Cape and Cape (No 2)
[2013] FamCAFC 178
FAMILY COURT OF AUSTRALIA
| CAPE & CAPE (NO. 2) | [2013] FamCAFC 178 |
| FAMILY LAW – APPEAL – CHILDREN – INTERNATIONAL RELOCATION – Appeal from a Judge allowing the mother to relocate the child of the marriage to Germany – Where it is asserted the trial Judge should have appointed a second single expert – Where there were already four experts involved – Application for appointment of second single expert only made shortly before trial, allied with an application to vacate the trial – Child exhibiting increasing levels of anxiety – Delay associated with obtaining further expert evidence would be contrary to the child’s bests interests – Where it is asserted the trial Judge did not consider the benefit of a meaningful relationship with the father – The trial Judge properly considered the benefit of a meaningful relationship with the father but considered the rebuilding of the child’s relationship with the father could only commence when the litigation ended – Where it is asserted the trial Judge erred in her findings about the mother’s view of the child having a relationship with the father and about the mother’s accommodation and income – The trial Judge made findings open on the evidence – Where it is asserted the trial Judge failed to properly consider the evidence of the father’s witnesses – The trial Judge properly considered the evidence of all witnesses – No merit in the appeal. FAMILY LAW – APPLICATION IN AN APPEAL – STAY – Where the father had made an application for special leave to appeal to the High Court against an order of a Full Court made in an associated appeal – Stay sought only pending determination of the primary appeal – As the primary appeal was dismissed, the application for a stay should be dismissed. |
| Family Law Act 1975 (Cth) Cape & Cape (2013) FLC 93-549 |
| APPELLANT: | Mr Cape |
| RESPONDENT: | Mrs Cape |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Western Australia |
| FILE NUMBER: | PTW | 3762 | of | 2011 |
| APPEAL NUMBER: | WA | 12 | of | 2013 |
| WA | 18 | of | 2013 |
| DATE DELIVERED: | 13 November 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Bryant CJ, Thackray and Walters JJ |
| HEARING DATE: | 28 and 29 October 2013 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 11 April 2013 |
| LOWER COURT MNC: | [2013] FCWA 35 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Jones (WA 12 of 2013) Mr Cape(WA 18 of 2013) |
| COUNSEL FOR THE RESPONDENT: | Mr Rynne |
| SOLICITOR FOR THE RESPONDENT: | GG Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Cohen |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid WA |
Orders
WA 12 of 2013
Orders made 28 October 2013
The Appellant have leave to rely on the amended grounds of appeal, summary of argument and list of authorities filed on 9 October 2013.
The affidavit of Andrew Mackey filed on 21 October 2013 be received as further evidence in the appeal.
Orders made 29 October 2013
The appeal against the orders of the Honourable Justice Crisford made on 11 April 2013 be dismissed.
All other applications in the appeal be dismissed.
There be no order as to costs.
WA 18 of 2013
The application of 4 September 2013 for a stay of the operation of the orders made by the Full Court on 2 August 2013 be dismissed.
All other applications in the appeal be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cape & Cape (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 12 & 18 of 2013
File Number: PTW 3762 of 2011
| Mr Cape |
Appellant
And
| Mrs Cape |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Cape appealed against orders made on 11 April 2013 permitting Mrs Cape to relocate to Germany with their only child, now aged 11 years.
On 29 October 2013, we dismissed the appeal along with an application for a stay of orders made by another Full Court in a related appeal, now the subject of an application to the High Court for special leave.
Given what we considered was the need for an urgent resolution, we gave our decision on the basis that reasons would follow later. These are our reasons.
Brief background
The father was born in England, but has lived in Australia since 1987. The mother was born in Germany, but came to Australia in 1999, after meeting the father in Germany in 1997.
The father’s family reside in the UK and the mother’s family reside in Germany.
The mother and father lived together in Alice Springs prior to their marriage in August 2002. Their child, D Cape (“the child), was born in September 2002.
The father’s work often took him away from home. He conceded he was absent about half the time after the family moved to Perth in 2007.
In October 2009, the child contracted a skin condition, which resulted in him being hospitalised on a couple of occasions.
In May 2010, the mother took the child to Germany. She did so with the father’s consent, on the understanding she would return in early 2011. The trial Judge found that the child’s skin condition was one reason for the trip. The mother also said she needed a break from the strain of the problems in the marriage.
The father visited Germany in September 2010, when the mother made known she did not want to return to Australia. The father made further trips and, on one occasion, the mother took the child to the UK to visit him and his family.
The father returned to Europe in April 2011. During his stay, he took the child to visit his family in the UK; however, instead of returning the boy to Germany, the father brought him back to Australia without the mother’s knowledge.
The mother visited the child in Australia in August 2011. She came back later in the year around the time of the hearing of an application under the Hague Child Abduction Convention for the child’s return to Germany. This application had been commenced after the father’s removal of the child from the mother’s care.
On 2 November 2011, the Hague Convention application was dismissed on the basis that the child’s removal was not wrongful within the meaning of the Convention because he was not habitually resident in Germany at the time.
On 29 November 2011, the mother filed proceedings in the Family Court of Western Australia, seeking permission to relocate to Germany with the child within two months. She also sought orders for property settlement.
The proceedings were managed by the late Justice Martin, but were assigned to Crisford J a few weeks before the trial, which commenced in September 2012.
After four days of hearing, the trial was adjourned part-heard. It was completed over nine days in November 2012 and February 2013.
The primary orders the subject of the appeal
On 11 April 2013, Crisford J delivered judgment and made the orders which are the subject of this appeal (“the primary orders”).
Although the father challenges only the first three of the primary orders, we will set out others which have relevance to the appeal:
1. The child … live with the mother …
2. The mother have sole parental responsibility for [the child].
3.The mother be permitted to relocate to Germany with [the child] and, until further order, not later than six months from the date of these orders.
4. Prior to any relocation, [the child], the mother and the father … are to attend upon Mr [C], or such other therapist as recommended by Mr [C], in order to strengthen the relationship between [the child] and the father.
5.Any contact between the father and [the child] prior to the relocation is to take place as recommended by Mr [C], or such other therapist as recommended by Mr [C].
6.The mother is to undertake personal counselling as recommended by the Independent Children’s Lawyer in consultation with Mr [C] to address issues raised about her relationship with [the child].
7.The father is to continue to attend upon Dr [W] as recommended by Dr [W]
8.The definition of the time [the child] is to spend with the father and his communication with him after relocation to be adjourned until prior to the date set for such relocation.
The appeals and applications for stays
On 8 May 2013, the father instituted his appeal (WA 12 of 2013) against the primary orders.
On 6 June 2013, the father applied for a stay of the primary orders.
On 5 July 2013, Crisford J dismissed the application for a stay. She did so after viewing a report from Mr C (the psychologist referred to in the primary orders), who said “the safest option … appears to be that [the child] should return to Germany”.
At the same time, her Honour gave the mother permission to take the child to Germany later that month, provided she executed an undertaking to return him if the father’s appeal was successful.
The father then appealed against these orders (WA 18 of 2013), but on 2 August 2013 another Full Court held that Crisford J was right to have refused the stay and agreed it was in the child’s best interests “to be able to go to Germany with his mother as soon as possible”. Cape & Cape (2013) FLC 93-549 at [74].
Although the other Full Court formally allowed the appeal in WA 18 of 2013, it did so only to make an alternative form of orders to secure the child’s return to Australia in the event the appeal against the primary orders succeeded.
On 13 August 2013, consent orders were made in the Family Court of Western Australia for the child to spend time with the father, commencing in December 2013. These orders envisaged the child having time with the father in Australia during school holidays, after introductory periods in Germany and the UK.
On 13 August 2013, the Independent Children’s Lawyer spoke with the child and informed him he would be returning to Germany shortly. The Independent Children’s Lawyer wrote to both parents informing them of the child’s reaction. In our view the content of the letter is of significance and part of it is repeated below:
[The child] was totally taken by surprise and asked me several times if I was telling him the truth. He expressed feeling speechless, he was so surprised that he was able to go. [The child] told me he was very, very happy about that and he can hardly believe that it will actually happen. I assured him that once some technical things were taken care of that he would be able to go.
I then spoke with [the child] about meeting with his father at Sci-tech.
[The child] said he would be willing to meet with his father at Sci-tech once he knows that he is definitely going to Germany and knows when he is leaving. [The child] informed me that if it is 100% positive that he is going to Germany then he will feel ok about seeing his father. [The child] does not want to have the meeting until he knows when he is leaving for Germany and would only agree to the meeting on this basis.
I told [the child] that I would communicate to his mum and his dad his wish to have a meeting with his father at Sci tech only when the plane tickets have been booked and it is certain that he will be going to Germany.
On 30 August 2013, the father filed an application in the High Court seeking leave to appeal against the orders made on 2 August 2013 in WA 18 of 2013.
On 4 September 2013, the father applied for a stay of the orders made on 2 August 2013. The application was listed on 1 October 2013 before the Full Court which had made those orders, but was adjourned for hearing at the same time as the appeal against the primary orders. An interim stay was granted to ensure the child remained in Australia until the hearing listed later that month.
The appeal against the primary orders came before us on 28 and 29 October 2013. At that time, the father’s application for leave to appeal to the High Court against the orders of 2 August 2013 had not been determined.
