that the Judge failed to demonstrate how the father sought to manipulate the mother or the court by raisings questions of family violence when there are records before the court that support the fathers allegations
ii.despite the fact that the Judge failed to demonstrate what serious questions are raised by the father by bring such matters to the courts attention
iii.despite the fact the Judge failed to demonstrate how the father raising such matters as family violence to the court attention could reflect upon the fathers ability to raise or care for the children in a proper manner
h)“.... It is feasible that this was a concomitant of a personality disorder or alternatively is mealy an example of how he conduct himself even when fully recovered.”
despite the fact that the Judge failed to explore the possibility that family violence by the mother may have occurred and or to what effect that may have had on the father’s health or wellbeing. (Errors as in original and original emphasis)
The father submitted in support of these complaints:
Raising questions of family violence is not an act of manipulation particularly so when those questions arising out of the mothers behaviour have been raised on many occasions over a long time period by both the father and the fathers previous lawyer. Subpoenaed records before the court have shown that the mother has been physically, emotionally & psychologically abusive towards the children and father. The Judges comments are simply outrageous and are simply an affront to all parents and or children involved with matters before the Family Law Court. What else could one say other than she simply ought to have known better. (Errors as in original)
To read the father’s submissions is to understand why, in the absence of any attempt to refer to evidence at trial in support of them, and there has been none, the Court cannot accept that the father’s complaints have been established.
The complaint and its articulation by the father reveal a theme which permeates his grounds and submissions in support of them. The father does not agree with or accept the trial Judge’s findings. They are, accordingly, erroneous, despite the father’s inability to refer to evidence, or the absence of evidence demonstrating that the findings were erroneous. The only basis upon which the findings are erroneous is thus because the father says they are.
As the Court endeavoured to explain to the father on a number of occasions, there is a presumption that the decision of the trial Judge is correct (see Lovell v Lovell (1950) 81 CLR 513 and Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621). The father bears the heavy onus of demonstrating that the findings of fact made by the trial Judge were not reasonably open to her. The father bears the onus of establishing that the trial Judge “palpably misused” the advantage her Honour had, which this Court lacks, of seeing and hearing the witnesses who gave evidence at trial. Neither onus is discharged by demonstrating that other findings of fact may also have been reasonably open (see Edwards v Noble (1971) 125 CLR 296). Beyond the father asserting that the trial Judge was in error, nothing to which the Court has been referred by the father establishes that to have been the case.

Ground 3

Ground 3 of the Amended Notice of Appeal provided:
3.The Judge erred in her findings of fact.
In support of this ground the father attached an appendix to his outline of submission which contained the factual errors which he asserted that the trial Judge made. As is apparent from the appendix itself, a number of the factual errors asserted by the father, if established, could not possibly have been material to the trial Judge’s decision (see De Winter v De Winter (1979)

23 ALR 211). In other instances, beyond asserting a contrary finding of fact to that recorded by the trial Judge, the father did not refer to any evidence, by reference to affidavits or the transcript of the proceedings, in support of his complaints.
Without criticising the father, who represented himself throughout the proceedings, the failure to attempt to link asserted errors of fact with the grounds of appeal agitated by him potentially places the Court in the position of having to try to identify which of the plethora of asserted factual errors recorded in the father’s 19-page appendix to his submissions relates to which particular ground or grounds.
Moreover, though he asserted that the trial Judge erred in making the findings she did, the father did not in any instance demonstrate that her Honour had so erred. At best, the father referred to other evidence which, if accepted, would have led to different findings of fact being made. Nothing to which the father referred demonstrates that the trial Judge was obliged to accept that evidence, or was precluded from accepting the evidence her Honour accepted. Having regard to the terms of the findings complained of, and the basis of the father’s criticisms of them, it is possible that findings other than those recorded by the trial Judge would have been reasonably open to her Honour, but that cannot advance the father’s challenges before this Court.
The appellant bears the onus of demonstrating material errors of fact. It is not for the Court to explore his unsupported allegations in order to determine whether any of them has substance. Further analysis of the father’s appendix is not warranted.

Ground 4

Ground 4 of the Amended Notice of Appeal complained:
4.The Judge erred in that she failed to apply a presumption of innocence to the father.
The father submitted in support of this challenge:
The Judge demonstrated throughout her reasons for judgment that she had determined that the father was guilty of breach of AVO despite the fact that the trial to test those allegations was to be conducted several months after the hearing before Her Honour in May 2011. The father is entitled to the presumption of innocence as is everyone and as history now shows the father was found not guilty of breach of AVO and all charges where dismissed. In this instance the Judge formed the views prejudicial to the father and did so in a highly inappropriate manner notwithstanding the fact that the Judge breached one of the most fundamental principals of our justice system in that everyone is entitled to the presumption of innocence regardless of allegations made against them until such time as those allegations are fully articulated and tested. (Errors as in original)
As is clear from their terms, the father’s submissions proceed on a fundamental misconception. As with other complaints made by the father, it is significant that this complaint arises out of findings of fact and/or conclusions recorded by the trial Judge in her reasons for judgment after a lengthy trial and submissions at the end of such trial.
Nothing to which the father has referred the Court demonstrates that the trial Judge erred in making any finding of fact in relation to family violence. The trial Judge could not, and did not, purport to determine AVO proceedings in another Court. Nothing done by the trial Judge in any way compromised, or could have compromised, those proceedings. Her Honour was obliged to, and did, make findings of fact in relation to family violence, none of which has been shown to have been unsafe.
To the extent that it was applicable, nothing to which the father has referred the Court establishes that the trial Judge erred in any way in relation to “the presumption of innocence”. The evidence before the trial Judge provided overwhelming support for her Honour’s findings in relation to family violence.

Ground 5

Ground 5 of the Amended Notice of Appeal complained:
5.The Judge erred in that she demonstrated a biased view against the father.
It was submitted in support of this complaint:
The essential question is whether there is a possibility and not a probability that a decision-maker might not bring an impartial mind to the question to be determined. The question is answered by reference to whether the fair-minded lay observer might reasonable apprehend that the decision-maker might not bring an impartial mind to the resolution of the issues to be decided. (Errors as in original)
As noted earlier in these reasons, none of the father’s complaints with respect to the trial Judge’s conduct of the proceedings before her is based upon anything said, or not said, by the trial Judge during the proceedings themselves. The complaints arise entirely from her Honour’s reasons for judgment.
As the Court endeavoured to explain to the father, in a case involving issues such as those which clearly arose in this case, the trial Judge had no alternative than to make findings of fact which would necessarily reflect more favourably on one party than the other and, as transpired, given her Honour’s findings with respect to the father’s conduct, reflect quite adversely upon one of the parties.
The fact that a decision is highly critical of a party, as occurred in this case, does not mean that the process which led to that decision was flawed, either by reason of an absence of impartiality or otherwise.
Nothing to which the Court has been referred begins to establish that this complaint has possible merit. The transcript of the trial reveals that the trial Judge conducted a difficult trial fairly, impartially, and according to the principles of procedural fairness and natural justice.
The matters referred to, out of context, as “simple examples of statements and or actions by Her Honour” which were asserted to demonstrate a lack of impartiality were:
·“these matters do not assist the Courts determination about the children’s best interests and thus will not be traversed in these reasons of judgment....... Instead the approach which has been adopted has been to refer to those which provide a flavour of these types of communications”
·“you’ll do anything to get your way wont you”
·“That said the mother should take advice about the circumstances in which she need not comply with a parenting order”
·The Judge questioned the father at length with regards to costs of raising the children and yet failed to have that same type of discussion with the mother and completely failed to have regard to the contributions that the father has made.
·The Judge knew full well on the day she published her findings that the children and father have not been able to engage in any sort of relationship for an extended period and yet failed to act upon that knowledge.
·The Judge refused to allow the father to question witness’s on matters relating to the mothers mental health and did so with complete disregard to procedural fairness.
·The Judge failed to allow the father to cross-examine key witnesses about matters that where highly relevant to matters before the court.
·The Judge traversed every single possible aspect of the fathers past and yet any matter relating to the mother got dismissed as not being of relevance.
·The Judge disregarded any positive communications of any sort between any of the parties.
·The Judge failed to act upon the mother and or her legal representatives misleading the court
·The lack of provision within the orders for the children to engage in and maintain a relationship with all maternal relatives (Errors as in original and original emphasis)

