BURNETT & GREEN - [2009] FamCAFC 132

FAMILY COURT OF AUSTRALIA

BURNETT & GREEN

[2009] FamCAFC 132

FAMILY LAW - APPEAL – PARENTING ORDERS – Whether the trial Judge was biased against the father on the basis of his health – Where the father’s medical condition was an insignificant factor – Where the trial Judge identified the serious issues to be considered – Complaint lacked substance.

FAMILY LAW - APPEAL – PARENTING ORDERS – Whether the trial Judge misunderstood or ignored evidence – Where no transcript provided by the father – Where the father misunderstood role of trial Judge and judicial process – Complaint lacked substance.

FAMILY LAW - APPEAL – PARENTING ORDERS – Whether the trial Judge failed to give adequate weight to the wishes of the children – Where the Independent Children’s Lawyer had recommended the children spend no face to face time with the father – Where the trial Judge considered the advantages and disadvantages of no face to face time – Where the trial Judge considered the evidence of the single expert – No appealable error.

FAMILY LAW - APPEAL PARENTNG ORDERS – Whether the trial Judge erred in failing to allow evidence to be tendered – Where the majority of the material concerned had been admitted into evidence and marked as an exhibit – Whether material should be adduced as further evidence – Where the material concerned lacked relevance – Where documents would not have effected the outcome of the proceedings – Where the trial Judge would not have been in error if documents had been rejected – Documents should not be admitted as further evidence.

FAMILY LAW - APPEAL – PARENTING ORDERS – Whether the trial Judge erred in failing to transfer the proceedings to a higher court – Complaint demonstrated lack of understanding of judicial process by self represented litigant.

FAMILY LAW - APPEAL – Appeal dismissed.

FAMILY LAW - COSTS – Each party to pay own costs of the appeal.

CDJ v VAJ (1998) 197 CLR 172 ; (1998) FLC 92-828
Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716

APPELLANT:

Mr Burnett

RESPONDENT:

Ms Green

FILE NUMBER:

MLF

1980

2006

APPEAL NUMBER:

105

2007

DATE DELIVERED:

29 July 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

May, Boland & Stevenson JJ

HEARING DATE:

11 March 2009

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

16 November 2007

LOWER COURT MNC:

[2007] FamCA 1343

REPRESENTATION

ADVOCATE FOR THE APPELLANT:

Mr Burnett appeared in person

COUNSEL FOR THE RESPONDENT:

Mr Devries

SOLICITOR FOR THE RESPONDENT:

Kerr & Thomas, Lawyers

Orders

The appeal is dismissed.
Each party to pay their own costs of and incidental to the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Burnett & Green 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 MELBOURNE

Appeal Number: SA 105 of 2007
File Number: MLF 1980 of 2006

Mr Burnett

Appellant

And

Ms Green

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 16 November 2007 Murphy J made a series of carefully crafted orders for the three children of Mr Burnett and Mrs Green to spend graduated periods of time with their father. The orders commenced with day periods at a contact centre each alternate Saturday and progressed to alternate weekends and half of all school holidays without supervision. Each step was conditional upon the father’s having complied with the antecedent provisions of the timetable provided by the orders.
The three children of the parties are:
J born in June 1992
M born in January 1994 and
G born in December 1995.
They were 15, 13 and almost 12 years old at the time of the trial and 16, 14 and 13 when we heard this appeal in March 2009.
The children were independently represented at trial. The Independent Children’s Lawyer submitted that there should be no orders for the children to spend time with their father. On 28 November 2007 the father, who has represented himself at all times, filed a Notice of Appeal. The mother resisted the appeal.

