Braithwaite & Braithwaite
[2007] FamCA 468
•23 May 2007
FAMILY COURT OF AUSTRALIA
| BRAITHWAITE & BRAITHWAITE | [2007] FamCA 468 |
| FAMILY LAW - APPEAL – CHILDREN – Parenting orders – Whether conduct by trial Judge would lead reasonable person to apprehend bias – Consideration of Johnson v Johnson (2000) 201 CLR 488 –Assertions of bias not established – Whether trial Judge erred in exercise of discretion - Whether trial Judge failed to give appropriate weight to relevant factors under ss 60B, 65N and 68F(2) – No appealable error by trial Judge in exercise of discretion –Whether appropriate for trial Judge to rely on expert report – Asserted flaws in methodology of and findings of report writer - Appeal against parenting orders dismissed. FAMILY LAW - APPEAL – COSTS APPEAL - Whether trial Judge impermissibly took into account matters in the exercise of his discretion – Whether trial Judge erred in making findings about mother’s conduct generally – Consideration of Brott and Joachim (2006) FLC 93-259 – Trial Judge took into account an irrelevant matter in making costs order, namely asserted lack of success of mother in non family law proceedings – Trial Judge awarded costs as a punitive measure against the mother rather than to compensate the father – Whether trial Judge erred in quantum of costs assessed – Underlying foundation upon which trial Judge’s order based not capable of determination on evidence before trial Judge – Appeal against costs orders allowed. FAMILY LAW - APPEAL – COSTS APPEAL - Re-exercise of discretion – Circumstances justify departure from s 117(1) – Mother should pay two thirds of father’s costs of parenting proceedings on and from 31 July 2002 as agreed or failing agreement as assessed. FAMILY LAW - APPEAL – COSTS – Mother wholly unsuccessful in respect of appeal against parenting orders – Appropriate for mother to pay father’s costs of appeal as agreed or assessed if costs equal to or less than $5,000.00, or if costs as assessed exceed $5,000.00, costs to be limited to that sum. |
| Family Law Act 1975 (Cth) (prior to the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)), ss 60B, 65N, 68F(2) and 117 |
A v J (1995) FLC 92-619
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
Brott and Joachim (2006) FLC 93-259
Gronow v Gronow(1979) 144 CLR 513; (1979) FLC 90-716
House v The King (1936) 55 CLR 499
I and I (No 2) (1995) FLC 92-625
Johnson v Johnson (2000) 201 CLR 488
Neil v Nott (1994) 68 ALJR 509
Penfold v Penfold (1980) FLC 90-800
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Dr E McInnes, “Parental Alienation Syndrome: A paradigm for child abuse in Australian family law”, in Australian Institute of Criminology, Child Sexual Abuse: Justice Response or Alternative Resolution Conference, Adelaide, 1-2 May 2003
| APPELLANT: | Braithwaite |
| RESPONDENT: | Braithwaite |
| FILE NUMBER: | NCF | 3742 | of | 1997 |
| APPEAL NUMBER: | EA EA | 105 41 | of of | 2005; 2006 |
| DATE DELIVERED: | 23 May 2007 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | Kay, Warnick and Boland JJ |
| HEARING DATE: | 8 December 2006 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 August 2005; 4 April 2006 |
| LOWER COURT MNC: | [2005] FamCA 773 |
REPRESENTATION
| ADVOCATE FOR THE APPELLANT: | Ms Braithwaite, in person |
| SOLICITOR FOR THE RESPONDENT: | Mr Powe |
| SOLICITORS FOR THE RESPONDENT: | Rod Powe Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Sundstrom |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of NSW |
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Braithwaite v Braithwaite.
Orders
That Appeal No. EA 105 of 2005 is dismissed.
Subject to Order 3 the mother pay the father’s costs of Appeal No. 105 of 2005 as agreed or failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.
That the costs payable by the mother shall be the costs as agreed or assessed. If the costs are less than $5,000.00 then such lesser sum shall be payable and in the event the costs as assessed exceed $5,000.00 then the costs payable by the mother shall be limited to $5,000.00.
The Registry Manager shall cause to be paid out to the father from the funds deposited by the mother as security for costs of Appeal No. EA 105 of 2005 such sum as is payable under Order 2, on agreement being reached between the parties, or on the conclusion of the assessment whichever event first occurs.
That Appeal No. EA 41 of 2006 is allowed.
That Orders 1 and 2 of the orders made by the Honourable Justice Cohen on 4 April 2006 be set aside and the following order is substituted in lieu:
(A)The mother pay two thirds of the father’s costs of the parenting proceedings determined by the Honourable Justice Cohen on and from 31 July 2002 as agreed, or failing agreement as assessed under Chapter 19 of the Family Law Rules 2004, less the sum of $2,000.00 already paid by the mother.
The Registry Manager shall within 14 days cause to be paid out to the mother from the funds deposited by the mother as security for costs of Appeal No. EA 41 of 2006 the sum of $1,000.00.
That the Court grants to the mother a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the mother in respect of the costs incurred by her in relation to Appeal No. EA 41 of 2006.
That the Court grants to the father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the father in respect of the costs incurred by him in relation to Appeal No. EA 41 of 2006.
That the independent children’s lawyer’s application for costs of the substantive appeal is dismissed.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 105 of 2005; EA 41 of 2006
File Number: NCF 3742 of 1997
| Braithwaite |
Appellant
And
| Braithwaite |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
The mother has brought appeals against parenting and costs orders made by Cohen J on 19 August 2005 and 4 April 2006 respectively. Although she was legally represented before the trial Judge, the mother appeared before us on her own behalf. The father resisted the appeals, as did the child representative (now known as the independent children’s lawyer).
The trial was conducted over five days in July 2005 and his Honour delivered reasons for judgment and made orders on 19 August 2005. Thus the orders were based on the provisions of the Family Law Act1975 (Cth) (“the Act”) prior to the introduction of the Family Law Amendment (Shared Parental Responsibility) Act2006 (Cth). Our discussion will refer to the law, including the terminology, as it applied at the date of the hearing.
At the trial the mother sought what the trial Judge described as “a relatively unexceptional regime of contact” with the parties’ younger child JB who was then aged about 13 years. His Honour’s orders, the subject of the appeal, provide that the mother have contact with JB on four occasions a year at a children’s contact centre under close supervision. The maternal grandparents and JB’s elder sibling are permitted to attend the supervised contact visits. The orders also provide for the father to send to the mother copies of JB’s school reports.
At the commencement of hearing the appeal we rejected an application by the mother to adduce further evidence. In her application the mother sought principally to adduce evidence of asserted bias or potential bias by the experts who gave evidence before the trial Judge. The evidence principally comprised a transcript of proceedings before the Federal Magistrates Court on 12 December 2001. She conceded that the transcript could have been tendered by her counsel at the trial, but he did not do so. For this reason we rejected the application.
Before us, in her oral submissions, the mother did not expand the arguments contained in her written submissions, but relied on those submissions in respect of both appeals.
The challenge by the mother to the trial Judge’s parenting orders fell into four broad categories:
· asserted bias by the trial Judge;
· asserted failure by the trial Judge to give sufficient weight to the objects provision (s 60B) of the Act;
· asserted failure by the trial Judge to give sufficient weight in assessing relevant factors under s 68F(2) to the child’s relationship with the mother, and the effect on that relationship of the limited contact orders made by the trial Judge; and
· asserted error by the trial Judge in giving inappropriate weight to the evidence of a psychologist, Dr C, who was asserted to have diagnosed the mother as suffering “Parental Alienation Syndrome”.