When read in context, none of those matters, either individually or, as the father asserted, cumulatively, would satisfy a fair-minded lay person that the trial Judge would bring a less than impartial mind to the determination of the proceedings. Why that is so can be briefly stated.
The law in relation to this challenge is not in doubt, and would not normally be referred to in any detail. As the father has been unrepresented, and these complaints were agitated by the father in a number of his grounds of appeal, it is appropriate to refer briefly to the authorities. The High Court in Johnson v Johnson (2000) 201 CLR 488 said with respect to apprehension of bias:
13.Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. (Footnote omitted)
In Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 the High Court further expanded upon the apprehension of bias principle and said:
8.The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
In British American Tobacco Australia Services Limited v Laurie and others (2011) 242 CLR 283 the majority in the High Court relevantly said:
139.It is fundamental to the administration of justice that the judge be neutral. It is for this reason that the appearance of departure from neutrality is a ground of disqualification. Because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yardstick. It is the public’s perception of neutrality with which the rule is concerned. In Livesey it was recognised that the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature.
140.Of course judges are equipped by training, experience and their oath or affirmation to decide factual contests solely on the material that is in evidence. Trial judges are frequently required to make rulings excluding irrelevant and prejudicial material from evidence. Routine rulings of this nature are unlikely to disqualify the judge from further hearing the proceeding. This is not a case of that kind. It does not raise considerations of case management and the active role of the judge in the identification of issues with which Johnson was concerned. At issue is not the incautious remark or expression of a tentative opinion but the impression reasonably conveyed to the fair-minded lay observer who knows that Judge Curtis has found that BATAS engaged in fraud and who has read his Honour’s reasons for that finding. Some further reference should be made to those reasons. (Footnotes omitted and original emphasis)
Nothing to which the father has referred the Court establishes in accordance with the authorities, that a fair minded lay observer might reasonably apprehend that the trial Judge did not bring an impartial mind to the resolution of the issues to be decided in these proceedings. This challenge fails.

Ground 6

Ground 6 of the Amended Notice of Appeal complained:
6.The Judge erred in that she relied upon documentation to reflect the father’s ability to raise & care for the children, in a negative manner, despite knowing that the father was suffering from or alternatively was recovering from serious illness at the time that the father created such documentation. (Errors as in original)
It was submitted in support of this ground:
The Judge relied upon documents written at a time in which the father was highly affected by a depressive illness and she did so in a highly inconsistent manner to what in-fact was the families reality at the time. For the Judge to say or act in a manner that implies a persons views are always reflective is simply wrong. Much of the fathers documented views simply reflected the symptoms of depression and a depression that was being experienced under the most difficult of circumstances. In this instance the Judges expressed views are almost insulting and she ought to retract them. (Errors as in original)
Although the father would not see it as such, the terms of his submission in support of this complaint not only fails to advance the challenge raised by him pursuant to this ground, but provides considerable reinforcement for many of the findings of the trial Judge, or inferences drawn from them about which he has complained elsewhere. The Court has earlier referred to the inconsistency in the father’s assertions with respect to his mental health. No inconsistency or demonstrated error attended the trial Judge’s approach to that issue.

Ground 7

Ground 7 of the Amended Notice of Appeal provided:
7.The Judge erred in that she accepted and relied upon inconsistent statements by the mother, including but not limited to the mothers declared finical status and her eligibility to obtain legal aid assistance given her complete income and did so knowingly. (Errors as in original)
The father submitted in support of this ground:
The mother and the mothers legal representatives knowingly created and submitted under oath documents and evidence that contain false and misleading claims. In addition the mother relied upon those false and misleading claims in order to obtain legal aid, she did so knowingly, did so fraudulently and did so in order to obtain advantage that she was not entitled to obtain. The mothers willingness to undertake such behaviour is further evidenced in subpoenaed documents before the court in which she knowingly misrepresented her income to a lower value than it actually was in her application to [Z Organisation]. The father raised these issues with the Judge during the hearing and the Judge has erred by failing to address the matters raised by the mother knowingly misleading the court and fraudulently obtaining benefit that she was not entitled to form Legal Aid. Despite the Judge being duty bound as an officer of the court to report such behaviours and actions to the DPP she failed to do so and acted in a manner highly inconsistent to that which is expected of a judicial officer. (Errors as in original)
The Court pointed out to the father that, unless he could demonstrate that the trial Judge erroneously made findings of fact of the kind complained of in relation to the mother, this ground could not succeed. This the father did not do.
Nothing to which the Court has been referred by the father begins to establish that this complaint has merit. At various places throughout her reasons, the trial Judge recorded her reservations about aspects of the mother’s evidence. The trial Judge’s caution in that regard further denies these unsubstantiated complaints any entitlement to success.

Ground 8

Ground 8 of the Amended Notice of Appeal provided:
8.The judge erred and acted prejudicial to the father’s case by failing to conduct the case in a manner that complied with the requirements of Principal 7 of Section 69ZN of the Family Law Act
The father submitted in support of this ground:
Principal 7 directs that child related proceedings be conducted in a less formal & adversarial manner that which would normally be the case in civil or criminal matters. The courts own publications reinforce this approach. During the hearing in May 2011 the Judge failed to ensure that Principal 7 was complied with. For example, the Judge was at numerous times highly aggressive towards the father, made inappropriate comments to the father, at times prevented the father from presenting his case, inappropriately expected the father to make discussion on the spot with regards to financial contribution by the father towards the raising of the children even though the father had been under cross examination for many hours and generally conducted the matter before Her Honour in a manner that was not conducive to the requirement of Principal 7 (Errors as in original)
As is not in doubt, the trial Judge was obliged to determine the proceedings before her according to law. In what way her Honour failed to do so has not been identified by the father.
The provisions of Part VII of the Act governed the proceedings before the trial Judge. The Court has been referred to nothing which demonstrates that the trial Judge failed to observe any of the provisions of Part VII of the Act which were relevant to the proceedings before her Honour.
None of the complaints made by the father in relation to the trial Judge’s conduct of the proceedings has been substantiated by reference to the transcript of the trial.

Ground 9

Ground 9 of the Amended Notice of Appeal provided:
9.The judge erred by failing to conduct the case in a manner that complied with the requirements of Principal 2 of Section 69ZN of the Family Law Act
The Court has not been referred to any occasion during the course of the proceedings when the father was denied the opportunity to test evidence adverse, or potentially adverse to his case.

