Bostoi & Bostoi
[2011] FamCAFC 132
•17 June 2011
FAMILY COURT OF AUSTRALIA
| BOSTOI & BOSTOI | [2011] FamCAFC 132 |
| FAMILY LAW - APPEAL – CHILDREN – With whom a child lives and spends time – Where the trial Judge ordered the children to live with the respondent mother – Whether the trial Judge erred in her findings and assessment of the psychiatric evidence – Whether the trial Judge made material errors of fact, and by reason of delay in giving judgment, failed to properly consider the evidence – Whether the trial Judge failed to take into account the views of one child – Whether the trial Judge failed to consider the unchallenged evidence of the father in relation to the mother’s psychiatric ill health – No appealable error established. FAMILY LAW - COSTS – Appellant ordered to pay the respondent’s costs of and incidental to the appeal – No order for costs in relation to the Independent Children Lawyer’s appearance. |
| Family Law Act 1975 (Cth) |
| De Winter & De Winter (1979) FLC 90-695 Hadid v Redpath [2001] NSWCA 416 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 |
| APPELLANT: | Mr Bostoi |
RESPONDENT: | Ms Bostoi |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 2851 | of | 2009 |
| APPEAL NUMBER: | EAA | 155 | of | 2010 |
DATE DELIVERED: | 17 June 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, Ainslie-Wallace and Murphy JJ |
| HEARING DATE: | 18 May 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 October 2010 |
| LOWER COURT MNC: | [2010] FamCA 992 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Schonell SC |
| SOLICITOR FOR THE APPELLANT: | Watts McCray Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Simpson SC and Ms Nash |
| SOLICITOR FOR THE RESPONDENT: | Feeney Lawyers |
| COUNSEL FOR THE INDEPENDENT | Ms Christie |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
That the appeal be dismissed.
That the appellant pay the respondent’s costs of and incidental to the appeal.
That there be no other order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Bostoi & Bostoi 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: EAA 155 of 2010
File Number: SYC 2851 of 2009
| Mr Bostoi |
Appellant
And
| Ms Bostoi |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Mr Bostoi (“the father”) appeals against parenting orders made in relation to the two children of his relationship with Ms Bostoi (“the mother”), C (born in September 1997) and L (born in April 2001).
The orders made on 27 October 2010 provided for the parties to have equal shared parenting of the two children and that the children live with the father each alternate weekend, each alternate Wednesday night during school term and half of each school holiday period. The orders also made provision for the children to spend time with the father at other times.
The father’s appeal challenges the order that the children live with the mother at all other times.
The background to the issue was largely uncontroversial and we will refer to so much of it as is required to put the appeal in context.
The parties separated in May 2009.
After separation, the children lived with the father in the marital home. The mother moved to live with her parents.
On 24 June 2009 interim orders were made that provided that the children spend time with the mother each weekend and on Wednesday nights. In December 2009 the orders were varied so that the children lived week about with both parents, subject to the mother continuing to live with her parents.
Before the trial Judge neither parent supported the maintenance of the week about regime. The Independent Children's Lawyer urged its continuance.
There was no dispute that the mother has been diagnosed as suffering from a mental illness. The exact diagnosis was the matter of some controversy during the hearing, but as her Honour the trial Judge found, the important matter was not the diagnosis but the effect of that illness on the mother from time to time.
Dr J is the mother’s treating psychiatrist. He was first consulted by her in September 1998 when he diagnosed her as having a psychotic illness characterised by paranoia. His opinion was that her illness was best described as a delusional disorder of a persecutory type. He maintained that diagnosis in his report of 2009 tendered in the proceedings.
Dr J prescribed medication for the mother. It seems that her compliance with the medication regime was not complete and there were times when she was quite psychiatrically unwell. Her Honour noted, however, that the evidence established that after the separation of the parties the mother had been psychiatrically stable.
Her Honour accepted that the mother has a psychiatric illness characterised by paranoia with brief, reactive psychotic episodes and that her condition is exacerbated by stress. There was no challenge to her findings in this regard.
The father’s mental state was also an issue in the trial.
A court appointed expert, Dr Q, interviewed the parties and the children. She prepared two reports dated 13 December 2009 and 19 May 2010.
In her first of those reports she said:
The father’s thought processes were markedly paranoid. At times he seemed delusional and at times there was evidence of thought disorder. These are features that suggest a mental illness … Absent of mental illness, it was evident during this assessment that Mr [Bostoi] is an extremely controlling and dominating character; this kind of personality is frequently observed in an abusive spouse.
She went on to offer the opinion that, “… most of what the father alleges (about the mother) would seem to be a product of paranoid thinking and/or of an attempt to impugn the mother’s adjustment.”
The father sought and obtained an assessment by Dr S, a consultant psychiatrist, who disputed Dr Q’s assessment. Dr S’s conclusion (in his report dated 21 December 2009) was that the father, “… does not demonstrate evidence of a formal psychiatric disorder as defined in the Diagnostic and Statistical Manual of Mental Disorders (fourth edition) of the American Psychiatric Association.” Dr S disputed Dr Q’s suggestion that the father was thought disordered and said that in his assessment of the father he found no evidence of delusion or false beliefs, bizarre or mood incongruent thoughts.
Both psychiatrists conferred and reached some agreement. Dr S agreed that the father is “controlling” and “probably a control freak”. He maintained his view that the father did not suffer from any psychosis.
After her second interview with the parties, Dr Q (in her report dated 19 May 2010) said of the father that she found no evidence of “delusional or paranoid ideas or of thought disturbance”. She posited that perhaps what she had observed was a “brief reactive psychosis” occasioned by stress that had completely resolved and said that it was similar to “and perhaps identical with the transient psychotic phenomena that are also regularly observed in borderline personality disorder and in related disturbances of personality where there is difficulty with affect regulation”.
On 23 April 2010 Dr Q and Dr S again conferred. Dr S’s view had not altered and he maintained that he had not seen any significant psychiatric impairment in the father and nothing that would impact on his parenting ability. Dr Q’s opinion was that, while difficult to make a diagnosis of clinical disorder of personality, the father, “… has prominent cluster B traits, which is in keeping with the profile of an abusive partner – commonly such individuals do not meet DSM criteria for a disorder.”