In her submissions in respect of the parenting orders the mother referred to nine grounds of appeal. Her amended Notice of Appeal contained only seven grounds. Nothing of significance turns on this fact as the mother conceded before us that grounds 8 and 9 referred to in her submissions could not be maintained when her application to adduce further evidence was rejected.
In her costs appeal the majority of the mother’s grounds dealt with the exercise of discretion by the trial Judge under s 117 of the Act. During the course of oral argument we identified with the mother the nub of the asserted error by the trial Judge, namely, that his Honour had impermissibly taken into account matters in the exercise of his discretion as though the costs order was a punitive order to punish the mother’s conduct, rather than an order which compensated the father for costs.
Whilst we did not require a formal amendment to the grounds of the costs appeal, the complaint being clearly identified before us, to afford natural justice to the father we permitted him to file written submissions directed to the correctness of the issues raised in paragraphs 8, 21 and 31 of the trial Judge’s reasons for judgment dated 4 April 2006.
Background
Relevant details of the parties’ background is set out in the judgment of the Full Court of 3 April 2006 in relation to the father’s first security for costs application (security applications were made by the father in respect of both appeals). As a matter of convenience, we reproduce those paragraphs:
4. The parties were married on 1 December 1985 and separated on 1 November 1996. There are two children of the marriage, GB, who was aged 19 at the time of the trial before Cohen J in July - August 2005, and JB who was born [in] 1992 and who was aged 13 years at the time of the trial.
5. The father, who was aged nearly 46 years at the date of the trial, was formerly a member of the NSW Public Service. He retired from this service in 1999 on medical grounds, and thereafter engaged in casual employment which involved training persons in safety procedures and rescue techniques. At the date of the trial the father was living with his de facto spouse, SG and her son in a home owned by her parents in the Hunter district of New South Wales.
6. At the time of the trial the mother, who was then aged about 46 years, was in receipt of workers’ compensation payments, and lived with her parents, Mr and Mrs R (“the maternal grandparents”) in a home owned by them in a suburb of Newcastle. The trial Judge recorded the maternal grandparents’ income was by way of pension entitlement, and that GB was also living with the mother. He was noted to be unemployed.
7. As the prior history of litigation between the parties was a matter relied on by counsel for the father in his submissions, we set out some of the events in the extensive litigation, which were summarised in the judgment of Cohen J. The salient features of that history are:
(i)At separation GB and JB remained living with the mother and the father exercised regular contact to the children.
(ii)In August 1998, after disputes between the parties about contact, the father commenced proceedings seeking orders for contact in the Local Court at Raymond Terrace.
(iii)An interim hearing was held on 10 September 1998. Orders were made for the father to have contact each Sunday for a period of eight hours with the maternal grandmother acting as supervisor.
(iv)On 2 December 1998 orders (it appears these were interim orders) were made by consent that GB and JB live with the mother and that they have alternate weekend contact and half school holiday and telephone contact with the father.
(v)On 19 July 1999 final orders were made by consent in the Family Court of Australia in broadly similar terms to the orders made on 2 December 1998.
(vi)In January 2000 a dispute arose between the parties which had its genesis in the father’s physical treatment of GB who was suffering eczema. Proceedings seeking an apprehended violence order on behalf of the mother against the father and assault charges followed. The application and assault charge were dismissed after contested proceedings.
(vii)On 17 April 2000 the mother commenced proceedings in the Federal Magistrates Court in which she sought to vary the contact orders.
(viii)On 17 April 2000 the father filed contravention proceedings.
(ix)On 15 May 2000 the mother sought orders that there be no contact between JB and the father. At about this time the mother filed a Notice of Child Abuse or Risk of Abuse alleging the father had hit JB.
(x)On 9 August 2000 the mother sought interim orders for the suspension of contact between JB and the father. This application was unsuccessful.
(xi)On 11 October 2000 consent orders were made in the Federal Magistrates Court which discharged the orders made in the Family Court of Australia on 19 July 1999. The new orders provided for the father to exercise alternate weekend and half school holiday contact, and also provided for the father and the children to attend counselling “to assist in re-establishing the relationship” between the father and the children. The orders additionally provided for the mother to attend therapeutic counselling “to assist the mother to continue to come to terms with the fact that the children are maintaining a relationship with the father, without admissions”.
(xii)In March 2001 the father commenced proceedings in the Federal Magistrates Court at Newcastle seeking orders that GB and JB reside with him, and that the children have reasonable contact with the mother. By the time of the hearing in the Federal Magistrates Court neither party sought any orders in respect of GB who remained living with the mother.
(xiii)On 12 December 2001 defended proceedings were heard by Federal Magistrate Connolly. Orders were made for JB to live with the father.
(xiv)On 20 December 2004, after a number of interim hearings, contested proceedings were heard by Mullane J who made interim orders that there be no contact between JB and the mother and the maternal grandparents.
(xv)Defended proceedings were heard by Cohen J on 18, 19, 20, 21 and 22 July 2005 and a reserved judgment was delivered on 19 August 2005.
(xvi)Cohen J noted in his reasons for judgment that the various proceedings between the parties had resulted in the preparation of seven family reports.
The trial Judge delivered his reasons for judgment in respect of costs on 4 April 2006, and ordered the mother pay the father’s costs, assessed by his Honour in the sum of $15,000.00.
On 12 December 2005, the father filed an application for security for costs in the sum of $20,000.00 in respect of the mother’s appeal against parenting orders made by Cohen J on 19 August 2005. As the father’s application for security was not filed within the time provided in the Family Law Rules 2004 (“the rules”), the father also sought an extension of time to bring the application. In the reasons for judgment of 3 April 2006 (from which the above background history has been extracted), the Full Court granted the necessary extension of time, and made an order for security in the sum of $5,000.00. The mother complied with that order and paid the sum of $5,000.00 into Court.
On 26 May 2006 the father filed a further application for security for costs in respect of the mother’s appeal against costs orders made by Cohen J on 4 April 2006. The father’s application for security in the sum of $10,000.00 was amended orally to $5,000.00 at the hearing of the application. The Full Court found it appropriate to grant the security but in the sum of $1,000.00. That amount was also paid into Court by the mother.
Amended grounds of appeal
By amended Notice of Appeal filed 20 January 2006 the mother seeks to appeal Orders 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the orders made by Cohen J on 19 August 2005. We note that ground 7 is not a ground of appeal. The mother’s grounds of appeal set out in the Notice are as follows:
1.His Honour was biased and unfair in His Honour’s Reasons for Judgement [sic] and His Honour’s Orders.
2. His Honour failed to give sufficient weight under the Family Law Act 1975 ss 60B, 65N of the Father’s actions and behaviour in preventing the Mother to implement contact with the Said Child.
3.His Honour failed to give consideration or give sufficient weight under the Family Law Act 1975 s60B to the effects on the Said Child with the Father consenting to and then refusing the Said Child to have contact with the Mother as indicated in exhibit letters.
4.His Honour failed to give consideration or sufficient weight under the Family Law Act 1975 s60B of the Father’s history of abuse as a child and the allegations of abuse from the Said Child.
5.His Honour failed to consider or give sufficient weight in the diagnosis by Dr [C] of the Mother having ‘Parental Alienation Syndrome’ and that Dr [C] did not interview the Mother with the children.
6. His Honour failed to give sufficient weight under the Family Law Act 1975 ss60B(2b), 68F of the emotional effect and bond of the Said Child of limited contact of eight hours per year with his sibling, maternal family, friends, and pets.
7. And further take notice that this Amended Notice of Appeal is prepared without the entire transcript of the proceedings being available to the Mother who may seek to add further grounds.
