Dallon and Patau (No 2) - [2009] FamCAFC 210

FAMILY COURT OF AUSTRALIA

DALLON & PATAU (NO. 2)

[2009] FamCAFC 210

FAMILY LAW – PARENTING PROCEEDINGS – FATHER ACCESS TO CHILDREN – APPLICATION TO ADDUCE FURTHER EVIDENCE – DISCRETION – APPEAL FROM FAMILY COURT – COSTS – APPLICATION OF LAW –Not established that the trial Judge erred in determining that the child live with the mother and that the parents have equal shared parental responsibility for the child – Not established that the trial Judge gave too much weight to expert reports – Not established that trial Judge failed to take into account inconsistencies between evidence of wife and evidence of wife’s father – Not established that trial Judge failed to give adequate reasons for preferring the wife’s evidence over that of the husband – Appeal and application to adduce further evidence wholly unsuccessful – Court of opinion that circumstances justified costs orders in favour of the Mother and Independent Children’s Lawyer

Family Law Act 1975 (Cth) s 93A, Pt VII, s 117(2A)

CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828
House v The King (1936) 55 CLR 499
Gronow v Gronow (1979) 144 CLR 513
Mims v Green and Green (2008) FLC 93-359
Abalos v Australian Postal Commission (1990) 171 CLR 167
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588
Bennett and Bennett (1991) FLC 92-191
Sun Alliance Insurance Ltd v Massoud (1989) VR 8
AMS v AIF, AIF v AMS (1999) FLC 92-852

APPELLANT:

Mr Dallon

RESPONDENT:

Ms Patau

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of NSW

APPEAL NUMBER:

119

2008

FILE NUMBER:

SYC

2652

2007

DATE DELIVERED:

2 September 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, May and Strickland JJ

HEARING DATE:

2 September 2009

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

16 September 2008

LOWER COURT MNC:

[2008] FamCA 782

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Gould

SOLICITOR FOR THE APPELLANT:

Armstrong Legal

COUNSEL FOR THE RESPONDENT:

Mr Stewart

SOLICITOR FOR THE RESPONDENT:

Vaughan Zarb & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Gillies

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Legal Aid Commission of NSW

Orders

That the appeal be dismissed.

That the application for leave to adduce further evidence be dismissed.

That the appellant father pay the respondent mother’s costs of the appeal as assessed on a party and party basis in the sum of $3000.

That the appellant father pay the Independent Children’s Lawyer’s costs of the appeal as agreed in the sum of $3000.

That the execution of the costs orders be stayed for a period of 9 months.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