Grounds of appeal

It was difficult to discern from the Notice of Appeal the precise complaints sought to be agitated by the father. This problem was compounded by the fact that he failed to provide a transcript. He made an application to the Full Court for provision of a transcript of the hearing before the trial Judge, at the Court’s expense, on 8 October 2008. This application was refused and the Full Court warned the father of the potential consequences for his appeal if he were to proceed without a transcript. It was difficult for us and the mother to appreciate the nature of the father’s complaints although at the hearing of the appeal we endeavoured to clarify his complaints and the Presiding Judge identified to the father what we perceived to be five broad areas of complaint he raised against the trial Judge’s orders.
We will summarise the five identified areas of complaint shortly, but for completeness now set out the nine grounds of appeal as follows:
1.AS I STATED IN MY AFFIDAVITS I BELIEVED THAT I WOULD NOT GET A FAIR AND JUST TRIAL AND I WAS CORRECT. I [MR BURNETT] AM APPEALING AND WILL FIGHT FOR WHAT I BELIVE IS RIGHT, DUE TO THE FACTS THAT JUSTICE MURPHY IS PREDJUDICE AGAINST MY MEDICAL CONDITION (EPILEPSY) AND YET JUDGE HARNETT STATED AT THE DANDENONG FEDERAL MAGISTRATE COURT [IN JUNE 2006] THAT MY EPILEPSY WAS NOT AN ISSUE. “IT IS OBVIOUSLY JUSTICE MURPHY IS PEDJUICE ABOUT MY EPILEPSY” JUSTICE MURPHY HAS NO RIGHT TO PLAY GOD AND NO REAL INSIGHT TO TO MY MEDICAL CONDITION AND THE REAL VALUES OF A “FAMILY” IT IS ALSO OBVIOUS TO ME AND JUSTICE MURPHY BELIEVES IN WRITING “FICTIONAL AND PREDJUICED COURT ORDER” AND IT IS JUSTICE MURPHY THAT LACKS THE REAL INSIGHT TO THE BIG PICTURE TO THE WHOLE SITUATION OVER ALL “I AM AN AUSTRAILAN” I AM NOT JUST ANOTHER CASE NUMBER OR STATISTIC FOR JUSTICE MURPHY TO THROW IN THE BIN.
2.IT WAS ALSO STATED BY THE COURT AND THE CHILD REP THAT MY CHILDREN 22 \ 10 \ 2007 ARE OF AGE AS WELL TO DECIDE WHERE THEY LIVE AS THE CHILD REP DOES NOT KNOW MY CHILDREN LIKE I DO
3.I ALSO HAD MORE EVEIDENCE TO SHOW THE COURT AND JUSTICE MURPHY DID NOT WANT TO KNOW ABOUT IT AT ALL AND JUSTICE MURPHY ALSO REFUSED TO GET THE EVIDENCE FROM THE CHILDREN’S COURT AS WELL THAT PROVES FACTS
4.I ALSO ASK IN MY AFFIDAVIT AND IN THE COURT FOR THE PROCEEDINGS TO BE TRANFERED TO A HIGHER COURT WHERE ALL THE MATTER COULD BE DEALT WITH AT ONCE AND JUSTICE MURPHY ALSO HAS NO RIGHT TO PLAY “GOD” WITH MY CHILDRENS LIFES
5.JUSTICE MURPHY WAS BIAS AGANST ME AS WELL BECAUSE I WILL ALWAYS SPEAK MY PEACR OF MIND AND BE STRAIGHT OUT FORWARD TO THE POINT WHICH HE DID NOT LIKE BECAUSE JUSTICE MURPHY KNOWS THE TRUTH HURTS” AND TWISTED THINGS AROUND TO SUIT HIMSELFH AND HIS OWN NEEDS
6.JUSICE MURPHY ALSO DID NOTHING ABOUT [MS GREEN’S] ORIGINAL BREACH OF COURT ORDERS OR THE FRAUDULENT LETTER FROM THE DHS THAT WAS SENT TO ME AFTER THE CHILDREN’S COURT CASE WAS FINISHED.
7.JUSTICE MURPHY ALSO STATED IN HIS SO CALLED ORDERS – IT WAS ABOUT HALF AN HOUR OR SO FOR ME TO RECOVER THAT WAS INCORRECT FOR A START HE WAS NO THERE MY MOTHER WAS THERE I RECOVERED IN A FEW MINUTES AND HE QUOTES [J]: HE STATED THAT HIS FATHER’S EPILEPSY WAS NOT A PROBLEM
8.JUSTICE MURPHY MADE UP HIS OWN LAWS AS HE WENT ALONG TO SUIT HIMSELF HE LACKS INSIGHT AND KNOWLEDGE ABOUT MY EPILEPSY LIKE EVERY ONE ELSE IN THE CASE
9.UNDER THE NATUARAL JUSTICE LAW AS I UNDER STAND IT YOU ARE NO ALLOWED TO BE PEDJUiCE AGAINST ANY ONE : (EXAMPLE RACE COLOUR OR MEDICAL AS EPILEPSY) AND ALL THE OOTHER PARTIES HAVE BEEN PREDJUICE AGAINT ME AND AS I SAID I NEVER GOT A FAIR AND JUST TRIAL. (The typographical errors are in the original)
In the event of a successful appeal, the father sought the following relief:
1.THE CHILDREN TO DECIDE WHERE THEY WANT TO LIVE AND NOT FORTH COMING ON SECOND HAND NEWS