At paragraph 87 of the reasons for judgment the trial Judge said:
With respect to Dr [Q], I am not persuaded that the father suffers from a mental illness. I am inclined to the view that his presentation in the first interview coloured her perception of him, which is perhaps unsurprising.
Dr Q’s account of her discussions with the father and her notes of his comments about the mother and her family were unchallenged during the trial. Her Honour commented that the father’s statements were “seemingly bizarre”.
Grounds of Appeal
Grounds 1 to 6 of the Notice of Appeal concern her Honour’s findings and assessment of the psychiatric evidence:
Ground 1.Her Honour erred in that she failed to give reasons, or gave insufficient reasons for declining to accept the opinions of Dr [S].
Ground 2.Her Honour erred in that she failed to consider Dr [S’s] opinion that the father did not impress as hostile towards the mother.
Ground 3.Her Honour erred in that she failed to consider or give reasons for rejecting the conclusion that the father was capable of providing well for the children and that the children were not at risk.
Ground 4.Her Honour erred in not accepting the opinions of Dr [S] in circumstances where he was not seriously cross-examined on his opinions.
Ground 5.Her Honour erred in failing to compare and contrast the competing evidence of Dr [S] and Dr [Q] in relation to the father’s capacity.
Ground 6.Her Honour erred in accepting the opinions of Dr [Q] in that she failed to give reasons for not accepting the opinions of Dr [S].
As we have indicated, in her first report, Dr Q commented on the father’s presentation in interview and said that, “it appeared that Mr [Bostoi’s] thinking is paranoid and that he is possibly thought disordered”.
When discussing the parties’ capacity to provide for the needs of the children, Dr Q noted:
The father’s history is that he has been much involved in the care of the children but the mother and her family dispute this. There is reason to be concerned about his mental state and his capacity to meet the emotional needs of the children; he could meet their physical and intellectual needs but it is evident that he is trying to alienate the children from her mother …
Under the heading “The mental health of both of the parents” Dr Q wrote:
The father’s thought processes were markedly paranoid. At times he seemed delusional and at times there was evidence of thought disorder. These are features that suggest a mental illness. The focus of his ideas is the wife and her mental illness and aggression and he has made frequent contact with a variety of services to report this. Absent a mental illness, it was evident during this assessment that Mr [Bostoi] is an extremely controlling and dominating character; this kind of personality profile is frequently observed in an abusive spouse.
…
There is reason to be concerned that the father has a mental illness. He has no insight into this. In my view the children are at risk of psychological harm in his care and perhaps there are other risks.
Dr S prepared a report (dated 21 December 2009) in which he sets out a number of opinions formed as a result of his consultations with the father.
Under the heading “Psychiatric Opinion” he notes:
… it is my opinion that Mr [Bostoi] does not demonstrate evidence of a formal psychiatric disorder … I did not find clinical evidence to support a diagnosis of a Schizophrenic Disorder, Schizoaffective Disorder or Delusional Disorder. There was also no evidence to establish a Mood disorder and in particular a Major Depressive Episode or Bipolar Affective Disorder …
I found no evidence to support Dr [Q’s] suggestions that Mr [Bostoi] was thought disordered. He revealed no evidence of delusions or false beliefs based upon incorrect inferences about external reality. He did not reveal bizarre or mood incongruent thoughts. He did not reveal evidence of being controlled nor did he reveal delusions of reference, that is to say a belief that others in one’s immediate environment have a particular unusual significance. There was no evidence of persecutory delusions.
Dr S went on to exclude Paranoid Schizophrenic Disorder and Paranoid Delusional Disorder. He said:
… He expressed appropriate concern about his wife’s behaviour and in particular her mental illness. He was of the view that this was the substantial contributing factor to her altered behaviour and inappropriate commentary. He did not express resentment towards his wife. On the contrary he expressed disappointment that his marriage has failed.
After excluding other formal psychiatric diagnoses, Dr S said:
… I note references to him being viewed as a “control freak”. Such descriptions however have not pervaded into other aspects of his interpersonal, social or business activities.
Dr S considered the impact of the mother’s mental illness on the relationship with the father and said:
… The family appears to be characterised by highly expressed emotions involving criticism, hostility and over-involvement. The description of Mr [Bostoi] as a “control freak” may more readily be explained by his self-sacrificing behaviour, his tendency to intrude into conversations and undertaking tasks on behalf of his wife and family to the exclusion at times of allowing others to do tasks for themselves.
…
The relationship between Mr [Bostoi] and his wife appears to have been characterised by negative communication and criticisms. Dysfunctional interaction with cognitive distortions and communication problems and marked difficulties in conflict resolution are also apparent. There appears to also be considerable mistrust and hostility.
Finally, Dr S said:
In my opinion Mr [Bostoi] does have the personality resources to cope with the ongoing stressors associated with Family Court proceedings. Mr [Bostoi] has been the primary carer of his children given the problems previously displayed by his wife. In my opinion there would be no psychiatric grounds to preclude him from continuing to act as the primary carer of his children. As stated I respectfully disagree with the opinion expressed by Dr [Q] in regard to suggestions that he reveals paranoid thought processes or suggestions he has a mental disorder.
As we have indicated the experts conferred and produced a document reflecting points of agreement and disagreement between their opinions. The first of these (which reflected a telephone conference between Dr Q and Dr S on 8 February 2010) noted relevantly:
Dr [S] agreed that Mr [Bostoi] is ‘controlling’ and ‘probably a control freak’ as has been reported but he is not psychotic and he seemed genuinely concerned about the children. The impression is that he has backed off a lot since interviewed by Prof [Q]. He is functioning well, his business is going well. Dr [S] does not believe that Mr [Bostoi] requires psychiatric treatment, possibly mediation with his wife; he did not impress has being hostile towards her.