Further evidence in the appeal
The father had counsel at the hearing of the appeal against the primary orders, but represented himself in seeking a stay of the orders in WA 18 of 2013.
Although the father filed four affidavits, annexing a plethora of documents, his counsel did not seek to rely on them as evidence in the appeal. Counsel made it known that the father did not concur in this approach, but examination of the documents shows that counsel’s decision was a wise one.
We did admit, as further evidence, an affidavit of the Independent Children’s Lawyer, which included reports from Mr C and the letter from the Independent Children’s Lawyer detailing her conversation with the child, in which the boy had been assured he was going back to Germany.
The grounds of appeal
The father advanced six grounds of appeal, but conceded the last was merely a summation of the others. It therefore does not require separate consideration.
Ground 1 – Failure to appoint a second single expert
This ground asserts that the trial Judge erred in failing to appoint a second single expert witness.
Consideration of the complaint requires a more detailed understanding of the difficult background, including the involvement of four experts.
Background relevant to Ground 1
After resolution of the Hague Convention proceedings on 2 November 2011, the child continued to reside with the father, but spent time with the mother. He was then in the exclusive care of the mother between 8 December 2011 and 10 January 2012. The parties then reached an agreement for the child to live with them in a week-about arrangement, which continued until late May 2012.
On 16 January 2012, the parties told a Family Consultant they had agreed on a week-about regime, pending the next hearing on 30 January 2012. The consultant recommended they consider appointing a single expert to ascertain the child’s views. The parents accepted this advice, but as the father would not contribute to the expense, the mother agreed to meet the entire cost.
Martin J presided at the hearing on 30 January 2012. Her Honour immediately placed the matter in the April 2012 callover, with priority. Her orders did not expressly mandate the week-about arrangement, but assumed its existence.
On 1 March 2012, Martin J appointed Dr M, as a single expert witness. The father had proposed a different expert, although his counsel did concede that Dr M was “suitably qualified”. The father wanted his preferred expert because he was thought to be more readily available (and cheaper). In agitating for his expert, the father’s counsel forcefully submitted that delay was contrary to the child’s best interests, observing that “it was always envisaged … that we would get to trial in June [2012]”.(Transcript 1 March 2012, pp 10, 13).
In light of these submissions, Dr M’s appointment was made subject to confirmation that his report would be available by no later than 18 May 2012. His report was duly provided to the court on 15 May 2012, accompanied by a letter, drawing attention to this paragraph in the report:
146.Whilst I stated above that there is no evidence the father has physically abused [the child], the father’s personality style I identified is a style that leads to unpredictable behaviour. Further, when people with the psychopathic style are exposed, they become depressed and angry and can do considerable harm to themselves or others. In the extreme this harm can extend to homicide and suicide. In the context of the Family Court and the exposure the father must now feel from this psychological examination, I believe it prudent to take a conservative approach and err on the side of putting in as many mechanisms as possible to protect [the child] and the father until such time as the Court can be assured that both are safe. It is for reason [sic] that I have spoken to the head of the Family Court Counselling Service and made the request of the Court that:
a.This report be released only to the parents in the presence of a Family Court Counsellor.
b.This report is to be read by the parents in the presence of a Family Court Counsellor.
c.The Family Court Counsellor assesses and monitors the father and if considered necessary [the child] for any signs that [the child] will be harmed or that the father will harm himself.
d.The report is released only during the week that [the child] is in the care of the mother.
e.Should the father react in any manner which might suggest he will either emotionally or physically harm [the child], the urgent orders be issued that [the child] is to only see his father under the strictest supervision and/or that [the child] not see his father until the father can demonstrate that he had received treatment and that [the child] will be safe in his care. Even at this time, I would still advise that [the child’s] contact with his father be supervised until the Court is completely satisfied that [the child] is safe in the care of his father.
The report was given to the parties at a meeting with a Family Consultant on 21 May 2012. The mother told the consultant that, based on Dr M’s recommendations, she would apply urgently to vary the week-about regime. She thereafter retained the child in her care and kept him home from school.
The mother’s application came before Martin J on 29 May 2012, when her Honour ordered her to return the child to school and also made an order for the appointment of an Independent Children’s Lawyer.
On the day of the hearing, the father filed a response, together with an extensive affidavit critiquing Dr M’s report. The response sought that Dr M be “dismissed” as the Single Expert and also sought (Order 11) that the father “be permitted to engage one or more expert witnesses”.
In the course of the hearing, Martin J said to the father:
We’ve started down this difficult path because you didn’t want Dr [M] appointed in the first place … Then things got (indistinct) in making those appointments, it was, you know, it was always a disaster. There was no way, having made my determination that Dr [M] was going to be the expert, for what I considered to be good reasons, that I was going to change that because, to put it very bluntly, you started off being uncooperative … (Transcript 29 May 2012, p 16)
After hearing the father’s complaints about Dr M, her Honour said:
There are issues here, there are real issues and this is dealt with usually through critiquing. It may be in these circumstances another expert will have to be appointed, I accept all that, it’s not going to happen today. (Transcript 29 May 2012, p 17)
On 31 May 2012, the mother filed an amended application proposing that the father spend supervised time with the child. On the same day, the father filed a further application in which he sought, inter alia, that:
Copies of Dr [M’s] tests and tests results be made available for inspection by an Expert selected by the Respondent Father.
In his affidavit in support, the father explained why he considered it was imperative he be permitted to obtain additional expert evidence.
The matter was before Martin J again on 1 June 2012, at which time her Honour ordered that the father’s time with the child be supervised. This outcome was supported by the Independent Children’s Lawyer.
During the hearing on 1 June 2012, the father urged Martin J to deal with his recently filed application concerning further expert evidence; however, her Honour explained she was dealing only with the “immediate issue” – i.e. arrangements for the next two weeks (Transcript 1 June 2012, p 14).
In the course of the father’s protestations, the following exchange occurred (in this and later extracts from transcript we have added our own emphasis, and have generally not corrected what appear to be transcription errors):
HER HONOUR. So – but as far as obtaining a critique, yes, you will be able to obtain a critique of the report. I would have no concerns about you making available the report to Dr [W] if you wish immediately. You may wish to involve Dr [W] as a possible critiquer.
[CAPE, MR]: He doesn’t ‑ ‑ ‑
HER HONOUR: But there’s an issue of the therapeutic relationship and – if you want to continue therapy, you need to discuss with him, so – and you may want to make further inquiries. But I have no problems, though, about you a copy of the report to Dr [W], because I think you should probably talk to him about issues involving – in relation to you, because it’s obviously of very grave concern to you and understandably so.
So – so beyond that, I don’t think there’s any urgency in the matter except to indicate to you that I would have no problems if you engaged an expert, whoever you might choose, to further critique the report, because that’s what will happen down the track.
[CAPE, MR]: No. But we need a bit more than that, your Honour. We actually need at this stage the – the – the single expert witness has proved themself, beyond any reasonable doubt, not to be a single expert witness, and ‑ ‑ ‑
HER HONOUR: Well, that’s your view.
[CAPE, MR]: Absolutely. But I believe there’s evidence to support it, your Honour, once the evidence is tested. And under these circumstances I need to be, and I – I refer you to my response to – which is the best one to refer you to – do you need to make an order first about the issue of care before we move on to the other orders. Would that be appropriate, your Honour?
HER HONOUR: Well, there’s not much opportunity to make other orders because there’s no urgency about them. I’ve already indicated to you, to the extent that it is urgent, I am prepared for you to get underway with these other issues. But beyond that I don’t think there is anything urgent.
[CAPE, MR]: I believe it’s absolutely urgent that I – that – that all the evidence from all the material from Dr [M] be available, that I also be allowed to appoint an expert witness of my own.
HER HONOUR: Well you need to come forward with a person if there’s any concern about this and make some enquiries.
[CAPE, MR]: Well, can I – we have – we have the original expert witness who would be available so if I can refer to order number 11 of my response to an application in a case filed on – or handed up in court – on 29 May, where I request that the respondent father be permitted to engage one or more expert witnesses, and under the circumstances I think that’s absolutely ‑ ‑ ‑
HER HONOUR: And how are you going to pay for this expert?
[CAPE, MR]: I have no idea. My parents are willing to sell their house. It’s difficult to fund a zero dollar legal case against a $100,000 one, your Honour, but obviously there comes a point where you have to – have to do something. So – so I would – I would request that order number 11 of my response be granted, that the respondent father be permitted to engage one or more expert witnesses. I would also, if – I don’t know how to do it – shall we – may I deal with that one for the moment?
HER HONOUR: I need more information as to what you propose.
[CAPE, DR]: Well, we have Dr [L], who was originally available.
HER HONOUR: Well then we need to know about what his availability is etcetera. So – I’m not going to deal with it now [Mr Cape]. It doesn’t have to be dealt with now … (Transcript 1 June 2012, pp 15 - 17)
The father returned to the issue later in the hearing. Once again, Martin J said she needed “firm proposals” about the proposed expert. Her Honour noted that the trial was “imminent”, but said the issue the father was raising would be dealt with before the callover. (Transcript 1 June 2012, p 19 and following)
For reasons not apparent to us, the matter had not been allocated a trial date in the April callover but, on 14 June 2012, Martin J directed that it be placed in the July 2012 callover, again giving the matter priority.
