D & F
[2002] FamCA 420
•21 June 2002
[2002] FamCA 420
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
AT BRISBANE
Appeal No. NA46 of 2001
File No. BR6845 of 1996
IN THE MATTER OF:
D
Appellant/Mother
- and -
P
Respondent/Father
REASONS FOR JUDGMENT
BEFORE: Ellis, Finn and Coleman JJ.
HEARD: 13th day of May 2002
JUDGMENT: 21st day of June 2002
APPEARANCES: Ms Hogan of counsel, instructed by Emerson Black,
Solicitors, appeared on behalf of the appellant mother.
Mr Smith of counsel, instructed by Kelly & Agerholm, Solicitors, appeared on behalf of the respondent father.
Mr Waterman of counsel, instructed by Legal Aid Queensland,
appeared on behalf of the child’s representative.
Catchwords: Child – Residence – Best interests of child – Whether trial Judge erred in changing long-standing status quo – Delay in delivering judgment.
Application to adduce further evidence – Applicable principles.
INTRODUCTION
This is an appeal by the mother against the orders made by Lindenmayer J. on
29 August 2001 in proceedings between her and the father for parenting orders in relation to their child, S, born in August 1992. The effect of those orders was to change the residence of S from the mother to the father. However, on 20 September 2001, the trial Judge made further orders staying the operation of paragraphs 1 to 3 and 5 to 7 of the order of 29 August 2001 pending the resolution of the mother’s appeal.
The actual order made by the trial Judge are:-
“1.The child S, born … August, 1992 is to live with the father, who shall have sole responsibility for the day to day care, welfare and development of the child subject, however, to the condition that unless otherwise agreed between the parties and approved by the Child’s Representative, or ordered by the Court, the father shall ensure and facilitate the child’s continued attendance at the Christian School, Brisbane, until at least the end of the 2001 school year.
2.Unless the operation of these orders is sooner stayed, or this Court in the meantime otherwise orders, the change-over of the residence of the child from the mother to the father is to take place on 20 September, 2001.
3.In order to facilitate the change-over of residence, the mother is to produce the child for that purpose at a time and place to be nominated in advance by the Child’s Representative, and the change-over shall be monitored by a suitable mental health professional nominated by the Child’s Representative.
4.Until the date of the change-over of the child’s residence, the mother, and all persons acting or purporting to act on her behalf, (other than the approved mental health professional referred to below) are hereby restrained from informing the child of or discussing with him the proposed change-over except pursuant to and in accordance with the written advice of a qualified mental health professional approved in advance by the Child’s Representative, and in such case a copy of that written advice shall be provided to the father and the Child’s Representative at least 48 hours before the mother, or any servant or agent of hers (other than the approved mental health professional) discusses those matters with the child.
5.Following the change-over of the child’s residence pursuant to paragraphs 1 to 3 of these orders, until further order the mother is to have contact with the child only by telephone, once per week (or more often if the parties agree) at a time (or times) agreed between the parties, and failing agreement at a time (or times) nominated by the Child’s Representative, and the father is to make the child available to receive a call from the mother at the agreed or nominated time (or times), and do all things necessary to facilitate open oral communication between the mother and child for a reasonable period of up to 30 minutes on each such occasion.
6.Pursuant to s.65L(1) of the Family Law Act 1975, compliance with paragraph 1 to 5 of these orders shall, as far as practicable, be supervised by a family and child counsellor or welfare officer nominated by the Manager, Mediation, of the Family Court of Australia, Brisbane Registry, in consultation with the Child’s Representative, and such family and child counsellor or welfare officer shall give to the father and mother such assistance as is reasonably requested by either of them in relation to compliance with, and the carrying out of those orders.
7.Pursuant to s.62G of the Family Law Act 1975, the family and child counsellor or welfare officer appointed pursuant to paragraph 6 of these orders shall give the Court, not later than four months from the date of the change-over of the child’s residence under these orders, and earlier if he or she considers it necessary or appropriate so to do, a report in relation to the compliance by the parties with paragraphs 1 to 5 of these orders and in relation to the following matters:-
(a)S’s adjustment to and coping with the change of residence to his father’s household;
(b)S’s reaction to and coping with separation from his mother and her family;
(c)whether any, and if so what further orders for contact between S and his mother should be made in the child’s best interests; and
(d)such other matters relevant to the welfare and best interests of S as he or she sees fit.
8.The question of the mother’s further contact with the child is stood over for further consideration by the Court on a date to be fixed by the Registrar at the direction of the Honourable Justice Lindenmayer upon receipt of the report referred to in paragraph 7 of these orders, or earlier at the request of either party or the Child’s Representative, upon 7 days notice in writing to the others.
9.The Child’s Representative is not discharged from the proceeding (sic) until further order of the Court.
10.Pursuant to s.65AD(2) of the Family Law Act 1975, the particulars of the obligations that paragraphs 1 to 5 of these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A, and those particulars are included in these orders.
11.That each party and the Child’s Representative have liberty to apply to The Honourable Justice Lindenmayer in relation to the foregoing orders upon two days notice in writing to the others.”
BACKGROUND
The background relevant to the appeal as it emerges from the reasons of the trial Judge is as follows:-
At the date of the hearing before the trial Judge, the mother was aged 42 and the father 39. In June 1990, they commenced a relationship which finally terminated in early 1995. S, the only child of the relationship, was aged 7 years 9 months at the date of the hearing before the trial Judge and aged almost 9 years at the date on which the judgment of the trial Judge was delivered. The parties commenced cohabitation on 15 September 1992 but separated a few weeks later when the father left the home which they then occupied. Thereafter, the father had contact with S at that home. In October 1993, the parties executed a Child Agreement which provided, inter alia, using the terms then current, that the mother would have the sole custody of S, the parties the joint guardianship of the child and that the father would have access to the child on each alternate Saturday for a period of two hours and at other times as agreed.
By early 1994, the father was exercising day contact with S. The mother allowed overnight contact to commence when S attained the age of two (August 1994) and acceded, for a period, to the father’s request for day contact during the week.
The mother re-partnered in late 1995 whilst the father commenced a relationship in April 2000.
Following a conversation with her daughter of a previous marriage, M, the mother terminated the father’s contact with S in about March 1996.
In September 1996, Warnick J. made a number of orders, including an order that the father be at liberty to write to S once a week and that the mother read those letters to him. On 5 August 1998, after dismissing the father’s application for interim supervised contact, Warnick J. ordered that the mother cause S to respond to each of the father’s letters and make him available for telephone contact by the father and his parents at specified times and on S’s birthday.
On 12 October 1998, orders were made by consent, suspending until further order, telephone contact between father and son.
On 16 September 1999, Lindenmayer J. made a number of orders by consent, including an order that the father have supervised contact with S at a Contact Centre each alternate Sunday at times agreed between the parties. However, it was common ground before us that the father only enjoyed that contact on four occasions during December 1999 and the first week of January 2000.
The hearing of the proceedings which had been instituted on 2 July 1996 proceeded before the trial Judge on 18 – 22 January 1999, 13 – 16 September 1999, 17 March 2000, 28 March 2000 and 22 – 25 May 2000. Judgment was delivered on 29 August 2001.
GROUNDS OF APPEAL
At the commencement of the hearing of the appeal, we were advised that the mother abandoned Grounds 1 and 4 contained in her Further Amended Notice of Appeal.
The grounds relied upon are thus as follows:-
“1. Abandoned.
2.His Honour failed to give appropriate consideration to the risk of long term psychological harm being done to the child S by him being removed from his mother’s care and/or placed in the care of his father to the exclusion of his mother.
3.His Honour erred in finding that the child S had not been sexually abused by his father.
4. Abandoned.
5.His Honour erred in finding that it is predictably more in S’s long term best interests that he be given the opportunity now to re-establish a real relationship with his father, rather than he go forward to maturity bearing the distorted image of him which his mother has fostered through the process of alienation.
6.His Honour erred in reaching the conclusion that it was in S’s best interests that there be a change of residence without first determining whether the father had the capacity to deal adequately and sensitively with the consequences for S of a change of residence or alternatively His (sic) Honour erred in concluding that the father had sufficient capacity to so deal with those consequences as to enable such consequences to be relatively short term.