APPEAL NUMBER: EA 119 of 2008
FILE NUMBER: SYC 2652 of 2007

MR DALLON

Appellant

And

MS PATAU

Respondent

Legal Aid Commission of NSW

Independent Children’s Lawyer

REASONS FOR JUDGMENT

COLEMAN J

By Amended Notice of Appeal filed 22 December 2008, Mr Dallon, (“the father”), appealed against orders made by Moore J on 16 September 2008 in parenting proceedings between the father and Ms Patau, (“the mother”). The orders of the trial Judge related to the child of the parties’ former relationship, J, who was born in February 2003 and who is now 6 years of age, and was approximately 5½ years of age at the date of the trial Judge’s orders.
Her Honour’s orders provided that the child live with the mother, and that both parents have equal shared parental responsibility for the child, save that the mother have sole parental responsibility for the child’s education. Orders were made for the child to spend time with the father progressing to alternate weekends, overnight on the intervening Thursday and for half of the school holidays. Amongst other ancillary orders, both parents were restrained from removing the child from Australia and the child’s name was placed on the Airport Watch List until further order of the Court.
The father, by his Amended Notice of Appeal, sought orders in lieu of those made by the trial Judge. As it is common ground that if the appeal is successful for any reason a new trial will be required it is unnecessary to say any more about the alternate relief sought by the father.
On 26 May 2009 the father filed an application for leave to adduce further evidence in the appeal pursuant to Section 93A of the Family Law Act 1975 (Cth), (“the Act”). That application was supported by an affidavit sworn by the father on the same date.
The mother has resisted the father’s appeal and his application for leave to adduce further evidence in the appeal sought to maintain the trial Judge’s orders.
Counsel for the Independent Children’s Lawyer (“the ICL”) has adopted an identical stance to the father’s appeal and application for leave to adduce further evidence.
By way of brief background to the appeal the following material facts are recounted. They are not controversial. At the time of trial the mother was 31 years of age, the father was 46 years of age. Both parties had been born in I. The father migrated to Australia in 1995, the mother in 1998. The parties married in February 2002. J, as earlier noted, was born in February 2003. The parties separated in April 2007. The trial before the trial Judge was in June of last year and was followed by written submissions. Her Honour delivered Judgment and published her Reasons on 16 September 2008. For reasons which do not assume any significance, the appeal was adjourned from the original hearing date in May of this year.
Having regard to the Grounds of Appeal which have been agitated on behalf of the father, it is necessary and potentially instructive to refer in an essentially summary way to the trial Judge’s Reasons for Judgment. Having set out relevant matters of background, her Honour outlined the evidence which had been adduced before her. The issues for determination were then identified, as were the essential elements of each party’s case. Amongst others, significant issues related to the mother’s mental health, her intelligence, her alleged volatile temper and consequential ability to adequately care and provide for the child the subject of the proceedings. Other issues identified by the learned trial Judge included the alleged controlling and violent behaviour of the father and other members of the father’s family.
The trial Judge then detailed the history of the parties’ relationship and recorded the allegations made by each party with respect to incidents alleged to have occurred during the course of the marriage. Reference was then made to the evidence of the father’s family in support of the father’s contentions that the mother was incompetent, neglectful and abusive of the child. A summary of the issues arising subsequent to the making of interim orders on 1 May 2007 pursuant to which the child was to live with the father was then provided by the learned trial Judge.
In a section of her Judgment so styled the learned trial Judge revealed her conclusions with respect to the credibility of the parties, the various family members who gave evidence and, insofar as it was relevant, the credibility of expert witnesses who gave evidence before her. Her Honour outlined, having done so, her satisfaction that the evidence of the mother and her witnesses was to be preferred to that of the evidence of the father and his witnesses where the evidence was in conflict.
Her Honour then turned to consider an issue which had assumed significance at trial; namely, the mother’s mental health and IQ. In the context of that consideration her Honour referred to the evidence of Dr J, a psychiatrist who had treated the mother in 2005 and 2006; to Dr T, who had seen the mother in May 2007; and Dr Q, who had been retained for the purpose of the parenting proceedings in this Court. Dr Q reported on a number of the issues, including her expert opinion evidence of the capacity of the mother to care for the child.
Having referred in some detail to the expert evidence, the trial Judge recorded her conclusions and they commenced at paragraph 93. Those conclusions in relation to Dr Q were then set out and were followed, under the heading “History”, at paragraph 95 and following by the learned trial Judge’s conclusions with respect to the contentious issues which she had in the preceding paragraphs of her Judgment been considering.
Against that background the learned trial Judge then, under the heading “Best interests”, addressed the legislative provisions of Part VII of the Act which governed the proceedings before her and, by reference to the relevant provisions of Part VII and her findings in relation to the evidence, recorded her conclusions. It is not suggested in this appeal and, with respect, sensibly so, that there was any misconception on her Honour’s part as to the relevant legislative provisions or the application of them. Rather, as will be seen, the challenges fall within a number of discrete areas which do not involve such issues.
For the reasons which she detailed the learned trial Judge concluded that equal shared parental responsibility could be maintained, notwithstanding the level of conflict which the evidence revealed to exist as between the parties, save for the reservation previously identified which related to the schooling of the child.