Grounds 10 and 11

Grounds 10 and 11 of the Amended Notice of Appeal provided:
10.The judge erred by failing to conduct the case in a manner that complied with the requirements of Family Law Rules - Reg 15.54
11.The judge erred by failing to ensure that the ICL acted in a manner that is in accordance with the requirements of Family Law Rules - Reg 15.54
The father submitted in support of this ground:
In relation to items 10 & 11 above, that raise matters relating to the provision of documents & briefing of the single court expert, the manner upon which the ICL briefed the single court expert was not done in accordance with Rule 15.54 of the Family Law Rules in that the ICL did not obtain the agreement of all the parties as to the contents of his briefing document including but not limited to attachments to that briefing document. Not only has the ICL failed his obligations as an officer of the court and in doing so acted prejudicial to the father but the Judge erred in that she failed to ensure that the hearing was conducted by all parties in accordance with the Family Law Rules and did so in a prejudicial manner to the father. This is also evidenced by the ICL refusing to disclose to the father his briefing to the single court expert – post hearing – claiming that the documents where somehow privileged when in fact they are not as Rule 15.54 of the Family Law Rules clearly requires the discloser of such documents to all parties. (Errors as in original)
Nothing to which this Court has been referred demonstrates that the ICL failed in the discharge of his duties to the parties’ children, or to the Court, in any of the ways complained of by the father, or otherwise acted unfairly or inappropriately.

Ground 12

Ground 12 of the Amended Notice of Appeal provided:
12.The judge erred by failing to allow evidence to be admissible as evidence before the court that ought to have been admissible in accordance with Principal 7 of Section 69ZN of the Family Law Act.
Having regard to the further evidence sought to be relied upon by the father (Annexures B-J of the father’s affidavit filed 2 November 2012), this complaint appears to relate to documentation which the father obtained from the Internet in relation to the impacts of various dosages of certain medications. The Court has not been referred to anything in the transcript establishing that the trial Judge refused the tender of the evidence to which the father referred.
As the Court explained to the father during the course of the hearing, it was always open to him to seek to tender the documentation, even if it was not admissible, but it would not have been probative of any issue relevant to the proceedings before the trial Judge.
It was always open to the father, either in reliance upon the documentation to which his submission refers, or otherwise, to suggest to any of the various medical witnesses who gave evidence before the trial Judge such matters as he wished to establish in relation to the mother’s “mental health”, her “behaviours”, or “dangerous drug interactions”. We have not been referred to any attempt to do so.
It is not for the Court to guess what this complaint might be directed to, much less to seek to discover whether there might be some basis for the complaint. It is sufficient to record that nothing to which the Court has been referred establishes that this complaint has substance.

Ground 13

Ground 13 of the Amended Notice of Appeal provided:
13.The Judge erred and acted prejudicial to the father’s case by failing to allow evidence as to the combined toxic nature of the drugs prescribed to the father to be tendered as evidence before the court.
The father submitted in support of this ground:
The Judge failed to allow the tendering of ALL evidence in relation to the combined toxic nature of the medication prescribed to the father and in doing so the Judge was not fully aware of all the facts available and in doing so the Judge acted prejudicial to the fathers case. (Errors as in original)
Nothing to which the Court has been referred establishes that this complaint has substance. As with numerous other complaints made by him, the father has not referred the Court to anything in the transcript of the proceedings, or elsewhere, which could establish this complaint.

Ground 14

Ground 14 of the Amended Notice of Appeal provided:
14.The Judge acted prejudicial to the father’s case by failing to allow the father to cross examine the fathers witness [Ms LL] despite the requirements of Principal 7 of Section 69ZN.
The father submitted in support of this ground:
By preventing the father from cross examining the witness, [Ms LL], the fathers case was prejudiced by not allowing evidence to be heard with regards to [Ms LL] direct and first hand knowledge of the mothers actions, behaviours and interactions with the father including but limited to the mothers mental health status during the period [O] was ill. (Errors as in original)
Nothing to which the Court has been referred establishes, assuming that it possibly could be, that the trial Judge erred in the ways apparently complained of in this ground. We have not been referred to anything in the transcript establishing that the trial Judge denied the father the opportunity to cross-examine Ms LL. Moreover, nothing to which the father referred suggests that cross-examination of Ms LL could, or would, have established the matters to which the father referred.

Ground 15

Ground 15 of the Amended Notice of Appeal provided:
15.The Judge acted prejudicial to the father’s case by failing to ensure that the ICL acted in a manner that is in accordance with procedural guidelines as endorsed by the Family Court of Australia.
The father submitted in support of this ground:
Her Honour has an obligation to ensure that at all times the ICL acts and conducts matters in accordance with the rules of the court including but not limited to the requirements of any procedural guidelines sanctioned by the Family Law Court. The Judge was well aware of the fathers concerns as this matter was directly raised by the father with Her Honour. The Judge failed to ensure that at all times that the ICL acted in a proper manner. The ICL failed on numerous occasions to bring to the courts attention significant matters. History now shows that the ICL has failed to be independent & when serious matters concerning the children have arisen the ICL had failed to make his own independent enquiries as to those matters and or failed to act in the best interests of the children. (Errors as in original)
Beyond the sweeping assertions recorded above, the father made no attempt to refer the Court to any instance of conduct of the kind complained of in this ground. The reality that the ICL was more supportive of the case of the mother than of the father, as clearly was the case, does not begin to establish that the ICL failed in any of the ways asserted by the father. The absence of any identification of the “significant matters” which he asserted that the ICL had failed to bring to the Court’s attention is significant.

Ground 16

Ground 16 of the Amended Notice of Appeal provided:
16.The Judge gave insufficient weight to the behaviour of the mother and consequences of such behaviour upon the father and or the children during or subsequent to the father’s work place injury.
The complaint of the father in relation to this ground was:
The Judge failed to acknowledge, gain knowledge of and or even reflect upon the behaviour of the mother and impact of that behaviour upon the father, his mental health, their family unit and or the children. (Errors as in original)
In relation to what, and in what way, or by reference to what evidence the trial Judge allegedly erred in the ways asserted in this ground has not been suggested by the father.

Ground 17

Ground 17 of the Amended Notice of Appeal provided:
17.The Judge erred in that she failed to consider the professional duty of care obligations owed to a family arising from an engagement of professional services and the consequences of such a failure of those obligations upon the circumstances of the matter before her.
The father submitted in support of this ground:
All persons that attend a professional health service of whatsoever manner are entitled to expect a duty of care afforded to them by that professional health care service. That duty of care was breached by those professional services that the family relied upon and in particular those professional health services that undertook to assist the father recover from a work place injury.
Additional breaches in duty of care occurred including but not limited to,
a)failure to prescribe antidepressant medication as instructed by the manufacture,
b)failure to adequately monitor a patient consuming antidepressant medication,
c)failure to diagnose severe depression despite suicide attempts,
d)failure to prescribe family counselling services after corrective surgery,
e)failure to treat the whole of the injury, including but not limited to consequential injuries that may be suffered by the patient and or the patients immediate family members.
Not only did the Judge fail to reflect upon this failure of duty of care, matters that as a learned person in the legal profession ought to have been well aware of, the Judge formed views and criticised the father in a negative manner for seeking answers relating to that failure of duty of care and did so in a manner that was prejudicial to the fathers case. (Errors as in original)

This complaint does not differentiate between medical practitioners whose evidence was relied upon by the father, such as Dr M, or other medical practitioners such as Dr W or Dr D who gave evidence before the trial Judge. Nor does it, or any submissions of the father, establish breaches of duties of care of any kind.
Nothing to which the Court has been referred establishes any relevant “failure” of the kind asserted by the father. Beyond the father asserting errors by the trial Judge, nothing to which we have been referred establishes a possible basis for appellate intervention.