7.In making the Orders delivered on 29 August 2001, His (sic) Honour erred in that, because of the 15 month delay between the end of the hearing and the making of the Orders and the delivery of Judgment:
(a) there was no evidentiary basis for the making of such orders:
(i)The expert evidence given before His (sic) Honour in the course of the hearing arose out of consultations with and observations of the child which all took place earlier than
19 May 2000;
(ii)The evidence of Professor [N] in relation to the potential consequences for the child of a change in residence from the parent with whom he had always resided related to a change for the child at or about the time of the finalisation of the trial and not fifteen months later;
(iii)There was no evidence as to the likely capacity of the child to cope with a change in residence given the passage of time between the finalisation of the evidence and the delivery of Judgment;
(iv)The evidence given by Dr [N] in terms of the options open to His (sic) Honour was predicated on, at most, an additional period of three months elapsing;
(b)There is no evidence as to the capacity of the father to deal with the potential consequences for the fifteen month older child of a change in residence.
8.His Honour erred in concluding that, because of the child’s relative immaturity and consequent inability to judge what may or may not be in his own long-term interests, the child’s expression of a wish to continue to reside with his mother was not a matter upon which it was correct to place any great weight because such conclusion was based upon the wishes expressed by a child who was fifteen months younger than he was at the time of the delivery of Judgment and the making of Orders and there was no evidence before His Honour as to the maturity and ability of the child to judge what matters may be in his own long-term interests as at the delivery of the Judgment.
9.His Honour erred in that he failed to take into account and assess the potential impact on the child of residing with the father who was found by His (sic) Honour to be a person with an underlying character having a “strong sexist flavour” and in circumstances where the Father’s past actions,
directed towards the mother, involved language described by the trial Judge as follow (sic):
“To describe the language used by the father in those calls as ‘vile’ is to grossly understate its offensiveness. They are full of the most degrading, insulting, sexually explicit, vitriol which any woman could possibly wish never to hear from any man, let alone from the one who is the father of her child. Yet, in the midst of this mountain of sexist garbage, the father occasionally still professed his reluctant love for the object of his abuse. The sorts of insults which he directed at the mother, in a tone and manner no doubt dripping with hatred and loathing, could not fail to wound her so deeply that the scars will never disappear. It is little wonder that the woman who was the victim of such a sustained campaign of vilification would want to prevent the perpetrator of that attack from having any influence over her child.”
10.In having positively determined that any change of residence would be experimental and that there was a significant risk that the father would be unable to cope adequately with the predictable behavioural problems which S would experience as a result of such a change and that if that proved the case “the experiment will have failed, and S would have to go back to his mother, possibly permanently damaged by the process”, His (sic) Honour erred in making the Orders made on 29 August 2001.
11.His Honour erred in concluding that the matter was “a very finely balanced case” in circumstances where an analysis of the evidence clearly revealed that in all aspects but a fostering of and/or acceptance of the need for the child to have a relationship with his father, the mother was clearly the parent best placed to meet the child’s needs.
12.(a) His Honour erred in finding, in respect of the witness M:
(i)that “her perception of the frequency of the calls and her attribution of them to the father, are based, at least in part, upon what her mother would have said to her over the years about these calls”;
(ii)that “her perception of this event [in the park opposite the father’s residence] is likely to have been influenced by subsequent discussion of it with her mother”
in circumstances where there was no evidence to support such findings and where one of the critical issues for His (sic) Honour’s consideration, given the expert evidence, was whether the father had continued the process of harassment as alleged by the mother.”
APPLICATION TO ADDUCE FURTHER EVIDENCE
On the hearing of the appeal, counsel for the mother, in addition to relying upon the grounds of appeal to which we have referred, sought leave to adduce further evidence pursuant to the provisions of s.93A(2) of the Family Law Act 1975 (the Act).
The further evidence consisted of two affidavits by Ms MO, a psychologist, sworn on 17 September 2001 and on 24 April 2002. Annexed to the first affidavit was a report dated 17 September 2001 and to the second a report dated 23 April 2002.
Ms MO had sworn an affidavit on 19 May 2000 on which the mother had relied at the hearing before the trial Judge. However, she was not required for cross-examination before him. Ms MO acknowledges in her report dated 23 April 2002 that she has not seen S for counselling since late 2000.
Counsel for the mother conceded that much of the further evidence sought to be adduced from Ms MO could have been adduced before the trial Judge and that it touched upon matters agitated before him and in relation to which he made findings. She also conceded that no application was made to the trial Judge for leave to reopen the mother’s case between 25 May 2000 and 29 August 2001 and that no such application was made on the latter date, notwithstanding the specific invitation made by the trial Judge on that date prior to him delivering judgment and making orders (see AB 2644).
In the further evidence, Ms MO does not refer to any new factual matter, revisit the evidence which she gave before the trial Judge or explore the impact as at April 2002, if any, of the absence of contact between S and the father since January 2000. We are of the view that it is not necessary to summarise the contents of the two reports but note that Ms MO, as she explained in her further evidence, wishes to respond to issues raised by the trial Judge in his reasons and explain why she is of the view that to place S with his father is, to use her words, “an extremely dangerous course of action, and one which will be harmful to S’s psychological development.” In expressing that view, she does not appear to have taken into account the evidence of Ms H who apparently was not cross-examined before the trial Judge or of Professor N (another expert witness at the hearing) other than to say:-
“I wish to propose an alternative hypothesis to the one Professor [N] has suggested to fit the evidence before the court. My hypothesis is that S has developed a fear-bond with [the father] on the basis of abusive experience with that man.”
In the course of his submissions opposing the reception of the further evidence, counsel for the father advised us that, if the further evidence was admitted, the father would wish to cross-examine Ms MO and probably call further evidence, including further evidence from Professor N. It would thus appear that the inevitable consequence of admitting the further evidence would be that the appeal would be allowed and the matter remitted for rehearing.
Counsel for the child’s representative informed us that he did not support the mother’s application.
The principles in relation to the admission of further evidence were considered
by the High Court of Australia in CDJ v VAJ (1998) 197 CLR 172 and by this Court in T and S (2001) FLC 93-086 and thus do not require repeating. However, the majority in CDJ v VAJ (supra) pointed out that the critical factor in the exercise of the discretion to admit further evidence is the subject matter of the proceedings with which the appeal is concerned and that the principal purpose of s.93A(2) is to give to the Full Court a discretionary power to admit further evidence upon questions of fact where the evidence, if accepted, would demonstrate that the order under appeal is erroneous. Their Honours went on to say at 217:-
“148.… 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. It is true that finality of litigation cannot play the part in the exercise of the
s 93A(2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A(2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.
149.In exercising the discretion to receive the further evidence in this case, the Full Court had to bear in mind the purpose to which that evidence was directed. That purpose was to provide the evidentiary ground for setting aside the order of the primary judge and ordering a new hearing of the husband’s application, it being common ground that, if the appeal should be allowed, the Full Court could not determine the matter. The Full Court also had to bear in mind that, in the context of a case such as this one, the relevant purpose of s 93A(2) is to facilitate the correction of an error where that error has probably occurred because the further evidence was not before the primary judge. Because that is so, the proper exercise of the discretion in the circumstances of this case required the Full Court to be affirmatively satisfied of two things. The first was that, given the findings of the trial judge, the further evidence if tendered before him was likely to have produced a different result. It was not enough that the Full Court thought that, upon the whole of the evidence including the further evidence, another judge might make a different order. The second was that the best interests of the children required rehearing of the husband’s application, notwithstanding that all members of the family would likely suffer stress, inconvenience and uncertainty as the result of a new hearing. In that context, the financial cost of a further hearing and its impact on the family could not be ignored.”
In the instant case, we are not affirmatively satisfied that the further evidence, if tendered before the trial Judge, was likely to have produced a different result nor are we satisfied that the best interests of S require a rehearing of the residence application. Moreover, we see the further evidence as argumentative and seeking to take issue with the decision of the trial Judge.