…
Regarding the welfare of the children, Dr [S] and Prof [Q] were in agreement that each of these parents was providing quite well for the children. Prof [Q] was of the view that there was no reason why the mother could not continue, as she has in the past, to be if not the primary carer than certainly the major carer for the children; Dr [S] was of the view that Mr [Bostoi] was quite capable of providing well for the children and that they were not at risk. Prof [Q] agreed that there was no risk of physical violence towards the children from the father.
A second telephone conference occurred between Dr Q and Dr S on 23 April 2010. The note of that conference indicated that Dr S had not altered his view and did not see the father as having any significant psychiatric impairment and “certainly nothing that would impact on his parenting capacity”:
… [Dr S] agrees that Mr [Bostoi] is a controlling person but not to any pathological extent and that there will be continuing disputes between the parties but he believes the key issue is the ability to provide care for the children which he does not think is an issue with the father.
Dr [Q] remains of the view that the dynamics of power and control have characterised Mr [Bostoi’s] relationship with his former wife and while it may be difficult to make a diagnosis of a clinical disorder of personality, he has prominent Cluster B traits, which is in keeping with the profile of an abusive partner – commonly such individuals do not meet DSM criteria for a disorder. For this reason while Dr [Q] agrees that the father can provide adequately for the children in terms of meeting their physical and educational needs, nevertheless, emotionally and psychologically he is not well suited as a primary carer because of his controlling nature and also because he is unlikely to support the children’s relationship with the mother; he has been hostile towards and quite denigrating of her. Because of his controlling nature he is not well suited to a shared care arrangement as he would have great difficulty sustaining a cooperative relationship with the children’s mother.
In her reasons the trial Judge said:
101. As noted already, I am not satisfied that the father suffers from any mental illness. I am satisfied that he does not have a personality disorder. I am persuaded that he is a controlling, dominating person who lacks real empathy with the children. I accept entirely that he loves and is devoted to the children but the issue is his insight into and capacity to meet their emotional needs.
102. In my view, these personality traits impact adversely on the father’s capacity to understand or appreciate the children’s emotional needs and to separate his own perceptions from theirs. I have a real concern that his controlling character will bring him into conflict with them as they mature.
It is against this background that the first six contended grounds of appeal are to be considered.
As became clear during argument, the grounds do not challenge her Honour’s findings as to whether the father had a mental illness. Rather, the grounds assert error in her Honour’s failure to accept Dr S’s opinions about the father’s capacity as a parent and his relationship with the children and the mother.
Given the breadth of the contention in several of these grounds, we will set out the appellant’s written summary of argument in full:
1. By these grounds, the father contends that her Honour was obliged to resolve on the evidence the disputes between Drs [S] and [Q] as to his mental health and the impact (if any) it had on his parenting capacity and further in circumstances where her Honour ultimately did not accept Dr [Q’s] conclusions as to the father’s psychiatric state, was obliged to not (in effect) cherry-pick parts of the evidence from Dr [Q’s] report.
The summary of argument then sets out part of the evidence of Dr Q’s report and extracts from paragraph 110 of her Honour’s reasons and continues at paragraph 6:
6. Her Honour concluded that the father’s personality traits impacted adversely on his capacity to parent or appreciate the children’s emotional needs [102]. Thus in circumstances whereby each of the two psychiatrists were polarised as to their view about whether or not the husband suffered from a psychiatric disorder and the impact of his personality style/traits on parenting capacity her Honour was obliged to resolve the differences in the psychiatric evidence, and obliged to accept one over the other.
7. Her Honour failed to address the significant dimensions and differences in each of the psychiatric profiles of Dr [S] on the one hand and Dr [Q] on the other. In circumstances whereby her Honour did not accept Dr [Q’s] diagnosis, then her Honour was left with the proposition that she could not unreservedly accept any other evidence of Dr [Q]. She was obliged, having undertaken that task, to accept Dr [S’s] diagnosis. In circumstances where she did not do so then her Honour was obliged, at the very least, to resolve the matters addressed in Dr [S’s] report as summarised as follows at (Judgment, at [76]).
“I found no evidence to support Dr [Q’s] suggestion that Mr [Bostoi] is thought disordered … I did not find evidence to support a paranoid schizophrenic disorder nor a paranoid delusional disorder. Mr [Bostoi] was not guarded or evasive nor has he been reclusive, sullen or hypersensitive. He expressed appropriate concern about his wife’s behaviour and in particular her mental illness. He is of the view that this was a substantial contributing factor to her altered behaviour and inappropriate commentary. He did not express resentment towards his wife. On the contrary, he expressed disappointment that the marriage had failed. (emphasis added by the author of the written submissions).
8. Thus there was a significant issue at trial for determination on the competing evidence of the two psychiatrists who came to different conclusions about whether or not the father had a psychiatric disorder. While her Honour identified at Judgment, at [35].
“It is thus necessary to consider very carefully the evidence in relation to the psychiatric state and personality traits of each of the parents.”
9. Her Honour did not follow her own guideline.
10. Her Honour failed to give reasons for rejecting the conclusions of Dr [S] that the father was capable of providing well for the children or his conclusion that the description “control freak” has “not pervaded into other aspects of his interpersonal, social or business activities” [AB 452]. Her Honour did not specifically deal with Dr [S’s] evidence in this particular instance.
11. In circumstances where Her Honour rejected Dr [Q’s] diagnosis and in circumstances where Dr [S] was not seriously cross-examined on his opinions then her Honour was left in the position whereby there was no challenge to his diagnosis or conclusions.
12. In circumstances [sic] there was competing evidence of two psychiatrists on the same issue with alternative diagnosis [sic] and conclusions as to impact Her Honour was obliged in the course of her decision-making process to compare and contrast the evidence of each of the two medical practitioners and to accept or reject one of them and in so doing provide reasons. Her Honour failed to undertake or carry out this task. Her Honour failed to give reasons for not accepting the opinions of Dr [S] where they conflicted with Dr [Q] and failed to address the significant issue raised by Dr [S], namely that the father did not pose a risk to the care of the children in circumstances where her Honour came to such conclusion herself.