Ground 18

Ground 18 of the Amended Notice of Appeal provided:
18.The Judge gave insufficient weight to errors of fact contained within the reports of Dr [W].
The father complained:
The Judge failed to address the errors contained within Dr [W’s] evidence before the court including but not limited to errors relating to the antidepressant medication prescribed to the father despite the Judge knowing of these errors. (Errors as in original)
In what way Dr W was asserted to have been in error has not been identified by the father, much less demonstrated. How the trial Judge allegedly gave “insufficient weight” to such errors has not been identified, much less demonstrated.
Nothing to which the Court has been referred, either in the context of this ground or otherwise, demonstrates that Dr W’s expert opinion evidence was vitiated by material errors of fact, or that the trial Judge’s acceptance of it was erroneous.

Ground 19

Ground 19 of the Amended Notice of Appeal provided:
19.The Judge gave too little weight to the evidence of Dr [D] despite the fact that Dr [D] ought to be in a better position than Dr [W] and or the Judge to make diagnose with respect to the fathers mental health status. (Errors as in original)
The father submitted in support of this ground:
After attending Dr [D] on many occasions, Dr [D] was and is in a far better position to determine the fathers mental health status. Dr [D] had the advantage of numerous face to face meetings with the father, all of Dr [M’s] reports, many of the parties communiques and affidavits, results of mental health testing of the father and Dr [W’s] original report. Dr [W] had the advantage of only two (2) fifteen minute interviews with the father without any actual testing of the father, did not have all of the relevant reports available to him as a direct result of the ICL’s failure to brief him in a proper manner and under those circumstances Dr [W] was simply not in a position to override Dr [D] recommendations or findings. Notwithstanding the fact that Dr [W] could not even correctly describe the medication prescribed to the father. Dr [W’s] views of the DNA & historical connection amongst siblings and or family relatives relating to mental health outcomes between family members with regards to the mothers own mental health issues is simply flawed, outdated and in direct contrast to the wider scientific community. The Judge simply failed to reflect upon any of these facts. (Errors as in original)
As with numerous of the father’s other challenges, to be successful, the Court would have to proceed on the basis that, because the father asserted error, there must have been error on the part of the trial Judge. As the Court endeavoured to explain to the father, that is not, and never has been, the law in relation to appellate challenges to discretionary or other judgments.
The trial Judge considered the evidence of each of the medical practitioners to whom the father referred in support of this ground. To the extent that there was disagreement between those witnesses, as there clearly was in some respects, for reasons which she clearly articulated, the trial Judge ultimately preferred the evidence which was less helpful to the father’s case and more helpful to the mother’s case.
Nothing to which the father has referred the Court establishes that his criticisms of the trial Judge’s treatment of the medical evidence, or of the medical evidence itself have substance.

Ground 20

Ground 20 of the Amended Notice of Appeal provided:
20.The judged failed to give any or any adequate reasons for making such orders that require Dr [D] be the fathers treating doctor despite the fact;
a)The Judge failed to accept the recommendations of Dr [D].
b)The Judge failed to make enquiries as to Dr [D] availability. (Errors as in original)
The father submitted in support of this challenge:
Despite not accepting Dr [D] recommendations and being critical of Dr [D] the judge stated that Dr [D] was best positioned to engage in ongoing treatment of the father and did so in a highly inconsistent manner. (Errors as in original)
Nothing submitted by the father provides a foundation for concluding that this complaint could have merit.
The trial Judge recorded in relation to Dr D:
171.... the father trusts Dr [D] and there is little doubt that his ongoing attendance upon Dr [D] for psychotherapy has and will continue to be beneficial. In this respect, it is no coincidence that from when the father began to see Dr [D], the gaps between his abusive and harassing messages to the mother lengthened and other aspects of his life settled. As to the latter, he has remained in full-time employment and been able to accept trenchant criticism from Ms [LL] about his behaviour. In addition, he has been able to acknowledge his “horrific behaviour” albeit, without there being any genuine insight by him to the effect this has had upon the mother and children. As the transcript reveals, there were numerous occasions upon which the father gave evidence which suggested insight by him about this issue. However it is revealing that when he spoke with Dr [W] that these “insightful” remarks were absent and indeed, there was virtually a total lack of recognition about how his behaviour affected the mother and children. With respect to the father, his numerous baseless allegations about the mother’s mental ill health, her long term abuse of the children, that her response to the siege was opportunistic, and the like, seriously undermine his claim to insight. It is far more likely that the father espoused sentiments which he thought might assist his case and that far more work needs to be undertaken in psychotherapy before these long held views shift in favour of a more rational mindset about how his behaviour affected the mother and children.
...
200.... Although the father will continue to see Dr [D], the father lacks insight into the reasons why this is important for him to function well. Nor, even if ordered to do so, can the Court be completely confident that the father will co-operate with Dr [D] or, if Dr [D] becomes unavailable, such other health professional to whom the father may be referred.
Her Honour further recorded:
201.In relation to this issue, it will be recalled that on a number of occasions the father discharged himself from hospital (where his mental health was the medical issue) against medical advice. He stopped taking [a prescription drug] even when a bond required him to comply with Dr [M’s] direction that he do so. From Dr [M] and Dr [D] the father withheld information relevant to how he was functioning.
...
204.Whether the father’s time with the children should continue to be supervised and, if not, the pathway to unsupervised time has been a difficult and finely balanced decision. I have placed real weight upon his trust in Dr [D] and the benefit for the father from psychotherapy. The lengthening gaps between abusive outbursts, as well as the father’s capacity to discuss matters which might increase his level of insight are evidence of the point. Orders which would continue supervision would probably fail once supervision at the contact centre was no longer available. As was explained previously, the parties cannot afford private supervision and supervision by family or friends is contraindicated. I am also satisfied that limited supervised time would unreasonably deprive the children of the continuing benefits of a meaningful relationship with the father and the right to spend time with him on a regular basis.
205.Thus, there will be a regime which moves from supervised to unsupervised time and, on a stepped basis, increases the children’s time with the father. Because the father is likely to be distressed about the outcome, unsupervised time will not commence until the end of Term 3 this year. This will give him and Dr [D] a solid period within which to work through the father’s disappointment and minimise aggressive and manipulative behaviour by him with the children and towards the mother once unsupervised time starts. Because the father’s view that his approach is the only one consistent with the children’s best interests, his disappointment will be deep and brief psychotherapy would probably be insufficient.
Subsequently, her Honour also recorded:
211.For the avoidance of doubt, orders are made which require the father to continue to attend Dr [D] or his nominee and the father’s time with the children is conditional upon his compliance with the order and his treating psychiatrist’s recommended treatment. The father will be ordered to attend Dr [D] no less than monthly, which is the current schedule of treatment, until the end of 2013. This is a period of great change for the father and anything less than monthly, face to face meetings with Dr [D], would probably be insufficient. Thereafter, the father is required to attend Dr [D] (or his nominee) as that person recommends.
As is clear from the trial Judge’s reasons for judgment, and the terms of the orders made by her Honour, the continuing availability of Dr D was not assumed by her Honour, or necessary for the orders made by her to be implemented.
There is no inconsistency between failing to “accept the recommendations of Dr [D]” on the one hand, for the reasons which the trial Judge articulated in the paragraphs set out above, and in earlier paragraphs of her reasons, and making the order her Honour made in relation to Dr D’s potential ongoing involvement with the father. The orders made by the trial Judge, and the reasons for them involve no inconsistency when those reasons are properly understood.