Accordingly, we dismiss the mother’s application for leave to adduce further evidence.
APPLICABLE PRINCIPLES
The appeal is one against discretionary orders. The principles which govern such an appeal are not in doubt and do not require repeating in the context of this case; see House v The King (1936) 55 CLR 499, Gronow v Gronow (1979) 144 CLR 513 and Norbis v Norbis (1986) 161 CLR 513.
SUBMISSIONS
We note at the outset that counsel for the child’s representative did not support the mother’s appeal and sought an order that the appeal be dismissed.
Ground 2 His Honour failed to give appropriate consideration to the risk of long term psychological harm being done to the child S by him being removed from his mother’s care and/or placed in the care of his father to the exclusion of his mother.
No oral submissions were made in support of this ground. However, the written Outline of Argument filed on behalf of the mother, in relation to this ground, records:-
“The Appellant makes no further submission in respect of this ground of appeal except to the extent that this ground is supported by what is said in respect of the other grounds of appeal.”
Ground 3 His Honour erred in finding that the child S had not been sexually abused by his father.
In the course of the hearing, counsel for the mother informed us that the finding referred to in this ground, namely that S had not been sexually abused by his father, was a finding that was open to the trial Judge. In the written Outline of Argument in relation to this ground, it is conceded, for the purpose of the appeal, that on the evidence before the trial Judge, the finding was “within the bounds of his discretion.”
In our view, the finding that S had not been sexually abused by the father was open to the trial Judge. We find no substance in this ground.
Ground 5 His Honour erred in finding that it is predictably more in S’s long term best interests that he be given the opportunity now to re-establish a real relationship with his father, rather than he go forward to maturity bearing the distorted image of him which his mother has fostered through the process of alienation.
The relevant finding of the trial Judge challenged by this ground is found in the following passage of the reasons:-
“515.In all of the circumstances of this case, and in the light of my above findings, I have come to the conclusion (somewhat reluctantly, and not without some misgivings) that it is predictably more in S’s long-term best interests that he be given the opportunity now to re-establish a real relationship with his father, rather than that he go forward to maturity bearing the distorted image of him which his mother has fostered through the process of alienation to which I have referred. That means, for reasons which I have given, as was really accepted by all parties, that there must be a change of residence for S, painful and all as that may be for him.”
In support of this ground, counsel for the mother initially referred us to the following findings of the trial Judge:-
“455.7 Alienation of S
…
35.Although the father is, I believe, well motivated and sincere in his ultimate application to have S live with him, and although Ms [Q’s] report upon his parenting capacity is essentially positive, he remains totally untried as a full-time parent, and I retain reservations about his capacity to cope with the sort of problems which S and he would undoubtedly experience in the event of my ordering a change of residence. I take note of Professor [N’s] evidence that such a move would be experimental, and that the risks of such a change are immediate and predictable with reasonable certainty, whereas the risks of continuation of S’s residence with his mother and the cessation of any contact with the father are more remote and less certainly predictable. Whilst I do not find that the father lacks the capacity to cope with S’s transition to his care, I do find that there is a significant risk that he will be unable to cope adequately with the predictable behavioural problems which S will experience as a result of such a change. If that should prove to be the case, the experiment will have failed, and S would have to go back to his mother, possibly permanently damaged by the process. That risk must be weighed against the risk to S’s long term development of the continuation and confirmation of his alienation from his father.”
Counsel informed us that the mother did not challenge the contents of the final sentence contained in paragraph 455.7 of his Honour’s reasons for judgment which we have emphasised.
We were then referred to the following observation of his Honour:-
“I do not intend that that change should necessarily be permanent. My primary intention is that S have the opportunity to re-establish a reality-based relationship with his father free of the mother’s malign influence.”
Counsel then referred us to what she described as his Honour’s findings and expressed reservations insofar as the father’s capacity to parent S is concerned, namely:-
“I have already made findings about the likely consequences for S of such a change and have expressed my reservations about the father’s capacity to cope with these consequences.”
…
“I do find that there is a significant risk that he [the father] will be unable to cope adequately with the predictable behavioural problems which S will experience as a result of such a change.”
Counsel then submitted that in the light of the findings of the trial Judge to which she referred, the trial Judge erred in concluding that it is predictably more in S’s long-term interests that there be a change of residence.
In the course of the exchange between counsel and the Bench, her attention was directed to the following observation of his Honour’s:-
“I do not intend that that change should necessarily be permanent. My primary intention is that S have the opportunity to re-establish a reality-based relationship with his father free of the mother’s malign influence. It may be that, once that has been achieved, and the relationship is perceived as being strong enough to withstand any renewed attempts by the mother at alienation, it would be adjudged to be in S’s best interests to return to reside with his mother, and have regular contact with his father. But that remains to be seen.”
We also drew counsel’s attention to paragraphs 6, 7 and 8 of his Honour’s order.
Counsel for the father in response referred us to the following findings of the trial Judge:-
“455.7 Alienation of S
(i)I accept Professor [N’s] evidence that S has been completely alienated from his father as a result of the mother’s belief that the father sexually abused him, and her reaction to that belief, in the context of her deep-seated hatred of the father arising from the long history of conflict between them. I find that a very significant factor, in the development of that hatred, was the father’s bombardment of the mother, throughout the latter months of 1995 and the early months of 1996, with verbal (and emotional) abuse through the telephone calls to which I have referred.
(ii)Given that I am satisfied that the father has not sexually abused S, nor mistreated him in any other significant way (except through the exposure of him to the worst features of the conflict between the parties, a matter with respect to which the mother shares some responsibility), I find that it is not in S’s long-term best interests to remain completely alienated from his father. Whatever his father’s shortcomings may be (and he is certainly not without them) it would be more beneficial to S’s ultimate development into a mature, adult male, to have some kind of a relationship with his father based upon his own experience of him, rather than to grow to maturity with a distorted, non-reality based concept of him.
(iii)Since S has lived all his life with his mother, who has been his primary care giver and to whom he is undoubtedly very strongly emotionally attached, it would be far preferable, from the point of view of his well-being, if he could develop a relationship with his father, through regular contact, whilst continuing to live with his mother. However, it is clear from Professor [N’s] evidence, which I accept, that the prospects of that occurring are very remote, given the mother’s entrenched belief that the father has sexually abused the child and her deep seated hatred and mistrust of the father. My own assessment of her is that she is unlikely to accept my determination that no sexual abuse occurred and that there is no unacceptable risk of it, or my rejection of her perception of the father as the personification of evil. I believe that she has far too great an emotional investment in that perception to give it up without a prolonged course of counselling, and that she would not willingly participate in such counselling. Even if the Court has power to order her to attend such counselling, as part of its final orders in these proceedings (a point upon which I express no opinion) it would be unlikely to be successful without her willing participation.
(iv)Although the father is, I believe, well motivated and sincere in his ultimate application to have S live with him, and although Ms [Q’s] report upon his parenting capacity is essentially positive, he remains totally untried as a full-time parent, and I retain reservations about his capacity to cope with the sort of problems which S and he would undoubtedly experience in the event of my ordering a change of residence. I take note of Professor [N’s] evidence that such a move would be experimental, and that the risks of such a change are immediate and predictable with reasonable certainty, whereas the risks of continuation of S’s residence with his mother and the cessation of any contact with the father are more remote and less certainly predictable. Whilst I do not find that the father lacks the capacity to cope with S’s transition to his care, I do find that there is a significant risk that he will be unable to cope adequately with the predictable behavioural problems which S will experience as a result of such a change. If that should prove to be the case, the experiment will have failed, and S would have to go back to his mother, possibly permanently damaged by the process. That risk must be weighed against the risk to S’s long term development of the continuation and confirmation of his alienation from his father.
