C v B

[2006] FamCA 513

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA                  Appeal No NA84 of 2005
AT BRISBANE  File No TVF43 of 2003

BETWEEN:

C
Appellant Father
- and -
B
Respondent Mother
CHILD REPRESENTATIVE

REASONS FOR JUDGMENT

CORAM:  Bryant CJ, Kay and May JJ
DATE OF HEARING:                 9 May 2006
DATE OF JUDGMENT:             13 June 2006

APPEARANCES: Mr Page, Senior Counsel with Mr Fellows of Counsel, instructed by MacDonnells Solicitors, Cnr Shields & Grafton Streets, Cairns Qld 4870, appeared on behalf of the Appellant Father.

Mr Keim, Senior Counsel with Ms Willis of Counsel, instructed by Murray Lyons, PO Box 638, Cairns Qld 4870, appeared on behalf of the Respondent Mother.
Mr Betts of Counsel, instructed by Lehmann Featherstone, Lawyers, PO Box 5032, Cairns Qld 4870 appeared on behalf of the child representative.

C & B
NA84 of 2005
CORAM:  Bryant CJ, Kay & May JJ
DATE OF HEARING:         9 May 2006
DATE OF JUDGMENT:     13 June 2006

Catchwords: COURTS AND JUDGES – Adequacy of reasons – Judgment included large portions of the written submissions of counsel for the successful party without attribution – Failure to deal with or explain the rejection of other party's submissions on events considered significant by the trial Judge – Failure resulted in justice not being seen to be done – Re-exercise of discretion by reference to non-controversial findings of the trial Judge and other uncontested evidence.

FAMILY LAW – CHILDREN – CONTACT – Best interests – Unacceptable risk – Wife the victim of a violent home invasion – wife had a genuinely held reasonable belief that the husband had orchestrated the attack upon her – “More than a passing possibility” that husband involved in assault – Unnecessary to make a positive finding on whether or not the husband orchestrated the home invasion – Parallels with A v A (1998) FLC 92-800 – Evidence demonstrated that the persons who organised or carried out the attack were violent and disturbed – No contact order of trial Judge upheld.

This is the father’s appeal against orders made by Monteith J on 26 October 2005 granting the wife sole responsibility for the long-term and day to day care welfare and development of T born in April 1998 and C born in December 1999 and further providing that the father have no contact with the said children.

Background

The parties began to cohabit in October 1990 and married in August 1996. They ceased cohabitation either late December 2002 or early January 2003. T and C are the children born of the marriage.

The matters in issue at the trial concerned not only parenting orders but property, spousal maintenance and child support as well. The orders made relating to the latter matters were not the subject of the appeal that was argued before us.

The trial was conducted over 18 hearing days between March and May 2005. Circumstances surrounding the separation of the parties and events that culminated in the wife being attacked “while she was alone in her home, in the dark, at 3.00am” on a night in August 2003 were the subject of intense scrutiny at the trial. The learned trial Judge concluded that the father had orchestrated the attack. He further concluded that the father posed an unacceptable risk to the children and accordingly it would not be in the best interests of the children for them to have contact with him.

The main basis of the appeal was that the reasons for judgment given by the trial Judge were said to be inadequate because it was asserted they consisted mainly of reproducing, without attribution, the written submissions of counsel for the wife and that they failed to either deal with or explain adequately or at all why the submissions for the father were rejected. Particular reliance was placed upon a passage in the decision of the Victorian Court of Appeal in Fletcher Constructions Australia Limited v Lyons MacFarlane & Marshall Pty Ltd (No 2) (2002) 6 VR 1 where Charles, Buchanan and Chernov JJA said:

“163.A careful examination of the reasons for judgment shows that the judge adopted LMM's closing submissions almost in their entirety. More than 40 paragraphs of the judgment correspond closely to the contentions advanced by LMM in its closing submissions. Fletcher mounted contrary arguments relying on particular evidence and contractual provisions, which were set out extensively in its closing submissions. Nowhere in the reasons is there any reference to those contrary submissions. Fletcher alleged that one of a number of defects in the design of the prison was that LMM overlooked the requirement that the walls of cells at the end of the row of cells needed to be of the same strength as other exterior walls. The defect was covered in Fletcher's closing submissions but was not dealt with in LMM's closing submissions. We think that it is significant that the judge, too, did not deal with this claimed defect.
164.LMM submitted in this Court that the judge dealt with Fletcher's submissions by reaching conclusions which necessarily implied the rejection of those submissions. That is no answer to Fletcher's complaint. The Court is required to do more than decide the issues arising in a proceeding: it is also obliged to give reasons for rejecting at least the principal submissions relied upon by the losing party which relate to the issues upon which the result of the proceedings depends.
165.The contrast in the manner in which the judge dealt with the submissions of the parties is striking, to the point that it appears that most of Fletcher's arguments and the evidence supporting its arguments were simply ignored by the judge. If his Honour had any reasoned basis for rejecting the arguments, he did not state them. Fletcher was entitled to complain of that treatment.
166.In Conder v Silkbard Pty Ltd [1999] NSWCA 459 Beazley, J.A. said that
‘It was incumbent for [the trial judge] to deal with the central contentions advanced by the parties and indicate, even in general terms, whether and why he accepted or rejected those matters.’

Similarly, the New South Wales Court of Criminal Appeal in R. v Maxwell said:
‘The appellant had a right to expect that the arguments put on his behalf would be dealt with in such a way that he could be satisfied that they had been understood and, either accepted, or, if rejected, that the rejection was based on a clear and rational process of reasoning.’

Again in Australian Securities Commission v Schreuder Underwood, J. said:
‘It was a clear obligation upon a judicial officer to deal with relevant submissions made by the parties for litigation. If this is not done the parties are denied their proper rights of appeal and justice does not appear to have been done.’ “

It was further submitted that justice had not been seen to be done, in reliance on the oft-quoted passage of Gray J in Sun Alliance v Masood [1989] VR 8 at 18:

“In my opinion, the decided cases show that the law has developed in a way which obliges a court from which an appeal lies to state adequate reasons for its decision.
The adequacy of the reasons will depend upon the circumstances of the case. That the reasons will, in my opinion, be inadequate if:-
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.

The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”

The judgment

The first 440 paragraphs of the judgment deal with the parenting issues. The issues to be determined were defined by the trial Judge in the introduction where his Honour said:

“1.The wife was attacked whilst she was alone in her own home, in the dark, at 3.00 am, on [a night in] August 2003. The attack was violent, cowardly and may well have taken her life. The perpetrators clearly set about to display publicly that the wife was a drug dealer who owed money for drugs. Words to this effect were sprayed in large letters across the front of her house and all over her car.
2.Her car was moved up a steep driveway to an address some streets away. There was no damage to the locks of the car or the ignition. Whilst the graffiti on the car and house suggested that the wife owed money for drugs, the police found poor quality marijuana openly on display in the car console and later found high quality amphetamines inside a condom packet also found in the car along with other drug paraphernalia.
3.The wife denies ever taking any drugs in her life. The police had blood tests taken just after the attack and there was no evidence of her having taken drugs of any kind. Nothing found in her home was suggestive of the wife being a user of drugs. Two very experienced police who investigated the attack had never previously encountered a demand for drug money being made in such a public way.
4.It is the wife’s case that it was the husband who orchestrated the home invasion, the attack on the wife’s life (when she was suffocated and then strangled until she collapsed) and the clumsy and unsubtle planting of ‘clues’ designed so that even the most, obtuse and clueless investigator would be forced to conclude that the wife had a serious drug habit and consorted with drug dealers.
5.She asks for a positive finding on the facts and circumstances presented during the trial, that the husband orchestrated the attack and home invasion.
6.It is submitted on behalf of the wife that this is a case where there is ample evidence for the Court to properly make a positive finding.
7.In the event that the Court does not make a positive finding on the evidence, it is submitted, on behalf of the wife, that the Court will determine that there is sufficient evidence to make a finding of an unacceptable risk that the husband will harm the children sometime in the future, in the event he is to have contact.
8.It is submitted that the wife holds a strong and genuine belief that the husband was responsible for organising the attack, in which she almost died, and that the husband has done all he can to harm her and all that is left is [sic] for him is to get at her through the children.
9.She holds fears, it is submitted, that one day, he will take the children away from her either by disappearing with them or worse.
10.It is submitted that on the facts, even on an objective view, the wife’s belief is entirely reasonable.
11.Further, it is submitted the risk to the children is so grave, that it is not answered by supervised contact and that any suggestion of supervised contact should be rejected.
12.The husband denies any involvement in the attack on the wife and in written submissions in relation to contact, sets out his position as follows:-
(i)she no longer personally fears the husband or for her own security;
(ii)she resists supervised contact on the basis that this may lead to unsupervised contact and that, during a period of unsupervised contact the father will harm [the children] in order to harm her or abduct them;
(iii)she may find it difficult to cope with orders but ‘I would not breach a court order’.

13.The father then seeks orders for the reintroduction of contact firstly supervised, then leading to unsupervised contact.
14.The Children’s Representative, in her written submissions, sets out her position as follows:
‘[1] This has been a long and bitterly fought case.
[2]There is only one central issue to be decided – whether the father should have contact with his two [children], T aged 7 and C aged 4.
[3]If the Court answers that question in the affirmative, the Court must then decide what manner and form the contact should take. As the father’s contact has been suspended since November 2003, issues of re-introduction, stepped contact, and supervised contact, all arise for consideration.
[4]If the Court decides that contact is not appropriate, then the father’s application must be dismissed.’

The Children’s Representative, after considering the evidence, submits:
‘[52]Having formed the view that the father is likely to have arranged the home invasion, the Children’s Representative concludes that he must pose an ‘unacceptable risk to the children.”

And finally, the Children’s Representative submits as follows:
‘[77]The Children’s Representative seeks orders that the father have ‘no contact’ with the children.”

His Honour then set out the relevant statutory considerations and made reference to relevant decided cases quoting extensively from the High Court in M v M (1988) Fam LR 606 in support of the proposition that a court may not grant contact to a parent if it would expose the child to an unacceptable risk. His Honour then referred to the decision of Fogarty, Kay and Brown JJ in A v A (1998 ) FLC 92-800, 22 Fam LR 756 saying that the facts of that case bore some resemblance to the present case. In A v A the wife was violently assaulted in her home in what appeared to be an attempt to murder her. She believed the father was the assailant. The Court said at par 4.3:

“In our view, this was a case where there was clearly an unacceptable risk to the children. The nature of the assault bespeaks a violent and disturbed person. As there is a possibility that the husband is that person, it seems to us to be unacceptable for this Court to place these children in any position of risk arising from those circumstances. Certainly, it is not a risk which we propose to take.”

