Cole & Rudzik
[2024] FedCFamC1A 103
•3 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Cole & Rudzik [2024] FedCFamC1A 103
Appeal from: Cole & Rudzik [2024] FedCFamC2F 14 Appeal number: NAA 47 of 2024 File number: PAC 4039 of 2020 Judgment of: AUSTIN J Date of judgment: 3 July 2024 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Whether the primary judge fell into error by declaring the children should spend no time with the appellant – Where the appellant alleges bias – Where the primary judge previously adjudicated in the proceedings as a registrar before being commissioned as a judge – Where the appellant did not apply to disqualify the primary judge in which event his complaint of bias was waived – Where the primary judge’s view about the appellant’s unreliability as a witness did not represent pre-judgment – Where the appellant’s complaint the primary judge disregarded portions of the expert opinion evidence is rejected – Where the primary judge was obliged to make factual findings about the appellant’s past behaviour according to the civil standard of proof – Where a factual mistake of the primary judge had no bearing upon the ultimate judgment and does not sustain the appeal – Where several appealed orders were made with the parties’ consent – Where one appealed order is procedural in nature and does not embody a judgment from which an appeal validly lies – Appeal dismissed – Where the respondent sought no order for costs against the appellant. Legislation: Evidence Act 1995 (Cth) ss 93, 128, 140, 178
Family Law Act 1975 (Cth) Pt VII, s 69ZW
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW) s 141
Mental Health Act 2007 (NSW)
Cases cited: Albert & Plowman [2020] FamCAFC 23
Carpenter & Lunn (2008) FLC 93-377; [2008] FamCAFC 128
Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
De Winter and De Winter (1979) FLC 90-605
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Hall and Hall (1979) FLC 90-713; [1979] FamCA 73
Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9
Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
U v U (2002) 211 CLR 238; [2002] HCA 36
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Number of paragraphs: 57 Date of hearing: 1 July 2024 Place: Newcastle (via Microsoft Teams) The Appellant: Litigant in person Counsel for the Respondent: Mr Fermanis Solicitor for the Respondent: Sydney West Family Lawyers ORDERS
NAA 47 of 2024
PAC 4039 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR COLE
Appellant
AND: MS RUDZIK
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
3 JULY 2024
THE COURT ORDERS THAT:
1.The Amended Notice of Appeal filed on 6 May 2024 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cole & Rudzik has been approved pursuant to s 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
These reasons explain the dismissal of the father’s appeal from orders made on 30 January 2024 by a judge of the Federal Circuit and Family Court of Australia (Division 2) in respect of the parties’ two children under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
Background
The elder child was born in 2015 and was three years of age when the parties finally separated in August 2018, at which time the mother was pregnant with the younger child.
Shortly after the parties’ separation, a family violence order was made by a State court against the father to protect the mother, the elder child, and her two older children from a prior relationship.
The younger child was not born until 2019 and the father only ever saw him in hospital in the days following his birth, so he does not know the father.
The elder child’s interaction with the father was severed at the time of the parties’ separation in August 2018 until the younger child’s birth in 2019. The elder child then spent time with the father for two months under professional supervision, but he has not spent any time at all with him since April 2019 and has not spoken to him since May 2019.
The father commenced proceedings seeking parenting orders under Pt VII of the Act in August 2020, following which interim orders were made in both December 2020 and in May 2021 requiring the children to live with the mother and spend no time with the father.
The proceedings were listed for trial before the primary judge in October 2023. The father’s long history of violent conduct and unstable psychological health were prominent features of the evidence adduced at trial. In the reasons for judgment subsequently published, the primary judge described the essential issue in this way:
3.All parties agree that it is in the children’s best interests that they continue to live with the mother who is to be allocated sole parental responsibility. The issue to be determined is what time, if any, [the elder child] and [the younger child] should spend with the father having regard to the father’s mental health issues and alleged history of the perpetration of violence.
The father’s alternate proposals for his future interaction with the children covered a broad spectrum (at [61]–[65]) – at one end, substantial time on a final basis, and at the other end, very truncated time as an interim measure and a review of the situation 12 months later.
The mother and the Independent Children’s Lawyer (“the ICL”) both advocated for final orders requiring the children not to spend any time at all with the father.
