CHISHOLM & ROBERTS - [2010] FamCAFC 171

FAMILY COURT OF AUSTRALIA

CHISHOLM & ROBERTS

[2010] FamCAFC 171

FAMILY LAW - APPEAL – PARENTING – with whom a child lives – where the Federal Magistrate ordered that the child live with the father and that the father should have sole parental responsibility for the child – where the appellant mother argued that she was denied procedural fairness as she was self-represented during the three day hearing before the Federal Magistrate due to the breakdown in the relationship between herself and her solicitor – the mother further complained that she was denied procedural fairness as she had to appear at the hearing by telephone and was unable to present her evidence – where the Full Court found that there was no substance in the mother’s grounds of appeal which raised issues of procedural unfairness – no appealable error established.

FAMILY LAW - APPEAL – PARENTING – with whom a child lives – where the mother contended that the Federal Magistrate placed too much weight on the opinions of an expert psychiatrist when reaching her decision that the child should live with the father – where the mother claimed that the expert lacked the necessary qualifications to diagnose personality characteristics or difficulties – the mother also asserted a failure on the psychiatrist behalf to address short-comings on the part of the father – where the mother complained that the doctor’s report did not provide details of his qualifications - where the Federal Magistrate considered the primary considerations contained in s 60CC(2) and the additional considerations contained in s 60CC(3) in reaching her decision that the child should live with the father and that the father should have sole parental responsibility for the child – the Full Court found that the Federal Magistrate had not erred in the weight given to the psychiatrist’s opinions – no appealable error established – appeal dismissed.

FAMILY LAW - APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – where the mother sought leave to adduce further evidence by way of six specified documents or groups of documents – where at the hearing of the appeal the mother only pressed the application in respect of one of the mentioned documents – the Full Court found that the further evidence would not have affected the findings of fact made in this regard, or the findings of credit, or the weight to be given to such findings – Application dismissed.

FAMILY LAW - APPEAL – COSTS – no orders for costs in relation to the appeal.

Family Law Act 1975 (Cth) s 60CA, s 60CC(2), s 60CC(3), s 60CC(4), s 61DA

APPELLANT:

Mrs Chisholm

RESPONDENT:

Mr Roberts

INDEPENDENT CHILDREN’S LAWYER:	Mark Whelan
FILE NUMBER:	SYM	8753	of		2006

APPEAL NUMBER:

2009

DATE DELIVERED:

8 September 2010

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney

JUDGMENT OF:

Finn, May and Boland JJ

HEARING DATE:

2 November 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT ORDERS DATE:

19 December 2008

LOWER COURT JUDGMENT DATE:

23 December 2008

LOWER COURT MNC:

[2008] FMCAfam 1419

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Mr Potkonyak

SOLICITOR FOR THE RESPONDENT:

Mr Roberts in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Reynolds
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Whelan

Orders

That the appeal be dismissed.
That the mother’s application to adduce further evidence be dismissed.
That there be no order for costs in relation to the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Chisholm & Roberts is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 9 of 2009
File Number: SYM 8753 of 2006

Mrs Chisholm

Appellant Mother

And

Mr Roberts

Respondent Father

REASONS FOR JUDGMENT

Introduction

This is an appeal by Mrs Chisholm, the mother, against certain orders made by Federal Magistrate Sexton on 19 December 2008, which provided, in effect, that the then 12 year old child of her relationship with Mr Roberts, the father, should move to live with the father and that the father should have sole parental responsibility for the child in relation to major decisions concerning his welfare, including in relation to the choice of secondary school (Orders 2 and 4 of the orders of 19 December 2008). The mother also appeals against a further order (Order 7) which related to the time which the child would spend with her in the future as well as against an order (Order 9(b)) which permitted each parent to telephone the child on one occasion in each week when he was in the other parent’s care.

Principal issues raised by the appeal

At this introductory stage it needs to be explained that there are two principal complaints which emerge out of the five grounds of appeal contained in the mother’s amended notice of appeal (dated and filed 12 March 2009). The first relates to procedural fairness issues said to arise because the mother had represented herself during the three day hearing (which resulted in the making of the orders appealed) on account of the “breakdown of relationship” between herself and her former solicitor, and also because she had appeared at that hearing by telephone.
The mother’s second principal challenge relates to the weight which her Honour in reaching her decision that the child should for the future live with the father, placed on the opinions of an expert, Dr R, concerning the mother’s personality, having regard to his qualification as a psychiatrist rather than as a psychologist, and also to his alleged failure to explain how the mother’s personality difficulties would impact detrimentally on her capacity to parent the child.
The mother’s appeal is resisted by the father (who represented himself before both the Federal Magistrate and before us), and also importantly, by the Independent Children’s Lawyer. In other words, the father and the Independent Children’s Lawyer seek to maintain the Federal Magistrate’s orders.
At this introductory stage, it is also necessary to refer to the various applications in relation to the appeal, which for the most part, had been the subject of interlocutory hearings before a single Judge before the appeal could be listed for hearing, but which again for the most part ultimately had also to be listed before this Court for hearing at the same time as the appeal was to be heard.