2.PROCEEDINGS TO GO TO A HIGHER COURT AS I ORIGINAL ASKED TO DEAL WITH ALL MATTERS AT HAND
3.TO DEAL WITH [MS GREEN’S] ORIGINAL BREACH OF COURT ORDERS WHICH STARTED ALL OF THIS IN THE FIRST PLACE
4.A PERMINANT INJUNCTION TO KEEP THE DHS 500 METRES AWAY FROM ME ([MR BURNETT]) AND MY CHILDREN
5.AND COMPANSATION OF 750,000 DOLLARS FOR DEFAMING MY NAME, BEING PEDJUICE AND BIAS AGAINST ME BECAUSE OF MY MEDICAL CONDITION WHICH THEY HAVE IN EVERY WAY (The typographical errors are in the original)
The five complaints identified with the father were that the trial Judge:
1.was biased against him, in particular, because of his health;
2.misunderstood or ignored parts of the evidence;
3.failed to take into account the age and views of the children;
4.refused to allow him to place certain evidence before the Court; and
5.refused his application to transfer the proceedings to a higher court.
We propose to consider the father’s appeal under the broad categories identified above. Before commencing our discussion of the identified topics, it is appropriate for us to make some preliminary comments.
As the transcript of the hearing before us discloses, the father believed the trial Judge’s role was not only to hear and determine issues, but investigate sexual abuse allegations against a non-party (the father’s friend, Mr D) which had been the subject of proceedings in the State Children’s Court. He also believed that if the trial Judge would not, or could not, hear such proceedings, then he should have acceded to the father’s request to a transfer to a “higher court” which he identified to us as the High Court of Australia (transcript, 11 March 2009, p 19).
The father was also in some confusion over documents which he had compiled into a “contentious” appeal book, particularly those under an orange tab. He asserted that the trial Judge had refused to accept these documents into evidence. However, on careful checking it became apparent that relevant documents in question had become exhibits before the trial Judge. We will return to discuss other documents in the contentious appeal book which the father sought to put before us later in these reasons.
Finally the father was confused or misunderstood which affidavits were actually before the trial Judge. He erroneously believed that affidavits filed in the Federal Magistrates Court would automatically be before his Honour. From our perusal of the exhibit sheet it is clear his Honour admitted into evidence one affidavit which had been filed in the Federal Magistrates Court.
The father seemed to have a fundamental misunderstanding as to the nature of the judicial process. He did not appreciate the different roles and jurisdiction of the Children’s Court, Family Court of Australia and the High Court of Australia. He did not understand that the trial Judge had no jurisdiction to award him “compensation of $750,000” or to make an order for a “perminent [sic] injunction” against the Department of Human Services to “keep away from me and my 3 children”.
At the end of the hearing of his appeal following a request made by the mother’s counsel, we pointed out to the father that the timetable prescribed by the trial Judge’s orders had been overtaken by time. We asked him if he wished us to make orders which would reinstate the timetable, thus allowing him to spend time with the children, if his appeal proved to be unsuccessful. The mother was prepared to consent to that course. The father indicated to us, in the clearest possible terms, that he was interested only in an outcome which would see the existing orders “squashed” and that orders which permitted the children to decide for themselves what time they would spent with him should be made.