By Notice of Appeal filed on 27 April 2006 the mother seeks to appeal the costs orders made by Cohen J on 4 April 2006. As we have discussed in our introductory remarks, the only relevant aspect of challenge to his Honour’s orders was the underlying reasons given in paragraphs 8, 21 and 31 of the reasons for judgment which we will set out fully later in these reasons.
The father sought to adduce further evidence in respect of the costs appeal which was rejected by us. However he did provide further written submissions to us on 19 January 2007 pursuant to orders made at the conclusion of the appeal hearing.
Before us counsel for the child representative did not support the mother’s appeal, rather he submitted that the orders made by the trial Judge were within his Honour’s proper exercise of discretion.
We find it convenient to deal with the mother’s appeal against the parenting orders under the broad topics we have already identified. We will thereafter give our reasons in respect of the costs appeal.
Trial judge’s reasons
In his reasons for judgment the trial Judge set out the background of the parties. His Honour noted:
5.I shall not devote much of this judgment to the husband or his de facto wife and her family because there is little associated with the husband which might effect the outcome of the issues which have been raised by the wife. It is sufficient to point out that it is part of the wife’s case that, although she agrees she was later shown to be in error about her complaints and has been criticised for actions based on such error, these actions were based on genuine but unfounded suspicions the wife had about the husband.
6.There is now no actual criticism of the husband’s parenting or of him personally in matters relevant to his capacity as the residential or primary parent. In fact, the wife’s main argument in support of her application for contact is that [JB’s] bond with the husband is so strong and healthy that contact with the wife could not undermine it despite the wife’s involvement in alienating both of the parties’ sons from the husband.
Having noted that the father conducted his case without the benefit of legal representation, which afforded him a better than usual opportunity to observe the father, the trial Judge said:
... I assess him as an excellent parent who has taken the stance he has out of no other motive than the wish to promote [JB’s] welfare to the optimum extent and a belief that contact with the wife, her parents and [GB] will, until [JB] is a few years older, involve risk of detriment which will outweigh the likely benefits. I also regard the husband as a generally honest witness who, where his version of events and circumstances differs from that of the wife or her parents, should be believed. (paragraph 7)
After his introductory remarks, the trial Judge noted the history of the proceedings and the orders made by Mullane J that the mother, her parents and GB were not to have any contact with JB pending the hearing.
His Honour also recorded that seven family reports had been prepared by three experts for the purpose of the parenting litigation. Thereafter his Honour set out an extract from a report prepared by Ms H who opined that: “[t]his woman has actively involved her children in the parental conflict. ... She has demonstrated no ability to see the contribution of her own behaviour to the distress her children have experienced” (paragraph 12). At the time of Ms H’s report GB was aged 14 years and JB aged eight years.
The trial Judge noted the mother’s case was presented on the basis that she had changed since the earlier litigation.
His Honour said that after interim orders were made in 1998, the children lived with the mother and that she “...tended to ignore the orders and impose conditions on the husband which were incompatible with them” (paragraph 15).
His Honour then set out details of an incident which occurred in January 2000 when GB complained the father had hurt him whilst applying ointment for treatment of the child’s eczema. The culmination of that incident resulted in the mother applying for an Apprehended Violence Order and pursuing an assault charge against the father, both of which were later dismissed after contested hearings.
The trial Judge set out details of orders made and difficulties with contact experienced between the parties until the matter came before Federal Magistrate Connolly on 12 December 2001.
The trial Judge also set out portions of the second family report prepared by Dr C and dated 5 October 2001. He noted “[s]he was not well disposed toward the wife” (paragraph 28).
In the course of discussing his assessment of the evidence of the maternal grandfather, Mr R, the trial Judge said, “... I do not believe that the husband physically abused [JB] as [JB] claimed” (paragraph 32).
Later in his reasons the trial Judge turned to discuss parts of Dr C’s report which he extracted. Given the challenges by the mother to the exercise of discretion by the trial Judge and assertions of inappropriate weight afforded to relevant factors under s 68F(2), we think it useful to repeat the paragraphs extracted by the trial Judge:
39. She said of [GB]:
“166…. By residing with his father he would “be removed from the constant negative messages about his father that he is currently being subjected to. He would also be provided with an important opportunity to test the reality of the family situation and to develop a different mind-set from that held by his mother.”
40. Her discussion of [JB’s] situation included:
“167. …The emotional distress and the problems he is experiencing are coming from his mother, rather than from his father, and appear to have interfered with his progress at school. [JB] is likely to have a much more emotionally secure environment with his father, and would probably settle down well with him.
168. If [JB] remains with his mother he will be subjected to continuing conflict and distress that permeates his mother’s household. He would be likely to become more emotionally distressed than he is now, and is likely to experience enormous conflict and divided loyalties. He would very likely be faced with increasing pressure from the rest of the family not to see his father. If [JB] is to reside with his father it is recommended that he has frequent contact with his mother.”
41.It is consistent with the above that the counsellor’s recommendations for the wife were couched in these terms:
“170. It is recommended that [the mother] attend counselling to assist her to recognize that whatever the causes of the marriage breakdown, and whatever her views and feelings are towards [the father], that the children have a different relationship to him than she does. [The mother] needs to learn that it is in the best interests of the children to develop a relationship with their father, and to learn to foster the important father-child relationship to which all children have a prima facie right.
His Honour then remarked that in determining the mother’s application for contact he had to assess whether the mother had learned what Dr C had had to say, or “whether or not contact, if ordered, will still involve exposure of [JB] to ‘constant negative messages about his father’” (paragraph 42).
His Honour then went on to discuss orders made by Federal Magistrate Connolly on 21 December 2001 that JB live with the father. His Honour summarised the orders and findings of the Federal Magistrate as follows:
46.Other orders the magistrate made are of interest. Each party were ordered not to discuss with [JB] what occurs when he is with the other, not to use physical discipline on [JB], not to drink alcohol while [JB] is in their direct care and not to denigrate one another in front of or to [JB] or to allow [JB] to be exposed to denigration by family members. No orders at all were made for [GB].
47.The federal magistrate found, in effect, that [JB’s] relationship with the wife was “normal” but that the wife’s conduct “amounted to a form of child abuse” and was identical to what he termed “parental alienation syndrome”. He held that the wife would not change her behaviour. He said of the husband that he has the children’s interests at heart. These findings are not relied on by the Court except to permit it to assess the wife by her reaction to them. It is now more than four years since they were made, so the wife has had ample time to digest and act on them. They judge the wife as a child abuser. One would expect them to have had a salutary effect on her. (our emphasis)
At paragraph 54 of his reasons, the trial Judge set out his findings in relation to the first complaint of the mother which we have identified. His Honour said:
In July and August 2002 the wife also filed applications for contravention orders. The contraventions arose from two sources. One was a ridiculous dispute between the parties over the interpretation of the weekend contact orders of the federal magistrate. I do not know who was right or whether it was possible to determine this. Neither would budge from his or her position. The respective interpretations could not have made any difference to [JB] and would not, in even the short term, have made a significant difference to the amount of contact. The only issue was over when contact would re-start after school holidays. This dispute reached a ludicrous level when, on 8 April 2003, the husband received a letter from the wife dated 18 March 2003 which was to the effect that the wife would rather forego contact than have it on the alternate weekends which were not in accordance with her interpretation until such a time as an application to vary the orders to eliminate any ambiguity in them was heard on 30 April 2003. In fact, the matter was dealt with by a judicial registrar on 29 April 2003 and the source of contention was eliminated by consent. Whether the wife’s interpretation of the initial orders was correct or not, her decision to forego contact until the dispute over it was resolved was without consideration for [JB’s] welfare if the wife believed it was in his best interests to have contact with her. (paragraph 54)
The trial Judge then discussed a report prepared by Ms S, a clinical psychologist who had been appointed as the Court expert under the then Order 30A of the Family Law Rules 1984. The trial Judge set out Ms S’s conclusions and recommendations. Those conclusions and recommendations were:
This situation cannot continue. The mother’s attempts to alienate this child from his resident parent are extreme and unremitting. Even change of residency has not quelled her litigious pursuit to triumph over her ex-husband, through her children.