The trial Judge then indicated that he should consider the case bearing in mind the standard of proof required by “the very highest end of the Briginshaw test”.

Turning to the evidence the trial Judge said:

“36.This has been a long and bitterly fought case over five weeks. Counsel for the wife in her written submissions has sought to deal with the evidence under topics.
37.I regard that as a very helpful way of dealing with the evidence in this case and I propose to adopt that method in my judgment.”

These observations significantly understate what occurred in the next 368 paragraphs of the judgment. Most (but not all) of the matters covered in the next 368 paragraphs, being pars 38 to 405 inclusive, are copied verbatim and without attribution from the submissions filed on behalf of the respondent wife. We have been provided with a lengthy and helpful analysis of the paragraphs and it is clear that there are from time to time some significant alterations made to them by the trial Judge. We do not think any useful purpose is served by trawling through all of the paragraphs to indicate where those differences occur, but it is apparent that the trial Judge has turned his mind to the issues raised in the submissions of the wife and not accepted them without placing his own emphasis on matters that he thought were significant in the proceedings. It would have clearly been far more desirable for the trial Judge to have indicated that he was proposing to adopt the submissions of the wife with appropriate alterations rather than leave the reader with the impression that he was merely using her submissions to provide the framework for the judgment.

Both the framework and the submissions themselves as adopted by the trial Judge purported to deal with events surrounding the breakdown of the marriage under several headings and sub headings:

· Separation.

· The 2002 Christmas holidays.

· The husband’s allegations of telephone call threats [in] December 2002.

· The husband claims occupancy of the former home, retains the children and the cars.

· The wife retrieves the children [in] January 2003.

· EVENTS OF SIGNIFICANCE THAT FOLLOWED THE WIFE COLLECTING THE CHILDREN.

o Interim hearing January 2003.

o Report to the police in January 2003.

o Second report to the police in January 2003.

o Third report to the police in January 2003 and insurance claim.

o February 2003 the “Brain Tumour”.

o Report to the police in February 2003.

o Spousal maintenance hearing April 2003.

o Husband ordered to pay wife’s costs $10,000.

o Husband applies for loans to pay costs.

o Husband hides $10,000 loaned to him by his Mother.

o The hidden money.

o [The husband’s mother]’s knowledge of where the funds were paid.

o Husband’s evidence as to the hidden money.

o Husband’s evidence about the [JC] arrangement.

o Phone calls to [JC].

o [JC]’s evidence

o April 2003 husband reports wife as a drug dealer to JAB

· HOME INVASION – August 2003

o The wife’s evidence

o Medical Evidence – Wife’s injuries

o Attack not random

o Police Evidence

o Detective Senior Constable BS

o Evidence of [the husband’s mother] about telephone call on 06.08.03 with Detective S.

o The tape recording of [the husband’s mother]’s conversation with Detective S and further evidence of [the husband’s mother].

o The video interview by Detective S in October 2003.

o Detective Sergeant D.

o Husband’s movements on the morning [after the attack in] August 2003.

o Correspondence from [the morning after the attack] onwards.

o Interim hearing November 2003.

o Wife’s evidence about her belief that the husband organised the attack.

· Conclusions.

Given that it is the events that surround the home invasion of August 2003 that were ultimately determinative of the issues in this case, it is unnecessary for us to set out at length the manner in which the trial Judge dealt with each of the topics under the various sub-headings. However, in order to understand the parameters of the dispute it is convenient to summarise them.

The trial Judge found that immediately upon the breakdown of the marriage in December 2002, the husband received a threat from GS, the fiancé of the wife’s sister, SB, to the effect “that his legs would be broken if he left the State with the kids, that if he went to S he would not be leaving…”. On the same day, the husband’s sister-in-law received a threat from SB which included the words:

““that fucking cunt has taken [the mother]’s children and is going to S without her. I know people I can put onto them. I will have [the father]’s legs broken. He will not leave with her kids and get away with it. ”

His Honour went on to find that in January 2003 when the husband was in C in the former matrimonial home with the children, he told the wife that he was not prepared for her to return to the home, that he was going to continue to live there with the children and would need her to find alternative accommodation.

The wife, who had been in S with the husband’s parents, returned to C two days later accompanied by her brother IB. She attended at the former matrimonial home and the trial Judge accepted:

“64. The wife arrived back at the former matrimonial home at S Crescent, W to find the husband had assumed complete control of the house and the children. The wife says that the husband:-
a. locked the door behind the wife when she arrived;
b.stated that she was not welcome and when she asked to speak to the children, he said they were playing in the lounge, allowed the wife to play with the children but did not allow her to be alone with them;
c.said that he was packing up her things;
d.told the mother that he was having his own mother fly in to look after the children;
e.when the wife said that she could look after the children, told her that she could neither take them away nor have them overnight;
f.nominated a time, chosen by him, that she could see the children being the following Tuesday.

65. In addition, the husband:-
(a)told the wife she could not borrow the second car, even while he was at work;

(b)when the wife asked to use one of the cars (there were two cars owned by the parties available), refused and asked the wife if she would like a taxi;
(c)told her the children were not going with her;
(d)In cross-examination it was put to the husband that the wife had said when asking for the second car, ‘do I have to beg for it?’ The husband denied that the wife had said this. The husband was then taken to his own police statement at paragraph 5, wherein the husband told the police, ‘At about 6.30 pm I decided to call her a cab. She heard me calling the cab and asked if she could borrow one of my two vehicles. When I said, “no”, she went into a rage saying words to the effect “What’s so hard about that, do you want me to beg for it”. I replied, “No that is not necessary”. The wife then started crying and upsetting the kids so I took them into their bedroom’.”

20 January 2003

The next day the wife went back to the home with her brother and a security guard, one Mr F and retrieved the children. On that morning the husband suffered injuries to his face. He asserted that he had been assaulted by the wife’s brother in the course of the wife recovering the children. The wife, her brother and Mr F all gave evidence that they left without any violence. The trial Judge said:

“85. There is clearly a dispute as to what occurred on that morning. I prefer the evidence of the wife and her witnesses [IB], [Mr F] and [KM]. I have absolutely no doubt, having seen [IB] in the witness box, that he was telling the truth. The evidence of Constable A also accords with the version of events given by the wife and her witnesses in that there was no blood where it should have been if the husband had been punched as he claims.
86.I find that the husband has lied about being punched and that he has gone to some other extreme measures to present himself to the police as the victim of an assault. The most likely scenario is that he injured himself. This demonstrates just how far the husband will go to discredit the wife and her family and shows his propensity to lie boldly to the police, his legal advisors, the Family Court and the psychologist and psychiatrists who have assessed him, all for strategic purposes. It also indicates the level of anger and rage he felt, and still feels, towards the wife.”

Surprisingly the trial Judge does not include in his reasons for judgment the submissions received from the wife as to the alternative scenario which, in our view seemed a far safer course to travel than that travelled by the trial Judge. They read as follows:

“54.It is submitted, however, that even if Your Honour does not accept the wife’s version of events, and that of her witnesses, as to the events [in] January 2003, it does not alter the wife’s primary case, namely that the husband orchestrated the home invasion upon her. Even if [IB] did hit the husband (which is not conceded) there is no evidence connecting the wife to that violence and further, it does not alter any of the subsequent evidence about the husband’s conduct.”

We have not, of course, seen any of the witnesses in the witness box and cannot properly comment upon the credibility to be given to any of them as a result of their demeanour. We do note however the question contained in par 76 of the judgment of Kirby J in State Rail Authority of New South Wales v Earthline Constructions Pty Limited (in Liq) (1999) 160 ALR 588 at 615 where his Honour said:

"The decision in Coghlan v Cumberland, which was approved and applied by this court in McLaughlin, examined the dilemmas which have faced appellate judges in Australia and elsewhere ever since the statutory facility of appeal was introduced. How can they reconcile the obligation to conduct an appeal by way of rehearing on the facts as well as on the law, while respecting the advantages enjoyed by the trial judge which the appellate court can never wholly recapture?"

Kirby J went on to say (citations omitted)

"86.     In saying that the impact of appearance or demeanour can be "subtle", McHugh J in Abalos was adding little to what Isaacs J had written 60 years earlier in Dearman. Abalos does not state a new principle of law. After more than a century of countless re-explorations of the point, it would have been difficult indeed to find anything new to say. Abalos and the cases which accompanied it are to be read as lying in the mainstream of the court's ‘traditional’ approach to the appellate function. To read more into them would be to risk returning the court to a view of the appellate function, wholly subservient to the opinions and conclusions of the trial judge, which was expressed in the now discarded approach which Barwick CJ propounded, for a time successfully, in Edwards v Noble and other cases. There is no warrant for returning to that position. In my view, it should be firmly resisted. It cannot stand with the duty imposed on appellate courts by statute to make up their own mind; to conduct appeals on the facts by way of rehearing; to draw inferences from the facts for themselves; to give the judgment and make orders that should have been given at trial; and, in exceptional circumstances, even to admit fresh evidence into consideration.
88.      There have been many changes in the appellate function since the rules outlined above were first stated. The changes have included the following:
...
4.        There is a growing understanding, both by trial judges and appellate courts, of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom. Scepticism about the supposed judicial capacity in deciding credibility from the appearance and demeanour of a witness is not new. In Societe D'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Insurance Co (The Palitana), Atkin LJ remarked that ‘an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.’ To some extent, the faith in the judicial power to discern credibility from appearances was probably, at first, a consideration which the judiciary assumed that it inherited from juries. It was natural enough that trial judges, accustomed to presiding over jury trials, would claim, and appellate judges would accord, the same ‘infallible’ capacity to tell truth from falsehood as had historically been attributed to the jury. Nowadays, most judges are aware of the scientific studies which cast doubt on the correctness of this assumption. Lord Devlin in The Judge quoted with approval a remark of MacKenna J: ‘I question whether the respect given to our findings of fact based on the demeanour of the witnesses is always deserved. I doubt my own ability ... to discern from a witness's demeanour, or the tone of his voice, whether he is telling the truth.’ It was a becoming but entirely accurate modesty.