The father’s application for the disqualification of the mother’s solicitor

The first of these applications, which should be mentioned, was an application by the father that Mr George Potkonyak, the solicitor acting for the mother on the appeal, should be, in effect, restrained from acting further in the proceedings. This application had originally been made by the father orally at a procedural hearing before Boland J on 27 May 2009.
It emerged from an affidavit filed by the father on 30 July 2009 (pursuant to directions made by Boland J on 27 May 2009) and from his oral submissions at the hearing before us, that the reasons why the father wanted Mr Potkonyak excluded from further participation in the proceedings related to what the father considered to be Mr Potkonyak’s inappropriate involvement for a legal practitioner in the mother’s case (including having had discussions with the child) and also to certain statements regarding the father in written material from Mr Potknoyak which the father considered could well influence the members of this Court adversely against the father.
However, when it was explained to the father that Mr Potkonyak would only be permitted to make submissions in support of the appeal, and that such submissions would have to be confined to the narrow grounds upon which an appeal against a discretionary judgment can be challenged, and also that judges are well able to disregard material which is prejudicial to a party and which has been put before them on behalf of the other party, the father did not press his application for the disqualification of Mr Potkonyak. This was a very sensible decision on the father’s part as it permitted us then to proceed to hear the appeal.
We make it clear, however, that nothing we have said about this matter would prevent the father from making a similar application in any future proceedings at first instance. As was explained to the father when he was before us, applications for the disqualification of a legal practitioner are more usually made at first instance rather than in appellate proceedings.

The mother’s application to adduce further evidence

There was also before us an application filed on behalf of the mother on 12 March 2009 in which she sought leave to adduce by way of further evidence six specified documents or groups of documents. However, Mr Potkonyak informed us at the hearing that the mother only pressed the application in respect of the first mentioned of the documents, being a “[n]otice of termination by real estate agency dated 5 September 200[6]”.
In her application filed on 12 March 2009, the mother had also sought leave to subpoena records from the Child Support Agency. Again, we were informed by Mr Potkonyak that the application for the subpoena was no longer pressed, because the information intended to be sought by the subpoena had been obtained in an email from the Child Support Agency. However, Mr Potkonyak did seek that we should receive as further evidence the email from the Child Support Agency which was dated 23 March 2009 and which set out the various assessments made by the Agency against the father in the period from 1 July 2006 to 21 December 2008.
In the context of the application for the email from the Child Support Agency to be received as further evidence, Mr Potkonyak drew to our attention the fact that an affidavit from the father sworn 18 August 2008, which was submitted to be relevant to the email from the Agency, had been omitted from the appeal book (although listed in the index to the book). We were provided with copies of that affidavit by Mr Potkonyak without objection.
We have ultimately determined that we should not accept any of the further evidence sought to be put before us on behalf of the mother (and referred to in paragraphs 10 and 11 above). Essentially, such further evidence relates to the father’s financial support of the mother and the child although the solicitor for the mother sought to argue that the documents in question would also go to the issue of the father’s credibility. As will later emerge, the Federal Magistrate made some adverse findings about the father in this regard, but did not accord much weight to those findings. The further evidence would not, in our view, have affected the findings of fact made in this regard, nor the findings with respect to credit, nor the weight given to such findings. We will therefore dismiss the application to adduce further evidence.

The mother’s application to be provided with transcript

An application had also been filed on behalf of the mother on 9 February 2009 seeking that she be provided free of charge with the transcript of proceedings before Sexton FM on 15 and 18 August 2008 and 3, 4 and 5 December 2008.
On 13 February 2009 Boland J referred that application to the Full Court which was to hear the appeal. However, her Honour also ordered that the mother could be provided at her cost with “the CDs of the sound files of the proceedings”.
It is important to note that apart from a transcript of part of the proceedings before Sexton FM on 19 August 2008, there was no transcript of any proceedings before her Honour either in the appeal book or otherwise before us at the hearing of the appeal.
It is also important to note that at the commencement of the hearing of the appeal, Mr Potkonyak informed us that the mother was not pursuing her application to be provided with transcript.
Thus, as we have just indicated, the appeal proceeded without transcript of the proceedings before Sexton FM (apart from the transcript of 19 August 2008). It should, however, be noted that it would appear from the written summary of argument prepared on behalf of the mother by Mr Potkonyak for purposes of the appeal, that some access had been had by the mother, or those acting for her, to the audio tapes of at least apart of the proceedings before Sexton FM (see paragraph 55 of the summary of argument). But, as we have indicated, the application for transcript was not pursued and the appeal proceeded without transcript (save for transcript of 19 August 2008).

