Bookhurst & Bookhurst
[2010] FamCAFC 26
•3 March 2010
FAMILY COURT OF AUSTRALIA
| BOOKHURST & BOOKHURST | [2010] FamCAFC 26 |
| FAMILY LAW - APPEAL – CHILDREN – SUPERVISION – Whether the trial judge erred in imposing a regime of supervised contact with the father – Where there was a history of family violence – Where the expert said it was important for the children to feel “safe” with the father – No error in implementing a regime of supervision – Appeal dismissed in part FAMILY LAW - APPEAL – CHILDREN – SUPERVISION – Whether the specific terms of the supervision order made were erroneous – Where the trial judge was concerned to provide a mechanism to vary or cease supervision – Where the order provided that the supervision order could be varied if the father provided the mother with a report from a psychiatrist or psychologist that contains an “unqualified opinion” that the father does not nor is it reasonably foreseeable that he will pose a risk to the children – Where the trial judge initiated discussions with counsel about providing a “reassurance” to the mother and the children – Where such discussions took place after the close of evidence and during submissions – Where the specific terms of the order ultimately made were not contemplated – Where further evidence adduced during the appeal indicates that compliance with the terms of the order is impossible by an Australian psychologist or psychiatrist because of ethical considerations – Where the trial judge was not aware of such ethical matters – Where an “unqualified opinion” in the terms described could not be given – Where the method chosen to vary the supervision order was unworkable – Appeal allowed in part FAMILY LAW - APPEAL – CHILDREN – DISCRETIONARY MATTERS – Whether the trial judge erred in allocating the mother sole parental responsibility with respect to the health, culture and religion of the children – Whether the trial judge erred in his treatment of the evidence as to the children’s views – Whether the trial judge erred in his treatment of the evidence of the expert – No error demonstrated |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828 Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716 Harrison v Woollard (1995) 18 FamLR 788; H v W (1995) FLC 92-598 House v The King (1936) 55 CLR 499 |
| APPELLANT: | Mr Bookhurst |
| RESPONDENT: | Ms Bookhurst |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of New South Wales |
| FILE NUMBER: | SYC | 1832 | of | 2009 |
| APPEAL NUMBER: | EA | 19 | of | 2009 |
| DATE DELIVERED: | 3 March 2010 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, May, O’Ryan JJ |
| HEARING DATE: | 31 August 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 January 2009 |
| LOWER COURT MNC: | [2009] FamCA 6 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Wheelhouse SC |
| SOLICITOR FOR THE APPELLANT: | Slade Manwaring Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr North SC |
| SOLICITOR FOR THE RESPONDENT: | Karras Partners Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Levy |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of New South Wales |
Orders
The appeal is allowed in part.
Paragraphs 4 and 5 of the orders made 16 January 2009 be set aside.
The parties’ applications for parenting orders be remitted for re-hearing.
Until the re-hearing of the applications or further interim orders the father spend time with the children as provided in order 4 of the orders made 16 January 2009 or at such other times and conditions as the parties may agree.
The husband file written submissions in relation to:
(a) the costs of the appeal; and
(b)the reserved costs including those orders made on 25 February, 20 March, 28 April and 26 June 2009.
Such submissions are to be filed within 28 days. Upon receipt of those submissions the wife and the Independent Children’s Lawyer file submissions in reply within 21 days. Upon receipt of those submissions the husband file any submissions in reply within 14 days.
IT IS NOTED that publication of this judgment under the pseudonym Bookhurst & Bookhurst is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 19 of 2009
File Number: SYC 1832 of 2009
| Mr Bookhurst |
Appellant
And
| Ms Bookhurst |
Respondent
REASONS FOR JUDGMENT
The appeal by the father is in relation to parenting orders made by Rose J on 16 January 2009. The parties’ three children are L, who is twelve, D, who is ten, and S, who is nine years of age.
The parenting orders provide for equal shared parental responsibility save and except that the mother has sole responsibility in relation to the “health, religious and cultural upbringing of the children”.
The orders also provide for the children to live with the mother, an arrangement not contested during the trial or on appeal.
Order 4 institutes a regime for the children to spend supervised time with the father during school holidays and on alternate weekends, and unsupervised time during the school term on Wednesdays and alternate Saturdays during the day. Somewhat unusually, the orders in paragraph 5 provide for substitution of unsupervised time in lieu of the previously described supervised periods, provided the father furnish the mother with a report from a psychiatrist or psychologist which states, inter alia, an unqualified opinion that the father:
does not nor is it reasonably forseeable that he will pose a risk to the three children or any of them of him of engaging in abusive behaviour, physical or emotional to or in the presence or hearing of the children or any of them regardless of the period of time including overnight periods that may be spent by such children or child in the care of the father.
(Para 5(d) orders)
The father appeals from orders numbered 2 to 8, 10, 11 and 15. Emphasis was placed in the appeal on the orders granting the mother sole parental responsibility in relation to the health, religious and cultural upbringing of the children and the requirement for supervised time with the children including order 5, being the order which required the provision of a psychiatrist or psychologist’s report in order for the father to have unsupervised time with the children.
Background
The factual background to these proceedings is not complicated. In his reasons for judgment, Rose J outlined the relevant history and none of the findings of fact were challenged on appeal. He observed:
12.The parties cohabited for a period of approximately ten years which commenced in June 1996 which largely continued until they finally separated on 23 August 2006. They have lived separate and apart from each other continuously since that time. There had been a previous period of separation of approximately six or eight weeks in July and August 2003.
13.The parties married [in] August 1996 and the marriage continues to subsist, absent evidence or information furnished to me by counsel to the contrary.
14.The mother is 48 years of age and is engaged on a part-time basis as an occupational therapist.
15.The father is 47 years of age. [He practices a profession].
Applications in the appeal
At the commencement of the appeal hearing, counsel for the father made submissions in relation to two applications.
First, by reference to the application filed 26 August 2009 he applied for leave to file an amended notice of appeal. On 26 August 2009, Mr Duncan Holmes, solicitor for the father, filed an affidavit intended to support this application. Mr Holmes deposed in paragraph 4 of that affidavit that:
4.Subsequent to the drafting of the Notice of Appeal, the full transcript has now become available as a result of which the Appellant now seeks leave to rely upon the Amended Notice of Appeal. The amendments are made to ensure that the grounds of appeal correspond to the Appellant’s written Submissions. Those Submissions were drawn subsequent to the transcript becoming available.
Mr Holmes also listed the key differences between the original seventeen grounds of appeal and the twenty grounds contained within the amended notice of appeal. These differences amount to a clarification and elaboration of the original grounds and the inclusion of three new grounds of appeal.
The application was opposed by counsel for the mother and the Independent Children’s Lawyer.
We indicated during the appeal hearing that we would allow the application and accept the amended notice of appeal. Leave was given to the respondents to file further written submissions in addition to their oral submissions and they have done so. In our view, this overcomes any prejudice to them resulting from the late filing of the amended notice of appeal.
The second application was contained in an application filed 11 June 2009, to adduce further evidence pursuant to section 93A(2) of the Family Law Act1975 (Cth) (“the Act”). The proposed evidence is in an affidavit sworn by Dr W, a consultant child psychiatrist. Annexed to this affidavit filed 11 June 2009 was a report by Dr W about “whether a report or opinion can be ever given by a competent or experienced psychiatrist or psychologist in the terms set out in Order 5(d) of the orders of Rose J”. It was submitted that this evidence was not given during the trial because the form of the order was “not foreshadowed by his Honour nor anticipated by the applicant”.