...
Witness credibility: the trial judge's real advantages
89.      None of the foregoing considerations requires the abandonment of the respect which appellate courts, by present legal authority, must pay to the advantages enjoyed by the trial judge. Instead, they require renewed attention to precisely what the advantages are which the trial judge has over those enjoyed by the appellate court, conducting a second look at the facts, usually with more opportunity to evaluate particular facts than is possible in the midst of a trial and with the appellate advantage of viewing such facts in the context of the record of the complete trial hearing.
90.      The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are the real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge. These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge has been driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified.
91.      All of the foregoing considerations leave to be weighed, in some cases at least, the impression which the trial judge holds of a particular witness, perhaps influenced by the witness' demeanour and the kinds of considerations commonly referred to such as hesitation or displays of partisanship not readily conveyed, or conveyed at all, by the printed record. One can hold different views about whether such considerations should intrude in the assessment of qualified expert witnesses. One can strive to minimise resort to such considerations in the case of lay witnesses, out of recognition of the fallibility of human assessment of credibility from appearances. But because trials remain public procedures for the resolution of disputes, it is inescapable that, in some cases at least, credibility assessments will be required where there is no documentary, electronic or other incontrovertible evidence to resolve the conflict presented for decision. In such cases it will remain the fact that, try as it might, the appellate court cannot procure from the printed record exactly the same materials on which to base the judicial decision as the trial judge had.
92.      This conclusion may, as I think, be true of a relatively limited class of case: basically those where the decision depends upon resolving a clash of critical oral testimony, oath against oath. But in such cases, because the appellate court cannot, in presently available records, recapture all of the information properly used to assist the trial judge's decision, the old strictures about that judge's advantage remain as relevant today as they were when first written more than a century ago. In such cases, the appellate court's rehearing must be conducted within a constraint which is set by the somewhat more restricted data available to it. This limitation is not confined to Anglo-Australian law. It is recognised in other countries of the common law and doubtless beyond.”

Of all of the scenarios that might have occurred on that morning in January 2003 one would have thought that the least likely one was that the husband injured himself. There did not appear to be any evidence that the husband knew that the wife would be attending at her home with Mr B and a security guard to recover the children. He appears to have been caught unawares by their actions. The probability that he would think in the circumstances that there would be some forensic advantage to him if he could show that the wife’s brother had been violent towards him seems to be a fanciful explanation of what occurred. Were the case to turn on this point we would find it necessary to re-evaluate the evidence for ourselves and may have come to a different conclusion to that reached by the trial Judge on this issue. However we would agree with the alternate submission that had been made by the wife to the trial Judge that ultimately the events of that day in January 2003 ought have had little impact upon the eventual outcome of the proceedings which were dominated by the events in August 2003.

Continuing to focus on the events surrounding the breakup of the relationship, his Honour was critical of the husband’s refusal to allow the wife the use of the parties’ second motor vehicle and then attempting to enroll the elder child T into full-time pre-school even though the child was in the care of the wife. He adopted without attribution the submission of the wife’s counsel that the husband exhibited an “overall attitude to dominate the relationship, and to deprive the wife of everything possible, including time with the children”.

The Judge then made reference to the husband reporting to the police three events, being the alleged assault upon him in January 2003, an attempt at the removal of the children’s car seats from the parties’ second car on the following day and the disappearance from the home of some of the wife’s belongings the day after that.

The husband asserted that there had been a break and enter at his house and that the only items missing were those that belonged to the wife. The wife subsequently lodged an insurance claim and the husband told the loss adjustor that he believed the wife had removed the items herself or caused them to be removed. The trial Judge adopted the wife’s submissions that “it would be difficult to find a better example that the husband’s unshakeable stance and unrelenting determination that the wife was to receive nothing.”.

tumourThe brain

His Honour dealt with disputed evidence in which the wife and a witness, PM, indicated that early in February 2003 the husband told them that he had a brain tumour and only had a short time to live. The analysis of this particular incident occupies 26 paragraphs of the judgment, from pars 107 to 132.

The gravamen of the wife’s assertion was that the husband had made up a false story with a view to trying to dissuade her from proceeding with a domestic violence proceedings against him.

The husband denied the story and the wife and her witness were strenuously challenged about their evidence. The trial Judge concluded, again adopting without attribution the wife’s submissions, that:

“130.…the story of the brain tumour can only have been made up for strategic advantage, to attempt to have the wife return to him and/or to pressure the wife to withdraw her application for a Domestic Violence Order.”

It was then said by the trial Judge:

“132. The incident of ‘the brain tumour that never was’ provides a perfect example of the husband’s ability to dissemble, his creativity in manufacturing falsehoods and his propensity to lie whenever it fits his own purposes.”

Report to police – February 2003

The parties had attended a directions hearing at the Family Court in C in late February 2003 at which it was agreed between the parties, amongst other things, that items of children’s clothing and possessions were to be handed over to the wife that afternoon after court. Later that afternoon the husband reported to the police that when he got home from court he found that his house had yet again been burgled.

In the course of discussion under the heading that related to the report to the police, an issue arose as to whether the husband had been asked to return a second set of keys to the Falcon car during the proceedings in February 2003, the car being in the possession of the wife. The wife said that the family had two sets of keys and that when she got the Falcon she only received only one set of keys. When her counsel had asked for the keys at the hearing he was told by the husband’s counsel that the husband asserted that the second key was on the same ring that the first key was on. He said:

“I’d taken a Falcon key off a key ring and I was actually doing I think while or just before she was there, I was getting all the keys ready for her and put all the Falcon keys on the one key ring.”

He said he then eventually gave the keys to a Mrs K who apparently took them next door to where the wife was. He repeated (AB64):

“I recall going to where the key holder is and taking a spare or taking a whole heap of keys off one key ring and putting the two Falcon keys plus the two ancillary keys on to that key ring for the handover.”

This oral evidence was apparently in contradiction to affidavit evidence of the husband.

The wife had asserted that she never received both sets of keys to the Falcon and the findings on this evidence became critical to the ultimate finding by the trial Judge that the husband was involved in the August assault upon the wife. After setting out at length the evidence given by each party relating to the handing over of the keys, his Honour reached a finding that cannot be directly attributed to the submissions of the wife’s counsel:

“138.I completely reject the evidence of the husband on this issue, in which I conclude he tried to dissemble and was completely caught out. On the other hand, I unequivocally accept the evidence of the wife. I conclude that the husband retained a set of keys to the Falcon and that they must have been used to move the Falcon during the home invasion.”

Spousal maintenance

His Honour was critical of the husband’s conduct in providing the wife and children with no support at all from mid-January 2003 until the spousal maintenance hearing in April 2003. His Honour, again accepting the wife’s submissions without attribution, was critical of the manner in which the husband defended the spousal maintenance claim asserting the existence of debts to his parents which were long standing and had never been met in the past.

In the course of discussing matters surrounding the spousal maintenance hearing the trial Judge indicated that he found the husband’s mother to have:

“been a willing participant in the attempt to help persuade the Court that the husband could not and cannot afford to pay spousal maintenance to his wife…”

He rejected her evidence of the existence of loans by his parents to the husband.

Unpaid costs

The trial Judge next noted that the husband had been ordered in May 2003 to pay the wife’s costs which were agreed at $10,475. They remained outstanding notwithstanding that the husband was said to have a capacity to pay them.

In two affidavits, one sworn in September 2003 and one sworn in February 2004, the husband deposed that he had tried to get a loan to pay the costs order but had not been successful.

On the morning of the trial 26 March 2004 the husband handed up a statement in which he said that in August 2003 he had obtained a loan from Westpac Bank for $10,700 and it was intended by him the money should be used to pay the costs order. However he changed his mind and paid a bank cheque for $10,000 to his solicitor’s trust account on the same day.

Whilst being critical of the husband’s credit arising out of his inconsistent sworn statements, the trial Judge also noted that the loan applications to the bank did not make any reference to the alleged debts that he claimed that he owned his mother and his step-father. The Judge concluded that the loans were fictitious and brought into existence to improve the husband’s position in resisting the wife’s proper claims for financial support.

Hidden funds

The Judge then went on to discuss yet a further sum of $10,000 that the husband had received from his mother in July 2003. He said he thought his mother believed the money was paid into the trust account of a solicitor but in fact it was placed into an account of a friend, JC for the alleged purpose of “hiding it”. Between pars 172 and 227 of the reasons for judgment, the trial Judge sought to analyse the conflicting evidence relating to the manner in which the money was held and ultimately dispersed. It was speculated in the course of the trial that the money may have been used by the husband to pay people to assault the wife. The trial Judge concluded at par 227, “there having been no satisfactory explanation regarding the dealings with the $10,000 it is therefore open to speculation as to what use that money was put”.

Husband reports wife as a drug dealer

Before turning to the circumstances surrounding the home invasion of August 2003, the trial Judge dealt with one further matter, namely the husband reporting the wife as a drug dealer to the local Juvenile Aid Bureau in April 2003. It was the day upon which the husband had moved out of the former matrimonial home pursuant to an order that the wife have sole occupation of it. A detective senior constable of police gave evidence that the husband had telephoned him that day alleging:

“229. …
a.a male person called [RW] told him last Friday that his ex-wife was selling drugs to other mothers – kids on bikes – at [a school] in C out of the back of a car;
b.the male person described the vehicle as a […] falcon sedan and he provided the registration number as […];
c.that he and his wife were going through the Family Law Court with custody of our kids;
d.that he was not making a vexatious complaint;
e.that the complaint was true and that the wife had been doing it for a while;
f.that the husband knew [the wife] was selling drugs from the boot of her car to school kids in plastic bags;
g.that his wife was moving to a new address of [S] Crescent, [W].”

Significantly, when cross-examined about these matters, the husband said:

“232 …
k.He didn’t even tell his solicitor about the report.
l.He admitted that he had never raised the issue of him reporting the wife for being involved in drugs in any Family Court proceedings or affidavits including (a) the affidavit filed in relation to the interim hearing (following the home invasion) before Justice Bell on 18 August 2003 when the wife brought an application to have the children returned to her by the husband, which the husband contested; (b) the trial affidavit of 26 February 2004; and (c) the final trial affidavit of 1 March 2005.
m.He also admitted that he did not ever volunteer the information that the wife had been selling drugs from the boot of a car, or that he had been approached by [RW] who had seen the wife selling drugs from the boot of a car, up to the police when they called at his unit to talk with him [in] August 2003 when the police were investigating the home invasion which occurred [in] August 2003. This interview was recorded.
n.He admitted that he did not ever volunteer any of his own information or that of [RW] regarding the wife being a drug dealer to the police when he was taken into the CIB headquarters for a formal interview [in] October 2003. This interview was video recorded.”