The factual background and procedural history as recorded by Sexton FM

The factual background to this case as found by Sexton FM in her reasons for judgment (which were delivered on 23 December 2008 in relation to her orders made on 19 December 2008) can be briefly stated at least up until the time when proceedings commenced between the parties.
The parties lived together for 10 years prior to their separation in mid 2004. Their only child, X, was born in 1996. They were living on the Central Coast of New South Wales at the time of separation. After separation the child remained living with his mother and spent frequent time with his father by informal arrangements between the parties (who continued at that time to live in close proximity).
However, in early October 2006, the mother left the Central Coast with X (then aged about ten) without notice to the father and moved to the South Coast of Queensland. The father then commenced proceedings in the Gosford Local Court for recovery of the child and for an order that he live with him.
On 27 October 2006, the Gosford Local Court made a location order directed to the Queensland Police (missing persons unit) to provide the mother’s address to the Court. It emerges from the material in the appeal book that X was located on the South Coast of Queensland in October or November 2006.
On 7 December 2006, the Local Court made interim orders for the child to spend time with the father in the 2006/7 Christmas school holidays and placed his name on the airport watch list. The Local Court then transferred the proceedings to the Family Court.
Sexton FM recorded in her reasons for judgment that the matter came before the Federal Magistrates Court on no fewer than 14 occasions between February 2007 and the final hearing before her in December 2008. Her Honour also recorded that “[t]he proceedings took an unusual course and this history throws some light on the difficulties in the case which emerged”, and she went on in her reasons to explain in detail that “unusual course” and “the difficulties … which emerged”.
Because of the procedural fairness issues raised before us on behalf of the mother, it is necessary for us also to set out in detail the history of the proceedings before her Honour as recorded by her (notwithstanding the length and detail of that history).
The matter first came before her Honour on 14 February 2007 when the mother’s then solicitor, Ms Power, advised the Court the matter had been resolved and terms would be filed prior to the adjourned date of 16 March 2007. The father had at that time apparently agreed that X would remain living with the mother on the South Coast of Queensland and that X would spend time with the father in the school holidays.
On 16 March 2007, and again on 18 April 2007, the Court was told that the matter had been resolved and terms would be filed. On each of those occasions, the mother’s solicitor appeared for the mother and appeared by consent for the father.
On the further adjourned date of 29 May 2007, Ms Power, again appearing for the mother and by consent for the father, advised the Court “an issue remains as to the manner of communication between the parties regarding [X]’s travel arrangements” and the matter was listed for hearing on 20 September 2007. The mother was given leave to appear at that hearing from the South Coast by telephone.
On 20 September 2007, the mother was no longer represented and appeared in person by telephone. Her Honour made orders in relation to the holiday time X would spend with the father and in relation to the parties’ telephone communication. She ordered the parties to attend Relationships Australia at the Queensland South Coast for a post separation parenting assessment “as to suitability for family counselling and family dispute resolution”. She also made an order for Relationships Australia to notify the Court 48 hours before the adjourned date as to the parties’ progress and adjourned the matter until 21 April 2008 for mention.
According to her Honour’s reasons, the notification received by the Court from Relationships Australia prior to the April 2008 date said the father had attended by phone on 6 November 2007 for a one hour assessment. The mother had attended by phone on 7 November 2007 for 1 hour 50 minutes. The document, as it pertained to the mother, read “respondent [mother] refused a number of appointments offered for counselling. FDRP [Family Dispute Resolution Process] has recommended that the matter is not suitable for FDR.”
On 21 April 2008, the father appeared in person before her Honour and the mother appeared in person by telephone. Her Honour recorded what happened on that occasion in the following way in her reasons (delivered on 23 December 2008):
10.… The mother told the court she had spoken to a counsellor at Relationships Australia but had not attended appointments as arranged. She told the court she had written to Relationships Australia and wanted to read this letter to the court. I allowed the mother to start reading the letter but it quickly became clear that the letter was a highly detailed complaint about Relationships Australia and about the counsellor assigned to the matter. Within a few minutes, after I had told the mother to stop reading the complaint, the mother abruptly terminated the telephone call. The father then advised the court he intended to press his application for [X] to live with him. The father was concerned about the mother’s mental state and the impact her behaviour was having on [X]. The father believed the mother was obstructing [X]’s time with him and his telephone communication with [X]. I made orders for [X] to spend time with the father during the July 2008 school holidays and for [X] to communicate with the father by telephone …
Her Honour adjourned the matter for mention on 16 June 2008 and listed the matter for hearing for one day on 15 August 2008. She appointed an Independent Children’s Lawyer and ordered a Family Report.
At the mention on 16 June 2008, her Honour noted the mother’s advice to the Court that she was not prepared to provide her filed documents to the Independent Children’s Lawyer or to co-operate with the Independent Children’s Lawyer by allowing him to speak to X. Her Honour also noted that the matter may proceed on an undefended basis if the mother did not change her position on this issue, and she ordered that the mother make X available within 14 days to speak to the Independent Children’s Lawyer.
At the request of the Independent Children’s Lawyer, the matter was re-listed on 18 July 2008. The father and the Independent Children’s Lawyer appeared in person before her Honour, and the mother by telephone. The 15 August 2008 hearing date was confirmed, and her Honour noted the father would make the necessary arrangements at his expense for the mother and X to travel to Sydney for the August hearing, and that the family report writer would telephone the mother the following week to arrange for the mother and X to be interviewed for the family report.
On 25 July 2008, the matter again came before her Honour and each party appeared by phone. On that occasion her Honour noted the mother had failed to make X available to speak to the Independent Children’s Lawyer and failed to comply with orders for X to spend the July holidays with the father. The mother terminated the telephone call during the mention and again when the Court attempted to re-contact the mother. Her Honour made other orders requiring the mother to deliver X to the Court on 15 August 2008 and restraining the mother from moving her place of residence or X’s place of school.

