C & C

[2006] FamCA 230

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. NA64 of 2005

(No. TVM2245 of 2004)

BETWEEN:
C

Appellant Husband

AND:
C

Respondent Wife

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT

Dates of Hearing: 17 January 2006

Date of Judgment: 3 February 2006

Appearances: Mr Fellows of Counsel, instructed by Wilson Ryan Grose, Solicitors, appeared on behalf of the Applicant Husband
Mr Middleton of Counsel, instructed by McDonald Leong, Solicitors, appeared on behalf of the Respondent Wife

Mr Betts of Counsel, instructed by Bevan Griffin, Solicitors, appeared on behalf of the Children’s Representative

C and C NA64/05 (TVM2245/04)

Heard: 17 January 2005
Delivered: 3 February 2006

APPEAL FROM FEDERAL MAGISTRATES COURT – CHILDREN – RESIDENCE – Orders relate to one child of the marriage – challenges to orders are that the learned Magistrate erred in reaching a conclusion that the mother had received treatment for and was properly and appropriately dealing with, the consequences of sexual abuse of her by her own father; that the Federal Magistrate failed to properly weigh up the risks of placing the child in the care of the mother, having regard to the consequences on the mother of the sexual abuse referred to, together with a number of other factors also not properly considered; inadequacy of reasons.

DISCRETION TO ADMIT FURTHER EVIDENCE – Application to adduce further evidence brought by the father pertaining to post-trial issues; refused.

RESIDENCE – CONTACT – FURTHER PROCEEDINGS – the Federal Magistrate concluded that the mother was in a better position to offer a more settled environment for the child, in which the child would also have contact to his sibling – section 68F(2) subsection (k), the Federal Magistrate also concluded that the mother would be less likely to institute further proceedings.

CDJ v VAJ (1998) FLC 92-828
House v The King (1936) 55 CLR 499 at 504‑505
Bellenden (formerly Satterthwaite v Satterthwaite) (1948) 1 All.ER 343 at 345
Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91-712 at 75,178
Bennett v Bennett (1991) FLC 92-191

Appeal dismissed. Either party at liberty to make an application by way of written submissions in respect of costs.

The parties commenced a relationship in about 1998, married in June 2002 but finally separated on 15 November 2003. Their union produced one child, L born in October 2000. Following separation, the parents did not reach agreement about residential arrangements for their child who though, was mostly in the possession of the father. The mother commenced proceedings in the Federal Magistrates Court and interim orders in April 2004 confirmed primary residence with the father. However, following a trial and judgment in July 2005, Federal Magistrate Coker ordered that the child live with the mother and the father have defined contact. Against these orders, the father has appealed and these reasons are for the disposition of that appeal.
The detail of the four grounds of appeal relied upon will be set out later but in my view, the essential, though not the only challenges, were:
(i)that the learned Magistrate erred in reaching a conclusion that the mother had received treatment for and was properly and appropriately dealing with, the consequences of sexual abuse of her by her own father;
(ii)a failure of the Federal Magistrate to properly weigh up the risks of placing the child in the care of the mother, having regard to the consequences on the mother of the sexual abuse referred to, together with a number of other factors also not properly considered;
(iii)inadequacy of reasons.
The child was separately represented at trial, when the child representative submitted that the preferred course was that the child primarily reside with the father. However, he also had then acknowledged that an order for residence with the mother was within discretion. The child representative also participated, through counsel, in the appeal but, consistent with his position at trial that an order either way was open and his view that the reasons for judgment disclosed no appellable error, opposed the appeal. The mother also opposed the appeal.
The father sought to have further evidence admitted in support of the appeal. I refused that application, indicating that the reasons for that refusal would be given here.
I will return to discussion of the grounds of appeal after a short background and summary of the reasons of the Federal Magistrate and after giving reasons for the refusal of the further evidence. As well, before addressing the argument in respect of the individual grounds, I will say something of the principles applicable to the appeal. Finally, I will express my overall conclusion and any consequences thereof.