It is clear that this part of the evidence had a significant effect on the outcome of the proceedings. The trial Judge, in again adopting in an unattributed manner the submissions of the wife, said:

“240.The relevance of this report to the police at the Juvenile Aid Bureau by the husband cannot be overstated. Months after this report is made, the violent home invasion occurs in which the wife is attacked and her life put at risk – she is suffocated and then strangled until she passes out. The front of her house is painted with large lettering, the theme of which is that the wife is a drug dealer who has not paid her debts. ‘Pay your drug habit bitch’ is painted on her house and her car. Drugs, being poor quality marijuana, are actually placed in the car by the perpetrators and high quality amphetamines are also placed in the car, both in prominent positions. It is fair to say that the perpetrators have attempted to show publicly that the wife is a drug dealer and that she owes money to those she buys from.
241.All of the circumstances surrounding the husband reporting the wife as a drug dealer to the Juvenile Aid Bureau at the [C] Police [in] April 2003 need to be examined and considered carefully. There are many ramifications that flow from this report, including the timing of the report, the allegations made, the failure to contact [RW] at any time, the failure to advise the school of occurrence, the failure of the husband to admit to the police, the Family Court, the wife, her lawyers and his own lawyers or anyone that he made the report. The husband’s conduct in relation to this incident is pivotal to the wife’s belief that the husband has orchestrated the home invasion. I find this was the first step in the husband’s plan designed to paint the wife in the eyes of the police as a drug dealer and a report which I find was utterly untrue. Importantly the report was not made to a general member but rather to an officer with the Juvenile Aid Bureau. The husband wanted to have the wife reported and known as a person who not only sells drugs, but who sells drugs to children.”

Home invasion

The trial Judge then turned to the circumstances surrounding the home invasion saying:

“242. In the early hours of [a night in] August 2003, the wife, alone in her house, asleep and naked, was woken in the dark by two men shining a torch in her face who then committed a life-threatening attack on her. In the course of the attach [sic] the wife was roughly manhandled and terrorised by the two men, thrown on to her bed where pressure was placed on her chest and she was all but suffocated with a doona and finally a pillowcase was placed over her head and she was strangled with continued force until she passed out, her last words being, ‘I can’t breathe’.”

The wife gave evidence that one of the attackers with a Maori or Islander accent questioned her about the whereabouts of drugs and about a person named G owning the drugs and G being in the security business. She said to the attackers that the G in the security business is her brother-in-law.

The medical evidence of the wife’s injuries, after being clarified to prevent any confusion from the use of technical jargon, was that she had two black eyes and bruising in tissues around the eyes, plus bleeding under the conjunctivae, multiple small bleeds in the skin of her face due to pressure on the blood vessels in her neck, tenderness and bruising to the main windpipe extending from the throat to the lungs, abrasions over both knee caps and a small break in the skin consistent with a needle having passed through her skin and into a vein in front of her right elbow. This was summarised as the wife having been strangled with such force that the blood vessels in her face and scalp ruptured. Her injuries were depicted in Exhibit 65 which the trial Judge described as “horrifying photographs”.

His Honour noted that in addition to the attack on the wife, her home was spray painted with the words “Pay your drug habit, bitch” and that her car had been removed some 400 metres from her home and spray painted with the word “Bitch” several times and with further demands about paying for drugs.

It was the wife’s evidence that she was not involved with drugs and was mystified as to why the drug slur was attached to the attack. The trial Judge concluded:

“254.I have absolutely no doubt in my mind that the wife was telling the truth when she said she did not have anything to do with drugs, nor did she associate with any person who does. I also believe her when she said that she has never taken drugs nor been interested in taking drugs. I therefore completely reject the husband’s evidence with respect to these matters. That is not only his evidence with respect to the wife’s drug taking, but his evidence seeking to implicate Mr [S] with respect to drugs.”

His Honour then detailed the evidence of Detective S, including a taped conversation that the detective had with the husband on the morning after the attack, and analysed evidence given by the husband’s mother concerning a telephone call she had made to the police three days after the attack. After his Honour analysed that evidence he concluded:

“290. Taken as a whole, the evidence of [the husband’s mother] is that of a person lacking in candour, evasive, rambling and willing to change her sworn testimony if that suited her needs. I find she is a witness with no credibility at all and that she is prepared to lie under oath for her own purposes and to assist her son. She will say whatever she thinks needs to be said to cover any situation. I totally disbelieve her.”

The husband was re-interviewed by the police in October 2003. The video interview was introduced into evidence in the proceedings before the trial Judge, who, again adopting the submissions of the wife, summarised what he thought were important aspects of that interview. Significantly, his Honour noted that at the conclusion of the interview when asked about financial matters, the husband made no mention of the $10,000 obtained from his mother in July 2003 and hidden in JC’s account. His Honour concluded that the husband’s performance in the interview was evasive wherever possible and unconvincing.

When the police recovered the wife’s car they found it contained:

“clip seal bag containing cannabis which he identified as being really poor cannabis, almost unsmokeable;
S & K brand sharp kit containing 4 syringes still sealed, and one empty syringe;
2 cigarette butts
5 medi swabs
a silver spoon
a container with water for injections
1 x condom cardboard packet branded as ‘cock ring night globe’
a condom wrapper (the packet) was found to have inside 3 clip seal bags containing white powder. Condom packet later found to have high quality amphetamines in it.”

Detective Sergeant D gave evidence saying that he had specialised in drug crimes for some five years. His Honour said:

“327. Detective [D] said that he had not seen demands for drug payments spray painted such as was seen on [the mother]’s house and car on any other drug related investigations in which he had been involved. Similarly, he stated he had not encountered in his previous experience of investigating alleged drug crimes, cars with spray painting making demands for drugs, with the car itself containing drugs.”

There was some evidence in police notes of a party in the same street as the wife’s home that had attracted some attention in the early hours of the morning in which the wife was assaulted.

The trial Judge then turned to the husband’s movements on the morning after the attack and noted inconsistencies between the husband’s oral evidence and his affidavit evidence concerning the sequence of events by which the husband learned of the assault upon the wife.

At the time of the attack the children were staying with the husband. After the attack the husband refused to return the children to their mother notwithstanding a request that he do so. There was correspondence exchanged between the parties’ solicitors and the matter was eventually resolved in proceedings before Bell J later in August 2003 when the husband was ordered to return the children to the wife. The wife was permitted then to take the children to the coast for two weeks.

Contact suspended

In October 2003 the husband was interviewed further by the police concerning the home invasion. The wife filed an application to suspend contact. That application was heard in November 2003, the husband declining to attend. The trial Judge, in accepting the wife’s submissions on the matter, was critical of the husband concerning his failure to attend on that day. His work records showed that he had taken sick leave without a medical certificate, but his sworn testimony in his affidavit of 26 February 2004 claimed that his inability to attend at the interim hearing was due to work commitments. The day of the November proceedings was coincidentally the husband’s birthday and the trial Judge found it incredible that the husband could not recall what he was doing on that day, particularly when the events concerned the possibility that an order would be made that he could not see his children.

Some 11 days later, the husband, via his solicitors, notified the wife that she was free to relocate with the children from C to SC as was her desire.

Before reaching his conclusions, the trial Judge considered the wife’s evidence concerning her belief that the husband had organised the attack. She had sworn in an affidavit of 8 March 2004:

“30.In my mind I go over the sorts of things that might happen to the children such as them being abducted or going on contact with the father and them being removed from Australia and them being killed or a best scenario of me never seeing them again.
31.I no longer feel that the children are safe with the father. I never thought that the father would organise to have me attacked. But since the attack and the lack of any other credible explanation, I am left believing that it was the father. I am worried about what might happen next particularly what might happen to the children.
32.I am still most concerned that [the father] would somehow try and get at me through harming [the children] or removing them from my life. I can not describe how I would feel if this were to happen. I know I would be devastated and I would be asking myself what more could I have done to have prevented this from happening. I know the only way [the father] can hurt me is through the children and he could only do this if he has contact. The thought of [the children] going on contact with their father is terrifying to me.
33.I do not want the father to have the opportunity to remove the children from my life. I am terrified about the thought of [the children] being with the father for any period of time at all.”

His Honour commented:

“397.The wife was challenged as to her beliefs by Counsel for the husband. He attempted to make the point that if she had always believed that it was the husband, this did not accord with her stating in affidavits that she had no idea who was responsible for the attack. The mother replied that she put she had no idea in affidavits as she did not want the husband to believe he was a suspect.
398.The wife’s evidence that she always had a belief that it was the husband is corroborated by the evidence of Detective Senior Constable [L] who said in his statement that he had interviewed [the wife] on the morning of the assault in hospital and –
‘after speaking with [SB] and [the wife] a line of inquiry emerged that [the wife] had a suspicion that [the husband] was responsible for setting up the crime and accordingly I later organised a request for call charge records to be obtained as to outgoing calls made by [the husband] and for calls received by [the husband]’.

399.The wife’s fears were challenged by Counsel for the husband on the basis that she couldn’t be frightened of the husband, because she had continued to claim child support, she had continued to make a claim for the husband’s superannuation (being the only property left); she had even dared to go and live somewhere near her family when it would have been obvious to the husband where she was living and he could have found her if he had wanted to; it was suggested that she would have moved away from her friends and family if she was really scared.
400.The mother’s position is that she has survived a most terrifying attack, she says that there is nothing further that the husband can do to her, and that her fears are about the children. There is, in my opinion, absolutely no contradiction in her holding fears about the future conduct of the father and her wishing to claim for herself and the children, a proper entitlement to child support and property.
401.The wife was questioned at trial by Counsel for the Children’s Representative about her beliefs as to who organised the attack upon her. She was unequivocal in that she believed, and has always believed that the husband organised the attack on her. She said that she had fears that the husband would fly away with [the children] and that he would remove them from the country. She said that she feared he would hurt [the children] to get back at her and ‘that there is nothing else he can physically do to me’. She continued on that she feared he would harm [the children] to get at her, or he would disappear with [the children].
402.I found that the evidence given by the wife was compelling and revealed her true terror of what the father might do in the future. The manner in which her answers on this topic were given showed a most deeply held fear of what was likely to happen in the future. In my view, her beliefs are entirely credible and understandable.”

His Honour then turned to the evidence of OP, a clinical and forensic psychologist who had prepared a report at the request of the Child Representative. His Honour cited two passages from Mr P’s oral evidence, in which he said:

“407. …
‘…clearly, from the mum’s point of view, I think it would be untenable to have any finding that says that either dad wasn’t or maybe he wasn’t undecided (sic) and then to have contact to proceed. I think that would be a situation where the mother would find it intolerable, and the history we’ve seen to date of mum being able to quarantine her own strong attitudes about the father from the children I don’t think we could – we’d see some changes in that.
…
Clearly, something has gone on here, and in the final analysis I don’t think the mother could tolerate a finding from the Court of anything other than he didn’t, he wasn’t involved, that could be managed reasonably in an order.
(HIS HONOUR): Let me understand it. Are you saying that unless I were to find he wasn’t involved she couldn’t tolerate me making a contact order, is that what you’re saying?---I think she would experience extreme difficulty, extreme difficulty. I don’t know how sustainable those sorts of orders would be.”