On 12 August 2008, Altobelli FM dismissed an oral application by the mother for an adjournment of the hearing on 15 August 2008.
On 15 August 2008 the mother and the father both appeared in person before her Honour. The mother had failed to deliver X to the Court as ordered, but as a result of the Court’s intervention, X was brought to the Court later in the morning. Her Honour ordered that X spend time with his father until 19 August 2008 to enable the Independent Children’s Lawyer to arrange a meeting with X and for X to meet with Mr H, a family consultant in the Sydney Registry.
On 19 August 2008, a family consultant, Mr H, gave oral evidence in which he expressed concerns about X’s inability to express any views to him and strongly recommended the appointment of an expert before final determination, to assess each party’s mental status.
As her Honour observed in her reasons for judgment of 23 December 2008, “[t]he question for determination, by this time, was whether X would live with his mother or with his father”.
On 19 August 2008 her Honour ordered an expert report, and listed the matter for hearing for three days in December 2008. She also ordered a transcript of Mr H’s evidence be made available to each party and to the Court expert. She made further orders for X to spend time with the father and to communicate with him by telephone. The expert appointed was Dr R.
Her Honour’s record of events surrounding the final hearing in December 2008 (as contained in her reasons for judgment of 23 December 2008) was then as follows:
15. Between September and December 2008 the mother was again represented by a solicitor and the matter came before me on a further two occasions before the 3 day hearing commenced on 3 December 2008. By that time, the mother’s solicitor had filed a Notice of Ceasing to Act.
16.Each party’s affidavit material provided the court with little assistance although the mother’s material was voluminous, an affidavit of 94 pages filed in August 2008 and another, filed the day before hearing, of 105 pages. Another of the mother’s affidavits, sworn on 4 July 2008, addressed her reasons for refusing to permit the Independent Children’s Lawyer to meet with or speak to [X] and her criticisms of the court process and of the related organisations. This affidavit of 15 pages did not assist me. I quote from page 13 of that affidavit:
In the meantime why should I subject my son to the prejudices and bias of a court which treats us as a norm without even a pretense [sic] to fairness or equity or insights or evidence? It would be heartless and irresponsible for me to expose my child to this. How could I allow him to be personally subjected to such a wilfully destructive and ultimately useless system of processes made in hell?
17. The final hearing of the matter was further complicated by the mother’s failure to attend the hearing personally, as ordered. Instead the mother called the National Enquiry Centre [for the Family Law Courts] on the morning of the hearing, and the court initiated a telephone call to her in [the South Coast of Queensland], to enable her to participate by phone. The father appeared in person and the Independent Children’s Lawyer was represented by counsel.
Following that three day hearing (3, 4 and 5 December 2008), her Honour made the orders now appealed (and which are summarised in the first paragraph of these reasons) on 19 December 2008. As previously noted she delivered reasons for those orders on 23 December 2008.