As this application is directly relevant to one of the complaints raised in the grounds of appeal, we will deal with it when we consider that aspect of the appeal.
An order was made on 28 April 2009 that the hearing of the appeal be expedited. The judgment of Boland J reveals that this order was made primarily because the two persons nominated in the orders to supervise the children were not available. The father’s brother was then terminally ill and the father’s former girlfriend, Ms Z, had given evidence at trial that she was not prepared to be a supervisor.
Grounds of appeal
As we have already mentioned, the amended notice of appeal contains some twenty grounds. However, as acknowledged by counsel for the father in both written and oral submissions, those grounds can be conveniently grouped into five discrete complaints. These were outlined in some detail in his oral submissions by reference to the written plan he provided us in relation to how he would make submissions. This summary is, in addition, taken from the transcript of the hearing before us and in essence was:
1)The trial judge failed to have regard to the views of the children;
2)The learned trial judge erred in imposing a supervision regime;
3)The learned trial judge denied the father natural justice in not allowing him to adduce psychiatric evidence from another doctor and erred in making an order requiring the father to obtain a report, including an unqualified opinion, from a treating psychiatrist or psychologist before he could enjoy unsupervised time with the children on weekends and during the school holidays; and
4)The manner in which the trial judge dealt with the primary consideration of meaningful relationship between the children and the father was in error; and
5)The trial judge failed to have regard to relevant evidence.
In written submissions, counsel elaborated on the first three complaints listed above as follows:
a.The failure of the Court to have regard to the views of the children, in particular the failure of the Court to have regard to evidence of a demonstrative and affectionate relationship between the children and the father;
b.The orders of the Court did not reflect the proposed orders of the child representative nor the recommendations of the Single Expert. In addition the order for supervision (Order 4) in unmanageable in that;
(i)The orders for supervision are not based on the recommendations of the Single Expert nor the independent children’s representative;
(ii)One of the persons appointed as supervisor for the children’s time with their father stated she did not wish to be appointed for that purpose (Order 4 (c)(i));
(iii)The other person appointed as supervisor for the children’s time with their father lives at a distance of 500km from the father and the children and is terminally ill with cancer (Order 4 (c)(i));
c.An order for psychiatric/psychological treatment of the father was made, without prior discussion with the father, committing him to a regime of psychiatric treatment (Order 5). In particular Order 5(d) requires the treating psychiatrist/psychologist to provide an unqualified opinion. It is unlikely that any professional could provide the opinion required. There was no evidence at the trial that established that such an opinion could be obtained without qualification therefore the order could never be satisfied. This has the consequence that the order by its practical effect means the Appellant could never see the children overnight without supervision. In addition, the treatment order (5(d)) has been imposed despite the evidence of the Single Expert that the father’s condition may be extremely difficult to modify and treatment would take years but that “formal supervision experiences can only survive on the short term”. (footnotes omitted, original emphasis)
It would seem to us that the second and third complaints (b & c) relate to a single issue, being the supervision orders made by Rose J. We will deal with them together.
Reasons for judgment
Rose J provided extensive reasons for judgment. It is unnecessary for us to summarise and repeat them here in detail. Rather, we shall extract those portions of the reasons which provide some background to this complicated appeal. We will refer in more detail to his reasons in our consideration of the merits of the father’s appeal.
Having set out the factual background, Rose J briefly recounted the procedural history of the matter. As only some of this background is relevant to the appeal we will refer to it only in part.
On 15 October 2007, in accordance with the then Practice Directions, the first day of the hearing was completed. Associate Professor Q was appointed the single expert and orders were made for the preparation of a report by her to deal with the matters listed in a minute of order signed by the parties. That report was released on 12 December 2007.
On 22 February 2008, Rose J made procedural orders and outlined the “issues for determination”. Those issues can be summarised as:
· The views of the children;
· The nature of the relationship between the children, their parents and other parties;
· Family violence;
· The capacity of the parties to provide for the physical and emotional needs of the children;
· The parental attitude of the parties; and
· The likely effect upon the children of living or spending greater periods of time with the father.
Of importance in the appeal are the orders made by the trial Judge restricting the filing of material which were in the following terms:
(1)That no affidavit be filed by a party to the proceedings without leave of the Court.
(2)That any affidavit filed and served with the leave of the Court only address the “specific issues” permitted by the Court order granting such leave.
(3)That any affidavit filed pursuant to these Orders be in a format where each “specific issue” appears as a separate heading and the facts the witness wishes to rely upon in relation to that issue appear immediately thereunder.
(4)That no witness statement be served on a party without leave of the Court.
(5)That any witness statement served with the leave of the Court only address the “specific issues” permitted by the Court order granting leave to serve the witness statement.
(6)That any witness statement served pursuant to these orders be in a format where each “specific issue” about which the statement is permitted to provide information, appear as a separate heading and the facts the witness wishes to rely upon in relation to that issue appear immediately thereunder.
On 1 May 2008, Rose J ordered that Professor Q provide a supplementary report to address the “impact of the diagnosis provided by her of the father’s mental state in relation to parenting issues”. He also dismissed the father’s application to adduce further evidence, being from another psychiatrist, Dr G. The dismissal of this application is of some importance in the appeal, as will become apparent later. It is clear from the judgment that the trial Judge was aware of the difficulties as he said:
11.Limited expert evidence was adduced by way of correspondence only in relation to a diagnosis of the father provided by his treating psychiatrist [Dr M] which is different to that given by [Associate Professor Q]. That correspondence, which is contained in Exhibit 1 was admitted without objection. Leave was not sought to call [Dr M] to give evidence by way of affidavit and/or orally. In that regard senior counsel for the father submitted that the father was “precluded” from calling such evidence. As I pointed out to senior counsel that submission was incorrect. It was apparent to me that senior counsel may not have been accurately instructed. On 1 May 2008 I dismissed an application made on behalf of the father that he have leave to adduce evidence from another psychiatrist, [Dr G]. The sole ground relied upon was Rule 15.49(2)(c) in that there was a “special reason” for seeking to adduce such evidence. The case for the father on that occasion was that [Associate Professor Q] was biased against the father. However, no application was made on that occasion or since by the father for leave to adduce evidence from another expert witness relying on the different ground in Rule 15.49(2)(a).
In his reasons for judgment Rose J considered the matters listed under section 60CC of the Act, under similar headings to the “issues for determination” previously identified in February 2008.
On the issue of family violence, his Honour first considered the definition of “family violence” within the Act and the statutory interpretation of a “reasonable person” referred to in that definition. After taking guidance from legislative instruments and case law, his Honour concluded at paragraph 61:
[F]or the purpose of the definition of “family violence” the “reasonable person” is a person of ordinary prudence and intelligence who would have the fear or apprehension in the circumstances of the person who is alleged to have it in a particular case. In this case, it is the mother due to the subsequent findings made by me.
Rose J then comprehensively recorded (between paragraphs 64 and 110) the allegations of family violence made by the mother. Some were admitted by the father and others were denied. Some of the incidents of violence, although directed towards the mother, involved the children or occurred whilst they were close by. We reproduce below some examples of the sorts of incidents referred to by his Honour:
67.On 31 December 1997, whist the parties were walking in [V] to observe the New Year’s Eve fireworks, the father was holding [L], then a baby in a carry-pouch on his chest. A teenager bumped into the father who thereupon ran after the teenager whilst still continuing to hold the baby in the pouch. Upon returning he said to the mother “I hit him – his teeth will be sore because my fist made contact with him.” The father admits that he assaulted that teenager as alleged. He stated that he did so as the teenager forcefully bumped into him, apparently intoxicated and the child could have been injured. The father does not deny that his violent reaction occurred whilst he was holding the baby. Implicitly he gave no thought to his conduct endangering the baby’s safety.