Background

At the time of the trial the parties had been separated for almost five years. During that period there had been litigation in the Children’s Court, the Federal Magistrates Court and the Family Court of Australia, with extensive involvement of the Department of Human Services. The father had not spent face to face time with the children for approximately two years.
For almost two years following the separation of his parents, J lived with the father. He was placed in the care of the mother by an order of the Children’s Court in December 2004. M and G have lived with the mother at all relevant times.

Appellate principles

This is an appeal against a discretionary judgment. The circumstances in which the Full Court should interfere with a discretionary judgment are well known. In Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716 Stephen J said at 519:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.

The alleged bias of the trial judge against the father

The father’s major complaint of bias seemed to be that his epilepsy was taken into account by the trial Judge as a justification for orders for supervision of the children’s time with him.
His Honour dealt with the assertion of the mother and the Independent Children’s Lawyer that the father’s epilepsy impaired his parenting capacity in paragraphs 231 to 240 of his reasons. His Honour stated specifically, at paragraph 236, that his refusal to order unsupervised time was based on “much more serious issues for the children” than the father’s epilepsy.
Then in paragraph 235 of his reasons, the trial Judge explained:
I have had regard to the father’s evidence and the medical evidence. If the father’s physical health was the only thing suggested as militating against the children spending unsupervised time with the father, I would not be persuaded that it should play a large role in my decision.
The trial Judge summarised these “much more serious issues for the children” in paragraph 106 of his reasons, where he set out his findings under s 60CC of factors relevant to the children’s best interests as follows:
(a)the father has engaged in physical ‘disciplining’ of [J] that has caused him pain and fear;
(b)the father has failed to act protectively toward the children and [M] in particular, by placing a view about the ‘innocence’ of Mr [D] ahead of steps that a reasonably responsible and cautious parent would have implemented for the protection of their children;
(c)the father has actively involved the children, and [J] in particular, in the dispute between he and the mother and in disputes or disagreements between him and DHS and school officials;
(d)the father has sought to have [M] change her account (whether correct or not) of inappropriate activity by Mr [D] and has done so more than once. In my judgment, this amounts to emotional abuse;
(e)the father has little, if any, capacity to co-operate with the mother in respect of decisions with respect to the children;
(f)the father is highly likely to dismiss the mother’s views, the views of the children, or the views of any expert, that do not accord with his own;
(g)there have been significant improvements in the functioning, stability and happiness of the children, and [J] in particular, in the almost three years they have been living in the mother’s household;
(h)it is highly likely that any change in that stable situation will be significantly detrimental to [J] in particular , and the children in general;
(i)the father has little, if any capacity or ability to foster a close and continuing relationship with the mother;
(j)the father has little, if any, capacity to allow the children the freedom to express themselves as individuals and little, if any, capacity to allow them to express their true views and feelings whilst in his care;
(k)there are and have been, I accept, difficulties for the father in exercising time spent with the children at the [W] contact centre occasioned by geographic distance, lack of transport and health issues concerning his leg. But, notwithstanding those difficulties, it is clear that at least a part – and, I find, probably the greater part – of his reason for not exercising time is a sense of grievance that it is he, rather than the mother, who is experiencing traveling difficulties;
(l)the father’s attitude to time spent with the children is governed more by what is ‘fair’ between the parties rather than what might be best for, or most easily accommodated by, the children.
The father placed no evidence before the trial Judge as to effect of his epilepsy on his ability to care for the children. Before us he complained that he was not permitted by the trial Judge to call evidence from his mother. He conceded that his mother had not sworn an affidavit. Without a transcript it is impossible for us to tell what application, if any, was made by the father to lead evidence from his mother. We do not know what evidence the father’s mother may have given or what reasons were given by the trial Judge for his alleged refusal to allow her to be a witness.
In our view, the trial Judge’s reasons set out very clearly that the father’s epilepsy was a most insignificant factor in his decision to order supervision of the children’s time with him. The serious considerations which led to this conclusion were set out in the plainest possible terms in paragraph 106 of the judgment. This list contained no reference whatsoever to the father’s epilepsy. It is abundantly clear that this complaint lacks substance.
Mr D is a friend of the father, in respect of whom there were allegations of inappropriate sexual activity involving four children, two of whom were J and M. These allegations figured prominently in the proceedings in the Children’s Court, the Federal Magistrates Court and before the trial Judge.