Then after lunch, he said:-
‘…Mr [P], just before lunch you stated that you did not think the mother would be able to cope with a contact order unless there was a positive finding that the mother [sic] was not involved in the home invasion, is that what you said?---It is. I think – I mean, I’m not sure whether she could cope or not, but it certainly would be an extreme difficulty for her in coping.
What do you mean by that, Mr [P]?---Well, I think you’d see some changes in the system as now constituted, and one of those I’ve alluded to and that is I think, not just in the practical aspects of enabling contact to take place, but also I think in her capacity to quarantine her anxiety, disappointment, rage, whatever it might be, from the children. I think the children would experience impacts as a result of that.
So you’re saying that there is a risk that, although to this point she’s been very good at keeping those things away from the children, in fact, she would have a reduced capacity to do that. Is that what you’re saying?---Yes. I think anything other than a positive finding and before a contact order was enabled would be experienced as an extreme personal front [sic] and with significant adjustment issues.
Are they issues that you believe could be adequately dealt with through counselling or other support?---It’s possible.’ “

The trial Judge then turned to Mr P’s evidence relating to the husband being a danger to the children. In response to a question from the Judge as to how he would interpret a finding that the husband had fabricated an assault upon him by Mr B so as to implicate the wife and brother-in-law with the police, Mr P said:

“408. …
‘… And I believe the C matter represents an extreme case of maladjustment to the breakdown of a marriage. Extreme. So lots of things are possible. There is, of course, the concern that somebody who would do that, and someone who would orchestrate this sort of home invasion thing does represent some very deep seated and sinister pathology could be visited on the children. They could be dangerous to their children.’ “

His Honour then departed from the submissions of the wife by reaching his own conclusions about the matter. Those conclusions are set out in pars 410 through 440 of which only pars 419 to 422 are taken from the wife's submissions:

“410.As I said at the outset, it is the wife’s case that it was the husband who orchestrated the home invasion and the planting of ‘clues’ designed to lead any investigator to conclude that the wife had a serious drug habit and consorted with drug dealers.
411.I accept the wife’s evidence that she has never used drugs and her evidence, supported by the police evidence, that she has not consorted with drug dealers.
412.Blood and urine tests were carried out on the wife by the police, immediately following the home invasion, confirming she was not a drug user. There was no evidence in the house to suggest the wife used drugs, nor was anything taken from the house to suggest a motive of burglary.
413.I am convinced, on the evidence, that the drugs and other drug paraphernalia found in the wife’s car were planted.
414.The spray painting on the house and the car was clearly done to advertise to the world that the wife was involved in drug use, had failed to pay for the drugs and that that was the reason for the attack upon her.
415.As I have said many times through these reasons, I found the evidence of the husband and his mother very unsatisfactory. On many occasions, they clearly lied under oath. For these reasons, wherever their evidence conflicts with other evidence, I prefer the other evidence. I also disbelieved the evidence of JC.
416.I find that prior to the home invasion, the husband and the husband’s mother sought to portray the wife as unstable, irrational, with mood changes and that the husband falsely reported the wife to the police for selling drugs.
417.Immediately following the home invasion, both the husband and the husband’s mother suggested to the police that the wife ‘was on something’. There was a deliberate attempt by them to portray the wife to the police as involved with drugs and undesirable people.
418.The suggestion by the husband to the police about GS’s involvement, at a time when the police had not publicised the fact that the attackers had used his name, is an extraordinary coincidence.
419.It is clear from the husband’s actions after separation that he acted with enormous ill-will, anger and rage towards the wife. He never offered to assist the wife. He created a phantom tumour to elicit sympathy and persuade the wife to drop a DVO application. His meanness of spirit was unrelenting and expansive, covering all aspects of the wife’s existence. He withdrew her home, car, children, possessions, mothering role and financial support.
420.The wife was forced to bring a spousal maintenance application or continue to live off the charity of friends. The husband did all he could to avoid having an order for spousal maintenance made against him, giving priority to dredged up family loans dating back sixteen years. The husband also insisted that the wife get a job, saying in evidence that there were 77 [relevant businesses] in the local area, and to his knowledge, she had not made any effort to find regular employment. He wrote to the wife [in] March 2003 explaining that he could not afford spousal maintenance and sent her a Form 17. The outcome of the interim spousal maintenance was not at all in accordance with his wishes. He was later ordered to pay the wife her costs and in an act of complete defiance, he chose not to, even when he successfully applied for and received a loan specifically for that purpose, which he then lied about. In October 2003, he chose to stop paying the spousal maintenance order altogether. That was at a time when he had $10,000 hidden, his full income available to him and had retained the benefit of the Westpac loan for $10,700 for himself. The husband even managed to curtail the time that the wife had with [T], and in turn, the time [T] had with [the mother] and [the younger child], C. After the first interim hearing, where the parties negotiated the contact arrangements and the wife agreed to have Monday to Friday, and the husband to have each weekend, the husband had, without reference to her, changed the pre-school booking for [T] from five days per fortnight to five days per week. The husband did not tell the wife this and, even when she found out, he refused to change the arrangements.
421.I find that the husband’s conduct towards the wife in the first few months following separation was extraordinary and had overtones of a very, very angry man who had entered into combat with his wife trying to destroy her on every front.
422.I find that in the first few months in a display of pure retribution, he set about to keep the children, trying to replace the wife with himself and his mother, and thereby undermining the wife’s mothering role, restricting her time with [T], fabricating a story about being punched, and injuring himself to authenticate the story, fabricating a story about having a brain tumour, keeping the home for himself, failing to provide financial support and a car for the wife and children until he was ordered to do so, not returning the wife’s and children’s possessions, and inventing stories of burglaries, advising the insurance company that it was the wife who was responsible for taking the items when she tried to claim for the loss. It is in fact difficult to think of anything that the husband could have done to make the wife’s life more miserable and difficult.
423.It is clear on the evidence that the home invasion was not a random attack and was designed to paint the wife as a drug user and/or dealer.
424.Consequently, in my opinion, all of the evidence points to the likelihood that the husband was involved in the home invasion.
425.However, to make a positive finding that the father orchestrated the home invasion, I have to be satisfied on the Briginshaw test, at the higher end.
426.I will repeat what Dixon J said in Briginshaw v Briginshaw (1938) 60 CLR 336, at p.362:-
‘The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony or indirect inferences.’

427.Were it not for one piece of evidence, I would not be able to be satisfied to the requisite degree. However, the evidence surrounding the keys to the Falcon, in my view, coupled with all of the other matters I have referred to, persuade me that the husband did, in fact, orchestrate the home invasion.
428.I have referred to the keys issue earlier in my judgment. It is unnecessary for me to go over it again in detail. Suffice it to say, I accept the police evidence that the Falcon could not have been moved without a set of keys. It is common ground that there were only two sets of keys to the Falcon. One was the wife’s set and the other was the husband’s set. The wife’s evidence is that she only ever got back one set of keys to the Falcon. The husband’s evidence is that he returned both sets of keys on the same key ring to the wife through [Mrs K]. I completely reject his evidence on this matter. Consequently, I conclude that the husband retained a set of keys to the Falcon and that they must have been used to move the Falcon during the home invasion. The wife’s set of keys to the Falcon were still in the house after the home invasion, and the police obtained that set from the wife to enable them to move the car.
429.As I reject the evidence of the husband, his mother and [JC] with respect to the disbursement and use of the $10,000 provided by the husband’s mother to the husband shortly prior to the home invasion, it is open to speculation as to what use this money was put. I am unable to make a positive finding.
430.Having concluded that the husband orchestrated the home invasion, although counsel argued it a little differently, I think that then raises the question of whether, having made that finding, the husband represents an unacceptable risk to the children.
431.I have already set out the cases insofar as I consider them relevant and In the Marriage of A (supra) their Honours said at paragraph 4.3 at p 774:
‘In our view, this was a case where there was clearly an unacceptable risk to the children. The nature of the assault bespeaks of violent and disturbed persons. As there is a possibility that the husband is that person, it seems to us to be unacceptable for this Court to place these children in any position of risk arising from those circumstances. Clearly it is not a risk which we propose to take.’

432.There, the Court was unable to make a positive finding that the husband was the perpetrator, but because there was a possibility that he was the perpetrator, the Court held that he posed an unacceptable risk because of the nature of the assault. It seems to me that had the Court been able to make a positive finding that he was the perpetrator, the same question still arose, whether he posed an unacceptable risk to the children.
433.Just as here the nature of the assault and the fact that I have found that the husband orchestrated the event, this of itself ‘bespeaks of [a] violent and disturbed person’. However, not only have I found that the husband orchestrated the home invasion, I have also found that he lied about the assault on himself by [IB] and inflicted injuries upon himself for the purpose of validating his false complaint to the police about that assault.
434.These matters were canvassed with Mr [P]. I will set out hereunder his evidence on these matters:-
‘… I want to move now to talk about risk of the father having contact if any. Now, to be absolutely clear the father has always maintained to you that he had no involvement in the home invasion, is that right?---He was absolutely adamant about that.
Now, if his Honour concluded that, in fact, the father was involved in that home invasion, obviously, the first conclusion you’d draw is that he was lying to you, wouldn’t you?---Yes.
What conclusion, if any, from a psychological perspective would you draw about the father if, in fact, he did arrange the home invasion’

Then after some further discussion, the following occurred:
‘MR BETTS:Well, what you say in your report, Mr [P], is [sic] December 2003 at paragraph 203, is that:
“In terms of risk management decision making there’s no such thing as a conclusive assessment. Normal people do abnormal things during periods of extreme distress.”

Do you see that?--- Yes, I do.
Are you able to elaborate on that in this sense. If the father did, in fact, orchestrate the home invasion, is there any psychological conclusion about his personality or his character that you would put forward as being something the Court should take into account?---Well, it would be judged as extremely anti social, extreme in nature, relatively rare in even hostile and acrimonious breakups. It would certain [sic] raise issues about the potential pathological issues that may exist in the person’s functioning who is prepared to go to those sorts of lengths.
And does one deduce from that last comment that there would be a risk to the children in the event the father – sorry – the father would pose a risk to the children in the event that he was awarded contact?---All right. We could extrapolate in two ways. One is obviously – the one of the greatest concern is that the kind of behaviour could be visited directly on the children. To date there appears to have been no evidence of that and certainly the children don’t demonstrate any fear whatsoever of the father. The more likely – people are able to do that and to some extent, or to a greater extent, quarantine that from their relationship with their children – the typical kind of godfather stuff that you see on television. So the risk there, the more pervasive and enduring risk would be the person who is prepared to go to that extent would completely keep the mother out of the picture – they’re prepared to keep the mother out of the – completely out of the picture.
What do you mean by that? Because if he’s a contact parent, in what way could he keep the mother out of the picture?---I’m guessing, but if the person was prepared to seriously damage the other parent physically, it might be that they had plans of being the resident parent.’