The nature of expert evidence
It is useful at the outset to consider the nature of an expert opinion and the role of the fact finder. In Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, Heydon JA (with whom Priestly and Powell JJA agreed) at paragraph 59 quoted with approval what was said by Lord President Cooper, in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh [1953] SC 34 at 39-40 about experts giving evidence:
… Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight for it cannot be tested by cross-examination nor independently appraised, and the parties have involved the decision of a judicial tribunal and not an oracular pronouncement by an expert.
Particularly apposite to this matter is what appears at paragraph 67 of the judgment in which his Honour said:
One other important aspect of Ramsay v Watson is the following statement at 645:
“That some medical witness should go into the box and say only that in his opinion something is more probable than not does not conclude the case. A qualified medical practitioner may, as an expert, express his opinion as to the nature and cause, or probable cause, of an ailment. But it is for the jury to weigh and determine the probabilities. In doing so they may be assisted by the medical evidence. But they are not simply to transfer their task to the witnesses. They must ask themselves ‘Are we on the whole of the evidence satisfied on a balance of probabilities of the fact?’.”
Finally at paragraph 71, his Honour said:
In Holtman v Sampson [1985] 2 Qd R 472, D M Campbell, Macrossan and Thomas JJ said:
“… it is a primary tribunal’s duty to find ultimate facts, and, so far as it is reasonably possible to do so, to look not merely to the expertise of the expert witness, but to examine the substance of the opinion expressed. But that is not to say that a tribunal may not accept the opinion of an expert witness. In cases where the experts differ, the lay tribunal will apply logic and commonsense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted.”
At paragraph 84 Heydon JA referred to HG v R (1999) 197 CLR 414 at [39] to [44] at [44]:
“… it is important that the opinions of expert witnesses be confined, in accordance with s79, to opinions which are wholly or substantially based on their specialised knowledge. Experts who venture ‘opinions’ (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted …”
It is important to a consideration of these grounds to clearly distinguish between what is expert opinion, that is an opinion expressed by a person who, by reason of “training, study or experience” has become an expert and a conclusion of fact to which no expertise has been applied and which is ultimately a matter for the trier of fact.
Ground 1. Her Honour erred in that she failed to give reasons, or gave insufficient reasons for declining to accept the opinions of Dr [S]
The broad terms in which the first ground of appeal is framed makes it difficult to consider otherwise than in equally broad terms.
The opinions to which this ground makes reference appear to be dealt with separately in the following grounds.
However, as the foregoing authorities would make clear, we do not accept the assertion, if intended by this ground, that the trial Judge was obliged to accept every opinion expressed by Dr S. Her Honour accepted his opinion that the father did not suffer from a mental illness. In our opinion and as will become clear when we consider the following grounds, many of the opinions expressed by Dr S were not “expert opinions” but a statement of his conclusion on contested matters of fact which fell within her Honour’s domain.
Suffice to say that we do not accept this broadly expressed ground.
Ground 2. Her Honour erred in that she failed to consider Dr [S’s] opinion that the father did not impress as hostile towards the mother
Dr S and Dr Q had different opinions about whether the father was hostile to the mother. This was not a matter on which her Honour made a specific finding nor in our view was she required to do so.
We do not accept many of the general assertions made in the written submissions, particularly that there was an obligation on the trial Judge to resolve every issue of fact that arose in the trial and, more particularly, to resolve every disputed fact as between the experts. Her Honour’s obligation was to resolve so much of the disputed facts in the case to enable her to dispose of the issues before her.
Her Honour’s enquiry was to determine which of the parties was the preferable parent for the children to spend the preponderance of their time. That enquiry is far reaching and, as her Honour’s reasons indicate, is guided by statutory provisions. As part of that enquiry, her Honour had before her a considerable body of evidence about incidents between the parties (and which were either unchallenged before her Honour or to which no ground of appeal was directed). We are of the view that there was abundant evidence on which her Honour could come to the conclusions she did without considering the discrete issue of whether the father was hostile towards the mother.
Ground 3. Her Honour erred in that she failed to consider or give reasons for rejecting the conclusion of Dr [S] that the father was capable of providing well for the children and that the children were not at risk
Dr S’s opinion that the father was capable of providing well for the children must be considered in the context of the purpose of his report and in the context in which that view was expressed.
Dr S’s remit was a narrow one as we see it. He was asked to examine the father and comment on Dr Q’s expressed view consequent on the father’s presentation to her in her first interview with him. He was not asked to give a wider opinion about the matter before her Honour. Indeed, Dr S comments on the scope of his enquiry in the penultimate paragraph of his report where he notes:
… I wish to state that I am not concerned for the mental wellbeing of Mr [Bostoi]. If it would assist the court however, I would be pleased to provide whatever support is required to Mr [Bostoi] during the forthcoming Family Court procedures …
It misstates the scope of Dr S’s enquiry to elevate it to that which was required of Dr Q which was to assist the court in accordance with the overriding duty and to provide an opinion independent of the party instructing her. That is not to say that an opinion expressed albeit within that narrow scope is not without value but gives a proper context in which the opinion should be measured. However, it is apposite that in his report Dr S said there were, “… no psychiatric grounds to preclude him from continuing to act as the primary carer of his children”.
In the joint statement both Dr S said that the father was “quite capable of providing well for the children”. In fact, Dr Q agreed that both parents were “providing quite well for the children”.
It appears that Dr S’s comments were couched in the context of his engagement in the proceedings, that is whether the father had a mental illness and whether any illness or condition would impact on his parenting capacities. To the extent to which it was argued that his opinions about the father and his parenting capacities were not so confined, then we are of the view that his opinion was not one invested with his expertise but was an expression of his inference based on the facts.
Her Honour made no finding that the father was unable to provide well for the children. She did find (at paragraph 101 of the reasons) that he had certain personality traits, namely that, “…he is a controlling, dominating person who lacks real empathy with the children”. Her Honour identified what she saw as the “issue” which was “his insight into and capacity to meet their emotional needs”.
It hardly needs stating that the determination that her Honour was required to make went far beyond whether the father or either parent was able to care for the children. In the context where her Honour’s findings of fact (and in particular that to which we have just referred) were unchallenged, there is no substance in this ground.