The trial judge’s alleged misunderstanding or ignoring of evidence

The father complained that the trial Judge had “ignored” the evidence of his witnesses Mr S and Mr W. Mr S, the father’s neighbour, swore an affidavit which was filed in the Federal Magistrates Court. The father made reference to Mr S’s evidence being relevant to statements made at the Federal Magistrates Court, Dandenong Registry, by a Ms V to counsel for the Independent Children’s Lawyer. The father asserted:
MR [BURNETT]: Ms [D] was in contempt of what she said, because the evidence that [Mr S] gave, right – because he was present when a meeting was with me, the child rep’s barrister and Ms [D], right. He heard Ms [D] saying no sexual activities has ever happened anywhere, and he refused to take that into consideration.
…
MR [BURNETT]: Well, I presumed, right – the impression I got anyway, because he was a witness, right, and he was in the box – that Murphy J would have read that.
MAY J: Right. So Mr [S] – see, this is one of the difficulties we have because we don’t have the transcript. Mr [S] gave evidence, did he?
MR [BURNETT]: Yes.
MAY J: Right. So your complaint is, even though there was an affidavit and Mr [S] gave evidence, in some way his Honour didn’t pay attention to his evidence.
MR [BURNETT]: That’s correct. (Transcript, 11 March 2009, pp 26-27)

Later the father asserted that Ms V had given evidence “where she perjured herself” by saying “she can’t remember, she can’t remember - when she had the documents” (transcript, 11 March 2009, p 28).
Without a transcript it was impossible for us to tell what occurred before the trial Judge in relation to any evidence from Mr S or Ms V, or whether Mr S’s affidavit filed in the Federal Magistrates Court was before his Honour. We note it is not, as is another affidavit filed in the Federal Magistrates proceedings, marked as an exhibit.
The father alleged that Mr W gave evidence that he had proved to be helpful at the children’s school. Again, it was impossible without a transcript for us to tell what evidence, if any, was given by Mr W. We could not discern the significance, if any, of whatever evidence may have been given by Mr W, although we note the father asserted this evidence put into dispute assertions he had been “a public nuisance” at the school (transcript, 11 March 2009, p 28).
The father complained that the trial Judge failed to understand the reality of the children’s situation. In his words, his Honour “[had] no real insight” and “should have double-checked with all this evidence”.
The father acceded to our suggestion that this complaint really was that the Court should have carried out its own investigation into the entire history of the sexual abuse allegations. Clearly, the father laboured under a fundamental misunderstanding of the trial Judge’s role, which was to reach a decision on the basis of the evidence placed before the Court.
In our view, this complaint lacks substance and illustrates clearly the fundamental misunderstanding on the father’s part of the judicial process. The reasons for judgment demonstrate that the trial Judge carried out a very careful and thorough analysis of all of the evidence placed before him.

The trial judge’s failure to give adequate weight to the children’s views

We discern from his submissions (transcript, 11 March 2009, p 34) the nub of the father’s complaint seemed to be that the children were of an age when they should make their own decisions as to spending time with their father. He suggested that both the trial Judge and the Independent Children’s Lawyer made statements to that effect. It followed, so the father said, that there should be no orders to regulate the children’s time with him.
In fact, the Independent Children’s Lawyer submitted that there should be an order that there be no face to face time spent by the children with the father, as recorded in paragraph 280 of the judgment. That proposition differs from a submission that there should be no orders, and the children be free to choose what time they wish to spend with their father.
In his very extensive and detailed reasons, the trial Judge observed (paragraph 281) that it was open to him to conclude that there be no face to face time for the children with the father. The trial Judge then proceeded to balance the advantages for the children of such an order with the disadvantages which such an outcome would be likely to visit upon them. The trial Judge referred to the evidence of the single expert, Dr K, who recorded in his report J’s views about spending time with his father, as well as M and G’s perceptions of their time with the father. The trial Judge identified, at paragraph 292 of his reasons, the problems which the children might experience if there was no time with the father in these terms:
Those problems might include an impairment in the children’s sense of their selves; impairment in their own development and their sense of identity, and a failure to see their father as having an important role in their lives.
It seems to us that the father misunderstood the position of the Independent Children’s Lawyer, who plainly did not support an outcome where the children were at liberty to regulate time with their father for themselves. Similarly, the father misunderstood the trial Judge’s weighing of the advantages and disadvantages for the children of a result of no face to face time with him. In our view, this complaint lacks substance.