In my opinion, even the present regular contact of [JB] with his mother and her family is damaging to his emotional health and ongoing development. [JB] does love his mother, brother and grandparents and would be extremely distressed at loss of contact with them. However, his longer term emotional, social and personality [sic] health should be considered paramount.
It is thus recommended that all unsupervised contact with his mother, brother and grandparents cease – for a specified time – for the matter to again be assessed / reviewed in about 6 – 12 month’s time.
During this time, it is recommended that:
1.[JB] have supervised contact only with his mother and grandparents, with a professional worker as supervisor. I am aware of the difficulties involved in this recommendation but the alternative is complete loss of contact with his maternal family. Family members, family friends on either side or staff members attached to the parents’ work are contra-indicated in this role of supervisor.
2.The mother undergoes intensive counselling to assist her in understanding her behaviour, which will hopefully lead to a change in attitude. While the prognosis for major change is low, given the intensity of her attitudes, one should still explore this possibility, so that there is some hope for [JB] to resume regular contact with his mother in the future.
This counselling needs to be undertaken with a counsellor experienced in Parental Alienation in Family Court disputes, otherwise the sheer power of [the mother]’s narrative may lead to yet another collusive “partner” in the alienation (as appears to have happened with her Psychiatrist, who, not seeing [the father] as well, took on board issues entirely from [the mother]’s perspective). The Counsellor would need to be provided with a copy of His Honour’s judgment and/or a copy of this report. The Court would require a written report of progress from this counsellor.
3.The grandparents also undergo some counselling of the above nature, if they wish to resume regular unsupervised contact with their grandson.
4.It would be in [GB]’s best interests to be referred to his own counsellor, although, given his age, this may not be able to be enforced.
5.The father, [SG] and [JB] should be referred for family counselling, preferably to the Child Psychiatry Services [in the Newcastle area], who should be given a copy of His Honour’s Judgment and/or a copy of this report.
6.[GB] should be allowed to have some contact with [JB] if:
*this takes place in the father’s home;
*there are strictures placed upon this, of which [JB] and [GB] are both aware, i.e. only in the presence of father, [SG] or another person nominated by the father. (There is a possibility that, if contact is unsupervised, [GB], as his mother’s emissary, may well encourage [JB] to act-out in destructive ways).
7.During this period, there should be no phone contact between [JB] and his mother/grandparents/brother, since this cannot be adequately supervised. [JB] may need to be deprived of access to a mobile phone.
8.The mother, brother and grandparents need to know that these restrictions also apply to the school setting and that they may not visit the school.
9.The father should continue to send school reports, photos etc. of [JB] to his mother.
10.Decisions taken in Family Court should be relayed to [JB] and [GB] by an experienced Family Court Counsellor, preferably in the presence of both parents (maybe sequentially). [JB] needs to know that these are Orders of the Court, not decisions taken by either parent. He needs to be told that the matter will be reviewed in a specified time in the future and that any non-compliance with the Orders will not assist resumption of contact with his mother.
11.The matter should be relisted in 6 to 12 months and contact decisions reviewed at that time.
I realise that these are very unusual recommendations but this is an EXTREME case and the “usual” methods of getting families to comply with Orders which meet the child’s needs have not worked in this case. (paragraph 59)
The trial Judge, having observed Ms S give evidence, found he was
“... strongly influenced by her assessment” (paragraph 60).
His Honour specifically dealt with the assertion, maintained by the mother in her submissions before us, that the father had permitted JB to be exposed to pornographic material in DVD’s. His Honour recorded his findings that the DVD’s were given to JB to play with by the father’s employer’s wife who had retrieved them from the rubbish bin and recorded over them without knowing pornographic material was also on them. His Honour concluded
“... [n]othing adverse to the husband’s character can be drawn from this incident.” (paragraph 79). He further noted that during the period the mother had only supervised contact to J that “... there were no incidents worthy of mention.” (paragraph 80).
The trial Judge noted that after approximately five months of supervised contact, interim consent orders for that contact were discharged and orders were made in lieu that the mother have unsupervised contact with JB on alternate Saturdays from 10.00am to 6.00pm. His Honour also recorded that JB was due to play soccer on a contact day and provision was made for contact to commence at the time the game was due to commence. His Honour said that this “... turned out to be a recipe for the imposition of further stressful situations on [JB] because the husband was an assistant coach of his team and was present at these games” (paragraph 83). The trial Judge then set out the factual background of the conflicting evidence of the parties of their exchanges at [JB’s] soccer matches. The trial Judge was critical of both parties about their attitudes and actions displayed at soccer. His Honour concluded:
... Here, as [JB] lives and will continue to live with the husband, the wife’s behaviour, not any insufficient or inappropriate reaction by the husband, is the main focus. She does not seem to have appreciated the problem she caused for [JB] by confronting the husband in [JB’s] presence. Her complaints, in any event, are extremely petty and self-centred, yet the stress [JB] suffered as a result of the wife’s positive or aggressive behaviour was so severe he soiled his pants. The husband says, and I accept, that if [JB] did soil his pants he did not know of it. (paragraph 86)
Having dealt with another incident which occurred on 1 May 2004 and the effect the incident had on JB (paragraphs 91 and 92), the trial Judge thereafter critically evaluated, not only the mother’s conduct, but the conduct of the father and his de facto spouse.
His Honour then commented on the report prepared by Ms S dated 29 July 2004. Ms S was noted to opine that the father and his de facto spouse must be seen as reacting to the mother’s behaviour. His Honour concurred with that opinion.
In dealing with the relevant s 68F(2) factors the trial Judge carefully evaluated JB’s wishes, which showed him to be ambivalent about contact with the mother. His Honour concluded that JB would probably like contact with the mother if stress associated with that contact was removed. The trial Judge concluded that JB “probably has an excellent, and fortunately normal, relationship with each of these family members [the father, his de facto spouse and her child].”
Dealing with his assessment of the relationship between JB and the mother and the maternal grandparents, his Honour said that they were likely to continue to pressure JB to become “alienated from the husband and that side of [JB’s] family, whether deliberately or unconsciously.” His Honour concluded “... [t]he pressure they are likely to put on [JB] is such that there is an entirely unacceptable risk that [JB] will become as disturbed as [GB]” (paragraphs 155 and 156).
The trial Judge concluded that JB was “doing extremely well because he has virtually not seen the wife, her parents and his brother since October 2004.” His Honour said:
... I accept that he has done best when he has not had any substantial contact. When he was last having unsupervised and overnight contact he preferred supervised contact. (paragraph 157)
The trial Judge then assessed the risks to JB of complete cessation of contact with the mother and rejected this proposal as inappropriate. His Honour then considered how he could structure orders for JB to have contact with the mother without being exposed to conflict, and determined that contact should take place at the children’s contact centre operated by Centacare. The trial Judge noted “... [i]t is quite remarkable that the wife did not produce anyone who might supervise contact at her home” (paragraph 164).
