CORWIN & CORWIN - [2018] FamCAFC 83

FAMILY COURT OF AUSTRALIA

CORWIN & CORWIN

[2018] FamCAFC 83

FAMILY LAW – APPLICATION TO ADDUCE FURTHER EVIDENCE – where the appellant mother sought leave to adduce further evidence – where none of the further evidence met any of the criteria for the admission of further evidence upon questions of fact on appeal as prescribed in CDJ v VAJ (1998) 197 CLR 172 or overcame the constraints articulated in that authority – application to adduce further evidence dismissed

FAMILY LAW – APPEAL – where the mother contended that the trial judge erred in making a number of findings of fact – where those findings of fact were based largely on the evidence provided by the single expert family report writer reporting statements made by the parties’ children during the family report interview – where the mother asserted that the children were coached by the father to provide negative statements about the mother to the family report writer – where the trial judge accepted the family report writer’s opinion that the children were not coached – where it was open to the trial judge to accept the expert’s opinion and the evidence of the children – where the trial judge was keenly aware of the father’s history of domestic violence and his criminal history when making the orders – where the trial judge accepted the evidence of the father and the children that the father’s pattern of behaviour had changed – where the mother’s complaints devolved into complaints that the trial judge ought to have elevated the mother’s own evidence – where there was no substance in the mother’s contentions concerning asserted errors of fact – where there was no substance in any of the complaints of the mother directed to any issue of procedural fairness afforded to her by the trial judge – appeal dismissed – no order as to costs

Family Law Act 1975 (Cth) ss 60CC(2)(b), 93A(2), 94AAA(3)

Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Dearman v Dearman (1908) 7 CLR 549; [1908] HCA 84
Devries v AustralianNational Railways Commission (1993) 177 CLR 472; [1993] HCA 78
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

APPELLANT:

Ms Corwin

RESPONDENT:

Mr Corwin

FILE NUMBER:

BRC

4146

2017

APPEAL NUMBER:

NOA

2017

DATE DELIVERED:

26 April 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

4 April 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

10 November 2017

LOWER COURT MNC:

[2017] FCCA 2862

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Downes

SOLICITOR FOR THE RESPONDENT:

Maloy Law

Orders

The mother’s Application in an Appeal to adduce further evidence on appeal filed on 23 March 2018 is dismissed.
The appeal is dismissed.
There be no order as to costs of the appeal.

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 Corwin & Corwin 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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 69 of 2017
File Number: BRC 4146 of 2017

Ms Corwin

Appellant

And

Mr Corwin

Respondent

REASONS FOR JUDGMENT

The five youngest of the parties’ nine children were the subject of contested parenting proceedings[1] determined by Judge Cassidy in the Federal Circuit Court of Australia.
[1] Pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Final parenting orders made by Judge Cassidy on 10 November 2017 conferred sole parental responsibility for those children upon the father. Orders were also made for those children to live with the father and for them to spend time, and communicate with, the mother. For a period of six months following the making of those orders, the youngest three children’s time with the mother was ordered to be supervised at a contact centre.
Those orders were founded upon findings by the trial judge that the children were at risk of emotional and physical harm in the mother’s care and, in the case of the two oldest of the five children, that they had been living with the father since 2016 as a reflection of their views. As will be discussed, the trial judge’s findings as to risk relied, in substantial part, upon the expert opinion of the family report writer, Ms S. Ms S had undertaken an assessment of the family for the purpose of preparing a family report dated 16 October 2017. In the course of her assessment of the children the subject of these proceedings, Ms S had undertaken interviews of the children including some of the older siblings of the subject children. In addition to providing her written report, Ms S gave oral evidence at trial. Her written report and oral evidence reflected concerning statements made by the children with respect to the mother’s conduct, and the expert’s opinion as to the risk posed by the mother relied heavily upon what the children, including the elder siblings, had told her.
The mother appeals from the final parenting orders and seeks an order on appeal that the youngest three children live with her and spend alternate weekends and half school holiday periods with the father.
The father opposes the appeal.
Pursuant to a direction made under s 94AAA(3) of the Act the jurisdiction of the Family Court in relation to this appeal is to be exercised by a single judge.

The mother’s challenges on appeal

The mother represented herself on the appeal as she did in the proceedings at first instance. The mother has no relevant legal training or experience. Whilst her Notice of Appeal filed on 8 December 2017 specifies as many as 40 separately numbered paragraphs as grounds of appeal, many of these are, upon analysis, not proper or adequate as grounds of appeal. For example, as was explained to the mother in the course of the hearing, many of her stated grounds merely state conclusions or bare assertions unsupported by any particulars such that the error or errors asserted cannot be identified. Other of the grounds, as counsel for the father emphasised during argument, contain assertions as to facts or evidence which, examination of the record confirms, was not the evidence, or in evidence, before the trial judge.
Commencing at the outset of, and throughout the course of, the mother’s oral argument of the appeal, the Court attempted to distil that which the mother sought to agitate on appeal, albeit by reference to her numerous grounds of appeal. That process resulted in the following being identified as the central contentions of the mother on appeal, expressed in summary and paraphrased form:
a)The trial judge made errors as to the facts and thus some of the trial judge’s findings are infected by factual errors;
b)Given the father’s acknowledged, serious and longstanding history of domestic violence throughout the parties’ relationship, characterised by the trial judge as “horrific”, taken also with the father’s demonstrated parenting deficiencies historically, the trial judge erred in principle, as expressed in s 60CC(2)(b) of the Act, in making the subject orders;
c)The family report writer, Ms S was wrong to treat statements of the children made to her in the assessment process as statements of fact as regards the mother’s conduct and, consequentially, the trial judge was in error in relying upon that expert’s opinion, largely based as it was on the children’s statements;
d)Each of the family report writer, Ms S, and the trial judge were wrong to place any reliance upon the father’s statements and evidence respectively;
e)The trial judge was wrong to place any emphasis upon the lack of any acknowledgement by the mother of any deficiencies in her parenting, as no such acknowledgement was justified on the basis that the mother has been demonstrated to be a capable parent;
f)The trial judge failed to provide the mother with procedural fairness during the trial in that the trial judge failed to provide the mother with sufficient opportunity “to speak during the trial”.

Relevant factual context of the parenting orders made

The following central facts are extracted from the reasons of the trial judge.
In 1996 the parties commenced an “on and off relationship where there was [sic] periods of separation and then periods when they were together” (at [12]). The parties married in May 1997 and finally separated “in or around May 2016” (at [17]).
The parties’ relationship and marriage produced nine children of the following ages at the time of the trial and subject orders:
a)Ms X (“Ms X”) who was born in April 1997 (20 years of age);
b)Mr Y (“Mr Y”) who was born in June 1998 (19 years of age);
c)Child C (“Child C”) who was born in November 2000 (16 years of age);
d)Child D (“Child D”) who was born in September 2002 (15 years of age);
e)Child E (“Child E”) who was born in February 2005 (12 years of age);
f)Child F (“Child F”) who was born in November 2006 (10 years of age);
g)Child G (“Child G”) who was born in November 2012 (5 years of age);
h)Child H (“Child H”) who was born in June 2014 (3 years of age); and
i)Child I (“Child I”) who was born in October 2015 (2 years of age).
As earlier noted, the parenting orders made on 10 November 2017 relate only to the youngest five children: Child E, Child F, Child G, Child H and Child I.
During 2016, by which time the two oldest children were adults, the next two oldest children, Child C and Child D, moved from the mother’s home to live with the father (at [13]) as also did Child E and Child F (at [21]).
In or around March 2017 the oldest child Ms X and the mother’s sister Ms V (“Ms V”) raised concerns about the mother’s capacity to care for the remaining three youngest children in the mother’s home environment, and they placed those children also in the father’s care (at [14]).
The mother’s application for a recovery order was dismissed in the Magistrates Court in March 2017 and all children were placed in the father’s care by orders of that court. The “upshot” of what occurred thereafter as described by the trial judge was that the Child G was retained by the mother in her primary care (despite the orders of the Magistrates Court) so that whilst the other children were in the father’s primary care in the period leading up to the November 2017 trial of these proceedings, Child G was in the mother’s primary care.
As the mother sought to emphasise in her evidence at trial, as she did in argument of the appeal, parental separations during the relationship had the consequence that the father left the family home, leaving the mother as essentially a sole parent. Thus, for example, the significant period of parental separation which occurred in 2009 (from about March 2009) entailed the mother being left solely responsible for the care of the parties’ then six children, those children then being aged between about three years and twelve years.
At [25] of her reasons for judgment her Honour records:
This is a matter where the father’s assaults and acts of domestic violence against the mother have been horrific and they have occurred over the entirety of the relationship.
At [26] to [39] the trial judge refers to the father’s criminal history and the history of reported incidents of domestic violence as contained in subpoenaed documents for the trial. It is noted at [27] that the father’s history includes that in 1996 he was charged with possession of drugs and possession of a pipe and “had a fine imposed”. The trial judge refers specifically to various breaches by the father of domestic violence orders including him being dealt with for such breaches by court orders.