Short background and summary of the reasons of the Federal Magistrate

In the provision of background in his reasons, the learned Magistrate recorded that prior to the relationship with the father the mother had a child, KL born in 1996. By agreement with his father, he was in the primary care of the mother.
As earlier seen, following the separation of the parties, (November 2003) the child L remained in the care of the father. His Honour recorded that the mother said her contact with L was significantly curtailed at around the Christmas holiday period 2003/2004. The mother asserted she was only allowed limited, supervised contact to the child. This was acknowledged by the father who said that it came about as a result of concerns he had with regard to the possible removal of the child by the mother. His Honour said it was clear that in response to these concerns the mother offered the father an undertaking not to remove the child but the father still refused more lengthy periods of contact. The mother received more liberal contact after a Legal Aid conference in February 2004, including overnight and unsupervised. Nonetheless, the mother maintained that the child should reside primarily with her and commenced legal proceedings.
The interim orders referred to above made in April 2004 provided for the child to reside primarily with the father, the mother having contact each alternate weekend and on two occasions of “block” contact each year. The orders also made provision in the event that they were still operative at the relevant time, for different contact arrangements once the child had commenced pre-school. There was also provision for telephone contact.
After setting out background, the learned Magistrate reviewed evidence of the supporting witnesses called by each of the parties.
Passages of that review significant to the appeal will be referred to when discussing particular grounds but for present purposes, the general view that the learned Magistrate took of much of the evidence of the father’s supporting witnesses can be gathered from the following paragraphs of his reasons:
“43. I was a little troubled by the evidence of both [the paternal grandparents], however, in relation to the comparison or criticisms that are made of each of the parents. [The parternal grandparents] had little of a positive nature to say in relation to the mother.…
…
45. Whilst I thought [the paternal grandparents] were honest witnesses, I did gain the impression that there was, at least, to some extent, a limitation on what weight could be given to their evidence as a result of their failure to recognise that there were instances where their son, the father in these proceedings, had not acted in an appropriate or proper manner.”
Of another of the father’s witnesses, a Mrs M’s, the learned Magistrate said:
“49. It is clear that [Mrs M] is supportive of the father in relation to these proceedings. I thought her evidence was honest and was given to the best of her ability, but as I say I gained the impression, similar to that of the evidence given by [the paternal grandparents], that it was coloured from the aspect of a complete support and faith in the capacities of the father and, therefore, a corresponding lack of support or any real recognition of the role and importance of the mother.”
The child representative had arranged for involvement in the matter by two experts, Ms W, a psychologist practising in the area of child psychology and subsequently, Dr K, a consultant psychiatrist. Ms W had prepared three reports and a “summarising report” and again parts of the reports relevant to particular grounds of appeal will be set out later.
As to the circumstances which led to the involvement of Dr K and also pertinent to ground 1 of the appeal, the learned Magistrate said:
“56. She [Ms W] goes on to talk about some of the concerns that are raised in relation to the mother's capacity to provide for the child and, certainly, raises a concern in respect of the mother's previous sexual abuse, at the hands of her father and how that might affect her as an individual and, in particular, her capacity to provide for [L].”
Dr K saw her involvement as resulting from the concerns raised by Ms W about the mother’s mental state. The learned Magistrate quoted from Dr K’s report, as follows:
“69. [The mother] showed an inconsistent laid back attitude when she spoke of the sexual abuse of herself and her two sisters, her own being quite horrific, then stating, in effect, that 'with everything going well now what good would it do to hurt my family?' I pointed out that things weren't going well for her and that it is well known that sexual abuse in childhood often has serious repercussions in a victim's adult relationships and life events.”
As to the assessment by Ms W of parenting capacities of the parents, the learned Magistrate said:
“61.I was impressed with the evidence of [Ms W]. …What is clear, however, is that from the observations of an experienced child and development psychologist, the parents are each able to meet the needs of the child. They may have different parenting styles and different parenting skills, but what is also clear is that [L] is able to adjust and to deal with each of the styles and the attitudes shown by the parents.”
However, also in the course of reviewing Ms W’s evidence, the learned Magistrate referred to the father’s interpretation of some clinginess of the child and thought that that lacked “…at least to some extent, some insight on the part of the father, into the direct effects of the proceedings, upon the child.”
His Honour noted Ms W’s opinions on other matters of relevance, including her views that the child L appeared to be a well rounded child and did not present as deficient or lacking in any way and that Ms W saw nothing more than the normal sibling relations between L and KL.
The learned Magistrate then turned to consider the evidence of the mother and father and his assessment of each of them. He said:
“78. …Certainly, I have commented previously upon the father and the fact that I gained the distinct impression that he minimised many issues in relation to failings or limitations on his own part, whilst exaggerating concerns in relation to the mother. I gained the distinct impression that the father is unable to balance the needs that he has with regards to a relationship with the child, [L], with the actual situation that exists.
79.    I was troubled by much of the evidence that the father gave in relation to these proceedings. Put quite simply, I gained the impression that the father was, at least, to some extent driven by a need to ensure that the child, [L], remained with him, not only to maintain a relationship between father and child, but to ensure significant involvement by his parents. I gained the distinct impression also that the father was more inclined to follow the guidance or direction of his parents than to make his own decisions in relation to the matter.
81.    There were instances of actions by the father which left a very great deal to be desired. Certainly, the situation that existed following separation and the holding of [L] for a very significant of time (sic), without any real contact with the mother was a matter of concern.
…
88.    I was troubled, as I say, by a number of those matters. I should immediately, however, say that I was also impressed with the father and with the arrangements that he has made with the child. There is no doubt, whatsoever, of his love for the child and his wish for the best for the child. I gained the impression, however, that the father's wishes in relation to this matter were, as I said, more based on his wants than the real recognition of the need for the child to have a continuing and close relationship with the mother and with his sibling, [KL].”
The Federal Magistrate also concluded that “The father’s lack of appreciation of the importance of the mother in the child’s life, was significant”, and further said:
“94. …Counsel for the mother then asked whether [L] loved the father and the father’s response was “yes”. When he was then asked whether [L] also loved his mother, his response was telling. He said, “[the mother] claims that”. There could not be a clearer example of the father’s attitude to the mother and his total lack of any real appreciation of the significance of her role and involvement in the child’s life and the need for each parent to foster that relationship with the other parent. The father could not even acknowledge that the child loves his mother. It was a telling comment on the father and his views.”
As to the mother, his Honour said:
“95. There are concerns also in relation to the mother. She was untruthful in respect of a number of instances of her evidence in relation to this matter.…”
The learned Magistrate then discussed the mother’s initially untruthful evidence about whether she had been sexually abused in her family of origin and whether she had advised her first partner or the father of that abuse. The learned Magistrate said:
“96. …There are certainly concerns in that regard, and there were concerns otherwise with regard to the mother and to her stability and behaviours.”
The learned Magistrate then discussed certain other criticisms by the father of the mother, but said:
“98. …What is clear, however, is that the father cannot have it both ways. For five years, [KL] remained in the care of the mother, whilst the mother and the father were residing together and, certainly, for a further period of about three years, prior to separation, the child, [L], remained in the care of the mother, whilst the father worked extensively.
99. If the father's concerns were genuine, this would not have occurred. It is clear, in my view, that the mother is able and willing to provide for the care of the child. She is not perfect, and there are, certainly, improvements that could and should be made, but she is not as deficient as is suggested by the father, in his material.
100. There is no doubt of the mother's love for [KL] or, of course, for [L]. There is no doubt as to her wish to have the child reside with her and whilst there are some general concerns in relation to issues of parenting, there is not any overriding reason that precludes the mother from being able to care for the child. She has different parenting skills and different parenting approaches in relation to discipline and areas of that nature. That does not make them wrong, it simply makes them different
102. … Whilst I have said that there were some areas of concern in relation to the mother, I was generally impressed with her in respect of her honesty and her greater understanding of the needs of the children and, in particular, the child, [L]. The mother was able to make concessions in relation to the father and to his capacity.
103. The mother had some insight into her own failings and the need for improvement. I thought that there was real honesty and insight displayed by the mother in that regard. I did not, as I have indicated, have the same confidence in the father and in fact gained the impression, as I said, that the father was very quick to exaggerate failings, as he saw them in the mother, and to minimise any deficiencies within his own capacity.”
The learned Magistrate then turned to consider the relevant sections of the Family Law Act concluding that review by saying:
“107. What is required, therefore, is that I turn my mind specifically to the matters that are detailed in section 68F(2).”
He then proceeded through the sub-paragraphs of that section and expressed findings, including:
“133. The mother's proposal would lead to the reuniting of the brothers, the father's proposal would continue their separation. That is, in my view, a significant factor and there is no evidence that I am satisfied upon, that would give rise to a suggestion that it is in the best interests of either child but, of course, in this matter, particularly, [L], to remain separate and apart from his brother.”
He then expressed his overall conclusion:
“134. In all of the circumstances, therefore, I am of the view that the appropriate course is for the child to reside with the mother. I am mindful of the recommendations of the children's representative, though it is clear that they were very much couched in terms of a continuation of an existing arrangement, rather than any suggestion that the father was better able, than the mother, to provide for and to meet the needs of the child.
135. I am satisfied that the children's representative acknowledged, that there were good reasons and strong bases upon which the child could be placed with the mother and that, if that were to occur, that the father should have regular and proper contact with the child. I am satisfied that that can properly meet the best interests and the needs of the child.”