…
73.One morning in about September 2000, the mother alleges that the father stood naked in the kitchen, held a carving knife to his throat and then said to the mother in an agitated manner “Do you want the children to have a father – Yes or no?”. The two eldest children were playing close by in another room. The father admits the substance of the allegation of his conduct and claims that nothing happened following that incident.
…
79.In about 2003, the mother complemented [sic] the father in relation to his painting of a front fence and asked him how he was going to paint the base as it appeared difficult. The father took her comments as being offensive, commenced to shout at her and the mother said to him that he was “paranoid”. The mother entered the family room. The father then grabbed the mother from behind, threw her backwards onto the lounge and knelt astride her whilst gripping her wrists. The children were present. They were upset. The father said to her “Don’t you ever call me paranoid again. They said my mother was paranoid and they killed her.” The mother claims that she suffered marks on her wrist and bruising. The father denied the physical violence or that the children were present.
…
95.The mother further alleges that in 2005 the she said to [D] implicitly in the father’s hearing “If you get married and have children you will be happy in your life.” Upon the mother entering the bedroom the father appeared and said to her angrily “That if you ever tell [D] that getting married and having children will make him happy I will kill you and all of your family.” The mother claims that she froze in fear.
96.The father denies the allegations by the mother referred to in the last paragraph. He states that he had said to the mother in the car “bitterly” that he hoped that their sons never had to go through what he had gone through.
97.The mother alleges that the father has caused the children to be fearful of him. The mother claims that in about 2005 that the father said to her that “I blew a head gasket with [L].” The father denies that he himself has referred to his own episodes of rage or anger as “going ballistic”. The father concedes the scale of his reaction at times particularly on an occasion when he was angry with [L], although he says that he did not scream and shout at him when the child could not find his jumper, that upon provocation the father’s scale of reaction is his responsibility.
…
99.The father admits that on 11 October 2006 upon arriving with his brother, [Mr P Bookhurst], to collect the three children he said to the mother “with heat and venom” that “You are a fucking monster. You are selfish. I wish I had never met you. You are a despicable shit.” The mother claims that this incident was heard by the three children and by the father’s brother. [L] and [S] were upset and [V] went to the car. The father claims that the children were out of view. He does not deny that they heard him in all likelihood. He admits that his brother was present as he said to him “Don’t be fooled by appearances. She has the blackest heart imaginable.”
100.The father also admits that on the last mentioned occasion he said to the mother “I hope you contract an incurable disease and die. I hope you burn. I wish I’d never met you. You are a monster.” The father claims that he was provoked as he was being deprived of contact with the three children and otherwise had contact with them at the mother’s whim.
…
108.The mother alleges that generally during the marriage, the father demonstrated a volatile and unstable temperament and that she developed submissive behaviour to avoid any situation which might provoke his anger and violence. The mother claims that “we” implicitly herself and one or more of the three children “lived our family life in constant fear that there was always the trigger of provocation” from unintended word, action or lack thereof, or facial expression, or mention of someone who the father disliked. On the other hand the mother states in her primary affidavit that there were many happy and enjoyable times for the family.
109.There is evidence of the father’s continued verbal and written abuse of the mother during last year notwithstanding the pending parenting proceedings between them. The evidence for the mother is that during May 2008 during the course of a telephone conversation between the parties relating to matters affecting the children, the father lost his temper and shouted to the mother “you filthy lying animal, you filthy vermin.” [L] who was next to the mother at the time overheard the father’s remarks.
Having recorded the parties’ evidence, Rose J then described in detail the evidence of Professor Q. The judge’s treatment of the evidence of the expert is an issue raised by the father on appeal.
Professor Q provided two reports, the first on 12 December 2007 (trial exhibit 3) and the second, 10 July 2008 (trial exhibit 4). Professor Q provided her opinion on both the mother and the father, which was recorded by the trial judge thus:
112. …[Associate Professor Q] referred to history given by the mother of the father being “volatile, angry and threatening”. Whilst recognising that she did not have independent information in that regard, [Associate Professor Q] expressed the view “that the presentation of the children tends to confirm that this has been the case.” Consequently [Associate Professor Q] considered “there is reason to be concerned about [Mr Bookhurst’s] volatility.” [Associate Professor Q] gave her diagnosis of the mother as a person who “had some post-traumatic features which is often the case in a relationship in which there is violence.”
113.With regard to the father, [Associate Professor Q] provided diagnosis that she defended psychologically against his problematic childhood “by developing a narcissistic defence (meaning an attitude of grandiosity that serves to defend against feelings of rejection, of lack of worth)”. [Associate Professor Q] proceeded to then express the opinion that the father “has personality disturbance with marked narcissistic borderline traits and some paranoid thinking.”
114.In Exhibit 4, [Associate Professor Q] has set out in considerable detail the information which led her to the diagnosis to which I have referred otherwise set out in Exhibit 3.
Professor Q was cross-examined at some length by counsel during the trial. Relevant to the appeal before us is the manner in which the trial judge assessed the validity of Professor Q’s diagnosis of the father.
During 2008 the father consulted a psychiatrist, Dr M. As is clear from the reasons, Dr M’s diagnosis of the father was significantly different to that of Professor Q. However, the trial judge preferred the evidence of Professor Q for the following reasons:
117.[Associate Professor Q] stated that in relation to her diagnosis of the father suffering from a borderline personally disorder, if there was a dispute between the treating clinician and the forensic assessor in relation to the diagnosis, then there may be important reasons to consider that the clinician has a better view of the individual and a longer-term understanding of those reasons. In that regard, [Associate Professor Q] conceded that should the clinician have seen the person concerned over a long period of time, then the clinician may have the longer view of the person concerned rather than the forensic person who has only seen the individual once or twice. In regard to what is meant by “a long period of time” [Associate Professor Q] stated that it would represent a person observed regularly by the clinician over a period of a year or more.
118.[Associate Professor Q] also agreed that she was at a disadvantage compared to a physician who has worked with the family for a long period of time.
119.[Associate Professor Q] agreed that should the father have exhibited a sense of his relevant behavioural features then he is making progress.
120.There is no dispute that the father has been consulting [Dr M], Psychiatrist during 2008. I accept the father’s evidence that he first consulted [Dr M] on 15 April 2008 and had consequently weekly consultations with him until 3 June 2008. The father recommenced weekly consultations with [Dr M] from 25 August 2008. Exhibit 21 contains copies of brief reports dated 21 October 2008 and 10 November 2008 from [Dr M] to the father’s general practitioner. In the first of those reports, [Dr M] provided a diagnosis of the father as suffering “from an adjustment disorder with anxiety and depressive features secondary to ongoing Family Law Court proceedings.” He prescribed Vallium [sic] and Normiston for the father. Weekly consultations were taking place “for supportive cognitive behavioural therapy.”
121.In [Dr M’s] second brief report was the opinion that the father did not require regular medication at that time. He also offered the opinion in relation to the father “I do not see that the adverse effects of stress preclude him from caring for his children; In fact, I believe it is in the best interest of his children and [the father] that they have regular contact.” There was an absence of evidence of the history that [Dr M] had taken from the father. [Dr M’s] clinical notes were not adduced in evidence. Leave was not sought to call [Dr M] to give evidence in relation to his diagnosis of the father’s mental state in comparison to that provided by [Associate Professor Q]. As referred to earlier in this Judgment, senior counsel for the father informed me that he considered that the father was “precluded” from taking that step. I explained to him that he was under a misapprehension in that regard. I have set out the relevant material in that respect in paragraph 11 hereof. A subsequent application for leave to be granted to call [Dr M] was not made.