For reasons which she also detailed her Honour did not consider that it would be necessarily practicable or in the best interests of the child for there to be an equal sharing of time as between the parents. Necessarily, having regard to the legislative provisions, her Honour then considered the question of substantial and significant time, concluding in that regard that, due to the nature of the relationship between the parents, the best interests of the child required some lesser arrangement than might otherwise have been possible.
For the reasons which she had thus articulated the learned trial Judge concluded that the child’s best interests would be served by the change of her primary place of residence from that of the father, pursuant to the interim orders made the previous year, to be with her mother, essentially but not solely because of her conclusion that so doing would provide the child with a better opportunity to maximise her potential in life, in part and not insignificantly so, by reason of her Honour’s conclusion that the mother had a somewhat greater ability to meet the child’s needs than did the father.
Although it may in many appeals be preferable to deal with further evidence applications after the primary appeal itself has been considered, in the circumstances of this appeal it is convenient to deal with the further evidence application filed by the father on 26 May 2009. That application seeks to have received in evidence in the appeal a transcript of a conversation which, in his affidavit, the father asserts may have occurred in about 2006.
In his affidavit the father asserts that the conversation took place between himself, the mother, and the mother’s mother, and that the child the subject of the proceedings, J, could “be heard on the recording”, asserting thereby that the child was present. The conversation deposed to in the annexure to the father’s affidavit, Annexure “A”, or a translation of it, would have the potential if accepted to cast some doubt about some of the trial Judge’s conclusions; most importantly, the trial Judge’s benign conclusions with respect to the mother’s alleged violent and abusive conduct towards the child J.
In his affidavit, the father sought to explain the failure to have adduced this evidence, which his learned Counsel frankly conceded was available at trial, in the terms appearing in paragraphs 6 and 7. The transcript in relation to the circumstances that surround the matters referred to in paragraph 6 of the father’s affidavit, culminating after an adjournment of about 20 minutes with Counsel then appearing for the father, who, in fairness, was not Counsel now appearing for him, not pressing the tender of the affidavit which contained the transcript of the material now sought to be adduced in the appeal.
The application is governed by the provisions of section 93A and, as is not surprising given that it has had the benefit of consideration by the High Court in CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828, McHugh, Gummow and Kallinan JJ said at paragraph 109:
109.One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
The contention of Counsel for the father is necessarily that, if accepted, this evidence would demonstrate that the trial Judge’s order was erroneous. We do not accept that the evidence if accepted could or would have that effect. There are a number of reasons why that is so. The first and most obvious is the time in which the conversation referred to in annexure A is asserted to have probably occurred, being some two years prior to the trial Judge’s decision. The second matter is that, as Counsel for the father frankly conceded, we have not been referred to any passage anywhere in the evidence at trial in which any witness who then gave evidence was cross-examined in relation to the substance of the conversation or in relation to the factual matters which are necessarily asserted in reliance upon it. Importantly, Dr Q, who is the subject of particular challenges in the father’s amended notice of appeal, was not cross-examined in relation to the contents of the annexure.
In CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828 the majority also said relevantly for present purposes, at paragraph 116:
116.The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence, even if it could have been discovered by the exercise of reasonable diligence, may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the Court by this section.
It is not in doubt that the evidence in this appeal was available at trial. It is not in doubt that it was deliberately withheld. The transcript reveals that Counsel then acting for the father, on instructions and after not only the benefit of extensive debate before the trial Judge, but also an adjournment in which the opportunity to consider the position was afforded, made a conscious and informed decision to deliberately withhold the evidence and not press the tender. I would not accept that it becomes a matter of discretion, given that I do not accept that the threshold to which the majority referred in paragraph 109 has been crossed, but even if it has, contrary to my conclusions, the circumstances surrounding the withholding of the evidence, the failure to cross‑examine any witness in relation to it and its antiquity would not incline me to exercise the discretion to receive it into evidence.
Turning then to the appeal itself, the appeal raises no issue of principle. The legal principles which govern the appeal are not in doubt and do not require extensive reviewing for present purposes. I perceive that the principles which are involved fall within essentially four areas. The first relates to the broad topic of appeals against discretionary Judgments. The principles have been extensively stated and restated with unchanging emphasis since the decision of the High Court in House v The King (1936) 55 CLR 499 almost 70 years ago. They were, amongst other places, however, conveniently reviewed by Kirby J in CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828 in paragraph 186 of his Honour’s Judgment:
186.A number of general propositions may be stated:
1.Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
2.Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.’
The next area to which the appeal relates, as Counsel for the father clearly recognised and frankly acknowledged, to what are sometimes described as weight challenges. The principles governing weight challenges are not in doubt. They were conveniently summarised by Stephen J in Gronow v Gronow (1979) 144 CLR 513, Stephen J said at 519-20:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.