Statements of the children to the family report writer

As the information imparted by the children to the expert Ms S, family consultant, loomed large in the proceedings (as they do on appeal); and were a substantial foundation for that expert’s opinions (which are challenged on appeal); relevant excerpts from the expert’s report dated 16 October 2017 in relation to her interviews with the children and her opinions are set out in full as follows:
[Child F], aged 10 years and 9 months
57.[Child F] appeared physically healthy and appropriately dressed and to be reaching his normal developmental milestones. His level of maturity was consistent with his chronological age. Because [Child F] had been clearly distressed and uncomfortable during the observation of the children with their mother, I decided to interview him first after the observation, to alleviate some of his distress and anxiety rather than prolong it. [Child F] had a sweeping fringe of hair across his forehead and with his head down and making limited eye contact with me, he presented as quite shy.
58.[Child F] told me that his favourite thing about his father was “playing the X-Box together” but he said that he did not have a favourite thing about his mother. If he had superpowers and could change something about each of his parents, he would change nothing about [the father]. Regarding [the mother], [Child F] would “make her nicer- she wouldn’t yell at you, for jobs and that.” He said that his mother expected him to “do everything, like the washing, the dishes, the floors” whereas at his father’s place “he does it, and we have chores, a list, one job a day, but at Mum’s there’s tons of jobs.”
59.I noted that [Child F] was on the brink of tears and his voice wobbled as he said “I started living with my Dad because I really didn’t like it at Mum’s house, her yelling at me and that.” He told me that he wanted to continue living with his father, and if the Judge said that he had to live with his mother he “wouldn’t really like it.”
60.When I asked [Child F] about arguments between his parents, he remained on the brink of tears as he responded “Mum would always start it. My Dad isn’t bad. He’s not as bad as he was ages ago. He used to get arrested a lot. He sort of [did scary things] but he doesn’t anymore.” [Child F] maintained that he had never seen his father hurt his mother, adding “I was probably too little to remember.” [Child F] said that he felt safe with his father. He asserted that he did not really feel safe at his mother’s house but he did not know what would help him feel safer there.
61.[Child F] responded “don’t know” regarding what he would like to change in his own life if he had superpowers. He told me that he had wanted to live with his brother and sisters in the [Town N] house, which he said was owned by his sister [Ms X’s] boyfriend [Mr Q]. He liked all his siblings and did not have a favourite. [Child F] was not sure if he and his siblings and father were going to move to his father’s girlfriend [Ms T’s] house in [Town O], but he said that [Ms T] was “sort of like my mum” and he got on well with her 3 daughters. He told me that he did not really care if the family moved to [Town O] or stayed in [Town N].
[Child E], aged 12 years and six months
62.[Child E] appeared healthy and appropriately dressed and to be reaching her normal developmental milestones. Her level of maturity was consistent with her chronological age. She told me that she is in year 7 at [M high school] and that she has had braces on her teeth for 4 months.
63.[Child E] described her father as “really nice, he doesn’t yell at us or abuse us.” Regarding [the father’s] response if the children did not carry out a chore or instruction, or if they misbehaved, [Child E] reported “he says to do it, or not do it again, he won’t yell, he would probably take the I-Pad or phone away for a week or so.” She said that her favourite thing about [the father] was that “his personality is really funny” and if she had superpowers she would “make him live forever.”
64.Regarding her mother, [Child E] asserted that there were “not many things I like about her” and if she had superpowers she would “make her nicer.” [Child E] then began to cry, and visibly upset, she described a time when her mother “was chasing me with a hairbrush, I tripped over toys and she started beating me with it.” With tears rolling down her face, [Child E] cried out “I don’t know what I did wrong.”
65.In a distressed tone [Child E] then told me that her mother “tells lies about my Dad, that he doesn’t love us and stuff,” asserting that she knew they were lies “because I love my Dad and he loves me.” [Child E] said that her mother promised that “if I moved back in I would get spoilt rotten. I stayed over; we went to the beach; I think she was only doing it to make me love her or stay longer.” She said that after the parenting orders she only went to her mother’s house for one weekend with her sisters because the house was “kind of messy.”
66.[Child E] became more distressed as she recounted a time at Christmas 2016 when by her account the children were all in the car ready to go and [the mother] went back into the house with [Child F] to get food but did not put the handbrake on in the car. She was crying and her words tumbled out as she described her fear as the car went rolling back into a tree: “I fell onto the ground, I was all white I couldn’t see; the branch went through the back of the window. Only me, [Child G], [Child H] and [Child I] were in the car. I grabbed the girls out of the seat. I was holding [Child I]. Mum heard the crash and she got a wet tea-towel and whipped me on the leg.” [Child E] dissolved into floods of tears as she finished “apparently it was my fault! I didn’t even know what a handbrake was at the time!”
67.[Child E] asserted that if the Judge decided she should live with her mother “I wouldn’t like it, I’d be scared.” If the Judge decided it was best for her to live with her father, [Child E] said “I’d like it, he never hurts us or swears at us.”
68.[Child E] recalled that when she was younger her parents “always used to get into fist fights” and that she had been told “stuff” by her older sisters and brothers such as [the mother] “made up lies.” She said that she could not recall things her mother said to her father but [the mother] had chased [the father] with knives. She said “Mum did do it to [Child F], she ran after him with a knife one time, and Mum threw a steak knife at [Child F] last year and he ducked and it went into the wall.”
69.[Child E] told me that her mother had called her a “bitch” and called [Child F] a “c***.” She said that when they children lived with their mother “we’d be inside doing chores and she’d be smoking weed in the bathroom.” [Child E] reported finding “a bag of green weed in there, and she had a big bong.” [Child E] asserted that “Dad doesn’t smoke, he used to but he quit. He doesn’t drink as much. Dad’s changed but Mum hasn’t.”
[Child G] aged four years and nine months
70.Both parents had separately reported that [Child G] had recently been unwell with a temperature and vomiting. She was appropriately dressed and appeared to be meeting her normal developmental milestones, although as I did not hear her say very much I wondered if she may have some delay in speech development.
71.When it was time for me to briefly interview [Child G], she said “I want Daddy as well” and she was reluctant come into the interview room with me by herself. [Child G] also told me that she did not want to speak to me with her mother present. After I had tried some rapport building conversation, [Child G] shrugged when I asked her how come she was living with her mother by herself when the others were living with their father. [Child G] shook her head when I asked if she also wanted to live with her father, and then she shrugged when I asked her thoughts regarding on if the adults decided she should stay living with her mother.
[Child H] aged three years and two months and [Child I] aged 22 months
72.[Child H] and [Child I] wanted to accompany [Child G] into her interview. Because of their young ages, [Child H] and [Child I] were not separately interviewed. Both girls appeared healthy, appropriately dressed and to be meeting their normal developmental milestones.
Older Siblings
[Ms X] aged 20 years
73.As the eldest of the [Corwin] siblings, [Ms X] provided her perspective on the nature and history of the parents’ relationship. She reported that her parents were “always on and off;” that arguments between them usually started over money; that the police would “only come after everything happened;” and that her mother “started most fights – she would not stop, she aggravated Dad till it ended up in a fist fight.”
74.[Ms X] reported that both parents drank heavily and were alcoholics; that [the mother] “would go through a couple of bottles a night, vodka, spirits” and one night she consumed 3 bottles of Wild Turkey; and that “maybe Dad would drink a bottle and a half, share it with Mum. They’d get up each other for drinking and hide it from each other.” [Ms X] said that when she was younger her father was often not there, he was “at work or kicked out” and her mother was also “hardly there, she’d drink with a friend until the early hours. I had to look after myself and look after the other kids from about [the age of] 11 or 12.”
75.[Ms X] told me that she left home when she was 18 years old. She asserted that [the father] came to live with her and her boyfriend in 2016 “after the last time Mum kicked him out” and then [the father] “changed;” he cut down on his alcohol consumption and stopped smoking cigarettes. By [Ms X’s] account [the mother] “encouraged” her to smoke cigarettes when she was 14 years old, and [the mother] would purposefully get [Ms X] to roll cigarettes and smoke “to make Dad angry.”
76.[Ms X] was aware of her father’s diagnosis of “Bipolar” but she was more concerned about her mother’s mental health, because of [the mother’s] quickly changing mood, and because of her behaviour, such as saying things which she then did not recall the next day. [Ms X] maintained “it’s not just the drink,” and that her mother said hurtful and accusatory things even when sober, which had a huge emotional impact on the children, such as blaming [Ms X’s] existence for [the mother] not having finished high school. [Ms X] asserted that [Child F] has “night terrors, wakes in the night, screaming and yelling” and she pointed to [Child E’s] distress on the interview day as a further example of the impact of [the mother’s] emotional abuse of the children.
