Cooke & Morton
[2018] FamCAFC 9
•29 January 2018
FAMILY COURT OF AUSTRALIA
| COOKE & MORTON | [2018] FamCAFC 9 |
| FAMILY LAW – APPEAL – CHILDREN – NATURAL JUSTICE – where the father failed to attend the final trial – where the father failed to file any trial affidavit material or case outline in advance of the trial as he had been ordered to do – where the father’s non-compliance with the orders was wholly unexplained – where the father withdrew his instructions to his legal representatives two working days prior to the commencement of the trial - where the father was in hospital on the day of the final trial – where the trial judge treated correspondence directed to the Court by, or on behalf of, the father as an application to adjourn the trial – where the mother and the Independent Children’s Lawyer opposed any adjournment of the trial and the trial judge proceeded to hear the parenting application in the absence of the father – where the trial judge reserved her decision and a period of three months elapsed before final judgment was delivered – where the father failed to make any application to the Court to reopen the evidence while the judgment remained reserved despite being advised by the Independent Children’s Lawyer to obtain legal advice – where the father did not make an application pursuant to the relevant Federal Circuit Court rule to seek to have the orders made set aside by reason of his absence – where there were very serious allegations of coercive and controlling family violence made against the father – where there was expert evidence that the continuation of the proceedings may have a deleterious effect upon the mother and child – where the expert evidence established that the mother and child were in a state of terror at the prospect of encountering the father during family report interviews – the nature of parenting proceedings – where in the particular circumstances of this case, there was no relevant denial of natural justice – where, even if there was any departure, it could not be concluded that a trial involving the father cross-examining witnesses and making submissions could have produced a different result – where it is the particular confluence of circumstances in this case which render the conclusion that there was no relevant denial of natural justice – where the appeal is dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – where the father sought to adduce medical records to establish that he was in hospital at the time of the final trial – where that fact was not in dispute – where the mother contended that the father obtained admission to hospital on his own self-reporting and that it was a disputed fact, on the medical evidence sought to be adduced, that the father was medically unfit to attend the trial – where the application is refused. |
| Evidence Act 1995 (Cth) Federal Circuit Court Rules 2001 (Cth) |
| Aldridge & Keaton (2009) FLC 93-421; [2009] FamCAFC 229 Bondelmonte v Bondelmonte (2017) 341 ALR 179; [2017] HCA 8 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 U v U (2002) 211 CLR 238; [2002] HCA 36 |
| APPELLANT: | Mr Cooke |
| RESPONDENT: | Ms Morton |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid New South Wales |
| FILE NUMBER: | SYC | 3710 | of | 2013 |
| APPEAL NUMBER: | EA | 82 | of | 2016 |
| DATE DELIVERED: | 29 January 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan, Kent & Cleary JJ |
| HEARING DATE: | 6 September 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 2 May 2016 |
| LOWER COURT MNC: | [2016] FCCA 1022 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Othen |
| SOLICITOR FOR THE APPELLANT: | Shephard & Shephard Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Christie |
| SOLICITOR FOR THE RESPONDENT: | Gordon & Barry Lawyers Pty Ltd |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Neville |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid New South Wales |
Orders
The application in an appeal filed by the appellant father on 17 August 2017 be dismissed.
The appeal be dismissed.
The appellant father pay the costs of the Independent Children’s Lawyer fixed in the sum of $4,521.
The appellant father pay the costs of the respondent mother of and incidental to the appeal on a party and party basis with such costs to be agreed or, failing agreement, to be assessed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cooke & Morton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 82 of 2016
File Number: SYC 3710 of 2013
| Mr Cooke |
Appellant
And
| Ms Morton |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Parenting proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”), concerning the child X, born in September 2010, were case managed by Judge Sexton from the commencement of those proceedings in the Federal Circuit Court in 2013 to trial on 2 February 2016.
That case management included an order made on 3 March 2014 pursuant to s 68L of the Act for the child’s interests in the proceedings to be independently represented by a lawyer (the “ICL”). That order appointing the ICL carries notations about the seriousness of the allegations raised by the mother against the father; and the mother’s position that the child should not spend any time with the father in the future. As will be discussed, it was the mother’s case that the father perpetrated coercive and controlling family violence, within the meaning of the Act, upon the mother and child both pre- and post-separation putting at risk the child’s welfare; and that her parenting capacity was compromised by the prospect of the child spending any time with the father.
Case management also included the appointment of Dr C, Consultant Forensic, Child and Family Psychiatrist, as a court expert witness to undertake relevant assessments of the child and the parents and to prepare a report. Dr C undertook relevant interviews and prepared a detailed report dated 26 August 2015.
Importantly, case management included the orders the trial judge made on 1 October 2015 after Dr C’s report had become available, setting trial dates commencing on 2 February 2016. Those orders required, inter alia, each party to “file and serve one trial affidavit and any affidavit of any witness on which they intend[ed] to rely at hearing by no later than 4.00p.m. on 21 December 2015” (Order 3); and provided that affidavits filed after that date “cannot be relied on without leave of the Court” (Order 4). An order was also made for each party to file and serve, no later than two working days prior to the trial, a case outline setting out “[t]he affidavits on which the party will rely at hearing” and “[t]he Orders sought at hearing” (Order 5). A direction was included for the ICL to make arrangements for Dr C to be available to give evidence as the first witness in the trial.
As at the date of the scheduled trial, on 2 February 2016, conspicuous was the father’s complete failure to file any trial affidavit material or his case outline document as ordered.
This was so despite the content of Dr C’s report and opinions, further discussed below, and the extensive affidavit material filed by the mother of herself and her witnesses comprehensively detailing an extensive pattern of coercive and controlling behaviour by the father, including persistent harassment, abuse and threats made to the mother in the child’s presence. Dr C’s report, as will be further referred to, placed emphasis upon the adverse potential for the mother, and the child, of the child spending any time with the father if the mother’s case concerning family violence was accepted. As at 2 February 2016 both the mother and the ICL sought parenting orders including that the mother have sole parental responsibility for the child, and that the child not spend time or communicate with the father.
Up until 29 January 2016 the father had engaged lawyers ever since the proceedings had commenced in 2013. However, at trial there was no appearance by the child’s father, or by any lawyer or other agent of the father instructed to appear on his behalf. Indeed as late as 29 January 2016, only two working days prior to trial, the father had terminated the retainer of his solicitor without explanation, simply advising “your services are no longer required”. That solicitor appeared on 2 February 2016 but only to obtain leave to withdraw.
Notwithstanding that the father had failed to file any trial affidavits and case outline as had been ordered; and that the father had provided no explanation for that failure; and notwithstanding that no formal application for an adjournment of the trial had been filed by the father and that no legal representative instructed by him appeared on his behalf at the trial to formally seek an adjournment; the trial judge treated correspondence that had been received by the Court and the other parties from, or on behalf of, the father in the days prior to 2 February 2016, as constituting the father’s application for an adjournment of the trial. As will be further discussed, included with the information provided to the Court on behalf of the father was the fact that as at 2 February 2016 the father had been admitted to hospital.
An adjournment of the trial was opposed by each of the child’s mother and the ICL. The trial judge, for reasons included within the final reasons for judgment delivered, acceded to the position of the mother and the ICL and proceeded with the trial in the father’s absence albeit that, as will be further referred to, the trial judge gave careful consideration to the father’s historical affidavit evidence filed at earlier interim stages of the proceedings; as well as that which the father had relayed to Dr C in the course of the interview process for her report.
The trial judge reserved judgment on 2 February 2016. A full three months elapsed from 2 February 2016 before the trial judge made orders and delivered reasons for judgment on 2 May 2016.
Following 2 February 2016 there was no application by the father in that three month period to seek to reopen the evidence before the trial judge before judgment was delivered. That is so despite the father being aware that the trial had proceeded in his absence on 2 February 2016 and despite the ICL having recommended to the father, upon his inquiry on 19 February 2016, that he ought to obtain his own legal advice.
Moreover, following the orders being made on 2 May 2016 there was no application by the father, pursuant to r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) to seek to vary or set aside those orders. That rule makes specific provision for a judgment or order to be varied or set aside “if it was made in the absence of a party”. Rather than making such an application, and thereby utilising all of the rights available to him prior to filing any appeal, on 30 May 2016 the father filed a notice of appeal from the subject orders.