The application to adduce further evidence

The further evidence upon which the father sought permission to rely in the appeal consisted of the content of an affidavit filed by him in support of the application, which included photographs of bruising of the child and also clinical notes of a doctor to whom the child was taken by the father. In his affidavit, the father asserts or confirms that he raised at the trial before the Federal Magistrate; that he was concerned about injuries suffered by L when in the mother’s care; and about negative comments made to L by the mother about the father and his family; and about the treatment of L by his half brother KL. The matters then deposed to by the husband all relate to post-judgment incidents which are presented as further examples of the concerns which the father raised at trial.
They are clearly matters with regard to which it would be appropriate to receive the response of the mother and as to which cross-examination would seem essential, before any significance could be attached to the allegations.
They are in the nature of matters which, if established, might seriously weigh in any deliberations about the appropriate residential arrangements for the child, but which would not obviously determine the outcome. They do not demonstrate the order appealed from is wrong. As seen, they are in the nature of matters that were in issue in the trial.
Passages from the judgments in the High Court decision in CDJ v VAJ (1998) FLC 92-828, of particular pertinence to this application include:
“56. …The Family Court has power to vary or discharge orders specifying a parent’s rights and obligations with respect to his or her children. Thus, ordinarily, evidence of subsequent events should not be admitted on an appeal from a parenting order if that evidence would more appropriately ground an application for variation of the order in issue.” (Gaudron J)
…
108. …Although the discretion to admit further evidence is not attended by any express words of limitation, the subject-matter, scope and purpose of the appeal provisions in Pt X of the Act and the issue involved in each appeal will point to the considerations which are or are not extraneous to the exercise of the power.
109. One consideration in construing s 93A(2) is its remedial nature. Its principle 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.…
…
111. …, it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the rial judge and put that person to the expense, inconvenience and worry of a new trial.
…
113. In any event, we cannot accept that the discretion to receive further evidence is so wide that the Full Court can admit further evidence merely because it is useful. Such a criterion is inconsistent both with the nature of the appellate jurisdiction exercised by that Court and with the perceived purposes of s 93A(2).
…
117. The discretion to admit further evidence obviously needs to be exercised with much care in parenting cases. The decision as to who should have the day to day care of children will so often be an agonising one, as indeed it is in the present case where both parents are anxious for their children's welfare. The advantage said to be attached to the opportunity of a judge at first instance to see and hear the witnesses on issues of credibility and the like may perhaps on occasions be exaggerated. Nevertheless, those advantages are likely to be real ones in a parenting case heard by a specialist judge whose decision will involve a choice of who will be a better ``custodian'' of the children: sometimes either parent would be an excellent choice, and often neither would be ideal.
118. The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations. So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.
119. …Applications for a variation of an order, rather than resort to s 93A(2), will generally be the preferred mode of procedure even where there has been a change of circumstances between the making of the order and the hearing of any appeal.
…
148. …New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the s 93A(2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A(2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.” (McHugh, Gummow and Callinan JJ)

In my view, consistently with what was said by the members of the High Court in CDJ v VAJ, what I have said of the further evidence required the refusal of the application for its admission.

Principles applicable to the appeal

The circumstances in which an appellate Court should interfere with a discretionary judgment were set out in House v The King (1936) 55 CLR 499 at 504‑505 where Dixon, Evatt and McTeirnan JJ said:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if the allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some of the material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his orders, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
With particular regard to a challenge based on the weight given by a trial Judge to factors relevant to an exercise of discretion, in Bellenden (formerly Satterthwaite v Satterthwaite) (1948) 1 All.ER 343 at 345, Asquith LJ said:
“… It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”

The grounds of appeal

The Notice of Appeal contained three grounds, though within each ground some rather discrete points were contained in separate paragraphs.
A fourth ground was added by leave at the hearing of the appeal and is as set out in the summary of argument on behalf of the father

Ground 1 and ground 2[a]

“1. The learned Federal Magistrate, having concluded that it was more likely than not that the mother had been sexually abused by her own father and mother, made an error of fact in concluding that the mother had received treatment for and was properly and appropriately dealing with the consequences of that abuse because:
[a]the evidence of the [Dr K] did not support any finding that the mother had received such treatment or was properly and appropriately dealing with the abuse;
[b]His Honour had separately concluded that he mother was untruthful in respect of her evidence as to sexual abuse; and
[c]The mother failed to call the person from whom she was alleged to have received treatment and an adverse inference should be drawn from that.