Grounds 21 and 22

Grounds 21 and 22 of the Amended Notice of Appeal provided:
21.The Judge erred in that she made orders that breach the father’s right to doctor/client confidentially.
22.The Judge erred in that she made orders that rely upon un-qualified persons, namely the mother & the ICL, understanding and or interrupting in a proper manner the medical records of the father held by Dr [D]. (Errors as in original)
In support of these challenges it was submitted:
As a matter of simple fact the father is entitled to privacy as afforded to him under doctor/client confidentially. Even the very fact that the father may or may not have an appointment with Dr [D] is confidential ands covered under the Australian Privacy Act of 1998. The orders of the Justice Ryan seek to breach that confidentiality without any due regard to the fathers explicit right to privacy and or breaching that right to privacy by putting the fathers records into public circulation.
…
The ICL and or the mother are not qualified in whatsoever manner to interpret the fathers medical records and yet provisions of Justice Ryan’s orders rely on that interpretation including but not limited to provisions that could prevent the father & children engaging in or maintaining a meaningful relationship should that interpretation be flawed in anyway. (Errors as in original)
During the course of his oral submissions, the father clarified that part of his complaint with respect to Dr D was the order of the trial Judge (order 6.1), which provided that the father’s appointments with Dr D be “no less than monthly until the end of 2013”. The father submitted that the evidence did not establish the need for such frequent contact with Dr D, and asserted that at trial an order in those terms had not been sought by the mother or the ICL. Nor, it was submitted, had the trial Judge given any indication that such an order was in contemplation.
As is not in doubt (order 15.1), the ICL sought an order in substantially the terms ultimately made by the trial judge as order 6.1. However, the ICL did not at any time seek that such consultations be “no less than monthly”.
The further evidence of Dr D (Annexure A to the father’s affidavit filed

2 November 2012), contrary to the assertion of the father in that regard, fails to establish that he no longer needs to consult with Dr D, but does demonstrate that, although the father had been seeing Dr D monthly prior to the trial, there was no current need for him to continue to see Dr D as frequently as once per month.
As the Court pointed out to the father during the course of his submissions, although Dr D’s most recent report of 15 October 2012 (Annexure A referred to above), upon which the father sought to rely by way of further evidence pursuant to s 93A of the Act, might imply that the father no longer needs to consult with Dr D, Dr D does not say that in his report. It would have been a simple matter to have done so if that was Dr D’s opinion.
It is not in doubt that the reference to “no less than monthly” in order 6.1 reflected the frequency with which the father was seeing Dr D at the time of trial. It was not unreasonable in those circumstances for the trial Judge to import such a constraint into order 6.1. The further evidence of the father, which is not seriously controversial, demonstrates that, although involving no error at the time it was made, to continue the requirement of “no less than monthly” consultations with Dr D can now been seen as erroneous (see CDJ v VAJ (1998) 197 CLR 172). In reliance upon the father’s further evidence, the requirement of no less than “monthly” consultations will be removed and the appeal allowed in relation to that order.
Although it is not apparent from the written submissions, during the course of the hearing of the appeal, it became apparent that the father also complained about order 6.3 made by the trial Judge. The complaint is that it was a “condition” of the father spending time with the children pursuant to the trial Judge’s orders:
6.3that the mother and Independent Children’s Lawyer may from time to time request from Dr [D] or such other clinician as the father has been recommended to consult details of the father’s treatment and this order is authority to the mother and/or the Independent Children’s Lawyer to obtain such information;
It is apparent that, at least superficially, the father was capable of causing that order to be complied with. It is not in doubt that the ICL did not seek an order in those terms before the trial Judge. Nor did the mother.
It is reasonably clear that the trial Judge’s concern was to enable the mother and the ICL to establish from Dr D, “or such other clinician as the father has been recommended to consult”, confirmation that the father was in fact consulting in accordance with the trial Judge’s orders and, probably, details of any medication prescribed to him.
With respect to her Honour, the order as made goes further than the trial Judge may have intended, and potentially enables the mother and the ICL to have access to all “details of the father’s treatment” by Dr D, or any other “clinician” who the father consults.
Superficially at least, the order could be cured by the father being ordered to give authorisation to facilitate compliance with order 6.3. However doing so would not in our view be binding upon Dr D, or another “clinician”, or, if it was, advance achieving the objectives which resulted in the father being ordered to continue to consult with Dr D, or another clinician.
With respect to the trial Judge, and accepting that, in the totality of issues required to be determined by her it was a very minor matter, the Court is persuaded that order 6.3, which was sensibly conceded by Counsel for the other parties to the appeal to be unenforceable, or probably unenforceable, was, in its terms, erroneous. The father’s appeal against order 6.3 is thus entitled to succeed.

Ground 23

Ground 23 of the Amended Notice of Appeal provided:
23.The Judge erred in that she gave too little weight to the wishes the children, in particular those of the eldest children, given the age of the children and all the children’s long held desires, acknowledged by all the parties, to live with the father on an equal time basis. (Errors as in original)
In support of this challenge it was submitted:
The children’s wishes are well known to the court and where not only reflected by the ICL but where put to the Judge in the fathers affidavit sworn 24^thApril 2012 in paragraph 13 through 13.17. Not only did that set of paragraphs reflect the children’s wishes as expressed to the father, they also sought the courts help as to the concerns raised by the father as to the future relationship between the mother and the children. The children’s strong wishes & desires with regard to this matter are long standing & well known to the court and yet the court rejects them as being almost irrelevant when considered against the mothers requirements. Requirements that she herself can not even explain beyond a 2 year period as evidenced by her own testimony to the court in May 2011 by the words or words to the effect of “lets get over the next 2 years and then we’ll see”. The ICL’s comment to the court during May 2011 was “he’s particularly good with the kids” or words to that effect.
At what point in time must children wait until they get a say – FM Altobelli, a former Judge in this matter says at age 10, 11 or 12. Many other Judges say so as well and yet many others say younger. The children have all stated on many occasions what they want, Justice Ryan says she notes the children’s wants & needs but then goes on to dismiss them entirely. So at what age must a child wait to until such time as they can return home simply because that child express the view “I want to go to spend time with mum or dad” – and that child’s view is respected – simple question and it demands a simple answer. (Errors as in original)
The trial Judge referred extensively, in part under the heading “Primary and additional considerations” to the children’s wishes as they emerged from a variety of more independent and reliable sources than the father. Her Honour recorded in that regard:
161.So that it is clear, the mother, [C] and [L’s] records make plain that all children have consistently maintained a strong desire to see the father. That this view has been held by the children for a lengthy period, and indeed has never wavered, warrants significant weight being given to their desire to see much more of him than they do at present. Their positive reactions to him at the contact centre persuade me that this is more than a response to him seeking to align them with him and that it reflects their genuine affection for him and the positive relationships which have been established over a long period. However, for the reasons already given, I am satisfied that the children’s views about their future living arrangements have also been inappropriately influenced by the father and his behaviour. When this is considered in combination with the children’s ages and the complex issues (key aspects of which have appropriately been kept from the children) that must also be considered in order to determine whether an equal time arrangement might be in their best interests, less weight is given to their views in favour of that outcome. In a similar vein, I am not persuaded that the children have the requisite knowledge and/or maturity to appreciate the nuances and consequences of the various living arrangements discussed by them.
Nothing to which this Court has been referred demonstrates that anything recorded by the trial Judge was not reasonably open to her Honour on the evidence before her. As is clear from her reasons for judgment, the trial Judge carefully balanced the children’s wishes with the other and complex issues revealed by the evidence.

