Darcy & Cameroon
[2008] FamCAFC 165
•3 November 2008
FAMILY COURT OF AUSTRALIA
| DARCY & CAMEROON | [2008] FamCAFC 165 |
| FAMILY LAW – APPEAL – INTERIM PARENTING ORDERS – Orders made that the child live with the father and have supervised contact with the mother – Domestic violence – Complaints that the father uses excessive physical force and uses cannabis when caring for the child – Father denies excessive use of physical discipline – Psychologist report indicates that the child has been affected by a loyalty conflict between the parents – Matter Urgent. FAMILY LAW – APPEAL - APPLICATION – Application to adduce further evidence – allowed in part. APPEAL – Dismissed. COSTS – No order as to costs. |
| Family Law Act 1975 (Cth) |
| CDJ & VAJ(No 1) (1998) 197 CLR 172 |
| APPELLANT: | MS DARCY |
| RESPONDENT: | MR CAMEROON |
| FILE NUMBER: | ADC | 928 | of | 2007 |
| APPEAL NUMBER: | SA | 12 | of | 2008 |
| DATE DELIVERED: | 3 November 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Warnick, May & Boland JJ |
| HEARING DATE: | 16 October 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 February 2008 |
| LOWER COURT MNC: | [2008] FamCA539 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Appellant appeared in person |
| COUNSEL FOR THE RESPONDENT: | Mr Bowler |
| SOLICITOR FOR THE RESPONDENT: | Ian Charman & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Boehm |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | J Richard Croft, Lawyer |
Orders
That the appeal be dismissed.
That there be no order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Darcy & Cameroon 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 ADELAIDE |
Appeal Number: SA 12 of 2008
File Number: ADC 928 of 2007
| MS DARCY |
Appellant
And
| MR CAMEROON |
Respondent
REASONS FOR JUDGMENT
The Issue
This is an appeal against an interim order made in February this year about the parties’ daughter T, then nine years old. The judge expected that a trial would be heard in March or April of this year. Unfortunately, the trial has still not been heard.
Leading up to the making of the order appealed, the child was spending week about with the parents. The interim order appealed, which we will shortly set out more fully, provided that for the short time with which it dealt, the child live with the father and have supervised time with the mother. The major plank of the mother’s appeal rested on documents which she wished to place before us as further evidence. She argued that had his Honour understood the seriousness of her allegations against the father, the interim order could not have been made. She asked that the Full Court either allow the child to live with her to the exclusion of the father or live with a third person.
The father and the Independent Children’s Lawyer oppose the appeal.
We must determine two questions:
1.Should the numerous documents of various dates attached to the mother’s affidavit be admitted as further evidence; and
2.Has the mother demonstrated that the order made by Burr J should not have been made having regard to the usual principles in relation to appeals from discretionary judgments.
To answer both these questions there needs to be some appreciation of the application before his Honour, the evidence and the nature of the orders.
On 29 February 2008, Burr J heard the applications of the mother. She asked the Court to make orders that the parties’ child T, born in July 1998 spend no further time with the father.
The orders made by his Honour included the following:
9.All existing parenting Orders in relation to T be suspended to the intention that any injunctions and protections for T remain in place as previously ordered.
10.T live with the father UPON NOTING the intimation of the father that he will personally supervise T at all times other than during periods when she is at school.
11.T spend time with the mother only in circumstances supervised by any of the Children’s Contact Services (“CCS”) in the State of South Australia and for such periods of time as the CCS can offer and facilitate in the short term.
12.Subject to paragraph 11 hereof, the mother is restrained and an injunction is hereby granted restraining the mother from having any contact with T and specifically from attending upon or remaining within 1 kilometre of T’s school.
13.The father be restrained and an injunction is hereby granted restraining the father from:-
(a) physically disciplining T in any way;
(b)discussing these proceedings with T or any aspect of the allegations that have been raised within the context of these proceedings and from permitting any other person to do so;
(c) consuming or using cannibis [sic] in any of its forms.
14.The Independent Children’s Lawyer consult with such doctors or therapists as are appropriate in order to determine whether it is appropriate to reinstate therapy for T.
In his judgment, his Honour recognised that this was a substantial alteration to the existing arrangements.
His Honour’s decision was primarily based on a report received from a Dr Asquith dated 25 February 2008 and to a lesser degree from a report dated 28 June 2007 from Families SA.
In the interim proceedings the mother filed several affidavits in which she made allegations against the father of serious domestic violence against her and also physical abuse of the child together with use of cannabis while the child was in his care.