(v)I find that the father’s parents would be strongly supportive of the father were S to reside with him, and that their support, and that of his other family members, would be of considerable assistance to him in coping with the problems likely to be experienced by him and by S in that context. I reject the mother’s evidence that the father’s mother displayed cruelty or callousness towards S at any time. I have no doubt that she would try to be a loving grandmother to S, and would be suitably protective of him, if she had the opportunity or the necessity so to do. I think it would certainly be to S’s advantage, in the event that he were to live with the father, if [the paternal grandmother] (and her husband) were to move in to live with their son for the first few months. Not only would that provide the father with some emotional and practical support in his new role as a full-time parent, but it would also, I think, provide S with some valuable emotional support, and some relief for both S and his father from the emotional pressure of living together in isolation, in circumstances where they would be trying to re-build a very damaged relationship.”
…
“480.Both parties have been guilty, to some extent, of exposing S to violence between themselves in the past. Of the two, I would apportion a greater share of the responsibility for that to the father, because I am satisfied that on a number of occasions he allowed himself to become very angry and aggressive in attitude towards the mother, in S’s presence, and to behave in ways which could only have been frightening for her and for S. However, the parties are now living apart, I believe the father has made a real effort to extricate himself from the destructive cycle into which their relationship had deteriorated, and I have no basis for a finding that he has any general propensity for violence which is likely to surface in other relationships or in his every-day life.”
Counsel for the father also referred us to the submissions made on behalf of the father at the hearing and his Honour’s observations in relation to them, recorded by his Honour in paragraphs 500 to 509 of his reasons for judgment. Those submissions, his Honour recorded, were summarised by counsel as follows:-
“The options in respect of S’s future are limited and clear.
On the one hand, S can stay with his mother. It is uncontested that if this happens, S will not know his father. He will thus grow suffering a deprivation that no child should have to bear. The long term effect of such deprivation is unknown but may be serious.
On the other hand, S can reside with his father and have contact with his mother. He will thus know both parents. Dr [N’s] last report clearly asserts that this is the preferred option, subject to the applicant’s ability to be an effective full-time parent.
The report of Ms [Q] and her evidence suggests that the father should be able to fulfil this role. Such an observation never comes with a written guarantee, but this material was sufficiently impressive to satisfy Professor [N’s] query. The applicant has everything to gain from repaying the trust of the court by providing a happy and stable future for S.
It is submitted, quite simply, that it is in the best interests of S that he be allowed to have both a mother and a father.”
In addition, although not referred to by counsel before us, his Honour set out, commencing at AB 192, the submissions of the child’s representative. In the course of so doing, his Honour indicated that he accepted the following submissions of counsel for the child’s representative:-
· The option of continuing the contact visits of the father in the same context as had been tried pursuant to the consent orders of 16 September 1999 is not a viable option. (His Honour found that that option was never seriously proposed by Professor N and was abandoned by him in his oral evidence).
· The second option referred to by Professor N in paragraph 36 of his last report was not a viable option. (His Honour found that that option was never seriously proposed by Professor N and was also effectively abandoned as an option in his oral evidence).
· That Professor N’s “modified option 2”, although attractive, is not viable.
His Honour recorded that there was thus two remaining options which he described as “permanent cessation of the father’s contact, save for some occasional gifts and letters, or a change of residence to the father.” Counsel for the child’s representative ultimately made no submission in support of either option. Counsel did, however, suggest forms of order if S was to reside with the father and if S was to reside with the mother.
His Honour then recorded from AB 195 the submissions made on behalf of the mother in the course of which he said:-
“497.In the section of the submissions headed “Conclusions”, after observing that “the assessment of S’s best interests requires choice between alternatives where there are identified risks in relation to each of them”, counsel proceeded to identify and compare the risks to S of a change of residence to the father with those of continued residence with the mother and a permanent cessation of all direct contact with the father. Those two options were accepted as the only viable alternatives open to the Court. As I have already identified and compared the differing risks posed by the two options, it is unnecessary to refer specifically to counsel’s submissions in relation to them, which I have had regard to in making my own analysis and findings.”
Counsel for the father thereafter referred us to the following passages from his Honour’s reasons:-
“510.It will be apparent from all that I have written, above, that I regard this as a very finely balanced case which is very difficult of resolution. Regrettably, there is no perfect solution for S, and whichever of the two stark options I ultimately choose, he will suffer some adverse consequences. The adverse consequences of a change of residence will be immediate and are fairly predictable, but they may be relatively short-term. That will depend to a significant degree upon the father’s capacity to deal adequately and sensitively with those consequences. Failure to do so may result in long-term psychological damage to S. The adverse consequences of a maintenance of the status quo are likely to be less immediate, and perhaps more subtle in onset and appearance, but they are also likely to be very long-lasting, if not permanent. The mother’s capacity or otherwise, to cope with those consequences would seem to be irrelevant to their development, as they will have their roots firmly planted in the soil of the parental alienation which has already occurred, and will continue to be nurtured by the mother’s totally negative perception of the father which she will undoubtedly constantly re-affirm to the child in her daily dealings with him.
511.As long ago as 1976, in the case of Raby and Raby (1976) FLC 90-104, the Full Court (Watson SJ, Fogarty and Lindenmayer JJ) said, two things which I think are of some relevance to the decision I am called upon to make in this case. The first related to what is often referred to as “the status quo argument”, in which it is frequently argued that an existing custodial (now residential) arrangement in relation to a child should not be disturbed. The second related to what the Court there categorised as the “long term verses short term effects of a custody order”.
512.In relation to the first of those matters the Court, after referring to and quoting passages from the judgment of Lord McDermott in J v C (1969) 2 W.L.R. 540 at 568, and of the Full Court of New South Wales in Jones v Jones (1960)
77 W.N. (NSW) 682 at 688, said this (at 75,483):-
“The statement by Lord McDermott in J. v. C. (supra) states the position neutrally. If the status quo is to be changed, the change itself and the reasons for change require examination. In our opinion the statement in Jones v. Jones (supra) goes too far. It appears to assume that a change in the status quo is automatically a serious inroad into a child's sense of stability and security. This may or may not be so in a particular case. Several matters may be relevant - the age of the child, the length of the status quo, its quality and, in particular, the nature of the child - adult relationships developed within it. It is the welfare of the child including his happiness which is paramount. If the status quo is predictably more detrimental to the child's welfare than proposed alternatives, a change may not only be desirable, it may be necessary.”
513.In relation to the second matter (long-term versus short-term effects), the Court (at 75,483) said this:-
“There will be cases where the extreme youth of the child gives immediacy to the parental bond, particularly the maternal one. The majority in Sanders and Sanders (1976) FLC ¶90-078 considered it to be one such case. There will be other cases where illness or temporary separation require an order geared to a short term.
Where, however, the child is beyond the stage of babyhood and is capable of forming those relationships which will give it ‘a good start in life’ , the court is obliged to attempt predictions in the longer term.”
514.However, in the same case, the Full Court, after citing a passage from the judgment of Barry J (of the Supreme Court of Victoria) in P v P (1964)
5 F.L.R. 452 at 456, added the following words of caution (at 75,484):-
“Predicting the future is an inexact science. Predicting the outcome of human relationships is fraught with uncertainty. Neither legal nor psychological skills and insights are as yet sufficiently developed to enable predictions to be made with reasonable certainty.”
515.In all of the circumstances of this case, and in the light of my above findings, I have come to the conclusion (somewhat reluctantly, and not without some misgivings) that it is predictably more in S’s long-term best interests that he be given the opportunity now to re-establish a real relationship with his father, rather than that he go forward to maturity bearing the distorted image of him which his mother has fostered through the process of alienation to which I have referred. That means, for reasons which I have given, as was really accepted by all parties, that there must be a change of residence for S, painful and all as that may be for him. Accordingly, I propose (subject to any evidence of significantly changed circumstances since 25 May, 2000, which I may ultimately permit either party to adduce prior to the publication of this judgment) to make orders directed to achieving that change of residence. I do not intend that that change should necessarily be permanent. My primary intention is that S have the opportunity to re-establish a reality-based relationship with his father free of the mother’s malign influence. It may be that, once that has been achieved, and the relationship is perceived as being strong enough to withstand any renewed attempts by the mother at alienation, it would be adjudged to be in S’s best interests to return to reside with his mother, and have regular contact with his father. But that remains to be seen.”