On 30 January 2024, the primary judge pronounced judgment making final orders to this effect: the mother has sole parental responsibility for the children (Order 1); the children shall live with the mother (Order 2); the father may communicate in writing with the children (Order 3); the children shall spend no time with the father (Order 4); the mother may apply for the children’s passports without the father’s consent (Order 5); the mother is restrained from denigrating the father to the children (Order 6); costs are reserved (Order 7); and all other applications are dismissed (Order 8).
The appeal
Although the father’s appeal is supposedly brought from all orders made by the primary judge, that cannot be correct.
Orders 1, 2 and 3 were made with the parties’ consent. No appeal lies from orders made with the appellant’s consent unless the grounds are narrowly limited to those impugning the integrity of the parties’ agreement or depriving the Court of jurisdiction or power to pronounce judgment which consummates their agreement (Harvey v Phillips (1956) 95 CLR 235 at 244). None of the grounds fall within those parameters.
Order 6 was not made consensually, but it only works to the father’s advantage and could not conceivably be the subject of his challenge. The order was actually made in satisfaction of his application (at [259]).
Order 7, reserving costs, is entirely procedural in nature and does not embody a “judgment” from which an appeal validly lies (Commonwealth v Mullane (1961) 106 CLR 166 at 169).
From the father’s perspective, only Orders 4, 5 and 8 were controversial, but it is really only Order 4 with which he is dissatisfied, so the appeal is confined in that way. Accordingly, the issue for determination in the appeal is whether the primary judge fell into error by declaring the children should spend no time with the father.
Order 5, which authorises the mother to apply for the children’s passports without procuring the father’s consent, is no more than an extension of the order investing her with sole parental responsibility for the children (Order 1), which order was made with his consent.
Order 8 is of no moment because, other than for orders to regulate the father’s interaction with the children, which application was dismissed by the terms of Orders 3 and 4, he made no other ancillary application which was dismissed by Order 8. The form of the father’s application was summarised by the primary judge in the reasons for judgment (at [61]–[65]).
The seven mis-numbered grounds of appeal are pleaded in the father’s Amended Notice of Appeal filed 6 May 2024 as follows:
1.Failure to follow the correct court procedures of [a named registrar] by forcing an Interim Hearing at the March 30th, 2021 Directions Hearing, despite [the father] wishing to wait for an Single Experts Family Report to be made, and then at said hearing on May 7th, 2021, throwing the hearing out due to the fact that the report had not been made prior to the hearing, wasting the opportunity for an Interim Hearing to be completed.
2.[A named registrar] at the Interim Hearing had complete disregard and severe discontent for [the father’s] council at the time, completely berating Council as to being a failure, yet at all other times being compliant and complacent with the opposing council and the ICL.
3.Whilst at the Interim Hearing, [a named registrar] stated quite clearly that she was “always going to make orders to deny [the father] any time with the Children,” therefore tainting any future judgments.
4.[The primary judge] disregarding sections of the Court Appointed Single Experts’ report, especially those that state about mental health, especially regarding Autism Spectrum Disorder Single Expert is a specialist in. Paragraphs 227, 230, 234, 238, 247, 248, instead relying solely on a single throwaway line comment made of Borderline Personality Disorder so that she can make findings that suit her work on Lighthouse Project and the Evatts Lists
5.[The primary judge] making inconsistencies of Dates and Times of when certain events listed occurred, especially those that be involved of [the father] and NSW Police, Especially in regards to events that took place [in November 2021] and [October 2022]. Paragraphs 194 through 199, 201 through 208.
6.[The primary judge] making a judgment on events listed in the NSW Police data base as to the criminal responsibility of [the father] despite them being outside of her jurisdiction and she clearly States [the father] is responsible, and therefore implying he is guilty of committing those crimes despite the NSW Police either failing show such outcomes or when being unable to determine an outcome, especially relating to the Phone Calls and Text Messages of March and April 2019 and the Messages from [a named person]: April – June 2019, and October 22nd, 2019, contradicting and then discounting NSW Police and their investigations into the matters, yet [the primary judge] upholds other NSW Police investigations as truthful and correct. Paragraphs 102 through 186, 194 through 208, especially Paragraphs 143, 150, 160, 181
6.[The primary judge] accepting that although [the father] has Mental Health Conditions, she then makes assertions to the effect that [the father] is nothing but “sarcastic and at times rude” and that she “did not find him to be an impressive witness”, going so far as to say “Whilst I will make specific findings of fact based on the evidence I approach the father’s evidence with some caution” therefore, implying that in making her judgment that she would not accept [the father’s] evidence with any source of credibility, yet she stated about [the mother] that “I found her to a credible witness”, indicating that whatever evidence or correlations [the mother] presented would be used to predetermine the outcome of her Judgment. Paragraphs 14, 74, 92 through 99.
