Dennett & Norman - [2007] FamCA 57

FAMILY COURT OF AUSTRALIA

DENNETT & NORMAN

[2007] FamCA 57

FAMILY LAW – APPEAL FROM DECISION OF FAMILY COURT JUDGE – CHILDREN – Competing residency applications between the appellant mother and the paternal grandparents of the child – Role of the grandparents in parenting the child – Exercise of discretion – Alleged deceptive and misleading conduct by the step-grandmother – Whether the trial Judge acted on a wrong principle in failing to proceed on a presumption in favour of the child residing with the parent, rather than with other parties - No presumption of parental responsibility in favour of the mother as the biological parent - Appeal dismissed.

FAMILY LAW – APPEAL – EVIDENCE – Admissibility and use of expert evidence – Definition of an expert witness – Whether the trial Judge erred in admitting into evidence the affidavits and testimony of the school guidance counsellor - Allegation of bias not supported by the facts.

FAMILY LAW – APPEAL – EVIDENCE – Admissibility of evidence of a child’s wishes – Whether the admission into evidence of the child’s diary and a letter addressed to the trial Judge written by the child was contrary to public policy – Family Law Act 1975 (Cth) S 100B (now S 69ZV) – Exception to the hearsay rule – Obligation of a Judge to consider such matters.

B & BFamily Law Reform Act 1995 (1997) FLC 92-755
Bennett & Bennett (1991) FLC 92-191
D & F (unreported) [2001] FamCA 382
Gronow & Gronow (1979) 144 CLR 513
Hodak v Newman (1993) FLC 92-421
Makita (Australia) Pty Ltd v Sprowles 2001 NSWCA 305
Re Evelyn (1998) FLC 92-807
Reynolds & Reynolds (1973) 47ALJR 499
Rice v Miller (1993) FLC 92-415

Family Law Act 1975 (Cth)

APPELLANT:

DENNETT

RESPONDENT:	NORMAN
SECOND RESPONDENTS:	NORMAN & NORMAN

INDEPENDENT CHILDREN’S LAWYER:

LEGAL AID (QLD)

FILE NUMBER:

BRF

713

2005

APPEAL NUMBER:

2006

DATE DELIVERED:

13 February 2007

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

Kay, May & Boland JJ

HEARING DATE:

11 May 2006

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

17 February 2006

LOWER COURT MNC:

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Foley

SOLICITOR FOR THE APPELLANT:

Rowell, Gill & Brown

COUNSEL FOR THE RESPONDENT:

Mr Cameron

SOLICITOR FOR THE RESPONDENT:

Blake Topping

COUNSEL FOR THE

SECOND RESPONDENTS:

Mr Cameron

SOLICITOR FOR THE

SECOND RESPONDENTS:

Blake Topping

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Ms Hogan

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Legal Aid Queensland

Orders

That the appeal be dismissed.
That there be no order as to costs.

FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 17 of 2006
File Number: BRF 713 of 2005

DENNETT

Appellant

And

NORMAN

Respondent

And

NORMAN & NORMAN
Second Respondents

REASONS FOR JUDGMENT

In a Notice of Appeal filed on 16 March 2006 on behalf of the mother against parenting orders made on 17 February 2006 it is asked that the child, a girl born 17 March 1995 live with her should the appeal be allowed. The other parties are Mr Norman Senior and Mrs Norman, who are described as the grandparents, and the father, Mr Norman.

Factual Background

Apart from some matters to which further reference will be made later in the judgment the key facts are uncontroversial. The paternal grandfather was born in 1945 and the paternal step-grandmother was born in 1954. They have been married since 1977 having commenced living together in 1972.
The parents of the child began living together in 1994 and the child was born the following year. The parents lived together intermittently. The mother has three other children who are young adults. The parents separated in July 1996 although the father continued to see the mother and child. The mother, the child and her brothers and sisters moved to New Zealand in February 1997. In October 1997 they returned to Brisbane and the grandparents assert that from this time the child has largely lived with them. Certainly, the child started school in the year 2001 at a Catholic primary school in Brisbane and has lived with the grandparents during most of the week since then, as found by the trial Judge.
There is a dispute as to the agreement between the grandparents and the mother about the arrangements for the child, which culminated in the mother filing an application on 16 March 2005 asking for residence. The grandparents, in response, asked that the child live with them and that she have contact only with her mother.
On 14 April 2005, complicated consent orders were reached which included that the child spend time with both the mother and father every weekend. The orders also provided for shared responsibility. Further orders were made by consent on an interim basis on 27 June 2005, including that each party have responsibility for the child’s day to day and long term care welfare and development; that the child reside with the grandparents from the end of school on Monday until the commencement of school on Thursday of each week, and otherwise with her mother; school holiday arrangements; and various other complicated specific issue orders.
A further application was filed by the mother on 29 July 2005 in relation to contact with the father and specific issues in relation to attendance at extra curricular activities.
The grandparents responded by filing an application on 19 August 2005 seeking an expansion of the time that the child lived with them. On 13 October 2005, orders were made to allow the child to attend upon the school guidance counsellor and that the matter be heard urgently. The trial was heard by Bell J commencing 13 March 2006.