As to whether the children were at risk, her Honour made clear findings at paragraphs 108 to 110 of the reasons as part of her consideration of the presumption of equal shared parenting and made a positive finding that notwithstanding the mother’s allegation of violence by the father, there was insufficient evidence of it to displace the presumption. Her Honour made a further finding (at paragraph 111) that the presumption that it was in the best interests of the children to have equal shared parenting had not been displaced.
There is no substance in this challenge.
Ground 4. Her Honour erred in not accepting the opinions of Dr [S] in circumstances where he was not seriously cross-examined on his opinions
As with the first ground, the breadth of the contention makes it difficult to consider other than in broad terms, but as with ground 1, simply because an expert offers an opinion (even unchallenged), the law does not require its acceptance.
Ground 5. Her Honour erred in failing to compare and contrast the competing evidence of Dr [S] and Dr [Q] in relation to the father’s capacity
The appellant’s written summary of argument throws some light on this ground and at paragraph 12 it was argued:
In circumstances [sic] there was competing evidence of two psychiatrists on the same issue with alternative diagnosis [sic] and conclusions as to impact Her Honour was obliged in the course of her decision-making process to compare and contrast the evidence of each of the two medical practitioners and to accept or reject one of them and in so doing provide reasons. Her Honour failed to undertake or carry out this task …
First, we reject the foundation of this argument, that her Honour had competing evidence on the same issue with alternative diagnoses.
Dr Q offered no diagnosis but commented that on the first occasion she spoke to him, the father’s thought processes were “markedly paranoid”, that at times he “seemed delusional and at times there was evidence of thought disorder”. The father’s presentation when she first saw him led her to “be concerned that the father has a mental illness”.
Importantly in the note of the telephone conference between the psychiatrists it says:
… [Prof Q] agreed that he does not have a mental illness such as schizophrenia, but that he presents in a way that is commonly observed in people who have a Cluster B form of personality disturbance.
In the note of the second telephone conference between the psychiatrists Dr Q’s opinion was said to be, “… while it may be difficult to make a diagnosis of a clinical disorder of personality, he has prominent Cluster B traits, which is in keeping with the profile of an abusive partner …”.
The clear conclusion from these documents is that no diagnosis of a clinical mental illness was proffered by Dr Q, nor was there any “alternative diagnosis”.
Secondly, we reject the bald assertion as to her Honour’s obligation being, “… to compare and contrast the evidence of each of the two medical practitioners and to accept or reject one of them and in so doing provide reasons”. As can be seen from the quoted passages from Makita (which in this respect is an articulation of well known principles) that is not the law.
Dr Q’s opinion expressed in the second note of the telephone conference between the psychiatrists was that while she agreed that the father could provide adequately for the children:
…in terms of meeting their physical and educational needs, nevertheless, emotionally and psychologically he is not well suited as a primary carer because of his controlling nature and also because he is unlikely to support the children’s relationship with the mother; he has been hostile towards and quite denigrating of her …
There is no doubt that her Honour found (at paragraphs 101 to 102 of the reasons) that the father had personality traits that would impact adversely on his capacity to meet the children’s emotional needs. However, if it is the thrust of this ground in particular (and the first tranche of the appeal grounds in general) that this finding was an uncritical acceptance of Dr Q’s opinion, we reject it.
Her Honour’s findings about the father’s personality and his lack of empathy for the children were in our view quintessentially findings of fact. There was considerable evidence on which she could come to those views (and as we have indicated there was no challenge to her Honour’s fact finding on this or other issues). That evidence was found in the evidence of witnesses, documents and in the recounting of what the father said to Dr Q (to which no challenge was mounted as to the fact of it being said or its accuracy as reported).
We find there to be no substance to this ground of appeal.
6. Her Honour erred in accepting the opinions of Dr [Q] in that she failed to give reasons for not accepting the opinions of Dr [S]
Again we struggle to interpret the challenge in this general and, with respect, confusing contention.
If in this ground, the appellant is asserting the proposition contained in paragraph 7 of the written summary of argument, namely that having not accepted Dr Q’s diagnosis “then her Honour was left with the proposition that she could not unreservedly accept any other evidence of Dr [Q]” and the asserted corollary that she was then obliged “to accept Dr [S’s] diagnosis” we reject both.
Putting to one side our acceptance of the respondent’s contention that Dr Q made no diagnosis, it is not the law that a finder of fact who does not accept the opinion of one expert is perforce obliged therefore to accept a competing opinion. To the extent that this proposition needs authority, in Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 at 694 Gibbs J said (references omitted):
The fact that a witness is disbelieved does not prove the opposite of what he asserted … It has sometimes been said that where the story of a witness is disbelieved, the result is simply that there is no evidence on the subject … but although this is no doubt true in many cases it is not correct as a universal proposition. There may be circumstances in which an inference can be drawn from the fact that the witness has told a false story, for example that the truth would be harmful to him; and it is no doubt for this reason that false statements by an accused person may sometimes be regarded as corroboration of other evidence given in a criminal case … Moreover if the truth must lie between two alternative states of fact, disbelief in evidence that one of the state of facts exists may support the existence of the alternative state of facts …
Nor is it the law that not accepting Dr Q’s opinion so undermined her credibility that no part of her evidence could be accepted.
If the opinions referred to in this ground and sought to be impugned are those to which the other grounds specifically referred (and there was none other put in oral argument) we are of the view that each matter was a matter of fact on which her Honour was entitled and did come to her own conclusion and in respect of which none is challenged. That they might have aligned with Dr Q’s opinion does not make her Honour’s findings less valid, nor does it support the contended challenge in this ground.
The ground is not made out.
Errors of Fact and Delay
Grounds 7, 8, 9, 11 and 12 assert that her Honour made material errors of fact and, by reason of delay in giving judgment, failed to properly consider the evidence.
Ground 7.That her Honour erred in finding that there was no evidence from any other person that [C] had said that he wished to live with his father.
Ground 8.That her Honour erred in failing to consider the statement of wishes made by [C] to the Independent Children's Lawyer, contained in Dr [Q’s] report. Further that her Honour failed to properly consider, in light of this error, [C’s] wishes and the context of wishes in relation to a child of some maturity.