The approach adopted by the father in this respect is contrary to long established practice in this jurisdiction. In Lorde & Chu [2014] FamCAFC 228, this Court said (at [36]), cited with approval by Murphy J sitting as a single judge of the appeal division in Singam & Moffrey (2015) FLC 93-641:
Finally, it may be useful if we take this opportunity to draw attention to the fact that it has long been established in this jurisdiction that where a party seeks to set aside orders made in his or her absence, the proper course is for that party to apply at first instance for a rehearing rather than seek to have the matter dealt with by a way of an appeal (Wilkes and Wilkes(1981) FLC 91-060). Moreover, Rule 16.05 of the Federal Circuit Court Rules 2011 (Cth) [sic] provides for a rehearing at first instance in such circumstances…
Grounds of appeal
On appeal, taken from his notice of appeal, the father agitates the following grounds:
1.That Her Honour erred in law by denying the Appellant procedural fairness.
2.That Her Honour erred in Law by conducting the final parenting hearing in the absence of the Appellant thereby denying the Appellant natural justice.
3.That Her Honour failed to adjourn the hearing or make interim Orders in circumstances where Her Honour had been advised of the Appellant’s confinement in hospital in Intensive care, and was unable to attend at the hearing.
4.Where the proposed Final Orders to be made by Her Honour were so prejudicial to the Appellant, that in the interests of procedural fairness and natural justice Her Honour should have adjourned the proceedings or made Interim Orders so as to allow the Appellant to be heard against Her Honour making the proposed Final Parenting Orders.
5.That where Her Honour proposed to make Final parenting Orders against the recommendations of the Single Expert, Her Honour should have provided the Appellant an opportunity to be heard before proceeding to make Final Parenting Orders that did not incorporate the recommendations of the Single Expert.
6.That in making findings based primarily on the credit of the parties, Her Honour failed to conduct a hearing in which issues of credit could be tested.
Self-evidently the central and overlapping contention underlying most of the father’s challenges on appeal is that he was denied natural justice by the trial judge proceeding in his absence on 2 February 2016 and in the making of the parenting orders made on 2 May 2016.
Before dealing with these challenges it is convenient to first deal with the father’s application in an appeal.
Application to adduce further evidence on appeal
By an application in an appeal filed on 17 August 2017 the father seeks that this Court exercise the discretion conferred by s 93A(2) of the Act to receive on appeal further evidence upon questions of fact.
The further evidence comprises the father’s affidavit filed on 17 August 2017 in which the father deposes to his hospitalisation for five days between 31 January 2016 and 5 February 2016 (overlapping the trial date of 2 February 2016) to which affidavit is annexed hospital notes including the hospital discharge summary for the father.
The father’s purpose in seeking to adduce this evidence is for the father to demonstrate, as a matter of fact, that the father was medically unfit to attend the trial on 2 February 2016 and thus his failure to attend is adequately explained.
The mother opposes the application on the basis that the matter of fact referred to is disputed. That is, it is the mother’s position that whilst it is accepted by her as a fact that the father sought and obtained admission to hospital on 31 January 2016, and remained an inpatient for five days until his discharge on 5 February 2016, it is not demonstrated on the evidence sought to be adduced that the father obtained admission to hospital on anything more than his self-reporting or subjective complaints of alleged symptoms, consequent upon a fall the father alleges he sustained on the evening of 31 January 2016. That is, the mother contends that the evidence does not incontrovertibly establish as fact that the father was medically unfit to attend the trial on 2 February 2016, or to arrange to have an instructed lawyer attend.
The mother sought that if the father’s application was granted this Court ought also receive the entirety of the hospital file into evidence. This was on the basis of the mother’s contentions to the effect that nowhere within the hospital file was there evidence of any diagnostic test result, or objectively diagnosed symptoms of the father, not reliant upon his self-reporting, to demonstrate the father’s medical unfitness to attend Court. We received the entire file for the purpose of considering this contention.
Further, the mother pointed to the feature that the father’s application to adduce further evidence did not include any affidavit from the female friend or associate of the father who allegedly witnessed his alleged fall and symptomology at the time, as reported to the hospital at the time of the father’s admission (the person referred to as “girlfriend who has known him for 2 months”, “[Ms E]” in the hospital notes) nor from the father’s brother whom, on the father’s account, must have been in a position to make observations of objective symptomology. As counsel for the mother pointed out, on the central fact in issue, the mother would seek an opportunity to test any evidence of such witnesses had any such evidence been forthcoming. In circumstances where the father’s failure to adduce evidence from these sources was unexplained, counsel for the mother referred to the available inferences to be drawn pursuant to Jones v Dunkel (1959) 101 CLR 298.
To this may be added the observation that the father did not seek to adduce, as part of his further evidence, expert medical evidence from any doctor who attended upon him at the time or during his hospital stay; nor from any medical expert who might offer interpretative evidence as to the full meaning and relevant effect of any of the hospital notes and records so as to establish objective evidence that the father was, in fact, medically incapacitated.
Whilst counsel for the father pointed to features such as the apparent acceptance by hospital doctors that it was necessary for the father to be admitted to hospital (as he was) and later admitted to intensive care (as he was); and that the father underwent an investigative lumbar puncture diagnostic procedure (the results of which were seemingly inconclusive in identifying any objective diagnosis) counsel for the father acknowledged that the hospital notes and records did not include conclusive objective evidence to incontrovertibly establish the father’s medical unfitness as at 2 February 2016.
As is apparent, the further evidence the subject of this application is contentious as regards to whether or not it establishes as fact that the father was medically unfit to attend the trial on 2 February 2016. This Court is ill-equipped to resolve that controversy. Further, for the reasons discussed below in addressing the father’s central contentions on appeal asserting denials of natural justice, it does not follow that this further evidence, if accepted, would demonstrate that the orders under appeal are erroneous. As will be discussed, the trial judge proceeded on 2 February 2016 in the knowledge that the father was then in hospital and on the basis that the father sought that the trial be adjourned by reason of his claimed ill health. The trial judge nevertheless determined, for reasons detailed in her Honour’s reasons for judgment delivered on 2 May 2016, to proceed.
Finally, and again for the reasons outlined below in addressing the father’s substantive complaints, we are not satisfied that in the circumstances of this case, that the further evidence could or might lead to a different order in a new trial.
Beyond the acknowledgement by the mother that as at 2 February 2016 the father was a hospital inpatient (as was likewise acknowledged in her reasons for judgment by the trial judge) the further evidence sought to be adduced does not incontrovertibly establish that the father was, on that date, medically unfit to attend Court or incapable of arranging for an instructed lawyer to attend on his behalf.
As will be further discussed, in the context of addressing the father’s assertions as to the denial to him of the opportunity to be heard; even if the subject evidence were accepted as establishing the father’s medical unfitness between 31 January 2016 and 5 February 2016, that evidence is incapable of explaining the father’s failure to file any affidavit evidence for trial, as he was ordered to do; nor to explain his failure to make any application to reopen the evidence at any time subsequent to 2 February 2016 and prior to delivery of judgment on 2 May 2016.
The circumstances in which the discretion this Court has under s 93A(2) of the Act is appropriately exercised in favour of receiving evidence are constrained (CDJ v VAJ (1998) 197 CLR 172).
Relevant to the discretion, and as earlier noted, the father did not pursue any application before the trial judge after 2 February 2016 to reopen the evidence prior to the delivery of judgment. Moreover, no application was made by the father pursuant to r 16.05(2)(a) of the FCC Rules. On either application, it may readily be inferred, the father would bear the onus of establishing a reasonable explanation for his absence at the trial which likely would, given the issues identified, entail resolution by the trial judge of the central factual controversy, that is, whether the father was in fact medically unfit to attend the trial, or to instruct a lawyer to do so on his behalf.
Most fundamentally, it will be seen from the following discussion that even proceeding on the basis that the father was in fact medically unfit on 2 February 2016, and thus his absence to attend the trial is adequately explained, in all the extenuating circumstances of this case, that does not result in the conclusion that the subject orders are to be set aside and a re-trial ordered.
For these reasons we do not consider that the discretion to receive further evidence on appeal upon questions of fact would be legitimately exercised in favour of this application. We dismiss the application.