77.[Ms X] maintained that it was her mother, not her father, who physically abused her, providing as an example that [the mother] “broke a bucket over my head” which resulted in bruises on [Ms X’s] wrists and elbows as she tried to block the hit. [Ms X] reported that [the mother] had slapped her in the face causing a black eye, and that when her father had told [the mother] to stop, [the mother] then hit [the father] while he had the infant [Child I] in his arms. [Ms X] showed me a photo stored on her phone of her black eye.
78.[Ms X] said that because of the family violence she has witnessed, she has avoided conflictual relationships herself. She described her partner [Mr Q] as “protective, nice, quiet” and asserted that he had never abused her.
79.[Ms X] gave an emotional account of the incident which resulted in [Child C] coming to live with her and [the father]. She said she received a call from [Child D] in tears saying “Mum’s attacking us;” then [the father] rang the police while [Ms X] drove round to the house, where she found [Child H] wandering around in only a singlet and nappy when the weather was cold, and [Child C] crying in his room. Her account was consistent with what [Child C] and [Child D] told me of the incident.
80.[Ms X] reported that on 5 March 2017 she took steps to remove her siblings from her mother’s home for their protection, with the assistance of her maternal aunt [Ms V] ([the mother’s] sister). By [Ms X’s] account [Ms V] “thinks Mum needs mental help.” She said [Child F] had called her in distress telling her that a man called [Mr R] was in the house and that the children did not feel safe. She said that when they all previously lived in [Town O], he was “one of Mum’s boyfriends” and would come over and have sex with [the mother] in front or within earshot of her and her siblings.
81.[Ms X] thought that [the mother] had influenced [Child G] to want to stay with her by treating her as an only child, and telling her that [the father] was “not her real Dad.” She said that when [Child G] spends weekend time with [the father] she is “bossy to the others and will tear up if Dad says no to a coke drink.” [Ms X] worried that when with her mother [Child G] was being “isolated, kept in the house,” telling me that when [Child E] and [Child F], and [Child G], [Child H] and [Child I] were all still with [the mother] she mostly kept them inside with the blinds drawn. She believed that [Child G] should be with her siblings and the best thing for [Child G] and for all her siblings was to live with [the father].
82.[Ms X] emphasised that [the father] had “changed a lot”, had a job, and was “on track,” whereas [the mother] was “still stuck in the past, still drinks and uses medication.” She told me that her mother takes morphine tablets (…) as “She and Poppy have a doctor in [Town N] that gives them scripts.” [Ms X] thought that her maternal grandfather was “okay” but she tried to avoid him because he did not want to know when she tried to talk to him about her past experiences.
[Child D] aged 14 years and 11 months
83.[Child D] presented as healthy and appropriately dressed and her maturity was consistent with her chronological age. She was quietly spoken. She said that although she was about to turn 15 years of age, she was in year 8 at school because she was kept down in an earlier grade. She told me that Art is her favourite subject. She had braces which she reported had been on for 2 years and would be coming off soon.
84.By [Child D’s] account, when her parents fought, her mother would “scream out to the kids, then Dad would have her, she’d only yell when Dad had her, she’d start the fights. As I got older I realised that she was picking on Dad, calling him names, putting him down and stuff, calling him a retard, psychopath. Over the years he started ignoring her, walking away, not fighting back.” [Child D] asserted that “every day they both drank. It was not too good.”
85.However now that [Child D] is living with her father and sister [Ms X], she reported that her life was “much better. I can go out with my friends and have time alone and not have to look after the other kids like when I lived with Mum. Mum’s not yelling. No one fights.”
86.[Child D] said that she had been living with [the father] and [Ms X] since September 2016, when she had to call her maternal aunt to collect her because [the mother] told her to “get out of my house.” [Child D] reported that “Mum was abusive, would call me names, she threw frozen water bottles at me, I just walked off to my room.” She told me that [the mother] was “always in the bathroom so no one would see her smoking weed.” She said that [the mother] had a meltdown at [a restaurant]” on [Child D’s] seventh or eighth birthday then tried to overdose on Panadol and ended up in hospital for 24 hours after [the father] rang for an ambulance. She thought that her mother should see a counsellor.
87.By contrast [Child D] said that her father had “changed” and was “a better person.” The adults that [Child D] said she could talk to and rely upon were her Aunt [Ms V], her sister [Ms X] and her father. She told me that her mother and her Aunt [Ms V] had fights too and did not get along. She thought that [Ms X] and [Ms V] had done the right thing in removing her younger siblings from her mother’s home in March 2017 and that her father had done the right thing in keeping the children in his care. She said that when her siblings [Child E] and [Child F] had last spent some weekend time with [the mother] in the Easter holidays [the mother] was not looking after them properly so [Child D] went over to cook and feed them and bath the little girls and to help clean up. She said that the house was a mess and all 3 younger girls were sleeping in [the mother’s] bed.
88.[Child D] thought that [Child G] should live with the rest of the siblings and with their father where she would be better looked after. She described [Ms T] as “nice; She cares about the kids like her own kids.” [Child D] thought that [Ms T’s] daughters were “alright.”
[Child C] aged 16 years and 9 months
89.[Child C] impressed as a mature and articulate young man. He reported attending year 11 at [M high school] where he is achieving As and Bs in his OP subjects of Physics, Chemistry, Biology, Maths B and Maths C and English.
90.[Child C] reported that when the family all lived in [Town O] both parents were “really bad alcoholics.” He said that his father was at work and his mother was usually absent at friends’ places and “[Ms X] raised us kids.” By his account [the father] and [the mother] were both were “bad parents 5 years ago.” However [Child C] asserted that “Dad’s picked up his act, he rarely drinks now, maybe a can or two, 3 times a week. Mum hasn’t changed, she still gets high and drinks.” [Child C] reported that only a few months ago [the mother] was still behaving badly: “out at night, inviting boyfriends over, and we could hear them [having sex].”
91.[Child C] told me that last year after his parents separated and before he was “kicked out” by his mother and went to live with his father, he would be up at 1am or 2am finishing school assignments because of all the chores [the mother] expected of him. He asserted that he and his siblings “used to do everything for Mum,” recalling that even his youngest sister [Child I] used to go to the fridge and fetch milk for [the mother’s] Kahlua and milk drinks.
92.[Child C] detailed his account of what happened the night he was “kicked out” at the age of 15 and told by his mother not to come back. He reported that in front of all the children [the mother], who was drunk, was “talking offensively about Dad not being there, saying he doesn’t love us. [Child F] said ‘please be quiet’ so she threw a strainer at [Child F], then I stood up and said ‘leave [Child F] alone’ and she threw a can at my head.” [Child C] asserted that he had 2 scars from his mother’s attack but he did not hit her as he was “against violence”. He recalled holding his mother’s hands and saying ‘calm down,’ and that she grabbed [Child C] by the hair and he pushed her away. [Child C] asserted that when the police were called out to the incident he did not tell them what [the mother] had done to him because [the mother] had convinced them all that “welfare was bad.”
93.[Child C] told me that he saw his parents’ relationship as “something to avoid” but he did not “hate” his childhood as “it’s taught me important life skills.” He asserted that apart from smacks when he was very little, [the father] never hit him, but [the mother] “strangled me, ripped my hair. Mum has yelled ‘I wish you were all dead or go to welfare.’ I can’t forgive her for her actions in the past.” He told me that he was also fearful of his mother, which was why he did not want to interact with her on the day of the interviews.
94.[Child C] thought that [Child G] “should be on a recovery order and back to Dad.” He worried that [Child G] was having to “go through it alone” whereas the rest of the siblings had one another for support. He said that when [Child G] spent weekends with the rest of the family she seemed “quiet and withdrawn at the start” but by the end of the weekend she wanted to stay with them and not go back to [the mother]. [Child C] suspected that [the mother] would be saying negative things to [Child G], recalling that when he was about 12 years old he had believed that [the father] did not love him, because “Mum kept saying it.”
95.[Child C] told me that [the mother] had “disowned” him and told him that he was not her son, then at other times had claimed to love him. In order to cope with her changeability and mood swings, [Child C] said “I’ve chosen not to have anything to do with her.” He said that throughout year 9 and part of year 10 he was “withdrawn, quiet, not part of a social circle” and had had feelings of “worthlessness,” because his mother would tell him this over and over, calling him “faggot, dickhead, lazy” despite all the chores he did on a daily basis. [Child C] reported that there were times that he felt suicidal when living with his mother, and he maintained: “I’m here [at the interviews] because I don’t want my siblings to feel like that.”
96.[Child C] described his father’s partner [Ms T] as “really nice. She’s not trying to be a mother figure, more a friend,” and that he had talked to her a few times “for guidance.” He said that [Ms T] treats his younger sisters like she treats her own children.
97.[Child C] expressed concern that his mother had a mental illness that she was not acknowledging and was “stuck in the same loop,” whereas “Dad’s picked up his act” and had recognised his own mental health issues. He asserted that [the father] “used to have anger outbursts when drunk, but was never hard on us kids.” By contrast, [Child C] reported that when he was about 11 or 12 years old his older brother [Mr Y] “got Mum off me when she tried to strangle me.”
(Errors and omissions as per original)