2[a] there was not evidence that the mother had received treatment for and was properly and appropriately dealing with the consequences of sexual abuse at the hands of her father and mother;”

As to the assertion contained in paragraph 1[b], namely that his Honour had concluded that the mother was untruthful in respect of her evidence as to sexual abuse, it is not contended for the father that the learned Magistrate rejected all of the mother’s evidence about that abuse. Rather did the Federal Magistrate find that the mother’s initial denial “that abuse had occurred” and whether she had advised her first partner or the father of the abuse, were false.
As well, the trial Magistrate expressed a reservation about another aspect of the mother’s evidence about the abuse in paragraph 70 of his reasons:
“…my own assessment in relation to this matter is also that, at least, to some degree, though perhaps not as seriously as was indicated by the mother, abuse did occur…” (emphasis added)
In so far as this ground suggests that, merely because of a finding about the falsity of some of the wife’s evidence on this issue at one time, acceptance of other evidence on the same issue, albeit with reservation, was not open to the learned Magistrate, it lacks validity. The positions are not necessarily inconsistent.
As to the assertion in paragraph 1[a] that the evidence of Dr K did not support the finding that the mother had received treatment, the contention is a curious one. It is not contended that Dr K was in a position to deny that the mother had received treatment and in that circumstance an inability to “support” the contention that she did receive treatment is of no moment. Further, as to the contention in ground 2[a] that there was no evidence that the mother had received treatment, the mother said she had received treatment. Acceptance of that evidence was open to the Federal Magistrate.
Perhaps the real challenge in grounds 1 and 2[a] is against the findings by the learned Magistrate about whether the mother was appropriately dealing with the consequences of abuse. Ground 1[a] asserts that the evidence of Dr K did not support any finding that the mother was properly and appropriately dealing with the abuse.
Again this contention is curiously put, as the pertinent questions would seem to be whether there was other evidence that could support the finding attacked and whether Dr K’s evidence precluded the acceptance of that other evidence.
In the father’s case he raised the question of the mother’s statement about being sexually abused. Moreover, one of the father’s witnesses Mrs M had deposed:
“In contrast to [the paternal grandparents], however, I have heard the children's mother, […], use inappropriate language and discuss inappropriate subject matters in their presence. She took more of a spectators view during the children's behavioural lapses, taking a passive role rather than active. It was noticeable to me that the children were more responsive and attentive to [the father’s], [the paternal grandmother’s] and [the paternal grandfather’s] requests for better behaviour than to their mother's requests when it was forthcoming.” (emphasis added)
These observations of the mother’s “demeanour” were consistent with observations by Ms W and Dr K.
As seen earlier, Ms W raised a concern about possible consequences of sexual abuse on the mother’s capacity to parent. In turn, Dr K raised the possibility that the mother was fabricating the story of sexual abuse. The evidence of Dr K was that, either way, the mother needed expert assistance. However the evidence of Dr K to which my attention has been drawn which attempts to make a connection between the abuse of the mother and an effect on her parenting capacity, is limited. Dr K opined that:
“…it may be that the disconnected type of parenting noted by [Ms W] stems from the early abuse…”
and that in the event of the mother being placed under stress or experiencing trauma, she may be less likely to cope than someone who had not been abused.
True it is also that Dr K said that he would not assume that the mother was “pretty well on top of…” the consequences of sexual abuse. Again, this evidence does not preclude the prospect that the mother was properly and appropriately dealing with the consequences of abuse, the question being more whether it precludes acceptance of other evidence pointing to the mother “properly and appropriately” dealing with the consequences of abuse.
To put the doctor’s opinions about these possibilities mentioned in context and of particular pertinence to the question of whether his evidence precluded the acceptance of other evidence about whether the mother was properly and appropriately dealing with the consequences of abuse are the following passages of his oral evidence:
“…
You were asked some general questions about the effect of sexual abuse on parenting capacity and the like, do I understand your evidence that really there is no hard and fast rule, you have to look at each individual? - - - I think that is fair to say.
So it would be fair to say that what [the mother] went through, if it happened, was, in fact, at the extreme end or the severe end of abuse, correct? - - - That’s fair to say.
And really, perhaps the best person to judge how she has coped to this point would be His Honour having heard all of the evidence? - - - Yes, I would agree.”
The broader evidence bearing on whether the mother’s parenting capacity was adversely affected by childhood abuse and whether the mother was properly and appropriately dealing with the consequences of the abuse included Ms W’s assessment of the mother’s capacities earlier set out, and Ms W’s suggestion of alternative explanation for the mother’s passive parenting.
The learned Magistrate had also accepted favourable evidence of the mother’s parenting abilities proferred by the supporting witnesses in the mother’s case.
It is appropriate to bear this context in mind when examining the relevant passages of the learned Magistrate’s reasons:
“70. What is clear is that there is a concern. [Dr K] raised a concern as to whether, in fact, the abuse complained of by the mother in these proceedings actually occurred or was a fabrication. The children's representative indicated, that the view of the children's representative, was that the abuse had occurred. I must say that my own assessment in relation to this matter is also that, at least, to some degree, though perhaps not as seriously as was indicated by the mother, abuse did occur and that there was, certainly, a basis for the difficulties that the mother was experiencing.
71.    What is clear, is that the mother has, at least, in some way, dealt with the issues. [Dr K] suggested that it was not a satisfactory course to follow, to internalise the concerns that arose from the abuse and that they should be dealt with, with the assistance of a therapist. The evidence before the Court now is that the mother has sought the assistance of a therapist and that it has been provided, by [Ms B].
72.    What does appear to be the case, is that the mother has had an horrific situation arise in her past. She has dealt with it, and [Dr K] says that she acts generally in an appropriate and proper manner. There is a concern, as was explored in cross-examination, that the mother might, in a more stressful situation, at some time in the future, not adapt or deal with such stressful situations, as well as a person, who has not been the subject of abuse. It is clear however, in this matter, that the mother has been able to provide and to care for the children and continues to have a capacity to do so.
