CAPPETTO & CAPPETTO
[2013] FamCAFC 69
FAMILY COURT OF AUSTRALIA
| CAPPETTO & CAPPETTO | [2013] FamCAFC 69 |
| FAMILY LAW – APPEAL – CHILDREN – Self represented litigant – No recourse to transcript of trial proceedings in argument on appeal – 13 challenges to trial judge’s decision including a complaint of bias on the part of the trial judge – Held appeal was without merit – Appeal dismissed – No order as to costs. |
| Family Law Act 1975 (Cth) |
| CDJ v VAJ (1998) 197 CLR 172 |
| APPELLANT: | Ms Cappetto |
| RESPONDENT: | Mr Cappetto |
| INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel |
| APPEAL NUMBER: | EA | 72 | of | 2011 |
| FILE NUMBER: | SYC | 7342 | of | 2008 |
| DATE DELIVERED: | 1 May 2013 |
| PLACE DELIVERED: | Brisbane |
| DATE HEARD: | 21 November 2012 |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Finn, Coleman & Ainslie-Wallace JJ |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 May 2011 |
| LOWER COURT MNC: | [2011] FamCA 345 |
REPRESENTATION
| FOR THE APPELLANT: | Ms Cappetto in person |
| FOR THE RESPONDENT: | Mr Cappetto in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Sperling |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
Orders
The appeal be dismissed.
The application to adduce further evidence filed by the appellant mother on 15 November 2012 be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cappetto & Cappetto 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 SYDNEY |
Appeal Number: EA 72 of 2011
File Number: SYC 7342 of 2008
| Ms Cappetto |
Appellant
And
| Mr Cappetto |
Respondent
And
| Brian Samuel |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
By a notice of appeal filed 8 June 2011 Ms Cappetto (“the mother”) appeals against parenting orders made by Watts J on 11 May 2011 in relation to the two children of her relationship with Mr Cappetto (“the father”), B and S (“the children”). The father resists the appeal and seeks to maintain his Honour’s orders as does the Independent Children’s Lawyer.
His Honour ordered all previous parenting orders be discharged and that the children live with the father and he have sole parental responsibility for making all long term decisions in respect of the children. The orders required the father to give the mother 21 days notice of the decision he intends to make and is to give consideration to any view expressed by her.
His Honour made orders providing for the children to spend time with the mother subject to her compliance with orders that she not say or do anything that “endangers the safety, health or well-being of the children either physically or emotionally, act inappropriately or say anything inappropriate to or in the presence of the children, denigrate the father or attempt to undermine the effect of these orders” (Order 5). Order 6 provided for the time spent between the mother and the children to be supervised (Order 6). Order 7 provided that before the supervised time, the supervisor sign and lodge with the Family Court, undertakings in relation to the supervision. The undertakings were to be provided to the father and Independent Children’s Lawyer. The order further provided that the supervisor immediately terminate the time and notify the father if the mother acts in ways prohibited by Order 5.
On 20 October 2011 the orders were varied on the application of the mother and with the consent of the father and Independent Children’s Lawyer. The variation removed the requirement that the mother’s time with the children be supervised and Orders 6 and 7 previously made were discharged. The orders provided for the mother to spend time with the children each Saturday from 10am until 4pm.
The matter has had a long and somewhat complex history some of which is necessary to set out here to give a context to his Honour’s determination.
Background
The mother and father married in May 2003 in India having met by arrangement between their families in December 2002. The father is an Australian citizen. In June 2005 the mother came to live in Australia. After they married, the parties spent varying amounts of time in India either together or separately. For example in April 2007 they travelled to India with their then infant son, B. The father returned to Australia in May 2007 and the mother remained there. S was born in India. In December of that year, the father returned to India. The family returned to Australia in January 2008. The parties separated in June 2008.
The mother alleged that the relationship with the father was marked by physical and emotional violence by him towards her. She further alleged that on the day of separation the father threatened her and the children with a knife. Police were involved and an apprehended violence order was obtained by them on the mother’s behalf.
On 3 July 2008 the father saw the children for the first time since separation and then did not see them again until November 2008. In November 2008, without the father’s knowledge or consent, the mother took the children to India. The mother and children returned to Australia in January 2009.
In December 2008 the father filed parenting proceedings in this court seeking an interim order that he spend time with the children every Saturday between 9am and 4.30pm together with final orders that he spend time with the children one night a week and every alternate weekend on Saturdays between 10am and 4pm. Although the matter came before the court, the mother was not present, being still in India. The mother’s response sought orders that the father have supervised time with the children.
On 10 June 2009 interim orders were made that the children live with the mother and spend time with the father in a contact centre. The mother did not attend at the contact centre to have the required intake assessment and thus the ordered contact did not take place.
On 22 September 2009, the June orders were set aside and the parties consented to the father having time with the children supervised at two nominated locations. The trial judge observed at [105] that these visits did not occur regularly and some were held at medical centres because the mother said the children were unwell.
The father filed an application on 18 January 2010 seeking interim orders for time with the children.