Nothing to which the Court has been referred demonstrates that the trial Judge erred in any relevant sense in her consideration of those factors.
With respect to whatever Altobelli FM may have said, as the trial Judge clearly recognised, the weight of the children’s wishes was a matter for her Honour to determine.
Nothing to which the father has referred the Court demonstrates that the trial Judge gave inadequate weight to the wishes of the children as revealed by the evidence in this case.

Ground 24

Ground 24 of the Amended Notice of Appeal provided:
24.The Judge erred in that she failed to value the children’s relationship with the father equally as she valued the children’s relationship with the mother.
In support of this ground the father asserted:
Judge Ryan says that the mothers relationship with the children ought to be protected and yet failed to make such statements about the fathers relationship with the children. Justice Ryan says the mother should take advise about circumstances in which she need not comply with parenting orders. Not only are such statements evidence of the Judges biased views towards the father but they are clearly designed to value the mothers relationship with the children higher than that of the fathers. If this were not the case then Judge ought to have said that both the parents relationships with the children ought be protected and that both parents should take advise about circumstances in which they need not comply with parenting orders. (Errors as in original)
A balanced reading of the trial Judge’s reasons makes clear that this complaint has no foundation, and is based upon a conveniently simplistic, and inaccurate appraisal of those reasons. Although the father would not accept it, the orders made by the trial Judge, and the cogent reasons which her Honour articulated for making them, in fact “protected” the father’s relationship with the children in ways which the evidence before her Honour suggested would not have been the case had orders more favourable to the father been made.
The undisturbed findings of fact recorded by the trial Judge with respect to the lay and expert opinion evidence before her provided abundant foundation for making the orders her Honour did.

Ground 25

Ground 25 of the Amended Notice of Appeal provided:
25.The Judge erred in that she gave [too] little weight to the positive communications between the children and the father.
In support of this ground the father asserted:
The Judge insisted on concentrating upon negative communications between the parents despite knowing that such communications can and do occur between parents caught up in a high conflict environment such as the Family Law Court and yet failed to reflect upon the many positive communications between the father & the children and did so in a prejudicial manner towards the father.
None of the father’s complaints about the adverse findings referred to by the father in support of this complaint, has been established by reference to anything which occurred at trial, or anything articulated in the trial Judge’s reasons for judgment. It has not been demonstrated that the trial Judge considered the issue to which the complaint relates in a way which was “prejudicial” to the father, or that the trial Judge gave excessive weight to the factors to which the father referred.

Ground 26

Ground 26 of the Amended Notice of Appeal provided:
26.The Judge erred in that she gave insufficient weight to the assistance provided by the father to the mother in order to achieve the 50/50 shared care that did exist prior to January 2010.
In support of this complaint the father asserted:
The Judge stated that it was the mother that maintained the 50/50 shared care and yet failed to reflect upon the evidence before the court that clearly shows the father contributed significantly to this arrangement and in many aspects did so more than the mother.
Even if, which is not the case, the basis of this challenge were established, it would change nothing. It was the siege in January 2010 which brought to an end the equal shared time arrangement which had operated prior to that time. The implications of the siege, as the trial Judge carefully explained in her reasons, rendered continuation of such an arrangement inconsistent with the children’s best interests.

Ground 27

Ground 27 of the Amended Notice of Appeal provided:
27.The Judge erred in that failed to reflect upon and or assist with all relationship’s that exist between the children and all maternal relatives and in doing so;
a)She failed to protect all relationships that exist for the children and in particular the children’s relationship with the children’s extended family on the fathers side.
b)Failed to reflect upon the fact that the children have been completely isolated from all maternal relatives on the father’s side of the children’s extended family since January 2010
c)Regulated those relationships that exist between the children’s and their extended family relatives on the father’s side to a lesser value than those of the mother. (Errors as in original)
In support of this series of complaints, the father submitted only:
The children being isolated from all maternal relatives on the father’s side of the children’s extended family since January 2010 was and is highlighted in the fathers sworn affidavit, dated 28^th April 2012, at paragraph 9.7 and yet the Judge failed to overcome that issue. (Errors as in original)
Nothing to which the Court has been referred demonstrates that the trial Judge erred in any of the ways asserted in this ground.

Ground 28

Ground 28 of the Amended Notice of Appeal provided:
28.The Judge erred and acted prejudicial to the father’s case by forming the view that the father in exercising his right of choice in engaging professional services was an action by the father that reflects negatively upon the father despite the fact that the father is free to make such choices without expecting criticism by the court.
In support of this ground the father submitted only that:
For the father to engage professional services of whatsoever nature is a matter for the father as is the circumstances upon which those services are terminated and is not a matter that ought attract the criticism of the court. (Errors as in original)
In the absence of more than the father has articulated, the Court does not understand what this complaint really is, much less on what basis it is asserted to have merit.
As noted in relation to other challenges raised by the father, it is not for the Court to trawl through the voluminous appeal books in order to endeavour to identify what the father might be complaining about, and on what basis he may be doing so.
As the Court has reiterated at various points throughout these Reasons, in a comprehensive and cogently reasoned judgment, the trial Judge provided compelling reasons for the orders she made. The evidentiary foundation for the inferences and conclusions which informed the trial Judge’s decision are not in doubt having regard to her Honour’s reasons. No material finding of fact which informed the exercise of her Honour’s discretion has shown to have been other than reasonably open to her.

Ground 29

Ground 29 of the Amended Notice of Appeal provided:
29.The judge erred and acted prejudicial to the father’s case by forming the view that the father in seeking advice in relation to legal matters was an action by the father that reflects negatively upon the father despite the fact that the father is free to make such choices without expecting criticism by the court.
In support of this ground the father submitted:
The father did seek legal advice, as he is entitled to do, over concerns with regards to the failure of duty of professional care owed to our family, including his ex-wife, in relation to his injury/illness by those that where tasked with his recovery and sought different legal opinion on family law matters and Justice Ryan’s concerns out of that action with respect to his raising of the children are WHAT exactly – if any judge, any judicial officer or even the simplest para-legal says that such actions are wrong and prejudiced to the welfare of his children or his ability, or his ex-wifes ability for that matter, to raise them then perhaps they should review their very reasons for being in such a position.
The father did not engage the children in this process so what is it that Justice Ryan says the father did by seeking legal advise that was so destructive to the children, the ex-wifes relationship with them or the fathers own relationship with them that she says impacted the fathers ability to care for or raise his children. (Errors as in original)
As with the preceding ground, what aspect of the trial Judge’s reasons for judgment is sought to be impugned by this ground is not clear, either from the ground or the submission in support of it.
A balanced reading of the trial Judge’s reasons makes clear beyond doubt that, whether the husband obtained legal advice or not, the reasons for obtaining or not obtaining legal advice formed no part of the process of reasoning which led to her Honour’s decision. Nor should it.