The challenges asserting a denial of natural justice or procedural fairness
As the authorities show, it is a fundamental general principle of natural justice that a party to litigation has a prima facie entitlement to have the proceedings heard in the party’s presence and to be given an opportunity to be heard before an order affecting some right, interest, entitlement or privilege of the party is made. The opportunity to be heard usually includes the right to know the case advanced against the party; the opportunity to answer that case; the opportunity to dispute an opponent’s case by cross-examination of the opponent’s witnesses; and the right to adduce evidence in support of the party’s own case and to make submissions, before an order is made. Generally, when an order is made by a court in the absence of a party (whether that absence is, or is not, the fault of the absent party) there exists jurisdiction and a discretion for the Court to set aside the order (Taylor v Taylor (1979) 143 CLR 1; Kioa v West (1985) 159 CLR 550; Stead v State Government Insurance Commission (1986) 161 CLR 141; Allesch v Maunz (2000) 203 CLR 172; and the authorities cited and discussed in those cases).
However, those same authorities show that both the content, and application of, the rules of natural justice are flexible requiring fairness to all parties in the circumstances of the particular case. Those circumstances include, without being exhaustive:
a)The nature of the proceedings;
b)The nature or content of the right, interest, entitlement or privilege of the aggrieved party;
c)The nature of the power exercised and the statutory provisions governing its exercise;
d)The facts of the particular case relevant to any of the above and relevant to the requirement of fairness to all parties in all of the circumstances of the case.
Moreover, again by reference to those authorities, it can be seen that not every departure from the rules of natural justice will entitle the aggrieved party as of right to a new trial. Taylor (supra) was a case involving a final divorce and property settlement between parties to a marriage and where one party, through no fault of their own, was not in attendance at a hearing. The High Court discussed the discretionary power to set aside orders made in the absence of a party and to order a rehearing in those circumstances including discussion as to the nature of the discretion. In particular, the High Court referred to potential countervailing considerations such as the presence or absence of some real explanation for failure to use the opportunity to be heard, delay, acquiescence and prejudice to the other party (see, for example, the judgment of Murphy J at pp 20-21 also referred to in Allesch (supra) by Gaudron, McHugh, Gummow and Hayne JJ at p 182).
Likewise in Stead (supra) the High Court reiterated that it is not axiomatic that a denial of natural justice will result in a rehearing, albeit that where a party is deprived of the chance to make submissions on an issue of fact it would be necessary for the appeal court “to find that a properly conducted trial could not possibly have produced a different result” (at p 147 and as reiterated more recently by the High Court (Keane, Nettle and Edelman JJ) in DWN042 v The Republic of Nauru [2017] HCA 56 (13 December 2017) at [20]).
The nature of parenting proceedings and parenting orders
The first point which bears emphasis is that parenting orders made under Part VII of the Act are never final in effect in terms of determining once and for all the rights of any party. The jurisdiction under Part VII is not exhausted by the making of parenting orders even after a trial (see s 65D(2) of the Act and, for example, In the Marriage of L (1989) 15 Fam LR 157 at 163-164).
It follows that here, in contrast to the subject matter in each of the authorities earlier referred to, the subject orders did not bring an end, once and for all, to any relevant right, interest, entitlement or privilege of the father.
Second, s 60CA of the Act provides that “[i]n deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration”. That provision, as indeed the provisions of Part VII of the Act viewed as a whole, bring proper perspective to the feature that Part VII focuses centrally upon the rights and interests of the child or children the subject of parenting proceedings. Conversely, it is the duties, obligations and responsibilities of parents, rather than any right or entitlement, which are at the forefront of Part VII (see also, for example, the discussion in Blaze v Grady (2015) 54 Fam LR 172 especially at [101] and following).
Next, as the High Court referred to in M v M (1988) 166 CLR 69 at p 76, proceedings in which the child’s best interests are the paramount consideration are not to be viewed as adversarial proceedings in the ordinary sense, but as an investigation as to what order will best promote the welfare of the child. For the same reasons, a court exercising jurisdiction under Part VII is not bound by the proposed orders of any party or limited to making orders in the terms sought by a party (U v U (2002) 211 CLR 238).
Importantly, regard to s 68L of the Act, and the statutory duties imposed upon an ICL by s 68LA, reflects that it is the child’s best interests that lie at the centre of parenting proceedings, rather than any assumed right, interest, entitlement or privilege of a parent/party to the proceedings. Indeed, the authorities discussing s 65C of the Act (who may apply for a parenting order) and s 64B (meaning of parenting order) recognise that there is no presumption in favour of a parent, as opposed to another eligible applicant for, parenting orders (see, for example, Aldridge & Keaton (2009) FLC 93-421; Bondelmonte v Bondelmonte (2017) 341 ALR 179).
Statutory recognition of the feature that parenting proceedings are not strictly adversarial is found in Division 12A within Part VII (ss 69ZM-69ZX) expressing the principles for conducting child-related proceedings; the duties upon the Court to give effect to those principles; and, for example, the exclusion of certain provisions of the Evidence Act 1995 (Cth) from applying to child-related proceedings. Notably, s 69ZX sets out the Court’s general duties and powers relating to evidence.
None of the foregoing discussion should be read or interpreted as intending to convey that the general principles of natural justice to be afforded to parties to litigation are abrogated in parenting proceedings pursuant to Part VII of the Act. The point of emphasis is to bring focus upon the nature or content of the subject right, interest, entitlement or privilege of the father in reviewing what are said to be failures by the trial judge to afford him natural justice or procedural fairness in the context of countervailing considerations obviously focused upon by the trial judge, as will be discussed.
The father’s opportunity to be heard
The significance and relevant consequences of the father’s wholly unexplained failure to file any trial affidavit/s and case outline as ordered on 1 October 2015 cannot be over-emphasised. The following provides context to its significance.
The parties had finally separated on 1 June 2012 after an approximately six year cohabitation. As noted, the child was born in September 2010.
It was the mother’s case, from the outset of the litigation, that the father perpetrated coercive and controlling family violence during the parties’ cohabitation, and following separation, frequently in the child’s presence.
The trial judge recorded at [3] of the reasons for judgment the following uncontroversial facts:
In December 2012, the NSW Police initiated Apprehended Violence proceedings against the Father for the protection of the Mother. [In] January 2013, a final Apprehended Violence Order was made against the Father for a period of 12 months. The Orders prohibited the Father from going within 100m of the Mother’s residence or workplace, or from approaching or contacting the Mother except through his solicitors or in accordance with orders under the Family Law Act 1975. Between March and April 2013, the Father breached the Order. [In] May 2014, the Father was convicted of breaching the Order. The Order was extended for a further 12 months and [X’s] name was added to the Order as a person in need of protection. The Order expired [in] May 2015. There is no current Apprehended Violence Order in force.
At [5] the trial judge records the further uncontentious and important fact that the child last spent any time with the father on 25 December 2012 when she saw him for approximately 10 minutes at the home of the maternal grandmother, and in the maternal grandmother’s presence. It bears emphasis that as at 2 February 2016 more than three years had elapsed since the child had spent any time at all with the father.
As earlier noted, Dr C furnished her expert report dated 26 August 2015. The report is extensive and records relevant details of the numerous interviews Dr C conducted and references not only the affidavit evidence on each side filed in the proceedings to that point, but references relevant content of subpoenaed material, including police records concerning the father.
As noted, the report is extensive and records a great deal of factual information as well as relevant observations and expert opinions. That report also references an event involving the father which occurred in 2013. That event, and the mother’s fears surrounding that event and its consequences, as assessed by Dr C, are incorporated in the trial judge’s reasons at [85] to [97] and it is convenient to set out the trial judge’s discussion of that topic as follows:
85. [In] 2013, the Father was severely injured by an explosion in his brother’s ([Mr J’s]) garage at [Suburb Q]. The Father and his friend “[Mr C]” were severely burned. The Father was admitted to intensive care at [W Hospital in] September, received 65% burns to his body and remained hospitalised until December 2013. He was discharged from a rehabilitation Hospital [in] February 2014. He underwent multiple surgical interventions and required ongoing burns management. While there were media reports that the explosion occurred in a clandestine methamphetamine laboratory and that it was a large scale operation, as far as the Mother is aware, there have been no criminal charges laid in relation to the incident. The Father denied these reports. In his affidavit sworn on 27 February 2014, the Father says that on the day of the explosion, he and his friend [Mr C] was smoking a cigarette in the driveway of his brother [Mr J’s] home at [Suburb Q], in front of the garage door. He gives his version of what happened on that day:
[Mr C] and I were smoking a cigarette in the driveway, in front of the garage door. [Mr J] has a large garage at the back of his house that is solely used for the purpose of storing and restoring cars. [Mr C] and I were outside the garage looking at a car shell that [Mr J] had in the driveway, when the garage suddenly exploded in the garage door flew off from the hinges. …
I am unaware as to the exact cause of the explosion. However, I believe the explosion was caused by flammable fuels and chemicals which I understand were stored in [Mr J’s] garage at the time of the incident.