73.    [Dr K] was concerned that if the mother is fabricating, whether consciously or unconsciously, episodes of apparent victimisation by others, then it would suggest a type of psychiatric disorder that is hard to treat. As I have found, however, it is obvious from the material that is before the Court, and from the indications given by an experienced children's representative, that it is more likely than not, that the abuse complained of by the mother during her childhood, did occur.
74.    If that is the case, then as [Dr K] says, there needs to be expert psychotherapy with a professional, experienced in this type of work. The mother has approached a psychologist, [Ms B], and has received treatment. It is the case, therefore, that in finding that the abuse has occurred, the mother is now dealing more appropriately than, perhaps, in the past, with issues in relation to her abuse. I am satisfied that the mother is properly and appropriately dealing with the areas of concern which were addressed by [Dr K], and I am satisfied that [Dr K] has made an appropriate assessment in relation to the mother.
75.    [Dr K] was cross-examined in relation to the issues of past trauma in the mother’s life and, as I have indicated, noted that those past incidents might exacerbate any current stressful or traumatic situation. However, she also acknowledged that once stressful situations were put behind the mother, including of course these court proceedings, that the mother may be even more settled than she appears at the present time. [Dr K] acknowledged that that was the case and, in fact, made the specific comment that “people are resilient”.
76.    [Dr K] went on a little later to in fact comment, when asked about whether there was anything in the mother’s behaviour as observed by her, which would suggest that she was incapable of properly parenting the children and, particularly, [L], to make further positive comments about the mother. She indicated that individuals always have resilience and that, whilst it is difficult no doubt in anyone’s life for there to have been incidents of a very traumatic nature, it can, in some instances, make them a better person.
77.    [Dr K] did not have as much time or opportunity as one would have hoped or as she would have hoped, to thoroughly investigate the mother but what is clear, and she said so in cross-examination, was that she was not “wary” of the mother and that there were no warning bells particularly troubling to her.”
I am not satisfied therefore that there was no evidence that the mother was “properly and appropriately dealing with the areas of concern which were addressed by Dr K” nor that the evidence of Dr K precluded the acceptance of that other evidence.
Another argument, not obviously within grounds 1 and 2[a] as drawn, but put by counsel for the father, attacked the “reservation” (earlier noted) expressed by the learned Magistrate in paragraph 70 as follows:
“…I must say that my own assessment in relation to this matter is also that, at least, to some degree, though perhaps not as seriously as was indicated by the mother, abuse did occur and that there was, certainly, a basis for the difficulties that the mother was experiencing.” (emphasis added)
Counsel for the father submitted that no-one had suggested during the trial the possibility that some alternative and intermediate position regarding abuse of the mother might pertain. He said the issue had been whether the mother was abused as she asserted, or not at all. However, counsel did not cavil with the proposition that it had not been the father’s case at trial that the abuse did not occur.
Counsel for the father further submitted that the lack of detail in the Federal Magistrate’s findings as to the abuse which he accepted had occurred raised a number of significant issues, such as whether the mother was fabricating some of the allegations, thus making relevant the concerns of some psychiatric condition of the mother for which she needed treatment but which would difficult to treat. He also argued that the prospect that the abuse actually suffered by the mother differed from that which she claimed also raised doubt about the appropriate treatment and whether the mother had received that treatment.
As to these contentions, firstly, it might be observed that the comment to which exception is taken is much in the nature of something of a reservation, qualification or gloss on a finding rather than a separate finding of fact, namely, “perhaps not as seriously” as was indicated.
Secondly, the sufficiency of detail in a finding or of the explanation given for a finding, is connected with the place which the issue of fact determined takes in the hierarchy of issues for determination. This is an area much more amenable to definitive statement in other areas of the civil law in which causes of action are comprised of material facts. It is much more difficult in most cases in this court, but especially those concerning parenting issues, to describe the significance of an issue or fact in issue. Nonetheless, some broad indications can often be given of the significance of particular questions.
This was not a case in which the detail of allegations made by the mother, in particular against her father, who was not a party nor even a witness in the proceedings, of sexual abuse by him of her, were primary facts in issue. The far more central question was whether events, whatever their detail, in the mother’s past compromised her parenting capacity now.
In those circumstances, I do not consider that the reservation expressed by the learned Magistrate constituted an error in relation to a finding of fact. Nor do I consider that it is established that the making of such a reservation was not open to the learned Magistrate, notwithstanding that the evidence at trial directly addressed only whether there had been abuse as alleged or a total fabrication. There is little indication that the choice of only one of those positions was the clear and only contention for determination. After all the mother’s credibility was in issue and inferences that she was not being entirely reliable may well have been open.
As to ground 1[c], namely that the learned Magistrate erred in his findings that the mother was properly and appropriately dealing with the consequences of abuse because of the mother’s failure to call her treating therapist, Mrs B, reliance was placed upon the principle in Jones v Dunkell (1959) 101 CLR 298 at 312.
Again, in my view, it is appropriate to bear in mind that it is doubtful that the father was, on the issue to which Ms B’s evidence could be expected to go, asserting a particular set of facts to which Ms B’s evidence might be expected to respond. In other words, Ms B might well have been able to give pertinent evidence, but not necessarily in contradiction to assertions otherwise being made in the case, in particular, the case of the father. In any event, at best for the father, the failure by the mother to call the witness [Ms] B meant that:
“(iii) …where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstances that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.” (Jones v Dunkell, Menzies J, page 312)
It is not as if a failure by the wife to call the witness resulted in the Federal Magistrate being limited to only one approach to the matters in question. The approach he took to the question of whether the mother was properly dealing with the consequences of abuse was not rendered unavailable because of the mother’s failure to call Ms B.
I do not find any merit in these grounds.