On 16 June 2012, the father commenced supervised visits. Thereafter it seems he had 10 visits prior to trial. The trial Judge found that, by the conclusion of the visits, the father’s relationship with the child had become “completely fractured”, to the extent it was “non-existent”, although her Honour also found that his prior relationship with the child was not as close as the father had claimed. (Reasons [45], [50] and [139])
At around the time the supervised visits started, the Independent Children’s Lawyer had referred the child to see Mr C, another clinical psychologist, for what the trial Judge later described as “possible assistance to cope with his current situation”. The child first saw Mr C on 20 June 2012 and thereafter met with him on six occasions.
In the meantime, the father had been seeing Dr W, to whom he had been referred by his GP under a “mental health plan” following publication of Dr M’s report. Dr W is a highly experienced forensic psychologist, but on this occasion was engaged in a clinical capacity.
On 19 June 2012, Dr W informed the Independent Children’s Lawyer that:
after six sessions with the father, he could find no evidence of the father being a psychopath or dangerous. He said he was intellectual and opinionated. He was distrusting of the process and verbose, but there was nothing more sinister. (Reasons at [62])
At yet another hearing on 20 June 2012, Martin J was informed that the mother’s solicitors had written to Professor G concerning his availability to act as a single expert. The mother’s counsel said Professor G had been approached:
simply to find out his availability and costs, because we anticipated that there might be further delays by the father not saying who he would use, or if he was available, so we simply took a step to have a proposal, if it came to it today, that we needed one (Transcript 20 June 2012, p 40).
At the same hearing, the Independent Children’s Lawyer acknowledged that one option was to engage “a psychiatrist to do a second report”, and she mentioned enquiries she had been making of three psychiatrists, including Professor G, concerning availability and cost. She indicated she would inform the parties when she had further information.
Martin J was also informed at this hearing of arrangements made for the family to see another psychologist, Mr R, for “family therapy”. This resulted in the making of an order in the following terms:
3.With the intention that the Respondent father’s time with [the child] may return to an unsupervised or not strictly supervised, basis by the second half of the July school holidays:
(a)as a matter of urgency the father, mother and [the child] as required by [Mr R] attend upon [Mr R] for family therapy.
(b) …
(c)The Independent Children’s Lawyer provide [Mr R] with copies of Dr [M’s] report and the associated audio tapes, Dr [W’s] critique of Dr [M’s] report and [Mr Cape’s] affidavits in which he provides his own critique of Dr [M’s] report.
On 20 June 2012, the father sought a stay of the order made on 1 June 2012 requiring his time with the child to be supervised. Martin J refused the stay for reasons she delivered on 3 July 2012. In those reasons, her Honour dealt with issues concerning Dr M. In doing so, she said:
18Unfortunately, it is an understatement to say that [Mr Cape] and Dr [M] did not hit it off and that there were disagreements about arranging appointment times, having regard to the proposed timetable for preparation of the report. As a result, Dr [M] took the extraordinary step of filing a lengthy affidavit in the proceedings, and attending court himself, in relation to the appointment arrangements. [Mr Cape] had even taken steps to report Dr [M] to his professional body, before the report had even been published.
…
31As I have indicated to the parties, while, on the evidence presently before me, I do not necessarily presently share many of Dr [M’s] concerns for [the child’s] physical safety, I am concerned that [the child] genuinely is very trepidatious about seeing his father on his own, at least in the short term, and feels very much subject to pressure from him.
32This is in accord with [the child’s] statements to the Independent Children’s Lawyer, and her submissions to me.
33In these circumstances, I am satisfied that [the child’s] time spent with his father should be supervised at least at this point, but as I have made clear from the terms of my orders of 20 June 2012, I am hopeful that the position can return to a less artificial and controlled arrangement in the very near future.
The matter was again before Martin J on 10 July 2012. During that hearing:
·the father continued to express concern about a trial date being allocated prior to resolution of the issue about the further expert;
·the Independent Children’s Lawyer noted there were already four experts, and said that while one option was to consider appointing a fifth, another option was to have a conference of the existing experts;
·the Independent Children’s Lawyer advised that she had given the father “the names of people over the east” who could undertake a critique of Dr M’s report and that this could happen in addition to the proposed conference of experts;
·the father expressed a strong preference for the appointment of a new single expert, rather than obtaining a critique. He said he understood the Independent Children’s Lawyer had been contacting people to act in this capacity (but he was corrected by the Independent Children’s Lawyer who said there “has been a misunderstanding”);
·Martin J said she would be “really concerned” about any suggestion that another single expert would interview the child, especially given the involvement of Mr C;
·Her Honour stressed that a further expert could not be appointed unless there was funding, and observed there was no indication the father had the money. Indeed, as the mother’s counsel reminded her Honour, the father had said at a recent hearing that he had no money, and could not even afford $300 to cover the initial costs of the proposed supervised visits. (Transcript 20 June 2012, p 15)
The proceedings on 10 July were adjourned, having been left on the basis that it was for the father to find the means of funding a further expert. Her Honour did, however, order a conference of the existing experts (which Legal Aid was prepared to fund). The order was in the following terms:
The experts, Mr [R], Mr [C], Dr [W] and Dr [M], be permitted to liaise with each other to discuss issues in relation to the welfare of [the child] it being expected that, prior to the trial of the proceedings, there be a formal conference of experts.
The matter was finally allocated a trial date at the callover on 20 July 2012. It was listed for five days, commencing on 17 September 2012.
The matter then came back before Martin J on 26 July 2012, which was seemingly the last time her Honour handled the case prior to her untimely death. We were not provided with a transcript of the proceedings, and the orders say nothing about the application for appointment of a further expert.
On 23 August 2012, less than one month before it was due to commence, the father filed an application seeking that the trial be vacated and the matter be included in the next callover for allocation of the first available trial date after November 2012. At the same time, the father filed an application seeking that Professor G be appointed as a single expert.
The father’s evidence in support of the appointment of Professor G was contained in two affidavits filed on the same day. In one, the father deposed:
82. I confirm I am agreeable to meeting the full fees of the Single Expert in this matter, at least on an Interim basis.
83. Notably, the Mother’s solicitors also enquired in June 2012 of Professor [G’s] availability to undertake a report for this matter.
84. Given the matter has been listed for Trial on 17 September 2012, I instructed my solicitors to make further enquiries of Professor [G] to determine when was the soonest he could conclude the report. Attached hereto and marked Annexure “E” is a copy of the correspondence from my solicitors to Professor [G] dated 3 August 2012, and a copy of his response dated 3 August 2012.
85. As per that email, Professor [G] confirms he would be able to complete a report by end of November 2012.
…
88. I request the appointment of Professor [G] over any other proposed expert for the following reasons:
(a) He has significant experience in the Family Court of Western Australia and his opinion is highly regarded. Attached and marked Annexure “G” is a copy of the correspondence from Professor [G] attaching his curriculum vitae.
(b) The mother specifically chose her Expert in the first instance with one of the main reasons considered by the Court being that she was meeting the costs. I am proposing to meet the costs of Professor [G];
(c) Professor [G] is available to complete the report in a relatively short time frame to ensure readiness before a trial later this year;
(d) It is imperative that a full and unbiased Expert report be made available for Trial to allow justice to be properly done.
The affidavit did not specify how the father was proposing to meet the cost of engaging Professor G. In any event, in his other affidavit promoting the appointment of Professor G, the father said:
7.Dr [W], who will be a witness at trial, has provided evidence that raises significant concerns about the finding of [the report of Dr [M]] as set out in the judgment of Justice Martin of 20 June 2012.
8.It is for this reason, and to ensure there is independent and unbiased expert evidence at trial that a further expert is seeking to be appointed now.
9.A fair trial cannot proceed in September 2012 as this will not allow time for the further foreshadowed report to be completed.
…
10.As set out above, I am seeking that a separate Single Expert Witness be appointed. I have proposed Professor [G] as the separate expert due to his experience and qualifications as a clinical professor of psychiatry. I believe his experience and qualifications are appropriate for the complexity of this matter, taking into account the existence of Dr [M’s] report. My interim application for the appointment of Professor [G] as a separate Single Expert Witness is currently pending before the Court.
(a) Professor [G] has confirmed that, if appointed, he is able to commence the interviews in September 2012 and expects to complete his report by November 2012.
(b) It would be prejudicial to my case if the matter proceeded to trial based on the current report by Dr [M], and without a separate, neutral expert being appointed and being given an opportunity to provide a separate expert opinion on the matter.
…
12.As it stands, Dr [M’s] Report is almost entirely opinion-based and presents few results, making it almost impossible to critique.
The father’s (very recently filed) application was mentioned during a hearing before Crisford J on 24 August 2012, but was adjourned, along with other applications, to the commencement of the trial listed for 17 September 2012.
We were not provided with a transcript of the hearing before Crisford J on 24 August 2012, nor were we provided with any reasons for decision; however, reference to the trial transcript reveals that her Honour refused to make an order vacating the trial.