The immediate difficulty facing the mother in the appeal is the terms of the order and the intention of the trial judge expressed in the judgment as follows:
29.In my view the third option proposed by Dr Asquith is the one the Court should adopt for what I emphasise is a short period of time. It could well be that the evidence ultimately demonstrates the position to be otherwise, but I am comfortable that, at least on a preliminary basis, [T’s] best interests would be served by residing with her father until the trial, if it is reached in the week of 25 March, or the further directions hearing before Strickland J on 28 March, when further matters, if available, can be considered.
Whilst we may observe that it is indeed unfortunate that the trial has not yet been heard on its merits, it seems that the circumstances as appreciated by Burr J required some action. Since then, various orders have been made. We were told that the hearing of the trial may have been delayed by reason of the mother’s appeal and there may be other reasons. In any event, in view of the most serious allegations made by the mother it is a great concern that the matter has not been heard earlier. It was clearly envisaged by Burr J that the matter would be heard in March or soon after.
The Interim Hearing
It seems that two applications were filed by the mother on 11 May 2007, one for final orders and the other seeking interim orders. It was not apparent, at least to us, why an application filed in May was not heard until February the following year. Again there may some explanation about which we were not told.
The mother also filed an application on 7 June 2007 but that application was not referred to in the judgment. It asked that the time the father spends with the child be suspended immediately. An application was also filed on 18 January 2008 by the mother. The application and the affidavit asked that the Independent Children’s Lawyer be dismissed, that the father’s time with the child be suspended and various other orders. The orders and judgment in this appeal do not make reference to that application.
As it was an interim hearing there was no cross examination of any witnesses.
It is appropriate to refer to the material placed before his Honour by the mother. Her principal submission to us is that the trial judge failed to acknowledge that the child had been affected by the father’s domestic violence and that he failed to take the violence into account. She says that the judge wrongly “blamed” her for the emotional state of the child as observed by Dr Asquith rather than the child’s “state being attributed to domestic violence”. The mother emphasised in her submissions to us that there was no evidence that she had abused the child whereas all the evidence pointed to the father as the abuser.
At the same time as the applications were filed on 11 May 2007, the mother filed several affidavits. In the first there were complaints about difficulties associated with the child’s birthday. Of more significance there was reference to a number of occasions when the mother observed bruises on the child, statements by the child in relation to her relationship with the father and the distress of the child. The mother also referred to the father’s use of cannabis. The mother attached a certificate of conviction for possession dated 17 October 2006 and alleged that on occasions the father had used the drug when he was responsible for the child. The use of the drug was in breach of orders made by this court.
In a second affidavit filed 11 May 2007 the mother attached a certificate in relation to domestic violence orders made against the father in 1999.
In support of her allegation about the father’s abuse of the child, an affidavit of Miss M was filed on the same date. In this affidavit Miss M, who described herself as a child care worker, explained that she was employed at the after hours school care centre where T attends. She overheard the child speak to other children on 26 June 2006 and say that her father hits her. Miss M reported this statement to the appropriate authorities.
Further affidavits were filed by the mother on 7 June 2007 in which she continued to allege that the child was being hit by the father when she was in his care, based on statements made by the child to her. The mother detailed her complaints to the police and the Port Adelaide Family Violence Investigation Unit.
The father also filed a number of affidavits on 4 September 2007 and 19 September 2007. For the purpose of this appeal it is only necessary to observe that in these affidavits the father denied the use of excessive physical discipline on the child. The father expressed considerable concern about the influence of the mother on the child and the effect that it was having on his relationship with the child.
In the affidavit filed on 19 September 2007 the father denies that he has used drugs in the presence of the child.
Further affidavits were filed by each of the parties which simply reveal the controversy between them. The account each gives of an incident at a hospital on 24 July 2007 is merely another example it seems of the parties having widely different views of events. As his Honour correctly observed, these are matters for the consideration of the trial judge.
The Judgment
In our view, the trial Judge appreciated the nature of the application by the mother before him and her evidence. Stated simply, his Honour’s reliance on the experts’ reports rather than the evidence of the parties which was controversial for the purpose of making an interim order in respect of a very limited period, was in our view a course well open to him.
To demonstrate the process by which his Honour came to the orders and the evidence upon which he relied it is necessary to consider carefully what his Honour said in his judgment.
His Honour referred particularly to two reports, one dated 28 June 2007 from Families SA and the other from a psychologist, Dr Asquith, dated 25 February 2008. In relation to the report from Families SA his Honour set out a considerable amount of the report in his judgment. This included the following:
17.Further, at page 2 in the last paragraph, Families SA record this:
“The notifier reported that the mother is now too frightened to report anything for she fears the child will return from her father's harmed. However, there appears to be no factual basis for such a fear.”
18I might add that the next few sentences are alarming.