On the occasions that I have worked on cars in [Mr J’s] garage, I have always seen large amounts of fuels, oils and lubricants in the garage. The fuel used to race the drag cars, is race fuel and methanol, which is purchased in specialty high-performance stores…. There has always been spray paints in the garage as well as welding equipment. The garage is quite large and is able to accommodate for approximately 4 to 5 motor vehicles. As such there was ample room to store a significant amount of different chemicals and fuels….
The only explanation for the fire that I can perceive is that it was associated with the fuels stored in [Mr J’s] garage. I note that possibility is also set out in the media articles annexed and marked with the ‘U’ in [the mother’s] affidavit.
86. The Father says he understands the police approached his brother [Mr J] to provide a statement but that he has not provided one. He says, to the best of his knowledge, he has not been approached by the police for questioning.
87. The Father told [Dr C] that he was caught in a fire at his brother’s place. He said he was in a coma for 6 weeks, wore a body suit for 7 months, had an eye operation and 12 skin grafts. At the time of interview, he was still involved in rehabilitation including physiotherapy, yoga and massage. He said “it’s just a chapter of his life now that he needs to close.” He told [Dr C] there was an ongoing investigation, there were allegations that it was a “drug lab” “but there’s nothing in that.” [Dr C] observed, “[the Father] had quite a dismissive attitude about the fire; in striking contrast to the usual presentation of a burns patient.”
88. The Mother relies on the affidavit evidence of [Dr J], a specialist forensic pathologist. [Dr J] attaches his extensive curriculum vitae and says:
As a forensic pathologist I have examined, interpreted and reported on cases involving injuries of varying severity in a wide range of circumstances on a large number of occasions over a period of in excess of 30 years. Such injuries extend across the entire spectrum from the clinically trivial to those which have caused death, and were sustained in accidental, self-inflicted and inflicted circumstances. I have provided medicolegal reports in numerous cases of burns caused in a variety of circumstances, including those sustained in work premises, homes, bushfires, alleged drug laboratory explosions and other explosions.
89. [Dr J] reviewed a large bundle of material including but not limited to:
a)Relevant parts of the affidavit of the Father sworn 27 February 2014 including annexes A-E, where the Father sets out his version of what occurred;
b) Medical reports from Centrelink, medical records from [W Hospital], [T Hospital] and photographs of his injuries;
c)Insurance documentation; and
d)Correspondence and other documents from the police.
90. [Dr J] gives his opinion:
In my opinion, the distribution of thermal injury on the body, the presence of smoke inhalation, and the blast injuries to the eyes are all an indication of [the Father] being close to the origin of the fire and there having been an explosion of some type while he was close to the original of the explosion.… I am of the view that it is most unlikely that [the Father] was in an open environment at the time of the explosion – specifically I am of the view it is most unlikely that [the Father] was outside the garage looking at the car at the time, given the extensive burns to the front, back and sides of his body, the presence of inhalation of soot and the injuries to the eyes. Similarly, I am of the view that it is unlikely for [the Father] to have sustained his injuries while entering the premises, given injury to multiple locations on his body and the presence of soot inhalation. The presence of injury to the eyes of the type seen in this case indicates an explosion and not a rapidly developing fire, and as such does not correspond with the circumstances described where the vehicle catches alight and [the Father] becomes engulfed in flames. The appearances of the various injuries seen in this case are in my opinion entirely consistent with [the Father] having been in close proximity to an explosion source with resultant burns whilst within an enclosed space –… Although I am unable to state whether such an explosion would be the result of a flammable liquid associated with a motor vehicle exploding or flammable chemicals associated with a clandestinely drug laboratory exploding. I understand that there was no motor vehicle within the garage at the time of the explosion and fire, thereby negating the possibility of any scenario whereby a vehicle catches alight while being worked on in the garage.
… The injuries seen in this case are consistent with those expected from a clandestine laboratory explosion, but are in my opinion not specific to such an explosion. Any ignited fuel source with an explosion of sufficient energy in a confined space can in my opinion cause the injuries seen in this case.
91. [Dr J] does not, therefore, accept the version of events given by the Father in his Affidavit.
92. While the Father vehemently denies being involved in the operation of an illicit drug laboratory, the police say that a clandestine drug laboratory was found in the fire damaged garage. Multiple gas cylinders, gas ring burners and glass containers were seen in the garage. According to a report by [D Group] dated 6 November 2014, police and fire brigade personnel determined that there was a clandestine drug laboratory on the premises, and that the Father and “[Mr C]” were badly injured as a result of the blast which appears to have occurred while in the process of “cooking” a batch of a prohibited substance. [Dr J’s] opinion is consistent with this hypothesis.
93. The Mother now believes that the Father was using drugs and was involved in criminal activity prior to and following separation and that his family might also be involved. She says that the Father always had more than one mobile telephone and was always secretive when on the phone. She overheard the Father having heated conversations, promising to pay money back and he constantly watched his back in public. The Mother saw the Father in possession of large wads of cash, while she was guarantor for loan funds advanced to him for business expenses. Since the explosion, the Mother has been told by family and mutual friends that the Father’s mother blames her for the incident, and is threatening to kill her. The Mother has been told by family and friends that the Father and his brother [Mr J] have been manufacturing drugs for some time and making a lot of money and that their family are well aware of these activities. In or about early to mid-March 2014, the Mother deposes to being in a shopping centre on a Thursday night when she was approached by family friends of [the Father’s] family. The male friend said to the Mother, “everyone knows [Mr J] and [the Father] were making drugs. They have been involved in the drug scene for over 10 years.” And “they’ll lose it if they know we have spoken to you.” In or about April 2014, the Mother read newspaper reports about the arrest of a man known as [Mr I]. The Mother identified him as one of the several males she had seen at the [Suburb Q] property with [Mr J] and the Father as well as with the paternal family.
94. [Dr C] observed the Mother to be in “such an extreme state of distress that she could hardly continue talking” when discussing these concerns.
95. During the period December 2013 to August 2014, the Mother received regular updates from the NSW police and detectives that there was an ongoing criminal investigation in relation to an apparent clandestine laboratory at the [Suburb Q] property. The detectives said to her, “there were no cars in the garage [at the [Suburb Q] property]”; “The car shell outside the garage was not affected by the fire”; “there was no racing car fuel in the garage”; and “the explosion occurred at the back of the garage”. The Mother does not accept the version of events about the fire and explosion given by the Father. As at September 2014, there was an ongoing criminal investigation. LM 87 is a copy of a letter from [Suburb T] detectives to the Mother’s lawyers dated March 2015, confirming the “serious nature of the ongoing criminal investigation” and their objection to the production of any documents in answer to the most recent subpoena to NSW police due to public interest immunity issues and the serious nature of the investigation. In early January 2016, [Detective Sgt A] told the Mother that the police investigation is presently suspended awaiting further evidence and information.
96. In 2014, the Mother received phone calls from a male person unknown to her who said he was concerned about her safety and her daughter’s safety. He said, “[Mr J] and [the Father] have been involved in drugs and they are linked with major thugs. [Mr J] and [the Father] are involved in prostitution. [The Father] is telling everyone the police can’t even question him about the drug lab and he’s got away with it scot-free. [The Father] and his family have threatened to have you killed. [Ms C] wants to wipe you off the face of this earth. [The Father] and his family have threatened to take off with [X] to punish you.… they’re cocky that they will fool the courts and get visitation rights to [X] and make you and your family go bankrupt.”
97. I accept the Mother’s evidence of these matters. I do not accept the Father’s version of what occurred at the time of the explosion. While the Mother’s counsel asks this Court to make a finding that the Father was engaged in illegal manufacturing of amphetamines and was injured when the laboratory exploded, I am not satisfied it is necessary for me to do so. I note the ongoing police investigation. I am, however, satisfied the Mother has ample grounds for her fear that she is a risk of harm by the Father and by his family. I find the Father’s affidavit evidence of the event of […] 2013 unsatisfactory and unreliable and unsupported by the other available evidence.
(Footnotes omitted)
Returning to Dr C’s report itself, the content of, and opinions expressed in, that report could not have left the father in any doubt about the adverse case advanced against him; including as to the mother’s case, and Dr C’s opinions about, the mother’s and the child’s extreme fear of the father; the potential compromise of the mother’s parenting capacity if any orders were made for the child to spend time or communicate with the father; and the deleterious effects upon the mother of the ongoing litigation.