The expert’s evaluation

At paragraph 109 of her report the expert records:
109.It is not disputed between the parents that their relationship has been volatile with numerous separations and that throughout their lives these 5 children and their older siblings have been exposed to significant family violence and high conflict. By all accounts excessive alcohol has been a significant factor contributing to the violence and conflict between the parents. [The father] has readily admitted that he was an alcoholic, and all the school aged and adult children have consistently reported heavy drinking and illicit drug use by both parents over the years. [The father’s] willingness to acknowledge his substance abuse and his stated feelings of remorse and recognition of the impact of his actions on the children are positive steps. All of the older children including [Child E] and [Child F] have reported significant positive changes in their father.
At paragraph 110 of her report the expert records:
… [The mother] has not acknowledged her own substance abuse, and her position is in contrast to the accounts of all the children who were able to participate in interviews…
…and if the Court accepts the multiple accounts of [the father] and all the children that [the mother] was a heavy drinker in the past, then it appears that she cannot or will not acknowledge this.
At paragraph 111 the expert’s report records this:
Despite [the mother’s] assertions that she had no mental health issues, I had concerns about her ongoing mental health state. From the accounts of [the father], and supported by the police subpoena material, each parent at different times has made a suicide attempt, and each parent has had one inpatient admission to a mental health ward. When I interviewed 14 year old [Child D], she reported aggressive and erratic behaviour by her mother prior to [the mother’s] suicide attempt in September 2009, and [Child D] was able to recall the timing of the incident because it occurred on her birthday and it had clearly made a significant impact on her. The subpoena material states that a police welfare check of the children in October 2009 recorded “no concerns” in their father’s care, and noted that [the father] had removed the children to his extended family in [Town P] because of [the mother’s] suicide attempt and the children’s fear of her.
At paragraph 113 of her report the expert records the following opinions:
After observing the children’s reactions in the company of their mother and then hearing the accounts of [Child F], [Child E], [Child D], [Child C] and [Ms X] in each of their individual interviews, I had serious concerns about risk to all the children of emotional and physical harm when in [the mother’s] care. Although [Child F] did not give any direct example of physical abuse from [the mother], he spoke of not feeling safe and was clearly uncomfortable in the vicinity of his mother and visibly distressed in interview when speaking about her. He sought comfort from his sister [Ms X], lending support to [the father’s] and [Child C’s] claims that [Ms X] rather than [the mother] had been the significant caregiver of her younger siblings and their source of nurturing. In my opinion [Child F’s] assertion that it was [the mother] who started arguments between the parents may have been influenced by what he had heard from his father and older siblings, as he did acknowledge that he was “probably too little to remember. However [Child F’s] assertion that [the father] was “not as bad as he was ages ago” seemed to reflect his lived experience, with his more recent positive experience of his father in the forefront of his mind. I did not gain the impression that [Child F] had been “brainwashed” by his father but rather that he recognised his father’s past failings and could see that he had changed and that whatever his earlier feelings about [the father], he now felt safer with his father than he did with his mother.
At paragraph 114, in relation to Child E, the expert records the opinion that “[Child E’s] distress and fragile emotional state were consistent with having experienced the level of abuse she described to me.” The expert further records:
… It was heart wrenching watching [Child E’s] distress as she described her mother attacking her with a hairbrush, and her bewilderment at her mother’s reaction of whipping her legs with a wet tea towel after her frightening experience of being inside the car when it crashed, when what [Child E] needed from a nurturing parent was comfort. If the Court accepts [Child E’s] account, then [the mother] has behaved erratically, indiscriminately and punitively, letting out her frustrations and anger on [Child E], blaming her for things that as the parent [the mother] should assume responsibility for.
At paragraph 115 of her report the expert records that each of the children Child D, Child C and Ms X all reported significant alcohol abuse by both parents, and frequent verbal arguments, and whilst these children were able to acknowledge their father’s past violence they “continued the theme of [the father] having “changed” after the parents separated on a final basis in May 2016, while [the mother] had not.”
At paragraph 115 the expert records:
… [Child C] and [Child D] both described emotional abuse in the form of denigration, name calling and finally of rejection by their mother a few months later, with similar scenarios: of [Child D] reporting that [the mother] told her to “get out of my house” and [Child C] reporting that he was “kicked out”, and [Ms X] supporting their accounts. When [Ms X] and [Child D] disclosed several instances of physical abuse from their mother they provided detail and their nonverbal presentation matched their verbal accounts, with [Ms X] also providing photographic evidence of a black eye.
At paragraph 116 of her report the expert records that:
The accounts of [Child F], [Child E], [Child D], [Child C] and [Ms X] when considered together are alarming, and raise questions about risk of harm to the younger 3 girls in [the mother’s] care…
At paragraph 117 of her report the expert expresses the opinion that the mother did not acknowledge any personal responsibility for the conflict between the parents or the impact of that conflict upon the children.
At paragraph 118 of her report the expert records her assessment that the mother’s proposal that [Child E] and [Child F] live with her is unrealistic and a demonstration of the mother’s lack of understanding and insight into her children’s feelings and emotional state.
At paragraph 119 of the report the expert records the father’s acknowledgements as to the limited role he played in the care of the children when they were younger; his excessive alcohol consumption historically and his historical “poor parenting”. The expert records in relation to the father:
… His remorse seemed genuine, and although he did minimise some of the family violence and emotional abuse he perpetrated towards [the mother], he did take some responsibility for his actions and for his substance abuse.
In relation to the father’s history of mental ill health, at paragraph 120 of her report the expert records the father’s ready acknowledgment of his diagnosis of “Bipolar Affective Disorder” and his admission to a mental health unit in 2010 following episodes of psychosis and paranoia. Based on the father’s account the expert assessed that it seems likely that the father’s psychosis and paranoia was substance induced. In that context the expert opines:
… If [the father] has now significantly cut down on his alcohol consumption and has stopped using cannabis as he claims, his mental health is far less likely to be exacerbated by abuse of alcohol and illicit drugs…
After setting out the history of family violence perpetrated by the father and police records of involvement in relation to that, the expert expresses these opinions at paragraphs 128, 129 and 130 of her report:
128.Before the parents separated on a final basis, it is unlikely that any of the children will have experienced either parent as a stable, consistently and emotionally available caregiver, because of the family violence and conflict and parental substance abuse which will have monopolised the parents’ focus and detracted from meeting the children’s needs. In my opinion both [the mother] and [the father] have both been neglectful of their children’s care needs over the years as a result of the parents’ substance abuse, and both have caused the children emotional harm by exposing them to family violence. Both parents have also verbally abused the children over the years, particularly when heavily intoxicated. Despite the current claims of the older children, it is also possible that [the father] perpetrated some physical abuse of the children in the past when heavily intoxicated, given his own example of his threat to his eldest son [Mr Y] at the age of 11 years, an incident which [the mother] also described in her interview.
129.However all of the older children including [Child E] and [Child F] have reported significant positive changes in their father, and if the Court accepts the children’s accounts, then in recent times [the father] has significantly reduced his alcohol intake, his aggression has diminished, he is no longer acting violently, and his parenting of the children has improved. The children have all spoken about his current partner [Ms T] in positive terms and she appears to be a protective factor.
130.Conversely, all the school aged children have reported ongoing emotional abuse from their mother, which one by one has led to their estrangements from her, and in my opinion these estrangements have a plausible basis and are not as a result of [the father] deliberately alienating each of the children from their mother. Both [Child E] and [Child F] have clearly articulated their wish to live with their father. As [Child E] is 12 years old her wishes should be given considerable weight, and bearing in mind that [Child F] is not far off turning 11 years old, his wishes should also be taken into account. Under the current circumstances it would be difficult, and in my opinion counterproductive, for [Child E] and [Child F] to be ordered to spend time with their mother.
At paragraph 132 of her report the expert records her opinion that the three younger children share close bonds with their older siblings noting that many of them have played integral roles in their day to day care. The expert notes that the eldest daughter Ms X “is aligned with” the father and the expert records the opinion that Ms X is a strong support and protective factor, particularly while the father and the children share a home with her.
The expert records the following recommendations at paragraph 134 of her report:
From this assessment I recommend that
·[Child E], [Child F], [Child G], [Child H] and [Child I] live with [the father]
·[Child G], [Child H] and [Child I] spend time with their mother alternate weekends from 2pm Friday until 9:30am Monday, until [Child G] commences formal schooling, and then from after school Friday until before school Monday
·Changeovers occur in a neutral setting such at the [Town N] Police Station
·[Child E] and [Child F] spend time with their mother according to their wishes
·Both parents attend a Parenting Orders Program
·[Child E] and [Child F] (and [Child D] and [Child C] if they so choose) attend a SCASP program or similar, either individually or in a group setting
·[The father] attend a program for men with a focus on family violence prevention
·[The mother] attend a family violence program for women
·Both parents attend ATODS for initial assessment of their substance use and assistance in relapse prevention, and that they follow up with any recommendations for further counselling or therapy
·[The father] re-engage with his psychiatrist or other mental health professional
This expert was called as the Court’s witness at trial. Cross-examined by counsel for the father the expert rejected any proposition to the effect that the children were “coached” in providing their statements.[2] The expert referred to difficulties in the parents negotiating issues in relation to the parents having shared parental responsibility.[3] The expert also reiterated her view that the siblings should remain together if at all possible.[4]
[2] Transcript, 7 November 2017, p 16 ln 15 – 18.
[3] Transcript, 7 November 2017, pp 17 – 18.
[4] Transcript, 7 November 2017, p 18 ln 18 – 25.
In the course of her cross-examination by the mother, the expert rejected the proposition that she did not provide the mother with sufficient interview time or questions in interview.[5]
[5] Transcript, 7 November 2017, pp 20 – 21.
It can be seen from a review of the transcript that despite the mother’s