This contributes to a Apprehend Bias on the part of [the primary judge], specifically that she is willing to discriminate against a person with a clear Mental Health Diagnosis’s in favour of something that she can then use for research support in her work with the Lighthouse Project and the Evatts Lists.
In previous cases, [the primary judge] allowed Time Spent to others that had mental health concerns yet has purposely chosen in this case to ignore the proper medical diagnosis’s and instead focus solely on that helps her further advance her own works for her own gains.
It is entirely plausible that had this case been assigned to another person, or had been assigned to someone who did not have such a vested interest in cases with Domestic Violence allegations then [the father] may have stood a better change in being able to gain access to his children
None of the complaints are ostensibly competent grounds of appeal, but will nonetheless be addressed by making assumptions about the nature of the underlying grievances they comprise. Unfortunately, the father’s Summary of Argument affords no help in divining the meaning of the grounds of appeal because it does address them at all and begins as follows:
1.My main argument point in appealing [the primary judge’s] Judgment in the Case of [matter name and matter number] is that of Apprehended Bias.
The submissions which then follow are entirely unconnected to the grounds of appeal and are an arbitrary stream of the father’s thoughts about the evidence and the course of the litigation. So were most of his oral submissions, though no disrespect is intended by those observations.
Ground 3
This ground will be discussed first as it inferentially alleges the primary judge’s bias.
The “interim hearing” to which this ground refers is the interim hearing conducted on 7 May 2021 by the primary judge, which her Honour was then adjudicating with delegated authority as a registrar. Her Honour was later commissioned as a judge of the Federal Circuit and Family Court of Australia (Division 2) in October 2021.
Assuming for the moment her Honour actually made the comment alleged by this ground, which remains unproven, it still cannot succeed. The appellant did not apply to review the decision made by her Honour as a registrar on 7 May 2021, eschewing his absolute right to do so (Harris v Caladine (1991) 172 CLR 84 at 95, 120–122, 145, 150–151, 160 and 163–164). It must follow that he was content to abide by the decision, despite the comment he alleges was then made by her Honour.
Thereafter, the appellant did not apply to disqualify the primary judge from further adjudicative participation in the proceedings, in which event his complaint of bias was waived (Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [76] and [79]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6], [55]–[56] and [69]; Vakauta v Kelly (1989) 167 CLR 568 at 577–579 and 586–588). The appellant could not willingly participate in the litigation over the ensuing years, saying nothing of his concern about the conduct of the interim hearing in May 2021, waiting for the delivery of final judgment in January 2024 to see whether or not he was satisfied before deciding to appeal and raise his complaint of bias from nearly three years before.
The second numbered Ground 6 refers tangentially to the primary judge’s finding about the father being an unreliable witness contributing to his apprehension of her Honour’s bias against him, but the complaint is misconceived, as were the father’s oral submissions on the issue.
The primary judge did not discriminate against the father due to his unstable psychological health. On the contrary, her Honour expressly recognised how his diagnosis with a recognisable psychological condition would not preclude him from having good relationships with the children and playing a meaningful role in their lives (at [97]). As later discussed, the primary judge’s findings about the parties’ respective reliability were based upon observations, not diagnoses (at [74]–[77]).
Faced with conflictual and irreconcilable evidence, it is an unexceptional incident of the judicial function to repose differing weight in the evidence given by different witnesses. No bias, either actual or apprehended, is capable of inference merely because a judge expresses greater reliance upon the evidence of one witness. The primary judge’s ultimate view about the father’s unreliability as a witness did not represent the “pre-judgment” of issues, but rather a considered judgment formed on the whole of the tested evidence.
Grounds 1 and 2
These grounds are addressed next because they imply either apprehended judicial bias or the denial of procedural fairness based on the primary judge’s differential treatment of the parties’ legal representatives.
Again, these grounds refer to the “interim hearing” conducted in May 2021, but any alleged denial of procedural fairness at that hearing could have had no bearing at all upon the fairness of the final trial later conducted between the parties in October 2023 resulting in the orders made in January 2024 and, for the reasons already explained under Ground 3, any allied complaint of bias was waived after the interim hearing in May 2021.