122.I accept the evidence of [Associate Professor Q] in relation to her diagnosis of the father. It was provided in a detailed fashion and explained at some length in her oral evidence with appropriate acknowledgment of the progress that the father may be making or potentially can make in therapy. I do not accept the contrary diagnosis provided by [Dr M] as it was unable to be tested. In addition, [Dr M] had not been the father’s treating psychiatrist for the lengthy period which [Associate Professor Q] considered would have given him priority in his diagnosis compared to hers. (emphasis added)
It was necessary for Rose J to deal with issues of credit arising from the differing evidence of the parties in relation to the issue of family violence. He preferred the evidence of the mother to that of the father wherever “that evidence is in conflict”. The trial judge said:
125.I am satisfied that the mother is a witness of truth having regard to the consistency and the substance of her evidence and also relying on my observation of her answers and the manner in which she gave them during the course of strong cross-examination by senior counsel for the father. I accept her evidence of explanation for failing to give DOCS officers the full and accurate version of the father’s violent conduct. I also accept her evidence of striving to preserve the marriage and arranging an intimate anniversary celebration shortly prior to the separation despite such conduct.
126.So far as the evidence of the father is concerned in relation to disputed allegations of fact, I have taken into account the admission that he has made of violent behaviour, shouting and tirades directed to the mother and his longstanding difficulties over many years in controlling his outbursts of anger, his recognition of the need to have professional assistance to improve his control over his impulsive poor behaviour in that regard, his continuation of verbal and written abuse of the mother last year, notwithstanding that at the time he had been consulting with a psychiatrist. These proceedings were of course pending last year and obviously that did not result in the father being able to refrain from continuation of his abusive conduct to the mother.
Notwithstanding his preference for the mother’s evidence, the judge considered that the different evidence was “more a reflection on the father’s part of perception, or preferred reconstruction of events, rather than dishonesty.” (Reasons, [127])
Rose J also considered the capacity of the parties to provide for the needs of the children. In this respect, his Honour acknowledged that there was no issue that the mother “had the capacity to provide for the physical and intellectual needs” of the children and he accepted that “the mother has been motivated at all times to ensure that the three children are protected from the effect of the father’s temperamental shortcomings”.
In relation to the father, the judge noted that there was “no dispute that [the father] provides for the daily physical needs of the three children”. Rather, it was his capacity to provide for their emotional needs that became an issue during the trial. In relation to this issue, Rose J referred extensively to the evidence of Professor Q:
133.The capacity of the father in that respect must be considered in the light of the emotional state of the three children. In Exhibit 3, [Associate Professor Q] expressed the opinion that the three children were affected by anxiety, fear and depression. [Associate Professor Q] further opined that:-
“Both boys are quite depressed and anxious about these issues and [S] is clearly very anxious and her drawings have a depressive quality. [D’s] nightmares are of concern and suggest that he has been an anxious child since very young. It seems very likely that this is related to experiencing anger in the home.”
134.In Exhibit 4, [Associate Professor Q] concluded that she had concern “that [L] is so distressed and that he appeared to be clinically depressed. The impression was that [D] was equally depressed but he tends to express this in a very irritable and short tempered way and he feels that nobody can do anything about the situation anyway. [S] was clearly very reluctant to say anything.”
135.During the course of cross-examination by senior counsel for the father, the issues were raised regarding the absence from Exhibit 3 and 4 of a clinical diagnosis of the three children in accordance with DSM IV and in particular a diagnosis of the three children suffering from separation anxiety disorder brought about by their separation from the father post separation of the parties.
136.During the course of her oral evidence, [Associate Professor Q] stated that there is no doubt that the three children “are troubled and they’re troubled because of the current situation and I don’t think it’s possible to extract one element and say that is the cause because they have got to deal with the break-up of the family. They’re no longer living with their father. There is ongoing conflict between their parents. Their fears that they have expressed about their father’s anger, so I don’t think that you can take one of those facts and say that is the sole cause of their disturbance, but they have, like children going through a very difficult divorce, a lot of things to cope with.” [Associate Professor Q] emphasised that the three children like the father and have a wish to be with him and “yet they have some fearfulness as well.”
137.[Associate Professor Q] expressed the view that she has provided focus on the father’s borderline personality disorder “because that’s what has the most significance in terms of the welfare of the children.” [Associate Professor Q] further gave the opinion that the latter factor “has the most significance because it poses the most serious threat to their stability and wellbeing.”
138.[Associate Professor Q] stated that the three children were at risk because of their possible genetic predisposition to a disorder and environmental factors in addition.
139.It was implicit that the latter included a number of matters and that the separation of the parties was not the major issue for the three children. With regard to the contrast of the emotional state of the three children prior to separation and since, she concluded that the three children were “feeling fearful when they’re spending time with their father without their mother present and I think that we can probably say that we know that the father is not functioning as well and that there is reason for them to be fearful.” [Associate Professor Q] referred to symptoms of the three children suggesting traumatisation.
140.[Associate Professor Q] accepted that technically one could include the three children as suffering a separation anxiety disorder and that significant anxiety or trauma in childhood will predispose a child in that manner. The separation of the family unit, [Associate Professor Q] considered as having been major problem for the three children. Whilst restricted access to the father was considered by [Associate Professor Q] to being a contributing factor to the anxiety experienced by the three children, she was of the view that it was not “the major concern.”
141.With regard to the position of the three children by way of contrast prior to separation of the parties and since and taking into account the allegations of domestic violence in the former period, [Associate Professor Q] stated “it is possible that the children were buffered from their father’s anger by the presence of the mother and that may have been an important factor in them not being asymptomatic during that period. And the situation now is when they spend time with their father the mother is not there or not in the background as a kind of buffering mechanism, and I also think that the whole process of separation probably has exacerbated the father’s lack of control of his feeling as well.”
142.With regard to her expert opinion not being expressed in her reports with DSM particularity, [Associate Professor Q] stated that in her view “the court is not supported by DSM precision with children as much as it is assisted by understanding the nature of the relationship between the child and the parents and the capacity of the parents to provide for the children.” [Associate Professor Q] explained that she did not follow what had been put to her as “rigorous current psychiatric approaches to ascertainment of anxiety disorders in children” as in her view that was not what is required by the terms of reference for the Family Report. The report is concerned with the matters vastly outlined by her including a family relationship, attachment patterns, the nature of the relationship with the parents, the parents’ parenting capacity and their mental status.
143.I accept the evidence of [Associate Professor Q] in relation to the emotional state of the three children and the relevant factors in that regard. I was impressed that her evidence was given in a considered detailed fashion with appropriate expansion and explanation.