The procedural fairness complaints

It would seem convenient following this outline of the course of the proceedings before Sexton FM, for us to address at this point the mother’s procedural fairness complaints. These complaints are contained principally in ground three of the mother’s grounds of appeal, and also in part of ground five.
Ground three and the relevant part of ground five are as follows:
3. The appellant was denied procedural fairness by not being allowed adjournment of the proceedings, so that she could prepare herself for the trial after breakdown of relationship [sic] between the appellant and her solicitor only days before the trial was to begin. As a result, the appellant, appearing on her own behalf via telephone, had hardly any of the relevant documents in her possession, including the father’s affidavit for the proceedings. This deprived the appellant of the opportunity to cross-examine the witnesses meaningfully and to present her case properly.
…
5. … Her Honour also prevented the mother on several occasions from presenting her evidence.
In relation to the complaint contained in ground three, we can only say that having regard to the long history of the proceedings before her Honour (as recorded in her reasons for judgment and which we have set out above) and in particular the previous adjournments of the final hearing, we are not persuaded that her Honour erred in refusing the mother a further adjournment of the hearing listed to commence on 3 December 2008.
We note also that in her reasons for judgment of 23 December 2008, her Honour when referring [at paragraph 3] to the recommendations of the expert, Dr R, that X should live with his father and spend time with his mother, also referred to the doctor’s opinion that the matter needed urgent determination as X needed stability and certainty about his arrangements for the future.
As to the mother’s specific complaint that she was deprived of the opportunity to cross-examine witnesses, the following paragraph from her Honour’s reasons for judgment of 23 December 2008 is particularly relevant and instructive:
27.As already noted, the mother was self represented at the hearing and appeared by phone. The court gave the mother considerable latitude when she cross-examined witnesses, in particular, [Dr R]. However, the court found it necessary to intervene frequently because of the mother’s tendency to make lengthy statements rather than ask questions and because of the mother’s difficulty confining her questions to a time-frame and a specific line of inquiry. In particular, the mother found it difficult, if not impossible, to contain her cross-examination of [Dr R] who, at the court’s request, appeared by telephone on three or four separate occasions during the hearing as a result of the mother’s request to continue questioning him. Despite the difficulties this caused both the court and [Dr R], the mother said she was unavailable for one of the opportunities created for her (though the arrangement was made with her consent) because she had not made alternative arrangements for [X] and a friend to be collected from school, and summarily announced she needed to leave. The mother repeatedly interrupted the proceedings despite requests by the court not to do so. At the end of his evidence, having responded to the mother’s questions at different times over the 3 days of hearing, [Dr R] said he was more inclined to the view that the mother suffers from a personality disorder. [Dr R] attributed the mother’s behaviour during the hearing to her personality difficulties.
As explained earlier, we do not have transcript of the proceedings before her Honour on 3, 4 and 5 December 2008. But as we have also explained, the application for transcript by the mother was not ultimately pressed, and as we have earlier observed, it was not pressed in circumstances where the mother and/or her legal representatives had been granted the opportunity to access the audio tapes of the proceedings before Sexton FM and where that opportunity had been taken.
It emerges from paragraph 69 of the written summary of argument of the mother’s solicitor that the assertion in ground five that her Honour prevented the mother on several occasions from presenting her evidence is particularly directed to the hearing (or mention) before her Honour on 19 August 2008. Fortunately, we do have transcript of that occasion (because her Honour made that transcript available to the parties at the time). It reveals that her Honour did prevent the mother from giving evidence, but that she did so because she was concerned that the mother might incriminate herself by revealing that she had undertaken an illegal taping or recording activity.
We thus conclude that on the material before us there is no substance in the mother’s grounds of appeal which raise issues of procedural unfairness.

The mother’s complaints directed to the expert psychiatrist’s recommendation and the Federal Magistrate’s decision that the child should live with the father

