Blinko & Blinko
[2015] FamCAFC 146
•23 July 2015
FAMILY COURT OF AUSTRALIA
| BLINKO & BLINKO | [2015] FamCAFC 146 |
| FAMILY LAW – CHILDREN – APPEAL – CHILDREN – FINAL PARENTING ORDERS – where the trial judge made an order that the father spend no time nor communicate with the child – best interests of the child balanced with perceived risk – where the trial judge failed to properly enunciate his reasoning – appeal allowed – remitted for rehearing before a judge other than the trial judge. FAMILY LAW – APPEAL – COSTS – cost certificate issued. |
| Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60CC, 117 Federal Proceedings (Costs) Act 1981 (Cth) ss 8, 9 |
| Cochrane & Peterson [2008] FamCA 597 M v M (1988) 166 CLR 69 Mazorski v Albright (2007) 37 Fam LR 518 McCall v Clark (2009) 41 Fam LR 483 N and S & the Separate Representative (1996) FLC 92-655 Redmond & Redmond [2014] FamCAFC 155 Russell & Close (unreported Full Court, 25 June 1993) Sedgley & Sedgley (1995) FLC 92-623 Slater & Light (2013) 48 Fam LR 573 Vakauta v Kelly (1989) 167 CLR 568 |
| APPELLANT: | Mr Blinko |
| RESPONDENT: | Ms Blinko |
| INDEPENDENT CHILDREN’S LAWYER: | Jennifer Boulton |
| FILE NUMBER: | BRC | 6136 | of | 2010 |
| APPEAL NUMBER: | NA | 30 | of | 2014 |
| DATE DELIVERED: | 23 July 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Murphy & Tree JJ |
| HEARING DATE: | 1 December 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 May 2014 |
| LOWER COURT MNC: | [2014] FCCA 1097 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Cameron |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms J Boulton |
Orders
The Appeal be allowed.
The Orders made by Judge Coates on 30 May 2014 be set aside.
The matter be remitted to the Federal Circuit Court of Australia for re-hearing before a judge other than Judge Coates.
The Court grants to the father a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to him in respect of the costs incurred by him in relation to the appeal.
The Court grants to the father, mother and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to them in respect of the costs incurred in relation to the re-hearing.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Blinko & Blinko 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 BRISBANE |
Appeal Number: NA 30 of 2014
File Number: BRC 6136 of 2010
Mr Blinko
Appellant
And
Ms Blinko
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
INTRODUCTION
Mr Blinko (“the father”) appeals from orders of Judge Coates made 30 May 2014 that the parties’ only child, born in 2008 (“the child”), live with Ms Blinko (“the mother”) and spend no time nor communicate with the father.
Although the father’s Notice of Appeal filed 26 June 2014 extended to some 41 grounds, in the father’s Summary of Argument, those were reduced to five grounds, although some of those contained several sub-grounds. The father, who represented himself, sought consequent upon any success of the appeal, a gradual reintroduction into the child’s life, potentially ultimately progressing to two hours of supervised time at a Contact Centre on Saturday and Sunday every third weekend.
The mother opposed the appeal.
The Independent Children’s Lawyer (“the ICL”), represented by counsel on appeal, opposed the appeal. In written and oral submissions, the ICL argued that the primary judge came to the correct decision, giving adequate reasons for judgment and “on a fair and not overly pernickety reading…shows the path that he took and that he does make relevant findings” (Transcript, 1 December 2014, p 47 l 31).
BACKGROUND FACTS
The father
The father grew up in New Zealand, and after completing his schooling, worked on the family farm and then in hospitality before travelling overseas for two years, in the course of which he fathered a son who is now in his twenties. Upon returning to New Zealand, he became a public servant with the New Zealand public service. He met the mother online when in that employment.
The mother
The mother after her schooling, completed a university degree before working in the tourism industry for a number of years. She then became a Queensland Police Officer and was serving with that force when she met the father.
The relationship
Soon after the parties met on the internet, the father moved to Australia and joined Queensland Police. The parties commenced living together in late 2004 and married in 2005. The father left the Queensland Police Force in 2007, thereafter undertaking building and renovation jobs.
The parties separated before the child turned one, after an incident in January 2009 which we shall discuss in greater detail later in these reasons. Although the parties were able to reach agreement about the father spending time with the child, only two such occasions occurred before that arrangement stopped. The father has not seen, spent time or communicated with the child since 1 March 2009, when she was then 11 months of age.
Both parties remained living in the Wide Bay-Burnett district until the mother moved to South East Queensland in January 2010 on transfer in the Queensland Police Service, where she remains employed. The father remains living in the Wide Bay-Burnett district.
THE PROCEEDINGS
The father commenced these proceedings on 8 September 2010. An ICL was appointed to represent the interests of the child on 26 October 2010.
The matter was listed for trial in the first week of March 2012. However, by an Application in a Case filed 14 February 2012 the self-represented father sought that the trial be adjourned to permit the completion of a regime of proposed interim orders, which, amongst other things, would reintroduce the child to the father (albeit supervised by a Family Consultant). In support of that Application, the father relied upon the Family Report which had been prepared by Mr J on 20 July 2011. In that report Mr J had actively canvassed the possibility of the child being reintroduced to the father under Family Consultant supervision, in part so that his interaction with the child could be observed (at [10.26]) but also to gauge the mother’s response to the father recommencing time with the child (at [10.27]). Mr J specifically recommended that any decision about reintroduction be delayed until a stalking charge (relating to a third party) which the father was then facing, had been resolved.
By February 2012, that charge had indeed concluded by it being withdrawn. The father recognised that a major obstacle to his case was the fact that, by 2012, he had not seen the child for nearly three years, and even if Mr J’s recommendation was accepted at the trial, only interim orders would likely result.
For reasons which are not apparent from the material in the Appeal Books, on 17 February 2012 the trial judge dismissed the father’s application, and hence the matter proceeded to trial on 5 March 2012, when it ran for three consecutive days, although did not then conclude. Rather, it resumed on 10 May 2012 for two days and then again on 12 July 2012 and 11 December 2012.
At the commencement of the hearing on 11 December 2012 the trial judge dealt with a further Application in a Case that had been filed by the father on the previous day, which again sought to adjourn the trial to enable the implementation of interim orders, designed to effect reintroduction of the child to the father supervised by a Family Consultant, and to enable an updated Family Report to be obtained. That Application was not formally disposed of by the trial judge, however there was an exchange between the judge and the father in the following terms:
HIS HONOUR: I will raise this – besides that, you’ve got an application in a case.