As to the child’s perspective, Dr C’s report outlines many details of the observations Dr C made. It suffices to refer to Dr C’s attempt, in the interview process, to engage the child with the father and his family members to ascertain the child’s perspective. It is convenient again to repeat the trial judge’s summary of this at [6] and [7] of the reasons as follows:
6. [Dr C], Consultant Child and Family and Forensic Psychiatrist, prepared an expert report for the Court dated 26 August 2015. [Dr C] described the Mother’s and [X’s] presentation at her office on 15 May 2015 when [Dr C] had arranged for the Father to be present with [X] for the assessment:
[The mother]… presented in a state of extreme terror. I noted that she looked extremely thin as if she has lost a lot of weight. [X] was clinging to her and [the Mother] was clutching [X] and wasn’t able to let go of her.
I reassured [the mother] that I had met with [the father] and his parents and there was no indication that there was going to be any difficulty with this meeting;… I spent some time trying to reassure both of them that [X] would be quite safe in the office with me and that I could take good care of her. In spite of many reassurances [the mother] was unable to settle; she and [X] continued to cling together. ….Finally I had provided numerous assurances and urged [the mother] to bring [X] into the room.
In a state of manifest terror, [the mother] entered the room clutching [X] close to her. … I seated them at the far end of the second room some 20 metres away from the paternal family and almost out of their line of vision. [X] kept her head buried in her mother’s bosom; she did not lift her head or make eye contact with anyone. They continued to cling together… a few times I pointed out to [X] that her father and grandparents were in the room and would like to say hello to her. Each time I mentioned them she would cling to her mother again. … after some 35 minutes I suggested we would terminate this…I went outside with [the mother] and [X] … [X] had in fact wet her pants.
7. [X] did not speak to or in any way engage with the Father or the paternal family at the assessment. [Dr C] says:
If the reports of family violence can be relied upon this would readily account for [X] presenting in such an anxious state and her extreme fear of her father. If, as the father suggests, the mother’s account in this regard is not a reliable one, then the child’s presentation would reflect that the mother’s fears regarding [the father] have been transmitted to the child….
[X] is so anxiously attached to her mother and so fearful of her father that any attempt at instituting contact with him at present would be quite traumatic and therefore psychologically damaging to her.
(Footnotes omitted)
The trial judge summarised Dr C’s opinions and recommendations, including by reference to the brief oral evidence Dr C gave at trial elaborating upon, or explaining, what appears in her written report, as follows:
35.[Dr C] assesses the Mother’s fear as genuine. She says that the Mother’s parenting capacity is undermined by her fear of the Father, and her mental health would deteriorate if any time between [X] and the Father were to occur.
36.[Dr C] tells the Court that [X] may be able to see her Father when she is old enough to understand the reasons for the parties’ separation, and the reasons for her Mother’s concerns, but no earlier than 7 years of age, and only if and when the Mother’s mental state has settled such that the Mother could tolerate [X] spending time with him. Currently, the Mother is in “a state of alarm”, and [X] would be aware of this. Unless the conditions are right, [Dr C] says that any attempt to start time would be “pointless.” It is likely [X] has a “fearsome” image of her Father. In [Dr C’s] opinion, the Mother genuinely fears that the Father and his family are involved in crime and that she is at risk of further physical violence, intimidation and abuse, and that [X] is at risk of further exposure to family violence at her Father’s hands.
(Footnotes omitted)
The mother’s extensive trial affidavit chronicles, by reference to dates or identified periods of time, detailed particulars of the father’s conduct and events which occurred both during the parties’ cohabitation and post-separation. Importantly, the mother’s affidavit incorporates and annexes text messages from the father corroborating the mother’s case. Likewise, it contains details referenced to independent sources of evidence such as, for example, subpoenaed police records.
The trial judge correctly described the mother’s affidavit evidence as “thorough and compelling”. The father’s chronicled conduct is extensive and to describe it as disturbing would be something of an understatement. The trial judge’s reasons include a summary version of the mother’s detailed allegations which itself runs to many pages.
By way of example of the verbal abuse complained of by the mother, at [51] the trial judge makes reference to an apology by the father recorded in his text message to the mother on 15 December 2010. The conduct the father was apologising for is as follows, as recounted by the mother:
… the [father] said to me: “You’re fucking hopeless. You’re a fucking bitch. You’re a piece of shit. You’re a fucking pig – look at yourself. You disgust me. Why don’t you just fuck off you dumb bitch.”
The reasons for judgment are replete with examples of abuse and violence directed by the father at the mother, some confirmed by the maternal grandparents and spoken of by an employee at the mother’s former workplace. For instance:
I was present in the office when [the mother] would receive numerous calls from [the father] up to at least ten times a day … I could overhear [the father] yelling and screaming … words to the effect of: “You fucking bitch. You better take my fucking calls whenever I call or I’ll fucking come there and fix you up” … After most calls with [the father], [the mother] would often be crying and [… was] “scared to come to work and scared to go home with [the child]”.
Additional corroboration of the mother’s case is thus provided by the affidavit of an administrative staff member employed in the same firm as the mother over a period, who deposes to the numerous occasions that witness was able to overhear the father subjecting the mother to verbal abuse of the most vile kind as well as threats; and the observations that witness made of the mother’s observable distress as a result.
Further corroboration of the mother’s case is contained in the affidavit of one of the mother’s neighbours who deposes to her observations of the father’s abuse and intimidatory behaviour towards the mother and like conduct which that witness observed.
Likewise, detailed affidavit evidence from each of the mother’s parents are replete with numerous detailed particulars concerning the conduct of the father observed by each of those witnesses respectively, and the observable adverse effects of the father’s conduct upon each of the mother and, in some instances, the child.
None of these detailed particulars advanced as sworn evidence from multiple witnesses were answered by the father, given his failure to file any trial affidavit.
Finally, the mother’s trial material included the expert evidence of the forensic pathologist who advanced the opinion, and a rationale for that opinion, to the effect that the father’s explanation of what occurred surrounding the event in September 2013 earlier referred to, was inconsistent with the injuries the father sustained.
It should be noted that the trial judge declined the request of the mother’s counsel to make a positive finding that the father was engaged in the illegal manufacturing of amphetamines and was injured when the laboratory exploded (at [97]). However, what is clear is that the cumulative effect of, first, the media reports of the event describing it as an illegal drug operation; second, the police investigations of the event (and information the police imparted to the mother from time to time as to their suspicions); and, third, the evidence of the expert forensic pathologist; all formed part of the foundation for the mother’s extreme level of fear of the father and her concomitant fears for the child of the child having any time or communication with the father.
The trial judge noted, by reference to Dr C’s report, that when discussing her fears with the expert, the mother was observed to be “in such an extreme state of distress that she could hardly continue talking” (at [94]).
The father’s conspicuous and unexplained failure to file any trial affidavit or case outline as he was ordered to do, can be seen to have the following consequences:
a)The father was a party in default within the meaning of Division 13.1A of the FCC Rules, rendering his claim in the proceedings liable to dismissal; and
b)There was no evidence in chief of the father for the trial, or any witness in his case, to join issue with the case presented by the mother and the ICL.
In the event, the trial judge did not proceed on the footing that the father’s claim in the proceedings was to be peremptorily dismissed. Rather, and as earlier noted, the trial judge treated the correspondence referred to as the father’s request for an adjournment of the trial and considered, appropriately, the legitimate interests of the mother, and the child’s interests in the proceedings as represented by the ICL, who both opposed any adjournment. In proceeding it is readily apparent from the reasons that the trial judge gave active and careful consideration to the father’s interim affidavits and to what he told Dr C.
Having referred to the nature of the mother’s case (at [2]) and the father’s breaches and convictions with respect to a final Apprehended Violence Order (at [3]) and the evidence of Dr C quoted at [6] and [7] of the reasons already quoted above, the trial judge set out in her reasons in some detail her reasons for proceeding with the trial. Those reasons are as follows:
10. On 1 October 2015, in the presence of the Father and his counsel, the matter was listed for hearing for 3 days commencing at 10.00a.m. on Tuesday, 2 February 2016. Orders were made for each party to file their trial affidavit material by 21 December 2015. The parties later agreed to extend the time for the filing of trial Affidavits to 15 January 2016.