144.I find that the father has a significantly qualified capacity to provide for the emotional needs of the three children due to being affected by the psychiatric diagnosis of him provided by [Associate Professor Q] and the impact on his parenting referred to in Exhibit 4 as “the borderline features of impulsivity, affective instability, and anger impairs the ability to parent effectively and may predispose to violent outbursts to partner and/or children.” Those features also include what [Associate Professor Q] has described as “the narcissistic feature of lack of empathy is most damaging in terms of parenting young children with a capacity to respond empathetically and be attuned to the children’s needs and feelings is critical.” (emphasis added)
Under the heading “Conclusion”, Rose J summarised the proposals of the mother, the father and the Independent Children’s Lawyer. He then summarised his findings and considered what orders were in the best interests of the children. We set out below at some length his reasons in this respect:
163.With regard to periods of time that the three children should be able to spend with the father consistent with their best interests, I have determined that those periods will, to a significant degree, reflect part of the substance sought by the parties and the independent children’s lawyer. I have also determined that it is in the best interests of the three children that such periods of time which do not include overnight with the father will be unsupervised, but that so far as overnight periods are concerned, supervision will be required until such time as the father provides to the mother a report from a therapist which contains certain matters to which I will subsequently refer. …
…
170.As is apparent from Exhibit 11, the father himself has requested that I note that he has received and accepted advice from his psychiatrist and that he undergo family therapy. The mother for her part does not consent to take part in such therapy nor does she consent to the children or any of them taking part. The children have been receiving professional assistance from a psychologist and I have every reason to believe that the mother will continue to devote herself to their wellbeing, including continuing to ensure that they have such further consultations as she may be advised. The most important adult who needs therapy is the father.
171.Whilst it is a positive step that the father has taken, it still leaves open certain practical issues. They include the mother being informed that such therapy has actually occurred and the progress that therapy for the father has achieved, as well as of course an improvement in the father’s emotional health as a result of therapy having reached the stage that there can no longer be a reasonable basis for concluding that he is, or will be, a risk to the children of abusive behaviour. I consider that it is only reasonable that the mother be placed in a position where she receives a written professional report from the therapist who the father proposes to consult which satisfactorily deals with all of those matters. I have accepted that the mother, being a parent who is dedicated to the best interests of the children, has at all times had to deal with the difficulties of assisting the children in maintaining a loving relationship with their father and yet have the worry of their safety based upon her own direct experiences of the father’s behaviour over a long period of time.
172.Consequently, I have determined that an order will be made which provides for the father to have unsupervised overnight periods of time with the children upon him providing to the mother a report from his therapist which outlines the nature and extent of the therapeutic treatment provided to the father and the therapist’s unqualified opinion that the father does not, nor is it reasonably foreseeable that he will, pose a risk to the 3 children or any of them of engaging in abusive behaviour. The concept of reasonable foreseeability is well known in the law and has been applied to professionals. That is made clear in the High Court’s judgment in Wyong Shire Council v Shirt. (footnotes omitted)
Appellate principles
This is an appeal from a discretionary decision. The law in this respect is well settled. In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said at 504-5:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Submissions
As we have previously indicated, the twenty grounds of appeal contained within the amended notice of appeal can be immediately grouped into five discrete issues. There are then subsets of those issues as described in the written submissions of the appellant.
We will deal first with grounds directed to the imposition of the supervision regime and order 5. It is our view that this part of the appeal has the most substance.
The supervision regime and its imposition
It is most useful to first consider whether Rose J ought to have imposed a regime of supervised contact with the father prior to considering the submissions made in relation to order 5. This issue was raised in grounds 8, 9 and 10 of the amended notice of appeal. We will then consider the manner in which his Honour ordered that such supervision cease, being order 5.
The father complains that Rose J erred in making the supervision order because it was an elevation from the recommendation of Professor Q that someone be “present” when the children were with the father, it was against the weight of the evidence, and his Honour did not give adequate reasons for making such an order.
Counsel for the father submitted that Rose J had “failed to distinguish” between Professor Q’s reference to interim supervision in the July 2008 Report and her oral evidence at trial.
In the July 2008 Report, Professor Q said:
I communicated to the ICL that I had made a notification and that was of the view that the father’s contact with the children should be supervised until such time as the Court makes a determination. Possibly supervision could be provided by [the father’s partner]… if she were able to make appropriate undertakings.
During cross-examination, Professor Q stated that during time spent with the father, “if there was … some other adult that is involved then I think that provides a safe situation” for the children. She had previously stated that “the problem is making sure that [the children] feel safe” when they are with their father.
Counsel for the father further submitted that his Honour erred in making the supervision order in relation to the school holidays in circumstances where there was no requirement for supervision for day time spent by the children with their father, and where there had been no evidence at trial that the children were at a greater risk at night time.
Rose J explained his reasons for making the supervision order at paragraphs 163 to 169 of his reasons and we repeat them here:
163.With regard to periods of time that the three children should be able to spend with the father consistent with their best interests, I have determined that those periods will, to a significant degree, reflect part of the substance sought by the parties and the independent children’s lawyer. I have also determined that it is in the best interests of the three children that such periods of time which do not include overnight with the father will be unsupervised, but that so far as overnight periods are concerned, supervision will be required until such time as the father provides to the mother a report from a therapist which contains certain matters to which I will subsequently refer. My reasons are as follows.
164.I have made findings in relation to the father’s violent behaviour to the mother including assaults, the apprehension of violence and the emotional abuse that he has directed towards her both prior and subsequent to the separation of the parties. I accept the evidence of [Associate Professor Q] that unfortunately the father is “a troubled” man. He has a history of serious anger over many years and has demonstrated a lack of ability to avoid vitriolic abuse of the mother for much of their relationship, including during last year.
165.I accept the evidence of [Associate Professor Q] that so far as the relationship between the children and the father is concerned in the context of the father’s emotional health issues “the most important thing is how does the mental disorder impact on the children because some people can have quite serious mental disorder but it is not impacting necessarily on the child. That’s the important thing. In this case I think the risk to the children is uncontained emotional volatility and sometimes physical, of course, but most particularly angry emotional outbursts. That needs to be contained. But the children have fundamentally a very strong and significant attachment and that needs to be sustained.”
166.[Associate Professor Q] also emphasised and I accept that “safety is the first requirement. The safety and then quality, yes. Quality is much more important than quantity in terms of sustaining an attachment relationship.” Subsequently, [Associate Professor Q] also stated “if there is no possibility in the regimen of contact for the children to have some good experiences with their father then there isn’t much point to it, no.”
167.I have made findings as to the strong and positive aspects of the relationship that the three children have with the father. That needs to be sustained in circumstances in which they are likely to be safe Consideration needs to be given as to how to deal with the stress of the father’s “emotional volatility” including his anger which he has demonstrated he cannot always control, whether directed to the children or not, including but not limited to derogatory comments to the mother which may arise in the course of a telephone conversation or, if they are physically present at the same place such as the “contact” changeover or, perhaps on public occasions. The difficulty on the evidence before me is being able to predict circumstances in which the father may be in a mood which gives rise to such negative behaviour by him.
168.I accept the evidence of [Associate Professor Q] that the longer the period of time that the three children spend with the father, the more likelihood there is of those unfortunate aspects of his behaviour being directed towards them should he have feelings of frustration or annoyance in coping with them.
169.To the father’s credit he has stated in his evidence that he recognises that he has had a longstanding “anger” problem. There is no doubt that is correct. It has existed for many years and cannot be sheeted home to the stressors of the pending litigation between the parties or indeed their relationship or aspects of the marriage relationship. His difficulties in that regard have been exacerbated by consumption of alcohol and other substances such as Nicorettes. The fact that the father has now acknowledged that he has had these difficulties and has sought and continued receiving psychiatric treatment since June 2008, provides some confidence that he is likely to be able to care for the children on an unsupervised basis during the day. An overnight period raises the potential problems alluded to by [Associate Professor Q] whose evidence I have accepted.