[THE FATHER]: Yes, your Honour.
HIS HONOUR: Yes. Well, why would I be doing – appointing a 65L, making a 65L order now? I know – look, I know you’re frustrated by it.
[THE FATHER]: Your Honour ---
HIS HONOUR: I can’t see the point in it. It’s not something which, unless you can tell me why I would be doing that, it’s not something I would be doing, because the whole idea of the trial is to work out what I need to do. Further, a lot of your affidavit is just inadmissible. It is for submission, but you can’t tell me what you think of her testimony in that form. That’s a submission.
[THE FATHER]: Your Honour, my main point is that ---
HIS HONOUR: Yes.
[THE FATHER]: ---the court should only order no contact as a last resort.
HIS HONOUR: Yes.
[THE FATHER]: If that’s the last ---
HIS HONOUR: But that’s a submission to be made at the end of the trial.
[THE FATHER]: But as a last resort ---
HIS HONOUR: Yes.
[THE FATHER]: ---the prior option should include being able to see how the father interacts with the child, and Mr [J] in his report stated that would be beneficial.
HIS HONOUR: Yes.
[THE FATHER]: And I can’t see why on earth that wouldn’t happen, if it helped the court to decide whether there should be contact with the father.
HIS HONOUR: Yes. Well---
[THE FATHER]: By the time the trial finishes ---
HIS HONOUR: Probably---
[THE FATHER]: --- and submissions are made, it will be too late.
HIS HONOUR: Probably---
[THE FATHER]: Nobody will ever know how the child---
HIS HONOUR: No. No. No. You don’t realise, Mr [Blinko], I can actually make an interim order, even though---
[THE FATHER]: Well I’m asking that.
HIS HONOUR: Even though it was always meant to be a final trial, but if I’m satisfied that after hearing all this evidence, upon the claims being made, I could actually make an interim order to see how such a thing goes. I’m certainly not prepared to do it at this stage, because I have to hear this evidence. Okay?
[THE FATHER]: I understand.
HIS HONOUR: Right.
[THE FATHER]: Thank you for your consideration.
His Honour then proceeded with the trial, however it did not conclude on 11 December 2012, but rather resumed again on 31 May 2013, on which occasion the evidence concluded. In total, therefore, the trial occupied eight days of hearing spread over nearly 16 months. Written submissions were ordered, the last of which were filed on 18 August 2013. Judgment was delivered and orders made on 30 May 2014, some three and a half years after the proceedings were commenced.
The central issue in the proceedings before the trial judge was whether the father posed an unacceptable risk of harm to the child. The mother asserted that he represented such a risk because of alleged violent conduct during the course of the relationship, culminating in an event involving a knife in January 2009. The mother’s case was that her fear of the father, based upon that history of violence, was so profound that she would not even be able to cope with the child only spending supervised time and communication with the father. For his part, the father contended that the mother’s fear was either not real, or not rational, or both.
The mother relied upon the incident in January 2009 as providing the rational basis for her fear. The parties’ versions of events of that day were in conflict. The mother asserted that during the course of a disagreement, the father grabbed a 30 centimetre knife which she had been using to slice tomatoes, and thereafter the parties struggled. The father said that any struggle occurred prior to him grabbing the knife, and that thereafter he took the knife out of the house into a shed. In large part the trial judge accepted the mother’s version, and importantly, that there was a struggle between the parties (at [78]). The trial judge accepted that the mother had a genuine fear of the father, which fear was rational given his anger management issues generally and the knife episode in particular. His Honour accepted psychiatric evidence that if the child had anything to do with the father whatsoever, the mother may decompensate to the point where her parenting capacity would be seriously impacted. It was on that basis that he made the orders prohibiting the father either communicating or spending time with the child.
APPEALABLE ERROR
As will emerge, we are of the view that His Honour made no material errors of fact, nor is any misapplication of the law established. Further, the challenges based essentially on a lack of procedural fairness have no merit.
That being so, the central question as to whether his Honour erred in an appellate sense involves asking whether the orders made by his Honour, which see, effectively, a complete elimination of the child from the father’s life, involve an error in the exercise of his Honour’s discretion.
In that respect, his Honour was faced with an exquisitely difficult question. His Honour’s findings that the mother had a genuine, pervasive and rational fear of the husband are, as will be seen, not successfully challenged on this appeal. Further, his Honour found, on a firm evidentiary foundation, that if the child spent time with the father the mother would “decompensate” which would detrimentally affect the mother’s care of the child (at [221]). There was no issue before his Honour that the mother is, and had always been, the primary carer of the child – indeed, she had been the exclusive carer of the child for some years prior to the trial.
There was no evidence from which a conclusion could properly be drawn that the father was likely to harm the child or that there was an unacceptable risk of him doing so. Of course, it needs to be reiterated and emphasised that the father had not seen the child for the best part of four years prior to the hearing. His Honour found, however, that there was a risk of harm to the child in a broader sense emanating from the reaction of the mother to any ordered time between the child and the father. In effect, his Honour found that any such time was likely to have such a dramatic impact upon her and her care of the child, that there was a risk of psychological harm to the child.
Those considerations can be seen to be referrable to the primary consideration contained in s 60CC(2)(b) of the Family Law Act 1975 (Cth) (“the Act”). Of course, that had to be weighed with a consideration of the benefit of the child having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). In this case, as in many contested parenting cases, the two primary considerations can be seen to be in conflict.
Ground 3 provides:
The trial Judge made an error of law when he stated he did not have to make a finding that identified the risk. He then made numerous errors of fact and law which led him to make a faulty conclusion as to the nature and degree of risk, and he failed to adequately examine ways to ameliorate risk for the child.
At least in the absence of particularity, that ground does not, in terms, reveal appealable error. However, as the argument for the husband makes clear, the assertion of discretionary error is either that his Honour failed to take account of relevant considerations in determining the best interests of the child, namely, the means by which the father could have (or at least commence) a meaningful relationship with the child, balanced against the perceived risk consistent with his Honour’s findings. Alternatively, the husband’s argument contends that his Honour’s reasons failed to adequately illuminate how it was that the best interests of the child required orders which effectively eliminated the father from the child’s life.
His Honour’s expressed conclusion for deciding that “the risk overcomes the primary consideration of the child having the benefit of a meaningful relationship with the father” is given in [222] of the reasons:
I also accept that the fears would prevent the mother from ever facilitating a relationship between the child and the father, because she could not cope psychologically if the court ordered any time under any circumstances for the child to spend time with the father. Her fears go to the future and how she would cope in future with any order to have contact with the father over the child.