The trial did not commence on 17 September 2012. It is unclear whether this was because the father had failed to file a trial affidavit. In any event, the matter commenced the following day. At the outset of the trial, counsel for the father informed the trial Judge that the father:
·was now able to hand up an affidavit dealing with parenting issues (this document, with attachments, ran to 260 pages);
·had not prepared a trial affidavit relating to financial issues;
·had failed to provide the required Papers for the Judge;
·did not have a Minute of Proposed Orders in relation to either the parenting or the financial issues;
·wished to rely upon witness affidavits that had not yet been filed. (Transcript 18 September 2012, p 4)
Counsel for the father then invited the trial Judge to deal with the application to vacate the trial and for the appointment of another single expert. In support of that application, counsel for the father handed up a further application and affidavit in support, although these were not in the appeal books. (Transcript 18 September 2012, p 8)
Before hearing further from counsel for the father, the trial Judge said:
HER HONOUR: … I think when I refused the leave to vacate on the last occasion, my view had been, at that stage at least, that should start the trial. Given the level of anxiety and stress that the child, and no doubt, the parties were experiencing, it seemed at least making a good start might get [you] somewhere along the road. And if it seemed to me there was further evidence required for whatever reason and from whatever source, that there need not be a part-heard trial. And that is still my view. Having read all the documents at great length now and understanding a little bit more or understanding how confusing it is for the parties, I would think, given the evidence, that is still my view. But I’m happy to hear from you and I will hear from the others. (Transcript 18 September 2012, p 9)
Her Honour first invited the Independent Children’s Lawyer to state her position about the application. After referring to concerns about the time available to complete the trial, the Independent Children’s Lawyer said:
So, I mean, I’m happy to proceed this week and then I was hoping that there might be a time quite quickly that it could come back again. As your Honour said, my concern is [the child’s] well being and I think I told to the court on the last occasion that the school had contacted me, raising concerns about his level of anxiety and that it’s rising daily. (Transcript 18 September 2012, p 9)
Counsel for the mother supported the position taken by the Independent Children’s Lawyer, saying:
RYNNE, MR: [Get] to the trial, your Honour. The level of anxiety in my client is just as bad as [the child’s] if not worse and also, on my instructions, her present place of residence becomes unavailable in early October. (Transcript 18 September 2012, p 12)
During further discussion, it became common ground that even if the trial started, it would not finish within the time allocated. After telling counsel for the father that “it’s likely we will start, Mr Jones, and give it the rest of this week”, the trial Judge invited counsel for the father to address the application for the trial to be vacated. (Transcript 18 September 2012, pp 10 and 11)
Without providing any of the details we have set out above, counsel for the father drew the trial Judge’s attention to the father’s agitation before Martin J of his request for a second single expert. He asserted there had not been “an independent and … unbiased assessment of the parties” and he also complained that the conference of experts had not yet taken place.
Later, in discussing the fact that the conference of experts had not occurred, the trial Judge said:
HER HONOUR: … It may not, I don’t know, but I was very much hoping to have some guidance from the collective conference to decide whether anything further was needed by way of expert evidence … (Transcript 18 September 2012, p 15)
In responding to this and other remarks about the conference of experts, counsel for the father said:
JONES, MR: Well, firstly, your Honour, I’m not sure whether a conference of experts is going to assist your Honour or even narrow the issues because each of the experts have looked at this from a different perspective, but we have Dr [W]. My friend called him an expert. He’s a psychologist. He’s a witness for [Mr Cape]. He’s a treating psychologist for [Mr Cape]. He’s had no involvement with [the child], so all he’s had is an involvement with [Mr Cape] and he can speak to [Mr Cape’s] personality.
Mr [M], or Dr [M], he’s the single expert witness and I accept there’s an issue of bias levelled against him. That’s a matter for cross-examination of the doctor and it may or may not be true. Mr [R], an ambivalent report, at best, that says, the outcome of my opinion may or may not depend upon whether Dr [M’s] true or not. And the statements there are true or not.
And, we then get Mr [C]. He doesn’t have much either, other than his personal view. So these experts are going to sit around, they’re going to hot-tub. They’re going to have a series of questions but my submission ultimately is none of them are in a position where they can properly confer. I mean usually one will get an expert and they all look at the same question and then the experts confer in respect to their differences and say well, we’ve spoken about our differences; we’ve all come from the same perspective; we’ve concurred and solved our differences. But in this case, they’ve all come from different perspectives, not the one that your Honour is on.
And they’re saying we’ve conferred about an issue that isn’t subject to our clinical examination and as a result of that, this is our conclusion. So the conference of experts has got more capacity at this stage to steer these proceedings in a different track to what is in the best interests of the children – of this particular child. Because these experts are going to take the role as experts and speak at no point about matters where they originally didn’t look at it from the initial context.
HER HONOUR: Well, look, I agree with that, but we’re not dealing with a conference of experts in relation to financial matters or to valuation issues where I think your arguments would be very strong. We’re dealing with a conference of experts in relation to a child, a troubled child which has been addressed on many levels, so I’m not so sure that there isn’t a value in it. I know they’re coming from different perspectives and even if you put aside the single expert’s report, there are still other issues that need to be addressed … (Transcript 18 September 2012, p 15)
Later, in the course of argument, counsel for the father said:
JONES, MR: I made mention, your Honour, in my submissions about why it was in a theoretical sense that it is important to [Mr Cape] for the conferral to have taken place prior to the commencement of the trial, so an issue raised probably even more front-and-centre than even Dr [M], for the wife, of course, is that she views [the child’s] father to be a psychopath. Now, we say, that the clinically Dr [M] should not have come to that view and we point in-part to how things got off to the wrong foot – on the wrong foot and I think those might have been the words of Martin J, but it may be, we think, that conferring about that aspect of a case, if, leaving aside all the other aspects, it may be that Dr [M] might be prepared, might be prepared, to take on board the greater experience and knowledge of [Mr Cape] that Dr [W] has and it may be that he might be prepared to ameliorate or change his view. If that’s the case, then it is still a live issue but it may well impact upon the way that I cross-examine the wife as to her view about her husband being a psychopath. (Transcript 18 September 2012, p 17)
After hearing further submissions, the trial Judge determined that she should at least commence the trial. In doing so she said:
HER HONOUR: Even after the conference of experts, I would have thought there’s a possibility there will be a further application to vacate, depending on the outcome.
YOUNG, MS: Yes.
HER HONOUR: So there – it might not make a difference ‑ ‑ ‑
YOUNG, MS: So we run the risk.
HER HONOUR: ‑ ‑ ‑ in any event. Would that be right, Mr Jones?
JONES, MR: Well, I don’t know about that. I would need to take some instructions.
HER HONOUR: Well, we don’t want to pre-empt anything, I suppose, anyway. (Transcript 18 September 2012, p 23)
The trial proper commenced on 19 September 2012 but, as anticipated, was adjourned part-heard, shortly prior to the conference of experts being convened. The trial was then scheduled to resume on 19 November 2012.
The matter came before Crisford J on 27 September 2012, to deal with where the mother and the child could live pending resumption of the trial. At the hearing, the Independent Children’s Lawyer advised that the experts had now conferred and that their report was expected to be released that day.
The following exchange then occurred:
HER HONOUR: Yes. Now, there is probably not a lot that I need to deal with in relation to that report, is there? I mean ‑ ‑ ‑
YOUNG, MS: Well, I don’t think so at this stage, your Honour. However, once the report has been released, I am going to propose a meeting. I was contacted yesterday again by the school psychologist to say [the child] has deteriorated even further. He is now almost unable to go into the classroom. The school psychologist is very, very, concerned for his mental state. And I was hoping that with the assistance of the statement from the conference of experts, we may have discussions and see if we can resolve matters for [the child’s] sake. (Transcript 27 September 2012, p 2)
Counsel for the mother then advised her Honour of the extreme lengths to which the mother had gone in finding accommodation. Counsel for the father also advised of the difficulty his client had been experiencing in obtaining alternative accommodation. In doing so, he said:
MR JONES: He hasn’t been able to come up with a property yet. He has been trying, but the market is very tight. He tells me that in relation to one property, there were 12 applicants for it. He’s not in a position to be able to say that there is accommodation available either for him, or indeed for the wife and [the child]. (Transcript 27 September 2012, p 3)
Having heard of the difficulties both parties were experiencing in finding suitable accommodation, her Honour suggested that the mother and the child might live in Germany pending resumption of the trial. This suggestion was taken up by the mother and the Independent Children’s Lawyer and her Honour ordered accordingly. (Transcript 27 September 2012, p 4 and following)
No attempt was made by the father’s counsel at this hearing to renew the application for the appointment of a second single expert, notwithstanding her Honour’s earlier advice she would be prepared to consider that issue again after the conference of experts. We recognise, however, that the report from the conference had not yet been published.
The report appears to have been made available shortly after the hearing on 27 September 2013. Not all of the report is relevant to Ground 1, but as it is relevant to other grounds it will be convenient to set it out in full at this point in our reasons. It will be observed that the report took the form of answers to questions that had been posed to the experts.
Question 1
Whether [Ms Cape] or [Mr Cape] pose a risk of any kind to [the child]?
1.1 The experts do not see any evidence which would suggest that [Mr Cape] is a physical risk to [the child].
1.2 The experts agree that the Single Expert Report was not intended to communicate that [Mr Cape] was a ‘psychopath’ and instead was designed to highlight patterns of behaviour which caused concern to the Single Expert Witness for [the child].