In dealing with the capacity of each parent to meet JB’s needs the trial Judge found that the father was better able to meet both JB’s intellectual and emotional needs. In considering the protection of JB from harm caused by direct abuse or the likelihood of exposing him to abuse of others, the trial Judge found the mother and the maternal grandparents were likely to abuse JB psychologically if he was not adequately protected. His Honour thereby concluded that a reduction in contact and close supervision of contact were the only methods of protection suitable.
In dealing with parental responsibility and attitudes to parental responsibility, his Honour summarised his earlier evidence of the mother’s inability to change as a result of reading earlier reports in the proceedings.
Turning to the question of family violence, the trial Judge addressed the assertions made by the mother that the father had behaved violently. His Honour said:
... I accept that he believes in smacking and has hit [GB]; described as a clip over the ear, but do not regard such conduct as coming within the ambit of ‘violence’ because there are still many otherwise decent people who believe it is appropriate to discipline a child by smacking. The closest to violence he has come is when he used no more than reasonable force in an effort to remove the wife from his home when she invaded it. (paragraph 171)
The trial Judge further said:
I should make it clear that there is much to be said for regarding parental alienation of a child by an adult as psychological violence perpetrated on the child. (paragraph 172)
Having discussed the desirability of avoiding further litigation, the trial Judge concluded:
My conclusion is that the level of contact recommended by Ms [S] is the most likely regime to best promote [JB’s] overall emotional well-being for the short and long term. I have been quite inclined to end contact altogether because there is much force in the husband’s approach. I have decided not to do so because I think there is some danger to [JB] by doing so. (paragraph 175)
The appeal against parenting orders
The asserted bias by the trial Judge (Ground 1)
In her written submissions the mother said that she was concerned, not that there was actual bias by the trial Judge, but rather “as a layperson the Wife found a reasonable apprehension of bias.”
The mother relied on three categories of alleged behaviour which she submitted supported her argument. First, she referred to exchanges during closing submissions between her counsel and counsel for the child representative. Secondly, she asserted the trial Judge “badgered and intimidated” her mother, Mrs R, by cross examining her. Thirdly, the mother asserted that the trial Judge “went beyond” his judicial duty in providing “detailed advice on how the husband should cross-examine the Wife and the Wife’s witnesses and how to conduct his representation for the Husband’s benefit” (mother’s submissions filed 15 November 2006, paragraph 12). We will now examine each of the categories of asserted bias.
The mother set out extracts from the transcript where his Honour raised in his dialogue with counsel for the child representative during his final submissions his preliminary conclusions at the completion of the evidence about the mother and the maternal grandparents (transcript, 22 July 2005, p 343). Similarly the mother raised the trial Judge’s dialogue with her then counsel during closing submissions discussing the father’s attitude to her (transcript, 22 July 2005, pp 351 to 354).
The mother also raised the issue of the trial Judge referring to his observations of the mother during the hearing with the family report writer Ms S for her comment. His Honour said:
... Now, I can’t tell what that means, but what does concern me is if she sees [JB] she will behave in some way or other which conveys to [JB] her extreme emotion about the whole situation, that that might harm [JB]; what would say about that? (transcript, 21 July 2005, p 254)
The High Court in Johnson v Johnson (2000) 201 CLR 488 referred to earlier decisions where courts had discussed the “test” to be applied to determine whether there was apprehended bias, as distinct from actual bias, namely “whether a fair-minded lay observer might reasonably apprehended that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide” (emphasis added). Their Honours (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) further said at 493:
12. … [t]he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
13.While the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. … Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. (footnotes omitted)
Nothing the mother has taken us to, viewed objectively, discloses conduct by the trial Judge in his exchanges with counsel or in posing a question to Ms S about his courtroom observations of the mother, which would lead a fair minded lay person to reasonably apprehend the trial Judge would not bring an impartial mind to the issues in dispute.
We turn then to consider the mother’s assertion that the trial Judge engaged in inappropriate conduct in asking questions of the maternal grandmother. To the extent the mother raised the trial Judge’s action in rejecting illegally recorded phone conversations between the maternal grandmother and the father, we note this is not a ground of appeal. Even if such matter is inferentially raised as a ground of appeal, we do not see any error in the rejection of such evidence by the trial Judge in the exercise of his discretion (see s 138(1) of the Evidence Act1995 (Cth)).
Mrs R’s cross examination occurred on 20 July 2005. The transcript discloses that cross examination by the father commenced at 3.45pm and concluded at 3.54pm. Our examination of the transcript does not reveal the cross examination to be lengthy or that any questioning by the trial Judge during that cross examination could be described as other than appropriate given the history of the matter.
The final category of asserted bias is the trial Judge’s conduct of the case when the father appeared without legal representation. The transcript of 18 July 2005, the first day of the trial, discloses that the trial Judge told the father about the manner in which the case would be heard, the nature and role of cross examination in the proceedings, and the role of counsel for the child representative including the calling of the Court counsellor. His Honour also explained the father’s right to object to inadmissible material.
In Re F: Litigants in Person Guidelines (2001) FLC 93-072 the Full Court summarised the suggested practise or “guidelines” to be adopted by a trial Judge hearing a case where one or both parties are unrepresented. We think it is useful having regard to the mother’s assertions to set out that summary which is as follows:
1. A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;
2. A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses;
3. A judge should explain to the litigant in person any procedures relevant to the litigation;
4. A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation;
5.If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;
6. A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise;
7. If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;
8. A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v Nott (1994) 121 ALR 148 at 150);
9. Where the interests of justice and the circumstances of the case require it, a judge may:
· draw attention to the law applied by the Court in determining issues before it;
· question witnesses;
· identify applications or submissions which ought to be put to the Court;
· suggest procedural steps that may be taken by a party;
· clarify the particulars of the orders sought by a litigant in person or the bases for such orders.
The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.
There is nothing in the transcript which shows any significant deviation by the trial Judge from “the guidelines”.
We conclude none of the mother’s assertions of bias by the trial Judge have been established. Accordingly the grounds directed to bias must fail.
Alleged failure to give appropriate weight to ss 60B, 65N, and 68F(2) (Grounds 2, 3, 4 and 6)
These grounds, which challenge the exercise of discretion by the trial Judge, contain considerable overlap.
At the commencement of our discussion it is useful to set out the relevant provisions which were in place in 2005.
At that time s 60B, the objects provision of Part VII, was in the following terms:
(1) The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that, except when it is or would be contrary to a child’s best interests:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c) parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children.
The effect of s 60B then in force was discussed by the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,219 to 84,220:
9.51 In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII of the type to which we have referred, starts from that essential premise and it remains the final determinant.
9.52 The legislature has also made it clear that in that process the Court is required to have regard to both the provisions contained in s 68F(2) and those contained in s 60B.
9.53 The wording of s 68F(2) makes that clear — the Court “must consider” the various matters set out in (a)-(l) of that sub-section. That sub-section sets out a list of matters which the Court is required to consider to the extent that they are relevant to the particular case. The weight which is attached to any one consideration will depend upon the circumstances of the individual case and is a discretionary exercise by the trial Judge. The list is similar to the list contained in previous legislation but with the additions previously referred to. The list is not intended to be exhaustive. That is made clear by par (1) “any other fact or circumstance that the court thinks is relevant”. This simply underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of the particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.
9.54 Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to s 65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub- section (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court's consideration of the matters in s 68F(2) and to the overall requirement of s 65E. The matters in s 68F(2) are to be considered in the context of the matters in s 60B which are relevant in that case. But s 65E defines the essential issue.
9.55 Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of the children in the particular case. Although the Attorney- General submitted that the inter-relationship between the three sections was as much about procedure as it was about substantive law, we think it would be a mistake for this essential exercise to be clouded by procedural or semantic issues.