Ground 9.That by reason of the delay in giving judgment and the error of fact made by her Honour in relation to the wishes of [C], her Honour’s findings are unsafe.
Ground 11.That by reason of delay her Honour failed to properly consider the father’s evidence.
Ground 12. That her Honour made a number of errors of fact.
When he commenced to argue these grounds, senior counsel for the father sensibly conceded that the thrust of his argument rested on the asserted errors of fact and not in delay simpliciter.
Grounds 7, 8 and 9
C’s views
In the course of her interviews with the children, Dr Q canvassed with them their views about their living circumstances. Immediately after separation the children lived predominantly with the father and at the time of the hearing were living week about with the mother and the father. Dr Q included the substance of these discussions with the children in her reports.
Dr Q interviewed the children on several occasions. Her first interview was in November 2009 when she said, “both children express a wish to be with both of their parents.” She observed that C is, “… quite a mature lad and able to give a good account of the situation and also was well able to express his wishes.”
In February 2010 she received copies of further affidavits from the Independent Children's Lawyer in which the father asserted that C did not like moving “backwards and forwards”, a reference to the division of his time between his parents. Also in February 2010, Dr Q noted that she was asked to review the matter because the Independent Children's Lawyer had told her that C had said that he wanted to “live in one house and primarily with his father and to see his mother only one day in a weekend.” When Dr Q referred to this conversation in her second report she noted, “(I was concerned again that this may reflect that pressure has been brought to bear on [C])”.
Dr Q saw the children again on 3 March 2010. She noted:
[C] said he is coping quite well with the present arrangement … Asked if he would prefer a split in the midweek with three and four days or the seven day block, he said it didn’t really make a great deal of difference to him; he could cope just as easily with either arrangement.
…
… Given a lot of opportunity to express other feelings and wishes, it seemed that [C] was happy with the present situation.
Dr Q interviewed the children again on 5 March 2010 and said in relation to C, “again asked about the present arrangement, [C] does not want to make any changes except regarding phone calls …”
At the same interview, Dr Q spoke to the father. She reported that he told her the “situation is ‘not going well’” and that “[C] has told him that it is not what he wants, he doesn’t want to live in two households … Mr [Bostoi] is fairly certain that [C] is not happy with the situation.”
The expression of C’s view to the Independent Children's Lawyer was raised in the cross-examination of Dr Q by senior counsel for the father:
Q.You are aware aren’t you that at an earlier time [C] had told his Independent Children's Lawyer that he wanted to live with his father ?
A. I understand that was – that happened last year, yes.
Q. Is it not more likely that that expresses in fact what [C] wanted?
A.Possibly at that time, but then when I’ve - I’ve seen him twice now and he’s been fairly clear about where he’s at.
Q. He had been pretty clear that he wants to sit on the fence?
A.Yes, he doesn’t want to - he doesn’t want to be asked to make a choice.
QBut at an earlier time when perhaps he didn’t realise the significance of what he was doing he made a very clear choice, didn’t he?
A.Well, he didn’t speak to me so I don’t know, but I know that he might – that he said that to the ICL.
Q.So I'm suggesting to you, doctor, that insofar as there is any evidence at all that there was an expression of wishes from [C] [sic], that is the only – that is all there is, what he told his lawyer?
A. Yes. As an explicit wish, yes.
It was undisputed that this conversation with the Independent Children's Lawyer took place in February 2010. Her Honour asked senior counsel for the father where the evidence could be found of that expression of C’s wish, and was reminded that the father had said that the Independent Children's Lawyer indicated C’s view in court at an earlier time in the proceedings.
Between paragraphs 117 and 136 of the reasons, her Honour considered the views expressed by the children, but relevantly to this appeal, by C. She said:
117. The father claimed that [C] has told him that he wants to live with him. There was no evidence from any person who has heard [C] make such statements to the father. There was no evidence from any other person to whom [C] has said that he wants to live with his father.
118. It was suggested that the father’s evidence that [C] said that he wants to live with him was unchallenged. It is difficult to see how either the mother or the ICL could dispute that [C] made these alleged statements to the father, in the absence of any other person. I will assume, however, that [C] said what the father alleged and consider the weight which should be attached to any such expressed views.
Her Honour then (at paragraph 127) considered the views expressed by C from time to time as reported by Dr Q and noted Dr Q’s concern that the children were being pressured by their parents to align with one of them.
At paragraph 129 her Honour said:
Despite what the children told Dr [Q], the father maintained that they do not want to continue in an equal time arrangement. He relied on their alleged statements to that effect and on aspects of [L’s] behaviour since the week-about arrangement was introduced in December 2009.
The trial Judge concluded:
135. I do not accept that either child has a genuine wish to live primarily with the father. I am satisfied that both parents have pressurised the children to align but it seems likely to me that the father’s attempts have been stronger than those of the mother. I reach this conclusion because of his controlling personality and tendency to impose his perceptions onto them. It seems to me that any of these statements of the children to the father, are likely to be an attempt to appease his expectations and deflect his pressure.
It is in paragraph 117 of the reasons that the appellant argues the trial Judge made a material error of fact. It was argued that her Honour had clearly overlooked the evidence that C had, in fact, said to someone else that he wanted to live with his father.
Senior counsel for the appellant conceded that, read literally, paragraph 117 did not contain an error of fact. There was no evidence from another person who had heard C say that he wanted to live with his father, nor was any evidence given by any other person to whom C had said that he wanted to live with his father. However, it was argued that, when so much of the reasons that concern this issue are considered, there is no reference to C having expressed a view to the Independent Children's Lawyer. This, it was argued, was because her Honour had overlooked this piece of evidence.
It was advanced for the appellant that the error (if it be accepted that her Honour was in error) was material because in the light of Dr Q’s assessment that C was mature and in a position to give a view, her Honour would have given his expressed view greater weight in her assessment of it against the other evidence.
Two questions then arise. Did her Honour make a mistake of fact, that is, overlook the evidence that C had told the Independent Children's Lawyer he wanted to live predominantly with his father and if so, was the mistake material?