1.3 The experts agree that [Mr Cape] may pose an emotional risk to [the child]. It is agreed that [Mr Cape] has difficulty relating to [the child] on an emotional level.
1.4 The experts agree that [Ms Cape] may pose an emotional risk to [the child] by [the child] taking on a more adult role in their relationship to protect his mother and promote her emotional wellbeing. It is agreed this is a maladaptive dynamic due to [the child’s] age and stage of development, as [the child] should be individuating from his parents and this current situation with his mother will make it difficult for [the child] to do this, which is pivotal to his psychological development.
1.5 The experts agree that [the child] and his mother are particularly close and [the child] is very aware of his mother’s emotional state and current living/financial circumstances. [The child] finds himself in a very difficult position in having to support his mother and at the same time make a decision that he knows is against his father’s wishes.
If so, the nature and seriousness of the risk?
1.6 The experts are of the view that the interaction between the parents poses a serious risk to [the child’s] psychological development.
1.7 The experts acknowledge they were not being asked to look specifically at the issue of relocation but considered it difficult to ignore, as the psychological risks to [the child] are related to the outcome of the Family Court proceedings.
1.8 It is agreed that [Mr Cape] is capable of learning to be more reciprocal socially and emotionally to [the child] but there are likely to be limits to what can be achieved. These limits will impact on his capacity to fully understand [the child’s] emotional needs.
1.9 The experts agree that the sooner a decision can be made by the Court for [the child] the better. It is agreed that [the child] needs certainty.
The impact on his/her capacity to parent [the child] and meet his needs?
1.10 Please see above.
How time with that parent should be structured in the best interests of [the child].
1.11 In so far as the experts have knowledge of the mother’s psychological state and behaviours, the three experts who have been directly involved with the mother, are of the view that from a psychological perspective, [the child] would be better served living with his mother. Dr [W] is not in a position to offer an opinion on this point.
1.12 The experts’ opinion is that the Court needs to make a rapid decision about the relocation issue and once this matter has been determined, [the child’s] time with his father should be unsupervised and increased. To manage this process the experts suggest that [Mr C] recommend the rates of these changes when the time variables to be worked with are known.
1.13 Any change to the relationship between [Mr Cape] and [the child] until the court makes a determination is likely to increase [the child’s] negativity towards his father and be counter-productive due to the dynamics of the situation.
Question 2
Given the current estrangement between [the child] and his father, any recommendations/suggestions, which may assist [the child] and his father restore their relationship.
2.1 The experts are of the view that until the Court makes a determination it is unlikely that [the child] will be in a position to manage the relationship between his father and his mother. If [the child] is forced to have a relationship with his father at this stage it is likely to increase psychological distress and cause him more harm. This is likely to be counter-productive to [Mr Cape’s] desire to re-establish his relationship with [Dion] at present in that the more he pushes the more [the child] will pull away.
2.2 The experts are of the view that the status quo should remain until a legal decision is made.
Question 3
Given the current close alignment between [the child] and his mother, any recommendations/suggestions which may assist [the child] and his mother to develop firmer boundaries.
3.1 The experts are of the view that very little is likely to change between [the child] and his mother until a legal decision is made in relation to the relocation proceedings. The experts cannot identify anything that either [Ms Cape] or [the child] can do (including further therapeutic counselling) that will assist until the court proceedings have been resolved.
4 Closing Statement
4.1 The experts are not aware of any evidence, which would indicate that historically (pre parental separation) [the child] has suffered any significant maladaptive parenting. The current and significant issue is the family dynamic at present. The experts are of the view that [the child] is caught in the middle of intense conflict and is aligning with his mother. The experts agree that in this particular case, this alignment has arisen because the mother is a better “emotional fit” for [the child] and the mother’s behaviour is amplifying the alignment, which is reinforced by the conflict between the parents and the context within which the family system is forced to operate (being disputed relocation case).
4.2 The experts do not believe anything is likely to change for [the child] while the Family Court proceedings remain unresolved.
4.3 The experts jointly sign this document in agreement in so far as their roles within the case, and their knowledge of the different aspects, allows them to do so.
4.4 The experts acknowledge that their opinions are based on the assessments and interventions personally conducted, but also includes untested information in the form of affidavits and other reports. Therefore the opinions held are subject to change depending on how the court determines the evidences by cross examination.
It will be observed that the report from the experts makes no comment about the desirability of obtaining any further expert evidence.
No further application was made by the father to obtain additional expert evidence after publication of the report although, when the trial resumed in November 2012, his counsel asked Mr R:
JONES, MR: Now, Dr [R], have you identified as an issue the potential for the emotional risk that [Ms Cape] might pose to [the child] and given the, what I might term, the limited information that you had to actually understand that that was an issue, do you agree that for the court to better understand how strong that risk is, that there would need to be further inquiries in that regard? (Transcript 26 November 2012, pp 81-82)
Objection was taken to the question, but during submissions about this, the following exchange occurred:
JONES, MR: Yes. The issue has only been identified, I say, by Mr [R] in the last couple of months or so which, frankly, is a surprise. But, thankfully, it has been identified. But having identified that it’s an issue, we say the most important issue, does Mr [R] think that there’s enough information for the court to ‑ ‑ ‑
HER HONOUR: Well, he doesn’t know what the information before the court is, does he?
JONES, MR: Well, he knows that – what he knows is from his own observations and the information shared by the other experts with him.
HER HONOUR: Yes. And I know everything that [Mrs Cape] has had to say and everything that [Mr Cape] has had to say. I’ve heard Mr [C], I’ve heard – I’m going to hear from Mr – or is it Dr [M], Mr [M], and if I – if I’m in any doubt about that, I will adjourn the matter part heard to get that information or that evidence. But I’m not persuaded that it’s an appropriate question for this particular witness. (Transcript 26 November 2012, p 82)
We were not taken to transcript to show that counsel subsequently invited the trial Judge to revisit the appointment of another expert. Nevertheless, her Honour was alert to the father’s concern, and dealt with it in her reasons:
220 The father’s position is that there remains a lacuna in the evidence given the difficulties surrounding the Single Expert and his report. Rather than appoint a further Single Expert, I proceeded with the assistance of a combination of other experts and witnesses who had been involved with this family. To appoint a further Single Expert would have extended the proceedings almost indefinitely and I am satisfied relevant issues have been identified. There was a conference of experts which included the Single Expert, Dr [M]. That conference enabled the experts to sit down and discuss the issues that I must decide. There has been useful consensus.
Father’s submissions in support of Ground 1
Relying upon McCall & Clark (2009) FLC 93-405 for authority, counsel for the father submitted that “it is almost essential in international relocation cases with long-term consequences for a child for the impact of those consequences to be the subject of a competent expert report”.
Although acknowledging there was expert evidence before the trial Judge, counsel argued that none of this was forensic in nature, save for that of Dr M. He submitted that “we just don’t know what the state of the evidence would have been if there was proper exploration of this issue of enmeshment or alignment”.
The latter proposition was part of an overarching submission that Dr M’s report had derailed the proceedings into focussing on the father, with the result that there had been insufficient consideration of the possibility that “alienation” by the mother had led to the breakdown of the child’s relationship between the father.
Counsel for the father acknowledged that the preparation of a further expert report may have delayed a resolution but argued that:
issues need to be properly explored particularly in circumstances where the court has thought it appropriate enough to order a single expert witness in the first place. If the court thinks that’s important and it understands there are problems with that expert from an early stage, isn’t it incumbent upon the court and in the process that that be done properly?
Mother’s submissions in reply
Counsel for the mother, in addressing Ground 1:
·drew attention to the father’s delay in bringing an application for the appointment of a specific expert;
·stressed that all the experts considered the proceedings needed to be brought to a prompt conclusion;
·submitted that the matters about which the father wanted expert evidence were not abstract issues requiring an expert assessment, but rather required a “factual assessment of a particular scenario”, which was for the trial Judge to determine, not an expert;
·noted that while the father was now, in effect, saying that if the Single Expert had done his work properly, the father would have applied for different orders (i.e. by immersing the child in the care of the father, to the exclusion of the mother in order to deal with the effects of “alienation”), the fact was the father had agitated at trial for an equal shared care arrangement;
·submitted that the fact the trial Judge had ultimately decided not to rely upon Dr M’s report did not call for reconsideration of a “failed application” for appointment of a second expert, given that her Honour had carefully considered all of the evidence, including that from a “raft” of experts.
Submissions of the Independent Children’s Lawyer
In supporting the mother’s position in relation to Ground 1, counsel for the Independent Children’s Lawyer:
·took us to those parts of the record revealing the father’s delay in seeking appointment of a nominated expert;
·expressed the view that in cases where a child has rejected a parent, the trial should usually be expedited, since the “worst thing to happen in a case where a child is resisting contact with a parent is for there be a delay in the proceedings …”;
·submitted there was an abundance of evidence available to the trial Judge after 13 days of trial;
·conceded there was no forensic assessment, other than that of Dr M, but observed that the other experts had considerable forensic experience;
·supported the mother’s submission that we do not have “trial by expert”;
·rejected the submission that McCall & Clark (supra) mandated forensic expert evidence in every case.
