Cameron and Walker
[2010] FamCAFC 168
•7 September 2010
FAMILY COURT OF AUSTRALIA
| CAMERON & WALKER | [2010] FamCAFC 168 |
| FAMILY LAW - APPEAL – PARENTING – Whether the trial Judge failed to provide adequate reasons for the time the child was to spend with the father – Where the trial Judge carried out an extensive consideration of the large volume of evidence – Where necessary to have regard to entirety of the trial Judge’s reasons – No substance to ground. FAMILY LAW - APPEAL – PARENTING – Whether the refusal of the trial Judge to allow the mother to be cross-examined remotely caused the trial to miscarry – Where the decision to refuse the mother’s application was within the reasonable ambit of discretion – Where the trial Judge did not take into account any irrelevant matter nor fail to consider any relevant matter – Where counsel for the mother had the option to renew the application and did not do so – Where the trial Judge’s adverse view of the mother’s credit was formed prior to cross-examination by the father. FAMILY LAW - APPEAL – PARENTING – FAMILY VIOLENCE – Whether the trial Judge failed to adequately consider the issue of family violence – Whether the trial Judge failed to consider the issue of the father as a role model – Where the trial Judge carefully considered the evidence as to the competing allegations of violence – Where the trial Judge was aware of the seriousness of family violence – Where the trial Judge made findings he considered available on the evidence – Where the trial Judge found no evidence of continuation of violence or risk to the child – Where the trial Judge found that the parties should not have equal shared parental responsibility – Where the trial Judge found there was no evidence that there would be a detrimental impact on the mother’s parenting capacity if the child spent time with the father – No substance to grounds. FAMILY LAW - APPEAL – PARENTING – Whether the trial Judge erred in failing to following the Best Practice Principles – Where principles are intended as a voluntary source of assistance to judicial officers – Whether the trial Judge erred in his application of authorities so as to provide the self-represented father with a positive advantage – Where assistance to the father did not exceed proper limits – Where assistance to father was not inappropriate – Whether the trial Judge erred in making findings as to the father’s capacity to care for the child – No substance to grounds. FAMILY LAW - APPEAL – PARENTING – Whether the trial Judge erred in failing to provide reasons for the order restraining the parties from seeking the issue of a passport for the child – Where both the father and the independent children’s lawyer sought such an order – Where transcript of the parties’ final submission not provided – Where the judgment contains no reasons why such an order was made – Appeal allowed in part. FAMILY LAW - APPEAL – COSTS – Where mother successful only in minor aspect of appeal – Where mother otherwise unsuccessful in appeal – Where the father self-represented and failed to file a summary of argument – Mother to pay the costs of the Independent Children’s Lawyer. FAMILY LAW - APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where evidence sought to be adduced was controversial – Where counsel for the Independent Children’s Lawyer indicated cross-examination would be sought if further evidence was received – Application dismissed. |
| Family Law Act 1975 (Cth) – s 60CC, s 61DA, s 68P, s 93A(2), s 102C |
| AMS v AIF (1999) 199 CLR 160 Best Practice Principles for use in Parenting Disputes when Family Violence or Abuse is Alleged |
| APPELLANT: | Ms Cameron |
| RESPONDENT: | Mr Walker |
| INDEPENDENT CHILDREN’S LAWYER: | Jayne STIDWILL |
| FILE NUMBER: | PAF | 2031 | of | 2005 |
| APPEAL NUMBER: | EA | 155 | of | 2009 |
| DATE DELIVERED: | 7 September 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Faulks DCJ, Boland & Stevenson JJ |
| HEARING DATE: | 19 April 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 December 2009 |
| LOWER COURT MNC: | [2009] FamCA 1283 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr N Jackson |
| ADVOCATE FOR THE RESPONDENT: | Mr Walker appeared in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr M Perry |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Stidwell Solicitors |
Orders
The appeal is allowed in part.
Order 10 made by the Honourable Justice Waddy on 15 December 2009 be set aside.
In the event that either party wishes to do so the application to restrain the issue of a passport shall be remitted for hearing before a single Judge at the Parramatta Registry.
The mother pay the costs of the Independent Children’s Lawyer as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.
IT IS NOTED that publication of this judgment under the pseudonym Cameron & Walker is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 155 of 2009
File Number: PAF 2031 of 2005
| Ms Cameron |
Appellant
And
| Mr Walker |
Respondent
REASONS FOR JUDGMENT
Introduction
This appeal is by the Ms Cameron (“the mother”) against parenting orders made by Waddy J under Part VII of the Family Law Act 1975 (Cth) (“the Act”) on 15 December 2009. His Honour ordered that the mother have “sole parental responsibility for the decisions concerning the long term care welfare and development” of the parties’ then four year old daughter, “T” born in January 2005. His Honour further ordered that T live with the mother and spend graduated time with Mr Walker (“the father”) as follows:
a)for two hours on 19 December 2009 at a contact centre;
b)from 12 noon to 7:00 pm on Christmas Day 2009;
c)from 5:00 pm to 7:00 pm on … January 2010 (T’s birthday);
d)from 9:30 am until 5:00 pm on three Sundays per month for six months commencing on 1 January 2010;
e)from 9:30 am on Saturday until 5:00 pm on Sunday each alternate weekend for six months from 3 July 2010;
f)for one week in the January 2011 school holidays;
g)each alternate weekend, from 9:30 am on Saturday until 5:00 pm on Sunday, and for half of all school holidays from first term 2011.
The orders provided that T spend time with both parents on special occasions and that she have regular telephone communication with each of them. A number of injunctions were imposed on the parents, including a restraint on using any surname for the child other than Walker-Brown and “seeking the issue of a passport for [T] without the prior written consent of the other party or order of the Court”.
The mother filed an Amended Notice of Appeal on 8 January 2010. If her appeal is successful, she seeks an order that “there be no face to face time between the Respondent Father and [T] until 2017 when [T] will be 12 years of age”.
The father sought that the appeal be dismissed. Counsel for the Independent Children’s Lawyer (“the ICL”) submitted that there was no substance to any ground of appeal, with the possible exception of the passport order.
Before us, as we will shortly discuss in more detail, the mother sought to adduce further evidence in support of the appeal.
Background
The parties met in March 1998 and began to live together in about June 1998. They separated finally on 26 December 2005, after a seven and a half year relationship. The parties never married. T, who is now five years old, is their only child.
The mother alleged that the father subjected her to sustained violence throughout their relationship. He denied these allegations and maintained that she directed violence at him, to which at times he retaliated. The serious issue of family violence loomed large in the trial and this appeal.
The parties made mutual allegations of illicit drug use during their relationship. They agreed that their lifestyle involved parties where drug use was common.
The father took T from the parties’ home when they separated finally on 26 December 2005. The mother commenced proceedings in the Local Court on 29 December 2005 and on 30 December 2005 obtained a recovery order and T was returned to her care. The matter was transferred to the Family Court of Australia. On 3 January 2006 orders were made that T spend time with her father from 10:00 am until 5:30 pm each Saturday, under the supervision of the paternal grandmother and appointed an ICL.
This arrangement continued until 17 December 2007, when the ICL sought the appointment of Mr K as a single expert. The father was ordered to submit to urinalysis, with liberty to either party or the ICL to apply in the event of a positive test result. These orders provided that the test results were to be made available to the mother, the ICL and Mr K.
There was a delay in the implementation of these orders. The trial Judge accepted that the father was not to blame and noted that the ICL offered an apology for her role in this tardiness.
In July 2008 the mother unilaterally suspended T’s time with her father. After doing so, she filed an application for interim orders to prevent all interaction between them. T did not see her father again until 12 May 2009, when it was ordered that they spend time together for two hours each Saturday at a contact centre.
Meanwhile, proceedings in the Local Court resulted in interim apprehended violence orders against the father for the protection of T, the mother, the maternal grandparents, and a maternal uncle. The father sent three text messages to the mother in March 2006, which were described by the trial Judge as “of themselves, non‑threatening”.He was then charged with three breaches of an apprehended violence order.
Having pleaded guilty to these charges on 1 May 2006 the father was placed on three good behaviour bonds, on the basis that no conviction was recorded. He then consented to the making of a final apprehended violence orders for a period of two years.
The father, who is now 36, re-partnered with Ms J in 2008. They began to live together in August 2008 and at the time of the hearing were expecting the birth of a son in September 2009.