11. On 28 January 2016, at 10.46a.m, two working days before trial, an email was received by my Chambers from the Independent Children’s Lawyer to advise that the Father had not yet filed any affidavit material for the hearing and that the Independent Children’s Lawyer had been “notified by [the Father’s] solicitors….that it is unlikely he will be fit to conduct the final hearing.”
12. At 6.00p.m on 28 January 2016, an email was sent from my Chambers to each party’s solicitor and the Independent Children’s Lawyer confirming that the matter remained listed for final hearing on 2, 3 and 4 February 2016.
13. On 29 January 2016 at 12.51p.m., the Father emailed his solicitors. He does not refer to any health issues. The email said:
Hi [Ms D], I wish to inform via writing that your services are no longer required with the above matter. I thank you for your time and services to date. [Mr Cooke]
14. On 29 January 2016 at 1.10p.m., an email was received by Chambers from the Father’s solicitors enclosing a letter and a medical certificate. The letter stated:
We are instructed that our client is quite unwell and has attended upon his general practitioner. We are further instructed that our client has a referral to a specialist as he is suffering from symptoms such as dizziness, unable to see and loss of memory. It is for this reason that we have been unable to obtain our client’s final instructions in relation to the preparation of his affidavit material.
…
We have received instructions that we are no longer to act in this matter and therefore we have no alternative but to file a Notice of Ceasing Act [sic] with our supporting affidavit urgently.
15. The email enclosed a medical certificate dated 29 January 2016 from [Dr B] at [Z] Medical Centre in [Suburb P]. [Dr B] had “examined [the father]” and in the doctor’s opinion he:
…is/was suffering from moderately severe anxiety and depression and will be unfit to attend Court proceedings [from] Friday 29 January 2016 to Sunday 28 February 2016 inclusive.
16. At 11.04a.m on 1 February 2016, an email was received by Chambers from the Mother’s solicitor. The email stated that the Father’s solicitors had “not received any further updates from [the father]” however the solicitors had “provided [the father] with [my Associate’s] email address so as to keep the Court updated as to his progress.” The email also enclosed a copy of a letter from the Father’s solicitor, [Ms R], to the Mother’s solicitors and the Independent Children’s Lawyer, a sealed Notice of Withdrawal as Lawyer (which was filed on 1 February 2016) and an affidavit of the solicitor, sworn on 29 January 2015. The letter reads:
…This morning the writer … received an email from [the father’s] brother, [Mr J], indicating that [the father] is currently in hospital.”
[Ms R’s] affidavit, sworn on 29 January 2016, annexed the email in which the Father terminated her services.
17. At 12.34p.m on 1 February 2016, an email was received by Chambers from Mr J [the Father’s brother], copied to the Mother’s solicitors and the Independent Children’s Lawyer. The email read:
I am writing on behalf of my brother, [the Father], who has been admitted to [N Hospital] due to a seizure that he suffered on 31 January 2016.
At this stage, [the Father] is still in hospital as the hospital are currently running scans. We have been advised that the hospital anticipates that [the Father] will be in hospital for the coming days. It appears that [the Father] will not be fit and able to attend his final hearing at this stage as he has been unwell for quite some time. In the event that [the Father] is unable to attend to seek an oral adjournment, would you please advise as to the best steps to seek an adjournment.
18. Neither the Father, nor anyone on behalf of the Father, attended the hearing at 10 a.m. on 2 February 2016, apart from the Father’s solicitor, [Ms R], who appeared at 10 a.m. to seek the Court’s leave to withdraw from the proceedings. Leave was granted.
19. At 10.40a.m. on 2 February 2016, an email was received by Chambers from [the Father’s brother] stating:
I am writing on behalf of my brother [the Father] who is currently in intensive care at [N Hospital] as his hearing is listed today. We urgently seek an adjournment. I can be contacted on […] for any further assistance.
20. The Father, without adequate explanation, had not complied with the orders for the filing of his affidavit material. He had not filed an application for an adjournment, and had personally terminated the services of his solicitor on the Friday immediately prior to the hearing, without explanation and without reference to his health.
21. The Wife opposed an adjournment. The Independent Children’s Lawyer opposed an adjournment. I decided to proceed with the hearing on 2 February 2016, in the absence of the Father, for these reasons:
a)The Father terminated the services of his solicitors on 29 January 2016, without explanation, and despite the medical certificate stating he was “unfit” from that date. If he was seeking an adjournment as a result of illness, it is difficult to understand why he did not retain his solicitors who had been in the matter for a long time, at least to make the application for an adjournment.
b)The Father’s solicitors did not advise that the Father was seeking an adjournment in their Affidavit filed on 29 January 2016.
c)The Father provided insufficient medical evidence to satisfy me he was unfit to appear. The medical certificate provided by [Dr B] was vague and inadequate, given the seriousness of the issues in dispute, the timing of the medical certificate and given that the hearing had been listed for several months.
d)The Father had filed no affidavit material by the time of hearing without explanation, despite the order for the material to be filed by 21 December 2015 and the extension of time agreed between the parties to 15 January 2016. The Father failed to respond to requests in writing from the Mother’s solicitors as to whether he relied solely on affidavit material filed earlier in the proceedings on 29 September 2013 and 28 February 2014.
e)The evidence disclosed extremely serious allegations against the Father in relation to his conduct towards the Mother and the child both during their cohabitation and after separation. The Father had been served with the Mother’s affidavit in mid-January 2016 and was therefore aware of the impact of the litigation on her emotional and physical health. [Dr C] had raised significant concerns in her report in relation to the level of trauma the Mother had suffered at the hands of the Father, a report the Father had had in his possession since August 2015. The Father would have known that an adjournment would be likely to have an adverse impact on the Mother’s health. The Father would have known that he would be cross examined in relation to the Mother’s allegations about his conduct, including the allegations about his involvement in criminal activity. I am satisfied he had reason to avoid the hearing.
f)The evidence disclosed that the Mother’s capacity to parent [X] was being adversely affected by these proceedings and Senior Counsel for the Mother submitted that an adjournment was likely to cause the Mother’s emotional health to deteriorate further. Counsel submitted that, given the extent of her fear of the Father, the Mother needed finalisation of the litigation. In her trial affidavit the Mother says:
I have no doubt that if this Honourable Court were to order any time whatsoever or these proceedings do not come to an end after the final hearing, I will disintegrate. I am fearful of the possible outcomes in respect of the final hearing, the possibility of further harm and trauma to [X] and the detrimental impact on my capacity to parent [X] as her primary carer…. I am not physically, emotionally or financially able to deal with ongoing litigation and desperately seek finality of these proceedings.
g)[Ms G], clinical psychologist, in a short report annexed to the Mother’s affidavit, discloses that she has been consulted by the Mother between May and December 2015 for Victims Compensation Tribunal counselling. [Ms G] confirms the Mother’s need for closure, given her fragile emotional state as a result of the trauma she has experienced at the hands of the Father.
h)As highlighted by the Independent Children’s Lawyer, [Dr C] also said that given the Mother’s emotional state, she needed the litigation to be finalised.
22.The Mother relies on her affidavit sworn on 17 January 2016, the affidavits of [Dr J] affirmed 13 January 2016, [Ms H], sworn 13 January 2016, [Ms E] sworn on 14 January 2016, [Mr B] (maternal grandfather) sworn 15 January 2016, and [Ms R] (maternal grandmother) sworn 15 January 2016. The Father had filed no affidavit material since February 2014. His mother, [Ms C], had sworn an affidavit in December 2013, and he had sworn an affidavit in February 2014, both of which I have taken into account.
(Footnotes omitted)
It ought be noted that as referred to by the trial judge, the evidence from or on behalf of the father (such as it was before her Honour) reveals that it was as late as 29 January 2016 that the father first claimed any medical incapacity. That was obviously many months after Dr C’s report of 26 August 2015; and long after the orders made on 1 October 2015. There was no explanation provided to the trial judge for the father’s longstanding and continuing non-compliance with the requirements of the 1 October 2015 order. Moreover, throughout the period following the making of that order, during which the father was legally represented, there was no application by the father for the Court to order revised dates based upon any asserted medical incapacity, or other cogent reason to address the father’s non-filing of any trial material as ordered. This is in the context of a case where there was independent evidence, express and by inference from the expert report of Dr C, that the proceedings were subjecting the mother to stress and anxiety, with the potential consequences of that for the child. It is also to be noted that on the hearing of this appeal, and despite an application for further evidence being advanced, there was no attempt on behalf of the father to furnish this Court with any evidence, or submissions, explaining the father’s default in this respect.