Ground 4
This ground embodies a complaint that the primary judge disregarded portions of the expert opinion evidence given by the single expert.
At the outset it is as well to observe that her Honour did not “disregard” any of the single expert’s evidence, as it was discussed at length in the reasons for judgment. Rather, tranches of the single expert’s opinion evidence were rejected.
The single expert recommended the father was capable enough to allow the children to spend time with him under the long-term supervision of the paternal grandparents because his mental health had stabilised and his life was more settled than it had been for some years, which proposition both the mother and the ICL refuted (at [221] and [227]).
The primary judge rejected the single expert’s opinion evidence in that regard because: the single expert had not read the material produced on subpoena by the police, so she was ignorant of the father’s misconduct after July 2021 (at [228]); she only took the father’s commission of family violence into account on the question of the allocation of parental responsibility, but not in relation to how it might affect orders which would require the children to spend time with him (at [229]); she did not take into account the evidence of the father’s violent conduct towards third parties (at [230]); she did not take into account the multiple times the father has attracted adverse police interest (at [230]); she was surprisingly unable to offer any comment upon the implication that the father could not “self-regulate” when upset (at [231]); she did not address in any meaningful manner the risks of harm faced by the children if spending time with the father (at [233] and [235]); she did not address the mother’s fear of the father and how that might impinge upon her parenting capacity if forced to engage with him (at [233]); her opinion about the current stability of the father’s mental health did not accord with the primary judge’s findings (at [237]); and the primary judge did not accept her minimisation of the seriousness of the father’s multiple breaches of family violence orders (at [238]).
The false assumption underpinning this ground of appeal is that the primary judge was obliged to accept the expert opinion evidence given by the single expert, but that is not so. Expert opinion evidence is not decisive of the dispute as judicial power to decide the legal dispute always rests in the hands of the trial judge, not the expert witness. Expert opinion evidence is liable to be influential, but not if it is discounted for valid reasons. The Court is never obliged to accept expert evidence (U v U (2002) 211 CLR 238 at 261; Albert & Plowman [2020] FamCAFC 23 at [19]–[22]; Carpenter & Lunn (2008) FLC 93-377 at [226]–[227]; Hall and Hall (1979) FLC 90-713 at 78,819).
The reasons given by the primary judge for discounting the probative value of the expert’s opinion evidence were rational and persuasive. They had nothing to do with the father’s diagnosis with some form of disorder. The primary judge was not swayed by any diagnostic labels to which the father and the single expert referred (at [92], [94] and [96]), concluding this:
97.It does not appear that the single expert formally diagnosed the father as being on the autism spectrum and I am not satisfied that the evidence grounds such a finding at this stage. In any event, I accept the unchallenged evidence of the single expert that any such diagnosis would not in itself preclude the father from having a good relationship with the children and being able to play a meaningful role in their lives.
…
99.As stated above, I am unable to make a finding as to whether the father’s past diagnosis is incorrect as opined by the single expert. It is not necessary in any event to make such a finding to determine the parenting arrangements which are in the children’s best interests. What is significant is the father’s behaviour to date and the potential risks arising from such behaviour in the future.
The appealed orders precluded the children’s interaction with the father because he was found to pose an unacceptable risk of harm to them (at [242], [243], [249] and [251]), so there was no error.
In oral submissions, the father contended the primary judge erred at [97] by finding the single expert had not formally diagnosed him as being on the autism spectrum. His point about that being a factual mistake was arguable, since the single expert said this in her report:
102.Based on the information obtained, [the father] meets diagnostic criteria for Autism Spectrum Disorder, Level 1, without accompanying intellectual impairment or language impairment (ASD; DSM-5 Code: 299.00). ASD is a developmental condition that affects the way individuals relate to their environment and interact with other people. [The father] appears to find understanding other people and the more complex aspects of social interaction challenging. He appears to find it hard to translate some of this knowledge into interactions with others, particularly where there is the need to mentalise i.e. consider what may be going on in another person’s mind when interpreting their behaviour. He, at time, appears to be self-focused as a result. [The father] continues to have strong community values and is actively involved in a number of organisations, for example the [a named organisation], where his commitment is very evident. He is also open to learning new skills.