The mother, who is now 32, married Mr JB in June 2007. They have a daughter, L, who was born in April 2009 and is now sixteen months old.
The Mother’s Application to Adduce Further Evidence in the Appeal
On 31 March 2010 the mother filed an application to adduce further evidence in the appeal. She sought to rely on the following affidavits:
1.her affidavit sworn 31 March 2010
2.Major L sworn 22 March 2010 (a Salvation Army officer)
3.Dr R sworn 30 March 2010 (the mother’s general medical practitioner)
Counsel for the mother also sought to rely on an affidavit sworn by her on 9 April 2010. The ICL adopted a neutral position but indicated that, if the application succeeded, he wished to cross-examine the mother and Major L. The mother opposed any cross-examination.
The father filed a response to this application on 12 April 2010 and swore an affidavit on the same date. He sought orders for “shared parental responsibility” and “[t]hat an order for all costs related be made”.His affidavit made it clear that he opposed the affidavit to adduce further evidence in the appeal. He filed no cross-appeal, so the issue of parental responsibility did not arise for consideration by us. The question of costs will be dealt with later in these reasons.
We refused the application to adduce further evidence and indicated that we would give our reasons in the course of this judgment. We now do so.
Pursuant to s 93A(2) of the Family Law Act 1975 (Cth) (“the Act”) the Full Court is empowered, in its discretion, to receive further evidence on questions of fact in an appeal. In CDJ v VAJ (1998) 197 CLR 172 the High Court majority, McHugh, Gummow and Callinan JJ said (at 201):
One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court the discretion to admit further evidence to buttress the findings already made.
Their Honours also said (at 202-203):
The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
…
No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re‑heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge’s decision. In that context, the likely effect of the further evidence on the Full Court’s view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
The mother’s affidavit sworn on 31 March 2010 addressed her unsuccessful application before the trial Judge during the course of the hearing to give evidence by video link; her attendance on a general practitioner Dr R and a referral for counselling after the orders were made, together with her version of events which occurred after 15 December 2009. Her affidavit sworn on 9 April 2010 stated that she continued to receive counselling and annexed a document purportedly signed by her therapist.
In his affidavit Dr R stated that he saw the mother on 23 December 2009 and made a preliminary diagnosis of post traumatic stress disorder. He annexed to his affidavit a referral to a counsellor.
Major L is a Salvation Army Chaplain who was present in court during the trial. She deposed to observations which she allegedly made of the mother during the proceedings. She also deposed to observations which she claimed to have made of the father while he cross-examined the mother.
As we observed at the hearing, and counsel for the mother conceded, most of the contents of the affidavit of Major L were inadmissible in form. In our view only the following passages could survive objection:
1.I have been an Officer (Minister) within the Salvation Army for the past 40 years. I currently hold the rank of Major.
2.I have worked in a variety of appointments ranging from Corps (church/parish) work, Aged Care Services, Alcohol and Drug Rehabilitation, Youth work, Community Service (Welfare) and Hospital Chaplaincy. I currently work in Court Chaplaincy.
…
4.For the past three years I have been working as a Chaplain at the Family Court … There are currently three Family Courts and five Federal Magistrate Courts, a Judicial Registrar’s Court, and a Subpoena Call‑over court, as well as Registrar Mediation Conferences.
5.My work involves attending the various courts and conference areas, on Monday to Friday each week, and giving assistance to people in need either by way of a direct approach by the clients or as they are referred to me by the Judges, Federal Magistrates, Registrars and/or members of the legal profession.
...
10.On the second day, [Ms Cameron] … said to me before [Mr Walker] started his questioning of her that “I have not spoken with him in several years.” I was sitting in the back of the court when [Mr Walker] began his questioning.
…
12.I followed her out and I saw her collapsing into her father’s arms, sobbing…
13.It was after this break, which included the lunch break that Justice Waddy asked if I would be prepared to sit in the witness box with [Ms Cameron] and provide support for her. I agreed to do this.
…
15.I was also sitting in the Court whilst [Ms Cameron] was being questioned firstly by her barrister, Mr. Sansom, and then by Mr. Perry, the Independent Children’s Lawyer. …
In our view, the evidence which remained in the affidavit of Major L gave no assistance to the mother in respect of ground 2 in which it is asserted his Honour’s refusal to permit cross-examination remotely caused the trial to miscarry or, in fact, any of the other complaints raised in her appeal. We thus declined to receive this affidavit.
Paragraphs 7 to 33 of the mother’s affidavit sworn on 31 March 2010 retrospectively address her application to give evidence by video link. As appears below, this application was limited to her cross-examination by the father. She had already given evidence in chief and been cross-examined by counsel for the ICL.
As noted, counsel for the ICL indicated that he wished to cross-examine the mother if her affidavits were received as further evidence in the appeal. Her counsel conceded that the father would also wish to cross-examine the mother. Clearly, therefore, this part of the mother’s affidavit evidence was controversial.
In these circumstances, counsel for the mother indicated that he was in a position to argue ground 2 without this further evidence. For those reasons, and because this evidence was clearly controversial, we declined to receive paragraphs 7 to 33 inclusive of the mother’s affidavit sworn on 31 March 2010.
The remaining paragraphs of the mother’s affidavit sworn on 31 March 2010 set out her version of events since 15 December 2009. In particular, she deposed that she consulted Dr R and began counselling after the orders were made. She also deposed to her reaction to T’s spending time with her father.
Large parts of these passages in the mother’s affidavit were inadmissible in form. This material is obviously controversial and both the ICL and the father could reasonably expect a right of cross-examination if the evidence was admitted. For these reasons, we declined to receive paragraphs 34 to 60 of the mother’s affidavit sworn on 31 March 2010.
The evidence of Dr R and the mother’s affidavit of 9 April 2010 do not link the preliminary diagnosis of post-traumatic stress disorder and counselling to his Honour’s orders. Counsel for the mother conceded “that the evidence of the doctor is not strong in relation – and certainly I concede that there’s no nexus with the orders that were made by the court.” This evidence thus afforded no assistance to the mother in respect of any ground of appeal and was rejected.
For completeness, we note that paragraphs 1 to 6 of the mother’s affidavit sworn 31 March 2010 contain background material which did not relate to any ground of appeal. It was for these reasons the application of the mother to adduce further evidence in the appeal was dismissed in its entirety.
Appellate Principles
The Amended Notice of Appeal, as we will shortly discuss in more detail, asserted the trial Judge had, among other matters, failed to give adequate reasons, and had erred in the exercise of his discretion. It is useful at this point in our reasons we refer to the relevant appellate principles to be applied in an appeal against a discretionary judgment.
The principles concerning discretionary decisions may be briefly stated.In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said (at 504-505):
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In Gronow v Gronow (1979) 144 CLR 513 Stephen J stated (at 519):
The constant emphasis of the cases is that before a reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.
The statement of principle from House v The King was supported Kirby J in AMS v AIF (1999) 199 CLR 160 (at 211):
[A]n appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial. (Footnotes omitted)
In CDJ v VAJ Kirby J said (at 230 – 232):
A number of general propositions may be stated:
1. Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
2. Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.
3. An additional peculiarity of appeals within, and from, the Family Court is that, in respect of what in Australia are now called “parenting orders”, very vulnerable and significant interests are at stake. It is commonplace to say that, in all appeals, public and private costs and the stresses, delays and other burdens of litigation, are reasons for adding an element of self-restraint to those ordinarily proper to the discharge of appellate judicial functions. Retrials in civil cases following an appeal have been described as “an enormous evil”, to be avoided as far as possible. Whilst this rather emotional phrase may overstate the dangers, the public costs of litigation have lately come to be given more weight in such decisions. In family disputes, and particularly those relating to the welfare of children, there are special stresses. They tend to pull in opposite directions. On the one hand, it is highly undesirable that arrangements for the residence, education, health and familial relationships of a child should be needlessly disturbed by successive court orders. Such changes may add intolerably to the tensions which a child, fought over by members of the family, already feels. On the other hand, so important are such decisions for the life of the child and its relationships with the parents, siblings and other family members, that it is proper that the courts should take special pains, so far as they can, to avoid decisions impermissibly distorted by factual or legal error, by error of principle, by prejudice or by giving weight to irrelevant considerations. (footnotes omitted)
The Judgment of the trial Judge
As one ground of appeal was inadequacy of reasons, we consider it necessary to set out in some detail the trial Judge’s analysis of the evidence and his reasoning process. The trial occupied 13 days in May, July and August 2009 and generated a very large volume of oral and written evidence. On 15 December 2009 his Honour delivered his reasons orally, a process which occupied most of that day. The trial Judge had no opportunity to settle these reasons, as 17 December 2009 was his compulsory date for retirement (pursuant to s 72 of the Australian Constitution).