(Emphasis added)
His Honour concluded at [224]:
It is on that basis that the risk overcomes the primary consideration of the child having the benefit of a meaningful relationship with the father, when consideration is giving [sic] to the need to protecting [sic] the child from abuse, neglect or family violence. I intend making an order, reluctantly, that there be no time. It is not an order I like making, however, it is the order which will avoid the unacceptable risk which is presented to the child in this case and it is the only order I can make to avoid the unacceptable risk. I rule out supervised time because of the mother’s condition and because such would possibly lead to a superficial relationship. I also do not view an interim order as being in the child’s best interests.
(emphasis added)
A consideration of risk, and factors which impact upon or ameliorate the risk, will in most cases be inextricably linked. That is because “[t]he object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child”: see Hon John Fogarty AM “Unacceptable Risk – A Return to Basics” (2006) 20 Australian Journal of Family Law 249 at 261.
The authorities dealing with cases of unacceptable risk are replete with exhortations to trial judges to “consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard”: see for example N and S and the Separate Representative (1996) FLC 92-655 at 82,714. That extends not merely to the identification and analysis of the risk itself, but also to the imposition of conditions or other safeguards in relation to the non-resident parent. Particularly, if the Court ultimately accepts that there should be orders for communication and/or time, albeit surrounded by safeguarding conditions, then the Court needs to clearly explain the reasons why it is persuaded that those safeguards are sufficiently ameliorative of the risk. That is, amongst other reasons, so as the resident parent may scrutinise the adequacy of the reasoning process which underpins the orders, given the potentially grave consequences of exposing a child to risk.
As Brown J said in Mazorski v Albright (2008) 37 Fam LR 518 at 526, “the word ‘meaningful’ is a qualitative adjective, not a strictly quantitative one”. Similarly, in McCall v Clark (2009) 41 Fam LR 483 at 509, this Court suggested that the court should “consider and weigh the evidence at the date of the hearing to determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents …”.
Accordingly, where the Court makes no orders for time or communication because it is not persuaded that safeguarding conditions would sufficiently ameliorate the risk, again it should clearly explain the reasons for that conclusion. Looming large amongst the reasons for doing so, is because such orders will necessarily wholly prohibit the child, during their childhood and adolescence, from ever having any form of relationship with the non-resident parent, again, a potentially grave consequence. Such an outcome needs to be arrived at only after a careful evaluation of all of the other options which might work to enable the child to have the benefit of some kind of relationship with the non-resident parent, as indicated by the Objects and Principles of Part VII of the Act. Whilst s 60CC(2A) demands that greater weight be given to the consideration in s 60CC(2)(b) – something entirely consistent with the approach of the Courts since the commencement of the Act – the particular facts and circumstances of each individual case nevertheless require a careful evaluation and balancing of Considerations, and all the more so when what is at stake is the potential for a child to never know their parent.
Here the father’s proposals, which needed careful evaluation by his Honour, identified a range of potential means by which the child could have some relationship with the father. For instance they included:
1.Permitting the father to send cards, gifts or letters to the child, whether on special occasions or more regularly;
2.Permitting the child to spend supervised time with the father on one or more occasions during the year for a fixed period (on a final and not interim basis);
3.Introducing, on an interim basis, some closely supervised time between the child and the father with adequate counselling supports, and after some period of time reviewing the efficacy of such arrangements; and
4.Requiring the mother and child to engage with appropriate therapists with a view to preparing the child for re-unification counselling with the father.
Not only was it incumbent on the trial judge to consider such options, but in considering each of those alternatives, his Honour ought to have made an informed determination as to the magnitude of any risk to the mother’s psychological health, and hence parental functioning, which attended each of these, to enable him to then consider whether, notwithstanding the safeguards, the risk of harm to the child still remained unacceptable.
It is clear that his Honour did not expose the reasoning process by which he determined that no safeguard short of prohibiting the father spending time with or communicating with the child in any way rendered the risk to the child acceptable.
Particularly given the exchange between the judge and the father on 11 December 2012, to which we have referred at [12] of these reasons, it was incumbent upon the trial judge to explain why the regime of orders which the father had sought on no less than two occasions, effecting a closely monitored reintroduction of the child to him, nonetheless posed such a risk of harm to the child, that it was unacceptable even to tentatively commence down that path. His Honour’s bare rejection of an interim order in the reasons exposed no reasoning for it (at [224]).
Further, given that the inevitable consequence of his Honour’s findings as to the mother’s fear of, and consequent attitude towards, the father and the orders which his Honour made was to wholly deprive the child even of knowledge of the existence of her father (or her older sibling) it was incumbent upon his Honour to identify and evaluate the disadvantages to the child of such an outcome. His Honour was then obliged to carefully explain why it was that the risks which he identified, when weighed against the disadvantages of the proposed orders, could not be sufficiently ameliorated by any safeguards short of denying the child any knowledge of her father whatsoever. In our view, his Honour failed to do so.
We are therefore satisfied that the trial judge has failed to properly expose his reasoning, and hence this aspect of ground 3 is established. We shall consider the balance of the matters argued under this ground in due course.
GROUND 1
As contained in the written submissions of the father filed 17 October 2014, ground 1 provides as follows:
The trial judge was not impartial. He ran the trial in such a manner that it was detrimental to the father, especially a self-represented applicant. The Trial Judge also displayed a bias towards the father’s case that ultimately led him to “step into the arena” on behalf of the mother and her case, resulting in an unjust order for “no time”. This would be grounds for a re-trial of the matter.
As argued, this ground was advanced on four separate bases. It is convenient if we deal with them as argued. However before doing so, it is appropriate to note that no application to disqualify the trial judge for bias was advanced during the course of the trial but also that the father did not have legal representation at the hearing. Where comments or conduct of a trial judge are likely to convey to a reasonable and intelligent lay observer an impression of bias, a legally represented party cannot stand by and await the outcome of the final judgment before making a claim of bias, as their silence comprises a waiver of any right to subsequently object: see Vakauta v Kelly (1989) 167 CLR 568 at 572 per Brennan, Deane and Gaudron JJ.
On appeal, neither the mother nor the ICL sought to argue that the father had waived any entitlement to assert bias on the part of the trial judge. It is therefore unnecessary in the context of this matter, for us to determine what, if any, obligation is cast upon a trial judge to explain to self-represented litigants their right to ask them to cease hearing the case on the grounds of actual or ostensible bias, or whether silence of a self-represented litigant, when first confronted with the facts which are later on appeal relied upon to assert bias, should be found to comprise waiver (as to which see generally Dr M Groves, ‘Waiver of the Rule Against Bias’, Monash University Law Review Volume 35 No 2).