In the course of so doing his judgment, Stephen J made clear that simply because other conclusions may have been reached by giving more or less weight to evidence that did not, of itself, constitute appellable error and that considerable restraint was required by appeal Courts dealing with such challenges. In fairness, Counsel for the father has at no time during his presentation of the father’s appeal ever sought to minimise the significance of decisions such as Gronow in relation to the hurdles that confront the father in this appeal.
The third area which is potentially of relevance relates to the principles governing challenges to findings with respect to credibility. The law in this regard is not in doubt.
In Mims v Green and Green (2008) FLC 93-359 the Full Court referred to the following passage in the High Court’s decision in Abalos v Australian Postal Commission (1990) 171 CLR 167 (at 178) McHugh J (with whom Mason CJ, Deane, Dawson and Gaudron JJ concurred) referred to “the power of the Court of Appeal” and to the judgment of Lord Sumner in SSHontestroom v SS Sagaporack [1927] AC 37 (at 47):-
…not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.
49. His Honour went on to state, at page 178:-
Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied “that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion”: Watt or Thomas v. Thomas [1947] A.C. 484, at p. 488.
Reference was also made to the later decision of the High Court In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588 (“Earthline”), Gaudron, Gummow and Hayne JJ. In Earthline, having extensively reviewed the history of “Appellate review of facts”, and the “Emphasis on the duty of appellate review and its constraints”, Kirby J explained “the trial judge’s real advantages” in relation to the credit of witnesses. In the course of his judgment (619, paragraph 90) his Honour said:-
The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary of electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge. These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge was driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified. (at 619).
The final area which assumes significance, having regard to the grounds of appeal, relates to the adequacy of Reasons for Judgment. Again the law is not in doubt.
In Bennett and Bennett (1991) FLC 92-191. The Full Court there said at 78,266:
Counsel for the wife urged that there was a failure by her Honour to give adequate reasons for judgment, and that this, of itself, amounted to an error of law. In this regard he relied upon the line of New South Wales Court of Appeal decisions commencing with Pettitt v Dunkley (1971) 1 NSWLR 376, and including Housing Commission of NSW v Tatmar PastoralCo Pty Ltd (1983) 3 NSWLR 378, and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In the latter case, McHugh JA said that without the articulation of reasons, a judicial decision could not be distinguished from an arbitrary decision. His Honour took the view that the requirement for reasons serves at least three purposes, namely, to enable the parties to see which of their arguments had been understood and accepted as forming the basis of a Judge's decision; secondly, to further judicial accountability; and thirdly, to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future.
…
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: --
(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments.
The important thing is that the appellate Court must be placed in a position of being able to follow the trial Judge’s line of reasoning, as must the parties if they are to be satisfied that justice has been done.
Against that background the grounds of appeal articulated in the Amended Notice of Appeal can be addressed. Ground 3 of the Amended Notice of Appeal provided, in essence, that the trial Judge gave too much weight to the report of Dr Q, who was a single expert, having regard to the manner in which the interviews were conducted and in circumstances where Dr Q had not interviewed nor observed the wife with the child alone. It was submitted by learned Counsel for the father that the circumstances referred to in the Ground of Appeal required the trial Judge to have been “cautious” in accepting Dr Q’s opinions about the relationship between the child and the mother. Having set out the circumstances surrounding the first interview and the second with the child and the conditions in which Dr Q interviewed the child J, it was submitted that “it was potentially dangerous to place too much weight” on the observations of the child.
In his submissions in response to this challenge the learned Counsel for the mother set out by reference to the trial Judge’s Reasons for Judgment and the transcript of the proceedings a number of matters which I find persuasive and fatal to this challenge. The submissions asserted:
3.The first report of Dr. Q is dated the 18 February 208. The second report (pursuant to Part15.65 FLR) was an answer to questions contained in a letter from Ms. Shea who was the Independent Children’s Lawyer (“ICL”). The report is dated 4 April 2008.
4.Counsel for the ICL asked Dr. Q whether the presence of the wife’s family interfered with Dr. Q’s ability to observe the wife and child. Dr. Q expressed the view that it did not.
5.Dr. Q gives further evidence about the circumstances in which attempts were made to coax the child to leave the father and go with the wife for the purposes of the interview and the fact that Dr. Q did not see the wife alone with the child. This evidence was given before counsel for the appellant commenced her cross-examination.