Discussion of Ground 1
In providing our background to this complaint, we have referred at length to the proceedings before Martin J. In doing so, it should not be thought we have lost sight of the fact that the father’s appeal is against the orders of Crisford J, who assumed the conduct of the matter only a few weeks before the trial.
However, as will be seen above, it was not until a few weeks before trial that the father first brought a competent application for appointment of a second single expert. None of his earlier applications had identified an expert who was available, nor did they contain any proposal to cover the cost. These deficiencies had been pointed out by Martin J, but they were not sought to be remedied until almost the last minute.
The father’s application for a second single expert, when finally properly made, was allied with an application to vacate the September trial. This was sought on the basis that the case be given the first available trial date after November 2012, by which time it was hoped Professor G would have provided his report.
Although Professor G had said on 3 August 2012 that he could report by the end of November 2012, three weeks passed before the father brought the application for his appointment. There was no reason by that time to assume that Professor G could still report by the end of November. In any event, Crisford J, who was new to a complex matter, properly declined to consider the application until the commencement of the trial. The information concerning Professor G’s ability to report was, by then, six weeks out of date. It would therefore have been wrong to assume that the trial could have safely been listed to commence before the New Year.
Nor would it have been safe to assume, given the history, that preparation of the report would progress smoothly. By the end of the trial, Crisford J had a good understanding of the dynamics and personalities involved, and was therefore well placed to form her view that the appointment of a second single expert “would have extended the proceedings almost indefinitely”.
We can find no error in that assessment.
Nor can we find error in her Honour’s obvious concern about the effect of further delay on the child. As should be clear from the background above:
·the intention had been for the matter to go to trial in June 2012;
·both parties had earlier agitated for a prompt resolution, stressing the impact of delay on the best interests of the child;
·the Independent Children’s Lawyer had placed information before the court concerning what her Honour would later describe as “grave concerns about the mental state of [the child] arising, in the main, from the unresolved court proceedings” (Reasons at [6]);
·the experts were united in their view that the “sooner a decision can be made by the Court for [the child] the better”. Although that view was not published until shortly after the completion of the first tranche of the trial, it confirmed the soundness of her Honour’s decision to proceed.
It is important also to recognise that Dr M had not been cross-examined at the point when the father was seeking the appointment of a second expert. While the father confidently asserted that Dr M had been discredited, that was a matter for the trial Judge to determine. In this context, we note Martin J’s retort (“Well, that’s your view”) to the father’s earlier declaration that Dr M “has proved [himself], beyond any reasonable doubt, not to be a single expert witness”.
We note also the concessions made by the father’s counsel on 18 September 2012 that the assertion of bias on the part of Dr M was “a matter for cross-examination” and that Dr M might “ameliorate or change his view” after the conference of experts. And, indeed, that proved to be the case, as will be seen from the experts’ report, to which Dr M was a signatory.
Having heard all of the evidence, the trial Judge was able to express the following view of Dr M, but such a view could not have safely been formed or expressed prior to trial, even the part said to be “glaringly obvious”:
55Suffice it to say here, the father did not want Dr [M] appointed as the Single Expert Witness. It was never going to be easy for Dr [M]. However, Dr [M’s] response to a situation which is certainly not unknown in the context of familial disputes was unhelpful. I consider that Dr [M’s] evidence, especially as contained in his report dated 14 May 2012 and other written material he forwarded to the Court, has been coloured by the animosity between himself and the father. A reading of the report makes this glaringly obvious. I accept some parts of his evidence are useful, essentially where there is common ground between him and the other experts, including the father’s own psychologist. I have not relied on his evidence except where specifically referred to.
It will be seen from these findings that Dr M’s report was not entirely discredited. Parts of it were accepted as “useful”, albeit the balance was accepted only where it agreed with the views of the other experts. However, it must be said that the matters about which the experts were unanimous were quite wide ranging, and many of these were adverse to the father.
In our experience, it is far from uncommon for a trial judge not to accept the views of a single expert in their entirety. And it is certainly not uncommon for one party to be critical of a single expert before the trial begins. However, this does not lead to a finding of error by a trial judge who refuses to sanction a second expert prior to trial, or who concludes she has sufficient evidence to reach a decision, even when she has rejected the evidence of the single expert.
In the present matter, the trial Judge said she had “proceeded with the assistance of a combination of other experts and witnesses who had been involved with this family”. Having done so, she was “satisfied relevant issues have been identified”, especially in light of the “useful consensus” that emerged following the conference of experts, which included Dr M.
Again, we see no error in her Honour’s approach. She clearly understood that the experts, other than Dr M, had not been engaged in a forensic capacity, but nevertheless felt that their collective evidence was sufficient for her purposes, as can be seen from the following paragraph of her reasons:
56 Each of the experts is an experienced psychologist. Each has routinely given evidence in this Court. Each expert was involved with the family to a different extent and for a different reason. Each has a slightly different perspective on the family dynamics and the causes of the current dysfunction in the relationships.
The decision was ultimately one for the trial Judge, after taking into account and giving proper weight to all of the evidence. In this case, there was much expert evidence which traversed the issues raised by each of the parties and the Independent Children’s Lawyer. We were not persuaded that the opinion of a second expert could have further assisted her Honour in attempting to predict the likely future of the child’s relationship with the father, whether he stayed in Australia or went to Germany.
The trial Judge was aware there were issues of possible risk posed by the mother to the child, even though that risk had “been exposed more slowly over time” (Reasons at [82]). However, her Honour concluded that, “by the end of the trial the issue of the mother’s relationship with [the child], which had initially been slow to reveal itself, had been largely explored” (Reasons at [243]).
The trial Judge was alive, in particular, to the issue of possible alienation of the child by the mother, but she did not accept the father’s hypothesis on that count, as appears from this extract from her reasons:
233… Whilst I accept there is very strong alignment or even enmeshment with [the mother], I do not consider that [the child] has been alienated as suggested by the father. He has taken sides. Mr [R] confirmed [the child] gets more emotional support from his mother. His feelings of safety come from his mother and, thus, he seeks her out. As Mr [R] has said, this is not the mother’s fault. I consider he still has considerable attachment to his father. This would, at least on one level, seem to be the antithesis of alienation.
It will be seen that to the extent the trial Judge relied on any expert evidence in arriving at this view, it was that of Mr R, not Dr M. Mr R had the benefit of meeting with the child on a number of occasions. Even had Professor G been appointed as a second single expert, a real issue would have arisen about the propriety of him seeing the child at all, let alone to the extent he had been seen by Mr R.
It is important to recall that the child had already met with a variety of professionals – Dr M, Mr R, Mr C and two school counsellors. Although the trial Judge did not mention any concerns about him being exposed to yet another interview, Martin J had said she would be “really concerned” about that prospect. Such concerns would have been even greater by the time of the proposed appointment of Professor G, especially given the child’s increasing levels of anxiety.
Finally, we should record that McCall & Clark (supra) does not lay down a proposition as wide as that contended for by counsel for the father. The facts of that case were entirely different, including that an Independent Children’s Lawyer had not been appointed and the complete absence of any expert evidence. In the present matter, not only was there an Independent Children’s Lawyer, but counsel for the father also properly conceded that the trial Judge had a “lot [of] psychological information about what was going on for [the child] and within the family too”.
For all of these reasons we conclude her Honour did not err in refusing to appoint a second single expert. On the contrary, she would almost certainly have been in error to do so, given the adverse impact of delay on the child.
Ground 2 – Failure to consider the benefit of a meaningful relationship
By this ground it is asserted that her Honour:
erred in failing to properly analyse the primary consideration of the benefit to the child … of having a meaningful relationship with the father and how that may be achieved.
In supporting this complaint, counsel for the father said he did not take issue with the “reasoning path” followed by the trial Judge, but submitted that “no specific finding was made about the benefit of [the child] having a meaningful relationship with the father”. It was further said that her Honour misdirected herself when she said (counsel’s emphasis):
222Despite this present impasse in [the child] seeing and relating to his father in a meaningful fashion, I find that if I adopt a prospective approach there is every chance that [the child] will be capable of having a relationship with both his parents …
Counsel for the father submitted that:
the correct question was not whether the child was capable of having a meaningful relationship, he was found to be capable, but the likely benefit of the child having a meaningful relationship with each parent in Australia and in Germany and how that was likely to be achieved.
Before considering this proposition, it is important we recite what her Honour went on to say at [222], since the citation above is not complete:
222… [the child] wants a relationship with his father. Mr [R] says he is not really rejecting of him. Dr [M] said [the child] definitely wants a relationship with his father. The father wants a relationship with [the child]. The mother, despite her real concerns about the father, accepts that it is best for [the child] to see his father in safe emotional and psychological circumstances. I consider it beneficial for [the child], if at all possible, to have a relationship with both his parents.
Paragraph [222], when read in full, demonstrates clear acceptance by the trial Judge of the fact that it would be beneficial for the child to have a relationship with his father, even though her Honour had found, at [11], that at the time of trial they did not have a “meaningful relationship”.
This acceptance is further reflected in her Honour’s comment at [51]:
51The Court needs to examine whether looking to the future there is any chance of achieving the objects of the legislation which are to have both these parents playing a significant role in [the child’s] life.