Ground 2(b) to (f) and ground 3

“2. The learned Federal Magistrate made an error of law in that he did not consider (or failed to give adequate weight to) the risk to the child of placing him in the residential care of the mother when:
[a]…(already discussed)
[b]the mother had no or limited family support available to her by reason of that sexual abuse;
[c]the mother had a recent history of use of illicit drugs and non-prescribed mediation (sic);
[d]the evidence showed that her other son, [KL], was experiencing significant difficulty at school and home;
[e]the evidence showed that the interactions between the mother and her son were more stressful than between the father and son;
[f]the evidence showed that the mother did not know how to redirect her son so as avoid potential behavioural difficulties;”

Ground 3:
“3. The learned Magistrate misapplied the exercise of his discretion in:
[a]rejecting the recommendation of the Child Representative;
[b]criticising the support which the father had from his own family when the mother had not such support;
[c]criticising the father as to his actions towards and attitudes to the mother when the facts were at least as serious as those described in paragraphs 1 and 2 above.”

As to ground 3[a], namely the “rejection” by the Federal Magistrate of the recommendation of the child representative, it was not suggested that as a matter of law the trial Judge was bound to accept the recommendation. In those circumstances there is no independent life to this ground, though of course, it might be shown that for other reasons the decision of the learned Magistrate contrary to the recommendation of the child representative was flawed.
As framed, there are conceptual difficulties with paragraphs 3[b] and [c]. For example, there is nothing inherently illogical or inconsistent about criticism of the support which the father had from his family, though the mother had no such support. Before an inconsistency or other error in these regards could be established, it would be necessary to show that the two situations compared, resulting in different conclusions about each, were not distinguishable one from the other. Neither the grounds as expressed, nor the arguments in support of them, have shown this.
In reality, all of these grounds (2[b] to [f] and 3[b] and [c]) merely pick out particular aspects of the evidence bearing upon some of the many factors which fell for consideration in the case and to which comparative weight was to be attached, and assert that, given those particular aspects, the decision appealed was in error.
There is little prospect of success in such an approach, as to which the observations of Brennan J (as he then was) in Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91-712 at 75,178 are apposite:
“The ‘generous ambit within which reasonable disagreement is possible’ is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.”
Moreover, it can be seen that the learned Magistrate at least touched upon each of the factors nominated in the grounds 2[c] to [f] as matters which he either did not consider or failed to give adequate weight to.
This is demonstrated in what follows. (The factor referred to in the ground is first set out, followed by the passage in the reasons of the learned Magistrate dealing with that factor.)

Ground 2[c]

”[c] the mother had a recent history of use of illicit drugs and non-prescribed mediation (sic);”
“44. What is of concern, however, is that they specifically made reference to issues in relation to the mother's inappropriate actions with regard to parenting and referred specifically to issues of drug and alcohol use. It appears clear that they laid all of the blame in relation to such issues at the feet of the mother. They struggled, I thought, to even recognise that the father had a role and an involvement in relation to both drug and alcohol use.…
…
86. The mother, however, acknowledged the use by her of those various substances, including illicit substances.…
…
97. A great deal was made of the mother's use of marijuana, consumption of alcohol, and use of slimming drugs, including prescription drugs, not prescribed for her. In the whole scheme of things, however, I do not think that they were of such a great significance as the father was hoping to suggest. The mother would have been, as was suggested to [Dr K], and she agreed, dysfunctional in the extreme if all of those things were occurring at the same time and to the extent or level which was suggested. This was not the case.”

Ground 2[d]

“[d] the evidence showed that her other son, [KL], was experiencing significant difficulty at school and home;”
“37. …There were some concerns raised with regard to the behaviour of the child and certain reliance was placed upon the student behaviour reports which were made available to the court. The child has some difficulties and that was sought to be relied upon by the father, as indicating a poor reflection on the mother. I am not necessarily convinced that that is the case and that the child is the product not only of the mother, but also of [Mr L], as his father, and of the father in these proceedings, as a significant person in the child’s life.”

Grounds 2[e] and [f]

“[e] the evidence showed that the interactions between the mother and her son were more stressful than between the father and son.
[f] the evidence showed that the mother did not know how to redirect her son so as avoid potential behavioural difficulties;””
“55. What is clear, and what arises from the summarising report is that [Ms W] noted certain concerns in relation to the mother. She said, however, in the summarising report, the following:
Overall, I have found [L]’s interactions with each of his parents to be particular to that parent. This is not surprising as children often respond differently to each of their parents. In my opinion, the less stressful interactions are between [the father] and [L]. [The mother] has an older child and, therefore, the interaction between [the mother] and [L] must, thus, include a third person. [L] has been observed to be anxious, however, not clinically so.”

59. [Ms W], however, also made comments in relation to her observations of the mother in these proceedings and commented in her summarising report that [the mother] seems not to know how to redirect [L] so as to avoid potential behavioural difficulties. She does go on, however, a little later in that same paragraph to say:
It is understandable that when a parent is not with the child on a daily basis, parenting sometimes becomes undirected, due to the parent having a wish to please the child.

60. [Ms W] summarised her observations and opinions in relation to this in the final paragraph of the summarising report. She says:
In summary, while [the father] does not approve of many of the parenting approaches of [the mother], they are not abusive as far as I can discern, from information I have received. In regard to [L’s] psychological health, it is my opinion that although he has presented from time to time with anxiety [L] is not suffering from any clinical disorder. Furthermore, I am of the opinion that at this time it is not necessary for [L] to attend counselling sessions.”