6.Counsel for the appellant did not put to Dr. Q that there was a heightened risk of error in preparing this report in circumstances where Dr. Q had neither “…interviewed nor observed the wife with J alone.” (ground 3).
7.Her Honour found Dr. Q’s evidence to be “professional and thorough” and further, found that the evidence should be “…given weight”. These are findings that were open to Her Honour.
In essence, as Counsel for the mother submitted, Dr Q in cross‑examination addressed the issue of the circumstances surrounding her interview of the child J in the context of the mother. Part of the submission which assumes significance in the context of this challenge appears to have been expressly put to Dr Q:
Is it possible that because of the large number of people present in all the carry on, that you might have missed being able to make observations of [J] (sic) with her mother?---No, because the family – we had had about an hour, I think, before the family arrived, so there was an hour – there was at least an hour when the mother was there and we didn’t have the great crowd in my office.
During that first visit, though, I think the mother, her brother, [J], (sic) [M] and [D] were there?---That’s right, yes.
[M] and [D] being children?---They’re cousins, yes.
Were all of those people present in the room during the first part of the session?---We started off with all of them there, and then – no, they stayed most of the time, I think. I think the brother might have taken them out for a little time just to give them a bit of a break from being in the office, but mostly they were there.
The mother collected [J] from school at about 9.30 that morning?---Yes.
And I think the appointment with you was at about noon; is that right?---Yes, that’s right.
Is it possible that the child’s reaction to the mother was because of the mother may have, for example, bribed the child with presents or done that sort of thing between 9.30 and noon which could act for the change that you saw in [J’s] behaviour?---I wouldn’t – I wouldn’t have thought – the change was so profound in the child, that I wouldn’t have thought that it could have been something that arose in a temporary way like that, no.
Was there any behaviour by [J] towards her maternal uncles that suggested she was afraid of them?---No.
Any behaviour by the mother towards any members of her family, in particular her brothers, that suggested that she had any fear of them?---No, they were – they were a very engaging, affable group of people and they seemed to have very good relationships with each other.
If the interactions between the child [D] and the maternal family, uncles in particular, did you see anything that suggested any fear in [D’s] behaviour?---No.
Did you look at the group of children as to how they were interacting with the adults in a general way to assess the family?---Yes.
And was there anything untoward or concerning in any of that interaction?---Quite the contrary. They seemed a very child-focussed family. The children were obviously extremely well cared for. There was a lot of easy familiarity with each other and it looked like a family with solid bonds and quite a strong focus on children.
Dr Q there explained why the circumstances did not in her view preclude her from reaching the conclusion which she did. Dr Q, as the references to the transcript provided by Counsel for the wife reveal, gave other evidence about this topic. Those passages of transcript are referred to in paragraph 5 of Counsel for the wife’s Summary of Argument. Significantly, as Counsel for the wife submitted, Counsel then appearing for the father did not put to Dr Q that there was a heightened risk of error in preparing her report in circumstances where Dr Q had neither interviewed nor observed the wife with the child J alone.
The trial Judge accepted Dr Q’s evidence, as is apparent from her Judgment, in which she said:-
54.The father refers to her report in his affidavit where criticism is implied and in any event it is clear that he does not accept Dr [Q’s] conclusions or opinions generally in so far as they are adverse to his case. There are submissions from his counsel under the heading ‘Dr [Q’s] evidence regarding credit’ although what follows is not particularly direct to credit. Even so, it is no doubt intended to argue that the father’s critical view of Dr [Q’s] method of involvement and her evidence is valid and therefore undermines the weight to be given to her evidence.
55.Yet I can find no validity to the criticisms of her role, her process or her evidence. The more objective vantage point suggests she undertook the task required of her in a professional and thorough manner, the process employed was open to her in the exercise of her professional judgment, the views she expressed are based on observations she made and assessments she is qualified to make, and they are sufficiently explained by her. As I find, her assessments and her analysis of matters she was asked to report deserve to be given weight.
56.It can also be said that the objectivity and professional opinion of Dr [T] is unquestioned and his evidence is accepted. As already mentioned, flaws undermine the evidence of Dr [J] which I shall come to more directly now.
Nothing to which learned Counsel for the father has referred this Court or, with respect to him, could have in regard to the evidence before her Honour and her Honour’s Reasons for Judgment persuades me that this challenge has merit. I would accordingly reject it.