Ground 30

Ground 30 of the Amended Notice of Appeal provided:
30.The Judge erred in that she made orders that ensure continued conflict between the parties and in doing so failed to assist the parties to concentrate upon the best interests of the children and or to end the conflict.
In support of this ground the father submitted:
It is open knowledge that any orders that provide sole parental responsibility are highly likely to be orders that result in ongoing conflict. A subject that was directly raised with Justice Ryan’s by the father. Indeed Justice Ryan’s orders have already been subject to the mother contravening those orders. Judge Ryan’s orders are silent on such things as to which date the children can return home at the end of Term 3 – a failure that has resulted in ongoing conflict due to the mothers absolute refusal to nominate a date or even discuss the subject. (Errors as in original)
Even accepting that the complaint appears to relate in part to a period which has now passed, as a reading of the submission in support of this ground confirms, the challenge simply cannot be accepted.

Ground 31

Ground 31 of the Amended Notice of Appeal provided:
31.The Judge erred in that she failed to consider the concerns of the father with regards to the mother’s legal representatives knowingly allowing the mother to submit to the court false & misleading evidence dispute the fact the Judge was aware of such matters.
In support of this ground the father submitted:
The mothers legal representatives have committed an offence under Section 327 of the Crimes Act 1900 and under Rule 13.15 (2) of the Family Law Rules The Judge was & is duty bound to report these offences to the DPP and has failed to do so. In failing to do so has acted in a manner that is in direct conflict with her obligations as an officer of the court. (Errors as in original)
As the Court pointed out to the father during the course of the hearing, in the absence of it being demonstrated, and it has not, that the trial Judge erroneously failed to find evidence given by the mother to have been “false” or “misleading”, no question of the role of the mother’s legal representatives in causing or permitting that situation to eventuate can arise.
Nothing to which the father has referred the Court demonstrates that the trial Judge erred in failing to find that the mother had given false or misleading evidence.

Ground 32

Ground 32 of the Amended Notice of Appeal provided:
32.The Judge erred and acted prejudicial to the father’s case by failing to ensure that all subpoenaed material was before the court and available to the parties despite the Judge knowing that this was not the case due to the Department of Prosecution, NSW Police, having failed to comply with the requirements of the subpoena as served upon them by the father.
In support of this complaint the father asserted:
Despite the Judge being aware of the DPP’s failure to comply with a subpoena served upon them by the father to produce documents and the obligations of Principal 2 of Section 69ZN of the Family Law Act 1975 the Judge failed to rectify this situation.
Nothing to which the father has referred the Court begins to demonstrate that the trial Judge erred in any of the ways asserted by this ground. The trial Judge was not obliged to cause subpoenaed or other documents to be tendered in evidence. Doing so of her Honour’s own motion may well have been fraught with difficulty. The Court has not been referred to any document produced on subpoena which, had it been tendered, would have resulted in a different outcome, or have materially impacted upon the outcome of the case.

Ground 33(a)

Ground 33(a) of the Amended Notice of Appeal provided:
33.The Judge failed to give any or any adequate reasons for concluding and accepting;
(a)“Unless stated differently throughout these reasons, the balance of probabilities will determine findings of fact(s 140 Evidence Act 1995 (Cth))”
As to why the judge, despite knowing that she must also take into account Section 140(2) of the Evidence Act 1995, failed to do so. (Errors as in original and original emphasis)
In support of this complaint the father asserted:
The Judge failed to properly reflect upon the causation of the fathers depressive illness including but not limited to the impact of the mothers behaviour upon that illness suffered by the father. Further the Judge failed to properly reflect upon the causation of the fathers adverse reaction to medication. (Errors as in original)
In what way the trial Judge erred in the manner asserted by this ground has not been suggested. What evidence the trial Judge failed to accept as establishing the “impact of the mother’s behaviour” upon the father’s “depressive illness” has not been identified. Nor has the evidence which the trial Judge is said to have erroneously failed to accept in relation to the “causation of the father’s adverse reaction to medication.”

Ground 33(b)

Ground 33(b) of the Amended Notice of Appeal provided:
33.The Judge failed to give any or any adequate reasons for concluding and accepting;
(b)“The father was permitted to give evidence about numerous events during cohabitation which he said showed the mothers indifference to his ill health as well as incidents which demonstrated her occasional cannabis use and occasional misuse of alcohol. Although the relevance of these matters was not clear....”
As to how these matters could not be relevant given the family violence by the mother as alleged by the father. (Errors as in original and original emphasis)
In support of this complaint the father asserted:
The Judge has on numerous occasions stated that the fathers alleged indifference to the mother is highly relevant to the matter before her. So how does it come to be that those same reflections, tests and considerations are not applied equally to the mothers ongoing indifference to the father and the separation of the children from the father. (Errors as in original)
In what way this rhetorical assertion is suggested to advance the father’s appeal is not apparent, and has not been identified.

Ground 33(c)

Ground 33(c) of the Amended Notice of Appeal provided:
33.The Judge failed to give any or any adequate reasons for concluding and accepting;
(c)“Two days later the mother separated from the father for the first time. Contrary to his wishes she retained the three children ([O] had not been born) and for three days he did not know where they where. In total the mother deprived the father of contact with the children for four days. Although this distressed him there is no evidence the children were distressed and I infer they were not”
As to how the Judge inferred the children where not distressed and how this act of by the mother could not be deemed an act of family violence given the extremely close relationship between the father and the children. (Errors as in original and original emphasis)
In support of this complaint the father rhetorically submitted:
On what basis did the Judge determine that the mother’s behaviour during this time was in any way proper, was not an act of family violence and or that the children where not distressed. With respect to the mother, the father has only ever sent a few shitty text message and that has resulted in his complete separation from the children – and yet the mother takes it upon herself to steal the children against the wishes of the father, actively prevent and deprive the father and children of any contact or communication for four days, refuses to inform the father as to the whereabouts or safety of the children despite knowing how distressing that was for the father – and the Judge says that’s OK.???? (Errors as in original)
Nothing to which the Court has been referred by the father provides any foundation for concluding that any finding of fact complained of in this ground was not reasonably open to the trial Judge.

Ground 33(d)

Ground 33(d) of the Amended Notice of Appeal provided:
33.The Judge failed to give any or any adequate reasons for concluding and accepting;
(d)“This is consistent with the mothers evidence about the fathers behaviour, which is accepted”.
Despite the fact that the mother has never given the evidence to the court with regards to the symptoms of the father’s depressive illness. (Errors as in original and original emphasis)
Apart from the rhetorical assertion “How can the Judge make determinations on subject matter that she failed to explore or try to investigate” nothing submitted by the father could possibly enliven appellate intervention.

Grounds 33(f), (g), (h) & (i)

The observations recorded above apply to the balance of grounds 33(f), (g), (h) & (i).
To read the grounds, and the assertions of the father in support of them, is to realise why they could not possibly enliven appellate intervention, and do not warrant further consideration by the Court.