cross-examination, the expert did not resile from any of the opinions expressed in her report. It can also be seen that the mother was afforded the opportunity to put whatever questions she wished to put to the expert.

The trial judge’s determination

Whilst further reference will be made to the reasons of the trial judge in discussing the mother’s challenges on appeal, it can be seen that the essence of the trial judge’s decision is that despite the father’s history of domestic violence (as set out by the trial judge commencing at [25] of the reasons) the trial judge placed significant emphasis upon what the children had relayed to the expert as recorded in the family report (commencing at [41] and following).
At [57] of the reasons the trial judge records that the father’s domestic violence committed against the mother “was horrific” and noted the father’s concession to the same effect in evidence before her. The trial judge then noted that:
… However, the father seems to have identified this as a problem and done something about it. The father’s evidence is the domestic violence was fuelled by alcohol and drugs and he has not consumed any illegal drugs for five years. The father has also restricted his alcohol intake. The elder children report that he has changed and he has changed for the better.
The trial judge records a finding that the fact that the older children had moved into the father’s care of their own volition, prior to trial, provides corroboration of their versions given to the family report writer about the mother. On that basis the trial judge recorded a finding as to concern about the physical treatment of the children when they are in the mother’s care ([60] and [61]).
The trial judge recorded a finding of risk to the children in the mother’s home relating to the allegations the “older children” have advanced about the physical abuse they experienced at the hands of the mother ([64]). The trial judge also records that the older children have given descriptions of the mother consuming alcohol to excess and consuming marijuana. The trial judge records a clear finding of preferring the descriptions of the children to the family report writer where there is divergence between those descriptions, and the mother’s account in evidence ([65]).
The trial judge records at [100] her acceptance of the expert’s observations in relation to the reasons for holding serious concerns about risk to all of the children of emotional and physical harm when in the mother’s care. At [107] the trial judge records:
The accounts of [Child F], [Child E], [Child D], [Child C] and [Ms X], when considered together, in my view are alarming and they do raise questions of risk of harm to the three younger children if they continue to stay in the mother’s care.
After examination of relevant s 60CC considerations the trial judge records this in relation to the assignment of parental responsibility and her Honour’s overall conclusion at [114] and [115]:
114.In this case, the findings I have made about domestic violence and the risk of abuse of these children in the mother’s care rebuts the presumption of equal shared parental responsibility. I do not consider that equal shared parental responsibility would be in the children’s best interests either. The parents are unable to communicate effectively and are unable to agree on any aspect of parenting.
115.I am satisfied the father’s proposal is in the children’s best interests for the following reasons:
a)The two older children, [Child E] and [Child F], have expressed clear wishes to remain in their father’s care.
b)The father’s proposal keeps all the children living in the care of one parent and not separated from each other.
c)The father’s proposal presents the least risk of emotional harm to the children given the findings I’ve made in relation to the mother’s parenting capacity and the risk of harm to the children arising from that.
d)The father’s proposal will only require a significant change for [Child G]. The other children are already living with the father.
In summary, the trial judge made findings that the move of the older children to live with the father reflected their true views. The trial judge accepted the evidence of the expert that if possible the siblings ought remain together. Fundamentally though, the trial judge accepted the expert’s opinion, relying as it did on the children’s statements, that the children living primarily with the mother posed a risk to them to their physical and emotional welfare.

The mother’s application for further evidence

By Application in an Appeal filed on 23 March 2018 the mother seeks that this Court receive further evidence on appeal pursuant to the power conferred by s 93A(2) of the Act. Conscious that the mother represents herself, and that it seemed to be assumed by her in oral argument that this Court would receive further evidence on appeal as a matter of course, it is necessary to provide in these reasons the explanation for why that is not so. That is particularly because, as will be further discussed, I have resolved to dismiss the mother’s application to adduce further evidence.
Section 93A(2) of the Act provides for the discretion for the Court to receive further evidence in an appeal upon questions of fact.
The following principles emerge from the judgment of the plurality of the High Court (McHugh, Gummow and Callinan JJ) in CDJ v VAJ (1998) 197 CLR 172 (“CDJ”) as to the power conferred by s 93A(2) of the Act for this Court to receive further evidence on appeal upon questions of fact, and as to the exercise of the discretion involved in the exercise of that power:
a)The purpose of the power conferred by s 93A(2) to admit further evidence is to ensure that the proceedings do not miscarry. Factors such as the need for finality in litigation, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion ([104]);
b)Section 93A(2) is remedial. Its principal purpose is to give a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous ([109]);
c)Section 93A(2) should not be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. The power to admit further evidence exists to serve the demands of justice. The discretion is not so wide that the Full Court can admit further evidence merely because it is useful. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial ([111] and [113]);
d)Further evidence which is not in dispute, and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard will readily be admitted, particularly if the evidence relates to events occurring after trial. In this context, the likely effect of the further evidence on the Full Court’s view of the evidence before the trial judge is the important consideration, rather than what effect the evidence would have had on the trial judge’s decision ([114]);
e)Failure to have adduced the evidence before the trial judge will be a variable factor in the exercise of discretion, the weight given to it being dependent on other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily against admission ([116]).