The other main category of complaint by the mother is contained in her first and second grounds of appeal, which, despite their unfortunate, and in some instances totally inappropriate, content, we consider necessary to set out:
1.The learned Magistrate erred in beginning with the conclusion that the mother suffers from some medical condition and that “At the heart of this case is the critical question of whether [X] is at risk of psychological harm if he lives primarily with the mother”. The learned Magistrate erred in ignoring, in the most important part of her reasons, the fact that there were two parties to the proceedings. Her Honour went into great detail analysing the mother’s “personality difficulties” without even a mention of any personality characteristics of the father. Thus, the case did not begin with the rebuttable presumption of the equal shared parental responsibilities as the law dictates.
2.The learned Magistrate erred in relying on a speculation by [Dr R], in his medico-legal report, of unspecified “personality characteristics” of the mother which may have, allegedly at some future time, detrimental psychological effect [sic] on the child. This newly discovered ‘[Dr R] Syndrome’ has no scientific basis, is not accepted by the psychological profession (of which [Dr R] is not a member) and [Dr R] is not qualified to make a psychological assessments [sic] nor was he required to do so. The relevant orders direct [Dr R] to access the parties for any “mental illness or personality disorder”, not to assess the parties’ personality characteristics. [Dr R] found no mental illness or any disorder whatsoever affecting the appellant mother. The conclusions and recommendations of the report, to which the learned Magistrate gave considerable weight in her decision, are inconsistent with the facts recorded in it by [Dr R]. [Dr R] misled the court.
The quotation in the first sentence of ground one is a direct quotation from the first sentence of paragraph 26 of her Honour’s reasons for judgment of 23 December 2008. At that point in her reasons, her Honour was addressing the second of the “primary considerations” contained in s 60CC(2) of the Family Law Act 1975 (Cth) (“the Act”), being the need to protect the subject child from physical and psychological harm and from being subjected to, or exposed to abuse, neglect or family violence. The primary considerations together with the additional considerations in s 60CC(3), are the considerations to which the Court must have regard in determining the best interests of the child when deciding whether to make a particular parenting order (s 60CA and s 60CC(1)).
The full text of paragraph 26 of her Honour’s reasons is as follows:
At the heart of this case is the critical question of whether [X] is at risk of psychological harm if he lives primarily with the mother. Although he could find no evidence of mental illness, [Dr R] believes [X] is at risk of harm if he continues to live with his mother, because of the mother’s personality characteristics. At the commencement of the hearing Dr R said he was unable to say definitively, on the information available to him, that the mother has a personality disorder, but she may have.
Relevantly for present purposes her Honour then continued in paragraphs 28 to 30 (we have earlier in another context set out paragraph 27 of her Honour’s reasons):
28.[Dr R] made the following relevant observations of the mother’s difficulties and his view of their impact on [X].
(a)The mother has difficulty making and executing a rational plan because of her obsessional characteristics. When he interviewed the mother in October 2008, the mother had no clear or definite plan about moving to Newcastle or where [X] would attend school. He says at page 9 of his report:
She was very vague about when she planned to do this and she didn’t seem to have formed a clear direction which seemed extraordinary considering the fact that [X] was due to go to high school next year.
Even though the mother said at hearing she planned to move to the Newcastle/Central Coast area, [Dr R] was not confident the mother would execute that plan.
(b)The mother has difficulty judging how to respond, and to separate what is relevant from what is irrelevant. This explains why she has difficulty executing plans which leaves both [X] and the mother confused. [X] has no clarity as to where he is headed which leads to instability and insecurity for him.
(c)The mother has difficulty with inter-personal interaction. The mother is hoping to connect with others but overwhelms them and others cannot cope with the emotional overload she places on them. The mother is unable to distil issues relevant to the court. This inability to discriminate leads to the voluminous letters and affidavits in evidence.
(d)The mother primarily focuses on her need to communicate with the father. However, she cannot have a rational and objective discussion about [X]’s future with the father because she cannot separate her own ongoing issues with the father from what is best for [X].
(e)The mother’s interactions are destructive and intense so it requires a lot of energy to contain her. The intensity of her relationships with others affects all her relationships. She has a dependency problem on the relationships she has formed. She appears to have been unable to emotionally separate from the father. [Dr R] says:
I suspect that she has an obsessional personality style which leads her to have difficulty releasing things when they are the object of her attention.
(f)Though she is not seeking to harm others, if someone does not agree with the mother, she tries to convince them of her view in a tenacious exhaustive way. She is preoccupied and absorbed in her own issues and exhausts others. She cannot set boundaries.
(g)The mother has made some decisions that would generally be viewed as out of the ordinary. For example:
1.Taking herself and [X] to live … [on the South Coast of Queensland], when remaining so far away was clearly unsustainable.