Sensibly, learned Counsel for the father abandoned a number of Grounds of Appeal appearing in the Amended Notice of Appeal. Grounds 4 and 5, however, were not abandoned but were argued in conjunction. They provided that the trial Judge erred in failing to take account of inconsistencies between evidence of the wife and evidence of the wife’s father and that the learned trial Judge failed to give adequate reasons for preferring the wife’s evidence over that of the husband. In the course of the learned Counsel for the father’s written submissions the expression “blanket findings” appears. That expression was also used in the course of learned Counsel’s oral submissions. It is a reference to the passage of her Honour’s Judgment at paragraph 50, where her Honour said:
50.All matters considered, I am satisfied the evidence of the mother and her witnesses are to be preferred to the extent that there is conflict with the evidence of the father and his witnesses if it is not otherwise shown to be implausible or improbable.
With respect to learned Counsel for the father, to suggest that the issue of credit which clearly assumed very considerable significance in the determination of the proceedings before her Honour was simply a blanket finding is to overlook the passages of her Honour’s Judgment commencing at paragraph 32, under the heading “Credit”, and concluding some 18 paragraphs later with the passage appearing at paragraph 50. With respect to learned Counsel for the father, having read paragraphs 32 to 50 it simply cannot be successfully asserted, as Ground 5 contends, that the trial Judge’s reasoning process was not adequately revealed, as that requirement is known and understood in the light of the authorities which were summarised in Bennett & Bennett. In what way her Honour could have more clearly revealed the reasoning process which led her to the conclusion in paragraph 50 has not been suggested and, with respect, that is by no means inadvertent.
So far as the inconsistencies were concerned, as a reading of her Honour’s consideration of credit makes clear, her Honour was well aware of the very inconsistencies which are referred to in this challenge. Without referring in detail to the various submissions which have been agitated on behalf of the father in support of these challenges and, with respect to his learned Counsel, without being critical of the failure to do so, we have not been referred to any evidence before the trial Judge which precluded her from making the findings she did with respect to credibility. That is not said critically because, having regard to the matters to which her Honour referred and the matters to which her Honour, as she foreshadowed she would, subsequently referred in the course of dealing with other issues, not only were clear and logical reasons for the credit finding provided but they were subsequently underpinned and, one could say, re-underpinned. Nothing to which learned Counsel for the father has been able to refer us persuades me, to use the language of the authorities, that the trial Judge palpably misused her advantage as the trial Judge. I would reject the challenges articulated in Grounds 4 and 5.
Ground 6 provided that the trial Judge erred in the exercise of her discretion in relation to the weight which she gave to the evidence of Dr J, a psychiatrist who the wife had consulted on approximately 20 occasions during 2005 and 2006. The trial Judge concluded at paragraph 95 dot points one and two that the mother did not, has not and does not suffer from mental illness as diagnosed by Dr J, nor did she have borderline IQ or intellectual impairment, being of at least average intelligence.
The submissions on behalf of the father in relation to this topic do not make reference to Dr T. The trial Judge, however, did refer to Dr T and Dr T’s evidence is not without significance in terms of the weight which the learned trial Judge was able to give or decline to give to the evidence of Dr J, for the reasons which her Honour clearly stated. At paragraph 49 at her Honour referred to Dr T’s evidence, which was consistent with that of Dr Q, the evidence of both of those experts being at variance with the evidence of Dr J. Her Honour at paragraph 56 again referred to the evidence of Dr T, describing it as “unquestioned.” Not surprisingly, in those circumstances, her Honour accepted Dr T’s evidence. There is no suggestion on behalf of the father that her Honour was in error in her categorisation of Dr T’s evidence or her acceptance of it.
At paragraphs 57 and following the learned trial Judge carefully examined, and examined in some detail, the evidence of Dr J. Her conclusions in relation to his evidence are based upon the findings made by her in the paragraphs which commenced at paragraph 57 and conclude at page paragraph 70. It was submitted, not insignificantly, in support of this challenge that the trial Judge had not given sufficient weight to the evidence of Dr J. Again, in this context, learned Counsel for the father recognised the very substantial hurdle which confronted this challenge. The trial Judge’s Reasons for Judgment in relation to credibility to a limited extent impacted on this topic. Perhaps more significantly, it was the reality that the evidence of Dr Q was not shown and has not, in my view, been shown to have been other than capable of acceptance. The evidence of Dr T clearly was entitled to have been accepted, having not been challenged. In those circumstances, other than for reasons which have not been able to be agitated on behalf of the father, no basis for concluding that the trial Judge failed to give adequate weight to the evidence of Dr J has been demonstrated. I would thus reject Ground 6.