In our view, the making of a supervision order was not erroneous. Ensuring that the children felt “safe” when spending time with their father was an important issue during the trial. Although in making a supervision order his Honour did not err in the exercise of his discretion, for reasons discussed later we are of the view that part of the terms of that order ultimately proved erroneous.
With respect to the complaint as to Rose J’s reasons, we find no substance to this ground of appeal. His Honour carefully evaluated the evidence before him and provided substantial reasons for the supervision order he made.
In relation to the weight complaint, we refer to the following passage in Gronow v Gronow (1979) 144 CLR 513 where Stephen J said at 519:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
Order 5 – the requirement for a report from a psychiatrist or psychologist
Having determined that it was not an error for his Honour to make orders for supervised time with the father based on the evidence before him at trial, we now consider whether his Honour erred in the manner in which he determined such supervision should be “varied”.
Order 5 made provision for supervision to be removed and overnight time to begin with the children upon the father furnishing the mother with a report from a psychiatrist or psychologist which states:
(a)The name, place of practice, qualifications, and experience in providing adult therapy.
(b)The Reasons for Judgment given this day has been read by him/her.
(c) The nature and extent of therapeutic treatment provided to the father.
(d)The unqualified opinion that the father does not nor is it reasonably foreseeable that he will pose a risk to the three children or any of them of him of engaging in abusive behaviour, physical or emotional to or in the presence or hearing of the children or any of them regardless of the period of time including overnight periods that may be spent by such children or child in the care of the father.
Counsel for the father submitted that the prospect of such an order was not discussed with the father, committed the father to psychiatric treatment and would require an “unqualified” view and that it was doubtful that a treating practitioner could give such an opinion. The consequence of this it was submitted, would be that the order could never be fulfilled and thus the father would be unable to have unsupervised overnight contact with the children.
It is necessary to consider the contents of the affidavit of Dr W. In his report dated 2 June 2009 the doctor provided an opinion based on the question asked by the solicitors for the father contained in their letter of instruction dated 21 May 2009:
Can a Report or opinion to be ever given by a competent or experienced psychiatrist or psychologist in the terms set out in Order 5(d), namely:
“The unqualified opinion that the Father does not nor is it reasonably foreseeable that he will pose a risk to the three children or any of them of him of engaging in abusive behaviour, physical or emotional to or in the presence or hearing of the children or any of them regardless of the period of time including overnight periods that may be spent by such children or child in the care of the father”.
We repeat here a considerable portion of the doctor’s letter:
OPINION
If I understand these orders correctly, they require that the father would need to provide a report from a psychiatirst or psychologist which expresses at least in part, if not its’ entirety, an absolute guarantee that your client poses or will pose no risk of any type to his children. I would note an element of ambiguity to the orders in that it is not completely clear to me whether the unqualified opinion is confined to the issue in the present tense, or whether it also includes the future (reasonably foreseeable). However for the purposes of my response I will assume that the “unqualified opinion” relates to both the present and the future.
The issue I will address is whether or not it is proper ethical and professional conduct for a psychaitrist or psychologist to deliver a completely unqualified opinioon about a client they are treating.
Codes of practice for mental health professionals in general, as well as professionals practicing in forensic areas, emphasise objectivity as a central tenet in ethical practice, and provide warnings in a variety of ways against dogmatic views which are closed to any additional information or other interpretations of available material, including that arising from therapy. More over, as a career teacher in medicine and psychiatry I can attest that these are values which are central to the whole of medical practice.
Within my area of expertise, I note that guidleines have also been issued by the Royal Australian and New Zealand College of Psychiatrists in relation to independent medical exminations and medicolegal report preparation by psychiatrists which have the same thrust and purpose as the Rules prepared in various New South Wales and Commonwealth jurisdictions in relation to the same matter, such as the Uniform Civil Procdure Rules 2005 Schedule 7 (Expert Witness Code of Conduct) and the Part 15.5 Expert Evidence Schedule of the Family Law Rules 2004 respectively.
These materials set out and codify, where relevant, what in my view are no more than appropriate and accepted standards of practice. Treating psychiatrists and psychologists are no less responsible than duly appointed independent experts to have a prudent and thoughtful attitude towards their work and to be open minded to the possibility that there are other materials available about the issues with which they are dealing, or that the client has not been fully open, or perhaps even highly selective or deceptive, in the information that has been provided, as the basis for therapy. From that perspective, although treating psychiatrists and psychologists may be perceived by outsiders as partisan, good clinical practice dictates that they should not be.
Indeed it is abundantly clear that the treating practitioner’s duty of care is never confined solely to their client. There are, for instance, several external obligations which can lead a treating psychiatrist to break practices of confidentiality. These include:
1.A reporting obligation to a welfare authority in the event that information is provided in therapy consistent with there being a risk to a child.
2.An obligation to inform appropriate authorities and take appropriate steps to protect the life or wellbeing of another party in the event that the treating psychiatrist feels that their patient presents a risk to that person.
3.An obligation to take appropriate steps to prevent their patient’s suicide.
In addition, in this instance the orders require the provision of a report which, since it is framed within an order of Court, the practitioner should prudently regard as a form of medicolegal report in that it is prepared in the shadow of the Court, and they should follow the appropriate guidelines from their professional body and heed as well the guidelines for independent experts.
That being the case, it is my view that the ethical treating psychiatrist or psychologist always needs to be open to the possibility that the information provided in therapy is not all the information that might be relevant to the welfare of the children, and under those circumstances, they should not be willing to offer an unqualified opinion which is, in effect, an absolute guarantee. (emphasis added)
We accept that there was no occasion when the specific terms of order 5 were raised with the father or his lawyers. However, during the hearing on 5 December 2008, Rose J initiated discussions with counsel about the possibility of “some expert independent view expressed that the benefits of [the father’s] ongoing consultations are being achieved”. In an exchange with counsel for the Independent Children’s Lawyer, his Honour said:
The next thing then is to provide some reassurance, not only for the children but also for the mother, that he has his volatility more under control than he has in the past. And one would have thought that the best person to provide that was not [the father] but the, for example, the psychiatrist who he is consulting. I’m only raising this with you, I’m not saying this must happen … I’m just concerned to hear what your submission is about that.
It was submitted in response that there might be some difficulty with the treating psychiatrist providing such reassurance as it might “compromise that relationship”. His Honour further commented during the hearing:
I suppose another way of possibly approaching it is that there be, one possibility is, there be the order that you’re seeking coupled with a requirement to provide written details to the mother of the number of consultations that have been ongoing and with whom. And to confirm that say in the previous month that they have actually taken place, as opposed to having made an appointment. And that might provide some feelings of security or lessening anxiety all around.
Because what mustn’t be overlooked is that on the one hand the children, on the evidence, which I may accept, do enjoy and look forward to spending time and activities with their father, on the other hand they do not look forward to spending periods of time where they have to walk on eggshells so to speak because they never know when he might erupt.
And that unless some confidence is given to them, which only [the father] can do when it’s all said and done, that this won’t happen, then there’s always going to be an underlying anxiety which will take away part of the quality of the benefits that you’ve been addressing me about.
…
Well another way would be that without the need for an authority and without the need to cause some concern potentially to treating psychiatrists, one possibility is that [the father] obtains that certificate, for example, addressed to him … and then he passes that document on to the mother, rather than him giving the details without there being some confirmation that it’s actually correct.
In relation to this, counsel for the father made submissions to the trial judge that the father was prepared to provide advice as to his attendance at sessions with his treating psychologist between March and July 2009.