Having had regard to the whole of her Honour’s reasons on this issue, we are not persuaded that paragraph 117 bespeaks an error of fact. That her Honour does not mention that C told the Independent Children's Lawyer of this view, does not mean that she overlooked it. Baldly stated, it is undeniable that no person other than the father gave evidence of hearing C express that view nor did anyone give evidence that C had told them that he wanted to live with his father.
However, assuming that her Honour’s findings in paragraph 117 constituted a mistake of fact in that she overlooked the indication of C’s view conveyed by the Independent Children's Lawyer, we do not find that it vitiated her Honour’s exercise of discretion.
Senior counsel for the father pointed to another error which it was argued either of itself was material or compounded the asserted error constituted by the mistake of fact about C’s views.
It was argued that her Honour made a mistake of fact as part of determining the issue of the father’s willingness to facilitate and encourage the children’s relationship with their mother. At paragraph 144 of her judgment, the trial Judge said:
I am concerned that the father’s willingness and ability to facilitate and encourage the children’s relationship with their mother goes no further than compliance with court orders. It is troubling that he took no steps to arrange for them to spend time with her between 8 or 9 May 2009 and 24 June 2009, a period of some seven weeks. He said that she “was welcome to visit” the children at any time during this period but he gave no evidence that he actually conveyed this invitation to her. Certainly, he did nothing to enable the boys to see their mother until interim orders were put in place. Similarly, he could have permitted them to spend additional time with her during the July 2009 school holidays, which closely followed the breakdown of the family unit. He chose, however, to increase the provisions of the interim orders by only a few hours per week.
It was argued, and not apparently disputed, that the father’s evidence was that the mother had had telephone contact with the children and he had taken the children to a family birthday party to which the mother had told the children she would attend but did not in fact attend. There was no challenge to the other matters to which her Honour referred in that paragraph.
Thus, it was submitted that her Honour had made two factual errors “which directly impacted two (2) significant matters that her Honour was required to take into account under s.60CC.”
In De Winter and De Winter (1978) 4 Fam LR 583 the High Court held that where a trial Judge has made a mistake of fact the judgment will not be upheld merely because the result was within the range of the trial Judge’s discretion, however, where the result is “plainly right” the judgment may be upheld notwithstanding the mistake of fact.
Gibbs J said at 588:
There are many other authorities from Young v Thomas (1892) 2 Ch 134 at 137 to Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR at 627, that recognise that a mistake of fact is a ground overruling a decision involving discretionary judgment. It may in some cases appear that the mistake of fact has not affected the final result or that in any case the conclusion reached was correct, notwithstanding the error. But it is not right to say, as the majority of the Full Court appear to have said in the present case, that a discretionary judgment which was proceeded upon a mistake of fact should be upheld simply because the order was well within the range of the discretion of the primary judge.
It is perfectly true that the opinion which a judge forms as to the credibility of a witness may be influenced by a variety of matters. A number of pieces of evidence may lead to the conclusion that the witness is generally unreliable, but one example of false testimony may be enough, and of course the demeanour of the witness alone may lead to that conclusion. But where a judge has reached such a conclusion for a variety of reasons, and it is demonstrated that some of those reasons are unsound, his decision will not necessarily be upheld because the other reasons would in themselves have been sufficient to support it. The question is whether the invalid reason has influenced the ultimate conclusion or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand notwithstanding the unsoundness of some of its foundations.
Section 60CC(3)(a) of the Family Law Act 1975 (Cth) (“the Act”) requires a court to consider any views expressed by a child. The material issue is the view expressed, not the person to whom it is expressed. That a child expresses the same view to a number of people does not necessarily fortify its forensic value. The weight to be attributed to the view and the extent to which a trial Judge takes it into account in determining the ultimate issue rests on a consideration of many factors.
It is to be recalled that her Honour accepted that C had made the statement of view, as the father said he had.
In her reasons, her Honour carefully assessed the evidence on the issue of expressed views. Her Honour had before her Dr Q’s account of what was said and her (largely) unchallenged expert opinion about the value of those views. Her Honour also referred to incidents given in the father’s evidence which, he said, supported the validity of C’s view.
As we have indicated, we do not accept that her Honour was mistaken in her judgment in paragraph 117 of the reasons. However, assuming that she was, if her Honour had overlooked the evidence that in February 2009 C had told the Independent Children's Lawyer that he wanted to live predominantly with his father, taking into account the evidence before her Honour including Dr Q’s reported conversations with C after that date, we are of the view that any error did not ultimately affect and vitiate the exercise of her Honour’s discretion.
Similar considerations apply to the evidence of the father arranging for the children to attend the birthday party. Her Honour’s consideration of this issue ranged much wider than one instance to which the father referred in his evidence. In paragraphs 146 and following, her Honour set out statements made by the father to Dr Q and other agencies about the mother and her mental illness and concluded:
149. I have referred to the statements made by the father to various agencies. As indicated above, some of these statements were exaggerated or simply inaccurate.
150. A consistent theme which emerges from this evidence is that the father is preoccupied with the mother’s mental illness and seizes on opportunities to portray her as a dangerous person who is a threat to the children. That attitude toward the mother, his unfavourable view of the maternal family and his record of limiting the children’s time with her give rise to real concerns as to his willingness and capacity to facilitate and encourage this very important relationship.
We accept that her Honour may have overlooked the evidence that the father had arranged to take the children to a party at which the mother was expected to attend. However, the appellant has failed to demonstrate that the error was material.
These grounds of appeal are not made out.
Grounds 9 and 11
Delay in delivery of Judgment
Paragraph 12 of the Summary of Argument notes, referring to the two asserted errors of fact:
Those errors may have been as a consequence of the period between the hearing and delivery of judgment, namely five (5) months. It [sic] not apparent on the face of the judgment that her Honour had regard to a transcript and thus the errors may well be constituted by a weakened recollection by virtue of the effluxion of time. The concern raised by the material is that her Honour made two (2) fundamental factual errors which in the submission of the father, vitiate her overall findings.
As we have indicated, we are not persuaded that her Honour did make the asserted mistake of fact about C’s wishes. It was accepted that her reasons make no reference to the father taking the children to the birthday party.