Section 65N then provided as follows:
(1) This section applies if a contact order is in force in relation to a child.
(2) A person must not:
(a) hinder or prevent a person and the child from having contact in accordance with the order; or
(b) interfere with the contact that a person and the child are supposed to have with each other under the order.
It appears to us that reliance on this provision by the mother would have had greater significance if the applications before the trial Judge were for contravention of parenting orders rather than an application for contact.
Section 68F(2) provided as follows:
(2) The court must consider:
(a) any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s wishes;
(b) the nature of the relationship of the child with each of the child’s parents and with other persons;
(c) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person, with whom he or she has been living;
(d)the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(e) the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;
(f) the child’s maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant;
(g) the need to protect the child from physical or psychological harm caused, or that may be caused, by:
(i) being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or
(ii) being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person;
(h) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(i) any family violence involving the child or a member of the child’s family;
(j) any family violence order that applies to the child or a member of the child’s family;
(k) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(l) any other fact or circumstance that the court thinks is relevant.
The mother’s written submissions in respect of these grounds focused firstly on her assertion that the trial Judge gave insufficient weight:
· to the asserted actions by the father said to prevent contact between the mother and JB;
· to the assertion the father consented to contact between the mother and JB and then refused contact;
· to physical abuse of the father of JB and his older brother GB; and
· to the effect on JB’s relationship with the mother, and the effect of limited supervised contact on that relationship.
The father’s solicitor’s submissions in respect of each of these grounds contained a general assertion that “Such Ground of Appeal has no merit”. Whilst counsel for the child representative’s submissions were similarly framed, he did note that the case before the trial Judge was not a residence case, but a contact case. He described the central issue for determination by the trial Judge as:
The central issue became an enquiry to determine whether the appellant had demonstrated a capacity to conduct any contact regime without causing [JB] high levels of stress and anxiety, whether the appellant has changed attitudes and behaviours contributing to the stress and anxiety of [JB], and whether she would be likely to be able to make required changes for the future.
The mother’s grounds of appeal, other than ground 1, challenge the exercise of the trial Judge’s discretion. The principles applicable to such appeals are well known (see House v The King (1936) 55 CLR 499 and Gronow v Gronow(1979) 144 CLR 513; (1979) FLC 90-716).
In dealing with the first asserted error by the trial Judge, it is clear from his Honour’s reasons that he carefully recorded the parties’ competing versions of events occurring when contact changeover took place at JB’s soccer matches, and found that both parties acted inappropriately at this time.
The trial Judge also made findings critical of the mother when she applied for residence orders in October 2004, and appeared to disregard the opinions in the expert reports which had then been prepared.
The mother’s complaint, directed to ground 3, from her submissions appeared to centre on an asserted failure of the trial Judge to specifically refer to letters, which she did not identify, other than to say they were exhibits before the trial Judge. She submitted these demonstrated the father agreed to contact to JB, and then refused contact.
His Honour’s reasons disclose a very careful recitation of the history of the parties’ dispute, review of the significant events in issue between them, and consideration of the relevant expert reports as well as his Honour’s assessment of the parties’ evidence. The trial Judge also had careful regard to the evidence and made findings under each relevant s 68F(2) factor. Whilst the mother is critical of the trial Judge’s reasons, her submissions are for the most part focused on selected extracts from the transcript.
The hearing was conducted over five days between parties with a lengthy history of disputation over parenting and property issues. It is not necessary that a trial Judge’s reasons cover every aspect of the evidence before him or her, provided the essential reasoning process of the trial Judge can be discerned (see A v J (1995) FLC 92-619 at 82,230 to 82,233). We are satisfied that his Honour did not overlook any essential feature of the evidence, and that his orders, which adopted the final recommendations of Ms S and the child representative, were within the generous ambit of the exercise of his discretion.
We have already set out the trial Judge’s recording of the father’s evidence of giving GB a “clip over the ear”, and his assessment of that evidence. Whilst we express no opinion about the trial Judge’s comments about physical chastisement of children, in this case the issue of the father’s suitability as a residence parent was not in issue, and the mother does not raise any complaint about physical abuse by the father of JB not dealt with by the trial Judge. We see no appealable error by the trial Judge in assessing matters relevant to the contact the mother was seeking.
The mother also made a complaint about the trial Judge’s treatment of “abuse” in respect of a pornographic DVD given to JB by the father. We have set out above his Honour’s careful analysis of this evidence. We see no merit in this aspect of the mother’s submissions.
The mother’s assertion was that the trial Judge failed to give sufficient weight to the effect on JB of contact with the mother (and GB and the maternal grandparents) being limited in duration and to supervised visits in a children’s contact centre.
We have already recorded a number of the trial Judge’s findings about the various forms of contact which JB had to the mother, and the effect on him of such contact. His Honour found:
· JB was settled and did well at school when supervised contact was in place
· When unsupervised contact resumed JB did not do as well at school and was very anxious when approached by the wife at soccer (paragraphs 108 and 109)
His Honour also carefully assessed the father’s case that there should be no contact, and found that the ongoing litigation was not in JB’s best interests. His Honour accepted the father’s evidence of JB’s reactions to contact reported to Ms S as truthful. His Honour agreed with the father’s assertion that a cessation of contact altogether would remove any opportunity for the mother and her family members to be critical of the father, but said he had to determine whether such a step would be in JB’s best interests.
In dealing with s 68F(2)(c) his Honour specifically dealt with the effect of the orders he ultimately made. We repeat his Honour’s findings at paragraph 159 on this issue:
Nevertheless, complete denial of contact will create risk. He may commence to idealise his mother, miss her and/or [GB] so much that he will decide to run away to her, react against being deprived of contact by becoming resentful of the husband and thereby tend towards the very problem; parental alienation, which is to be avoided or lessen his bonds with the wife and his grandparents and brother to a degree which will also adversely effect his long term emotional well-being. If the wife, herself, has a breakdown, this will not have much effect on him if he does not see her but, in the long term, he will learn of it and appreciate its effects with real risk to his own emotional balance. (paragraph 159)
The trial Judge also considered the need to make orders to provide for JB to have contact with the maternal grandfather because of his illness. His Honour also carefully weighed up the various options for supervision of contact noting the mother rejected Ms W as a supervisor, and that she did not suggest an alternate supervisor. His Honour noted the mother did not object if there had to be a supervisor, to Centacare being the provider at its children’s contact centre. None of these findings are subject of challenge by the mother.
The trial Judge’s analysis of the advantages and disadvantages to JB of various contact proposals, and in particular the effect of supervised contact on his relationship with the mother were carefully weighed and considered. We discern no appealable error by the trial Judge in the exercise of discretion in determining that limited supervised contact at the children’s contact centre was the most appropriate option for JB.
Asserted failure to consider or give weight to the diagnosis by Dr C of parental alienation syndrome, and Dr C’s failure to interview the mother with the children (Ground 5)
Reports prepared by Dr C dated 5 October 2001 and 15 November 2001 were tendered before the trial Judge by counsel for the child representative.
In her written submissions, the mother relied on two arguments to support this ground namely:
·the unreliability or weight which can be given to a report where the expert does not interview the parents with the child; and
·inappropriate weight being given to a diagnosis of parental alienation syndrome.
In her substantive report Dr C set out details of the interviews conducted by her on 28 September 2001, and observations made by her at the Family Court on the same day. We accept that Dr C did not observe the children in the presence of the mother, although she did observe the children in the presence of the father. However, she conducted individual interviews with each of the children, the parties and the maternal grandparents. Dr C did not make a diagnosis of “parental alienation syndrome”. At paragraph 39 of her report she said:
[The mother] appears to be deliberately alienating the boys from their father. She appears to have been more successful in this with [GB] compared to [JB].