His Honour commenced his judgment by identifying the proposals of the parents and the ICL, noting that the father ultimately adopted the ICL’s Minute of Orders Sought. The mother’s application remained that she have sole parental responsibility and that the child spend no time with her father until she was 12 years old.
The trial Judge then set out historical background material and identified what he considered to be “numerous distinguishing features” of the proceedings, which were that:
·the mother sought that there be no face-to-face time between T and her father until 2017, when she would be 12 years old;
·the mother alleged that the father subjected her to sustained violence throughout their relationship. She offered “virtually no corroborative evidence”, such as medical and hospital records or “contemporaneous witnesses”;
·the mother’s only corroborative evidence of the alleged violence came from “intimate family members” but she admitted she was estranged from her parents during the relationship, and that she had lied to them on occasions;
·the mother’s father, Mr X was her “chief supporter” as to the allegations of violence, despite the fact that he had given evidence on oath “in glowing terms” as to the father’s patience and tolerance with the mother in earlier proceedings in the Local Court;
·the mother relied on a 300 paragraph affidavit in which she made many allegations of violence on the part of the father, practically all of which he disputed;
·the proceedings were underlaid with threats and counter-threats which extended to include the mother’s father;
·the mother complained that the father breached Court orders, yet she did so herself when she unilaterally suspended T’s time with her father in July 2008;
·the mother presented a “labile personality” before her application to give evidence by video link was refused, and thereafter displayed a much more assertive demeanour, although she continued to be tearful at times; and
·the father appeared in person and, at all times, conducted himself with restraint and extended cooperation to the Court.
His Honour then proceeded to consider the evidence of the maternal grandfather, Mr X. Mr X gave evidence in support of the father in 2005, when he faced a charge of assault occasioning actual bodily harm. In essence, Mr X told the Local Court that he never saw the father behave violently or lose his temper. He gave evidence that he saw the father in situations with the mother, “when [she has] probably tried the patience of Job”.
His Honour then recorded that Mr X was reluctant to admit that he gave this evidence in support of the father, until he faced the prospect of production of a transcript. His Honour was unimpressed with Mr X as a witness and found his evidence to be overall “unreliable and unconvincing unless it were against interest”.
The trial Judge then noted that the father held such a favourable opinion of the maternal grandmother, Mrs X, that he chose not to read her affidavit and opted not to cross-examine her. Counsel for the ICL and his Honour put questions to Mrs X.
The trial Judge then turned to the circumstances of the suspension of T’s time with her father in July 2008. His Honour recorded the mother’s stated reasons as follows:
Naturally, counsel for the independent children’s lawyer, probed the mother’s reasons for such a drastic change in her position as to contact. The mother swore there were various reasons for her change of position.
(1) “Originally I only agreed but I wanted to send her fairly regularly because I was so scared of him doing something if I didn’t send her.”
(2) “It has taken two and a half years of just fear for her, and the dealing with the fact that I have to send her somewhere where I don’t want to send her every Saturday.”
(3) “I got to a point where I couldn’t take her. I just couldn’t physically pick her up and put her in the car and take her any more.”
(4) “Not only because of it hurt me, it was the effect it was having on the child. “
This included the child allegedly (1) being so quiet when she came home; (2) being clingy to the mother; (3) taking three days to get back into her routine; (4) for three days not leaving the mother’s side; (5) acting shyly and going back into herself for three days after contact. The mother added several other reasons, including that she (5) didn’t seek “no contact” at the beginning because, “I was so scared of the father doing something to me. If I didn’t keep him happy, I thought he would kill me”; (6) she feared even now, seeking no contact as the mother claims she was “scared”; (7) she couldn’t keep sending the child somewhere where she should not be going; (8) finally, she submitted, “I never ever wanted to send her.” (paragraphs 69 & 70)
His Honour then recounted this evidence of the mother as to her reasons for unilaterally terminating T’s time with her father:
The mother then, unprompted, summarised her position as follows:
What it really comes down to is I was pregnant with my second daughter, only just pregnant. I’ve got a great husband and such a nice family life. It has taken sort of two and a half years to really deal with what did actually happen over those seven years, and it almost occurred to me one day, just waking up one day, but I thought, “What am I doing?” It was the first Saturday, I said, “I can’t do it, I can’t take her any more”. (paragraph 71)
His Honour then noted a number of concessions made by the mother. She admitted that she knew that there were orders for T to spend time with her father when she unilaterally suspended the arrangement. She admitted that she made no suggestion that the father ever physically abused the child or that he “yelled at her”.She conceded that she never “heard him talk badly towards the child”, smack her or behave toward her in a sexually inappropriate manner.
At this point his Honour made an adverse finding in relation to the mother’s credit, stating:
…I found that I could place little faith in the mother’s evidence. There’s a large gap between assertion and evidence. While sworn testimony of a truthful witness may itself, standing uncorroborated, be convincing to the requisite standard, I was not persuaded the mother was such a witness. Whether her presentation was due to other factors, I have no evidence, however I cannot conclude that the mother is or has given truthful or accurate evidence of the matters she chose to address. I found most of her evidence of little value and frequently imprecise. (paragraph 78)
The trial Judge then traced the mother’s history of vocational qualifications and employment. She obtained the School Certificate in 1995 and then completed TAFE courses in accounting and medical reception. She worked as a medical receptionist for six years and then as a state customer services officer and executive assistant to a general manager.
His Honour then observed that the mother’s situation, during the relationship, was such that she had almost daily opportunity for contact with her parents, employers, police, counselling services and medical practitioners. For these reasons, his Honour had difficulty in accepting her uncorroborated allegations of sustained violence at the hands of the father.
His Honour then summarised the relevant law and referred to the following provisions in the Act:
·the objects of Part VII and the principles underlying those objects set out in s 60B;
·the Court’s obligation to regard the child’s best interests as the paramount consideration when deciding whether to make a particular parenting order (s 60CA);
·the primary and additional considerations in ss 60CC(2) and (3);
·the extent to which each parent has fulfilled his or her parental responsibilities (s 60CC(4));
·the presumption that it is in a child’s best interests for his or her parents to have equal parental shared responsibility (s 61DA) and the circumstances in which this presumption does not apply or is rebutted;
·the definition of “parental responsibility” in s 61;
·the effect of the allocation of parental responsibility in s 65DAC and s 65DAE; and
·the requirement in s 65DAA that the Court consider equal time, and then substantial and significant time, if the presumption of equal shared parental responsibility applies.
The trial Judge then considered the evidence in relation to the allegations of substance abuse by the father, including the opinion of the single expert Mr K. His Honour referred to the mutual allegations of drug use and the mother’s particular complaints that the father used anabolic steroids, amphetamines, marihuana and cocaine.
His Honour noted that Mr K prepared two reports and had received a number of urinalysis test results. He accepted Mr K’s expert opinions and was satisfied that the father had no “current functionally significant substance abuse problem”.Mr K could offer no opinion as to the level of risk of relapse, due to inadequacy of “assessment data”.
The trial Judge referred to Mr K’s account at later interviews during the litigation with the father of his frustration with and anger at the lengthy litigation and to his apparent misunderstanding of the role of the single expert. His Honour noted that the father “did not raise his voice, swear or act in any way menacingly” with Mr K, who had no fears for his own safety.
The trial Judge then turned to the evidence of, Ms C (“the Family Consultant”), and referred to her account of the mother’s allegations of violence, as outlined in the first family report dated 4 October 2006 at paragraph 125:
I quote from the report:
She said that she did not realise or accept that she was in a domestic violence relationship with [Mr Walker] until she and [Mr Walker] finally separated and she had had counselling. She set out her claims that [Mr Walker] had hit her, kicked her, punched, pushed and harassed her even when she was pregnant and later when [T] was in her arms and she said there were times when [T] was hurt in the process.