Counsel for the father submitted that the complaints in ground 2 had to be viewed cumulatively. That may well be valid argument, but even more to the point as earlier indicated, these matters were among many others which the learned Magistrate had to weigh. These other factors included those already seen, such as the father’s attitude and the attitudes of his family and friends to the mother and her role in the life of the child; the father’s ability to distinguish the needs of the child from his own needs; the father’s availability to personally care for the child; the question of different residential arrangements for the two children of the mother; and the father’s use of illicit drugs and alcohol.
Moreover, the following observations, not challenged in the appeal, seem important in the assessment by the learned Magistrate of the weight to be given to the father’s allegations.
“118. The father says that he has concerns in relation to the mother's lifestyle and concerns in relation to her friends. However, as I indicated earlier, the father can not have it both ways. He cannot have concerns as to the mother's lifestyle and yet, for five years, have not taken any steps in relation to those concerns. Similarly, he cannot now have concerns in relation to the friends and supports of the mother, and yet have had, previously, a very close relationship with them himself.”
Having regard to what was earlier set out as to the principles applicable to an appeal from an exercise of discretion, I am not satisfied that there is any merit in ground 2[c] to [f] or ground 3.
As to the factor referred to in ground 2[b]:
“the mother had no or limited family support available to her by reason of the sexual abuse.”
there are a number of components which really involve discrete findings; no or limited support; not available because of the sexual abuse. I am left uncertain about whether it is suggested the ground expresses findings made by the learned Magistrate, or findings which it is suggested should have been made.
In any event, having regard to the findings made about the mother’s availability and parenting capacity, it is far from clear that the issue of the mother’s support was or ought have been of any magnitude in the case.
I am not satisfied that there is any merit in this point.

Ground 4

“4. The learned Federal Magistrate made an error of law, in that by reason of the matters set out in grounds 1, 2 and 3 the reasons for judgment were inadequate.”

In his summary of argument, counsel for the father said, following the submissions dealing with grounds 1 to 3 inclusive:
“A review of the matters set out above highlights a broader catch-all ground of appeal namely an inadequacy of reasons.”
I accept the proposition that this additional ground arises out of the submissions in support of the other grounds, which in instances contain implicit or express criticism of the expression of reasons or the absence of reasons.
However, it perhaps follows that, if no merit is found in grounds 1, 2 or 3 that, as framed, ground 4 also fails.
However, in the course of submissions, counsel for the father challenged parts of the reasons or aspects of the reasons not yet discussed, which challenges might be conveniently (but perhaps generously) dealt with under this ground.
Firstly, counsel pointed to the number of instances when the learned Magistrate spoke of “impressions” which he had formed. Counsel asserted that nowhere were bases for those impressions set out. That assertion may be a little sweeping, but I think it unnecessary to examine each instance in detail. I accept that unexplained reliance on “impressions” can produce a tone of arbitrariness in a judgment. In particular instances, the absence of any possibility of a basis for an impression formed or more dramatically still, the presence of only evidence which could support a contrary view, a finding of an “impression” might well found a successful appeal. Those are not the arguments here. But in the absence of such arguments, criticism of such usage falls to be considered according to the measures of adequacy of reasons.
In Bennett v Bennett (1991) FLC 92-191 the Full Court of the Family Court said in respect of the question of whether reasons were adequate or not:
“The important thing is that the Appellate Court must be placed in the position of being able to follow the trial Judge’s line of reasoning, as must the parties, if they are to be satisfied that justice has been done.”
Also of relevance to the submissions on behalf of the father are the statements of Kirby J in CDJ v VAJ (1998) FLC 92-828 (paragraph 186.10):
“10. …Every appellate judge knows that the reasons given for a decision can never express the entire range of matters which the decision-maker has taken into account. In matters of evaluation and discretion, this would be impossible to achieve and undesirable to attempt. Judicial reasons, whilst they must be adequate for the purposes of the exercise of any right to appeal[170] cannot possibly catalogue all of the subtle considerations that lie behind a judicial decision[171] . This is true of the decision of the primary judge, expressing the combination of ``main considerations'' that led to his ultimate conclusion that the children should reside with one parent rather than another.…”
Secondly, counsel for the father submitted that the reasons were defective because in addressing section 68F(2) factors the learned Magistrate said nothing of the role of the paternal grandparents in the care and life of the child and the consequences of a change which terminated or circumscribed that role.
I have some reservations about the utility of the practice of ordering reasons by firstly examining the evidence and making findings and then turning to the subparagraphs of section 68F(2) of the Act. Firstly, it is a structure which causes much repetition and secondly, unless there is repetition, leaves open the very assertion made in this appeal. Nonetheless, as to that assertion, I accept the submission on behalf of the mother that in scrutinising an attack on adequacy of reasons, reasons for judgment must be read as a whole.
In the instant case, in paragraph 42 (acknowledged as well prior to the paragraphs dealing with section 68F(2) factors) the learned Magistrate said:
“42. What is also clear from the material, is that both [the paternal grandparents] have a significant involvement in [L’s] life, including the provision of care on a regular basis for him. [The paternal grandmother] commented upon the fact that the father is required to work and as a result of that, there is a need to provide assistance in relation to the care of [L]. She says that she does so willingly and I accept that that is the case. She also notes that [L] enjoys his time with her and, again, I find that that is, no doubt, correct.
However, true it is that when turning to those subparagraphs of section 68F(2) (particularly (b) and (c)) in discussion of which one would expect to find a mention of the role of the paternal grandparents, and the impact on the child of any change in that role, no such discussion appears.
However, as to paragraphs (b) and (c), the learned Magistrate did say:
“110. Subsection (b) requires that consideration be given to the relationship that the child has with each parent. It is clear that there is a close and loving relationship with both parents. That is observed by [Ms W], observed by various of the witnesses, and acknowledged by each of the parents. It is clear that notwithstanding the difficulties that exist between each of the parents, that there is still a close relationship with each parent, and it is clear that [L] loves both his mother and his father.
111. Consideration needs to be given pursuant to section 68F(2)(c) to the effect of any change in circumstances. In this instance, there is proposed, on the mother's part, a significant change, but it is not so significant, in my view, that the child would not be able to adapt. The fact is, that for a period of, at least, four days each fortnight, and for periods during the year of longer time, there is a settled arrangement where the child resides with the mother and with his brother, [KL].
…
113. There would be a change and a need to adapt if the child were to reside with the mother. However, it is clear that the child has the capacity to do so. He has a close relationship with each parent and a need to develop that relationship. There is also an overriding factor that is of significance in relation to this matter and that is the pure and simple fact that he has a sibling residing with his mother. From [L’s] perspective, it is not a half sibling relationship or a relationship that is less than one of brother and brother. For three years, up until separation, [L] resided in a household in which his brother was a significant and integral part of his life. [KL] remains a significant part of his life and, in fact, [Ms W] commented upon the relationship between the two of them as she observed it and the fact that it appeared to be, a normal sibling relationship.
114. It is important that consideration be given to that factor in relation to the determination of proceedings such as this. In my view, there would be a change in the situation for [L] if he were to reside with the mother, but it would not be a change from the known to the unknown, but rather a change from one known to another known.
115. More particularly, it would reunite the brothers and the father, himself, acknowledges that there is a strong bond between the brothers. I am mindful of that in relation to the issue of change and would find that if a change were to occur in relation to the current residential arrangements for the child, they would not be such as to disrupt the child or his lifestyle, to any significant degree.” (emphasis added)
Having regard to the passages underlined and to what I said of the need to read the reasons as a whole, I am not satisfied that the learned Magistrate should be taken as overlooking the effect of the change of primary residence on the role played by the paternal grandparents and any impact of that change on the child.
Counsel for the father also submitted that a failure of the learned Magistrate to repeat, as part of his consideration of section 68F(2) factors, criticisms of the father earlier made, raised doubts about the use made of that criticism and the possibility of a bias against the father. It would be a strange circumstance if mere repetition of criticisms earlier made rendered adequate reasons which would otherwise be inadequate but presumably, the argument is that in the discussion of section 78F(2) factors, some “use” would be made of, or “significance” would be attached to, the criticisms, in the comparative assessment of relevant factors.
However, the better views of the Federal Magistrate’s reasons read as a whole are in my opinion, either that the criticisms of the father were not thought of substantial relevance to the ultimate assessment which is not to say that they were not part of the learned Magistrate’s assessment of the father or, and in my opinion the preferred position, that the criticisms of the father formed part of the learned Magistrate’s assessment of the father, relevant to the final conclusions, notwithstanding that they were not repeated in the assessment of section 68F(2) factors.
In any event, I do not consider that there is merit in this criticism.
Counsel for the father was also critical of the findings in paragraphs 111 and 113 above, that the child would be able to cope with change, counsel submitting that there was no evidentiary basis for those findings. I doubt that this challenge fits within the grounds of appeal, but in any event would not regard the submission as having merit. Part of the role of the trial Magistrate was to reach conclusions about the factors set out in section 68F(2), being conclusions which can often be reached only by deduction, as a result of applying weight to a number of subsidiary findings. Here the learned Magistrate had a professional assessment of the child, of the relationships of the child, and the history of the child’s care from the time of birth, from which he was entitled to draw inferences and conclusions.
Finally, an attack was made on the way in which the learned Magistrate’s dealt with the topic of the availability of the mother, compared to that of the father, to care for the child. It was suggested that in particular, the finding that the mother was best able to provide a stable environment and a stable arrangement was inconsistent with what the Federal Magistrate had earlier said in relation to the favourable impression he had of the father’s care and care arrangements for the child.
These submissions attacked the following paragraphs:
“130. Subsection (k) requires that consideration be given to whether it would be preferable to make an order that would least likely lead to the institution of further proceedings in relation to the child. What needs to be considered is the provision of a stable environment and a stable arrangement. The mother, in my view, is best able to provide that, most particularly, because of her availability for the children and to be there on a regular and continuing basis.
131. I, of course, make no criticism of the father and the fact that he is in employment and is required, therefore, to work, but what is clear is that the father is not able to provide that settled arrangement which would lead to a more settled situation in respect of the care of the child. More particularly, however, the father's proposals would leave a situation where the children would be separate and apart. That is not a basis upon which one would think that there was not likely in the future to be institution of further proceedings. I am more satisfied that the mother's position in relation to the matter would meet that requirement.”