Importantly, however, as her Honour went on to say:
52The court in McCall (supra) said it considered the legislation required a court to focus on the benefit to the child of a meaningful or significant relationship. The Court here has to determine whether it is possible for [the child] to have substantial involvement with both his parents as envisaged by the legislation and, if so, is it of any benefit to him in trying to achieve that objective.
In light of these clear statements made by the trial Judge, the only possible merit in Ground 2 must relate to the latter part of the complaint, which focuses on her Honour’s alleged failure to consider how the child might have a meaningful relationship with the father in the future.
In support of this part of the ground, it was submitted, in effect, that the trial Judge pinned her hopes on short-term family therapy before the child’s departure, the success or otherwise of which “would be immaterial”. In this context, it was noted that the further evidence shows that the therapy quickly failed.
We do not take issue with this conceptualisation of the approach the trial Judge adopted. However, this approach must be understood in light of her Honour’s finding that the previous orders for supervised contact and family therapy had “proved fruitless” (Reasons at [45]). This is no doubt why her Honour did not make the child’s departure from Australia dependent on a successful outcome of the therapy, as is apparent from the following part of her reasons:
257Due to the mother’s practical and emotional uncertainties in this country, I intend to make a specific period of time for [the child] and his father to work on a reunification process. However, that process cannot be used to delay any departure to Germany.
In coming to this decision, her Honour clearly also had in mind the child’s delicate emotional health, as evidenced, for example, by this finding:
49[The child’s] mental health and his ability to deal with the challenges of every day life have become severely compromised. The protracted and intense legal proceedings have created considerable uncertainty for him.
Her Honour was clearly also mindful of the limited options available to her. As she recorded at [183] and [184], the difficulty was that the child wanted “nothing or little to do with his father until his father changes” but that difficulty could be overcome only by “extensive counselling”, in circumstances where “neither party has funds to pay for what may be sustained and long term family therapy and individual counselling”.
Her Honour also relied upon the evidence of Mr C, who she found, at [94] to be “pragmatic and impartial”. His evidence was important in determining in which country the child was most likely to develop a good relationship with his father, as can be seen from the following paragraph of the reasons:
93Mr [C] said he did not conclude there was enmeshment between the mother and [the child], but he would not rule it out completely. His view was the difficulties in their relationship could either stabilise or continue. He said that if [the child] and his mother resided in Germany, then [the child’s] need to protect his mother was not likely to be so much of an issue. In Australia, the mother, and thus [the child] were concerned over their security in a financial, emotional and practical sense. He said that if there was enmeshment and the mother and [the child] were to remain in Australia, such enmeshment would be likely to increase in line with escalating concerns over money and housing. In Germany, although there was some uncertainty, the mother would be in a more stable and secure environment with her family.
The trial Judge also relied on the evidence of Mr R to like effect, as summarised in this paragraph of the reasons:
175Mr [C] has said that the alignment issues between [the child] and his mother may stabilise and improve in Germany given the mother will be more secure in her living environment and in her emotions. He has said, and this is also the view of Mr R, that the father may well have problems in developing a relationship with [the child] if he is to remain in Australia. There will be resentment from [the child] and also there may well be further alignment or enmeshment, given the emotional impact on the mother if she is unable to return to Germany.
The trial Judge properly also had regard to the mother’s past conduct in supporting the father’s relationship with the child and his family when she was living in Germany (see [154] and following of the reasons). Her Honour found that “it was only when the father returned to Australia without [the mother’s] knowledge or consent that her trust in him was completely broken” (Reasons at [156]). She recognised that, in such unusual circumstances, “there is a considerable amount of rebuilding that needs to be done if [the child] is to have a relationship with each of his parents” (Reasons at [167]).
In our view, the father’s reliance on the failure of the post-trial therapy to support his attack on the trial Judge’s decision overlooks one crucial fact – namely, that rather than accepting the verdict and entering into the therapeutic process, the father appealed. There was thus no certainty or finality. This must be kept firmly in mind since the experts were of the unanimous view that “no progress can be made in any way, shape or form until the Court actually makes a decision about what is to happen” (Reasons at [218]).
That decision was not made until we dismissed the father’s appeal.
For these reasons, we find no merit in this ground.
Ground 3 – Mother’s view of child having a relationship with the father
By this ground it is asserted the trial Judge erred in finding that the mother genuinely agreed the child should have a relationship with the father.
This ground arises from the following paragraph of the reasons, which it is important we recite in full save for the introductory sentence:
233… I am also mindful of the evidence that [the child] wants to have a relationship with his father. The mother knows that, accepts it and, on the basis that he will be safe, agrees it is best for [the child]. I accept she is genuine in this regard. When she was asked in cross-examination whether the relationship between [the child] and his father can be re-established, she answered that she thought [the child] would love nothing more. Whilst I accept there is very strong alignment or even enmeshment with her, I do not consider that [the child] has been alienated as suggested by the father. He has taken sides. Mr [R] confirmed [the child] gets more emotional support from his mother. His feelings of safety come from his mother and, thus, he seeks her out. As Mr [R] has said, this is not the mother’s fault. I consider he still has considerable attachment to his father. This would, at least on one level, seem to be the antithesis of alienation.
It was submitted on behalf of the father that these findings were inconsistent with the following paragraph of the reasons:
158I found the mother to be a largely credible witness in that she tried her best to give an honest account of factual matters and also her own feelings. This did not always translate to her giving evidence I felt I could rely on. Although she expressed a willingness to foster [the child’s] relationship with his father if she was to return to Germany, I cannot place much reliance on this based on her past behaviour, and her beliefs about the father.
Counsel for the father also sought to criticise the finding about the genuineness of the mother’s belief about the desirability of the child having a relationship with the father by drawing attention to her other “long held belief that the father is, effectively, a psychopath” and her conduct in speaking badly about the father to supervisors or therapists. He also relied upon the mother’s inability to explain the process by which the child would spend time with the father in Germany.
In responding to this complaint, counsel for the mother submitted that the trial Judge’s conclusion about the authenticity of the mother’s belief was a “value judgement”, and that while the father may disagree with the finding, it was available on the evidence.
Counsel for the Independent Children’s Lawyer submitted that the finding about the mother’s belief on this issue should be assessed having regard to other findings, including those at [158], which we have recited, and also [157]:
157The mother does acknowledge and accept it is best for [the child] to have a relationship with his father. In her evidence at trial she accepted [the child] enjoys his time with the father and she also accepted the father was genuine in wanting a relationship with his son. It is what [the child] would ideally like. Given the mother’s present circumstances, she finds it difficult to separate her own feelings from [the child’s] best interests.(emphasis added)
Counsel for the Independent Children’s Lawyer submitted that in finding that the mother genuinely agreed the child should have a relationship with his father, the trial Judge had been realistic in recognising:
the difficulties this presented for the [mother], given the parties’ history and the lack of trust which had developed and deepened over time and the impact of the protracted proceedings on her.
In concluding there is no merit in Ground 3, we accept the submissions of the Independent Children’s Lawyer and also reject the claim that there is inconsistency in the trial Judge’s reasoning. The father’s submissions about inconsistency overlook a key qualification contained in the finding attacked by this ground of appeal. For convenience, we repeat it here, but we highlight the qualification:
233… I am also mindful of the evidence that [the child] wants to have a relationship with his father. The mother knows that, accepts it and, on the basis that he will be safe, agrees it is best for [the child]. I accept she is genuine in this regard.
Ground 4 – The mother’s accommodation and income
By this ground it is said the trial Judge erred in finding that “the mother does not have a present ability to obtain accommodation, has no source of income and is likely to be considerably stressed emotionally were she to remain in Australia”.
We concur with the submission of the Independent Children’s Lawyer that it is “vexing” that the father should maintain his contention that the trial Judge erred in finding, at [173], that “at least, in the short to medium term, if the mother is to remain in Perth she is likely to be considerably stressed emotionally”. That finding was well open to the trial Judge, who was uniquely well placed to form a view on such matters. We therefore propose to address only those parts of the ground which deal with issues about the mother’s accommodation and income.
The father’s written submissions indicate that the complaints about the mother’s income and accommodation are directed to [170] to [173] of the reasons, which we will set out in full:
170In Australia the mother has no other available accommodation or a present ability to obtain accommodation. The father resists selling a property the parties have in Alice Springs, which may have the effect of generating some funds. The father says he may well be able to trade out of or somehow reconcile the enormous debts of the parties after these proceedings have finished. However, he has not done anything to generate income for a substantial period of time. I formed the view he adopts a wait and see attitude, despite the mother’s parlous state.
171The father has also been able to prevail upon friends to find accommodation. He says he intends to start work immediately after these court proceedings. He will then rent accommodation near [the child’s school]. He has done little, in my view, to assist the mother in settling in Australia with [the child].
172The issue of locating adequate housing and financial support in Australia presents the mother with enormous difficulties. The mother has no source of income. She has had financial support from her elderly parents to date. They can no longer assist her and I accept her evidence in that regard.
173At least, in the short to medium term, if the mother is to remain in Perth she is likely to be considerably distressed emotionally. Although she does have some supportive friends here, it is obvious that her desire to live in Germany is sincere and now long held. She has a network of friends and family in Germany. She was able to find employment there in 2010 as a child care worker. [The child] has attended school there, is fluent in the language and has his own set of friends and connections.