Counsel for the child’s representative did not make oral submissions in relation to this ground but relied upon his written Outline of Argument in which he said:-
“2.1It was open to His (sic) Honour to find that it was “predictably” more in S’s long-term interest that he be given an opportunity to re-establish a relationship with his Father. His Honour found that the Mother had alienated S from his Father and that alienation would continue unabated if S remained with his Mother.
2.2On the one hand, His (sic) Honour found that the Mother had not changed or in any way moderated her views in respect of the Father, whilst there was evidence that the Father had changed and moved on.
2.3Given Professor [N’s] evidence that alienation does not resolve without a change of residence from the alienating to the non-alienating parent (see AB V.1 para. 436 at p.168 Reasons for Judgment), His (sic) Honour was confronted with situation that the alienation would remain unchecked if S remained in his Mother’s care with all that entailed for S in going forward to adolescence with a distorted image of his Father, in respect of which Professor [N] was of the view “the effect of this on his personality is likely to be deleterious.” (See para. 37 of Professor [N’s] Report, annexure “A” to Affidavit filed 3 May 2000. (See AB V.5, p.1024 Reasons for Judgment).
2.4The placement of S with his Father offered S the opportunity not only to re-establish a relationship with his Father, but also to continue a relationship with his Mother. Put another way, the placement of S with his Father offered S the opportunity of having a meaningful relationship with both his parents that would otherwise be denied should S remain in his Mother’s household.”
In our consideration of this ground, the following observation of Kay and Hilton JJ. in their joint judgment in N and S and the Separate Representative (1996) FLC 92-655 at 82,744 are, in our view, apposite:-
“In many cases involving custody and access the Court is obliged to experiment. It is only with the passage of time that one can measure whether or not the experiment has been successful. Certainly the child should never be put into a life threatening situation. But in many cases the Court is forced to choose between two or more less than satisfactory alternatives, each fraught with risk to the child. Where the Court has to weigh up competing risks, such as in this case the risk of allowing access compared with the risk of not allowing access, the Court must often, by the very nature entailed in the process, experiment. Providing there is more to be gained from carrying out the experiment than not carrying it out, and providing the possible benefits to the child outweigh the possible detriments, the experiment may well be required to be undertaken to advance the welfare of the child.”
The trial Judge was, in our view, obliged to consider two alternatives in relation to which to use the words of the mother’s counsel at trial “there are identified risks in relation to each of them”, risks which his Honour was required to weigh.
His Honour found that it would be preferable for S to develop a relationship with his father through regular contact whilst living with his mother who was his primary caregiver and to whom he is undoubtedly very strongly emotionally attached. However, he also found that the prospects of that occurring were very remote given that the mother’s entrenched belief that the father has sexually abused S and her deep seated hatred and mistrust of him. The trial Judge’s assessment of the mother was that she was unlikely to accept his determination that no sexual abuse occurred and that there is no unacceptable risk of it, or his rejection of her perception of the father as the personification of evil.
Ultimately, his Honour concluded that it was predictably more in S’s long-term interests that he now be given the opportunity to re-establish a real relationship with his father rather than he go forward to maturity bearing the distorted image of his father which the mother has fostered through the process of alienation. We are not satisfied that, having regard to the whole of the evidence and his findings, the mother has established that the trial Judge erred in the appellate sense in so concluding.
Ground 6 His Honour erred in reaching the conclusion that it was in S’s best interests that there be a change of residence without first determining whether the father had the capacity to deal adequately and sensitively with the consequences for S of a change of residence or alternatively His (sic) Honour erred in concluding that the father had sufficient capacity to so deal with those consequences as to enable such consequences to be relatively short term.
No oral submissions were made in support of the alternative referred to in this ground. In the written Outline of Argument, counsel advised that the alternative ground was not proceeded with. In the written Outline of Argument, it was submitted (footnotes omitted):-
“10.It was incumbent upon His (sic) Honour to deal, as a matter of priority, with whether the father had the capacity to deal with the consequences for S of a change in residence. This was particularly so in reaching a decision that it was in S’s best interests to live separately to the parent with whom he had always resided.
11.It was even more essential in circumstances where His (sic) Honour found that S has virtually no relationship with his father and a very negative ‘perception’ of his relationship with his father.
12.It is submitted that His (sic) Honour’s findings in respect of the father’s capacity to deal with the consequences for S of a change in residence were:
(a)That he retained reservations about his capacity to cope with the sort of problems S would, undoubtedly, experience in the event of a change of residence;
(b)That there was a significant risk that the father would be unable to cope adequately with the predictable behavioural problems S would experience as a result of a change of residence.
13.It is submitted that in the face of such positive findings of reservation as to the father’s capacity to deal [with] the sort of problems he found that S would experience if a change of residence was ordered, His (sic) Honour erred in concluding that a change of residence was in S’s best interests.”
His Honour’s finding referred to in paragraph 12 of the written submissions is contained in the following passage of his reasons:-
“455.7 Alienation of S
…
(iv)Although the father is, I believe, well motivated and sincere in his ultimate application to have S live with him, and although Ms [Q’s] report upon his parenting capacity is essentially positive, he remains totally untried as a full-time parent, and I retain reservations about his capacity to cope with the sort of problems which S and he would undoubtedly experience in the event of my ordering a change of residence. I take note of Professor [N’s] evidence that such a move would be experimental, and that the risks of such a change are immediate and predictable with reasonable certainty, whereas the risks of continuation of S’s residence with his mother and the cessation of any contact with the father are more remote and less certainly predictable. Whilst I do not find that the father lacks the capacity to cope with S’s transition to his care, I do find that there is a significant risk that he will be unable to cope adequately with the predictable behavioural problems which S will experience as a result of such a change. If that should prove to be the case, the experiment will have failed, and S would have to go back to his mother, possibly permanently damaged by the process. That risk must be weighed against the risk to S’s long term development of the continuation and confirmation of his alienation from his father.”
However, his Honour went on to say:-
“455.7 Alienation of S
…
(v)I find that the father’s parents would be strongly supportive of the father were S to reside with him, and that their support, and that of his other family members, would be of considerable assistance to him in coping with the problems likely to be experienced by him and by S in that context. I reject the mother’s evidence that the father’s mother displayed cruelty or callousness towards S at any time. I have no doubt that she would try to be a loving grandmother to S, and would be suitably protective of him, if she had the opportunity or the necessity so to do. I think it would certainly be to S’s advantage, in the event that he were to live with the father, if [the paternal grandmother] (and her husband) were to move in to live with their son for the first few months. Not only would that provide the father with some emotional and practical support in his new role as a full-time parent, but it would also, I think, provide S with some valuable emotional support, and some relief for both S and his father from the emotional pressure of living together in isolation, in circumstances where they would be trying to re-build a very damaged relationship.”
We note that we set out the whole of paragraph 455.7 at paragraph 37 hereof.
In his consideration of the capacity of the parties to provide for S’s needs (s.68F(2)(e)), his Honour found that both had the capacity to meet S’s physical or intellectual needs. He went on to find:-
“475.… I have already made findings about the likely consequences for S of such a change [of residence] and have expressed my reservations about the father’s capacity to cope with these consequences.”
In reaching his decision, his Honour took into account and assessed the capacity of the father to cope with the problems both he and S would experience if there were a change of residence, along with all the other relevant factors in his determination of what was in S’s best interests. In so doing, we are not satisfied that he erred in the appellate sense and there is, in our view, no substance in this ground of appeal.
Ground 7 In making the Orders delivered on 29 August 2001, His (sic) Honour erred in that, because of the 15 month delay between the end of the hearing and the making of the Orders and the delivery of Judgment:
(a) there was no evidentiary basis for the making of such orders:
(i)The expert evidence given before His (sic) Honour in the course of the hearing arose out of consultations with and observations of the child which all took place earlier than
19 May 2000;
(ii)The evidence of Professor [N] in relation to the potential consequences for the child of a change in residence from the parent with whom he had always resided related to a change for the child at or about the time of the finalisation of the trial and not fifteen months later;
(iii)There was no evidence as to the likely capacity of the child to cope with a change in residence given the passage of time between the finalisation of the evidence and the delivery of Judgment;
(iv)The evidence given by [Professor N] in terms of the options open to His (sic) Honour was predicated on, at most, an additional period of three months elapsing;
(b)There is no evidence as to the capacity of the father to deal with the potential consequences for the fifteen month older child of a change in residence.