On 19 February 2010 the mother complained to police that the father had made a threatening phone call on the evening before and said that she feared the father would take the children and “sell them for prostitution”. A provisional ex-parte apprehended violence order was made. An interim violence order was made against the father on 5 May 2010. After a defended hearing on 19 January 2011, the application was dismissed and the interim violence order discharged.
On 5 March 2010 the mother filed a notice of child abuse and family violence, alleging for the first time sexual abuse and sexual assault against the father.
His Honour’s comprehensive chronology sets out numerous incidents in which the children were not made available to spend time with the father because they were said to be unwell. It is unnecessary to set them out in these reasons.
On 1 February 2011 the trial judge made orders that the mother ensure that the child B was enrolled in school and start attending school. He further ordered that the father have unsupervised time with the children each Saturday for four hours increasing to six hours.
The mother filed an appeal against his Honour’s orders. It was heard and dismissed on 18 March 2011. For the purposes of that appeal the mother had filed an application in an appeal requesting leave to appear by telephone. In the evidence in support of her application, the mother attached a letter she had written to the father on 10 March 2011. That letter is significant. It referred to her application for leave to attend by telephone and set out the reasons why she could not attend in person. She continued:
…You have put my children, my family and myself through a lot of suffering and pain and all this is gonna end very soon. Why are you fighting for my children whom you did not consider yours while we were married…
In dismissing the mother’s appeal, the Full Court made mention of the letter and its terms. The matter was returned to the trial judge and the terms of the letter drawn to his attention.
On 22 March 2011, his Honour caused the matter to be listed and the father and the Independent Children’s Lawyer were notified and appeared. The mother was not notified.
The trial judge brought the letter to the attention of the father and the Independent Children’s Lawyer together with the mother’s application in which she sought to adjourn the final hearing of the matter, then set down for hearing on 7 April 2011. At his Honour’s invitation the father made an oral application for a recovery order which his Honour then made.
The children were removed from the mother on 23 March 2011. That was the first she knew of the orders. From then until the hearing before the trial judge, the mother did not see the children but did have telephone contact with them.
The matter was brought back to his Honour on 28 March 2011. The purpose of the listing was referred to by the trial judge in the hearing on 22 March 2011 where he said that he would relist the matter before himself the following Monday to give the mother an opportunity to be heard.
The mother appeared on 28 March 2011 and was represented by counsel who applied to adjourn the impending hearing date. The mother’s counsel intimated to the trial judge that while he was instructed to make application for the return of the children, rather than press that application on 28 March 2011, he sought that the application be stood over to the first day of the final hearing.
No appeal was brought from the orders of 22 March 2011. That may well be explained by the fact that the final hearing, at which orders were to be made regarding where the children were to live and how much time they were to spend with the non-resident parent, was but days away.
The Trial Judge’s Reasons for Judgment
His Honour considered all of the mother’s allegations against the father which included assaults against her; alleged assaults by the father on the child B and that the father made threatening telephone calls to her, and did not find any established.
He said:
185. Given the serious nature of many of the allegations and the importance they have in the case, the allegations need to be established according to the civil standard with due regard to matters mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 (and now Section 140 Evidence Act 1995 (Cth)). I acknowledge that I should look at the totality of the allegations made by the mother to see whether or not, when taken together, the standard set by s140(2)of [sic] the Evidence Act 1995 (Cth) is met. In this case, taken as a whole, the mother’s evidence is not supportive of a finding of systemic family violence by the father against her.
186. I am prepared to accept that the parties had verbal arguments and that the mother felt very unhappy in the relationship, particularly toward its end. Verbal arguments themselves however are not family violence. I find, having observed the parties, that in any verbal argument between the parties, the mother could give at least as good as she got.
His Honour also considered the mother’s allegations that the father had acted in a sexually inappropriate way with the children. His Honour observed at [187] that the mother said that she had not raised these concerns before because “she was shamed and embarrassed, and the children would be too”. His Honour found no substance in any of the mother’s allegations. The mother too alleged that the father had “forced” her to have sex with him during the relationship. His Honour concluded at [192] that he could not find the allegations made out to the requisite standard.
His Honour considered at [193] the mother’s parenting ability and observed that Dr R, the expert who interviewed the parties and prepared a report for the hearing “expressed deep concerns over the mother’s parenting”. The trial judge said:
194. [Dr R] noted in his report that the mother cares a great deal about her children and the children are currently progressing normally in her care, though he is not confident this will continue. He considers the mother to be extremely overprotective and is finding it difficult to let the children separate from her and assert their independence. He said the mother has dependency issues and he believes she has separation anxiety, and needs the children close by. [Dr R] said the mother has now developed an enmeshed relationship with the children, and the lack of separation is inappropriate once the children reach 3 to 4 years of age, which both children now have. [Dr R] says that this will become “extremely damaging” for the children in the long term if the mother restricts them developing normal relationships outside the home, and that their development will be “restricted and stunted”. Likely outcomes are a lack of ability to maintain healthy relationships and extreme anxiety as a result of the ideas the mother places in their minds.
His Honour concluded at [195] that Dr R’s expressed concerns were well founded.