Grounds of Appeal

Although there are nine grounds of appeal, counsel for the mother explained at the outset that they could be dealt with under four headings as follows:
(1)Grounds 7 and 8, that the mother should be preferred over the grandparents in this case and that is consistent with principle or ought to be the law in this country;
(2)Grounds 4, 5 and 6, matters described as largely of process;
(3)Grounds 1, 2 and 3, that one witness should not have been preferred over the other; and
(4)Ground 9, the weight of admissible evidence.
The relevant parts of the orders made by Bell J on 17 February 2006 are as follows:
(1)That the Child, born 17 March 1995, [reside with] the Paternal Grandparents.
(2)That subject to Order 3 hereof, the Mother, the Father and the Paternal Grandparents, are all jointly responsible for [the child’] long term care, welfare and development.
(3)That the parties maintain [the child’s] enrolment and attendance at [her current] primary school until she completes Year 7.
(4)That [the child] have contact with her Mother, as follows:
Weekend Contact
i.each alternate weekend from after school on Friday to before School on Monday, with her mother to collect [the child] at school on Friday afternoons and deliver her to school on Monday mornings.
Holiday Contact
ii.Subject to Order 8 hereof, for one half of the school holidays being the first half of each holidays period in even numbered years and the second half in odd numbered years.
iii.from noon on 25 December 2007 to 5 pm on 26 December 2007 and each alternate year thereafter.
Other Contact
iv.On [the child’s] Birthday, if it falls on a school day, by telephone at 6.30 pm AND if it falls on a weekend, but not a contact weekend, for a period of not less than 4 hours on [the child’s] Birthday.
v.On Mother’s Day, if it falls on a non-contact weekend, from 9am to 5 pm with the Paternal Grandparents to deliver [the child] to her Mother’s residence at the commencement of contact and the Mother to return [the child] to the Paternal Grandparents residence at the conclusion of contact.
vi.By telephone each Wednesday at 6.30 pm, with the Mother to instigate the call and the Paternal Grandparents to ensure that [the child] is available to speak to the Mother
(5)That the Father have contact with [the child] at all times as may be agreed upon between the Paternal Grandparents and the Father, provided that any such contact does not coincide with contact that pursuant to these Orders [the child] is to have with her Mother AND that until such time as the Father is able to produced to the Paternal Grandparents and the Mother confirmation in writing from Mr [M] that the Father has successfully completed his treatment program with Mr [M], then contact will only occur in South East Queensland.
…
(11)That unless otherwise provided, changeover for contact is to occur by the Mother collecting [the child] from the Paternal Grandparents residence at the commencement of contact and the Paternal Grandparents to collect [the child] from the Mother’s residence at the conclusion of contact.
(12)Each party or their nominee will notify the other parties of any medical or other emergency concerning [the child] as soon as practicable of that situation arising but in any event within 12 hours.
(13)Each the Mother, the Father and the Paternal Grandparents will be responsible for [the child’s] day to day care, welfare and development whilst she is in their respective care.
(14)That neither party denigrate the other, or any member of their household or family to or in the presence or hearing of [the child].
(15)That neither party discuss these proceedings or the issues raised in these proceedings with or in the presence or hearing of [the child].
(16)During all holiday periods when [the child] is with the Mother, that there be telephone contact with the Paternal Grandparents on Tuesday and Thursday at 6.30 pm with the Mother to initiate the call with [the child] being made available to speak on the phone and when [the child] is with the Paternal Grandparents or the Father, that there be telephone contact with the Mother on Tuesday and Thursday at 6.30 pm with the Paternal Grandparents or the Father as the case may be, to initiate the call to the Mother and ensure that [the child] is available to receive the call.
…
(18)That each party is hereby authorised to obtain from [the child’s] school at their own expense copies of any reports, newsletters or other information, photographs or publications relating to [the child] as they may request from time to time.
(19)That each party will provide to the others contact details of any medical practitioners, dentists or specialists that [the child] may consult from time to time and each party is hereby authorised to obtain at their expense, copies of reports, test results or such other information as they may request from time to time.
(20)Each of the parties, will ensure that [the child] attends any extra curricular activities that [the child] may be engaged whilst she is in each parties respective care PROVIDED THAT neither party will enrol [the child] in an activity in which she is not at the date of these Orders enrolled which would involved her being engaged in an activity whilst in any other parties care, without first obtaining the consent of all other parties.
(21)That whilst [the child] is in the care of her Mother, that the other parties do not attend any of [the child’s] extra curricular activities, school functions or social functions, without first obtaining the consent of the Mother.
(22)That to facilitate contact and [the child’s] attendance at any extra curricular activities, school, school functions or social functions whilst she is in the care of any party, all parties will ensure that [the child’s] uniforms and any necessary equipment in their possession is taken by [the child] to those activities or functions.
(23)That the child representative be discharged after a period of six (6) months and have liberty to apply upon seven (7) days notice to the parties to relist the matter for mention before the Honourable Justice Bell if there are any difficulties in relation to the above orders.