It is important to emphasise that these discussions did not take place until after the evidence was closed and during submissions. Putting aside the question of natural justice we will first consider whether Dr W’s report should be admitted as further evidence in the appeal.
In CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828, the High Court considered the principles relevant to the admission of further evidence on appeal in the Family Court of Australia.
After observing that the admission or rejection of further evidence on appeal is not a parenting order their Honours also concluded that the best interests principle was a relevant consideration and in the language of the legislation at that time that the Full Court is bound to have regard to the best interests of the child as the paramount consideration. We will refer to a number of key paragraphs of the decision in CDJ v VAJ per the reasons of McHugh, Gummow and Callinan JJ which have led us to the view that the evidence of Dr W should be admitted:
104.In the exercise of the discretion conferred by a power such as s 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry.
…
109.One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
…
111.Still another consideration is that the discretion is given to an appellate court hearing an appeal against an order made in the exercise of original jurisdiction. No doubt it is true that, because the appeal is by way of rehearing, the Full Court's jurisdiction is neither purely appellate nor purely original. … Nevertheless, it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial. (footnotes omitted)
Whilst not unfettered it is clear that the discretion to allow evidence to be admitted is a wide one. As their Honours said:
113.In any event, we cannot accept that the discretion to receive further evidence is so wide that the Full Court can admit further evidence merely because it is useful. Such a criterion is inconsistent both with the nature of the appellate jurisdiction exercised by that Court and with the perceived purposes of s 93A(2).
…
115.Other limitations on the exercise of the power arise from the fact that the discretion which s 93A(2) confers must be exercised judicially. In most cases concerned with parenting orders that means that it should only be exercised in favour of the receipt of the further evidence if that evidence is not only relevant to the welfare of the children but is also admissible according to ordinary principles or by statute, and if there is no reason apparent to the Full Court of the Family Court for believing that the evidence is not credible.
We are of the view that the evidence of Dr W should be admitted to allow a proper consideration of the argument in relation to order 5. The admission of this evidence falls within the category described in CDJ v VAJ, particularly by reference to paragraphs 109 and 111.
If compliance with the order is impossible by the report of any Australian psychiatrist bound by the ethical considerations as described by Dr W (a consideration of course unknown to the trial judge) then such an order cannot be allowed to stand.
In the circumstances of this case, in view of the considerable limitation placed on the father’s time with the children because of the order for supervision, the limited opportunity for the father or his lawyers to make submissions in relation to the ideas raised by the trial judge may have lead in itself to a consideration of whether such order should be set aside. The order as ultimately made, order 5(d), was far more demanding than as discussed with counsel.
With respect to the question of natural justice, his Honour raised the possibility of requiring the father to provide some assurance to the mother with counsel during submissions on the final day of hearing. However, at no time were the specific terms of order 5 contemplated and the father was not afforded an opportunity to provide evidence in relation to this requirement.
The difficulty was exacerbated in this case by the failure of the father’s lawyers to call the father’s treating psychiatrist by reason of their interpretation of his Honour’s earlier ruling.
Conclusion
It is clear to us that paragraph 5 of the orders must be set aside. It is essential as his Honour was concerned to do, to create some mechanism for the supervision of the father’s time to be revisited and consideration given to its continuation, cessation or perhaps modification. Unfortunately, the method chosen by his Honour is unworkable for a number of reasons including as explained by Dr W. It is also necessary to set aside paragraph 4 of the orders as they somewhat depend on paragraph 5.
The matter is to be remitted. We would not want to fetter the discretion of the trial judge hearing the matter. A period of more than a year has expired since the orders were made by Rose J. As we see it, the issue to be determined is what time should the children have with the father, if it is to be supervised, for how long such supervision should persist, and that some review mechanism be set in place.
Other grounds – discretionary matters
The other issues raised in the amended notice of appeal are directed to the discretionary elements of Rose J’s judgment. We will briefly consider each in turn.
Parental responsibility with respect to health, culture and religion
Order 2 provided that the parents have equal shared parental responsibility in relation to major long term issues concerning the children “save and except that the mother shall have sole parental responsibility in relation to the health, religious and cultural upbringing of the children”.
Order 7 further provided that time for the children to spend with the father was suspended on the mother’s birthday and various Jewish holidays which his Honour listed.
Rose J’s consideration of shared parental responsibility appears at the end of his judgment. We set out his reasons in full:
159.Notwithstanding that I have determined that the presumption of equal shared parental responsibility has been rebutted, it is still open to me to make a parenting order which in its terms provides for equal shared parental responsibility. The reason is that a parenting order must be made in accordance with section 60CA in relation to which the best interests of the children are the paramount consideration. I have concluded that it is in the best interests of the children for there to be orders which provide for the mother to have the sole parental responsibility for the major long term issues in relation to health, religion and cultural upbringing and that the parties have equal shared parental responsibility for the remainder of the major long term issues. My reasons are as follows. The High Court has held that I am not bound to make orders as sought by the parties.
160.The mother is the primary carer of the child and has fulfilled that role both prior and subsequent to the separation of the parties. The mother has carried out that role at times in difficult circumstances due to the father’s violent and abusive conduct towards her at times in the hearing of one or more of the children. The vitriol and abuse that the father has directed to the mother has continued since their separation. Not surprisingly, communication between the parties is poor.
161.Serious emotional heath issues have affected the 3 children and in particular the 2 boys. The father has resisted those children in particular receiving expert professional help subsequent to the parties’ separation. Ultimately, interim orders were made by me to ensure that those children have the opportunity to receive the benefit of professional assistance of a psychologist which they clearly needed in their best interests. Notwithstanding the father’s previous objection to one particular psychologist, there was no evidence before me of any constructive sensitive approach that he had put forward as an alternative by way of consultation with another psychologist. Indeed, the evidence of correspondence passing between the solicitors for the parties showed a lack of ability and will of the father to appreciate the seriousness of the situation and to use his best endeavours in a positive way to assist the child or children concerned.
162.In addition, the father has had his own serious emotional issues to contend with and which are ongoing. Fortunately, he has been receiving psychiatric assistance since June 2008 although not on a consistent basis. So far as the major long term issue of religious and cultural upbringing is concerned, the children have been brought up in a household in which the Jewish religion and culture has been celebrated at the behest of the mother, her extended family and with the positive support of the father. To that extent, it has been to his credit as otherwise discord would have been a further potentially troubling issue to be dealt with, not only by the parties, but also by the children. However, communication between the parties is poor and the father has a history of being prone to abusive outbursts to the mother which cannot be understood in the circumstances which then prevailed. Until such time as the father has the benefit of therapy, I do not have confidence that communication in relation to those matters between the parties is likely to be fruitful. Consequently, I have found that it is in the best interest of the children that the mother have sole responsibility for the major long term issues that I have designated. With regard to the remainder of the long term issues, the parties appear to be at one. Education both current and future does not appear to be the subject of controversy between them and despite poor communication that exists between the parties I have concluded that it is reasonable to anticipate that they will avoid disagreement in relation to that matter. Other of the major long term issues did not have significance in the evidence before me. It is in the children’s best interests for the parties to not only share, but equally share, parental responsibility in relation to the matter to which I have referred. The substance of such parental input should be for their benefit generally and in terms of continuing to strengthen the relationship that the children have with both parents.
(footnotes omitted, emphasis added)
Counsel for the father submitted that his Honour erred in the exercise of his discretion in making orders which “took away the opportunity of the children to spend time with their father on no less than eight occasions coinciding with religious observance” without making orders for additional time to be spent with the father.