The issue of whether B would attend school was one of importance before his Honour. The trial judge noted that the mother had, in her affidavit of January 2011, set out her reasons why the child should be home-schooled. However on the first day of the trial she told his Honour that she was willing for the child to be enrolled in a Catholic school in 2012.
His Honour was not persuaded that the mother accepts that it is in B’s interests to attend school (see [198]).
He concluded:
203. I am not convinced that if the mother was to have the children living with her, and had the ultimate decision making power as to the major decisions in their lives, that she would send them to school. As I will mention later, a Court order to enforce this would not be effective as the mother has shown a capacity to simply ignore Court orders.
The father asserted that neither child had been toilet-trained.
His Honour said:
209. I do not believe that either child has been toilet-trained in the conventional sense. I find that very worrying. [B’s] constipation is not physiologically based. He is deliberately not going to the toilet. It is likely this psychological retention is linked to anxiety which he has felt, to which either the mother has contributed or which the mother has not been able to ameliorate.
A further issue raised by the father about the mother’s care of the children related to their capacity to feed themselves. His Honour accepted at [211] the father’s evidence that B is reluctant to feed himself in an appropriate way for a child of his age.
As to the mother’s capacity to ensure a relationship between the children and the father, his Honour agreed at [212] with the father’s contention that the mother “will stop at nothing to avoid the father spending time with the children”. He did not accept that the mother is likely to encourage the relationship between the children and the father.
Under the heading “Exposing the children to psychological intervention” his Honour observed at [221] that when the mother received the report of Dr R she said that his opinions were “based on lies fed to him by the father”. She then sought the appointment of another expert. That application was refused and the mother was advised not to attempt to involve other professionals. His Honour observed at [223] that notwithstanding that advice the mother took the children to see two psychologists, obtaining reports from both.
That the mother was prepared to take the children to see multiple professionals and her concession to his Honour that she had discussed with the children some of the matters contained in Dr R’s reports gave his Honour concerns (see [225]).
The Circumstances of the Recovery Order
As was recorded on 22 March 2011, the matter was listed before the trial judge as a matter of urgency. The hearing arose out of a letter sent by the mother to the father which contained words that it was “all gonna end soon”. As a result the trial judge made an order that the children be recovered from the mother and placed in the care of the father and that they have no contact with the mother until the final hearing of the matter.
At the time of final hearing before his Honour on 7 April to 14 April 2011 and 19 April 2011, the children had not spent any time with the mother since 23 March 2011 although they had had telephone contact with her.
His Honour referred at [226] to incidents which he found suggest that the mother is “potentially unstable and may be of a threat to the children”.
His Honour referred to medical records in which it was noted that in 2008 the mother was recorded as saying she “felt like ending it” which the doctor recording the notes believed was a reference to self-harm. His Honour observed at [228] that the doctor was “sufficiently concerned that the doctor monitored the mother’s behaviour over a number of visits”.
A text message sent to the father on 29 July 2007 which contained the following words: “I don’t want 2 die. n if I have 2, I will put an end 2 mine n my children’s life…” His Honour did not accept the mother’s denial and found that she had sent the text.
His Honour continued:
231. [Dr R] was advised about these threats and was asked whether in his opinion, the mother is any current threat to the children. His answer was not comforting. While noting it was difficult to make a prediction about the mother’s behaviour, [Dr R] said such potential threats should be taken seriously, especially where the mother is in the position of potentially losing her children. He said there are extreme conditions that would lead him to be cautious – being the mother’s isolation from family in Australia, the overprotective nature of the mother to her children, and her extraordinary fear which lacks reason. He acknowledged that the mother would be unlikely to hurt the children who she adores so much, but notes the “dangerous naivety” I referred to earlier, where the mother’s perceptions and misinterpretations of the father lead to fears and thoughts that have no basis in fact, and without anyone to test the reasonableness of her fears, she accepts them as accurate and acts upon them in an alarming way.
232. I take the mother’s potential threats seriously. She should not be left alone with the children for a significant transitional period.
Turning to the matters referred to in s 60CC of the Family Law Act 1975 (Cth) (“the Act”) his Honour accepted at [238] Dr R’s conclusion that, on observation, the children interacted well with the father and found that they would benefit from a relationship with him.
While dismissing the mother’s allegations of violence and abuse by the father, his Honour found that the children were likely to be exposed to psychological harm in their mother’s care in that she was unable to allow the children to develop relationships outside the home and to separate from her. His Honour said at [240] that he was not confident, despite the mother’s assurances that she is “willing to allow her children to grow-up without her constantly by their side”.
His Honour concluded at [242] that the mother was further likely to cause psychological harm to the children by exposing them to her irrational fears.
His Honour accepted at [248] the expert’s opinion that although the children were strongly attached to the mother, they had a strong relationship with and regard for the father. The trial judge said that, unlike the mother, the father will encourage a relationship between the children and the mother.
Turning to the effect on the children of their transition to living with the father as a consequence of the order of 22 March 2011, his Honour noted that the father’s evidence was that while the children were unsettled and difficult at first, they had settled and were progressing. He further observed at [255] the evidence of the expert which was that a period of transition was normal and unsettled behaviour would settle over time.