The trial Judge’s summary differs slightly from the original quotation of the Family Consultant:
12.… She said that she did not realise or accept that she was in a domestic violence relationship with [Mr Walker] until she and [Mr Walker] finally separated and she had had counselling.
13.[Ms Cameron] claimed that [Mr Walker] hit her, kicked her, pushed and harassed her even when she was pregnant and later when [T] was in her arms. There were times when [T] was hurt in the process. …
The trial Judge then referred to an allegation that the child was injured during a violent incident between the parties. The mother alleged that T hit her head on a door when the father pushed her. His Honour noted that no medical attention was sought for the child and expressed doubt that a parent who believed that their child had been injured would fail to do so.
Shortly prior to this point, his Honour noted that T was only eleven months old when her parents separated. His Honour expressed the view that she would have little or no memory of any of these events.
His Honour next referred to the father’s evidence that “[h]e claimed that the mother had initiated violence towards him and that although she was never a physical threat he was accustomed to hit back when she hit him”.His Honour described this evidence as “obviously a concession…about the violence and the violent relationship that the parties had had, using the definition of violence as the Family Law Act extends it not just to physical contact”.
The trial Judge then observed that the father seemed unwilling to accept responsibility for his actions, in that he alleged mutual violence and drug use but conceded a disparity in the physical size and strength of the parties. His Honour noted also that the father seemed dismissive of his actions, as he stressed that this behaviour had taken place a considerable time before the trial.
His Honour then returned to the contents of the two family reports and some of the oral evidence of the Family Consultant. Waddy J referred to the Family Consultant’s evidence that infants who experience violence retain memory of their feelings at the time, rather than the actual events. His Honour noted the lack of evidence that this research applied to 11 month old children other than that of the Family Consultant, who holds a Bachelor of Social Studies. He noted that the Family Consultant pointed out that the parties “gave divergent pictures of their relationship together” (paragraph 131).
The trial Judge then observed that there was little evidence to corroborate the mother’s allegations of violence, other than “police records”.His Honour referred to “the numbers of assault charges against [Mr Walker] outlined in the police reports”, which “appeared to be some substantiation of her claims”.His Honour then indicated that the mother’s descriptions of violence and abuse “were plausible because of factors which had occurred away from her”, which must mean that these records referred to incidents involving the father and persons other than the mother (paragraph 132).
At paragraph 153, Waddy J summarised the contents of notes made by staff at the I Children’s Contact Centre, where T spent supervised time with her father. These notes generally describe a happy, affectionate interaction between them, with entries such as “[t]ime to leave, she hugged and kissed her father…” and “[w]hen the bell sounded the child wrapped her arms around her father’s neck and hugged him tightly”.
At this point in the reasons his Honour set out his conclusions as to the serious issue of family violence and said:
161.…Where the parties were able to agree, it was only on smaller matters – they all agreed that they argued a lot and it seems to me that I can find that there has been frequent argument and frequent conduct that would come within the wider definition of family violence within the Family Law Act.
162.There has certainly been yelling; there has certainly been physical contact. The allegations by the mother are far more grave than those by the father. The father complains of having had a bucket of water thrown over him; of having a telephone thrown at him that hit him on the head and of the mother being physical in their relationship. On his size and training, I don’t believe he could ever feel that he was in mortal danger. He also reported on a couple of occasions being threatened by the mother with a knife on one occasion of which she said, “I’m only joking” and it seems to me that their relationship was conflictual. The mother’s allegations are much more serious and, as she claims, put her in fear.
163.She describes incidents where she says she feared for her life and it seems to me inconceivable that if she did, having, as she said, a loving father always ready to protect her and step into the breach and being the intelligent person she was, that were she to fear that she could have easily sought her father’s protection at any time, as she did on Boxing Day, the 25th [sic] of December. I’d find that the father, despite their conflictual relationship, was always based on a deep love for his daughter and, I suspect, a deep love of his daughter for him. In no way do I belittle the importance of domestic violence, nor do I regard it other than with abhorrence.
164.The difficulty is, it seems to me, there is absolutely no contemporaneous corroborative evidence that I can look to in any way. Counsel for the mother posited that it’s not unknown for persons to fall into a pattern of suffering and to be ashamed to tell anyone about it. It seems to me that the parties were excessively voluble and as the father admitted earlier on, as [the Family Consultant] gave in one part of her oral evidence, I think, and when she was asked to read out her notes, that she hadn’t included in her report, “We were crazy together. We were just a mess.”
165.It seems to me that the finding of domestic violence in the relationship which I make, one directed against the other, one partner being observed to be more patient but much stronger and the other one being erratic and more fragile, that I am astounded that they remained together for eight years. I am also astounded that a loving father, such as [Mr X], and a loving wife who has the admiration of his daughter’s partner, could have stood by whilst the things which the mother alleges for the first time after Boxing Day 2005 occurred. If one accepts the amount of time that they were in contact, both parties employment through most of the time, it seems to me, that a finding of domestic violence is inescapable if it were, as the mother claim it was, horrendous. If it were as the father claimed, it’s regrettable. …
These findings led the trial Judge to conclude that equal shared parental responsibility would be “quite inappropriate” and he determined that “the mother will have sole parental authority [sic] over the child”.His Honour then said that, following the legislative pathway already outlined, he intended to make orders:
… to ensure the best interests of the [child] are met by ensuring the [child has] the benefit of both … parents having a meaningful involvement [her life] to what I consider to be the maximum extent consistent with the best interests of a child, protecting the child, ensuring the child receives adequate and proper parenting to enable her to achieve her full potential and ensuring parents fulfil their duties. (paragraph 166)
The trial Judge then referred again to the issue of family violence. His Honour repeated his conclusion that the parties had been in a conflictual relationship which involved a different lifestyle, including drug use, all of which was absent from their current relationships.
The trial Judge then dealt with the two primary considerations set out in s 60CC(2) of the Act. His Honour rejected the mother’s submission that there was “a substantial risk to the child that she might be subjected or exposed to abuse and neglect”.Waddy J set out these reasons for this conclusion being:
·the violence between the parties took place prior to their separation, when the child was eleven months old;
·there was no suggestion of any subsequent violence between the parties; and
·the violence occurred within a conflictual relationship, involving drug use and the parties’ lifestyle.
The trial Judge then addressed the additional considerations set out in s 60CC(3) of the Act. In this context, his Honour considered the likely impact on the mother of an order that T spend time with her father. His Honour observed that there was no expert evidence that such an arrangement would undermine the mother’s ability to care for the child adequately.
When considering the father’s capacity to provide for T’s needs his Honour said:
…if I accept the description of [the father] by the maternal grandmother [semble grandfather] and my observations of him, has sufficient emotional control and intellectual capacity to run a 10-day court case unaided here, is well able to provide for the child emotionally and intellectually. I think I will take the course of the Act (paragraph 187).
When referring to s 60CC(4) of the Act, the trial Judge observed that the father failed to provide financial support for T. His Honour referred to the father’s suggestion that there were numerous calls upon his income, which he apparently permitted to take priority over child support. His Honour noted that the father had been involved in litigation in various courts and speculated that the father’s evidence of an income of $1,100.00 per week would be brought to the attention of the Child Support Agency.
The Grounds of Appeal
Ground 1
Other than the finding at paragraph 202 of the reasons for judgment that “It seems to me that will be less stress on the child if she merely sees the Father in accordance with the orders proposed by the ICL and then adopted by [him] and that [did] not [follow the] provision for substantial and significant conduct….” His Honour failed to provide any adequate reasons for the Orders which were made as to the Father’s time with the child.
In Bennett & Bennett (1991) FLC 92-191, the Full Court stated (at 78,266):
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said at 18:
“The adequacy of the reasons will depend upon the circumstances of the case. But 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.”
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments.
Their Honours went on to say (at 78,267):
At the very least the failure to give adequate reasons places a duty on an appellate court to scrutinise the decision with particular care.
In the absence of adequate reasons, the Full Court is not obliged to uphold a judgment merely because the result may be said to fall within the wide ambit of the Judge’s discretion. In general, the appellate Court should be able to discern either expressly or by implication the path by which the result has been reached.
We stress that we are not suggesting that reasons must be extensive. Their adequacy must frequently be judged by reference to the issues raised by the parties at trial. …
…
The important thing is that the appellate court must be placed in the position of being able to follow the trial Judge’s line of reasoning, as must the parties, if they are to be satisfied that justice has been done.