The written Outline of Argument of the mother in support of this ground records:-
“15.The Orders were made and reasons for Judgment delivered on 29 August 2001. This was 15 months after the conclusion of the evidence.
16.The expert evidence given before His (sic) Honour in the course of the hearing arose out of consultations with and observations of the child which all took place earlier than 19 May 2000.
17.The evidence of Professor [N] in relation to the potential consequences for the child of a change in residence from the parent with whom he had always resided related to a change for S at or about the age of 7.9 years and not a child at or about the age of 9 years.
18.Given the child’s age, it is submitted that the passage of time has meant that there are likely to have been significant developments in the child’s personality and self-awareness.
19. In these circumstances, because of the delay in giving Judgment:
(a)His Honour acted on evidence relating to the possible reaction of and impact upon S which may no longer have been relevant given the likely maturation of the child in the intervening time;
(b)There was no evidence before His (sic) Honour as to the likely capacity of S, as at about nine (9) years of age, to cope with a change in residence;
(c)There was no evidence before His (sic) Honour as to the capacity of the father to deal with the potential consequences of a change in residence for a nine (9) year old S;
(d)There was no evidence before His (sic) Honour as to the wishes of the nine (9) year old S, his level of understanding of what such wishes might mean in the long-term, his level of maturity, the strength and duration of such wishes and his likely reaction to a decision which involved him going to live with his father.”
As we have earlier recorded, the hearing before his Honour concluded on 25 May 2000 and judgment was not delivered until 29 August 2001.
At the commencement of the hearing on that day, the following exchange occurred between Bench and Bar:-
“MR A. C. SMITH: I appear for the applicant.
MR CARROLL: I appear for the mother.
MR (sic) F. K. COWPER: I appear on behalf of the child representative.
HIS HONOUR: Thank you. Before I deliver my judgment in this matter, I should say two things: firstly, I do apologise to the parties for the time which it has taken me to prepare and deliver this judgment. Perhaps when you read it, you will understand some of the reasons why. Having said that, I also want to say this: that I gave some – perhaps more than usual – notice to the parties of this date to give any of them an opportunity, if they saw fit to do so, to make any application they may wish to make to re-open for the purpose of putting before the court any evidence of any changed circumstances of significance which might have occurred since the trial.
As far as I am aware, no party has made any such application. Am I able to take it, then, that no party, including the separate representative, has any application to
re-open to adduce evidence of changed circumstances of any significance since the trial?
MR CARROLL: Nothing from the mother’s point of view, your Honour.
HIS HONOUR: Thank you, Mr Carroll.
MS COWPER: Nothing from the child representative, your Honour.
HIS HONOUR: Thank you.
MR SMITH: Your Honour, there certainly have been – my client has achieved some levels of academic attainment, but, other than that - - -
HIS HONOUR: That doesn’t seem to be significant.
MR SMITH: No. That is about as far as I can take it, at this stage.
HIS HONOUR: All right. Well, then, without further ado, I announce the orders, which I propose to make, subject to any submission the parties ultimately have about the form of them only.”
His Honour then went on to make the order against which the mother has appealed.
Counsel then referred us to paragraph 4 of the order of the trial Judge made on
29 August 2001. However, that order was made after the trial Judge enquired of the parties whether they wished to make an application to reopen for the purpose of placing before the Court any evidence of any changed circumstances of significance which might have occurred since the hearing or any other relevant factor arising out of the delay.
It would have been open to the mother during the 15 month period from May 2000 to August 2001 to have sought either herself or through the child’s representative to have Professor N (or any other expert) update his report in the light of the passage of time or to have obtained other expert evidence relating to the issues raised in this ground of appeal.
The failure on the part of the mother to make an application to reopen her case must also be viewed in the light of the concession made by counsel for the mother before us that the mother was aware that the trial Judge would make orders, the thrust of which was either that S would reside with her and have no contact with the father or that S would reside with the father.
Delay in the delivery of judgment is not a ground of appeal, nor does such delay of itself indicate that the hearing has miscarried. Here, the delay was lengthy and was not explained. But it is not asserted that the reasons contain errors that are probably attributable to the delay, that his Honour was other than thorough in the exposition of his reasoning process, or that the delay had affected his Honour’s understanding of the scope and range of issues and the submissions of the parties. Rather, it was asserted that, arising out of the delay, there was no evidence touching upon matters which the trial Judge was obliged to consider in determining what was in S’s best interests and, in particular, no evidence touching upon the matters referred to in s.68F(2)(a), (c), (e) and (f). It should be noted that, in light of this assertion, we are surprised that the mother has not sought to place before us up-to-date material touching upon matters referred to in s.68F(2).
Counsel for the mother submitted that during the course of her cross-examination, the mother was criticised for “what was termed as a coaching”. In addition, she referred, on this issue, to the report of Ms MO which was before the trial Judge, to the report of Professor N and to his oral evidence. She submitted that it was not unreasonable, in the circumstances, for the mother, in the light of the criticism directed at her, not to seek to reopen her case in the 15 month period between the completion of the hearing and the date of the judgment and not to make an application to reopen her case or to seek to adduce further evidence when specifically invited to do so by the trial Judge on 29 August 2001. However, the mother was in a position in which she could have sought to reopen her case and/or to take any of the steps referred to in paragraph 59 hereof. It was not asserted that at any time between the completion of the hearing and the delivery of the judgment, the mother was not legally represented. We do not accept the submission that it was not unreasonable, in the circumstances of this case, for the reasons outlined by counsel, for the mother not to seek to reopen her case. In our view, notwithstanding that the parties sought parenting orders, the mother should be held to have waived any entitlement she may have had to assert that there was no evidentiary basis on which the trial Judge could make the orders under appeal. Whilst we do not wish to be taken as condoning the lengthy, unexplained delay in the delivery of the judgment, this ground cannot succeed.
Ground 8 His Honour erred in concluding that, because of the child’s relative immaturity and consequent inability to judge what may or may not be in his own long-term interests, the child’s expression of a wish to continue to reside with his mother was not a matter upon which it was correct to place any great weight because such conclusion was based upon the wishes expressed by a child who was fifteen months younger than he was at the time of the delivery of Judgment and the making of Orders and there was no evidence before His Honour as to the maturity and ability of the child to judge what matters may be in his own long-term interests as at the delivery of the Judgment.
In support of this ground, counsel for the mother referred us to the following findings of his Honour in relation to the matters referred to in s.68F(2)(a):-
“463.There can be no doubt in this case that S is currently expressing, both by words and conduct, a wish not to have any contact with his father. However, I am satisfied that that wish is the product of S’s alienation from his father by the words, conduct and attitude of his mother and all those in her household or closely associated with her. It follows that S’s wish is to continue to reside with his mother, but that wish is not itself the product of his alienation from his father, but rather the natural product of the fact that S. has always lived with his mother, is emotionally attached to her, and could have no real concept of living elsewhere.
464.Given that S’s wish not to have any contact with his father is the product of his alienation from him by his mother (and others), and given also S’s relative immaturity (he was aged almost four when the alienation began in earnest, and has just turned nine at the time of completion of this judgment), it is not a wish to which I consider any significant weight should be given in determining what is in his best interests. However, his wish to continue to live with his mother, having a sounder and less reprehensible base, is worthy of somewhat greater weight in the ultimate balancing process. Again, however, given his relative immaturity, and his consequent inability to judge what may or may not be in his own long-term best interests, it is not a matter upon which I think it correct to place any great weight.”