We shall therefore turn to consider the individual bases upon which the father argued this ground.
The trial judge was predisposed to not considering any evidence from the father
In support of this argument, the father relied upon an exchange which occurred between himself and the trial judge on 10 May 2012, during which trial judge stated:
HIS HONOUR: …I may not have to make a decision on whether the incidents of violence alleged actually occurred as they did because I may not have a lot to choose from between what you say occurred or did not occur and what the mother says occurred…
This exchange occurred during the course of the father’s cross-examination of the mother. An objection was made by counsel for the mother that the father’s questioning was overly repetitive, and particularly, that the mother had already answered the question that was being put to her. Some argument ensued during which counsel for the ICL expressed his belief that the mother was going to be physically sick. Whether in consequence of that or not, the Court then had a short adjournment at the conclusion of which the exchange recited above occurred.
The exchange occurred whilst the judge was attempting to explain to the father that repetition of evidence by a witness did not necessarily increase its weight. In that context the trial judge returned to a theme which had already been the subject of discussion between them, to the effect that merely because a Court could not be satisfied that one or more acts of violence in the course of a relationship had occurred, did not necessarily complete the task of the Court in determining where the best interests of the child in question lay. Particularly the judge explained to the father that if a party’s case was that they had a genuine belief about an underlying risk of harm to the child posed by the other parent, which belief might affect their own capacity to properly parent the child, that itself would be a matter which the Court needed to take into account in assessing where the best interests of the child lay. The judge was particularly concerned that the father did not appear to understand that this was the way in which the mother was presenting her case, and hence was not directing his cross-examination of the mother in a way which engaged with it.
In that context, the words “I may not have a lot to choose from between what you say occurred or did not occur and what the mother says occurred” was an attempt by the judge to explain to the father that he may not be able to make a determination as to whether or not the alleged violent conduct occurred, because it was simply the mother’s word against the father’s. However it is plainly apparent that the purpose of saying that was to try and focus the father’s attention upon the fact that an inability to conclude whether the violent conduct had occurred or not was not the end of the matter. We do not construe the relevant exchange as in some way intimating that the judge would not consider the evidence impartially.
This aspect of the complaint made under the first ground of appeal has no merit.
The trial Judge placed undue emphasis on the mother’s demeanour in Court and gave no credit for the father’s positive demeanour
The trial judge made observations in relation to the mother’s demeanour and presentation during the course of the hearing before him, both in and out of the witness box at, amongst other places, [126] and [133] to [135] of the Reasons. His Honour also referred to the reported observations by others, for instance the observations of Dr F, a psychiatrist, at [136]. At [203] and [220] of the Reasons, the trial judge found as a matter of fact that the mother feared the father and that her fear was genuine. His Honour did not explain what role, if any, his personal observations of the mother, or the observations of others, had in supporting those conclusions. It would be reasonable to infer that they had some material bearing upon his Honour’s conclusion, for otherwise there would have been no point in referring to them.
However, even accepting that they had a material role to play in the reasoning which underpinned the finding that the mother suffered genuine fear of the father, there is nothing in the Reasons which would suggest that the weight that was placed upon those observations comprised an “undue emphasis” as alleged by the father. That aspect of this ground of appeal is therefore not made out.
The other matter complained of by the father was that the Court gave no weight to what was described as his positive demeanour both during the trial and in the years preceding it. It is difficult to assess whether or not the father’s assertion that he maintained a calm, courteous and positive demeanour during the course of the trial is correct, but there is nothing in the transcript to suggest otherwise, and for the purposes of this ground of appeal we are prepared to assume that indeed his demeanour was as he asserts.
The argument he advanced was that his demeanour ought to have been taken into account by the Court favourably to him in the determination of whether he suffered anger management issues or not, and that the failure to do so comprised evidence of partiality on the part of the judge favouring the mother. In support of the first part of that argument he referred us to Redmond & Redmond [2014] FamCAFC 155, which may be taken as authority for the proposition that even in interim hearings without cross-examination, a Court is entitled to take into account the demeanour and conduct of litigants in the proceedings before them.
At [220] of the Reasons, the trial judge made a positive finding “the father has an anger management issue”. It appears correct to say that in the course of traversing the material which supported that finding, there is no reference to the father’s demeanour at trial. However there is a wealth of other material which was relied upon by the trial judge as demonstrating the father’s behaviour including as follows:
·The father’s own concessions of anger on at least one occasion during the course of the relationship (at [62]-[65]);
·The father’s acknowledgement of difficulties with anger management during the course of his interview with Dr M, a psychiatrist (at [93]);
·The father’s report to Dr K, his general medical practitioner, in 2009 that “he had insomnia and anger problems and that he had a long history of such, since childhood” (at [94]);
·The evidence of Senior Sergeant A, who in 2005 was the father’s superior officer, who gave evidence that at the time he observed the father “become agitated and appear to be aggressive, clenching and unclenching his fists, when spoken to for being late” (at [96]) which the trial judge noted was not effectively challenged by the father (at [98]);
·The evidence of another police officer who had worked with the father, Senior Constable B, who described an occasion when she was interacting with the father when “he was extremely aggressive” (at [100]);
·Dr M’s evidence, given after being appraised of the above matters that they “raised the possibility that the father had little understanding of boundaries, as well as difficulty with anger and perhaps difficulty with females” (at [105]);
·The Family Report writer, Mr J, recording that the father “just stormed out of his rooms shaking, when there was no apparent trigger for such an incident” (at [158]);
·The father’s admission to Mr J that “he would throw things when angry” (at [172]).
None of those findings are challenged on this appeal.
Viewed against such material, including admissions against interest by the father himself, the weight that should be given to a self-represented litigant’s demeanour in Court when considering whether or not they suffer from anger management issues, is quintessentially a matter for a trial judge. The failure to give it weight, or advert to it in the course of reasons for decision, is insufficient to, at least on the facts of this case, to properly found any inference that the trial judge was not bringing an impartial mind to bear upon the adjudication of the issues before him.
This aspect of the ground of appeal is not made out.
The trial judge allowed the trial to “run off the rails” thus causing a disadvantage to the father
This contention may be dealt with briefly. It is true that the father’s case had not closed when the mother’s witnesses commenced to give evidence on 6 March 2012. At that time, it appears as though the only remaining witness he intended to call was a Mr T, who was to give evidence about the alleged stalking by the father of someone at a hardware store. However, somewhat curiously, that appears to have worked to the father’s advantage, in that he was able to give evidence in rebuttal of the evidence thus far called by the mother, when the trial next resumed on 12 July 2012.