With respect to parenting orders and parenting cases, the judgment of the plurality of the High Court identifies some further particular principles or guidelines with respect to s 93A(2) as follows:
a)An order admitting or rejecting further evidence is not a parenting order (s 64B of the Act) and therefore does not directly invoke the paramountcy principle (s 60CA of the Act). However, because the Full Court is bound to have regard to the best interests of the child as the paramount consideration when determining the appeal, in exercising its discretion to hear further evidence in respect of an appeal concerning a parenting order, the Full Court must have regard to the effect that the further evidence may have in determining whether the best interests of the child require the upholding, varying or setting aside of the parenting order ([87]);
b)In determining whether or not to admit further evidence, the effect that it may have in determining what are the best interests of the child is a factor of great weight. It will be one of the most important discretionary considerations to which the Full Court must have regard ([88]);
c)In most cases concerned with parenting orders, the discretion should only be exercised in favour of receipt of the further evidence if that evidence is not only relevant to the welfare of the children, but is also admissible according to ordinary principles or by statute, and if there is no reason apparent to the Full Court for believing that the evidence is not credible ([115]);
d)The discretion needs to be exercised with much care in parenting cases. The advantages of a trial judge of seeing and hearing witnesses are likely to be real ones in a parenting case. The need for caution is particularly great when an order for a change in residence has been made. Applications for a variation of an order pursuant to s 65D, rather than resort to s 93A(2), will generally be the preferred mode of procedure even where there has been a change of circumstances between the making of the order and the hearing of any appeal ([117] – [119]);
e)The power conferred by s 93A(2) is not a solvent for correcting orders that the Full Court regards as unsatisfactory but which contain no appealable error. New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge, or that there is a real chance that the order under appeal does not serve the best interests of the child ([148]);
f)In some exceptional cases, those concerned with allegations of physical or psychological abuse of a child are an example – it might arguably be a proper exercise of discretion to admit further evidence and order a new hearing even though the Full Court is not reasonably satisfied that the evidence would have produced, or a new hearing would now produce, a different result. But if such cases would entitle the Full Court to order a new hearing, they should be regarded as truly exceptional. Ordinarily, even those cases are best left to be dealt with by an application, made pursuant to s 65D[6] to vary the order the subject of appeal ([150]).
[6] The reference to “s 65E” at [150] of the judgment is an innocuous error. In context, the intended reference is to s 65D.
The further evidence the mother seeks to adduce on appeal falls into several main categories.
First, there are a series of press reports concerning a man who was sentenced in the Supreme Court of Queensland for, inter alia, the manslaughter of the mother of his children; and a document entitled “Abusive Relationship Checklist” apparently printed from the internet from an American based site, and partially completed by the mother. These documents are attached to the mother’s Application in a Case filed on 31 January 2018 seeking, inter alia, a stay of the subject orders. None of these subject documents can be characterised as admissible evidence or as “evidence upon questions of fact” within the meaning of, or in the form prescribed by, s 93A(2) of the Act and on that basis alone ought not be admitted. Further, the trial judge was in any event, as her Honour’s reasons for judgment reflect, keenly aware of the father’s history of domestic violence and his criminal history.
Second, is the mother’s affidavit filed on 31 January 2018 containing allegations that the father has breached various ancillary orders, aside from the central orders referred to, made on 10 November 2017 in various respects. These allegations are denied by the father and thus the evidence is controversial. As was explained to the mother on the hearing of the appeal, this Court in its appellate jurisdiction is ill-equipped to resolve disputed issues of fact and, moreover, questions of enforcement of the orders made; or the bringing of proceedings for alleged contravention of those orders (in which disputed issues of fact are able to be resolved); is an entirely distinct process from the function of an appeal court considering further evidence, upon questions of fact, to demonstrate error on the part of the trial judge in making the orders the subject of the appeal.
Also in this category is the affidavit evidence of the mother’s family friend, Ms K attached to the mother’s material, to the extent that this affidavit likewise contains an alleged breach or potential breach by the father of one of the orders made on 10 November 2017 (Order 13):
That niether [sic] parent will excessively use or consume (or permit any other person to excessively use or consume) alcohol in the presence of the children.
Notably the order, in terms, does not prohibit the father from consuming any alcohol at all. The order is, by its terms, confined to excessive consumption “in the presence of the children”. The affidavit of Ms K, aside from being disputed by the father, does not incontrovertibly establish a breach or breaches of the order even if the evidence were to be accepted.
Finally, the affidavit of Ms K and that of the mother’s father, Mr P, contains endorsements of the mother’s capacity as a parent; and seeks to, inter alia, challenge the legitimacy of the children’s statements to the expert Ms S as recorded in her report; and in Mr P’s case, he seeks to emphasise post-order statements by the three youngest children including statements of their affection for their mother. None of this evidence meets any of the criteria for the admission of further evidence upon questions of fact on appeal as prescribed in CDJ, or overcomes the constraints articulated in CDJ on the discretion to admit further evidence.
I am not persuaded that evidence of the children not having articulated their complaints to the mother’s father about the mother, which they did articulate to the independent expert, would have produced different orders by the trial judge, on the scenario that what the children told the expert was to be viewed as doubtful or inaccurate. Nor am I persuaded that the observations of the mother’s father or of her friend Ms K as to their perceptions of the mother’s parenting would have produced a different result. At least some of this evidence was available at the time of the trial and the partisan nature of the evidence limits its probative value, weighed against the independent expert evidence referred to.
For these reasons the mother’s application to adduce further evidence on appeal is dismissed.

Resolution of the mother’s challenges on appeal

Asserted errors of fact made by the trial judge

The mother contends, by reference to the following paragraphs of the reasons for judgment, that each of those paragraphs contain factual errors.
The mother contends that [42] contains an erroneous finding by the trial judge as to the mother consuming spirits and as to her drinking of alcohol to excess. However, in this paragraph all the trial judge does is to quote directly a passage from the family report recording Ms X’s statements to the family report writer as to her mother’s excessive alcohol consumption. This evidence is supported by the evidence provided to the family report writer, not only by the father, but also by each of the children, Child C, Child D, Child E and Child F in addition to the contents of subpoenaed Queensland Police Service records which were in evidence, which include records of the mother being affected by alcohol during a number of attendances by police at the mother’s home. The mother asserts that her drinking is confined to an occasional Kahlua and milk and that the children had been alienated and brainwashed by the father to make false statements against her. However, it cannot be concluded that [42] contains any factual error comprising only a recounting of the evidence given by Ms X to the family report writer.
At [33] the trial judge records an incident occurring on 15 March 2009. In that paragraph the trial judge can be seen to be simply paraphrasing the information contained in the subpoenaed Queensland Police Service records concerning the incident which occurred in March 2009.[7]
[7] See Exhibit 2, p 12.
The police account of what the mother told them at that time of the incident is in direct contradiction to the evidence the mother gave at trial (and now seeks to agitate in this appeal) namely that she has never “cheated” on the father and that she has never “kicked him out of her house”. It was open, given the evidence before her, for the trial judge to record the finding that she did at [33].
Paragraphs [19], [40] – [47], [53] – [56] and [78] – the mother’s complaint about these paragraphs is that her Honour erred in finding that the mother had been abusive/violent and consumed alcohol to excess. However, [19] of the reasons merely states the mother’s concession at the trial that the father did spend some time with the children at the former matrimonial home