The next ground which was agitated on behalf of the father is Ground 9. That ground asserts that the trial Judge erred in failing to give weight to the evidence of the husband’s mother in circumstances where the husband’s mother had the opportunity over several years to observe the wife and J together. The trial Judge referred to the evidence of the husband’s mother in a number of places in her Reasons for Judgment. At paragraph 5 her Honour referred to the fact that the parties for the first two years or so of their marriage, which occurred in 2002, had lived with the father’s family. Her Honour then, at paragraph 9 referred in some detail to evidence given by members of the father’s family. At about the mid point of paragraph 9, commencing with the words, “broadly expressed,” the trial Judge summarised what she understood, correctly there is no doubt, to have been the purpose of the evidence which had been thus adduced; that being:
9.…to establishing that the mother had an angry and aggressive disposition, at times her behaviour was violent and her language vulgar and offensive; she was incompetent and inattentive to the child; ….
It goes without saying that there was an understandable measure of partisanship in the evidence adduced by the witnesses on both sides of this case. It is clear beyond doubt that the learned trial Judge had reservations or qualified her acceptance of evidence for reasons which she detailed in the paragraphs of her Judgment examining the issue of credibility. At paragraph 25 the learned trial Judge set out in some detail evidence given by the father’s mother. It is clear that, whilst some of that evidence was of very considerable antiquity; for instance, paragraph 25, subparagraph (1), other parts of the evidence were related to later periods in the life of the child.
Her Honour may have given this evidence more weight than she did. That is not the test, any more than would be the test of what weight any member of this bench may have given to the evidence as a trial Judge. Her Honour saw and heard the witnesses, and made a credit finding which I would not disturb, the consequence of which was that where there was conflict in the evidence her Honour was entitled to prefer, as she said in paragraph 50 of her Judgment, being the evidence of the mother and her witnesses to the evidence of the father. Her Honour did have regard to this evidence. Of that there can be no doubt. She took it into account. It ultimately did not have the significance which Counsel for the father contends it should have had.
Quite apart from the fact that, having made the credit finding which she did, the trial Judge was able to take this evidence into account without the evidence having that effect, the expert evidence to which her Honour referred extensively, and accepted in ways which were helpful to the case of the mother, is also relevant to this challenge.
In his written Summary of Argument learned Counsel for the mother at paragraph 21 referred to another part of Kirby J’s Judgment in AMS v AIF, AIF v AMS (1999) FLC 92-852 at 86,042-3:
…an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge's reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.
I am not persuaded that the trial Judge gave impermissibly insufficient weight to the evidence of the husband’s mother. I would reject this challenge. I conclude on this topic by recording that this Court has not been referred to any evidence before the trial Judge from the husband’s mother which it has been suggested that her Honour failed to take into account in the exercise of her discretion.
The final ground of appeal which was agitated on behalf of the father, Ground 12, provided that the trial Judge failed to give adequate weight to video‑taped evidence tendered into evidence showing the child’s distress after a period of separation of about one month. That evidence was contained in Exhibit 14, which is described as a DVD recording taken by the father’s brother at a child care centre, recording the child distressed after being separated from the father for about one month. The evidence was suggested not to have been referred to by the trial Judge in any detail. Properly considered, it was submitted on behalf of the father that the evidence would have impacted upon the trial Judge’s conclusions with respect to the evidence of Dr Q and particularly her Honour’s conclusion at paragraph 94, subparagraph (3), that the child showed more attachment‑seeking behaviour towards others in the family than towards the father. Her Honour was not obliged, as the authorities make clear, to refer to all of the evidence to which she had regard.
This evidence could not, in my view, if accepted, have precluded her Honour in the circumstances as they emerged clearly from her Reasons for Judgment, from accepting the conclusion of Dr Q to which learned Counsel for the father has referred. Not insignificantly for the purposes of this challenge, we have not been referred by learned Counsel for the father to any cross‑examination of Dr Q in relation to either the DVD itself, or its contents. It might also be noted, as the ground makes clear, that this is a weight challenge. Nothing to which this Court has been referred persuades me that the learned trial Judge failed to give adequate weight to the video-taped evidence complained of in this ground.
No ground of appeal having been established, the application for leave to adduce further evidence lacking merit, I would dismiss both the appeal and the application for leave to adduce further evidence.