The trial judge’s alleged failure to allow the father to place evidence before the court

Before commencing our discussion of this complaint by the father it is helpful if we attempt to distil issues relative to the “contentious” appeal book. We have already noted that all the material behind the orange tab in the book comprised documents which had been admitted into evidence by the trial Judge and marked as exhibits.
As we have already noted at the commencement of these reasons, the mother’s counsel did not object to any material in the contentious appeal book being admitted as further evidence in the appeal, but submitted that we would not give any weight to some of the material because it lacked relevance (transcript, 11 March 2009, pp 9-13). He identified as lacking in relevance documents from W School and the Victoria Police. In respect of the latter documents whilst acknowledging the documents were not before the trial Judge, the mother’s counsel submitted:
MR DEVRIES: I would be submitting for instance there are some Victoria Police documents, and if I can use that as an example, relating to Mr [D]. Mr [Burnett] will argue that they prove that Mr [D] is innocent of the allegations that were the subject of the proceedings below. In my submission all they establish is that at a particular time particular allegations weren’t proceeded with for various reasons, usually insufficient evidence. (Transcript, 11 March 2009, p 11)
We endeavoured to ascertain from the father the particular documents in the contentious appeal book which he submitted the trial Judge had refused to admit into evidence, and other documents in the book which he submitted ought to be admitted before us as further evidence. Absent transcript it was impossible for the father, or counsel for the mother to inform us with any precision the category into which various documents fell. But on checking the exhibits we were satisfied all of the documents behind the orange tab, and green tab in the contentious appeal books were in fact exhibits before the trial Judge. For completeness and to assist the father’s understanding, we have annexed to these reasons a list of the exhibits which were received into evidence by his Honour. Included in those documents were records from the Department of Human Services and reports of Mr P and Ms B.
The principles relevant to the admission of further evidence are extensively discussed by the High Court in CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828. At paragraph 109 McHugh, Gummow and Callinan JJ explained the purpose of receiving further evidence as follows:
One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
As the father is unable, absent transcript, to establish that the trial Judge refused to accept the documents from W School, and the Victoria Police, we propose to consider whether those documents should be admitted as further evidence in the appeal.
The father asserted the Victoria Police documents were relevant to demonstrate that Mr D did not subject J and M to inappropriate sexual behaviour. It appeared to be very important to the father that he establish that Mr D perpetrated no sexual abuse upon these two children.
In paragraph 111 of his reasons, the trial Judge recorded concessions on behalf of the mother and the Independent Children’s Lawyer that no findings could be made as to whether Mr D’s alleged conduct had occurred. In paragraph 112 of the judgment the trial Judge observed that the proceedings before him were not directed to a determination of that issue; rather, the allegations of sexual abuse were relevant to the father’s parenting capacity and responsibility in the post-separation period.
The trial Judge carefully recounted the evidence relating to the allegations of sexual abuse by Mr D, including a report (contained in Exhibit W2) of an incident on 16 May 2004. In summary, this report set out that J was found by police at a hotel in the back of Mr D’s car. At the time Mr D was drinking inside the premises. Police were called to an altercation at the hotel, which broke out when several families became aware of the sexual abuse allegations involving Mr D. Police officers apparently formed the view that Mr D was intoxicated to a significant extent. The police reported that the father refused to listen to concerns about J and defended Mr D.
The trial Judge referred to Mr D’s highly unlikely explanation for his presence with J at the hotel on a Sunday night, with the boy in his pyjamas. Mr D said that he had gone out to buy a collar for his dog.
The father did not object to the tender of Exhibit W2. Obviously the trial Judge made some use of its contents. There was no finding that the father breached an undertaking, given to the Department of Human Services and subsequently to a court, that he would not allow the children to be alone with Mr D. Rather, the material contained in Exhibit W2 played a significant part in the trial Judge’s conclusion that the father lacked “acceptance of, and … insight into, the need for the undertakings and their role in protecting the children” (reasons, paragraph 147). There was an abundance of evidence which justified this conclusion.
The documents sought to be tendered from the Victoria Police state that there are “no disclosable court outcomes” in respect of Mr D born in August 1968 in the police records of any Australian state or of the Australian Federal Police. A second document dated 11 December 2007 discloses the following:
I can confirm that in December, 2004, [Mr D] was interviewed by police in relation to a sexual assault allegation made by a child, [Y] earlier that year.
I can also confirm that no charges relating to this matter were brought against [Mr D] due to insufficient evidence.
We do not consider these documents if they had been before the trial Judge would have affected the outcome of the proceedings, or if his Honour did in fact reject their tender he was in error in so doing. We agree with submissions of the mother’s counsel that the documents lacked relevance to the issues to be determined by the trial Judge.
The documents from the W School can be dealt with shortly. The two documents are in the nature of personal reference and indicate that the father has assisted school authorities by reporting after hours incidents likely to threaten the security of the school. We consider they are of little probative value, and would not have affected the outcome of the proceedings. Other documents sought to be relied on by the father comprised unsworn documents in the nature of personal references. A significant number of the references were annexed to the father’s affidavit and before the trial Judge. Further references were received as Exhibit H11. The references are of little probative value, and do not fall within the criteria elucidated by the High Court in CDJ v VAJ. Thus we would not admit them. Further, we consider that if his Honour did in fact refuse to admit these unsworn documents which appears unlikely having regard to the father’s affidavit and Exhibit H11, he was not in error in so doing.