post-separation before the children commenced to live with him. Paragraphs [40] to [56] record statements made by the older children to the family report writer, as set out above, in relation to the mother’s participation in violence towards the children and the father. Whilst the mother denied ever disciplining or abusing the children physically or emotionally, it was open to the trial judge to find as she did that the mother’s evidence in this regard was at odds with other evidence before the Court. At [78] of the reasons the trial judge records that any order to be made ought to be consistent with any family violence order in place and to ensure that no person is exposed to an unacceptable risk of family violence. No error of fact on the part of the trial judge is demonstrated by reference to any of these paragraphs relying as they did upon statements made by the children to the expert.
At [50] to [52] of the reasons the trial judge made findings in relation to both children Child D and Child C as to them being “kicked out” of the mother’s house in late-2016. The mother asserts that Child D left of her own volition to spend time with the father and was “coached” into remaining with the father and not returning home. The mother asserts that Child C was being violent towards one of the other children and therefore she had to call the police to remove Child C from the house. The mother’s evidence in these respects is not corroborated by either Child D or Child C who reported to the family report writer that the mother told them to get out of her house (see paragraph 115 of the family report). There would not appear to have been adduced into evidence any police report supporting the mother’s version of events in relation to Child C being removed from the house by police. In short, the findings by the trial judge referred to were open to her Honour given the evidence supplied by the family report sourced directly from these two children.
In relation to [59] to [61] of the reasons the mother contends that the trial judge erred in stating that Child E and Child F had left the mother’s home prior to 5 March 2017 when Ms X and the mother’s sister Ms V removed Child G, Child H and Child I from her care. However, these paragraphs refer to the “older children” moving out of the mother’s home prior to proceedings being commenced by the mother. Whilst the trial judge does not specify which children this statement refers to, it is clear enough that the trial judge is referring to the eldest four children who vacated the mother’s home during

late-2016. The younger five children (to whom the proceedings relate) were removed from the mother’s home by Ms X and the mother’s sister Ms V on 5 March 2017. Whilst the mother alleges that the five younger children were happy to live with the mother before being removed without her consent, the mother does not demonstrate any error of fact made by the trial judge in any findings recorded in these paragraphs.
In relation to [66] and [67] the mother contends that the trial judge erred in accepting evidence that the father was concerned for the children in the mother’s care. This is a reference to the evidence provided by the father and the eldest children as to the appalling state of the mother’s house at the time Ms X and the mother’s sister acted to remove the younger children from the mother’s care. It is unclear what actual error the mother alleges in this regard, other than the trial judge was wrong in accepting the father’s evidence that he was concerned. The trial judge having had the opportunity to see and hear the father give evidence and be cross-examined, it was open to the trial judge to make the conclusions that she did and the mother’s complaint devolves into one of complaining about the factual finding made by the trial judge, despite it being based on evidence founding such a finding.
At [73] of the reasons the trial judge recorded concerns about the parenting capacity of both parents but, in particular, the mother in contrasting the father’s acknowledgement that he was a poor parent, but the mother’s failure to acknowledge that there were any difficulties in her parenting of these children. The complaint descends into one of the trial judge making an adverse finding about the mother’s failure to acknowledge her difficulties. The mother was questioned in relation to her parenting of the children during the family report interview and cross-examination. The expert family report writer observed the following at paragraph 117 of the family report:
In my opinion [the mother] did not acknowledge any personal responsibility for the conflict between the parents or the impact on the children. She presented with a self-focus, such as bringing the focus back to her own experience of the marital relationship whenever I asked her about issues with the children, displaying limited insight into the children’s issues and feelings. She displayed limited compassion or emotion when discussing the older children, and she only became teary in interview when denying having hit any of the children. In my opinion [the mother] seemed more focused on how she would be perceived and her aim seemed to be to deflect any blame away from herself. I would have had more confidence in [the mother’s] capacity to prioritise her children’s needs if she had been able to acknowledge that she had played at least some role in the emotional distress her children had experienced over the years.
Again, during cross-examination the mother refused to acknowledge any difficulties with her own parenting of the children, other than having allowed the father to come back into the children’s lives so many times after periods of separation.[8] Given the opinion expressed by the expert it was well open to the trial judge to record the finding that she did at [73] and no error is demonstrated.
[8] Transcript, 7 November 2017, p 46 ln 3 – 41.
At [80] to [84] the trial judge records her finding that the older two children “seem to have a rather fractured relationship with their mother” and thereafter records findings as to a need to protect all of the children from being exposed to the risk of family violence, harm or abuse. The trial judge records at [81]:
… The mother’s household is, in my view, an environment that the older children describe as one where the mother was abusive towards them from time to time. I accept they will not be residing with her but it raises the question about the mother’s capacity to protect the three youngest girls from abuse or harm.
At [82] the trial judge records her acceptance that the father has historically committed “horrific” acts of domestic violence against the mother but further records his acknowledgement of this and that the father has taken steps to change. The trial judge records her acceptance that the father has “given up illegal drugs and limited his alcohol and accepted that his conduct is totally unacceptable.”
At [83] the trial judge records, as is the fact, that:
The mother makes no admissions of abusing or harming the children or of excessive alcohol use or drug misuse in circumstances where the older children allege this behaviour.
None of the mother’s asserted errors of fact concerning the paragraphs of the reasons referred to are supported by the evidence before the trial judge other than the mother’s own evidence. In other words, there was ample evidence before the trial judge to make the findings of fact recorded within these paragraphs. The mother’s complaint devolves into one not of the trial judge making errors of fact but in the feature that the trial judge’s findings of fact record her Honour’s acceptance of evidence from the father, and in particular the children, in preference to the evidence of the mother.
The mother contends that the trial judge erred in accepting and placing significant weight on the evidence provided by the family report writer and the father. The mother puts forward no reason for this assertion other than that the family report writer was “biased” and the trial judge was “duped” by the father “who is controlling, and a compulsive liar”.[9]
[9] See paragraphs 9 and 15 of the Notice of Appeal and paragraph 4 of the mother’s Summary of Argument.
In respect of the evidence provided by the children to the family report writer, the mother contends that the children were coached by the father to provide negative information/views about the mother. Ms S provides her opinion that the children were not being coached, manipulated or alienated by the father at paragraphs 113 and 130 of the family report. She was also questioned during cross-examination in relation to the information given to her by the two older children, Child E and Child F[10]:
[10] Transcript, 7 November 2017, p 16 ln 15 – 32.
COUNSEL FOR THE FATHER: …May I ask you this direct question: do you see any indications of the father or some other person having coached either [Child E] or [Child F] into making those comments and stories to you at interview?
[MS T]: I didn’t get the impression that either of those children was coached. When I was speaking to [Child F], he was very distressed and it’s quite possible, with children of all ages, that sometimes when something is distressing to them, they may make large of it and I got the impression that what he was saying to me was quite an intense feeling for him. So I did not get the impression that he was being coached but that he could be enlarging upon feelings or reinforcing feelings, if that makes sense.
COUNSEL FOR THE FATHER: Because they’re very personal to him?
[MS T]: I beg your pardon?
COUNSEL FOR THE FATHER: Because they are very personal to him?
[MS T]: They are feelings that he was feeling himself and he was quite distressed when I saw him on the day of interviews.
COUNSEL FOR THE FATHER: All right. Then in relation to [Child E], can you make any observations?
[MS T]: [Child E], I felt was quite – her reactions and her

non-verbal were very consistent with what she was saying to me and I did not get the impression that she was being coached.

The mother states at paragraph 16 of her Summary of Argument that even if the children’s recollections and views of the mother were true, that should not amount to a loss of parental responsibility. While the family report writer did not comment on the parties’ ability to co-parent in her family report, she gave evidence during her cross-examination that the parents would have serious difficulties in negotiating parenting matters jointly. Her Honour stated during closing submissions that she intended to make an order for sole parental responsibility in favour of the resident parent given the parties’ lack of respect for each other and their inability to communicate.[11]
[11] Transcript, 7 November 2017, p 107 ln 33 – 42.
The mother asserts that she was not “interviewed” by the family report writer. She alleges that she sat and spoke to Ms S and was not asked any questions until eventually being told that her “time is up”.[12] Ms S denied this assertion during cross-examination by the mother.[13] Given the content of her report sourced to interviewing the mother, it is not apparent that the mother was somehow denied any relevant opportunity. In any event, it was open to the trial judge to accept the expert’s denial.
[12] Paragraph 18 of the mother’s Summary of Argument.
[13] Transcript, 7 November 2017, p 20 ln 30 to p 21 ln 9.
Plainly it was open for the trial judge to accept the evidence of the children, via the family report writer, and indeed the expert opinion of the family report writer to the effect that the statements of the children were based in fact rather than being the product of any “coaching” or manipulation by the father.
There is no substance in the mother’s contentions concerning asserted errors of fact made by the trial judge.