The reasons for the Court permitting the interposition of witnesses for the mother when the father’s case was still not closed were addressed by the trial judge during the course of the hearing and are not the subject of any discrete appeal. It is true that on 12 July 2012 there was discussion about whether, notwithstanding the fact that neither party’s case had closed, the ICL’s case should commence with a psychiatrist, Dr M, being called to give evidence. However upon the father indicating that he was not then ready to cross-examine Dr M, that proposal was abandoned.
Even if it be the case that some difficulty was caused to the father in conducting his case by virtue of the way in which the trial progressed, that does not afford any reasonable basis to perceive that the trial judge was thereby biased in favour of the mother, or otherwise lacked impartiality. Further, to the extent that this aspect of the ground is a more general complaint of a lack of procedural fairness, we are not persuaded there was any such failure by the trial judge.
This aspect of the ground of appeal has no merit.
The trial judge allowed the mother’s witness, Senior Constable B, to give evidence without any prior affidavit or evidence in chief, presenting a huge disadvantage to the father
It appears from the transcript that, from at least the first day of trial on 5 March 2012, it was common knowledge amongst all of the parties that the mother intended to call evidence from three police officers in support of her case, but that their evidence in chief would be given orally, and not by way of affidavit. It appeared to be common ground that the practice of Queensland Police Officers is not to provide affidavits in proceedings such as these, but to require themselves to be served with a subpoena and to give their evidence orally (Transcript, 5 March 2012, p 29, Transcript, 7 March 2012, p 95). That said, some of the issues that were addressed by their evidence had been apparently raised in documents earlier produced by Queensland Police, pursuant to subpoena issued to it.
Senior Constable B gave evidence on 6 March 2012, the second day of trial. No objection was raised to her giving evidence during the course of the father’s case, or giving her evidence in chief orally (Transcript, 6 March 2012 p 71).
However a difficulty emerged during the course of Constable B’s evidence, in that during her cross-examination, rather than her evidence in chief, she gave potentially important evidence that was not given during her evidence in chief.
At the commencement of the third day of trial on 7 March 2012, counsel for the mother intimated that a further police officer was proposed to give oral evidence in chief by telephone that day. That precipitated the following statement by the trial judge:
HIS HONOUR: What I intend to do at this stage is, because I’m not really happy with the way the case is being conducted – this is a Russell & Close argument. It is one of the most important orders which a Court could be asked to make. That is, that there be a no-contact order. All of this evidence should have been at least in a statement form so that the father here has the opportunity to know what evidence he is to meet. That evidence that came from Senior Constable [B] in the way it did yesterday through cross-examination was just incredible. I would have to start wondering whether there was some sort of bias on her part given that she clearly intensified her statements during cross-examination rather than making those statements when she ought to have been making them in evidence-in-chief. That does not though, rule out the main issue which is that Mr [Blinko] has seen doctors and help and has sought help on numerous occasions stating that he has an anger problem.
So that’s in issue, there’s no doubt about that but I want, if these witnesses are going to be introduced – I want a written statement. I want a typed statement as to what they are going to be saying and I think Mr [Blinko] needs that. I think the ICL needs that. The ICL should not be left in this position to be conducting a case on the basis that it is being conducted. What I intend doing at this stage is changing the order of events. I’m going to have the mother give her evidence. I’m really now at the stage I need to hear her and if I don’t do this there is every opportunity that this matter will not be reached at the end of this week, let alone tomorrow.
His Honour returned to the same theme a little later in the day and said as follows:
HIS HONOUR: Look, this is out of hand. All these witnesses are being produced without any evidence before the court. No one knows what we’re – what to expect. The father does not know what to expect. It is not fair. That’s not, Ms [Blinko], a criticism of you. But people need to know what to expect. I don’t know what to expect. There’s too – it’s too easy to make a mistake on the correct – on the best interest decision. We need evidence and it’s as simple as that. If Dr [M] is continuing with ongoing cases then what should happen, I think, is that the evidence which the mother relies on must be produced. If the – if there are going to be statements of police officers given to the court, then a brief outline given to the court so the court knows what to expect and how relevant it is and then Dr [M] may need to make an observation. But she needs this evidence.
…
It’s the respondent’s role to put that. It devalues the evidence, in my view, in the way it came out. It may well be useful evidence but if it’s not stated forthrightly at the beginning, Mr [Blinko] doesn’t know. He – what chance has he got to answer that?
In fact as it transpired, the police officer whose evidence precipitated these comments, did not give evidence until 11 December 2012, and it appears as though by then his evidence had been condensed to an affidavit and a witness statement, which formed his evidence in chief.
No criticism is advanced under this ground of appeal in relation to the trial judge refusing to permit the mother to call the second police officer on 7 March, nor could there be, in that the trial judge was plainly mindful of potential unfairness to the father if he were ambushed by any unexpected evidence from that witness. Rather the criticism is that in permitting Senior Constable B to give evidence orally, somehow or other the judge was demonstrating bias. That argument cannot be sustained. Particularly:
·The interposition of that witness, and her giving of evidence in chief orally, was not objected to by the father;
·There is no reason to suggest or suspect that the trial judge had any intimation that the evidence to be given by that witness during the course of cross-examination would introduce serious allegations that were not contained within her evidence in chief;
·The trial judge was plainly cognisant of the disadvantage that ensued to the father in the way that evidence came to be before the Court, and as indeed conceded by the father, was somewhat disparaging both of the evidence and of the witness, in consequence.
This aspect of the ground of appeal therefore has no merit.
Under this ground, the father also argued that the trial judge demonstrated bias by refusing to let the father cross-examine a third police witness for the mother, a Sergeant C, which according to the father’s submissions, “would have ameliorated the damage done to his case by the biased testimony of Constable [B].”
Upon being told that Sergeant C was no longer to be called by the mother, on 7 March 2012 the father expressed a desire that “he be called that I might question him…”. The Court made it clear that the father would have a right to cross-examine him if he were giving evidence for a party (Transcript, 7 March 2012, p 132) and that if the father wanted to rely upon his evidence, he could call him as a witness himself (Transcript, 7 March 2012, p 135). At one stage (Transcript, 7 March 2012, p 134) counsel for the ICL intimated as follows:
…But I understand that the father wants to be able to cross-examine him. Now, in order to ensure procedural fairness to the father, perhaps that issue can be dealt with in this way: the Independent Children's Lawyer is prepared to call the police officer for the sole purpose of making him available for cross-examination.