His Honour found, and it was a matter of little dispute before him that the parties could not cooperate in making decisions about the children. However, by making an order that the residential parent consult with the other about major parenting issues, his Honour said at [271] would engage the other parent in the process.
In concluding his Honour said:
273. I find that if the children were to live with the mother they would not only suffer in having no relationship with their father, but they would be exposed to emotional harm due to the mother’s inability to let them become independent and develop. The children would be exposed to the mother’s irrational ideas and fears. On the other hand, if they were to live with the father I have no doubt that the children will have the opportunity to still enjoy a relationship with their mother. I have not found the mother’s allegations against the father proven. I also find that there is nothing in the allegations made by the mother that leads me to find there is an unacceptable risk to the children if they live with their father.
274. The children have a strong enough relationship with the father to allow a successful transition to be made. The children’s reactions to the father are not based on actual memories, but the information they have picked up from their immediate environment, and are short lived upon spending time with the father. They should be able to adapt to living in the father’s care. While the father’s parenting is untested, the changes he has made in the last few months are particularly promising in terms of his attitude and ability, and with the help of parenting courses, I have confidence in his ability to provide for the children. The mother, who has a strong bond with the children but lacks the appropriate insight to be their primary carer in the long term, will still have a strong relationship with the children, which I find the father will facilitate.
The Appeal
We observe at the outset that the appeal was argued without recourse to the transcripts. The absence of transcript renders many of the mother’s challenges to the trial judge’s decision difficult to sustain.
By her notice of appeal, the mother raises 13 challenges to his Honour’s judgment. The mother represents herself and, it appears, drew the grounds of appeal and the summary of argument. The heading to the grounds is: “The grounds of appeal – Biased and pre-formed decision made by Justice Watts”. The paragraphs that follow are difficult to understand as true grounds of appeal but we will set them out in full (and without any amendment or correction) and deal with them as best we can. The mother filed 15 pages of closely typed submissions in support of her appeal although they do not always cast light on the ground of appeal and in many respects do not address the asserted grounds of appeal.
Ground 1. I believe Justice Watts appears to have made his decisions prematurely which is reflected in his conversation with [Dr M] where on 13th April, 2011 when [Dr M] was testifying. He asked [Dr M] whether she was available to supervise mother’s visits with the children. He appears to have already made his decision in advance before hearing the evidence of a crucial eye witness of violence ([Mr Q] who had taken leave with loss of salary spending his own money and come all the way from India to testify). (Errors as in original)
The mother argued that his Honour’s questions to Dr M about her preparedness to act as supervisor of time spent between the children and the mother, indicated that he had formed a concluded view about the outcome of the case. This was particularly so in circumstances where Dr M was the first witness in the case.
Dr M gave evidence for the mother and was referred to by his Honour as a “close friend” of the mother. His Honour found at [49] that although Dr M was “somewhat partisan”, she was not “particularly antagonistic towards the father”.
At the conclusion of the reasons in considering the nature of the time to be spent between the mother and the children, his Honour observed at [276] that he asked Dr M during her cross-examination whether she would be prepared to supervise time between the mother and the children.
The mother complained that to ask this of Dr M represented a prejudgment by the trial judge on the issues before him and before the evidence had closed.
The trial judge was acutely aware of the issues to be determined. He had been involved in the matter from well before the final hearing and had the advantage of the affidavits and other materials filed by the parties for that final hearing.
In canvassing this issue with Dr M, his Honour was considering all possible outcomes, one of which was clearly that the mother would have supervised time with the children.
There is no force in this asserted challenge.
The mother further argued that in making the recovery order on 22 March 2011, the trial judge had predetermined the issue of what was in the children’s best interests. We do not agree. The trial judge had been engaged in this matter from an early stage and had made orders from time to time in the matter. The recovery order was one such involvement. As his Honour’s comments as seen in the transcript of 22 March 2011 reveal, he was concerned to make a temporary order in relation to the children but that the detailed question of what orders would meet the children’s long term interests would be determined after a consideration of all of the evidence and after hearing the parties’ submissions.
We do not find this ground of appeal made out.
Ground 2. Justice Watts has dismissed eye witnesses testimonies stating they were unreliable. (Errors as in original)
In her oral submissions, the mother referred to four witnesses who gave evidence for her and whose evidence was not accepted by the trial judge. They were Dr M, Ms AA, Mr A and Mr Z.
The mother argued that his Honour was wrong in his assessment of the credibility of her witnesses and said that he based his conclusion about their credibility on inconsistencies and errors in their accounts of events. The mother argued that any “minor errors” in their evidence was reflective of the passage of time and not a lack of reliability. None of them took notes at the time of events witnessed by them to assist their recollection because they could not know that they would have to give evidence in the future.
Dr M was described by the trial judge at [47] as a “close friend of the mother”. His Honour found Dr M to be reluctant to make concessions in her evidence that would appear not to favour the mother’s case. He further referred to parts of her evidence which, his Honour thought, reflected that Dr M and the mother had discussed some of the evidence in the case together.