Dr C’s reports were prepared for the proceedings before the Federal Magistrate. As we have previously recorded, his Honour noted that Dr C was “not well disposed toward the wife”. We have earlier in these reasons set out the basis upon which the trial Judge relied on Dr C’s report (see paragraph 30).
The trial Judge noted that the Federal Magistrate who heard the earlier proceedings between the parties found the mother’s conduct “abuse”. His Honour noted the Federal Magistrate had described it as identical to “parental alienation syndrome”. However, his Honour did not rely on these findings which were based it appears in part on Dr C’s report, “except to permit it to assess the wife by her reaction to them” noting it was four years since the comments were made.
It is clear from his Honour’s reasons that the expert evidence to which he had significant regard was that given by Ms S, who gave oral evidence before him and was cross examined. Having regard to his Honour’s careful analysis of all of the evidence, we are satisfied that his Honour did not place any inappropriate weight on Dr C’s report which he noted was not tested by cross examination, and that Dr C made no “diagnosis” of “parental alienation syndrome”.
Whilst we accept that Ms S and the trial Judge use the words “parental alienation”, Ms S also did not diagnose the mother as suffering “parental alienation syndrome”, the syndrome which has been described as “invented” by American psychologist, Richard Gardener (1992) (see Dr E McInnes, “Parental Alienation Syndrome: A paradigm for child abuse in Australian family law”, in Australian Institute of Criminology, Child Sexual Abuse: Justice Response or Alternative Resolution Conference, Adelaide, 1-2 May 2003).
The distinction between the “Parental Alienation Syndrome paradigm” and “parental alienation” is discussed by Dr Elspeth McInnes in her paper, “Parental Alienation Syndrome: A Paradigm for Child Abuse in Australian Family Law” (supra).
We are satisfied that neither Dr C nor Ms S “diagnosed” the mother as suffering “parental alienation syndrome”.
Accordingly, we are satisfied that the matters asserted by the mother in ground 5 have no merit.
The Costs Appeal
His Honour delivered written reasons for judgment in respect of the father’s application for costs on 4 April 2006.
His Honour noted that the father sought “$15,000.00 in costs”. The father sought costs on the basis that if costs, after assessment, exceeded $15,000.00 he would only pursue an order in that quantum. He sought an order that such sum be set off against his contingent debt of $15,000.00 due to the mother pursuant to consent orders dealing with the division of the parties’ property. The trial Judge noted the mother opposed the father’s application for costs.
Having set out the history of the proceedings, his Honour said:
It is not the law that past litigation in which an order for costs could have been made against a party but was not cannot be considered as part of a pattern of conduct which might ultimately warrant an order for costs in different litigation. I find, with little difficulty, that the wife was largely unsuccessful in the non-Family Court proceedings and that she either initiated them or by her conduct virtually forced the husband to initiate them. (paragraph 8)
Thereafter the trial Judge referred to earlier proceedings between the parties including the proceedings before Federal Magistrate Connolly in December 2001. Later in his reasons his Honour said:
In the light of the wife’s continuing intransigence and the consequent possibility of further applications which are likely to come to [JB’s] knowledge and disturb him and cause the husband to incur further costs, an order for costs appears to be the only means available to the Court to express its great disapproval of her conduct of the proceedings before me and to discourage the wife from repeating her so far unremitting and wilful conduct despite the fact that, in a sense, she did succeed to a small degree in opposing the husband’s ultimate stance of denying her any contact with [JB]. He only reached that stance because her conduct drove him to see that as the only way to protect [JB] from her. (paragraph 21)
In determining the quantum of costs payable by the mother the trial Judge said:
I am satisfied that, of the $30,000.00 in costs the husband has incurred to his lawyers, most of these costs have been incurred in the proceedings I heard, despite the necessary incurring of costs for associated proceedings such as enforcement proceedings. All or virtually all of the $30,000.00 in costs accrued after the commencement of the proceedings in the Family Court. A $2,000.00 part of these costs have been awarded against the wife for the interim proceedings which Mullane, J. heard. This sum has been paid by the wife. I have little doubt that if the balance were to be taxed, the husband’s costs would be taxed on a party/party basis at more than $15,000.00 despite his non-representation by a lawyer at the final hearing. It is a very modest sum in the circumstances. I also have little doubt that the wife will require taxation if I order that costs be taxed or agreed. The cost of taxation will be disproportionate to the $15,000.00 asked for by the husband. The wife would be liable for the costs of taxation but has no money, so will not pay them for many years, if at all. Yet the husband will have to pay his lawyers to prepare the bill for taxation. Justice demands that I assess costs at $15,000.00 and I shall do so. (paragraph 31)
We think it useful at this stage to set out the relevant provision of the Act dealing with costs (s 117) which provides as follows:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
As we indicated at the commencement of these reasons, our examination of the mother’s challenge to the costs order ultimately made by the trial Judge is directed to his Honour’s reasoning in paragraphs 8, 21 and 31 of his reasons for judgment.
The first challenge to his Honour’s reasoning is directed towards his finding about the mother’s conduct generally, including her lack of success in non Family Court proceedings.
As we have already noted, the father’s solicitor provided detailed written submissions in respect of the costs appeal. We also record that we rejected the father’s application to rely on further evidence in respect of the costs appeal.
In his submissions the father’s solicitor submitted the trial Judge’s findings in paragraph 8 were “correct in fact and in law”. The submissions were directed to conduct as a circumstance to be taken into account in s 117(2A)(g) rather than s 117(2A)(c). We accept that conduct in this case could only be a relevant consideration under s 117(2A)(g). The submissions referred to cases where a party’s conduct in failing to make a full, frank and complete disclosure of his or her financial position has led to the imposition of a costs order.
The issue of conduct
In Brott and Joachim (2006) FLC 93-259 the Full Court considered the question of conduct in earlier proceedings in the Court when determining a costs application in subsequent proceedings. The Full Court discussed the relevant authorities dealing with conduct in costs applications.
The trial Judge does not specify whether his comments expressed in paragraph 8 are referable to conduct of the type referred to in s 117(2A)(c) or whether he was directing his comments to s 117(2A)(g). If the latter is the case, the authorities discussed in Brott and Joachim (supra) are apposite. At paragraphs 35 and 36 the Full Court said:
35.In Minister for Immigration & Multicultural Affairs v Vadarlis (No.2) (2001) 188 ALR 143, the Full Court of the Federal Court, in respect of the power to award costs, referred with approval to the decision of Bray CJ in Cretazzo v Lombardi (1975) 13 SASR 4 (at 11) where Bray CJ said:
“I think the guiding principle still stands as it left the House of Lords in the famous case of Donald Campbell & Co v Pollak, that the general discretion is absolute and unfettered, except that it must be exercised judicially, not arbitrarily or capriciously, and that it cannot be exercised on grounds unconnected with the litigation.”
36.The Full Court then said:
“[12] The award of costs to a successful party is principally by way of perceived restorative justice. The general rule assumes that where an applicant succeeds it will have incurred costs because the respondent’s conduct made it necessary for the applicant to bring the proceedings.…The order made in such cases is compensatory:
‘If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings: Chilli v Abbott (1981) 53 FLR 108 at 111.’
“(Latoudis v Casey (1990) 170 CLR 534; 97 ALR 45 per Mason CJ at CLR 543; ALR 50; see to similar effect McHugh J at CLR 567; ALR 68.)”