Asserted denial of procedural fairness

It is convenient to deal with this subject matter of complaint at this point given its association by the mother with the contended factual errors referred to, which have been rejected.
The mother broadly contends that she was not allowed time, or sufficient time, to “speak” during the trial. From a review of the transcript of the trial proceedings, this is clearly not the case as the trial judge allowed the mother considerable time to ask any and all questions she wished to ask during

cross-examination. Moreover, the trial judge afforded the mother the opportunity to read a written statement she had prepared for the purposes of her closing submissions.[14] There is no substance in the mother’s complaint that she was allowed insufficient opportunity to present her case or to make oral submissions.
[14] Transcript, 7 November 2017 p 110 ln 20 to p 113 ln 30.
In association with this complaint the mother also asserts to the effect that the trial judge “predetermined” the matter as she requested that the mother bring the child Child G into Court on the date judgment was to be delivered. However, it can be seen that the trial judge also requested of the father that he bring the children Child H and Child I to Court.[15]
[15] Transcript, 7 November 2017, p 113 ln 32 – 39.
The mother asserts at paragraph 17 of her Notice of Appeal, and repeats in her Summary of Argument, that the trial judge refused to read the father’s Queensland Police Service criminal history which had been subpoenaed. However, in the course of argument of the appeal, taken to the paragraphs of the reasons demonstrating that the trial judge recounted relevant history of the father, the mother did not maintain this complaint. It can be seen that the trial judge confirmed on a number of occasions during the trial that she would read the Queensland Police Service notes containing the father’s criminal history which were tendered and marked as Exhibit 2 in the proceedings, and the trial judge makes specific reference to those notes in the reasons for judgment, particularly at [33].
Finally, as to procedural fairness, the mother contends at paragraph 14 of her Notice of Appeal that the trial judge led the father in giving evidence during the mother’s cross-examination of the father at trial. However, review of the transcript of the cross-examination demonstrates that whilst the trial judge did ask the father questions during the course of his evidence, it can be seen that those questions were designed to clarify questions and lengthy propositions put to the father by the mother during the course of her cross-examination of the father. That is, at no point can it be seen that the trial judge “led” the father by asking questions in a leading manner such as to suggest the answer to those questions.[16]
[16] Transcript, 7 November 2017, p 61 ln 33 to p 96 ln 21.
There is no substance in any of the complaints of the mother directed to any issue of procedural fairness afforded to her by the trial judge.

Asserted error of principle

Section 60CC of the Act sets out the considerations which the Court must consider in determining what is in a child’s best interests. Section 60CC(2) sets out the primary considerations and subparagraph (b) of that section provides as one such primary consideration:
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The mother sought to elevate focus upon the father’s undoubtedly appalling history of family violence as effectively disqualifying the father from being a candidate for a parenting order in his favour with respect to the three younger children, by reference to s 60CC(2)(b).
It is clear, as already discussed, that the trial judge was well aware of the father’s history concerning family violence perpetrated by the father against the mother historically throughout the relationship.
Undoubtedly, the father’s history was concerning to the trial judge as she expressed such concern and indeed if there was no prospect of the father having altered his pattern of behaviour, it may well be that s 60CC(2)(b) of the Act would have the operation for which the mother contends.
However, as already discussed, the trial judge, having had the advantage of seeing and hearing the father give evidence, was satisfied that he had altered his behaviour as was the observation of the expert family report writer. It was open to the trial judge to conclude, as her Honour did, that the decisions of the older children in 2016 to move to live with their father provided corroborative evidence as to the father’s changed pattern of behaviour as well as the concerns expressed by the children as to the mother’s behaviour, taken also with the statements of the children to the expert as earlier set out.
This was thus a case of the trial judge balancing competing considerations, by reference to s 60CC(2)(b), as regards to the risk posed by the father given his history of behaviour, on the one hand, and the risk posed by the mother given the statements of the children, on the other.
On reading the reasons for judgment as a whole, by reference to the relevant evidence accepted by the trial judge, including the evidence of the expert, it cannot be concluded that any error of principle was made by the trial judge in her application of s 60CC(2)(b). In the end, the trial judge accepted that the father had altered his behaviour and that there was no reason to conclude that he would revert to his previous conduct when affected by excessive alcohol consumption and/or illicit drugs. In contrast, absent any acknowledgement by the mother of any difficulties, the trial judge accepted the expert’s opinion, based as it was upon statements by the children, as to the risks of harm posed by the mother to the younger children.
No error of principle on the part of the trial judge is demonstrated.

Balance of challenges as to factual findings and weight given to evidence

The balance of the mother’s complaints on appeal devolve into challenges to the effect that the trial judge ought not to have accepted the evidence of the father; nor the evidence of the expert family report writer, relying as it did upon statements made by the children.
In other words, the mother contends that the trial judge ought to have given the mother’s evidence denying the statements of the children more weight than those statements; or the expert’s opinions in relation to them; and that the trial judge ought not to have accepted any evidence from the father in making any factual findings.
As regards the trial judge’s acceptance (to the extent that the trial judge so did) of evidence of the father concerning his changed pattern of behaviour, the authorities repeatedly emphasise the position of disadvantage of appellate judges as compared with a trial judge where findings of fact rely upon the assessment made of credibility of witnesses.[17]
[17] Abalos v Australian Postal Commission (1990) 171 CLR 167 per McHugh J at 178; Devries v AustralianNational Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron & McHugh JJ at 479; Dearman v Dearman (1908) 7 CLR 549 per Griffith CJ, Barton, Isaacs & Higgins JJ at 553; Fox v Percy (2003) 214 CLR 118 per Gleeson CJ, Gummow & Kirby JJ at [23].
It is not demonstrated by the mother on appeal that the trial judge failed to use, or palpably misused, her advantage of having seen the witnesses give evidence at the trial, or that the trial judge has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable” in reaching the findings of fact made.
It bears repeating that it was open to the trial judge to accept that the 2016 movements of the older children to live with the father provided corroborative evidence that he had changed his mode of behaviour and as evidence of concerns surrounding the mother’s own conduct. Likewise it was open for the trial judge to accept the evidence of the expert also having had the advantage of having seen and heard that witness give evidence when cross-examined.
There is no substance in the mother’s challenges to the effect that the trial judge was “duped” by the father into accepting his evidence or that otherwise the trial judge was in error in so doing.
Likewise, the trial judge was entitled to rely upon the evidence provided by the single expert in the case and nothing to which the mother directed attention on appeal results in the conclusion that the expert made any error of analysis in reaching the opinions she expressed in her report and in her oral evidence.
As to the trial judge’s findings of fact more generally, which the mother challenges on the basis essentially that the trial judge ought not to have accepted as fact the reported statements of the children to the expert family report writer, the mother identifies no proper basis for challenging the trial judge’s approach to this evidence, beyond a complaint to the effect that the trial judge ought to have preferred the mother’s own evidence.
In Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 the High Court (French CJ, Bell, Keane, Nettle & Gordon JJ) described the approach of the Court of Appeal to the finding of fact by a trial judge as follows at [43]:
… A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”.
(Footnotes omitted)
The mother has not demonstrated that the trial judge made any error of fact. The mother has not demonstrated the trial judge to have made findings of fact which are demonstrably wrong by reference to any “incontrovertible facts or uncontested testimony” or findings of fact which are “glaringly improbable” or “contrary to compelling inferences.”
There is therefore no substance in the mother’s complaint that the trial judge was in error in relying upon the expert’s opinion or in relying upon the statements or accounts the children made to the expert in the assessment process. Moreover, it is not demonstrated that the family report writer and the trial judge were wrong to place any reliance upon the father’s evidence.
The mother’s complaints devolve into complaints that the trial judge ought to have elevated the mother’s own evidence rejecting the statements of the children, and her evidence overall, in preference to acceptance of the statements made by the children to the family report writer and that expert’s assessment of those statements, together with the evidence of the father. However, no basis is demonstrated by the mother for this Court to legitimately reverse the trial judge’s conclusions. This Court would have to be well satisfied that the trial judge was plainly wrong, her decision being no proper exercise of her judicial discretion.[18] Nothing to which the mother directs attention on appeal demonstrates that the trial judge was plainly wrong in any of the respects articulated by the mother in this appeal.
[18] Gronow v Gronow (1979) 144 CLR 513 per Stephen J at 519.

Conclusion

There being no merit in any of the grounds of appeal or arguments on appeal, the appeal is to be dismissed.
In the event that the appeal was to be dismissed the father, who is in receipt of Legal Aid, does not seek costs in relation to the appeal.
Therefore, there ought be no order as to costs of the appeal.

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 26 April 2018.

Associate:

Date: 26 April 2018