His Honour considered at [54] the evidence of Ms AA. He found her to be a witness “concerned about the mother’s interests in the trial, only more so”. He observed that Ms AA said that there was violence in the marriage of the parties “…though she never saw any violence or any evidence of violence besides a burn mark on the mother’s wrist”. His Honour concluded that he had reservations in accepting Ms AA’s evidence where it conflicted with that of the father.
Equally in considering the evidence of Mr A his Honour said at [50] that Mr A did not impress as a truthful witness and referred to parts of his evidence that supported that finding.
Finally in relation to Mr Z, his Honour found that his evidence in relation to a particular event to be “less than convincing” because it conflicted in detail with other alleged witnesses and the internal inconsistencies in Mr Z’s account. His Honour found little weight would attach to his evidence.
His Honour carefully considered the evidence of the mother’s witnesses and as part of assessing their credibility and reliability, took into account matters relevant to that assessment. His Honour considered whether the evidence of the witness was consistent with other evidence, whether the witness was able to give a coherent account of what happened and where the witness said he or she was when particular events occurred. We find no error in his Honour’s approach.
The assessment of the credibility and reliability of evidence is a matter quintessentially for a trial judge. It has long been recognised that the trial judge enjoys a particular advantage when assessing the evidence of witnesses that comes from seeing them give evidence and hearing their evidence. Appeal courts are reluctant to interfere with findings of this nature.
Nothing the mother has raised in her written argument or submissions in support of this ground demonstrates an error in his Honour’s decision.
We do not find this ground made out.
Ground 3. The ear witness, [Ms C] who testified that she heard a violent and threatening outburst and feared for the safety of my children and myself and she called the police. Justice Watts has disregarded her evidence totally stating the [Ms C] told the court what the mother had told her which is a total misquote by the judge. (Errors as in original)
Ms C is a teacher who works at a community centre near to the mother’s residence. She provided an affidavit in the matter [AB 320]. In it she refers to an incident that occurred on 31 May 2008 when the mother telephoned her.
Ms C said that in the background she could hear “banging and a man yelling as well as a child crying in the background”. Based on what she had heard and what the mother had told her, Ms C telephoned the police. The balance of her affidavit concerns conversations that she had with the mother in which the mother told her what had happened.
His Honour said of this witness:
55. I found [Ms C] to be a reliable witness, however the value I can give to her evidence is reduced by the fact that most of the evidence she gave was retelling the things that the mother has told her, and as I have found, the mother’s interpretation of many events is in doubt.
The incident to which Ms C’s evidence was said to relate was the mother’s allegation that on 31 May 2008 there was an altercation between the parties in which the mother said that the father verbally abused her, later saying that he said “If you leave I’ll hit you again”. His Honour said:
170. …When reminded she hadn’t yet alleged that he had hit her earlier, the mother said he was referring to a different day. The mother also said she was pushed and hit the cot, hurting her shoulder. This was not mentioned in the police report. The mother says she did not mention it because this was the first time police were involved and she was unsure, though I note she alleges the police were called to a dispute in 2003. The mother called her friend [Ms C] on the telephone. The mother left the house, freely it seems despite the alleged threat by the father, and attended upon [Ms C]. The police attended upon the father first, then the mother at the ‘Hub’ with [Ms C]. The police recommended the mother attend upon [Sydney Suburb 1] hospital for a mental health assessment. The police asked the father to take the children home.
We find no error in his Honour’s findings and this ground is not made out.
Ground 4. [Ms AA’s] ear witness account who testified that she overheard violent abuse on the phone. Justice Watts conveniently omitted this in the reasons of judgement. (Errors as in original)
Ms AA made a statement that was attached to the mother’s affidavit
[AB 329]. The entirety of her statement relates to matters of which she was informed by the mother. For example she said:
On Dec 25th night, [Mr Cappetto’s] family called her from India and abused her. I remember it was very late that night around 1.30am when she called and told me about this…
She however did say, that on an occasion in January 2007 the mother called her and was crying and she said:
…I could hear [B] crying too and also [Mr Cappetto] shouting at her.
The mother argued that the trial judge did not refer to what Ms AA had heard on the telephone and thus was in error.
Whether or not his Honour referred to all parts of her evidence, his conclusions about her reliability were well open to him and the mother has not shown any error in those findings.
This ground is not made out.
Ground 5. On 23rd March 2011, the children [B] and [S] were removed forcefully from me, on the basis of an out of context statement where I wrote a letter to the father explaining that it had been very difficult to travel with children by train to attend court proceedings as they were sick and had vomited in [the] train and so I was putting an application to the court to attend the hearing by electronic communication. I also said in the letter to the father that he had put the whole family through a lot of hardships and with the final hearing approaching all this was going to end. After 12 day of receiving the letter, it dawned on the father that he could use this letter to present it to the court that I was going to harm the children. It is amusing to think that the father thought about the likelihood of me harming the children after 12 days. I believe the father realized that he could take the sentence out of context and use it to his advantage. (Errors as in original)
To the extent that this represents a ground of appeal, we interpret it as being a challenge to his Honour’s findings based on the mother’s letter to the father to which we have earlier referred in which she said it was “all gonna end soon”.