We note the introductory words of s 117(1) and (2A) each refer to “proceedings under this Act”. It is apparent to us from paragraph 8 that his Honour appeared, in the broad exercise of his discretion, to take into account an irrelevant matter, namely the asserted lack of success of the mother in non family law proceedings. There was no evidence before us, or before his Honour, of any applications for costs made to and/or determined by other judicial officers in proceedings in other courts, or in proceedings in this Court and the Federal Magistrates Court under the Act, save and except the order made by Mullane J on 31 January 2005.
We have carefully read the father’s solicitor’s submissions directed to the question of whether the basis on which the trial Judge made the costs order was compensatory rather than punitive. We are unable to accept the submission made on behalf of the father that the trial Judge’s reference to the conduct of the mother, which included his Honour’s statement that he was making the order to “discourage the wife from repeating her so far unremitting and wilful conduct”, supports an interpretation that he intended the order to be compensatory.
Our reading of paragraph 21 of his Honour’s reasons for judgment leads us to the conclusion that his Honour was awarding costs, not to compensate the father, but rather as a punitive measure against the mother.
We finally turn to address the issue of the quantum of costs ordered by the trial Judge.
The father’s solicitor’s written submissions set out factors in support of the existing order of $15,000.00. We accept the practicality of the submission that, in an appropriate case, a judicial officer should make an order in sum certain, rather than put the parties to the expense and stress of further proceedings to assess costs. However, we note that the rules introduced a simpler procedure for assessment of costs, with provision for preliminary assessment on the papers (r 19.29), and financial consequences for proceeding with an unmeritorious challenge to any item (r 19.30(3)).
The solicitor’s submissions noted that the mother’s grounds of appeal did not specifically raise a challenge to the quantum of costs sought. The mother’s Notice of Appeal discloses that she sought to appeal both orders made by the trial Judge on 4 April 2006. We have already discussed the difficulties occasioned by the fact the mother was not legally represented, and how her grounds of appeal were identified at the oral hearing before us having regard to the principles referred to by the High Court in Neil v Nott (1994) 68 ALJR 509. We are satisfied the mother did seek to put the quantum of the costs order in issue.
The father swore an affidavit on 21 October 2005 in support of his application for costs. He set out the history of the litigation in the Family Court from 2002, details of all litigation since separation, including details of proceedings in the Local Court and the Federal Magistrates Court. He thereafter set out dates and quantum of memoranda of costs and disbursements rendered by his solicitors during the period from 2 May 2003 to 8 August 2005 totalling $28,683.40. The affidavit did not set out in itemised form details of the costs rendered, or the basis on which they were calculated. However, in paragraph 27 of his affidavit the father referred to a costs agreement. He also noted that the mother had been ordered to pay costs in the sum of $2,000.00 which she had paid directly to his solicitors on 1 March 2005.
We are satisfied there was little evidentiary basis on which the trial Judge could make a finding that costs payable on an assessment (referred to by the trial Judge as a taxation) would exceed $15,000.00, particularly as the father was not legally represented at the final hearing.
As we are satisfied that the underlying foundation on which his Honour’s order was based, namely the calculation of the quantum of approximate costs which would be payable by the mother, was not capable of determination on the evidence before his Honour the order cannot stand. Accordingly, the mother’s appeal against the order for costs made on 4 April 2006 must succeed.
Re-exercise of the discretion
At the conclusion of the hearing we invited the parties to consider whether, if the costs appeal was successful, we should re-exercise the discretion. There was no real opposition by either party to that course. Having regard to the length of time this litigation has been on foot, and the parties’ respective financial positions we consider it appropriate that we re-exercise the discretion rather than remitting the costs application for rehearing.
In dealing with this application we have regard to the criteria set out in
s 117(2A). It is not in doubt there is power to make an order for costs (see Penfold v Penfold (1980) FLC 90-800) and that a costs order can be made in a children’s matter in an appropriate case (see I and I (No 2) (1995) FLC 92-625).
The father set out his financial position in his affidavit in support of costs. The father’s evidence of his financial position was extensively canvassed by two Full Courts in the father’s two applications for security for costs in respect of these appeals. His position was recorded in the first security application as follows:
13. The father relied on his Affidavit sworn on 9 December 2005. In that affidavit the father set out the history of the litigation between the parties. He deposed to having incurred legal costs of $28,683.40 of which $2,000 were paid by the mother as a result of a costs order. He deposed to having a present debt to his solicitors of $8,327.29 plus interest, being the balance of his outstanding costs and expenses.
14. In his affidavit the father also set out details of his financial circumstances. His income is derived from employment as a rescue trainer ($26,343) and an annual pension of $38,530. The father also set out SG’s income of approximately $1,000 per week. He also provided details of his assets and liabilities and present superannuation entitlement. Those details revealed that the father’s total assets including superannuation were approximately $204,000 and his liabilities (including a joint mortgage liability with SG) totalled $386,000.
The mother’s financial position was also subject of discussion by the Full Court, who recorded at paragraphs 18 and 19:
18. The mother relied on her affidavit sworn 17 February 2006. In her affidavit the mother deposed to an application brought by the father for costs of the proceedings before the trial Judge such application being returnable on 10 March 2006. She deposed “I do not have the financial resources to pay for any costs if granted to the Husband. I am now seeking a Centrelink pension until I am able to secure employment. Previous to that I had been on a Workcover income from my previous employer.”
19. The mother further deposed to having outstanding debts totalling $16,700 including a debt to her parents of $11,000.
The mother’s impecuniosity, amongst other factors, led to the two orders for security which were made and complied with by the mother.
We accept the mother’s financial position is presently poor. The father is in a somewhat stronger financial position. We accept his income is superior to that of the mother.
We also accept that there is no evidence that either party was in receipt of legal aid.
In dealing with the remaining criteria in s 117(2A) it appears to us there are three matters which are significant:
·the mother’s application for a residence order (although that application was only pursued by her for a relatively short period of time);
·the fact that the mother was largely unsuccessful in her application; and
·the offer to settle the proceedings made by the father in writing on 2 June 2005.
These factors, in our view, constitute circumstances which require departure from the provisions of s 117(1) that each party pay their own costs, and dictate that the mother should pay a substantial part of the father’s costs as agreed or assessed.
Overall, given the broad discretion available in making a costs order, we are of the view that the mother should pay two thirds of the father’s costs of the parenting proceedings on and from 31 July 2002. There is insufficient evidence before us to enable us to assess the quantum of those costs. Hence our order will be that the mother pay two thirds of the father’s costs as agreed or failing agreement as assessed under Chapter 19 of the rules.
Costs of the substantive appeal
In considering the costs of this appeal it is unnecessary for us to repeat the evidence concerning the parties’ respective financial positions. We have taken into account the reasons and orders of the Full Court dealing with the security application in respect of this appeal. The mother has been wholly unsuccessful in the appeal. Taking into account these matters we consider it would be appropriate for the mother to pay the father’s costs of the appeal as agreed or assessed if those costs are equal to or less than $5,000.00. In the event the costs on assessment exceed $5,000.00 we consider the mother’s costs should be limited to that sum.
The independent children’s lawyer sought an order for costs in the sum of $4,500.00. In the circumstances of this case we do not think it is appropriate to require the mother to pay those costs having regard to her financial circumstances.
Costs of the costs appeal
This appeal has succeeded on the basis the mother has established an error of law by the trial Judge. We consider it is appropriate that certificates under the Federal Proceedings Costs Act 1981 (Cth) should be granted to both parties in respect of this appeal. We are cognisant that the mother was required to lodge security in respect of this appeal in the sum of $1,000.00.
The sum paid into Court by the mother as security for costs of the costs appeal should now be paid out to the mother.
I certify that the preceding one hundred and twenty seven (127) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 23 May 2007
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