This did not appear to meet with the approval of the Court, in that his Honour thereafter said “[I]f there’s no evidence in chief, I have nothing to consider”.
It was after that exchange that the Court informed the father that he could call Sergeant C himself.
In his written argument the father says that “…the Trial Judge declined leave for the father to summons him as his own witness.” That is simply not correct, on our reading of the transcript. No such leave was ever sought by the father.
This aspect of the ground of appeal has no merit and is not made out.
Also under the cover of this ground the father sought to argue that the trial judge gave too much weight to the evidence of the two police witnesses.
It is true that at [96] to [103] of the Reasons, the trial judge summarised the evidence of the two police witnesses, but thereafter appears to make no further mention of it in his Reasons. His Honour did not identify what, if any, weight he was going to give such material in the course of concluding, as his Honour did, that the father has an anger management issue. We therefore could not conclude, as the father urges, that the trial judge gave that evidence too much weight.
We have already identified at [48] of these reasons the material which was relied upon by the trial judge in support of the conclusion that the father indeed had an anger management issue. The father in contradiction points to the evidence of his general medical practitioner, Dr K, to the effect that in his opinion, the father was happy and stable and had no psychological problems.
The role of an appellate court in matters such as this is well settled. It can only interfere with findings of fact if they were not reasonably open on the evidence. Plainly the findings relevant to the father’s anger were open on the evidence, and the fact that there was contrary evidence which could have been preferred is not to the point.
This aspect of the ground of appeal is not made out. No aspect of ground 1 has been established and it therefore fails entirely.
GROUND 2 and 4
These grounds may conveniently be dealt with together. Ground 2 is as follows:
The trial Judge erred in law by misapplication of Cochrane & Peterson to give credence to [sic] mother’s case, when those principles should have instead helped the father’s case.
Ground 4 provides:
[The trial Judge] erred in law by not considering whether the mother’s beliefs were “irrational” and by his legally flawed finding that the mother had a “real fear” instead of a “genuine belief”.
The reasoning adopted by the trial judge in arriving at the orders which he made were as follows:
·The father has an anger management issue (at [220]);
·That anger management issue is the cause of the mother’s fears of the father (at [220]);
·Those fears were genuine and rational given “the very serious incident with the knife” which, as found by the trial judge comprised “the grabbing of the knife by the father which was either an irrational act, or one in which he was directing a very angry response to the mother at that particular time” (at [220]);
·The mother’s fears would cause her to decompensate if orders were made for the child to spend time with the father, which decompensation would detrimentally affect the “child’s quality of relationship with the mother, her primary carer” (at [221]);
·That fact (described by his Honour as “a risk”) outweighed the primary consideration of the child having the benefit of a meaningful relationship with the father (at [224]);
·The risk to the child was unacceptable, and the no contact order was the only order that the Court could make to “avoid the unacceptable risk” (at [224]);
·Additionally, even if supervised time were ordered, it would impact upon the mother’s capacity to care, possibly lead to a superficial relationship, and inevitably only be interim in nature, all of which were contrary to the child’s best interests (at [224]).
Early in his reasons, the trial judge had referred to Cochrane & Peterson [2008] FamCA 597, a decision of Moore J, including her Honour’s reference to the High Court’s decision in M v M (1988) 166 CLR 69. At [33] his Honour said as follows:
The salient allegation made by the mother is that violence perpetrated by the father upon her, including incidents in the presence of the child, have been at such a level that she is now terrified of him coming into contact with her, and that she would fear for the safety of the child if an order is made for the child to spend time with the father. This case relies on that situation identified by Moore J in Peterson & Cochrane , whereby her parenting capacity would be so affected that it would impact on her capacity and ability as primary carer so as to impinge on the child’s best interests.
Later at [143]-[144] his Honour said:
143.Keeping in mind that the mother’s case is based on risk, and applying what was said in Peterson & Cochrane, the identification of a risk does not mean that a finding of a positive act, such as a threat made, would have to be reached.
144.In my view the emotional risk to the child which is at issue in the mother’s case is that she could not cope with her parenting role if orders were made for the child be [sic] spend time with the father.
His Honour then went on to refer to an earlier unreported decision of the Full Court in Russell & Close (Unreported Full Court, 25 June 1993) and the recent decision of the Full Court in Slater & Light (2013) 48 Fam LR 573.
It may be taken as well established by a line of authorities generally acknowledged to commence with Russell & Close (Unreported Full Court, 25 June 1993) that the following are correct statements of principle:
·If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child;
·If the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent’s belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt. However where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent’s capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the parent;
·Further, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent’s capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child: see Sedgley & Sedgley (1995) FLC 92-623.
The trial judge did not err in the application of those principles to this case. Specifically, he found that the mother’s fear was genuinely held and rationally based, and that the effect upon her of the child spending even supervised time with the father would place the child at an unacceptable risk of harm, found to comprise, or arise from, the mother’s anxiety itself (at [153]).
Much of the father’s argument on this point asserted that s 140 of the Evidence Act 1995 (Cth) required the court to be satisfied to a “very high standard” of the rational basis for the mother’s fears. His Honour found specifically that the knife event of January 2009 was a demonstration of the father’s irrational behaviour or anger management issues. His Honour sufficiently analysed the evidence germane to that finding before so concluding. There is no reason to think that his Honour was not persuaded on the balance of probabilities, even taking into account the somewhat grave nature of the event in question, that it occurred and had the characteristics of either irrationality or anger associated with it.
Ground 2 is not established.
Turning specifically to ground 4, at [164] the trial judge specifically adverted to the father’s case that there is no foundation for the mother’s alleged beliefs, in part because some aspects of them are “completely baseless and irrational.” However at [166] his Honour specifically found that there was a rational foundation to the mother’s beliefs, being the knife incident. At [188] he specifically found that the mother had not exaggerated or lied or invented the occurrences within the relationship of which she gave evidence. Returning to the theme at [220] the trial judge concluded “I do not see that after the very serious incident with the knife that her views of danger to herself or the child could be deemed to be non-genuine or irrational.”
It is simply incorrect to say that the trial judge did not properly consider whether or not the mother’s fears were rationally based. This aspect of the ground must fail.
The remaining aspect is a complaint that the trial judge confused the notion of “genuine belief” with “real fear” when gauging the impact on the mother which the reintroduction of the child to the father would cause. It is true that his Honour used a variety of phrases to describe the mother’s state of mind. However it is plain that no matter what nomenclature was utilised, he was gauging the genuineness of her state of mind, such state of mind being her fear of the father. Whilst it may be desirable if the phrasing used in the authorities of “genuine” belief or fear is uniformly utilised, a failure to do so does not comprise appealable error.