2.Choosing to accompany the father to Greece after separation when the father planned to live there with his girlfriend.
3.Arriving at her appointment with [Dr R] at 9 a.m., the father’s allocated time, when her own appointment was later in the day.
4.On one occasion, maliciously damaging clothing in her sister-in-law’s shop by pouring bleach on the clothing (an allegation denied by the mother).
5.Not paying the Harbour Bridge toll, not wearing a seat belt because it’s the law and driving on private roads because the road should be for everyone.
29.According to [Dr R], the mother’s personality style has not had a major impact on [X] to date because [X] has not needed other relationships. However, [Dr R] believes the mother will have great difficulty with [X] as he gets older. [X] will be polarised at one extreme or the other, either rejecting the mother completely, or being totally dominated by her. Either way, [Dr R] holds a strong view that [X] will have difficulty forming a healthy identity if he remains primarily with his mother.
30.This is the factor to which I give most significant weight.
Before saying more about grounds one and two, it will be useful to refer briefly to her Honour’s findings regarding the other primary considerations in s 60CC(2) and the relevant additional considerations in s 60CC(3) as these findings will provide a background to our consideration of those grounds and will also assist in an understanding of her Honour’s decision that X should live with his father.
In relation to the benefit of the child having a meaningful relationship (s 60CC(3)(c)) with both parents, her Honour found:
25.[Dr R] says [X] has, and needs, a close relationship with each of his parents. Each party acknowledges [X]’s love for the other party and his need to spend time with each of them. On each party’s proposal, assuming the mother lives within a reasonable distance of the father’s residence, [X] will spend regular time with the other party and continue to benefit from a meaningful relationship with each of his parents.
In relation to X’s views and the weight to be given to those views (s 60CC(3)(a)), her Honour found:
34.I have regard to [X]’s expressed view that he would like more time with his father, and to [Dr R]’s observation that it is unusual for a child of [X]’s age to not want to say what he wants. However, I give minimal weight to this factor in reaching my decision.
In relation to the nature of X’s relationship with each of his parents (s 60CC(3)(b)), her Honour found (at paragraph 35) that he had a close and loving relationship with each parent.
In relation to the willingness and ability of each parent to facilitate, and encourage, a close and continuing relationship between X and the other parent (s 60CC(3)(c)), her Honour considered in considerable depth the evidence of each parent relevant to this matter (paragraphs 38 to 47 of her reasons). She concluded:
48. In [Dr R]’s view, the father is likely to encourage a close and continuing relationship between [X] and his mother. While he accepts the mother has facilitated time between [X] and the father, [Dr R] formed the view it has not been without considerable difficulties. He says the mother’s difficulties in her relationship with the father may lead to problems in facilitating [X]’s time with the father, if [X] were to live primarily with the mother. I accept [Dr R]’s view on this issue.
Similarly, her Honour considered in some depth the evidence relevant to the capacity of each of the child’s parents to provide for the needs of the child, including his emotional and intellectual needs (s 60CC(3)(f)). She concluded:
57.[Dr R] says, and I accept, that the father is better able to provide [X] with security and stability including a more stable social network.
58.On the basis of these findings, I am satisfied the father’s parental capacity is superior to the mother’s. This is a factor I take into account.
In relation to the matter of each parent’s attitude to the child and to the responsibilities of parenthood (s 60CC(3)(i)), her Honour particularly focused on financial issues. Although her Honour ultimately concluded that these matters or facts did “not weigh heavily” in her decision, we propose to set out her Honour’s findings in this regard, some of which are adverse to the father. We do so because of the emphasis placed before us by the mother’s solicitor on the father’s alleged lack of financial support for the mother and the child and also because of the mother’s further evidence application which we earlier referred to:
60.The mother says she has struggled financially, with government benefits as her only income, and that [X] has missed out on activities from time to time because of the cost involved. Nevertheless, I am satisfied the mother has managed her limited income well for [X]’s benefit and that she has provided for him with minimal assistance from the father.
61.It is common ground that the father has paid all [X]’s airfares to and from [the South Coast of Queensland] for the last 2 years, that he has met the expense of [X]’s mobile phone and that he has bought [X] clothes and other items. As well, I accept there have been periods when the father’s wages have been garnisheed by the Child Support Agency. However, I am not persuaded the father has paid child support in accordance with his capacity to do so since separation.
62.After separation, the father paid half the mother’s rent, her mobile phone bills and at times other bills, though at times he allowed the rent to fall into arrears. While the father claims to have brought the rental account up to date before the mother was asked to leave the rental premises, and while I find the father’s evidence as to the cause of the mother’s eviction more likely than the mother’s, I am critical of the father for exposing the mother to possible eviction. I also find it unacceptable that the father has failed to lodge his taxation returns for many years, although I accept his evidence that he is now bringing his affairs into order.