Then a little later in his evidence, I asked the following questions and received the following answers:
‘…I saw both [the father] and Mr [B] in the witness box in relation to this first incident, the incident that you were referring to where [the father] alleges that he was assaulted?---Yes.
And you made some point about that he firmly believed that had happened. Do you remember saying that?---Yes, I do.
In relation to his psychological functioning what if I were to find that he deliberately injured himself in that incident rather than him being assaulted by Mr [B]. In other words, that he went out of his way to fabricate an assault so as to implicate his wife and his brother-in-law with the police. If I were to make that finding what would you say about his psychological – would that say anything about his psychological well-being?---It would say that the individual – that’s an act of a person who is prepared to go to significant lengths to kind of become strategic in these sorts of matters.
Would that - - -?---The testing that I’ve done to date detected no significant pathological functioning in either of the parents.
Yes?---That is to say that any pathology that exist [sic] is what’s called reactive and that is related to the breakdown of the relationship. And I believe the [C] matter represents an extreme case of maladjustment to the breakdown of a marriage. Extreme. So lots of things are possible. There is, of course, the concern that somebody who would do that, and someone who would orchestrate this sort of home invasion thing does represent some very deep seated and sinister pathology could be visited on the children. They could be dangerous to their children.’

435.The wife was questioned by Counsel for the Children’s Representative about her beliefs as to who organised the attack upon her. She was unequivocal in that she believed, and has always believed, that the husband organised the attack on her. She said that she had fears that the husband would fly away with [the children], that he would remove them from the country. She said that she feared that he would hurt [the children] to get back at her and that there is nothing else he can physically do to her. She continued that she feared that he would harm [the children] to get at her or he would disappear with [the children].
436.As I have indicated earlier in my Reasons, I found that the evidence given by the wife was compelling and revealed her true terror of what the father might do in the future.
437.This evidence, in my opinion, fits in nicely with the evidence that I have just set out by Mr [P]. It also overlaps with the issue of supervised contact. That is the form of order that the husband initially seeks, graduating to unsupervised contact.
438.In relation to contact generally, Mr [P] had this to say:
‘… clearly, from the mum’s point of view, I think it would be untenable to have any finding that says that either dad wasn’t or maybe he wasn’t undecided [sic] and then to have contact to proceed. I think that would be a situation where the mother would find it intolerable, and the history we’ve seen to date of mum being able to quarantine her own strong attitudes about the father from the children I don’t think we could – we’d see some changes in that.

…
Clearly, something has gone on here, and in the final analysis I don’t think the mother could tolerate a finding from the Court of anything other than he didn’t, he wasn’t involved, that could be managed reasonably in an order.’

I asked:
‘Let me understand it. Are you saying that unless I were to find he wasn’t involved she couldn’t tolerate me making a contact order, is that what you’re saying?---I think she would experience extreme difficulty, extreme difficulty. I don’t know how sustainable those sorts of orders would be.’

439.I propose to follow what their Honours said In the marriage of A (supra) at page 769, para 3.31
‘Where a court concludes that there is an unacceptable risk to the children arising out of some previous event, then in all but exceptional cases, that would be likely to have a profound effect upon the other considerations which would normally be identified in Section 60B and Section 68F(2) approach.’

In the circumstances of this case, I do not think it useful to go through those various factors.

440.I conclude that the husband poses an unacceptable risk to the children, which risk cannot be eliminated or reduced to my satisfaction, so that it would not be in the best interests of the children to order contact by the husband.”

The genesis of the submissions

On 20 April 2005, towards the end of the case, there was discussion between the trial Judge and counsel as to how the case could best be concluded. At the suggestion of counsel for the husband an agreement was reached that the child representative provide written submissions to the Court and to the husband and the wife by 28 April 2005, and that the husband and wife would then exchange submissions in response by 5 May 2005. The matter would then be listed for closing oral submissions. Tentatively, it was arranged that the matter be listed on 10 May 2005, but ultimately the matter was listed for oral submissions on 17 May 2005.

It appears from the index to the appeal books that the child representative’s submissions were filed on 28 April 2005, the written submissions of the wife were filed in two segments, one on 5 May 2005 and the other on 9 May 2005, and the written submissions of the husband were filed on 9 May 2005.

When the matter came on for oral submissions on 17 May 2005, the trial Judge indicted that he had read all of the written submissions. His Honour was addressed first by counsel for the child representative, then by counsel for the wife, and finally by counsel for the husband. After dealing with financial aspects of the case, Mr Fellows for the husband commenced to address his Honour on the proper test to be applied in cases of unacceptable risk. He made submissions about the unsatisfactory nature of an indefinite finding and urged the trial Judge to determine as a matter of fact whether or not the assault upon the wife was organised, counselled or procured by the husband. He emphasised that the trial Judge should be concerned about the absence of evidence from GS and Mrs K whose evidence, he said, was particularly important given that the issue surrounding the car keys was critical in the proceedings. He also drew the trial Judge’s attention to the other disturbances that were happening in the street on the night of the assault, but the trial Judge indicated that he did not place much importance on those events.

Mr Fellows then directed his Honour’s attention to the events of January 2003 when the children were removed from the home and the father was injured. He sought to emphasise a number of reasons why Mr B’s evidence of what occurred at the home on that day should not be accepted.

At that point it became apparent from the transcript that it was necessary to terminate the hearing due to the commitments of counsel for the wife to catch an aeroplane.

The husband’s written submissions occupied some 40 pages dealing with the contact issues. The husband proposed that after two periods of supervised contact he be granted holiday contact on an unsupervised basis. He further proposed that he have regular telephone contact and be at liberty to deliver gifts and presents to the children. He proposed that should he relocate to live near the children then contact should take place in school term and alternate weeks from Thursday until Tuesday together with a share of the school holidays. He proposed that there be some further parenting orders that required the wife to keep him advised of the children’s educational and health issues.

He then made submissions on the law relating to “unacceptable risk” seeking to distinguish the jurisprudence that had developed in child sexual abuse cases from the facts that were presenting themselves to the Court in this case. He seemed to be submitting that in the event that there was a positive finding that the home invasion was not created by the husband then it was unnecessary to separately address the unacceptable risk issue as that would determine the issue.

He went on however, in the next paragraph to apparently concede that if the wife held a genuine belief as to the husband’s responsibility for the assault then that would be matter that would need attention. He submitted that there would need to be exceptional circumstances before the parent’s belief and inability to function as a parent could be the basis for refusing contact.

The submissions then turned to deal with the evidence. They dealt in par 4 with the events of late December 2002. It would appear from the trial judgment that the submissions met a sympathetic ear because the trial Judge found in favour of the husband in relation to the evidence surrounding those events.

The gravamen of the submissions is that the events of January were part of an organised plan by the wife to snatch the children, such plan having been hatched at some time prior to the wife’s return to C. They drew attention to several inconsistencies in her story and whilst suggesting the proposition that the father would have assaulted himself as being “fantastic” and that it “ought not require answering”, they did point out that whilst the printout of the crime report spoke of a trail of blood from the kitchen to the front door, the policeman’s contemporaneous handwritten notes spoke of “drops of blood on the lounge room floor from the bedroom to the lounge room leading to the front door”.

Paragraph 10 dealt with the manner in which the trial Judge should have interpreted the evidence concerning the home invasion. It first focused on deficiencies in the police investigation. It then urged the Court to be cautious in respect to the seriousness of the effect of the assault upon the wife. It sought to argue a lack of motive on behalf of the husband, and it then returned to the issue of the keys asserting that the failure to call Mrs K was a fundamental weakness in the wife’s case.

It is convenient to note in passing that in par 137 of the judgment, which paragraph does not find its origin in the submissions of the wife, the trial Judge dealt with this matter raised in the husband’s submission although without reference to the submission itself, when his Honour said says:

“… Although [Mrs K] was not called, I find it incredible that she would not have passed on to the wife all of the keys given to her by the husband which he says were on one key ring. …”

The submissions then move to focus on the danger of drawing conclusions based upon demeanour and on the general value of the credit of both of the witnesses. They then raise the absence of GS as a significant issue suggesting that perhaps the attack on the wife was from Mr S’s competitors in the security guard business.

The submissions then urge a definite finding of no assault occasioned by the father. They pose the question that if no finding can be made about the home invasion how can there be a sub-stratum of facts to base a decision about an unacceptable risk, and then finally they turn to focus upon what the ramifications are for the wife if contact is to occur. They do not deal with what orders should be made in the event there was a positive finding that the husband orchestrated the assault.

The submissions concluded with the proposition that the appropriate course is to make a decision based on real evidence rather than speculation and that, if there was a lingering concern, then it might be appropriate to make a further interim order in accordance with the majority decision in N and S (1996) FLC 92-655.

The appeal

As we have already indicated, the basis of the appeal is a submission that the trial Judge failed to give adequate reasons and in particular either ignored the submissions of counsel for the appellant or failed to explain adequately or at all why such submissions were rejected or had no relevance to his decision. It is submitted that such failure vitiates the exercise of discretion by the trial Judge and leads either to the result that a new trial is required or alternatively that the Full Court can exercise the relevant discretion itself by reference to the non-controversial findings of the trial Judge and other uncontested evidence.

Both the respondent and the child representative submit that the appeal should be dismissed, each arguing that the trial Judge’s alterations and additions to the wife’s submissions indicate that the trial Judge carefully considered the case and exercised an independent mind.

Discussion

The requirement of a court to give adequate reasons has been the subject of several judgments of the Full Court of this Court. In K v K (1998) FamCA 41, the Full Court (Baker, Kay and Morgan JJ) said at 9.2:

“The requirement to give adequate reasons is well established. The requirement minimally is to ensure that the parties and an appellate court can properly follow the line of reasoning. It is also to ensure that necessary findings are made to enable the statutory powers to be properly carried out.”

There is a very thorough and useful discussion of the principles involved in the decision of the Full Court in A v J (1995) FLC 92-619 at 82,230-3.

In Bennett v Bennett (1991) FLC 92-191 at 78,267 the Full Court observed that the adequacy of the reasons “must frequently be judged by reference to the issues raised by the parties at trial”.

In the instant case the complaint is that the reasons given by Monteith J are inadequate because they do not deal either by express reference or by necessary implication with the issues raised by the appellant at trial as they were crystallised in closing submissions, both written and oral. Particular emphasis was placed by the appellant upon the observation of the Victorian Court of Appeal in Fletcher Constructions (supra) at par 164, that:

“… The Court is required to do more than decide the issues arising in a proceeding: it is also obliged to give reasons for rejecting at least the principal submissions relied upon by the losing party which relate to the issues upon which the result of the proceedings depends.”