(Report of the Single Expert dated 12 July 2021)
Then, in cross-examination, the single expert said this:
[The single expert]: In my report, I diagnosed the father as having autism, and I was interested to note that in the material and I – as you pointed out, the updated material was sent to me half an hour ago, so I’ve only got the chance to read the father’s affidavit of 6 February of this year, and the mother’s affidavit of 31 June of this year. And I think there was an amended initiating application from 12 November 2020, and a response from, I think, 11 November 2020. But I’m – you know, some of the – what – what you’re describing, or my sense of it is, would be in keeping with somebody with autism who has very clear views about what should or shouldn’t be done. So the incident on [public transport], I was quite interested in that from that point of view. So I think there’s two separate points that I’m making. One is that I do think the father’s autism impacts on how he relates with the world. And at times, he can be quite rigid and can have views about, you know, right and wrong and what people around him should be doing. But I don’t think that would necessarily preclude him being able to have some sort of relationship with his children.
…
[Counsel for the ICL]: Right. Now, I understanding that you’ve said that the father meets the criteria for autism spectrum disorder level 1. You’ve also - - -?
[The single expert]: Yes.
[Counsel for the ICL]: You’ve also said in paragraph 102 of your report that he can present as self-focused?
[The single expert]: Yes.
…
[Counsel for the mother]: And then, in the course of your interviewing the father and a test you administered, you made a diagnosis of ASD?
[The single expert]: That’s correct.
(Transcript 24 October 2023 p.152 lines 5–18; p.154 lines 4–8; p.161 lines 19–20)
Even assuming the primary judge did err when finding the single expert had not “formally diagnosed the father as being on the autism spectrum”, a question arises as to the materiality of the finding. Her Honour went on to expressly state that, even if he was formally diagnosed with some form of psychological condition, it would not disqualify him as a parent and so no disadvantage accrued to the father. The alleged mistake had no bearing upon the ultimate judgment of the Court and consequently does not sustain the appeal (De Winter and De Winter (1979) FLC 90-605).
Ground 5
By implication, this ground is a complaint of mistaken factual findings concerning certain historical events in November 2021 and October 2022.
In respect of the first incident, the primary judge recited agreed facts from a police business record concerning the father’s arrest and charge with several offences perpetrated against third persons following a traffic incident, for which he was refused bail and later convicted and sentenced. The father’s version of the incident was inconsistent with the police record, but the primary judge accepted the contemporaneous police record as being more accurate than the father’s recollection. There was no factual error. The father could not deny his commission of criminal offences for which he was convicted and sentenced in another court.
In respect of the second incident, the father was charged with assaulting some teenagers on public transport. At the time of hearing before the primary judge, the charges had not been heard and were listed for hearing before a State court in early 2024. Upon investigation, the father gave the police a version of events which differed markedly from that given by the two alleged victims. The father, subject to the grant of a certificate under s 128 of the Evidence Act 1995 (Cth), gave evidence before her Honour that he only acted in self-defence and so was not guilty of the charges. In the absence of any direct evidence from the alleged victims, the primary judge found in respect of that incident:
205. I am unable to make a positive finding grounded on the evidence.
The finding was reasonable, unexceptional and favourable to the father. There was no error.
First Ground 6
The meaning of this ground is difficult to discern. It appears to principally be an assertion that the primary judge could not make any determination about the father’s criminal responsibility for certain conduct alleged against him when her Honour was exercising only civil jurisdiction under Pt VII of the Act.
Undeniably, the primary judge was not exercising criminal jurisdiction conferred on State courts under the Crimes Act 1900 (NSW). However, the father has been charged and prosecuted with criminal offences many times in the past, on some occasions being convicted and sentenced (at [20], [37], [38], [46], [57] and [58]) and on other occasions the offences were found proven, but dismissed without penalty under the provisions of the Mental Health Act 2007 (NSW) (at [14] and [15]).
Certificates of the father’s convictions and sentences were admissible as conclusive proof of the verdicts and sentences pronounced in prior criminal proceedings (s 178 of the Evidence Act 1995 (Cth)). Other documents evidencing the decisions or judgments of the State courts were also admissible and probative (s 69ZX(3) of the Act). Any convictions recorded against the father resulted from findings that the charged offences were proven against him by a State court beyond reasonable doubt (s 141 of the Evidence Act 1995 (NSW)). His convictions and sentences were judgments in rem which he could not refute in the civil proceedings before the primary judge (s 93(b) of the Evidence Act 1995 (Cth)).