“From the year 2000 to present date, Families SA have received a total of 42 notifications of child abuse and neglect regarding [T]. All except one are as against the father. 38 of the total notifications feature concerns from the same notifier or informant. 32 of the total number of notifications were assessed as not meeting the criteria for child protection and subsequent intervention. Of the seven that did meet criteria for intervention, four were investigated and none substantiated.”
19.On page 3 of their report Families SA record this in the third paragraph:
“Following interviews with [T] and the father, Families SA are unable to substantiate concerns that [T] may be unsafe in the care of her father. However, concerns remain with regard to her level of knowledge of Family Law Court and Families SA processes, as well as what appears to be her sense of need to provide her mother with evidence to win in the Family Law Court.
Of great concern to Families SA is the pattern of repeated and possibly vexatious notifications of child abuse and neglect against the father. Families SA are concerned about the exposure of [T] to an increasing number of professionals and the potential for this to have a negative impact on her.
Similarly, Families SA are concerned that [T] feels a responsibility to each of her parents and the likely emotional impact caused by her clear knowledge of the acrimonious relationship that exists between the parents. This was further evidenced when it became apparent that the mother had detailed information from the interview that Families SA conducted with [T] that could only have been obtained through extensive questioning of [T].
The notifier reported their belief that [T] was being kept prisoner at her father's place against her will, which was why she was not at school for three days: Monday, Tuesday and Wednesday. The Monday was a public holiday. Tuesday's absence was adequately explained due to a tooth problem and Wednesday's absence was because the tooth was being treated with a procedure at the dentist. The notion that [T] was being kept prisoner against her will is completely unfounded. Families SA understands that this report may be used in the Family Law Court.
It is not the role of Families SA to form a view as to which parent a child should reside with. Rather, Families SA ascertain the safety of a child whilst in the care of both parents. Nothing has been found to substantiate any concerns that [T] is in any way being physically abused by her father. However, Families SA are of the view that the poor relationship between the parents is most likely to be having a negative emotional impact on [T]. [T] spoke of imaginary friends and problems with peer relations which could possibly be indicators that she has already been impacted. Families SA are of the view that continued conflict between the parents to which [T] is exposed will constitute grounds for emotional abuse.
In relation to Dr Asquith’s report his Honour set out parts of her report in the judgment and explained his reliance on her evidence:
22.A very similar thread and theme emerges from the most recent report that I commissioned from Dr Merrylyn Asquith, that report being dated 25 February 2008. Dr Asquith reports that at first instance - and this appears at paragraph 13:-
“[T] aged nine years presented as a nervous and voluble child who appeared to have difficulty maintaining eye contact. Whilst this child appeared unsettled and unable to focus on one topic initially …..”
She recorded, however, that she appeared to be developmentally age appropriate and that she was able to articulate her views and spoke in language that was age appropriate. However, Dr Asquith then reports that she settled into a more comfortable frame of mind as the writer spoke with her of the child's interests.
23.When I first read the report and I came to paragraph 26 I thought that there had been a significant breakthrough and that [T] was well and truly in charge of her own destiny. Paragraph 26 records:
“[T] concluded by saying that ‘Just tell them to stop arguing. Give the judge a break, and me. I think I want a holiday.’”
24.Dr Asquith reported what [T] had said to her to each of the parents. The father seemed accepting of those matters that had been reported. Interestingly, [T] had proposed her own solution to the problem which was that she wanted to do fortnightly arrangements; live two weeks with her father and then two weeks with her mother.
25.Within a very short time of the mother leaving the premises of the Family Court with [T] Dr Asquith was informed - and when I say "a short time" it was about one hour later - that [T] and the mother had returned. The difference in [T’s] presentation from an hour or so before to that moment was dramatic and incredibly alarming. There is a fair deal of detail provided by Dr Asquith in her report about it, but at paragraph 35 she records this - being her presentation after she had returned to the court:
“The child was very distressed, sobbing, pulling at her hair, wringing her hands and kneading her eyes as she sobbed. The child was visibly distraught and unable to compose herself. [T] then reported, through tears, as she stared down at her lap, she had made a mistake re the fortnightly request. She then changed her views as to what she wanted to do about the arrangements between the parents.”
26.In paragraph 36 Dr Asquith records this:
“[T’s] presentation was consistent with that of a child who simply, without great suffering, is unable to contend with her parents' conflict. She gave every impression of a child who had been, without thought for her wellbeing, rendered into an unbearable loyalty conflict.”
…
28.Dr Asquith then proposes four options. Having an understanding of the history of the matter and having grave concerns for [T’s] wellbeing, I have formed the preliminary view - and I emphasise that it is preliminary, as these matters need to be determined regrettably yet again by trial - that the greatest problem in [T’s] life at the moment is her mother. The difference between the time [T] left this Court building, after being a relatively composed child with a firm view as to what care arrangements ought to be in place for her and returning to the Court in a state which clearly alarmed Dr Asquith, is of enormous concern to me and would be to anybody else who reads the report.