In raising appealable error it is insufficient simply to assert delay. First, the delay must be significant. What is or is not significant will depend on the circumstances of the particular case as an examination of the authorities reveals. Delay is relevant in that it may act to undermine the trial Judge’s advantage.
In Hadid v Redpath [2001] NSWCA 416, Heydon JA, with whom Stein JA and Grove J agreed, referred to Goose v Wilson Sandford & Co (unreported, 13 February 1998) a decision of the English Court of Appeal (Peter Gibson, Brooke and Mummery LJJ) in which their Lordships said:
Because of the delay in giving judgment, it has been incumbent on us to look with especial care at any finding of fact which is now challenged. In ordinary circumstances where there is a conflict of evidence a judge who has seen and heard the witnesses has an advantage, denied to an appellate court, which is likely to prove decisive on an appeal unless it can be shown that he failed to use, or misused, this advantage …
But an appellate court may depart from the conclusions of a trial judge where, inter alia, it appears that he has not made use, or proper use, of the advantage that he had.
No argument was directed to any point at which it was said that her Honour’s advantage was rendered frail because of delay. Indeed as we have indicated, there was no challenge to any of her Honour’s findings of fact made in the course of her carefully detailed reasons.
We find there to be no substance in this ground of appeal.
Ground 10. Her Honour erred in failing to consider the unchallenged evidence of the father in relation to the matters appearing under the heading “[Ms Bostoi’s] Mental Health Issues”, in those parts of the father’s affidavit sworn 4 May 2010 the paragraphs identified by Ms Rees, Senior Counsel appearing on behalf of the father in final submissions (at page 322 and 323 of the transcript of proceedings)
The summary of argument of the appellant argued that the evidence to which this ground directs itself was unchallenged and was unaddressed by the trial Judge and therefore constituted appealable error.
No oral argument was addressed to this ground by senior counsel for the appellant.
The father’s evidence to which the ground of appeal refers was concerned with the mother’s mental illness and was the subject of submissions by senior counsel at p 322 of the transcript of 28 May 2010 and following. The thrust of those submissions was that the father’s assertions of the mother’s mental illness and its effect on her behaviour were largely unchallenged and that she had been non-compliant with medication prescribed for her by her treating psychiatrist, Dr J. It was submitted that no member of the mother’s immediate family was aware of the true nature of her illness and, as a result, would be unlikely to be vigilant about her behaviour in case she was becoming mentally ill again. It was further submitted that, while the evidence supported a finding that the mother was functioning well at the moment, her Honour could not necessarily be confident that if the mother was not living with her family she would be as well. If she did have a relapse, there would be concerns for the welfare of the children.
Her Honour made detailed findings about the mother’s mental health at paragraph 72 of the reasons. She then said:
73. I am satisfied, and I find that the mother’s psychiatric state has no adverse impact on her parenting of the children while she is in her current, well controlled condition. I am persuaded that the stress of life with the father, particularly while cohabiting with his parents, exacerbated her condition. She is now freed from these sources of stress and has displayed no psychiatric symptoms since the separation.
74. Of course, I cannot say that the mother will suffer no future psychotic episodes. I can and do, however, weigh this risk against the other considerations which I am required to take into account in determining what orders are in the best interests of the children.
At paragraph 159 her Honour concluded, “… It is clear that the mother suffers from a mental illness but I am not satisfied that her current condition undermines her parenting capacity.”
The passages of her Honour’s reasons which we have extracted concern the mother’s mental illness and its impact on the children. Her Honour was clearly cognisant that the mother’s apparently stable condition may change and, if it did, any risk to the children from her illness was a matter to be taken into account in the exercise of her Honour’s discretion.
Furthermore, the case that her Honour was asked to determine was not one in which the father asserted that, such was the risk to the children from a possible relapse in the mother’s mental stability that some form of only supervised time was prudent. He sought orders that the children live predominantly with him but spend time on alternate weekends and in half of the school holidays.
We find no substance in this ground of appeal.
It follows then that the appeal will be dismissed.
Costs
At the conclusion of the argument and at our invitation, counsel addressed us on the issue of costs. Senior counsel for the appellant conceded that if the appeal was unsuccessful, the “inevitable rule” would apply so far as the respondent is concerned. We will therefore order that the appellant pay the respondent’s costs of and incidental to the appeal.
The Independent Children’s Lawyer also sought costs from the appellant in the event the appeal was unsuccessful. It is to be recalled that in this matter the Independent Children's Lawyer contended for orders that the children continue to spend week about with each parent. The Independent Children's Lawyer’s submissions on the appeal were, in effect, in support of the mother’s position which was to maintain the orders of the trial Judge.
We accept that there will be occasions when an Independent Children's Lawyer having contended for a particular outcome at trial may, on an appeal, form the view that no appealable error is discernible in the trial Judge’s reasons. In that event, in our opinion, it may be unnecessary for the Independent Children's Lawyer to commit to the expense of appearing at a hearing and may simply place on the appeal record that, although it was not the outcome urged upon the trial Judge by the Independent Children’s Lawyer, he or she does not challenge the decision under appeal and, in those circumstances, unless the court suggested otherwise, did not propose participating in the appeal.
This matter is such an example, and particularly so where both the father and mother were represented by experienced senior counsel on the appeal.
These comments should not be taken as a criticism of the Independent Children’s Lawyer and indeed we were assisted by the submissions of counsel for the Independent Children's Lawyer. However, the cost of the Independent Children Lawyer's participation in the appeal ought not be visited upon the father. We do not perceive that the Independent Children’s Lawyer is in any superior position to the parties to the appeal in seeking an order for costs. There may be cases where the funding of participation in an appeal by the Legal Aid Commission assumes significance pursuant to s 117(2A) of the Act. This is not such a case. We are of the opinion that the circumstances do not justify a costs order in favour of the Independent Children’s Lawyer.
_____________________________________________________________________
I certify that the preceding one hundred and thirty one (131) paragraphs are a true copy of the reasons for judgment on the Honourable Full Court (Coleman, Ainslie-Wallace and Murphy JJ) delivered on 17 June 2011.
Associate:
Date: 17 June 2011
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