Most importantly, as can be seen from [21(e)] of the reasons quoted above, the trial judge focused upon the impact upon the mother’s health (and potential consequences for the child) of the proceedings, with reference to Dr C’s opinions.
Plainly, the trial judge balanced the serious countervailing factors in terms of the mother’s health and, most fundamentally, the child’s best interests, in determining to proceed with the trial. It bears repeating that the ICL, charged with the statutory responsibilities to represent the interests of the child in the proceedings, opposed the adjournment and sought that the trial proceed.
Having resolved to proceed it can be seen from the detailed and comprehensive reasons for judgment that the experienced trial judge did not disregard evidence on behalf of the father. To the contrary, the reasons for judgment are replete with numerous references to earlier affidavit evidence filed by the father including his blanket denials of any untoward conduct. That is, despite the father’s longstanding and conspicuous failure to file trial affidavit material as ordered, the trial judge nevertheless had regard to the material previously filed, at interim stages, by the father. In summary, in careful and comprehensive reasons the trial judge demonstrated that in arriving at the parenting orders made the trial judge did pay particular heed, and took account of, the material filed by the father prior to the making of the parenting orders, together with the content of Dr C’s report recording relevant details from that expert’s interviewing of the father. That the trial judge was unable to pay heed to any trial material of the father can be seen as a wound which was self-inflicted by the father’s own non-compliance with orders.
In all the particular circumstances of this case referred to, the provision of fairness to all parties to parenting proceedings, having as their paramount focal point arriving at orders to best promote the child’s welfare, it cannot be concluded that there was any relevant denial of natural justice or procedural fairness to the father.
Would a properly conducted trial possibly have produced a different result?
Obviously, this topic only need be considered if the foregoing conclusion that there was no relevant denial of natural justice or procedural fairness to the father is seen to be incorrect. It is therefore addressed on the basis of the theoretical assumption that what occurred amounted to a departure from the rules of natural justice, so as to consider whether any such departure requires a remedy.
In Stead (supra) the High Court held (at p 145) that the general principles of natural justice, to which reference has already been made, are subject to an important qualification as to whether further information could possibly have made a difference. The High Court formulated and discussed the qualification as follows (commencing at p 145):
… That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. True it is that an appeal to the Full Court from a judgment or order of a judge is by way of rehearing and that on hearing such an appeal the Full Court has all the powers and duties of the primary judge, including the power to draw inferences of fact … However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial….
…
All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result.
In argument of the appeal, asked to address on the relevant question of how the father could show he was deprived of the possibility of a successful or different outcome, the highest it was put by the father’s counsel was that the father was denied the opportunity to cross-examine witnesses and to make submissions. That is, it was not suggested that the father could have provided additional or other evidence to meet the case of the mother and the ICL or to address the expert evidence of Dr C or Dr J.
Plainly, and despite the lack of any trial evidence filed by the father, the father’s contention should be approached on the footing that issues of fact, surrounding the adverse allegations against the father were involved, given the father’s blanket denials in his interim affidavit material (as referred to by the trial judge) and the father’s statements to the expert Dr C as recorded in her report. Thus, the “proceed with caution” endorsement of the High Court applies and on the test identified by the High Court it is necessary for this Court to find that a trial involving the father’s cross-examination of witnesses (and making of submissions) could not possibly have produced a different result in order to negative any departure from the rules of natural justice.
Having reviewed the appeal record with the benefit of the submissions addressed to us in argument of the appeal, that record, including the very detailed and comprehensive account of the mother in her trial affidavit; the evidence of each of her witnesses in trial affidavits; and the various aspects of corroboration of the mother’s case provided from sources (including the father himself) as earlier referred to; the possibility that cross-examination of these witnesses by the father could have made any material alteration to the evidence ultimately considered by the trial judge, and founding the conclusions as to the parenting orders to be made in the child’s best interests, is properly characterised as fanciful.
No degree of cross-examination by the father of any witness could affect indisputable facts, such as those recorded in subpoenaed records held by the police; the father’s conviction for breach of an Apprehended Violence Order; or importantly the content of contemporaneous (with relevant events) communications authored by the father himself, as annexed to the mother’s trial material, as just some examples.
Most fundamentally, it can be seen that at the forefront of orders in the child’s welfare (as indeed it was in the trial judge’s reasons for judgment) is the evidence and opinions of the independent expert Dr C going directly to the child’s welfare. Of particular significance here are the independent observations made by Dr C of the child in the (ultimately unsuccessful) attempts made to have the child engage in any way with the father during the interview process undertaken (as earlier referred to); and Dr C’s expert opinions as to the genuineness in which the extreme fears were held by the mother, and the potential compromise of her parenting capacity, by orders for time or communication between the child and the father. There was never any issue joined in the proceedings about it being in the child’s best interests that she remain in the primary care of the mother, at least for the medium term future, and, as earlier noted, the child has not in fact spent any time at all with the father since the end of 2012. It bears repeating that the child presented to Dr C, in that expert’s assessment, as “terrified of her father” and Dr C provided her opinion to the effect that any attempt at instituting contact with the father would be traumatic and psychologically damaging to the child.
It would be fanciful to allow for any reasonable possibility that cross-examination of Dr C by the father could have altered Dr C’s observations and assessments of the mother and the child, made independently by Dr C, which were central to the opinions Dr C expressed. There was no suggestion in argument of the appeal that cross-examination of Dr C would even have been attempted with a view to having Dr C change or alter her expressed opinions. It bears emphasis that Dr C’s process included the expert undertaking an extensive review of documentary evidence, including the father’s earlier filed written affidavit evidence, as well as Dr C’s extensive interviews with the father. It must also be noted that Dr C’s, albeit relatively brief, oral evidence at the trial included answers given by her in response to questioning by counsel for the ICL representing the child’s interests in the proceedings.
The reasons of the trial judge reflect a very detailed and comprehensive consideration by the experienced trial judge of the relevant provisions of Part VII including the s 60CC considerations, by which a court determines a child’s best interests. It is clear that the trial judge’s acceptance that the father had engaged in family violence and abuse within the meaning of the Act, and the impact of that on the mother and the child, were given particular weight when the trial judge came to address each of the relevant s 60CC considerations to which that aspect was relevant.
We are unable, when the reasons for judgment are read as a whole, to avoid the conclusion that even with provision for the father to cross-examine relevant witnesses and to make submissions (importantly, absent evidence in chief of the father traversing the detailed case of the mother of herself and her witnesses) there existed any reasonable possibility of a different result from that embodied in the trial judge’s parenting orders.
Ground 3 of the appeal contains the specific challenge to the effect that the trial judge ought to have adjourned the hearing, or ought to have made interim orders. The question of adjournment has already been discussed in the foregoing. As to interim orders, likewise, the nature of parenting orders as being by definition liable to variation has already been outlined. Further to that, in the particular circumstances of this case including the expert’s opinions as to the deleterious effects upon the mother, and thus upon the child, of the ongoing litigation (which is noted had been on foot since 2013) it can readily be concluded that costs would not address the injustice to the mother that the making of interim orders in the circumstances of this case would entail.
In Allesch (supra) in their joint judgment (Gaudron, McHugh, Gummow and Hayne JJ) their Honours, after referring to the judgments of the High Court in Taylor (supra) observed (at pp 182-183):
… a court will, ordinarily, be satisfied that there has been a miscarriage of justice if a person has suffered an adverse order in circumstances where his or her failure to appear is adequately explained unless it also appears that no different result would be reached on a rehearing or that a rehearing would work an irremediable injustice to the other side. In this last regard, it should be noted that injustice will often be capable of remedy by the imposition of terms as to costs.
(Footnote omitted)
In the face of not only the evidence of the mother herself but, in particular, Dr C’s assessment of the mother and her relevant expert opinions, it can readily be concluded that the making of interim orders would work an injustice upon the mother (and indeed upon the child) not remedied by an order as to costs.
Conclusions on natural justice challenges
For the foregoing reasons, the primary conclusion reached is that there was, in all of the particular circumstances of this case as discussed, no material denial by the trial judge of natural justice or procedural fairness to the father.
If that primary conclusion be incorrect, it nevertheless can be concluded that a trial involving the father cross-examining witnesses and making submissions could not possibly have produced a result different to that embodied in the parenting orders made by the trial judge.