Ground 34

Ground 34 of the Amended Notice of Appeal provided:
34.The judge erred in that she failed to ensure the parties took the most direct route to significant evidence as to the fathers mental health status or alternatively the judge erred in that she failed to reflect upon the fact that the mother & the ICL actively refused to engage in testing of the fathers mental health despite knowing that there is significant doubt and discord as to the fathers mental health status as alleged by the mother and the ICL and she did so knowing that the determination of the fathers mental health status is the most central aspect of the mothers and ICL’s allegations against the father that they say, and the judge says, justifies the complete separation of the children & the father such as the children and the father have been forced to endure. (Errors as in original)
In support of this ground the father submitted:
The father’s mental healthy considerations have become the central focus of both the mother & the ICL throughout the entire three (3) year period in which this matter has been ongoing. The Judge indicated by her reasons for judgement that this was the case. The father knowing this to be the case offered to the Mother & the ICI opportunity to put their theories as to the fathers mental health to the test, opportunities they all refused tor take. Facts the Judge is well aware of and failed to reflect upon. (Errors as in original)
As is apparent from their terms, nothing raised by the father in this ground, or any submission in support of it could enliven appellate intervention.

Ground 35

Ground 35 of the Amended Notice of Appeal provided:
35.The judge erred in that she failed to reflect upon the mother’s deliberate & express refusal to communicate with the father with respect to the raising of the children, and as to how such a refusal to communicate has been encouraged by the mothers legal representatives, and did so despite the Judges own comments upon such an attempt to defeat a parent’s right to parental responsibility by refusing to communicate as being “a bizarre attempt to defeat an equal parental responsibility claim” or words to that effect as recorded in Her Honours own past determinations and the father raising this very point with the Judge. (Errors as in original and original emphasis)

Beyond asserting that: “[I]ts a simple fact, the mother won sole parental responsibly [sic] by point blank refusing to communicate and or cooperate with the father”, the father did not advance anything establishing that this complaint has substance. In rejecting a number of earlier grounds agitated by the father, we have articulated our conclusions with respect to challenges to the trial Judge’s findings in relation to the mother’s ability and/or willingness to communicate and/or co-operate with the father. We need not re-state those matters.
As the trial Judge’s undisturbed findings of fact clearly revealed, the mother’s inability to communicate with the father was both understandable, and reasonable having regard to the father’s own actions, which the trial Judge recorded in considerable detail.
This challenge fails.

Ground 36

Ground 36 of the Amended Notice of Appeal provided:
36.The judge erred in that she made conclusions or determinations that are in direct conflict with evidence before the court.
In support of this ground it was submitted by the father:
Many of Her Honours conclusions and or determinations are flawed simply because they are based upon incorrect factual data, interpretations of incorrect factual data and or biased views expressed by Her Honour resulting in a prejudiced outcome for the father. (Errors as in original)
The Court has earlier referred to the appendix of asserted errors of fact by the trial Judge. No material finding of fact recorded by the trial Judge has been shown by the father to have been other than reasonably open to her Honour.

Ground 37

Ground 37 of the Amended Notice of Appeal provided:
37.The judge erred in that she made conclusions and or determinations that resulted in the complete separation of the children & the father, including but not limited to the complete isolation of the relationship between the children & the father without proper or due justification.
In support of this ground it was submitted by the father:
Her Honour was advised by the father that supervised visits was not available to the father and children and yet despite knowing this still insisted on ordering such visits with the direct result of the father being completely isolated from the children for a significant period of time. (Errors as in original)
Nothing to which the father has referred the Court demonstrates that “supervised visits was [sic] not available” to him. The trial Judge made extensive findings in relation to the issue of supervised contact.

conclusion

The father’s appeal against the parenting orders made by the trial Judge should only be allowed to the extent that “monthly” is deleted from order 6.1, and order 6.3 is set aside. A difficult question however then arises as to how the current orders can properly function.

the further evidence applications

We have earlier largely dealt with the father’s further evidence application filed in EA 23/2012. After the hearing of the appeals, the father filed another application for leave to adduce further evidence, in appeal EA 133/2012. As we have explained, the further evidence contained therein relates in part to the substantive parenting appeal and therefore should be addressed in these reasons.
It is apparent from the affidavit of the father containing such further evidence that it was an attempt to address evidentiary matters which the father perceived to be deficient, in the light of exchanges with the Bench during the hearing of his appeal against the parenting order.
The further evidence of the father to which reference has earlier been made contained a report dated 15 October 2012. It was suggested to the father during his oral submissions, correctly, there is no doubt, that Dr D’s report of 15 October 2012 did not say that there was no necessity or desirability for the father to continue to consult with him.
On 20 November 2012, in a report clearly obtained by the father subsequent to the hearing for the purpose of his appeal to this Court, Dr D said (Annexure B to father’s affidavit filed 21 November 2012):
... I am specifically of the opinion that he [the father] does not require to attend for any further treatment although I understand that he has an obligation to do so as part of the present orders of the Court. ...
The further evidence of Dr D, if accepted, would not demonstrate that the order of the trial Judge was erroneous. The trial Judge’s orders clearly contemplated that, after a period of supervision, during which the father would continue to consult with Dr D as frequently as the evidence at trial revealed that he had been doing so, the father would commence to spend unsupervised time with the children. We have indicated earlier in these reasons that the monthly requirement provided by order 6.1 will be set aside.
Whatever might now be the case, we would not exercise the discretion to allow the latest further evidence of Dr D in the appeal. Why that is so requires explanation, given the terms of Dr D’s November report.
We understand that the father has not spent the supervised time with the children envisaged by order 4.1 of the trial Judge’s orders. Counsel for the ICL submitted that so doing was a condition precedent to the father commencing to spend unsupervised time with the children pursuant to order 4.2, and subsequent provisions of the trial Judge’s orders. The terms of the trial Judge’s orders, reinforced by her Honour’s reasons for those orders, reveal that it was only after the supervised time provided by order 4.1 had concluded that the children would spend time with the father on an unsupervised basis.
Though the father’s appeal is to be allowed only to the limited extent we have earlier indicated, in these circumstances where the trial Judge’s clear intention was that the father commence supervised time before unsupervised time, and the children have spent very little time with the father, the proper course in our view is to set aside all of order 4 and remit for rehearing the matter of the father’s time with the children.
The further evidence of Dr D would be relevant to such hearing, and possibly other evidence contained in the father’s three further evidence applications. The father should be entitled to bring at first instance an application to spend time with the children, in the light of the disagreement in relation to whether he is now entitled to spend time with the children on an unsupervised basis.
To the extent that Dr D’s report of 20 November 2011 was relied upon by the father in support of his challenge to order 6.1 of the trial Judge’s orders, we would not exercise our discretion to receive that evidence. It is unnecessary to do so.
The absence of necessity or desirability for the father to continue to consult and personally attend upon Dr D or such other psychiatrist as Dr D may recommend is not, as the father would have it a simple issue, nor is it one which the mother and the ICL can be expected to accept on the basis of a report provided after the appeal has been heard which they are unable to test in any way.
In order to make the amendments to the trial Judge’s orders to which we have referred, it is necessary to allow the appeal.

costs

In our view it would be appropriate to make no order for costs.
We would not make an order for costs certificates for either party or the ICL.

I certify that the preceding two hundred and thirty-seven (237) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, May and Ainslie-Wallace JJ) delivered on 1 February 2013.

Associate:

Date: 1 February 2013