Neither ground 2 nor ground 4 are made out.
GROUND 3 - BALANCE
Ground 3 provides:
The trial Judge made an error of law when he stated he did not have to make a finding that identified the risk. He then made numerous errors of fact and law which led him to make a faulty conclusion as to the nature and degree of risk, and he failed to adequately examine ways to ameliorate risk for the child.
As argued, this ground was advanced on four discrete bases. The first was that contained in the first sentence of the ground, which relates to a passage of the trial transcript, and not any part of the reasons. The second was that his Honour’s reasoning about why the risk he found of the father spending time with the child posed could not be adequately ameliorated, was not sufficiently exposed. We have already dealt with this aspect of ground 3 earlier in these reasons. The third then pointed to nine asserted errors by the trial judge said to lie either in attributing evidence to the wrong witness, or failing to take into account or give sufficient weight to countervailing evidence. Finally the fourth was something of a miscellany of alleged errors of law and fact said to impact upon the ultimate conclusion that the father had an anger management issue. We will deal with those complaints in that order.
Statement re risk
The father relies upon a passage of the transcript in which the trial judge said:
Now, I don’t even have to find that – I don’t have to make a finding which identifies the risk as such. All right? I have to be aware though that if the situation is such that I can say there is a risk, I have to look at how I ameliorate the risk for the child.
Even if that be a wrong statement of principle, it does not appear to be repeated in the reasons. It is not every erroneous statement of law in the course of proceedings that will infect the judgment. It is only those statements of law which explicitly or implicitly support the judgment which may have that effect. Here the reasons for judgment are self-contained. In fact, the trial judge did find a risk to the child and did advert to how he might ameliorate the risk to the child.
This aspect of ground 3 is not established.
Nine evidentiary errors
Turning then to the third aspect of this ground, the father alleges that the findings of risk were flawed by the following errors of the trial judge:
(a)overlooking an explanation given by the father for taking the knife away from the mother in January 2009;
(b)opining that any struggle with a knife is shocking, concluding that the father was to blame for the incident, and overlooking the father’s remorse for a possible mistake;
(c)not taking into account a police report of the event which recited that “both the [father] and the [mother] reported no threatening behaviour”;
(d)misattributing to the father a statement to the effect that he was mystified as to why the mother would meet him after separation if she was afraid, when in fact it was the Family Report writer who so stated. It was said that the fact that it was the Family Report writer should have carried special significance;
(e)incorrectly either finding or inferring that courteous text messages only occurred between the parties after separation when in fact they occurred during the course of the marriage;
(f)suspecting that the mother made an error in allowing the father to have any contact with the child after the events of January 2009;
(g)failing to take into account two months of co-parenting in relation to the child after separation, which only concluded when the mother at the time told her general medical practitioner that she was “angry with the financial situation the father had left her in”;
(h)failing to give weight to the paternal grandfather’s evidence that the mother had emailed him regretting that the marriage had ended when it was going so well and that they were trying to have another baby; and
(i)failing to find that the mother had already planned to move to the Sunshine Coast for reasons other than a fear of the father.
All of these matters were said to impinge upon the finding of alleged risk. However it must be remembered that an appellate Court does not start afresh and re-determine factual matters as if the trial had never proceeded. That is in effect what the father is seeking to agitate here. Rather the role of the Court in an appeal such as this is to determine whether the finding – here of unacceptable risk – was reasonably open on the evidence. So viewed, it can be seen that none of these matters raised by the father under this ground have that character, whether individually or collectively.
The reasoning of the trial judge was as we have set out in [56].
The trial judge made facts of error [sic] in citing the grounds for the father’s alleged anger management problem
Under this sub-ground the father asserted a mix of erroneous factual findings and errors of legal principle. It is convenient to deal with the asserted errors of legal principle first. The first is raised [54] of his outline of submissions, and asserts a “serious error of principle” in the trial judge’s statement during the course of trial that “in my view that is exactly the type of evidence I must examine under the principles of law going to the assessment of whether there is an unacceptable risk to the child.”
At the hearing of the appeal the father was unable to direct us to the transcript reference where that exchange allegedly occurred. However we are prepared to accept that it occurred in the terms asserted. Again however, this error, if it be one, does not appear to have infected the Reasons, or the steps which his Honour undertook in the reasoning process which led to the outcome. This aspect of the ground fails.
The second error of principle was raised by [46] of the father’s outline, and refers to an error on the part of the Court in giving “any weight” to the Family Report writer’s claim that his opinion was based on “abundance of research” because he failed to cite any. It was said that this statement was mere conjecture.
If there was to be some challenge to Mr J’s views based upon this ground, it ought to have been raised with him in cross-examination. It was not. There is no obligation on a professional expert to necessarily specifically cite the relevant publication to which they refer. However their failure to do so may be a factor legitimately considered when determining the weight to be given to their opinion, particularly if, in cross-examination, they cannot identify the relevant publication with any specificity. This is not an error of principle by the trial judge.
Turning then to the asserted errors of fact, it is salient at the outset to repeat that the role of the Court is not to embark upon making factual findings as if the trial had never occurred. The role of the Court, insofar as it may review findings of fact, is to determine whether or not those findings were reasonably open on the evidence.
All of the asserted errors are said to relate to the finding that the father had an alleged anger management problem.
At [28] of these reasons we have referred to the findings by the trial judge which underpinned his conclusion that the father had an anger management issue. None of those findings are directly challenged by this appeal. Necessarily, those findings alone and without more mean that it was reasonably open to the trial judge to conclude that the father had anger management issues.
At [43] of his outline, the father alleged that the trial judge erred in finding that the father’s grabbing the knife in January 2009 was an “act of violence”. The trial judge made this finding at [223]. There was evidence to support a finding that the father’s conduct involving the knife comprised violence, and particularly:
·The father’s concession that before the knife became the focus of the parties’ activity, he had thrown an incense holder at the wall of his office, making a 15 centimetre deep mark in the wall (at [64]);
·That a struggle between the parties occurred after the knife had been grabbed by the father (at [78] and [81]); and
·The father’s inadequate explanation that he took the knife “in a mistaken belief that [the mother] may misuse it in some way” (at [82]).
The finding of violence was reasonably open on the evidence.
At [44] of his outline, the father alleged that the trial judge erred in stating that the father left the expert witness, Mr J’s 2011 interview because of “frustration.” The trial judge made this finding at [158]. The finding accorded with Mr J’s report and oral evidence, and although it is correct that in accepting that material the trial judge did not accept the father’s explanation of it, it was nonetheless reasonably open for him to do so.