It follows from these conclusions that there is no merit in Grounds 1 to 4 (inclusive) and Ground 6, and Ground 5 to the extent that this ground embraces a challenge on natural justice considerations.
Remaining challenges
By Ground 5 it is contended that the trial judge made orders “against the recommendations of the Single Expert” (a reference to Dr C).
The premise for this challenge, that is, that the parenting orders made by the trial judge were “against the recommendations” of Dr C, is untenable.
Reference to Dr C’s written report, supplemented by her, albeit relatively brief, oral evidence at trial (transcript 2 February 2016, pp 14 to 20) results in the ready conclusion that the trial judge’s orders were not contrary to any “recommendation” of Dr C.
In answer to questions by counsel for the ICL, which can be seen to have done no more than seek to have Dr C further explain or illuminate opinions she had already expressed in her report, Dr C referred only to the “possibility” of the child having some “identity contact” with the father when she was “about seven years old”. That was expressed by Dr C to be heavily conditioned, first, on the child being of an age of having a basic understanding of the mother’s concerns and the situation between her parents. The further important condition precedent identified by Dr C, as referred to in her written report, is when “the mother’s mental state has settled”. Asked about the conditions precedent identified in her report, Dr C gave evidence in the following exchanges:
[Counsel for the ICL]: What did you mean by settled?---
[Dr C]: Well, she’s in an extreme state of alarm and distress, and while the mother is so distressed she’s not able to separate – she would not be able to let the child separate from her without causing the child great alarm. So it would be of any benefit to the child to separate from her mother under those conditions.
[Counsel for the ICL]: Doctor, were you able to – did you have the opportunity to look at the mother’s trial affidavit and, in particular, her evidence about how she’s currently feeling mentally and emotionally?---
[Dr C]: Yes, I did.
[Counsel for the ICL]: Was there anything in that that suggested to you that her mental state has settled - - -?---
[Dr C]: No.
[Counsel for the ICL]: - - - at this point in time?---
[Dr C]: No.
[Counsel for the ICL]: All right. And so that, really, those three conditions in that paragraph have not been met at this point in time, have they?---
[Dr C]: No, no.
[Counsel for the ICL]: No. And would it be fair to say that from – when you were writing this report, you considered the possibility that if those three things had been met, it may have been possible - - -?---
[Dr C]: Right. Yes.
[Counsel for the ICL]: Because that’s what you say – it may be possible to institute this?---
[Dr C]: Yes.
[Counsel for the ICL]: So it wasn’t even a, you know, definitely if we tick all those three boxes then this could go ahead?---
[Dr C]: Yes.
[Counsel for the ICL]: And would you agree with me, doctor, that it would only be possible if the mother was able to support it - - -?---
[Dr C]: Yes, yes.
[Counsel for the ICL]: - - - or at the very least tolerate it?---
[Dr C]: Yes.
[Counsel for the ICL]: Otherwise it simply won’t work, will it?---
[Dr C]: No. As I said, if the mother is in a state of alarm, as she has been now for some time, then the child is going to be alarmed by any such attempt to institute that kind of contact.
[Counsel for the ICL]: And that would be detrimental to the child?---
[Dr C]: Yes.
[Counsel for the ICL]: Or even if it somehow got off the ground and we had one or two visits and then could not be sustained, that would be detrimental to [X], wouldn’t it?---
[Dr C]: Yes, I think that it has – it has to be under settled conditions. There’s no point otherwise. The conditions - - -
[Counsel for the ICL]: There’s no point starting something that can’t be continued?---
[Dr C]: No. The conditions have to be settled. If the conditions were settled, then I think there’s always a benefit to a child in having identify [sic] contact if conditions are safe and reasonably settled, but not when there’s alarm and distress, no.
It ought be noted that the parenting orders made by the trial judge included (by Order (6)) the provision for the father to forward gifts to the child each birthday and Christmas.
There is no merit in this ground.
Additional Ground 7
Whilst there was no formal application by the father to amend his notice of appeal filed on 30 May 2016, his amended summary of argument filed on 31 May 2017 contained what is expressed to be an “additional ground of appeal” in these terms, “[t]hat her Honour made findings against the appellant without providing reasons”. No objection was taken by the other parties to this ground being agitated.
Specifically, the focus of this additional challenge is upon the concluding sentences of [21(e)] of the trial judge’s reasons, earlier quoted in full but here repeated:
e)The evidence disclosed extremely serious allegations against the Father in relation to his conduct towards the Mother and the child both during their cohabitation and after separation. The Father had been served with the Mother’s affidavit in mid-January 2016 and was therefore aware of the impact of the litigation on her emotional and physical health. [Dr C] had raised significant concerns in her report in relation to the level of trauma the Mother had suffered at the hands of the Father, a report the Father had had in his possession since August 2015. The Father would have known that an adjournment would be likely to have an adverse impact on the Mother’s health. The Father would have known that he would be cross examined in relation to the Mother’s allegations about his conduct, including the allegations about his involvement in criminal activity. I am satisfied he had reason to avoid the hearing.
The father contends that there was no evidence identified by the trial judge that provided a basis for what are characterised as “adverse findings” against the father in the final sentences of this paragraph.
As a matter of practical reality and common sense the father, legally represented up until 29 January 2016, could not reasonably have been in any doubt that a trial set for three days duration would include cross-examination by him of counsel for the mother and counsel for the ICL. That was not a matter requiring evidence nor further explanation by way of reasons.
The mother’s allegations, including allegations concerning the father’s conduct, including his potential criminal activities by reference to the events in 2013 were at the focal point of the mother’s case and the determination of orders in the child’s best interests.
Any reasonable reading of Dr C’s report results in the conclusion that the mother’s health was, in that expert’s opinion, adversely affected by the ongoing litigation which, it is repeated, had been on foot since 2013.
Viewed in the entire context, given that the statements were made by the trial judge in that part of her reasons dealing with what the trial judge treated as the informal application by the father for an adjournment of the trial, these are properly viewed as observations about the need for cogent evidence by the father both to support his application for an adjournment; to explain his non-compliance with previous orders of the Court; and to address the consequences of an adjournment for both the mother and the child; and the bona fides of the father. No further reasons than those provided by the trial judge were necessary to support any conclusions expressed.
There is no substance in this additional ground.
Conclusion and costs
We emphasise that this was an unusual case, in terms of the confluence of circumstances and considerations particular to this case that fell for consideration in determining whether any denial of natural justice occurred and, assuming some departure, whether it ought be remedied by the setting aside of the orders and ordering a re-trial.
However, for the foregoing reasons, the application in an appeal and the appeal itself ought be dismissed.
In that event each of the ICL and the mother sought orders for costs.
In the case of the ICL an order for costs was sought in the fixed sum of $4,521.
In the course of argument about costs, the mother abandoned her initial approach that her costs should be ordered on an indemnity basis. The mother pursued an order for costs on a party and party basis.
Despite attempts by this Court to have the parties reach agreement on the appropriate fixed sum for the mother’s costs if an order were to be made that was not achieved on the day of hearing, nor in subsequent notifications received by the Appeals Registrar as were provided for at the hearing.
The father has been wholly unsuccessful in the appeal proceedings.
As earlier noted, he did not pursue any application to reopen the evidence in the period after the trial on 2 February 2016 and prior to delivery of the judgment on 2 May 2016. He elected not to pursue his rights pursuant to the relevant FCC Rule earlier referred to and chose to engage the mother and the ICL in an appeal.
Whilst this Court was not provided with details about the current respective financial circumstances of the father and mother, in resisting the applications for costs counsel for the father did not contend that s 117(2A)(a) was, or could be, an operative consideration in defending the applications.
There are justifying circumstances within the meaning of s 117(2) of the Act for orders for costs to be made, and an order that the father pay the ICL’s costs in the fixed sum contended for by the ICL is just. So too is an order for the father to pay the mother’s costs of and incidental to the appeal proceedings on a party and party basis, such sum to be agreed or, failing agreement, to be assessed.
For these reasons we would make the following orders:
(1)The application in an appeal filed by the appellant father on 17 August 2017 be dismissed.
(2)The appeal be dismissed.
(3)The appellant father pay the costs of the Independent Children’s Lawyer fixed in the sum of $4,521.
(4)The appellant father pay the costs of the respondent mother of and incidental to the appeal on a party and party basis with such costs to be agreed or, failing agreement, to be assessed.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Kent & Cleary JJ) delivered on 29 January 2018.
Associate:
Date: 29.01.2018
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