The trial judge’s refusal to allow the father to transfer the proceedings to “a higher court”

The father laboured under a misapprehension that the High Court of Australia could entertain the proceedings in this Court and deal with all of the issues which he raised. He obviously believed that the High Court could determine the veracity or falsity of the allegations of sexual abuse against Mr D; and reach a conclusion which would vindicate his complaints about the conduct of officers of the Department of Human Services and the proceedings in the Children’s Court.
It is obvious on its very face that this complaint lacks substance. It is clear that the father does not appreciate the limits on the jurisdiction of the Children’s Court, the Family Court and the High Court.

Conclusions

We are of the view that there is no substance to any of the complaints made by the father. The appeal will thus be dismissed.

Costs

At the conclusion of the appeal we sought submissions from the parties in respect of the costs of the appeal. The mother conceded that notwithstanding she had incurred substantial costs in respect of the appeal, having regard to the father’s circumstances (it not being in dispute that he is a disability pensioner) that she would not seek an order for costs in the event the appeal was dismissed. Accordingly, there will be an order that each party pays his and her own costs of the appeal.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date:

Record of Exhibits – Burnett & Green MLF 1980 OF 2007
Documents tendered by Mr Burnett
H1One page letter from Mr Burnett (“the father”), attaching copy Affidavit of Service in respect of a subpoena the father issued to Ms V.
H2One page letter from the father attaching copy letter from the Department of Human Services to The Registrar, Melbourne Children’s Court.
H3List prepared by the father.
H4Letter from Department of Human Services to the father dated 1 December 2004.
H5Undated, unsigned letter prepared by father attaching copy letter from the Department of Premier & Cabinet to the father dated 19 August 2005.
H6Undated letter prepared by the father attaching copy letter from Kerr & Thomas, Solicitors to JKB Lawyers Pty Ltd dated 3 August 2005.
H7Statement prepared by father attaching report of Dr S to Dr L dated 13 May 2005.
H8Disposition Report of Mr P dated 18 April 2005
H9Letter from JKB Lawyers dated 29 March 2006.
H10Report of Professor K to Dr J dated 3 April 2007 in respect of the father.
H11Bundle of character references regarding father.
H12Undated letter prepared by the father attaching letter from Sergeant B of the Victoria Police, Frankston SOCA to the father dated 20 August 2007.
H13Letter from Sergeant L, Victoria Police, Frankston Sexual Offences & Child Abuse Unit to Mr D.
H14Facsimile from Relationships Australia to parties dated 7 November 2005.
H15Updated Family Report of Ms B dated 16 August 2004.
H16Letter from Department of Human Services to the father dated 11 May 2005.
H17Letters from Department of Human Services dated 11, 17 & 27 September 2007.
H18Copy Affidavit of Ms S sworn 26 August 2004, filed 27 August 2004.
H19Letter from Department of Human Services to Ms C dated 15 July 2004.
Documents tendered by Ms Green
W1LEAP CPS Case Record Summary Report.
W2Department of Human Services report by Ms L dated 6 December 2004.
W3Letters from Mr Green to the father and his sister dated 4 January 2005.
BProposed orders of wife.
Documents tendered by the Independent Children’s Lawyer
ICL1Letter from JKB Lawyers to Mr H dated 9 June 2004.
AOrders proposed by ICL.