However, in respect of any criminal charge which may not have been proven against the father to the requisite criminal standard of proof in proceedings before a State court (if there were any not so proven), the underlying conduct alleged against him by the mother could still be found proven as facts against him by the primary judge in the civil proceedings by applying the lower civil standard of proof (s 140 of the Evidence Act 1995 (Cth)), which her Honour correctly recognised (at [73]).
The father’s alleged past violent and chaotic behaviour, which he denied in large measure, was a material consideration the primary judge had to consider when exercising discretion to determine the parenting orders which would promote the children’s best interests. Her Honour was therefore obliged to make factual findings about the father’s past behaviour and to do so according to the civil standard of proof, at least whenever the factual conflict was not resolved by simple advertence to criminal offences found proven against him by a State court according to the higher criminal standard of proof.
Her Honour acted according to law, finding the father acted violently towards the mother and many other people on multiple occasions between August 2016 and November 2021 (at [102]–[199]). Such findings were plainly open on the evidence.
Second Ground 6
This ground is an expression of dissatisfaction with the findings made by the primary judge about the father’s lack of veracity and the mother’s comparative creditworthiness, but without any indication of what error the primary judge made in reaching such findings.
In that regard, the primary judge found this:
74.The father was cross examined for over one day and I had the opportunity to carefully observe him during this time. I accept the father’s firm and unchallenged evidence that during stressful situations his memory is “…like a film… it may only record certain parts of a scenario and not the whole lot, leaving gaps within memory.”
75.The father stated he was unable to recall significant events that had occurred but would then deny specific instances that were alleged to have occurred during the course of the same events. It is clear from his evidence that the father disputes events as alleged by the mother or as recorded in police material if he is unable to recall them, and he will not accept the accuracy of those reports as noted by the author of the father’s most recent sentencing report prepared for proceedings in June 2023.
76.The father would often answer “It’s possible” or “It’s quite possible” to answers asked of him. I formed the impression from the nature of his evidence that the father was merely asserting that anything is possible. He was evasive in his answers, merely repeating his asserted position rather than answering the question; to one suggestion put to him the father’s answer was, “It is also possible that Her Honour is a go-go dancer.” He was very defensive in his interactions with Counsel in cross examination. He was not even able to accept propositions put to him as to the mother’s position in the matter, even though this would be in no way a concession that he accepts what the mother asserts. I found him to be sarcastic and at times rude. I did not find him to be an impressive witness. Whilst I will make specific findings of fact based on the evidence, I approach the father’s evidence with some caution.
77.I found the mother to be measured and responsive to the questions asked of her. She made concessions and gave evidence without compunction that may not have necessarily assisted her case. I found her to be a credible witness.
(Emphasis in original) (Footnote omitted)
The father’s Summary of Argument does not come to grips with these findings, which articulate the primary judge’s impression of him and the assessment of his reliability as a witness. The father seems to interpret the finding as personal criticism, whereas it is merely the explanation for why the primary judge found his evidence less credible than the mother’s. The father’s error is evident from submissions in his Summary of Argument that the primary judge “focus[sed] on his personality rather than his evidence” and made “an erroneous determination of [his] mental health”, which assertions are patently incorrect.
The primary judge fairly recited the father’s contentions about the state of his psychological health, saying this in the reasons for judgment:
92.The father concedes that he has struggled with his mental health in the past and is diagnosed with major depressive disorder, post-traumatic stress disorder (“PTSD”) and borderline personality traits. Whilst the father concedes that there is a risk to the children in spending time with him, he asserts that this risk is not unacceptable as since September 2018 he has undergone ongoing psychiatric and psychological treatment and his psychological condition has gradually improved. He asserts that he has not had any further mental health admissions since 2018 and is in regular attendance with his general practitioner, treating psychiatrist and psychologist.
(Footnotes omitted)
Her Honour accepted the single expert’s unchallenged evidence about the father’s personality traits (at [94]–[95]) and discussed the evidence as to his possible autism diagnosis (at [96]–[98]), but noted how no diagnosis would disqualify him from being a capable parent in any event (at [97]). Correctly, the primary judge affirmed that diagnostic labels were no match for evidence of actual conduct (at [99]).
Disposition
The appeal is dismissed.
The mother sought no order for costs against the father in the event the appeal was dismissed.
The ICL filed a Submitting Notice and did not appear.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 3 July 2024
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