There was further reliance upon a passage from R v Maxwell, an unreported decision of the NSW Court of Criminal Appeal (Speigleman CJ, Sperling and Hidden JJ), cited with approval by the NSW Court of Appeal (Sheller, Beasley and Giles JJA) in Moylanand Ors v Nutrasweet Company and Ors [2000] NSWCA 337 at par 100, that:

“… The appellant had a right to expect that the arguments put on his behalf would be dealt with in such a way that he could be satisfied that they had been understood and, either accepted, or, if rejected, that the rejection was based on a clear and rational process of reasoning.”

In the course of his submissions, Mr Page SC for the appellant drew our attention to the decision of the United States Court of Appeals for the Third Circuit in Bright v West Moreland County 380F 3d 729 (3d Cir. 2004), where the Court said:

“Judicial opinions are the core work-product of judges. They are much more than findings of fact and conclusions of law; they constitute the logical and analytical explanations of why a judge arrived at a specific decision. They are tangible proof to the litigants that the judge actively wrestled with their claims and arguments and made a scholarly decision based on his or her own reason and logic.”

The Court then went on to criticise the adoption by the trial Judge without comment of the respondent’s submissions on law.

The Court did say, however:

“We have held that the adoption of proposed findings of fact and conclusions of law supplied by prevailing parties after a bench trial, although disapproved of, is not in and of itself reason for reversal. …we made clear that the findings of fact adopted by the court must be the result of the trial judge’s independent judgment. …”

Whilst the observations of the United States Court of Appeals for the Third Circuit are a helpful guide to the outcome of this case, they do not provide direct assistance. It seems clear that in the case before us the trial Judge has exercised an independent judgment albeit that in so doing he adopted without attribution almost all of the submissions on findings of fact that were made by the wife’s counsel. What he failed to do was to explain why he was rejecting the submissions made on behalf of the husband.

In the context of the case before us, we think this is a significant omission. It was not ultimately being suggested to us that the conclusions reached by the trial Judge were not open to him or that the evidence did not support the ultimate finding that there was an unacceptable risk to the children if contact was to be ordered. The complaint is one of an inadequacy of process and that the process of reasoning is not exposed in the reasons for the decision.

In their written submissions counsel on behalf of the respondent wife sought to rely on a passage in the Full Court decision of B & B (2000) Fam CA 1301, where the Court, Ellis ACJ, Coleman and O’Ryan JJ, in the course of allowing an appeal on the ground of inadequate reasons being given by the trial Judge said:

“50. Senior Counsel for the wife submitted that a trial Judge may incorporate in his/her reasons for judgment the submissions made on behalf of the parties, for example submissions made in relation to questions of law. A trial Judge may also identify a discrete submission and say that it is accepted: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Limited (supra). However, the approach, which the trial Judge adopted in this case was unusual and is one that we would discourage. The difficulty with a slavish incorporation of submissions made at the trial is that it may lead to error because of the inability of an appellate court to discern the process of reasoning. However, we accept the submission that the issue of the appropriateness of doing so is not one of principle but one of degree and the issue is whether or not what the trial Judge did was adequate in all the circumstances. It therefore becomes necessary for the appellate court to scrutinise the decision with particular care.”

It was then submitted that it was necessary for the Full Court to “scrutinize the decision with particular care” so as to ensure that not only is there a discernable process of reasoning but also, in the particular circumstances of the case, that what the trial Judge said or did was adequate to deal with the submissions and factual contentions made by the other side.

In his written submissions, counsel for the child representative, while accepting that much of the judgment of the trial Judge was copied from submissions filed on behalf of the wife, then submitted that whether that resulted in justice not being seen to be done was not an easy question to answer. Counsel for the Child Representative then invited us to consider the way in which the trial Judge dealt with the principal submissions of the appellant and on analysis come to a conclusion that the appellant’s case was dealt with either expressly or by way of specific findings or by implication.

In support of his submissions that the appellant’s case was not properly dealt with by the trial Judge, counsel for the appellant directed our attention to what was said to be examples of failure to do justice to the appellant’s case. The written submissions before us do not follow directly the form of the written submissions made to the trial Judge, but seek to deal with the matter along a different route. The first complaint is that there were several witnesses for the husband’s case who were not referred to by his Honour and that there was no analysis of their evidence. Those witnesses were said to be:

· BH

· The partner of the husband’s mother, FB

· The husband’s girlfriend LC

· The husband’s uncle GF

· The husband’s uncle JF

· MB

· AB

· Dr P

The submission on behalf of the appellant is that because the wife’s submissions do not refer to the witnesses his Honour made no analysis of their evidence. However, the husband’s submissions did not make reference to them, nor seek to rely on their evidence as being ultimately critical to the outcome of the proceedings. We have read the affidavit evidence of the relevant witnesses, and agree that there appears to be little, if anything, said by any of them that would have been critical to the outcome of the proceedings.

The complaint that the trial Judge failed to deal with the arguments advanced on behalf of the husband, insofar as he did not analyse the evidence of the witnesses listed, has no substance. There are only two references to any of the various witnesses in the submissions sought to be relied upon by the counsel for the husband. There is a reference in passing to the evidence of FB said to describe aberrant behaviour on behalf of the mother in December 2002 when she was in S. Actually it refers to her behaviour in January of 2003 but does not mention December 2002. It does not in any way shed light upon the events of August 2003 nor is there anything in the submissions to suggest that it could have. We would agree with the submission on behalf of the Child Representative that FB’s evidence was of little relevance in the context of the case.

The only reference to any of the other witnesses is to the affidavit of Dr P, in support of the proposition that the husband had been advised of the risk of glaucoma resulting from the assault. We fail to see how a reference to Dr P’s evidence would have made any difference to the outcome of the proceedings.

Counsel for the appellant then submitted that the trial Judge erred in failing to analyse the submissions on law made on behalf of the husband.

The trial Judge dealt with the law that is applicable in relation to the grant of contact to a parent if its grant would expose the child to an unacceptable risk, in pars 21 to 35 of his judgment. It seems clear from pars 33 and 34 that the trial Judge did pay attention to the submissions made by counsel. He said:

“33.I have also been referred by Counsel for the husband to re W (Sex Abuse:Standard of Proof) 2004 Fam CA 768 and [V & R] Appeal No. NA21 of 2004.
34.Counsel for the husband referred me to those decisions largely because they emphasize the importance of the standard of proof which, of course, is referred to at some length, in M v M supra. Although this is not a sex abuse case, nevertheless, it involves an allegation of the most serious kind by the wife against the husband namely, that he tried to have her killed, or was at least indifferent to whether she was killed or not, in an assault designed to paint her as a drug addict and or drug dealer. I am conscious, therefore, that I must apply to this case the standard of proof at the very highest end of the Briginishaw [sic] test.
35.Nevertheless, the High Court has made it clear ‘that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse’ (see M v M supra). As I have already pointed out, the High Court made it clear that when it was referring to the risk of sexual abuse, it was exactly the same position ‘as with any other risk of harm to the welfare of the child’.”

There is no ground of appeal put before us that the analysis of the law by the trial Judge was wrong. We reject any suggestion that the submissions as to law were overlooked and, given the absence of any suggestions in the Notice of Appeal that there was an error in relation to the statement of the appropriate law, we find it unnecessary to determine whether the trial Judge did or did not adequately analyse the submissions as to law on behalf of the appellant.

The next matter raised by the appellant is an alleged failure by the trial Judge to deal with arguments raised by counsel for the husband as to matters concerning demeanour and attitude.

The submissions that appear to have been ignored or overlooked relating to demeanour appear to have been made in anticipation that the trial Judge may have drawn adverse inferences against the husband based upon some comments made during the course of the trial that the husband appeared to be “dissociated” or “on Mogadon”. We have carefully searched through his Honour’s reasons for judgment and find no adverse finding against the husband that finds its support in the husband’s demeanour in court. Accordingly it would have been unnecessary for the trial Judge to have dealt with the submissions relating to the matter at all if he was not intending to make an adverse finding based upon the matter that they dealt with.

The submissions in relation to attitude do not direct his Honour to make findings of fact that necessarily favour the husband. Rather they appear to be aimed at reminding the Judge that there are inadequacies in the testimony of both the husband and the wife. We do not perceive, having read through those submissions, that they merited any analysis or comment by the trial Judge.

The written submissions before us then move to raise complaints about factual errors and arguments that, it was said, were ignored or overlooked by the trial Judge.

The first matter raises concerns about the incident in late December 2002 where the husband asserted that he was threatened by members of the wife’s family. Given that the trial Judge made a finding in favour of the husband in respect of the events of that day, we have difficulty in understanding what the nature of the complaint of the counsel now is.

The second complaint was that the reasons for judgment do not deal with the submissions raised by the husband in relation to the SMS messages that he received early in January 2003. It was submitted on behalf of the appellant that the matter ought to have attracted the trial Judge’s attention because it reflected ill on the credit of the wife. The difficulty with relying upon that submission is that the ultimate outcome of that case turned upon the ramifications of the events that occurred in August 2003. Whatever may have been the position of the parties in January 2003, that did not appear to be a relevant consideration to the ultimate outcome of the proceedings. In the circumstances it was quite open to the trial Judge to have ignored entirely the submissions relating to the SMS messages. We agree with the Children’s Representative when she said in her outline of argument that the SMS messages were no more than a minor issue.

The final matter sought to be relied upon as indicative of the effect of the failure of the trial Judge to give proper consideration to the husband’s submissions, were the events that occurred in January 2003 when the children were removed from the husband’s care by the wife in the company of her brother and a security guard. The submissions are divided into seven points. The first six of those points focus on whether or not the removal of the children was planned prior to the wife coming to the home on that day. Only the last of the submissions deal with what actually happened on the day.

It seems to us that whilst it is clear that the trial Judge made no express reference to the matters raised in the submissions on behalf of the husband, insofar as they dealt with the issue of whether or not there was pre-planning to remove the children from the husband, the issue was ultimately an irrelevant one. The case before the trial Judge proceeded on the basis that the wife would be living in the south of Queensland with the children and the husband in the north of Queensland. It proceeded on the basis that the wife had been the subject of a violent assault in August of 2003. It was concerned with the ramifications of that assault upon the wife in terms of her being able to deal with contact in the event that there remained a real question as to whether or not the husband was involved in the assault upon her. It was concerned with whether the husband’s possible or probable involvement in the events of August 2003 indicated that there was a risk to the children if he had ongoing contact to them. The ultimate relevance of the events that occurred in January 2003 remain fairly remote from the ultimate determining factors in the proceedings.