The finding in paragraph 202 reflected the trial Judge’s conclusion that neither equal time nor substantial or significant time was in T’s best interests, nor reasonably practicable. His Honour had previously carried out an extensive consideration of a large volume of evidence to reach this conclusion, as we have traced in our analysis of the judgment. This finding is thus the end result of a reasoning process which led his Honour to conclude that orders for T to spend limited time with her father, as proposed by the ICL, would be in her best interests.
In his written submissions counsel for the ICL stated:
In effect, the Reasons are quite capable of being read as saying, in summary:
(i)The child ought to have a meaningful relationship with both parents.
(ii)Apart from the Mother’s allegations of violence against, [Mr Walker] presented as a loving Father and parent who had much to offer the child.
(iii)The Mother’s allegations needed to be looked at carefully because of the provisions of s.60B(1)(b) and s.60CC(2)(b).
(iv)The evidence before him was insufficient to enable His Honour to make a positive finding that the violence alleged by the Mother occurred. Even so, and despite intending to make an order that the child have the benefit of a meaningful relationship with both parents, this would be decided only in the context of assessing the s.60CC factors.
(ICL’s submissions paragraph 12) (footnote omitted)
Counsel for the ICL also submitted:
The findings of the trial Judge that led to his conclusion about the time that the child spend with the father are clearly set out in the judgment, so that the evidentiary basis is clear, the reasoning is clear enough, and the conclusion is supported….
(ICL’s submissions paragraph 16) (footnote omitted)
Having regard to our analysis of the structure and content of his Honour’s judgment, we agree with the submissions of the ICL as to the clarity and sufficiency of the reasons. As we have said, the trial Judge’s statement in paragraph 202 of the judgment was not a “stand alone” finding but a conclusion reached by his Honour after a lengthy consideration of all the evidence.
Counsel for the mother drew attention to the final paragraph of the judgment which read:
Now, I wish to turn to the orders themselves … Having paid, then, attention to the voluminous evidence in this case, the submissions of counsel and the litigant in person, the relevant law to which I’ve been referred and considered, above all, the best interests of the child, I propose to make orders following. I will give some reasons as to why, where they weren’t addressed in the submission, but they follow closely, but not exactly, those proposed by the independent children’s lawyer. (paragraph 203)
Counsel for the mother suggested that this paragraph indicated that the trial Judge anticipated giving further reasons why orders would be made for T to spend time with her father. In our view, the first sentence clearly indicates that his Honour was here considering the form of the orders, not the outcome of the proceedings. One possible explanation is that his Honour intended to adopt substantially the proposal of the ICL but would indicate reasons for some minor variations when the orders were actually made.
Another explanation was that suggested by the Deputy Chief Justice during the hearing of the appeal:
The only way that sentence could otherwise make sense is instead of “I’ll give some reasons”, “I have given some reasons”, which would then make the rest of the sentence make sense. (transcript, 19 April 2010, p 18)
Counsel for the mother replied “I accept that…” and further “I’m not suggesting that this is the hub of my argument under ground 1”.
We are satisfied that the ICL is correct in his submission that “[t]he criticisms in ground 1 do not have any proper basis once the judgment is fully examined”.It is necessary to have regard to the entirety of his Honour’s reasons, rather than focus on one finding which is a conclusion reached after a lengthy consideration of the evidence. In our opinion, there is no substance to this ground of appeal.
Ground 2
That as a result of his Honour’s refusal to permit the Mother to be cross examined remotely and not in the presence and by the Father in person (her alleged abuser) the entirety of the trial miscarried and credit findings made adverse to the Mother and/or in favour of the Father flowing from that miscarriage should not stand.
Section 102C of the Act gives the Court discretion to allow a witness to give evidence by video link. This power may be exercised on the application of a party or on the Court’s own motion (see s 102C(4) of the Act).
Section 102C(1) of the Act relevantly provides:
The court or a Judge may, for the purposes of any proceedings, direct or allow testimony to be given by video link, audio link or other appropriate means.
It is important to note the context and timing of the application by counsel for the mother that her cross-examination by the father take place by video link to another courtroom. At the start of the trial his Honour suggested that counsel for the ICL might cross-examine before the father, as he was unrepresented. Counsel for the ICL agreed to cross-examine first on that basis, subject to a further opportunity if any relevant matter arose from the father’s questioning. Neither the father nor counsel for the mother objected to this course, which is far from unusual when a party is unrepresented.
On 27 July 2009 the mother commenced her evidence-in-chief at 12:24 pm. At or about 12:39 pm her counsel requested a break, due to her distress, and the proceedings halted until 12:48 pm. Counsel for the ICL began his cross-examination of the mother at 2:56 pm on 27 July 2009 and the proceedings halted that day at 4:10 pm, when his Honour said “I think we might, I think the lady’s composure is a little bit – indicating that – I think if we stop now it wouldn’t be inappropriate”.The proceedings were then adjourned until the following morning.
On the following day counsel for the ICL offered the mother a break, saying: “I notice you are getting upset” but the mother chose that he continue his cross-examination. At 11:28 am his Honour said: “I think we might stop and have morning tea now…[a]nd the witness could do with a break, I take it. The witness could do with a break”.
Before the father started his cross-examination of the mother, the trial Judge gave him a clear warning as to how he was to conduct himself. His Honour said “[a]nd you’ve heard... how [the questions are] asked in a low key manner by [the ICL]. I don’t want any hassling of the witness or anything like that – not suggesting you would, but I don’t want you interrupting her”.
The following exchange then occurred between his Honour and the mother:
HIS HONOUR: And [Ms Cameron] when you come back I’ll take charge of the [courtroom] and if you feel, as I have this morning, if you feel unable to continue or you want a drink of water or you want some tissues or something? --- Yes
Or you just want a bit of time out, just put your hand up. You don’t have to say anything, just put your hand up. Quite easy to take four or five minutes adjournment. Just walk behind here. When you are ready to continue we can? --- Yes
The father commenced his cross-examination of the mother at 2:27 pm on 28 July 2009 and asked three innocuous questions before his Honour remarked “[t]he transcript can show the witness has burst into tears, turned away towards me before it started and has now burst into tears and holding her head down. So let me know when we can continue please?”The proceedings were halted for 37 minutes and, on resumption, counsel for the mother made the application that she give her evidence by video link.
Counsel for the ICL neither consented to nor opposed the application. He pointed out that the demeanour of witnesses was a very important consideration in the proceedings, as the credit of the parties was a most significant issue. The father opposed the application.
The trial Judge suggested a number of ways in which the mother might be assisted during her cross-examination by the father. His Honour said that he would be prepared to permit Major L of the Salvation Army to sit with her in the witness box. It was also suggested that the mother’s solicitor sit beside her and that she bring her baby into court, if she so wished.
The trial Judge also suggested that a screen be placed between the mother and the father so that she could not see him but his Honour would be able to observe her. Major L in fact sat with the mother in the witness box throughout her cross-examination by the father.
The trial Judge had a discretion to allow or refuse the mother’s application. The transcript shows that his Honour took into account, in exercising his discretion, the following matters:
·the difficulty of a lay person in cross-examining a witness on documents;
·the clear warning to the father as to proper conduct during his cross-examination of the mother;
·the invitation to the mother to request a break whenever she felt it necessary;
·the risk that the trial, which was already lengthy, could be flawed for irregularity;
·the invitation to the mother for Major L or her solicitor to sit in the witness box with her;
·the invitation to the mother to have her baby in the witness-box with her;
·the fact that the credit of the parties was a significant issue, in which observations of their demeanour would feature heavily;
·as has become evident from his Honour’s reasons the fact that he had already formed an unfavourable view of the mother’s credit during her cross-examination by counsel for the ICL;
·the suggestion that a screen be placed between the mother and the father;
·the fact that the father was on the other side of the courtroom from the mother and his Honour was prepared to require him to ask his questions while seated, so as to eliminate any height imbalance (hence any opportunity to dominate on the part of the father); and
·the fact that the mother’s counsel informed the Court that it was the sound of the father’s voice which was the real difficulty for her. The use of a video link would not eliminate that problem.