The mother argued that the trial judge took the phrase “all gonna end soon” out of context and found a sinister meaning where none existed. She further argued that on 28 March 2011, his Honour did not ask her what she had meant in that phrase in the letter. She asserted that she did not have an opportunity to clarify what she meant or explain the letter on the 28 March 2011. She said that it was clear to her that the trial judge did not want to discuss it with her and that she was “too afraid to speak”. It later transpired in the appeal hearing that, as we have indicated, on 28 March 2011 the mother was represented before the trial judge by a barrister, who, although having an application seeking orders for the return of the children, apparently decided to leave that issue to be raised at the trial.
The mother filed an affidavit on 7 April 2011, its purpose “clarifying my sentence what I meant (sic)”. She said [AB 293]:
3. The sentence which the court interpreted wrongly is –
“You have put my children, my family and myself through a lot of suffering and pain and all this is gonna end very soon.” What I meant was, that my children, my family and myself have been through a lot with the court case and the case is going to end soon since the Final hearing is confirmed on 7th April 2011.” I was just trying to put it across to the father that the case is going to end soon and problems of going to court each time will not be there. This is what I meant and this is my affirmation.
What is made of the evidence is a matter for a trial judge. In this instance, he accepted that the letter was a threat by the mother to take her life and that of the children. That finding was one clearly open to him on the whole of the evidence.
The mother further argued that the father used this letter to his advantage, arguing that he did nothing about it until such time as he was in a position to have the children with him. The difficulty with this submission is of course that the father did not make an application on the basis of the letter, the matter was brought before the trial judge on the court’s own motion.
In the written submissions, the mother also refers to a text message which his Honour found at [229] had been sent by her on 29 July 2007. The thrust of this submission was to maintain as she had before the trial judge that she had not sent the text message and to claim that the text message had been fabricated against her.
His Honour referred to the mother’s assertion that she had not sent the text message and did not accept her evidence. He was entitled to come to that finding and it is consistent with his general findings about the mother’s credibility. No error on the part of his Honour has been established.
Ground 6. In the subpoenaed records from G.P. visits, the G.P. [Dr JJ] has clearly mentioned that I had no thoughts of self harm or harm the children but on the contrary, the Judge has used again, out of context the sentence, that I wanted to end the marriage due to violence involved. Justice Watts has very conveniently ignored the records of domestic violence. (Errors as in original)
In considering the actions which his Honour found at [226] “might suggest that [the mother] is potentially unstable”, the trial judge referred to parts of the mother’s medical records.
His Honour said:
228. In the mother’s medical records dated 19 May 2008 it is written that the mother said she ‘felt like ending it all’, and while not elaborating on that, she denied thoughts of self harm. While not acknowledging she said those exact words, the mother said she meant she wanted to end the marriage as this was the high point of the conflict during the marriage. I note that the medical records do record conflict in the marriage but there was a clear indication that the doctor thought the mother was referring to her life, and noted that she questioned the mother on self-harm, on that visit and later consultations. It is clear from the doctor’s notes that the doctor was sufficiently concerned that the doctor monitored the mother’s behaviour over a number of visits.
The mother’s medical records were before the trial judge and were Exhibit II. The notes of a consultation on 19 May 2008 read:
Phone call from [Mr Cappetto] (husband) earlier today – worried about [Ms Cappetto’s] behaviour over the weekend. Would like me to speak to [Ms Cappetto] but does not want her to know he has phoned me. [Mr Cappetto] left room for a few minutes during consult. [Ms Cappetto] states things got very bad over the weekend – felt abused by husband + mother in law.
Got very worked up.
Felt like ending it all – would not elaborate on this. Denies thoughts of self-harm currently.
Refused to speak further – worried about [Mr Cappetto] returning.
Agreed to return for long appt Wednesday.
The next consultation was on the following Wednesday, 21 May 2008. The doctor refers to conflict and marital difficulties. The note concludes:
Not willing to consider counselling
Denies thoughts of self-harm – loves God + children too much.
The mother argued that his Honour took her comments out of context and was wrong in finding that she referred to self-harm.
The medical records support his Honour’s conclusion and the mother has shown no error in his findings in this regard.
Ground 7. The court proposed further hearing regarding removal of children on 28th March, 2011 but on 28th March, 2011 the matter was not discussed and no clarification was sought from me regarding what I meant in that letter. It appears Justice Watts has been partial to the father and his final orders reflect his bias attitude. The most important issue of domestic violence against me and my son have been totally ignored. (Errors as in original)
From the written submissions [page 5] it appears that the mother complains that the trial judge was peremptory in his decision to make a recovery order based on the letter to which he referred in his reasons. The mother submitted that the trial judge “should have given the writer of the letter a chance to be heard before the error was made to damage and traumatize two small children by pulling them from their mother’s arms”.
As we have earlier said, the order made on 22 March 2011 was an order made on a temporary basis until all of the issues relating to the children could be properly considered in the final hearing. That is in fact what happened.