While I think, with respect, the expression in paragraphs 130 and 131 somewhat awkward, it is clear enough that the learned Magistrate was addressing the features of the comparative residential arrangements on offer, in an endeavour to predict the likelihood of further litigation about those residential arrangements and it is in that regard that he referred to the mother’s greater availability and the reunification of the siblings as matters which, if in effect denied, by a residential placement with the father, would provide a climate in which further litigation was more likely than if the order sought by the mother was made.
While another Judge might not have drawn those conclusions, the challenge here is really to the adequacy of reasons. The reasoning behind the conclusion reached in relation to the likelihood of further proceedings is discernible.
For the above reasons, I find no merit in this ground.

Conclusion

It follows from my discussion of the individual grounds that in my view there is no merit in the appeal and it must be dismissed.

ORDERS

That the appeal be dismissed.
That either party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the appeal by filing such submissions at the Townsville Registry of the Family Court and serving them on the other party within 14 days of the date hereof.
That the other party have a further 7 days in which to make written submissions in answer thereto by filing such submissions at the Townsville Registry of the Family Court and serving them on the other party.
That either party be at liberty to reply to an answer by way of written submissions by filing such reply at the Townsville Registry of the Family Court and serving it on the other party within a further 7 days.
That each party endorse on the cover sheet the date on which a copy of that submission was served on the other party.
I certify that the preceding 96 paragraphs
are a true copy of the Reasons for Judgment
herein of the Honourable Justice Warnick.
………………………………….
Associate
Date: 3 February 2006

[2006] FamCA 230

3 February 2006

Key Legal Topics

Areas of Law

Administrative Law

Civil Procedure

Legal Concepts

Judicial Review

Jurisdiction

Standing

Procedural Fairness

Natural Justice

Costs