There was no complaint that any of these matters should not have been taken into account by his Honour. Counsel for the mother submitted that the trial Judge wrongly took into account the potential disadvantage to the father but ultimately abandoned this proposition. It was also submitted that his Honour should have taken into account that he would have had the benefit of a better hearing of the mother by video link. That proposition was supported by no evidence.
It is important to note the precise ruling which the trial Judge made in rejecting the mother’s application. His Honour said:
I think – at the present time I think I prefer to proceed in the ordinary way with the indulgence that [Ms Cameron] can bring the child in if she wants to, that she can have the Salvation Army lady beside her, who knows nothing about the case but would give her strength and see how we get on … before we take the desperate measures that are suggested … But let’s just see how it goes. (emphasis added)
It is useful to look at the course of the father’s cross-examination of the mother rather than consider whether the trial Judge’s decision was correct in hindsight. It is important to appreciate that there was no renewal of the application for her to give evidence by video link.
The father re-commenced his cross examination of the mother at about 3:25 pm on 28 July 2009. During that afternoon he put questions concerning alleged serious threats of harm, without the mother becoming emotional and unable to continue her evidence.
At 4:25 pm the mother said “I can’t listen to this guy any more” and “I can’t –can’t understand … I can’t understand the question”.His Honour then adjourned the proceedings for the day.
The father’s cross-examination of the mother continued for the whole of 29 July 2009. His Honour halted proceedings three times to allow the mother to regain her composure. The first break was for six minutes early in the morning, the second for 28 minutes, and the third for 14 minutes just before the luncheon adjournment.
In the afternoon the mother elected to continue her evidence after the following exchange between herself and the trial Judge:
She’s known as [T Brown]?---Yes.
HIS HONOUR: When did that happen?---When she start [sic] going to preschool this year. At the beginning of the year.
When did you change her name?---I didn’t change the name. I asked them if I could use that - - -
Don’t speak to me like that?---I didn’t change the name, I’m sorry. I didn’t change the name.
The child was born, was she not, with the name of [T Walker]?---Yes, that’s correct.
The name you say now is changed to [Brown] at preschool?---Yes, at preschool.
She’s been with you at the time she was put to the preschool?---Yes.
Is there anyone else who could have changed it name except yourself?---No.
Did you or did you not change her name to [Brown]?---At the preschool, yes.
Did you consult with [Mr Walker] about that?---No.
…
HIS HONOUR: I think I’ve [caused] the lady distress by speaking to her as sharply as she spoke to me?---I didn’t mean - - -
I know it was yesterday that it happened, but I really am not used to being addressed like that.
[COUNSEL FOR THE MOTHER]: I must confess, your Honour, I didn’t hear the witness address your Honour harshly in some tone. I may have been missing it.
HIS HONOUR: Well, she outright contradicted me - - -?---I’m sorry.
I’d hardly finished what I was saying. But I regret that she spoke to me the way she did, and I regret that I spoke to her the way that I did as a result.
[COUNSEL FOR THE MOTHER]: Yes, your Honour.
HIS HONOUR: I’ve tried to be as kind to the witness as I possibly can be. But I can’t conduct a Court when I’m flatly contradicted. Do you want me to adjourn now?
[COUNSEL FOR THE MOTHER]: The witness is shaking her head to the negative, your Honour. So we might continue.
… (transcript, 29 July 2009, pp 84-85)
On 30 July 2009 the father cross-examined the mother for approximately another 40 minutes without incident.
Despite these breaks in her evidence, counsel for the mother at no stage renewed the application for use of a video link. The trial Judge had clearly left open that option. Although the mother was in cross-examination, her counsel could have sought leave to confer with her for the limited purpose of obtaining instructions to renew the application. It was also always open to counsel for the ICL to renew the application, consistently with his duty to safeguard the interests of the child by ensuring that the mother’s evidence was properly before the Court.
The inference must be that the mother’s counsel made a forensic decision not to renew the application for her to give evidence by video link. It follows also that counsel for the ICL did not consider it necessary to intervene for that purpose. That being so, it seems to us that the mother now has difficulty in complaining that her application was unsuccessful.
On behalf of the mother it was alleged that:
[t]he Trial Judge’s criticism of the Mother gives this ground of Appeal particular weight. Such observations were based on his observations of the Mother whilst she endured a situation when she was being cross examined, face to face, by the man who the Court implicitly at least, ultimately found had been violent toward her. Noteworthy herein is His Honour’s comments on the mother at paragraph 197…where the Trial Judge stated that the mother ‘…certainly started to give as good as she got as she warmed to her task in the witness box’. (original emphasis)
As noted already, his Honour’s reasons disclose the trial Judge had formed an adverse view of the mother’s credit before she was questioned by the father. His Honour reached this conclusion during her cross-examination by counsel for the ICL. His Honour had the advantage of observing the mother’s demeanour as she answered the father’s questions and was in a position to conclude that she “certainly started to give as good as she got as she warmed to her task in the witness box” (paragraph 197).
In summary, there are three reasons why we see no substance to this ground of appeal. First, the decision to refuse the application was within the reasonable ambit of his Honour’s discretion. His Honour did not take any irrelevant matter into consideration, nor did he fail to take any relevant matter into consideration. Secondly, counsel for the mother had the option to renew the application at any time but elected not to do so. Thirdly, his Honour’s adverse view of the mother’s credit was formed before the father commenced his cross-examination of her.
Grounds 3(a) and 3(b) and Ground 8
(3) His Honour erred by failing to:-
(a)understand the effect of domestic violence on the Mother and as a result His Honour erred in understanding the evidence;
(b)consider the issue of domestic violence adequately (particularly in circumstances where His Honour apparently found (at paragraph 191) “There’s certainly been a great deal of family violence involving members of the child’s family, the Mother and the Father, and I have dealt with that I think, sufficiently”); and
…
(8)His Honour failed to consider or properly consider the issue of the Father as a role model and the Father’s propensity for violence and how that impacts upon the future Orders to be made.
It is readily apparent that the issue of family violence was at the forefront of the trial Judge’s consideration. His Honour referred to the allegations of violence at an early stage in the judgment when identifying the “distinguishing features” in the case. Our analysis of the trial Judge’s reasons indicates that his Honour considered carefully the evidence as to the competing allegations of violence and made a number of findings, which we have earlier set out.
It is clear that the trial Judge was acutely aware of the seriousness of family violence, which he regarded with “abhorrence”. His Honour made such findings as he considered available on the evidence and indicated clearly why he declined to accept the account of the mother. Inter alia, these findings led his Honour to determine that the parties should not have equal shared parental responsibility for their daughter. As noted, there was an order that the mother have sole parental responsibility for T. It may be inferred from his Honour’s reasons in paragraph 165 that he found the presumption did not apply because of the past history of family violence (see s 61DA(2) of the Act).
The trial Judge further addressed the issue of family violence when he turned to the primary considerations in s 60CC(2) of the Act, commencing at paragraph 168 of the judgment. His Honour made these findings:
·There is no substantial risk that the child might be subjected or exposed to abuse and neglect.
·The violence between the parties occurred before the child was 11 months old and there have been no reports of more recent incidents.
·The parties’ conflictual relationship prior to separation seemed to be based on their drug taking and lifestyle.
·There was no evidence the child was likely to be exposed to abuse, neglect or family violence, whether living with the mother or spending time with the father.
·There is no present need to protect the child from physical or psychological harm.
·There was no expert evidence as to the effect that violence may have had on the child, who last saw her parents together when she was 11 months old.
·There was no evidence that the child is fearful of her father or that her relationship with him is “not going otherwise than happily and well”.
There was no challenge to any of these findings, which seemed to us to be open on the evidence.
The trial Judge again turned to the issue of family violence in the context of the additional considerations in s 60CC(3) of the Act, particularly s 60CC(3)(j). His Honour referred to his previous consideration of the evidence in relation to the violence issue and to his findings. At this point his Honour stated:
I find no evidence that she’s been injured in any way, nor do I believe there’s any evidence either parent would deliberately injure her. There’s certainly been a great deal of family violence involving members of the child’s family, the mother and the father, and I’ve dealt with that, I think, sufficiently. (paragraph 191)
On behalf of the mother it was submitted that the trial Judge failed to consider the impact of violence upon her. It was suggested that his Honour made no reference to the detrimental effect which violence may have had on her.