It was further submitted that his Honour failed to take into account the father’s support for the children’s religious observances. Counsel referred to the 2007 Report of Professor Q, where she noted in a further interview with the mother:
[L] is not going to scripture and sometimes expresses anti Jewish sentiments but there is no issue with [the father] over religion, he actually has a great affinity for the Jewish identity even though he is an aethist [sic].
We do not believe that his Honour erred in the exercise of his discretion. He clearly took into account the father’s attitude to the Jewish religion, as evident from paragraph 162 of his reasons (set out above). With respect to order 7, whilst ideally alternative arrangements might be made to make up any time which the father might lose, it was not incumbent on his Honour to make such an order.
Views of the children
Counsel for the father submitted that Rose J had erred in his treatment of the evidence as to the children’s views. Specifically, it was submitted that his Honour erred in accepting the evidence of Professor Q, where “the evidence established that the Expert had failed to make due and proper enquiries of the children”.
It was submitted by counsel for the father that section 60CC(3) of Act imposes upon the court an obligation to ascertain the views of the children and the relevance of those views is in relation to the children’s time spent with their parents and the quality of that time. Reference was made to discussion in Harrison v Woollard (1995) 18 FamLR 788 at 802.
It was submitted that when there are three children of different ages it is necessary to make conclusions about the individual child and their views. Whilst that may be necessary or appropriate in some cases, in this case the dominant emotions felt by all three children were as described by Professor Q, as accepted by his Honour. In addition, there is no doubt in considering the reasons that his Honour did appreciate the close relationship between the children and their father.
In our view Rose J gave more than adequate consideration of this issue, as set out below from his judgment:
44.Each of the parties gave direct and indirect evidence in relation to the views of the three children.
45.The evidence of the mother is that one or more of the children has from time to time resisted or objected to spending periods of time with the father due to his emotional outbursts on a number of matters. The father’s evidence is that the three children have welcomed and enjoyed periods of time spent with him. That evidence is corroborated by [Ms Z] so far as recent periods of time are concerned. Extensive evidence in relation to this matter was given by [Associate Professor Q] both in Exhibit 3 and in the course of her oral evidence. In Exhibit 3, [Associate Professor Q] observed that the three children “were very anxious about speaking of their feelings and feared repercussions from their father if they did.” As a result, [Associate Professor Q] stated that it was appropriate to report in relation to the comments collectively. [Associate Professor Q] summarised their views as follows:-
“It was evident that they have experienced him as angry, that they are fearful of his anger but they are also fearful of speaking of the problems. There was an emphasis that they do not like going backwards and forwards between two households, but it is likely that this is an issue that they can focus on and magnify without necessarily saying anything about their father without having to specify that they do not wish to reside with him.”
46.[Associate Professor Q] was cross-examined at length in relation to this and other matters. [Associate Professor Q] summarised the situation as she saw it in the sense of there being a dilemma for the three children, namely, “that they love him and have a strong attachment to him. If they did not they would simply be angry and refusing contact. But as it is they are very anxious and agitated because there is the dilemma of they want to be with him and yet they don’t feel safe.” [Associate Professor Q] gave evidence that the negative aspect of the views of the children in terms of safety would be ameliorated by there being present a friend or relative of the father with whom they are happy such as [Ms Z].
47.I accept the evidence of the independent expert [Associate Professor Q] in preference to that of the parties. Her evidence which I have summarised was repeated and explained by her in different ways throughout her oral evidence. The background which implicitly informed the views of one or more of the three children is represented by the violent and abusive conduct of the father witnessed or heard at times by one or more of the three children and their anxiety being accentuated post separation due to the lack of presence of the mother in the household of the father during the course of periods of time that the children have spent with him.
Rose J then considered the relationship between the children and their parents and other persons. His Honour observed that there was no controversy about the “loving relationship and primary attachment” of the children with their mother, and that there was no dispute about the children’s “fond relationship” with their maternal grandparents and “good relationship” with the father’s former girlfriend.
However, the evidence about the relationship between the children and their father given during the trial was, as the trial judge correctly found, of some concern. His Honour in that respect stated:
49.Exhibit 3 contains a summary of [Associate Professor Q’s ] conclusion in relation to the father, namely:- “Although the 3 children are strongly attached to their father they are also ambivalent and fearful of him.”
50.Lengthy evidence was given by [Associate Professor Q] during the course of cross-examination by senior counsel for the father. In the context of the relationship of the three children with the father by way of contrast of pre-separation with post-separation periods, [Associate Professor Q] expressed the opinion that a factor that has arisen subsequent to the separation of the parties is that the three children “are feeling fearful when they’re spending time with their father without their mother present and I think we can probably say that we know that the father is not functioning as well and there is reason for them to be fearful. And the symptoms are – if the children have been traumatised in some ways. The symptoms are much the same.” At the same time, [Associate Professor Q] reiterated that the children have a strong attachment to the father.
51.I accept the evidence of [Associate Professor Q] which was given in a detailed and impressive way. Accordingly, I find that the nature of the relationship between the three children and the father is as described in paragraph 49 hereof.
With respect to the willingness of the parents to facilitate and encourage a relationship between themselves and the other parent, his Honour determined that the mother “has a willingness to facilitate a meaningful relationship…subject to the children being safe and protected from the alleged lack of capacity of the father to contain his impulsive and angry outbursts”. He accepted that the father “has the appropriate willingness so far as the relationship between the three children and the mother is concerned”.
Counsel for the father referred to the 2007 Report of Professor Q, particularly her recommendations in relation to weekend contact and the school holidays.
Professor Q testified that the children have an affectionate relationship with their father. During cross-examination by counsel for the mother, she said:
The dilemma is that they love him and have a strong attachment to him. If they didn’t they would simply be angry and refusing the contact but as it is they are very anxious and agitated because there is the dilemma and they want to be with him and yet they don’t feel safe.
This statement was accepted by Rose J in paragraphs 46 and 47 of his reasons.
We do not find any appellable error in his Honour’s consideration of the views of the children. It was within his discretion to accept the evidence of Professor Q, who was cross-examined at length by the parties’ counsel.
His Honour gave substantial reasons for the orders made in paragraphs 2, 6 and 7 and on the evidence before him the orders he made were plainly correct.
Treatment of the evidence
The final complaint raised in the amended notice of appeal relates to his Honour’s treatment of the evidence. In written submissions, the following errors are asserted:
· Rose J failed to have regard to the evidence of a “demonstrative and affectionate relationship between the children and the father”;
· The supervision order was imposed “despite the evidence” of Professor Q; and
· Rose J erred in the exercise of his discretion by accepting the evidence of Professor Q and then failing to make orders consistent with her opinion.
This broad complaint about Rose J’s treatment of the evidence is inextricably linked to the matters which are dealt with above. As we have indicated, we are not of the view that Rose J erred in his treatment of the evidence of Professor Q or any other evidence.
Conclusion
We do not perceive any error in the reasons of his Honour or the orders made other than that related to what we have already said in relation to orders 4 and 5. For those reasons we will allow the appeal in part and set aside orders 4 and 5. The parenting issues associated with the father’s time with the children must be reheard together with a consideration of supervision and, if it is imposed, when the supervised time might cease or be reviewed.
Costs
Counsel indicated at the conclusion of the appeal hearing that they wished to provide written submissions after the judgment is delivered. In the circumstances, we think this the appropriate course. Directions will be made to allow each party to provide those submissions.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 3 March 2010
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