In relation to this ground and others, the mother argued that the trial judge was biased against her because he did not make the orders she sought but rather made the orders the father sought. In other grounds, she argued that because the trial judge rejected the evidence of her witnesses but accepted those supporting the father, he was biased.
It is part of a judge’s function to consider the evidence, determine that which is credible and reliable and to make findings based on that evidence. Because those findings do not favour a party does not mean the judge was biased and nothing to which we have been taken in the appeal suggests that he was.
Ground 8. Another evidence of Justice Watts’s being bias against me is reflected by the fact that when the father produced a fabricated SMS message printed on A4 sheet paper supposedly have been sent by me in 2007, the judge believed it inspite of my denial of having sent that particular SMS. I would like the court to verify that SMS exists on the father’s messages. The message says – “I don’t want to die. n if I have 2,I will put an end 2 mine n my children’s life.im no one in ur life but im everything 2 my children.all my sms r not nonsense.imean everything.all these yrs I lived with u with no security but I don’t want 2 live like that.i need a secured life 4 me n my children n u will not give that 2 us.im taking a lot of time 2 think” (Errors as in original)
This issue has been considered by us in the context of Ground 5. Although the mother maintains that she did not write or send the text to which his Honour referred, that was a finding made by him rejecting her evidence. It was a finding open to him and nothing put by the mother has demonstrated any error on his Honour’s part.
This ground is not made out.
Ground 9. The children had two individual general interviews with two child psychologists ([Dr W] and [Ms O]) which was not based on the court cases or the parents of the children but based only on the children. That was the interview the children were left alone to talk to those child psychologists but those reports and recommendations were ignored by Justice Watts. The discussions during those interviews between the children and the psychologists were conveniently dismissed (Errors as in original)
His Honour observed at [221] that the mother was dissatisfied with the report of the single expert, Dr R and maintained to his Honour that the expert’s opinion was “based on lies fed to him by the father”. His Honour said:
222. Unhappy with [Dr R’s] report, the mother applied to have another independent expert appointed. I dismissed this application and advised the mother not to involve other professionals. The mother also claimed in her affidavit of 17 December 2010 that she did not want her children exposed to further professionals, and that one session with [Dr R] was enough. She feared further sessions would scare her children, make them blame themselves and could undermine their emotional stability.
223. Despite this, the mother took the children to two psychologists. Although obtaining reports from the psychologists and attaching them to an affidavit, the mother claims she did not see the psychologists for the purpose of the hearing, but rather to address the [sic] [B’s] nightmares and to gain insight to the children’s desires and emotions.
His Honour found that the text of the reports demonstrated that they were sought in the context of the hearing and said:
224. I note the text of the psychologist reports makes it clear the mother sought report in the context of the hearing, and I note too that there is nothing of particular value in these reports that has not already been discussed. No objection was taken to the admission of the reports (and there was no argument about whether the provisions of section 102A of the Family Law Act 1975 (Cth) were triggered). [Dr R] quite correctly noted that the reports could only ever be a one-sided view without the opportunity of seeing the father. I find it concerning that the mother would take her children to multiple professionals, when she has herself identified the risks of such behaviour.
Far from “conveniently dismissing” the reports, they were admitted into evidence and his Honour considered them and, taking into account the basis on which the opinions of the authors were made, attributed little weight to them. Again, the consideration of the evidence and the determination of what weight, if any, to attribute to evidence is a matter squarely within the discretion of the trial judge. No error has been established by the mother and this ground must fail.
Ground 10. The children’s assessment of their maturity, intelligence, behaviour, communication by a psychologist [Dr BB] was again dismissed by Justice Watts. (Errors as in original)
Dr BB’s report was attached to the mother’s affidavit [AB 339]. In February 2011 she conducted psychometric testing on B. She concluded that B is a child “whose level of general intellectual ability falls within the Very Superior range” [AB 341].
Dr BB conducted similar testing on S and said “S is a 3-year old girl whose level of general intellectual ability falls within the Superior range” [AB 345 and 347].
Although not clear from the mother’s written submissions, it became apparent that she regarded this evidence as important to the issue of the children’s wishes and the weight to be attached to them. She submitted that the trial judge took no account of Dr BB’s evidence. We do not accept that submission.
His Honour said:
244. The mother has very strongly expressed the view that both children are old enough (and intelligent enough – based on their psychometric testing) to express considered and well developed views about their father, and that the court should act upon those views.
245. The children both state and have stated in the past that the father is a bad man, that they do not like him, and that they do not want to be with him.
246. As I have found above, the children’s views are likely based on the mother’s own anxieties, given that the children will have little memory of occurrences while living with the father, and have seen him very little since that time. [Dr R] recommended that any view expressed by the children is likely to be made to please the mother.
247. I find the children are too young for any weight to put upon their expressed views, and for the mother to strongly advocate otherwise reflects poorly upon her parental judgement.
What weight if any to be given to views expressed by children is a matter to be considered by the trial judge. His Honour clearly took into account matters that were relevant to that decision. No error has been demonstrated.
This ground must fail.