It is clear that the trial Judge did consider these issues. At paragraph 176 of the judgment his Honour said:
…while it is assumed or thought to be assumed that [T] having contact with the father would jeopardise the mother, there is no medical or specialised evidence, professional evidence, to make that it is not a matter of, in particular cases, of judicial assumption, and indeed, the reports of her taking the child into contact and away again, the mother did not seem to be howling or crying or doing anything at that time and there is no evidence of the howling or crying when the first two and a half years, when the child was seeing her father and her paternal grandmother on a Saturday. (paragraph 176)
At paragraph 177 of the judgment his Honour noted that the mother’s adverse reaction to handing T to her father seems “to have increased since the mother woke up on the morning to which I have referred and thought, ‘I’m not doing it any longer’”.
His Honour turned again to the issue of compromise of the mother’s parenting capacity, if there was an order for time with the father, in the context of s 60CC(3)(m) of the Act. His Honour referred to the submission on behalf of the mother that she was terrified of the father and that her ability to parent the child would be significantly impacted by any order for the child to spend time with him. His Honour said:
I find there’s no evidence to support this. The mother – there’s no evidence the mother has – mothering has been impacted by the interim orders put in place and there’s no complaint by [the mother’s new husband] that the mother is unable – it’s impacted upon her or her parenting. Whether or not the mother is terrified of the father for good reason is something which I am unable to find on the evidence presented before me. (paragraph 196)
In our view these findings were open to his Honour.
His Honour then noted his observations of the mother’s demeanour:
I’ve observed the mother in court for a long while. While she presented as nervous and labile at the beginning, she certainly started to give as good as she got as she warmed to her task in the witness box, and, as I said, I got some of it. … (paragraph 197)
These passages indicate clearly that the trial Judge gave proper consideration to this issue but found that there was no evidence that there would be a detrimental impact on the mother’s parenting capacity if the child spent time with her father. It was always open to the mother to adduce expert evidence to establish that proposition. In our view, his Honour was entitled to decline to act on assumptions and to require proper evidence to support the finding sought by the mother. Further, in our view, his Honour was entitled to take into account his own observations of the mother in the court room.
On behalf of the mother, it was submitted that the trial Judge failed to consider whether the father was an appropriate role model for the child, given the findings that he had perpetrated violence against the mother. His Honour referred specifically to the issue of role modelling at paragraph 190 of the judgment and said:
The father has presented a picture of dedication and love to the child, but drug use, or family violence, even in the first year of the child’s life, which the father denies but the mother alleges, is neither a good role model, nor conducive of proper mothering which the child needs or the peace that the child needs and it seems to me that children need that area of protection that a family should provide for them. (paragraph 190)
As noted above, the trial Judge found that the father posed no present risk to the child. His Honour had regard to the fact that he is in a stable, non-violent relationship and has a young child with his partner. In our view, his Honour was entitled to conclude that the father’s past violence to the mother did not necessarily lead to the conclusion that he is currently a poor role model for his daughter.
On behalf of the mother it was submitted that the trial Judge failed to consider that the father did not acknowledge that he had acted inappropriately toward the mother. It was suggested that, therefore, the Court could not be satisfied that he would be likely to change his behaviour.
In fact, his Honour noted in paragraph 129 that the father made a concession to the family consultant of limited past violence directed at the mother. The passage of the Family Consultant’s report to which his Honour referred was as follows:
….[Mr Walker] dismissed [Ms Cameron’s] allegations of violence and drug taking and claimed that “they were things that happened in the past…that I regret…a long time ago”. He claimed that [Ms Cameron] and he used to take drugs together and that she initiated violent [sic] towards him. [Mr Walker] said that although she was “never a physical threat”, he was accustomed to hit back when she hit him, a reaction he claimed that he developed growing up in a household with an extremely abusive father. … (report of the Family Consultant, 4 October 2006, paragraph 16)
It should be noted that Mr Walker denied that he grew up in a household with an abusive father and that he cross-examined the Family Consultant to that effect. In our view, this dispute does not detract from his account to her of drug taking and mutually aggressive behaviour by the parties during their relationship.
It thus seems to us that his Honour’s treatment of the serious issue of family violence was comprehensive and the findings made were open on the available evidence.We see no substance to these grounds of appeal.
Ground 3(c)
(3) His Honour erred by failing to:-
…
(c) follow in form or spirit the Courts [sic] own Best Practice Management Guidelines for matters relating to domestic violence.
The title of the document to which this ground refers is Best Practice Principles for use in Parenting Disputes when Family Violence or Abuse is Alleged (“the Best Practice Principles”).This publication, which was launched by the Honourable Chief Justice Bryant and the Attorney-General, the Honourable Robert McClelland MP on 6 March 2009, demonstrates the seriousness with which the Family Court of Australia treats allegations of family violence.
It is significant to note that the word “guidelines” appears nowhere in this document, for the very good reason that its contents are in no way intended to fetter judicial discretion and could never have that effect. It is notable that the mother’s submissions drew attention only to those Best Practice Principles which favoured her case and ignored those which would not have assisted her. For example, the Principles suggest that a judicial officer may “wish to consider”:
(iii)Where findings have been made against a parent and that parent seeks an order to spend time with a child
…
· the potential detriment to the child arising from the Court ordering that the child have limited or no contact with the parent against whom findings have been made, including but not limited to:
- deprivation of a relationship with that parent;
- the loss of opportunity to know that parent first-hand;
- the loss of opportunity to know grandparents and other relatives on that parent’s side of the family;
- the loss of that parent if the child has a positive and meaningful relationship;
- the loss of the opportunity for that parent to provide positive and supportive contact;
- the absence of the opportunity for any repair to the relationships or to the harm done; and
- the lessening of the likelihood of the child being able to get in touch and/or form a relationship with the parent at a later stage. (Best Practice Principles, p 9-10)
It cannot be an appealable error that his Honour did not use the Best Practice Principles as a checklist or framework for his consideration of the issue of family violence. The very language of the document makes it clear that the Principles are intended only as a voluntary source of assistance to judicial officers, not as a fetter to their discretion.
Ground 4
His Honour erred in applying authorities such as “In Re F” so as to provide the Father with a positive advantage in the running of the case, or alternatively be seen to be giving the Father a positive advantage.
The first complaint pursuant to this ground concerned “advice” given to the father by the trial Judge in relation to his application that the mother be restrained from using the surname “Brown” for the child. The second complaint was that the trial Judge “was being overly protective of the unrepresented Father” in rejecting the mother’s application to give evidence by video link. In his oral submissions, counsel for the mother said “the name change issue really is the hub of this argument”.We have already considered the mother’s complaints in relation to the trial Judge’s treatment of her application to give evidence by video link.
The mother complained that the trial Judge’s advice to the father about a possible application in relation to the child’s surname exceeded appropriate limits prescribed by authorities such as Re F: Litigants in Person Guidelines (2001) FLC 93-072. We will not recite all of these guidelines, which are well known, but will refer only to number 9 (at 88,279):
Where the interests of justice in the circumstances of the case require it, a judge may:
· draw attention to the law applied by the Court in determining issues before it;
· question witnesses;
· identify applications or submissions which ought to be put to the Court;
· suggest procedural steps that may be taken by a party;
· clarify the particulars of the orders sought by a litigant in person or the bases for such orders.
The above list in not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.
The father sought no order in relation to the child’s surname in his amended response filed on 3 October 2006, most probably because he saw no necessity to do so at that time. His cross-examination of the mother strongly suggested that he had no previous knowledge that she had enrolled the child at preschool as “[T Brown]” at the beginning of 2009.
During the cross-examination on 29 July 2009, the trial Judge asked questions of the mother when she said that the child was known as “[T Brown]” at preschool. It was established that she had enrolled the child as “[Brown]” at the beginning of 2009 and did not consult the father at all. At that point, his Honour said:
Well, I’m look [sic] at your application[Mr Walker], but I have to advise you that you have every right to ask for an order that the child bear your surname and also an order that no-one else use any other surname.
and then:
Whether you follow that advice or not is a matter for you, as you’re self-represented, I don’t think – I think I am bound to advise you that you can seek relief from that if you wish to.
The written submissions of counsel for the ICL note that at the end of the trial the father submitted a Minute of Orders which he sought, including “that the child’s name remain [T Walker]”. The ICL’s Minute sought an order that: “[e]ach party is restrained from using any other surname for [T] other than [Walker-Brown]” (ICL’s submissions, p 10).His Honour made the order proposed by the ICL.