Counsel submitted that his Honour’s assessment was an assessment of the expressed wishes of a child aged about 7.8 years made at a time when the child was aged about 9 years. In the written Outline of Argument adopted by counsel in her oral submissions, she said (footnotes omitted):-
“22.It is submitted that, as a result of the passage of time between the closure of the evidence and the giving of Judgment, there was no evidence before
His (sic) Honour as to:
(a) the level of understanding of the nine (9) year old S;
(b) the wishes of the nine (9) year old S;
(c) the strength and duration of such wishes;
(d)the maturity of the nine (9) year old S and his appreciation of the factors involved in the issue of his residence with the father and the longer term implications of this for him;
(e)if the wishes of the nine (9) year old S were to continue to reside with the mother, the likely reaction of the nine (9) year old S to orders which were against his wishes;
(f)the ability of the nine (9) year old S to assess and evaluate those matters which may or may not be in his own long-term interests.
23.Given that it is incumbent upon trial Judges to give appropriate and careful consideration to the wishes of a child, and not merely to treat them as a factor in the overall determination of what is in that child’s best interests without giving such wishes further significance, it is submitted that His (sic) Honour erred in assessing the weight which should be accorded to the child’s wishes without considering the impact of the circumstance that at least fifteen months had ensued since those wishes were ascertained.”
His Honour was clearly aware of the child’s age at the date of delivery of the judgment.
We do not accept the submission made on behalf of the mother for the reasons we did not accept the submissions made in support of Ground 7.
Ground 9 His Honour erred in that he failed to take into account and assess the potential impact on the child of residing with the father who was found by His (sic) Honour to be a person with an underlying character having a “strong sexist flavour” and in circumstances where the Father’s past actions, directed towards the mother, involved language described by the trial Judge as follow (sic):
“To describe the language used by the father in those calls as ‘vile’ is to grossly understate its offensiveness. They are full of the most degrading, insulting, sexually explicit, vitriol which any woman could possibly wish never to hear from any man, let alone from the one who is the father of her child. Yet, in the midst of this mountain of sexist garbage, the father occasionally still professed his reluctant love for the object of his abuse. The sorts of insults which he directed at the mother, in a tone and manner no doubt dripping with hatred and loathing, could not fail to wound her so deeply that the scars will never disappear. It is little wonder that the woman who was the victim of such a sustained campaign of vilification would want to prevent the perpetrator of that attack from having any influence over her child.”
It is convenient to summarise the submissions of counsel for the mother in support of this ground by setting out her written submissions (footnotes omitted):-
“24.His Honour stated, in respect of an affidavit prepared by the father personally and filed on 15 January 1999:
(a)that it was replete with material which was highly derogatory of the mother and offensive of her in the extreme;
(b) that it was clearly designed with a view to discrediting the mother.
25.His Honour found that “only a man harbouring very great bitterness against a woman and/or with extremely sexist ideas and attitudes, could have composed and put forward such an affidavit in these proceedings.”
26.His Honour also found, in relation to telephone calls made by the father in the period from December 1995 until February 1996 that:
“To describe the language used by the father in those calls as ‘vile’ is to grossly understate its offensiveness. They are full of the most degrading, insulting, sexually explicit, vitriol which any woman could possibly wish never to hear from any man, let alone from the one who is the father of her child. Yet, in the midst of this mountain of sexist garbage, the father occasionally still professed his reluctant love for the object of his abuse. The sorts of insults which he directed at the mother, in a tone and manner no doubt dripping with hatred and loathing, could not fail to wound her so deeply that the scars will never disappear. It is little wonder that the woman who was the victim of such a sustained campaign of vilification would want to prevent the perpetrator of that attack from having any influence over her child.”
27.His Honour found, in respect of the father’s contention that the Mother was too scantily dressed to go out in public (when she was wearing short shorts) and his apparent reaction to her being frightened by being followed (which he interpreted, despite the father’s denial, as being to the effect that she got what she deserved), that it had a strong sexist flavour which was both offensive and illuminating as regards the underlying character of the father.
28.Given the above findings made by His (sic) Honour, it is submitted that
His (sic) Honour erred:
(a)in failing to take into account such matters in considering the father’s capacity to meet the child’s emotional needs;
(b)in finding that he had no doubt that the father would have the capacity to meet S’s emotional needs, even his need to maintain a good relationship with the mother, should the child reside with the father;
(c)in finding that it was predictably more in S’s long term best interests that he be given an opportunity now to re-establish a relationship with his father.”
In his consideration of the matters referred to in s.68F(2)(g), the trial Judge said:-
“480.Both parties have been guilty, to some extent, of exposing S to violence between themselves in the past. Of the two, I would apportion a greater share of the responsibility for that to the father, because I am satisfied that on a number of occasions he allowed himself to become very angry and aggressive in attitude towards the mother, in S’s presence, and to behave in ways which could only have been frightening for her and for S. However, the parties are now living apart, I believe the father has made a real effort to extricate himself from the destructive cycle into which their relationship had deteriorated, and I have no basis for a finding that he has any general propensity for violence which is likely to surface in other relationships or in his every-day life.
481.Similarly, I have no basis for a finding that the mother has a propensity for violence in her every-day life, and there is not a hint of violence in her current relationship with Mr [A.].
482.There is, of course, a risk that if I make orders which necessitate any regular contact between the parties, particularly, for example, at contact hand-over times, this would expose S to a risk of further violence between his parents. However, given the passage of time, I think this risk is fairly remote, and is not one which I need to take any particular precaution to avoid.”
Counsel for the father submitted that, in coming to his conclusion, the trial Judge clearly took into account that S’s interests were best served by him having a relationship with the father, notwithstanding his perceived shortcomings in the father’s make up.
The findings referred to in paragraphs 24 and 25 of the mother’s Outline of Argument are set out in the course of his Honour’s consideration of the credibility of the parties. He concluded that he had serious reservations about the overall credibility of both, that neither was taking even a partially objective view of the other’s behaviour and that each had been quite prepared to tell lies, if necessary, to gain what he or she perceived as an advantage over the other with a view to achieving ultimate “victory” over the other in the proceedings.
After recording the finding referred to in paragraph 25 of the mother’s written Outline of Argument, the trial Judge went on to say:-
“429.The mother, too, was inclined to be discursive and/or evasive in many of her responses, and there was a strong element of self-justification in much of her evidence. She also seemed to me to exhibit some deviousness, as well as vindictiveness in her personality, and she could not hide the extreme bitterness which she holds towards the father. She was particularly vulnerable when cross-examined about the entries in her diary (exhibit 17) and I am satisfied that she had sought to prevent the father and his counsel from gaining access to the tell-tale markings on the 1992 calendar printed inside the cover of that diary, to which I have earlier referred, by falsely asserting that there was some irrelevant personal information written on that page, which she then proceeded to cover with a piece of paper stapled to the diary page. I have little doubt that she perceived the significance of the markings which she had made on that calendar, and how they might be (and ultimately were) used to attack her assertion that she had conceived S as a result of the rape which she suffered at the father's hands on 5 November, 1991. I believe that it was for that reason that she sought to prevent that part of the diary from being inspected by the father and his counsel.”
The finding referred to in paragraph 26 of the mother’s written Outline of Argument appears at AB 178 under a general heading of “Ultimate Factual Findings” which commenced at AB 173 where his Honour dealt with the following topics:-
(a) The Alleged Rape;
(b) S’s Conception;
(c) Sexual Abuse of S;
(d) Other ill-treatment of S;
(e) Violence;
(f) Harassment; and(g) Alienation of S.
In the course of that discussion, the trial Judge made findings not only critical of the father, such as the finding to which we have been referred in the consideration of this ground, but also findings critical of the mother, including but not limited to his finding that the father did not rape the mother as alleged by her on 5 November 1991 as a result of which S was conceived.
His Honour further recorded in relation to the telephone calls:-
“455.6 Harassment
…
(iii)… I think it appropriate that I record how seriously I regard them, and what a significant role I think they have played in the escalation of the conflict between the parties and in the growth and maintenance of the sexual abuse allegations. Although the father has expressed his regret for making those calls, I think he has failed to appreciate the depth of the impact they must have had on the mother, and the lasting damage which they did to the parties’ relationship as parents of S.”
and later that he believed that the father has made a real effort to extricate himself from the destructive cycle into which the parties’ relationship had deteriorated and that he is “a committed and a loving father”.