In considering the extent to which each parent had fulfilled his or her responsibilities as a parent (s 60CC(4)), her Honour focused on the difficulties which the parents experience in communicating with each other, and also on Dr R’s evidence about the mother in this regard. Her Honour concluded:
70.In [Dr R]’s view, the mother’s personality difficulties, including her intense and overwhelming style of communication, will lead to enormous difficulties for [X] in the future because he will have trouble separating his issues from her issues and will find it difficult to form other relationships.
71.I accept [Dr R]’s evidence and give significant weight to these matters.
As to the effect of any change of circumstances on the child, her Honour can again be seen as accepting Dr R’s opinion when she said:
73.[Dr R] believes [X] would separate readily from his mother, given his age and the strength of his relationship with the father, on the basis he spends significant time with her.
It will also be useful in this context, to refer to her Honour’s decision that the presumption of equal shared parental responsibility (contained in s 61DA of the Act) should not apply in the present case. Her reasons for this decision were as follows:
82.The father says he finds it impossible to communicate with the mother by telephone or face to face. He says the mother is unable or unwilling to confine herself to issues the father regards as relevant to [X]’s welfare. The mother says she would like to communicate face to face and/or by telephone with the father. In [Dr R]’s view, as earlier noted, direct communication between the parties is unproductive and should be avoided to the extent that is possible. In cross-examination, [Dr R] recommends against an order for equal shared parental responsibility. Given the mother’s personality difficulties, and the consequent problems joint decision making between the parties would cause for [X], I have decided it is not in [X]’s interests for the parties to have equal shared parental responsibility.
Her Honour’s overall conclusion that X should for the future live with the father was then expressed in the following way:
83.[X] has been described by both [Mr H] and [Dr R] as a sensitive child who finds himself in a very difficult position. He loves both his parents and wants, and needs, to spend substantial time with each of them. I accept [Dr R]’s opinion that the mother has personality difficulties which will cause [X] increasing problems as he grows older if he lives primarily with her. [Dr R] says [X] is old enough to be separated from his mother. He says the father presents, “as a very competent forthright person who is articulate and insightful.” … “a capable and caring parent” … “a great deal to offer [X].” He says the father is better able to provide [X] with security and stability and that [X] will have a balanced relationship with the father while still spending time with the mother.
84.I find no practical impediments to the father caring full time for [X], despite his work commitments. Given my findings that the father has the capacity to care for [X], meet his needs, including his need to spend time with the mother and communicate with her, I have decided [X] will live primarily with his father.
We return now to the submissions made by the mother’s solicitor in support of the first two grounds of appeal. Principally those submissions challenged Dr R’s qualification as a psychiatrist (rather than as a psychologist), to diagnose personality characteristics or difficulties in the mother, and asserted a failure on the doctor’s part to address short-comings on the part of the father.
Included in the challenge to Dr R’s qualifications, was a complaint by the mother’s solicitor that the doctor’s report did not provide details of his qualifications. This was a complaint which, if it was to be made, should have been made before the Federal Magistrate. There was no suggestion made before us that the complaint was raised at trial by the mother although she clearly had the opportunity to challenge the doctor in this regard given her long cross-examination of him. It might also well be said that the point now sought to be taken regarding Dr R’s qualifications, should have been taken when the order for his appointment to report on “personality disorder” was made. It must of course be remembered that the doctor did not ultimately diagnose a personality disorder in the mother; he referred only to her personality characteristics and style, and possible resulting difficulties. The Federal Magistrate also did not find that the mother had a personality disorder.
In relation to the issue of Dr R’s qualifications, we would observe that Dr R is one of the most experienced experts who appears in children’s cases in this jurisdiction, and in our view, there was no opinion expressed by him in this case that he was not qualified to give by reason of his experience and qualifications.
It is also important to note that, while the mother’s solicitor sought to criticise – unjustifiably in our view - Dr R’s description of the mother’s decisions (which are listed in sub-paragraph (g) of paragraph 28 of Sexton FM’s reasons – see paragraph 54 of these reasons) as “out of the ordinary”, no real, or at least cogent, challenge was mounted to Dr R’s important observations, as recorded in paragraph 28 of her Honour’s reasons.
Finally in connection with the first two grounds of appeal, we do not think it can be validly asserted (as the mother’s grounds of appeal and the submissions made in support of them appear to assert) that either Dr R or her Honour have over-emphasised problems on the part of the mother which would impact on her capacity to parent the child, and have not had sufficient regard to shortcomings on the part of the father. Put simply, the evidence overall established greater concerns about the mother’s parenting capacity than it did about the father’s capacity.
Ground five (in part) asserted a bias on the part of her Honour against the mother because of her preference for the father’s evidence. Ground four also challenged, but in a non-specific way, the evidence of the father and his current partner. On the basis of the material before us those grounds have no substance.
Before concluding, we also mention that before us the mother’s solicitor raised some concerns regarding the time which apparently lapsed between Dr R’s report being sent to Sexton FM’s chambers and her Honour’s release of the report. As we endeavoured to explain at the hearing, there could be many practical reasons for this apparent delay, and it therefore causes us no particular concern given the very heavy workload of the Federal Magistrates Court.

Conclusion

As we have found no substance in any of the mother’s grounds of appeal, her appeal must be dismissed.
However, given the rather limited scope of the mother’s grounds of appeal, and the difficulties which we have earlier identified with those grounds, and given also the obvious significance for the child of the Federal Magistrate’s decision, we think it important to explain that we have endeavoured to consider carefully the material before us, and in light of that consideration we are satisfied that her Honour’s decision was in the child’s best interests.

Costs of the appeal

Although the Independent Children’s Lawyer sought an order for costs against the mother in the event that the appeal was not successful, we do not propose to make such an order having regard to the mother’s financial circumstances.

I certify that the preceding seventy five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 8 September 2010.

Associate:

Date: 8 September 2010