Counsel for the ICL cross-examined the Family Consultant as to whether his proposal for a hyphenated surname would be in the child’s best interests and elicited her support for that proposition. Counsel for the mother then successfully applied to “ask a couple of questions about this document”, meaning the Minute of Orders sought by the ICL. He put no questions to the Family Consultant to challenge her support for the ICL’s proposal for a hyphenated surname.
There was no objection by the mother to these applications being made by the father and the ICL. There was no objection by the mother to the advice provided to the father by his Honour. We detect no procedural unfairness to the mother in the process which resulted in the making of this order.
It should be noted that counsel for the mother indicated specifically that he made no submission of actual or apprehended bias on the part of the trial Judge. Even without this concession, we could discern no bias or any basis for objective perception of bias on the part of his Honour.
A unilateral change by a parent to a child’s surname is a very significant matter relating to his or her welfare. It seems to us that the interests of justice required that his Honour inform the father that it was open to him to make an application to rectify that situation. One of the guidelines in Re F: Litigants in Person Guidelines specifically states that a judge may “identify applications … which ought to be put to the Court”.
We do not accept that the assistance provided to the father as self-represented litigant exceeded proper limits or was inappropriate in any other way. We see no substance to this ground of appeal.
Ground 5
To the extent that the Orders appealed from conflicted with Apprehended Violence Orders, such matters were neither explained nor dealt with in accordance with the Act and in finding at 182 that without Law “It is my belief that the Orders of the Family Court override those”.
Section 68P of the Act outlines the obligations of the Court making an order or granting an injunction under the Act that is inconsistent with an existing family violence order. Section 68P relevantly provides:
(1)This section applies if:
(a)a court:
(i) makes a parenting order that provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with a child; or
(ii) makes a recovery order (as defined in section 67Q) or any other order under this Act that expressly or impliedly requires or authorises a person to spend time with a child; or
(iii) grants an injunction under section 68B or 114 that expressly or impliedly requires or authorises a person to spend time with a child; and
(b)the order made or injunction granted is inconsistent with an existing family violence order.
(2)The court must, to the extent to which the order or injunction provides for the child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child:
(a)specify in the order or injunction that it is inconsistent with an existing family violence order; and
(b)give a detailed explanation in the order or injunction of how the contact that it provides for is to take place; and
(c)explain (or arrange for someone else to explain) the order or injunction to:
(i) the applicant and respondent in the proceedings for the order or injunction; and
(ii) the person against whom the family violence order is directed (if that person is not the applicant or respondent); and
(iii) the person protected by the family violence order (if that person is not the applicant or respondent); and
(d)include (or arrange to be included) in the explanation, in language those persons are likely to readily understand:
(i) the purpose of the order or injunction; and
(ii) the obligations created by the order or injunction, including how the contact that it provides for is to take place; and
(iii) the consequences that may follow if a person fails to comply with the order or injunction; and
(iv) the court’s reasons for making an order or granting an injunction that is inconsistent with a family violence order; and
(v) the circumstances in which a person may apply for variation or revocation of the order or injunction.
(3)As soon as practicable after making the order or granting the injunction (and no later than 14 days after making or granting it), the court must give a copy to:
(a)the applicant and respondent in the proceedings for the order or injunction; and
(b)the person against whom the family violence order is directed (if that person is not the applicant or respondent); and
(c)the person protected by the family violence order (if that person is not the applicant or respondent); and
(d)the Registrar, Principal Officer or other appropriate officer of the court that last made or varied the family violence order; and
(e)the Commissioner or head (however described) of the police force of the State or Territory in which the person protected by the family violence order resides; and
(f)a child welfare officer in relation to the State or Territory in which the person protected by the family violence order resides.
(4)Failure to comply with this section does not affect the validity of the order or injunction.
It is correct that the requirements of s 68P(2) of the Act were not fulfilled because the orders for T to spend time with the father failed to specify inconsistency with operative apprehended violence orders.
The submissions on behalf of the mother did not indicate how this fact assisted her appeal.
It seems to us that the mother can derive no comfort in her appeal from this failure, in light of the provisions of s 68P(4) of the Act.That provision is a complete answer to this ground of appeal.
Ground 6
Order 10 was made in the absence of any evidence.
This ground was argued before us on the basis that his Honour gave no reasons as to why he thought it appropriate to make this order.
Both the father and the ICL sought orders to restrain one party from seeking the issue of a passport for the child without the prior written consent of the other party or an order of the Court. The mother made no proposal in relation to a passport for the child.
The trial Judge ordered that “[e]ach party is restrained from seeking the issue of a passport for [T] without the prior written consent of the other party or order of the Court”.It is true that the judgment provides no reasons why his Honour made this order. It did not appear that there was any evidence in relation to this issue.
The most that can be said is that the mother was on clear notice that the father and the ICL sought this order before her counsel made his final submissions. Unfortunately we do not have those submissions so we are unaware whether her counsel raised any objection to the proposed order.
We accept that there is substance to this ground of appeal. There are simply no reasons in the judgment as to why this order was made.
Ground 7
His Honour erred (at paragraph 198 of the Reasons for Judgment and elsewhere) to properly consider S.60CC(4)(c) [sic]
Our analysis of the trial Judge’s reasons demonstrates that his Honour directed himself to have regard to s 60CC(4) of the Act. Paragraphs 197 and 198 of the judgment indicate that his Honour was aware of the father’s failure to provide financial support for the child.
The complaint in the written submissions on behalf of the mother was that the trial Judge failed to “adequately consider” the father’s failure to fulfil his obligation to provide financial support for the child. In oral argument counsel for the mother conceded “I mean, I suppose all he has got to do is consider it”.
There was no submission as to how the trial Judge should have considered the father’s lack of financial support for the child or what consequences were said to flow from his alleged failure to do so “adequately”. His Honour clearly noted in his reasons the fact the father’s earnings had been disclosed and contact could be made with the Child Support Agency.We see no substance to this ground of appeal.
Ground 9
His Honour erred (at paragraph 187 of the Reasons for Judgment and elsewhere) in making findings as to the Father’s capacity to care for the child not from the evidence but from the manner that His Honour perceived the Father conducted the trial as advocate for himself.
It is important to note the context in which the trial Judge had regard to his favourable impression of the father’s ability to conduct a lengthy trial, as an indication of his capacity to provide for the emotional and intellectual needs of the child. His Honour said:
As for the intellectual needs then it seems to me that the mother is well capable of parenting the child and the father, if I accept the description of him by the maternal grandmother and my observations of him, has sufficient emotional control and intellectual capacity to run a 10-day court case unaided here, is well able to provide for the child emotionally and intellectually. (paragraph 187)
It is likely that his Honour referred to the maternal grandfather’s description of the father as displaying “the patience of Job” with the mother, as the maternal grandmother did not describe him in any way at all. It seems to us that the trial Judge was entitled to take into account this evidence, in conjunction with his own observations of the father’s demeanour during a long trial, in forming a view of his patience and intellectual capacity (see SS & AH [2010] FamCAFC 13).
There was additional evidence which indicated that the father has the capacity to meet the child’s emotional needs, most notably the contents of the notes made by the contact centre staff. In our opinion, this ground of appeal lacks substance.
Conclusion
We thus conclude that the appeal must succeed in relation to ground 6 only and should otherwise be dismissed. As there was no evidence before us on this issue it will regrettably have to be remitted for rehearing if it is still a matter of real contention between the parties.
Costs
The mother succeeded only on a minor aspect of her appeal. Legal aid funds were expended to allow the ICL to resist the appeal, which could have been applied to assist other applicants for that limited resource.
The father sought an unquantified sum for what he described as “personal costs”. The father was self represented before us. He failed to file any outline of argument in accordance with the procedural orders made on 25 February 2010. We have little information about his financial circumstances save that he was in employment at the date of the trial but was not paying child support. Having regard to these circumstances we do not propose to depart from s 117(1) and make an order that the mother pay the father’s costs.
Counsel for the mother conceded that she should incur a costs order, if her appeal was unsuccessful. Essentially, the appeal was dismissed and it is our view that the mother should pay the costs of the ICL.
I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 7 September 2010.
Associate:
Date: 7 September 2010
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