MAY J

I agree entirely with the reasons of the learned presiding Judge. I also would dismiss the application for further evidence and dismiss the appeal.

STRICKLAND J

I agree with the reasons given by the learned presiding Judge and I too would dismiss the appeal and dismiss the application.

COLEMAN J

Counsel for the mother and Counsel for the ICL have both sought orders for costs of the appeal. Counsel for the ICL quantified the costs sought in the sum of $3000. Quite properly and, with respect, responsibly, learned Counsel for the father has said nothing in opposition to that figure. Having regard to the sorts of costs orders that are made it is, in my view, a reasonable sum to award. Counsel for the mother is not in a position to quantify his client’s costs in that sum or any other but, with respect, in a sensible, pragmatic way has made no submissions in opposition to this Court assessing costs in the sum of $3000. There are cases where the Court is disinclined to do that. For my part, this is not such a case. The cost of potentially putting the parties to an assessment is disproportionate to the possible utility of that exercise. Counsel for the father has resisted any order for costs, it can I think accurately be said, essentially on the basis that, although he did not use the word “impecunious,” his client is impecunious.
The application is governed by the provisions of Section 117(2A) of the Act, the most significant of which, in my view, is that the appeal and application for leave to adduce further evidenced were wholly unsuccessful. As Counsel for the father’s submissions sensibly recognised, the prospects of success in the appeal and the application for leave to adduce further evidence were always limited, to put it probably at its highest. The law governing the various challenges agitated on behalf of the father is not in doubt and has been well settled for a very long time. Those who come to this Court seeking to agitate appeals, as is their right, must accept against that background that other parties, who were put to the expense of coming to Court and being wholly successful in their resistance of the appeal and application for leave to adduce further evidence, ought not lightly be put in a position where, though totally successful, they are left entirely out of pocket. It is significant in this regard also that any order for costs on a party:party basis does not, if recovered, result in that the party benefiting from such order as they are still, to some extent at least, out of pocket in relation to solicitor/client costs.
To the extent that the mother and the ICL are the beneficiaries of legal aid via the public purse, taking into account those realities would not, in my view, operate to preclude this Court from being satisfied that circumstances justify the making of costs orders. For my part, I would not accept that the public purse ought be put upon in that way. To the extent that the father asserts that he is impecunious, as learned Counsel for the ICL has succinctly pointed out there is more to that than meets the eye. He has been represented by privately funded Counsel and attorneys at trial and before this Court. How that came about we do not know nor need to know. It would not, in my view, in the circumstances of this appeal which, with respect, has been comprehensively wholly unsuccessful, be appropriate in those circumstances to decline to make costs orders which are thoroughly deserved in reliance upon some asserted impecuniosity. I would make costs orders in favour of the respondent mother and the ICL in each instance in the sum of $3000.

MAY J

I agree with the learned presiding judge that there are circumstances, in this case, which justify an order for costs as identified by him. And I would also make an order that the appellant husband pay the costs of the respondent mother and the independent children’s lawyer.

STRICKLAND J

I agree with the reasons delivered by the learned presiding judge and I too would make orders for costs in the same terms.

I certify that the preceding sixty (60) paragraphs are a true copy of the Reasons for Judgment of the Honourable Full Court

Associate:

Date: 25 November 2009