However, in our view, it is important that these paragraphs be considered with other parts of her Honour’s reasons, in particular those set out below:
186Given the mother has not worked in Australia apart from with the father in a family business and has no recent work experience of note, she will not be in a position to make any immediate contributions to costs of therapy or travel. The father says he has no funds either.
…
188I have concerns about the capacity of the parties, especially the father, to provide for [the child] adequately in a financial sense.
189Whilst the family was intact, the mother says the father was always able to come up with some money when it was needed. As it transpires, there are now enormous debts to be paid. Since separation I am far from satisfied that the father has made a genuine effort to provide for [the child] in a financial sense. Whilst these proceedings have had an impact on both the parties, [the child] has still required financial support.
190The father had some boarders in the former matrimonial home and received income from this. The boarders were in both the Alice Springs and [the former matrimonial home]. The mother received none of the money. The father said he utilised it to defray costs associated with the marriage. The father received the Family Tax Benefit for a period of time when [the child] was living with the mother. He did not provide her with any of this money.
191I am not satisfied the father has any real prospect of remunerative employment in the future. He accepted that although he can find work, it does not always provide any income.
192The mother has borrowed extensively from her family. This is simply unable to continue. When she was last in Germany she took steps to find some employment. I am satisfied that she will do as much as she can to find employment in Germany or in Australia. I am not satisfied that she has any great prospects in that regard in Australia. In Germany I am satisfied she would be in a position to obtain paid employment, albeit modest.
…
247The mother’s proposals for relocation to Germany take into account secure housing, a more secure financial environment for [the child], a known environment and a happy mother. It also takes into account a relationship with the father if there can be some re-establishment before such relocation.
248The father’s proposals in Australia are not reasonable or practical. The mother does not have stable accommodation, she does not have employment and she has little likelihood of either. The father has done little to assist her without Court intervention and, even then, it has been difficult. She has wanted to live in Germany since 2010. To remain in Australia, I accept, will cause her distress. She even considered returning to Germany without [the child] at one stage. The very clear evidence is that her distress impacts adversely on [the child].
In support of the complaint in this ground, counsel for the father submitted that “the mother is an intelligent, able-bodied person with many supports in Perth”. To make good his argument about the availability of income and accommodation, counsel for the father referred to:
·a statement said to have made by the mother’s counsel at a hearing on 1 March 2012 to the effect that the mother had secured employment; and
·a further statement made by the mother’s counsel at a hearing on 16 March 2012 that she had obtained accommodation.
There are fundamental difficulties with these submissions.
First, examination of the transcript reference we were given for 1 March 2012 indicates that it was the presiding Judge who made mention of the possibility of the mother obtaining work. We were not taken to any other part of the transcript, let alone any evidence of the mother, that she had obtained work.
Secondly, the hearing on 1 March 2012 was presided over by Martin J and there is no suggestion in the father’s submissions that Crisford J was told about the mother having ever secured work in Perth.
Thirdly, while it is true that, on 16 March 2012, counsel for the mother told the court that the mother was shortly intending to move into new accommodation, we were taken to no evidence about the nature of the accommodation, nor were we taken to any evidence about the time for which it was available. As will appear from our discussion below, whatever the nature of the accommodation, it seems it was no longer available by the time the first tranche of the trial was completed.
In his oral submissions, counsel for the father accepted he needed to rely on evidence that was before the trial Judge, rather than on comments made in interlocutory proceedings. He acknowledged that the findings made by the trial Judge were open on the evidence, but said this was because “there was no positive evidence put forward on behalf of the mother about … any attempts to obtain employment or accommodation”.
While complaining about the difficulty of “proving a negative”, counsel for the father was unable to take us to any part of the transcript where the mother had been cross-examined about her ability to work or obtain accommodation in Western Australia. We note in this context that the difficulties the mother said she had in obtaining work in Australia were raised in both her trial affidavit and her Papers for the Judge.
The difficulties for both parties in obtaining accommodation in Perth had been ventilated at the hearing on 27 September 2012, during which counsel for the father explained the father’s own difficulty in obtaining accommodation. It will be remembered his counsel said:
He hasn’t been able to come up with a property yet. He has been trying, but the market is very tight. He tells me that in relation to one property, there were 12 applicants for it. He’s not in a position to be able to say that there is accommodation available either for him, or indeed for the wife and [the child].
There is accordingly no merit in this ground.
Ground 5 – Failure to consider evidence
By this ground it is asserted that the trial Judge:
erred by failing to consider the unchallenged evidence of the father’s witnesses and to properly consider the evidence of [Ms G] and [Ms L] when making adverse findings that he lacked empathy and insight into the nature of his relationship with the child.
In his written submissions, counsel for the father mentioned the evidence of a number of witnesses who gave evidence of their favourable impression of the relationship between the father and the child. However, counsel for the father properly conceded that the trial Judge:
·had referred to this evidence when recording, at [115], that “the parties provide ample evidence, both from themselves and witnesses, to show they each have a very good, close and loving relationship with [the child]”;
·but had gone on to say, “I am not satisfied that such evidence reflects the present nature of the relationship between either of the parties and [the child]”.
Counsel for the father summarised the reasons of the trial Judge as having:
found that the father selfishly pushed the child into doing too many activities during their supervised visits, was unreasonably critical of his son, bombards the child with extra-curricular activities and lacked the empathy to understand how his own competitiveness and perfectionism were negatively impacting upon the child’s desire to please.
Counsel for the father submitted that “the failure of the learned trial Judge to consider or properly consider the evidence of the father’s witnesses when making these adverse findings about him rendered those findings unsafe”. However, the submissions did not identify how it was that her Honour had failed to “consider or properly consider” the evidence, other than by noting that adverse findings were made concerning elements of the father’s parenting.
It must be noted, however, that the trial Judge’s findings about the father were far from being entirely negative. For example, her Honour found that:
·“the father was an interested and loving father commensurate with his work commitments” (Reasons at [31]);
·“on the face of it”, during the period of the week-about arrangement, both parents had a “generally close and loving relationship with their son” (Reasons at [50]);
·most of the evidence “prior to the mother going to Germany … points to [the child] having a generally good relationship with both his parents” (Reasons at [119]);
·“one of the father’s strengths in his relationship with [the child] is his encouragement of exploratory behaviour. The evidence overwhelmingly supports the father being able to challenge [the child] intellectually and to present him with new and different activities. The mother had little trouble giving the father credit for this. She said the father had many positive attributes” (Reasons at [140]).
The trial Judge had the advantage of reading all the evidence and seeing all the witnesses cross-examined. Her task was to consider the evidence as a whole and it was open to her to form a view of the father’s parenting that was different to those expressed by individual witnesses.
Her Honour certainly did not overlook the evidence of the two witnesses expressly named in this ground – Ms G and Ms L – because she referred to it specifically at [125] to [132].
We also accept the submission of the Independent Children’s Lawyer that, in coming to her assessment of the father, the trial Judge had not only considered all of the evidence but had had the benefit of observing the father over 13 days of trial. Indeed, her Honour made a point of saying that she had “had the opportunity of observing the father over many days and in many circumstances” (Reasons at [161]).
Furthermore, we accept the submission of the Independent Children’s Lawyer’s that, in assessing the father, her Honour also had the benefit of expert evidence including:
·the report of Dr W, the father’s psychologist, who described him as “having psychological testing scales where “warmth” was somewhat below average and whereby others are likely to see him as reserved, aloof and unsympathetic”;
·the email from Dr W to the Independent Children’s Lawyer in which he described the father as “intellectual, opinionated, having a strong sense of right and wrong, distrusting of process and of being verbose”;
·the report from the conference of experts, including Dr W, in which it was agreed that the father may pose an emotional risk to the child and in which it was also agreed that the father had difficulty relating to the boy on an emotional level;
·the evidence of Mr R that the father needed to be reminded at times of what the child’s best interests were and at times overlooked the child’s needs, then justified his own stance and did not challenge his own views;
·the view of Mr C that the father’s behaviour indicated he was a “poor emotional fit” for the child.
We also accept the Independent Children’s Lawyer’s submissions that the trial Judge, in forming her impression of the father, would have taken into account his actions in abducting the boy from his mother and his inability to understand the impact of this on both the child and the mother.
In our view, there is no merit in this ground.
Outcome and costs
For the reasons given above we dismissed the appeal.
We need not give reasons for having also dismissed the application for a stay of the order of the earlier Full Court allowing the mother and the child to go to Germany (after fulfilling certain conditions). Although the stay was sought pending disposal of the special leave application, we considered it would become otiose if we determined the primary appeal first. The father acknowledged this when he advised at the outset of his submissions that the stay was sought pending the determination of the primary appeal (Appeal transcript p 87). This concession recognised that issues concerning the possible return of the child to Australia following a successful outcome of the primary appeal would become moot in the event that appeal was dismissed.
At the conclusion of the argument, we took submissions on costs. Counsel for the mother sought costs if the appeal was dismissed, but added this was “subject to [the father’s] financial circumstances”. He also acknowledged that both parties were legally aided. The Independent Children’s Lawyer did not seek costs in the event the appeal was dismissed.
Given the father’s difficult financial circumstances and given that both parties were legally aided, we determined there should be no order as to costs.
I certify that the preceding one hundred and seventy two (172) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 13 November 2013.
Associate:
Date: 13 November 2013
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