Ground 11. The violence of the paternal side of the family towards my children and myself was conveniently dismissed. (Errors as in original)
In oral submissions the mother said that the trial judge “ignored the allegations of domestic violence” emanating from the paternal family. Further she submitted that in not making the finding that the marriage was marked with violence towards her and the children, the trial judge exhibited bias against her.
First, the trial judge did not “ignore” the allegations of violence. He did not accept the mother’s evidence and that of her witnesses on this point, finding that they were neither credible nor reliable.
In his reasons, the trial judge carefully considered the evidence of the witnesses called by the mother in support of her allegations of violence towards her and the children by the father and his family. His Honour concluded that taking into account the evidence and his findings about the credibility of the witnesses, the allegations were not established. Although they do not accord with the mother’s position, these findings were well open to him and no error has been demonstrated.
Secondly, merely because the trial judge made findings against the mother’s contentions does not establish bias.
This ground must fail.
Ground 12. Vidoes and photos were taken of my children and myself by a total stranger ([Mr T]) whom I do not know and without my consent and inspite of me objecting stating to the judge that it was illegal but Justice Watts had approved it and this is biased. I was the Primary carer for my children. When I questioned [Mr T] at his evidence asking him whether the father asked him to do it, he mentioned stating that he took the videos and photos spontaneously without the father’s consent as well. This is illegal. (Errors as in original)
Mr T was a witness called in the father’s case. His Honour considered his evidence at [25] and said:
25. …[Mr T] had come to the [Suburb C] Mall on three occasions when the mother made the children available to the father. He took video footage of the children with the father’s implicit approval. The mother seemed to believe that this was either illegal or immoral, given she had not given her permission for that to happen. I indicated to her that I found nothing wrong with what [Mr T] had done. There is no need for me to doubt anything that [Mr T] had said.
The mother contended that, despite the trial judge’s findings, Mr T’s actions were “illegal”. During the oral argument the mother conceded that having spoken to a police officer, she now understands that what Mr T did was not illegal.
She did however maintain that Mr T’s evidence was internally inconsistent. She said (and we again observe that we have no transcript of the evidence but for these purposes see no reason not to accept her assertion) that Mr T said that he took the film of the children “spontaneously”. The mother then went to Mr T’s statement to demonstrate that he had given different evidence in that he said there that he took the film at the father’s request. This submission is not supported by the evidence.
Mr T said in his affidavit [AB 317]:
At [Mr Cappetto’s] request, I agreed to be an observer on 3 occasions. While being an observer I saw his children, I saw them playing around with their father at the mall.
They did not look afraid or scared of him at all. On the contrary it seems to me that they were having fun and wanted to spend more time with [Mr Cappetto], especially [B].
I took some video’s [sic] proving these facts which can be played in court if required.
His Honour found that the father had impliedly consented to Mr T’s actions. Whatever the mother’s views of the conduct might be, her complaints in this ground do not provide any grounds for suggesting that the trial judge was biased against her or made any appealable error.
Ground 13. Another evidence of Justice Watts being bias against me is reflected on the fact that he appears to have approved every single and small false testimony of the father and has dismissed every truth from my side. Every denial of the father was approved. My denial to the father’s false testimony was conveniently ignored by Justice Watts. (Errors as in original)
The mother agreed in her oral argument that this point had been covered in her other grounds and submissions. We note however that her complaint is that his Honour demonstrated bias against her because every decision he made “went against her” and he did not accept her evidence.
As we have said, the determination of the credibility of witnesses and what facts are found is an exercise of the trial judge’s discretion. Nothing to which the mother points either in the ground itself or in her written submissions establishes appealable error.
This ground is not made out.
As no ground of appeal succeeded it follows that the appeal will be dismissed.
Application in an Appeal
The mother filed an application in an appeal on 15 November 2012 in which she seeks leave to adduce further evidence in the appeal. The mother raises 57 issues to which the further evidence is directed. The application itself is in the form of a submission. The issues it addresses all relate to events that have occurred since the orders were made.
Annexed to the application are documents that the mother contends supports the matters to which she refers in the application.
While this court is able to give a party leave to adduce further evidence on an appeal hearing, that power is constrained by the criteria outlined by the High Court in CDJ v VAJ (1998) 197 CLR 172. The matters that the mother would seek to raise in this application could not fulfil any of those criteria.
We will dismiss her application to bring further evidence.
Costs
As is usual, we took submissions from the parties on the question of costs. Although the result of the appeal would not be known to them, we took this course to avoid the cost and difficulty of having the parties return to court to make submissions at a later time.
The Independent Children’s Lawyer sought an order for costs in the event that the appeal failed. The father, appearing on his own behalf, conceded that he had incurred no costs of the kind to which a costs order would be directed.
The mother said, opposing any costs order, that while she is working on starting a business, her income is provided by a government allowance.
Whether a costs order is made in these circumstances is to be considered against the matters referred to in s 117(2) of the Act. Taking those matters into account, notwithstanding that the appeal has been wholly unsuccessfully, the mother’s financial circumstances are such that we will refuse to make a costs order in favour of the Independent Children’s Lawyer.
I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Coleman & Ainslie-Wallace JJ) delivered on 1 May 2013.
Associate:
Date: 1 May 2013
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