At [45] of his outline the father asserted that the trial judge erred in finding that the father’s Medical Board complaint against the mother’s general medical practitioner “was because of some inconsequential hearsay statements”. The trial judge made this finding at Reasons [218]. The father asserted at trial that the general practitioner in question had unlawfully accessed his medical records, and secretly disclosed them to the mother. The trial judge plainly rejected that evidence, and it was open for him to do so.
At [47] of his outline the father asserted that the trial judge erred in “failing to properly consider expert evidence in relation to the withdrawn charges of “stalking” against [the father].” He expanded upon this in the following paragraph, and in doing so correctly noted that in fact the trial judge placed no weight upon the stalking allegations. However the father went on to say that “[h]is Honour failed to consider the positive aspects in respect to the claims being unsubstantiated.” It is difficult to see that there is any positive aspect that arises from a claim of stalking being withdrawn. How it is said to reflect upon the father in a positive way is difficult to discern.
In his outline at [49] the father complained that the trial judge should have accepted Dr M’s testimony that, absent any legitimate basis for the mother’s fear of him, it would therefore necessarily be an irrational belief. However this ground ignores the fact that the trial judge made a finding that the mother’s belief was genuine, and rationally based, which findings were reasonably open to his Honour on the evidence.
At [50] of his outline the father complained that the trial judge should have “noted” the fact that the father had made no attempt to contact the mother even though he had her contact details. A trial judge is not obliged to refer to each and every piece of evidence; further, appellate review is directed towards whether factual findings were reasonably open. That the mother had a rational basis to fear the father was a finding reasonably open to the trial judge given his findings in relation to the events of January 2009.
Paragraph 51 of the father’s outline complained that the trial judge erred in finding that the father’s complaint to the Medical Board in relation to the mother’s general practitioner showed a capacity for retribution against the mother. It was open to the trial judge to find that there was retributive aspect to the father’s dealings in relation to the Medical Board. It was therefore also open to use that conclusion to inform the father’s capacity for retributive behaviour against the mother. In doing so the trial judge did not err.
Paragraphs 52 and 53 of the father’s outline dealt with him having sent the mother a CD of family photos during the course of the hearing. It appears as though the father, and perhaps the ICL, contended that in doing so he may have made an error of judgment, but it was an innocent one, and not indicative of any attempt to intimidate or harass the mother. The trial judge dealt with this matter at [204] to [217] of the reasons. He plainly accepted the evidence of Mr J and Dr F at [206] that the father’s behaviour showed a lack of insight and fed directly into the mother’s belief that the father was stalking her. At [213] the trial judge concluded that sending the CD inevitably must have had the effect of panicking, worrying and concerning the mother, and indeed found that it could only have had that effect.
We are not satisfied that the finding that the sending of the CD during the trial was an act of anger was not reasonably open upon a consideration of all of the material.
At paragraphs 54, 55 and 56 of his outline the father challenged the finding by the trial judge that he had an anger management problem. He specifically says that the trial judge ought to have preferred the evidence of his general medical practitioner, Dr K, to the effect that the father had no psychological problems, and further complained that the trial judge did not accept, or at least act upon, the evidence of Dr M to the effect that even if the father has an anger management problem, she would still recommend supervised contact.
The trial judge was not obliged to accept the general medical practitioner’s evidence. We have already recited the ample material which formed a reasonable basis for the conclusion that the father had anger management issues. That finding was reasonably open on the evidence.
As to the absence of traversing Dr M’s recommendations, we have dealt with this issue sufficiently when considering the adequacy of his Honour’s reasons.
At [57] of his outline the father complained that the trial judge did not give any weight to the father’s submissions that the mother would cope if there was some contact between the child and the father. We have already sufficiently dealt with the absence of adequate consideration of alternatives to “no contact” earlier in these reasons.
At [58] to [60] of his outline the father relied upon, it would seem, the cumulative effect of all of these foregoing alleged errors, which he says made material contributions to the finding of unacceptable risk. However those submissions ignore that the finding that the father poses an unacceptable risk of harm to the child had two substantial components to the reasoning which led to it. The first is that the mother’s beliefs were genuine. The second is that they were rational. There was sufficient material from which those findings can be supported as being reasonably open on the evidence. The fact that there was countervailing material which was not accepted by the trial judge does not permit re-agitation on appeal.
Ground 3 therefore fails except insofar as it challenges the trial judge’s inadequate exposure of reasons.
GROUND 5
Ground 5 provides:
The Court erred in principle by ignoring s 60CC(3)(a) in not seeking the views of the child.
At the conclusion of the trial the child was five years of age. By that stage, the child had not had any experience of the father for more than four years. She had last spent any time with him when she was 11 months of age. There is no reason to think that she would have had any memory of her father, however there is also no reason not to think that she might have some curiosity in relation to her father, particularly given the evidence that when she was two and a half years old she enquired of her mother “if she had a Daddy and asked why she didn’t see him.”
However it is quite another thing to say that the views of the child in relation to any curiosity she may have about the identity of her father should have been obtained by the Court, because inevitably the weight which would be given to any wishes expressed by a five year old child would be slight, if any.
We are not persuaded that there is any merit in ground 5.
CONCLUSION
We are satisfied that the judgment is affected by error in that it fails to properly disclose the reasoning of the trial judge as to why the orders prohibiting the father spending any time, in any manner, or communicating at any time, in any manner whatsoever, with the child were made, as distinct from some other regime of orders which balanced appropriately the amelioration of the risk as found and the benefit of, in this case, a potential future relationship for the child.
The most recent Family Report is dated 20 July 2011, and is now therefore more than three and a half years old. There is no realistic basis upon which we could re-exercise the discretion in those circumstances, and the matter will need to be remitted for further hearing before a judge other than Judge Coates.
COSTS
Although representing himself, the father may have incurred some costs (for example in preparing the appeal books). His appeal succeeds on a question of law. Circumstances are such that each party (including the ICL) should bear their own costs pursuant to s 117(1) of the Act.
We are of the opinion that it is appropriate for a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”) to issue to the father. The mother, not having any costs that could be claimed under the costs appeal fund, will not receive a certificate pursuant to the Costs Act for the appeal.
The ICL submitted that if a new trial was ordered, a certificate issue under s 8 of the Costs Act to all parties for the costs of the new trial. We are of the opinion that it is appropriate to so order.
I certify that the preceding on hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Murphy & Tree JJ) delivered on 23 July 2015.
Associate:
Date: 23 July 2015
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