29.In my view the third option proposed by Dr Asquith is the one the Court should adopt for what I emphasise is a short period of time. It could well be that the evidence ultimately demonstrates the position to be otherwise, but I am comfortable that, at least on a preliminary basis, [T’s] best interests would be served by residing with her father until the trial, if it is reached in the week of 25 March, or the further directions hearing before Strickland J on 28 March, when further matters, if available, can be considered.
Application to adduce further evidence
The mother filed an application asking that further evidence be considered in this appeal. She filed a voluminous affidavit with numerous attachments, the dates of the attachments varying from 2002 to more recent times.
In the affidavit filed by her to support this application she asked that the Court consider these documents in relation to the issue of domestic violence and the child’s emotional health. In paragraph 3 of that affidavit the mother said:
3. I ask that the full court hear my case due to the complexity of my case. I feel that this matter is [sic] complicated to expect one single judge to have to deal with.
It seems that the mother expected that rather than hearing the appeal and a possible re-exercise of discretion this court could decide the matter finally based on documents she wished to place before us.
Without discussing each and every document it can be observed that there are many no doubt relevant documents including letters from medical practitioners, documents taken from various government organisations and documents no doubt produced as a result of complaints made to various authorities by the mother. Although these documents may be highly relevant in a trial it could not be said that on the hearing of an appeal we should take into account this material in some way.
The application was opposed by the respondent and the Independent Children’s Lawyer.
Section 93A(2) confers on the court an express power to receive further evidence upon questions of fact. In CDJ & VAJ(No 1) (1998) 197 CLR 172 the High Court said of the admission of the further evidence under the heading of s 93A(2) at par 104:
In the exercise of the discretion conferred by a power such as s 93A(2) the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion.
And in par 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 appellant 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.
And in par 111, and we quote in part from that paragraph:
The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
Without dwelling on the dates of many of these documents which would reveal that they no doubt could have been placed before the judge hearing the interim application, most importantly it is clear that where this evidence is relevant and admissible it could be made available at a trial. The application is refused primarily because given its controversial character, it does not demonstrate that the interim order made by Burr J is erroneous.
Conclusions
It is clear to us that his Honour was extremely mindful of the serious allegations made by the mother in relation to domestic violence and child abuse. It can be seen, prior to paragraph 33, sub paragraph (b) of s 60CC(2) was set out:
(b)the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.
33.I believe the reasons that I have already indicated have covered that situation and I have had regard to all available material presently before the court. That issue will remain the Court's concern, almost certainly, through the interim stages and at the final hearing of these proceedings.
And then later at paragraph 45 after reference to the sub headings (j) and (k) contained in s 60CC(3):
(j)any family violence involving the child or a member of the child's family;
and
(k)any family violence order that applies to the child or a member of the child's family; if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
45.These sub-sections require me to consider issues of family violence. This is a matter raised by the mother. No finding of any court so far has supported her in relation to her concerns in that regard and the recent report of Families SA has not found any support for the mother's allegations. However, there are serious criminal proceedings against the father, to be determined in the criminal courts, which are related to a serious alleged assault upon her by the father. On the father's case, he alleges that on that day the mother assaulted him. So there are clearly issues of family violence that are yet to be resolved and may mean that the Court takes a very different view of the likely outcome at the conclusion. However, these are to be explored.
A key paragraph of his Honour’s decision is as follows:
40.Clearly, the order that I propose now to make will change [T’s] circumstances. She will not be spending each alternate week with her mother, pending trial or pending further directions orders made by Strickland J on 28 March 2008. However, it was the likely effect upon [T] of leaving her in her present situation that gave rise to the greatest concern for the Court and the changes that I propose to order in my view are required and dictated by the preliminary reports and indications the Court has received from independent experts in the area.
It can be seen from the judgment that reference is made to previous decisions of the Court about the parties. They included the decisions of Dawe J in relation to the mother’s evidence given to the court in previous cases about parenting, where the issues included abuse of the mother and the child. It was submitted by the mother that the judge should not have relied on the findings of another judge at a different time. In our view, the references to the earlier decisions were merely a matter of background.
It is quite clear that the evidence which caused his Honour to make the orders was that to which we have already referred.
The mother is unable to demonstrate to us any error in the orders made nor any basis upon which the appeal should be allowed.
Costs
Counsel for the father did not ask for costs should the appeal fail. Counsel for the Independent Children’s Lawyer said he had no instructions to ask for costs. We will make no order.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 3 November 2008
0