Having regard to the totality of the findings of the trial Judge, we are not satisfied, in coming to his conclusion, he failed to take into account and assess the findings referred to in this ground.
Ground 10 In having positively determined that any change of residence would be experimental and that there was a significant risk that the father would be unable to cope adequately with the predictable behavioural problems which S would experience as a result of such a change and that if that proved the case “the experiment will have failed, and S would have to go back to his mother, possibly permanently damaged by the process”, His (sic) Honour erred in making the Orders made on 29 August 2001.
In support of this ground, counsel for the mother referred us to passages from the reasons of the trial Judge referred to in paragraph 37 hereof and submitted that in the light of the findings contained in those passages, particularly in paragraph 455.7(v), the trial Judge erred in making the order that he did.
His Honour, in our view, in coming to his conclusion, assessed and evaluated the risk involved in giving to S an opportunity to establish and maintain a relationship with the father and ultimately having contact with the mother by ordering a change of residence and the risk involved in S remaining with the mother and having no contact with the father and thus going forward to maturity bearing the distorted image of the father which the mother has fostered through the process of alienation. His Honour took into account the evidence of Professor N as to the experimental nature of the change and concluded that the risk of no change outweighed the risk of change. In relation to the experimental nature of the change, we would again refer to the observations of Kay and Hilton JJ. in N and S and the Separate Representative (supra).
In so doing, it has not been established that his Honour erred. We find no substance in this ground of appeal.
Ground 11 His Honour erred in concluding that the matter was “a very finely balanced case” in circumstances where an analysis of the evidence clearly revealed that in all aspects but a fostering of and/or acceptance of the need for the child to have a relationship with his father, the mother was clearly the parent best placed to meet the child’s needs.
In support of this ground, we were referred to the following passage of the trial Judge’s reasons:-
“510.It will be apparent from all that I have written, above, that I regard this as a very finely balanced case which is very difficult of resolution. Regrettably, there is no perfect solution for S, and whichever of the two stark options I ultimately choose, he will suffer some adverse consequences. The adverse consequences of a change of residence will be immediate and are fairly predictable, but they may be relatively short-term. That will depend to a significant degree upon the father’s capacity to deal adequately and sensitively with those consequences. Failure to do so may result in long-term psychological damage to S. The adverse consequences of a maintenance of the status quo are likely to be less immediate, and perhaps more subtle in onset and appearance, but they are also likely to be very long-lasting, if not permanent. The mother’s capacity or otherwise, to cope with those consequences would seem to be irrelevant to their development, as they will have their roots firmly planted in the soil of the parental alienation which has already occurred, and will continue to be nurtured by the mother’s totally negative perception of the father which she will undoubtedly constantly
re-affirm to the child in her daily dealings with him.”
In the written Outline of Argument, counsel submitted (footnotes omitted):-
“30.His Honour concluded that the matter was “a very finely balanced case”.
31.It is submitted that His (sic) Honour erred in making such finding because:
(a)an analysis of the evidence clearly revealed that in all aspects but a fostering of and/or acceptance of the need for the child to have a relationship with his father, the mother was the parent best placed to meet the child’s needs;
(b)the father, himself, informed Professor [N] (and did not depart from this view at trial) that he would accept the mother having residence if he could have regular contact with the child.”
In paragraph 510 of his reasons, his Honour referred to the two stark options and the adverse consequence of both for S. The mother has not challenged the finding that the adverse consequences for S of a maintenance of the status quo were likely to be very long-lasting, if not permanent.
We find no substance in this ground.
Ground 12(a) His Honour erred in finding, in respect of the witness M:
(i)that “her perception of the frequency of the calls and her attribution of them to the father, are based, at least in part, upon what her mother would have said to her over the years about these calls”;
(ii)that “her perception of this event [in the park opposite the father’s residence] is likely to have been influenced by subsequent discussion of it with her mother”
in circumstances where there was no evidence to support such findings and where one of the critical issues for His (sic) Honour’s consideration, given the expert evidence, was whether the father had continued the process of harassment as alleged by the mother.”
In support of this ground, we were referred to the following findings of the trial Judge:-
“292.I shall say more below about Mr [A’s] and the mother’s evidence about the extent of the telephone calls which they attributed to the father. At this point I merely indicate that I accept the general tenor of M’s evidence, as set out above, about this issue, although I also believe that her perception of the frequency of calls and her attribution of them all to the father, are based, at least in part, upon what her mother would have said to her over the years about these calls.”
…
“316.In relation to the incident in the park opposite the father’s residence which occurred on 12 July, 1995, M gave evidence (in paragraph 44 of her affidavit) which is slightly corroborative of her mother’s. However, it is by no means clear how close she approached to where the confrontation between her mother and the father and Ms [S] occurred, and her description of the incident is quite sketchy. Again, her perception of this event is likely to have been influenced by subsequent discussion of it with her mother. I place little weight on this aspect of M’s evidence.”
Counsel for the mother did not seek to expand on the written submissions where it is submitted:-
“33.Whilst it is acknowledge that these may, on the face of it, seem to be errors of little import in His (sic) Honour’s overall decision-making process, it is submitted that they are telling for the following reasons:
(a)In respect of the error identified in paragraph 32(a) above [the perception of the frequency of calls]:
(i)The mother’s case was that she had continued to receive harassing telephone calls from the father well after 1997 (the date to which the father admitted, to a minimised degree, that he had made such calls);
(ii)M resided with her mother in her mother’s household until 1998;
(iii)M provided, in her evidence, corroboration of her mother’s assertions as to receiving telephone calls and as to the frequency of the same in 1998;
(iv)His Honour found that the mother [and Mr A] greatly exaggerated the number and frequency of the calls where one of the critical issues for His (sic) Honour’s consideration, given the expert evidence, was whether the father had continued the process of harassment as alleged by the mother.
(b)In respect of the error identified at paragraph 32(b) above [the perception of the event in the park]:
(i)His Honour found that the evidence of M (as contained in paragraph 44 of her Affidavit) was slightly corroborative of the version provided by the mother;
(ii)His Honour made the finding of fact set out in paragraph 32(b) in circumstances where the issue of discussion between M and the mother in respect of this event was not raised with M during cross-examination at any time and there was no evidence at all from her in relation to any discussion of this event with her mother.
34.It is submitted that His (sic) Honour erred in placing little weight on M’s evidence as to the matters because His (sic) Honour found, erroneously, that her perception of the event was likely to have been influenced by subsequent discussions of it with her mother.”
In the course of his reasons, the trial Judge referred to M’s age, her emotional attachment to her mother, her lack of any attachment to the father and to the fact that mother and daughter had doubtlessly discussed events more than once over the years.
In our view, it was open to his Honour to make the finding he did in relation to M’s perceptions. However, if that were not open to his Honour, in our view, the error was immaterial and did not influence his Honour’s ultimate conclusion.
CONCLUSION
As the mother has not made out any of the grounds contained in the Further Amended Notice of Appeal, we would dismiss the appeal.
COSTS OF THE APPEAL
At the conclusion of the hearing of the appeal, we heard submissions in relation to the costs of the appeal.
In the event that the appeal is dismissed, the mother, who was in receipt of a grant of legal aid, submitted that there should be no order as to costs in relation to the appeal. In that event, the father, who was also in receipt of a grant of legal aid, sought an order that the mother pay his costs of and incidental to the appeal, including the costs reserved on 20 September 2001. The child’s representative did not seek an order for costs.
Having regard to the submissions made on behalf of the parties and to the provisions of s.117(2A), the circumstances do not, in our view, justify the making of an order for costs.
There will accordingly be no order as to costs.
ORDERS
We order:-
1.That the application of the mother for leave to adduce further evidence filed on 26 April 2002 be dismissed.
2. That the appeal be dismissed.
3.That there be no order as to costs of and incidental to the appeal.
I certify that the preceding 92 paragraphs
are a true copy of the reasons
for judgment delivered by
this Honourable Full Court.
Associate
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Appeal
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Jurisdiction
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Procedural Fairness
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Res Judicata
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