We are, however, concerned that the trial Judge thought the events of that day in January 2003 were of significance yet failed to properly deal with the submissions of the husband relating to them. We have already indicated that we are critical of the finding that the husband effectively assaulted himself and we conclude that before such finding was made, matters raised in the husband’s submissions in par 6.7 relating firstly to the evidence of the trail of blood and secondly to the improbability of the wounds being self-inflicted, should have been given express consideration by the trial Judge rather than having been ignored or overlooked.

We think ultimately that there is substance in the submission that justice was not seen to be done as a result of the failure of the trial Judge to deal with the submissions concerning the home invasion and the significance of the absence of any evidence at all from the wife’s brother-in-law GS. When dealing with the assertions that Mr S had threatened the husband in December 2002 the trial Judge said at par 59:

“…[GS] was not called and the failure to call him was unexplained. In those circumstances, I accept that the husband did receive threats from [GS].”

Mr S’s relevance appears again at par 74 of the judgment where he is identified as running a security company that employed a security guard who accompanied the wife and her brother to the home that day in January 2003.

In the course of the home invasion the wife said that the assailants made reference to “G with the security business”. On the husband’s explanations for the attack was that Mr S may have been involved with drugs and that somehow the wife’s association with him made her a target for the assailants. As his Honour noted at par 271 when Detective S interviewed the husband he:

“… spoke of her alleged involvement in drugs and nominated [GS] as someone he knew was related with drugs with whom [the mother] was associated.”

Mr S’s name is again mentioned by the husband in his second interview with the police in late October 2003.

It is clear from the oral submissions on the last day of the hearing that the husband’s counsel sought to somehow rely upon the absence of Mr S as being a significant deficient in the mother’s case. He says (AB 1942):

“What’s important about the absence of [GS] is though [sic] that in terms of the mother’s trial material it’s like he didn’t exist. And the ultimate revelation of the extent of the involvement between the mother and Mr S came, essentially, through cross-examination. So we gradually began to learn that the mother had been living down there at [SC] for a month, that there was some form of arrangement which, although we tried to explore, it just didn’t make sense that, indeed, Mr [S] had spoken to [the mother] on the very morning of the assault – she admitted in cross-examination. The fact of her business relationship with Mr S was not said to the police, etcetera.
It’s one of the number of examples I referred to in my affidavit – in my submissions, where there’s black holes in the evidence of the mother. The reality simply is Mr [S] had been a player in all of this, clearly, he was able to give relevant evidence on matters which were before the Court and he was not called. …”

In written submissions the absence of Mr S is dealt with at some length, it being suggested that the home invasion may well have been related to Mr S’s business activities in North Queensland and have absolutely nothing to do with the father. It was ultimately submitted that:

“[The mother] had two motives to avoid calling Ms [sic] [S]: \
(a)as preventing the exploration of an alternative motivation for the home invasion;

(b) as concealing her financial position.”

It may well have been open to the trial Judge to have quickly dismissed the significance or relevance of Mr S and to indicate why it was that he was drawn to the conclusions that he reached notwithstanding the absence of the witness. Our difficulty is that the trial Judge simply does not deal with it all.

In those circumstances we conclude that the reasons for judgment transgress the requirement of adequacy and that as such we must now give consideration as to whether it is appropriate to re-exercise the discretion of the trial Judge or remit the matter for retrial.

At the hearing before us, although it was the initial application of the appellant that the matter ought to be remitted, by the conclusion of the hearing Mr Page SC on behalf of the appellant acceded to the proposition that the most desirable outcome for all of the parties and the children would be for the Full Court to avoid a retrial if that was possible.

Paraphrasing the approach of the High Court in CDJ v VAJ (1998) 197 CLR 172 at 219, we would say that this is not an arguably exceptional case where the best interests of the children require a new trial. We could not be reasonably satisfied that a different order would have been made had the procedural irregularities not occurred. We use the term “procedural irregularities” in the sense that the trial Judge has failed to adequately explain the outcome by neglecting to expressly deal with submissions filed on behalf of the father. For reasons which will become apparent shortly, we have concluded that in the exercise of our own discretion, the orders that were made by the trial Judge should stand.

The conclusion at par 424 of the trial Judge’s reasons that all the evidence points to the likelihood that the husband was involved in the home invasion is an unnecessary finding for our purposes. It is sufficient to find that the wife has a bona fide and not unreasonable belief that the husband was involved in the home invasion and that in the circumstances the imposition of an ongoing contact regime would have serious consequences upon her ability to parent the children.

There were ample examples of the husband’s conduct from at least late January 2003 until the contact orders were suspended in November 2003, to leave the wife with a bona fide belief based on their accumulative effect, that the husband was implicated in the home invasion. They included:

· his failure to support the wife and children after separation;

· his failure to pay the costs that had been ordered notwithstanding his ability to do so;

· his secreting away funds borrowed from his mother and then not explaining as to what had happened to them;

· the report he made to the police about the wife’s alleged involvement in selling drugs to children outside the school;

· the inconsistencies in his responses to the police in their investigation of the attack upon the wife, particularly the inconsistencies relating to his movements on the morning that the wife was attacked;

· his inability to recall to the police that he had previously reported the wife for drug dealing;

· his refusal to return the children to the wife after the assault upon her;

· his co-operation with the insurance company in an attempt to thwart the wife’s claim for loss of goods which were taken from the husband’s home;

· his failure to account satisfactorily for the second set of car keys to the Falcon, the car being in the wife’s possession and removed by those involved in the attack upon the wife.

These were all matters which lead to the inevitable conclusion in these proceedings that it was reasonably open for the wife to hold a genuine belief that the husband had been involved in the events of August 2003.

In those circumstances, the criteria identified by the High Court in M and M (1988) 166 CLR 69; [1988] FLC 91-979 of there being an unacceptable risk to permit contact to take place at the present time, have all been met.

The are close parallels in this case with A v A (1998) FLC 92-800. Although the assault in A v A was of a far more serious nature, it is clear that the evidence in this case of the circumstances surrounding the assault, namely a violent invasion of the home at 3.00am and the injuries the wife sustained as described by the trial Judge, must speak of those who organized or perpetrated the assault as being violent and disturbed.

At the very least in this case there is more than a passing possibility that the husband was involved in the assault and we would echo the words of the Full Court in A v A that in the circumstances it would be unacceptable for this Court to place the children in a position of risk arising from those circumstances.

In R and C (FamCA, Fogarty, Baker and Lindenmayer JJ, Appeal SA45 of 1992, 25 June 1993, unreported) the Full Court said at paragraph 32:

“In upholding children’s right to protection from sexual, psychological and/or emotional harm, the Court must take into account any anxiety on the part of the primary caregiver concerning the child’s exposure to potential harm where such anxiety is likely to impact adversely on that parent’s caregiving ability.”

The Court went on to say at paragraph 33:

“In taking into account the belief of the custodial parent of abuse by the non-custodial parent of the children, and the effect of such belief on that parent as primary caregiver of the children, and consequent harm to the children, a subjective test is employed. However, it must be shown that such belief on the part of the custodial parent is genuinely held. Where it appears on the whole of the evidence that such belief is entirely irrational and baseless, the genuineness of the subjective belief of the custodial parent will clearly be open to doubt.”

Senior Counsel for the husband in his remarks in the appeal before us made it clear that what he described as “the absence of a [R and C] effect on the mother of an ongoing contact is not a ground of appeal”. We go further to say that there is not an absence of evidence of a R and C effect on the mother of ongoing contact. To the contrary, it is to be found in the undisputed evidence of Mr P as well as the acceptance by the trial Judge that the evidence of the wife “was compelling and revealed her true terror of what the father might do in the future.” Mr P said:

“Clearly, something has gone on here, and in the final analysis I don’t think the mother could tolerate a finding from the Court of anything other than he didn’t, he wasn’t involved, that could be managed reasonably in an order.”

Dr R, a consultant psychiatrist, took a more optimistic view than Mr P. In answer to counsel for the Child Representative he said:

“…if there has to be some sort of contact visits than I would expect that the mother would adjust to that over a period of time. I expect her to be apprehensive a bit on the first visit (indistinct) everything went well I expect that she would feel better about subsequent visits and about further contact. (Indistinct) I guess any signs of things getting out of hand (indistinct) perhaps revise the opinion.”

He went on to say that it was more likely than not that the mother would be able to cope with contact.

In answer however, to questions from his Honour, he said (AB 1866):

“I’ve got no way of predicting what would happen. I guess it’s a question of whether – as I say, whether her belief is reasonable or unreasonable. But as to the effect on her I guess she would be pretty upset. But as to whether that would constitute a disorder or whether she would cope with it, with the support of her family and her partner and if things go well, that’s something I can’t say.”

In the re-exercise of our discretion in this case we conclude that the question that we need ask in determining whether or not to allow the appeal is whether the evidence persuades us that the granting of an order for contact at this time will expose the children in this case to an unacceptable risk.

Although M and M involved a case where the allegations were of potential sexual abuse, we think that the matters discussed by the High Court are apposite to the resolution of this case. The principle that emerges, insofar as it is relevant to this case, is that the Court will not make a contact order in favour of a parent if that order would expose the child to an unacceptable risk of harm. It may be harm to the child directly or it may be harm indirectly in that it may lead to the person responsible for the day-to-day care of the child be unable to adequately function in the manner referred to in R and C. Either way it is the risk of harm to the child that has to be weighed up against the detriment to the child of not having an ongoing relationship with both of its parents.

We recognise that an outcome in which no positive finding either way as to the father’s involvement in the assault upon the mother has many unsatisfactory features to it. But as the High Court reminded us in M and M the focus is not upon making positive findings but rather upon determining whether or not an unacceptable risk exists. In this case, very much for similar reasons which were relied upon by the Full Court in A and A (1998) FLC 92-800 we conclude that at least for the time being such a risk must be seen to exist.

It is hoped that with the passage of time the risk might abate and that the children will be able to enjoy a full and meaningful relationship with their father. At the present however, given the state of the evidence as to the mother’s anxieties and the serious questions that remain over the father’s involvement in the horrific attack upon her, the orders made by the trial Judge should stand.

Costs

At the conclusion of the hearing we sought submissions as to appropriate costs orders. Counsel for the wife and the Child Representative each sought an order for costs against the husband in the event that the appeal was dismissed, although the Child Representative informed us that the terms of his retainer required that he make the submissions but that he was not pressing heavily in relation to the claim.

Although the husband has been wholly unsuccessful in these proceedings as a result of a re-exercise of the discretion by the Full Court, given the issues raised in this appeal against parenting orders we think it is appropriate that no order for costs be made.

Order

1. The Appeal be dismissed

I certify that the 130 preceding
paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.

Associate

[2006] FamCA 513

13 June 2006

Key Legal Topics

Areas of Law

Civil Procedure

Negligence & Tort

Legal Concepts

Appeal

Damages

Duty of Care

Negligence

Causation