Judgment

His Honour referred particularly to the relationship between the mother and the grandparents both from an historical perspective and also in relation to the best interests of the child. The trial Judge found that a close relationship had developed between the grandparents and the mother in the past. This he found despite the mother, when she filed an affidavit in New Zealand for an apprehended violence order against the father, referred to a fear she had of an attempt on the part of the grandmother, as she is referred to in the judgment, ‘to take over the rearing of her daughter to [the father]’ (Para 4). However as his Honour said in paragraph 5 of the judgment:
‘5.Notwithstanding her fears a short time subsequent to the filing of that affidavit she and [Mrs Norman], to whom I will refer in future, purported to form an agreement whereby the mother and the father, were to have joint custody with the child and certain other arrangements were made in this document, which is part of exhibit ‘CMN1’ of the affidavit of [Mrs Norman] filed 28 October 2005. Naturally, of course, that document in no way affects this Court and is not binding upon it, although it may be an indication of the parties' belief at that time of what would be in the best interests of [the child].’
His Honour then made reference to a notation on that document being the basis of the grandparents case that the mother approved of there being joint custody with the Normans. As to such an assertion his Honour noted:
‘6.…The mother denies that this takes place and as far as I am concerned I think on all the evidence that I have heard in this case over some four and a half days and in particular her complaints about [Mrs Norman] in an affidavit which would be no more than, I think, about six weeks old at that time I do not believe that she agreed to a quadruple custody, she obviously did agree to a joint custody between herself and [the father].’
His Honour found that after the mother returned from New Zealand it was agreed that the Normans would be responsible for the education expenses of the child and that the mother would then allow the child to reside with the Norman’s. Those arrangements have continued now for a period of some five or six years.
As his Honour understood it the only dispute was the length of time per week the child resided with her grandparents and found:
‘10.…I would be satisfied to say on the evidence before me that she would have resided with the Normans for the majority of the week. Mrs Norman has conceded that on occasions the mother would have contact with the child during the working week and on most weekends and I think perhaps that is it and if in fact there is any majority in favour of the Normans it would probably be no more than four nights to three or something of that nature, but this went on for a considerable period.’
His Honour found that despite these arrangements from about September 2002 the mother expressed concerns that the grandmother was endeavouring to alienate the child from her. This concern of hers reached a high point in his Honour’s view towards the end of 2004 and the beginning of 2005. The steps then taken by the mother, his Honour found, ‘…caused an absolute disaster’ (Para 12).
The mother was also concerned about the Normans enrolling the child at primary school without her knowledge and consent originally and subsequently making no reference to her in the school’s documents in a meaningful way. Exhibit 1 is the enrolment form and his Honour found that it:
‘13.…clearly indicated that as far as the [Norman] Seniors are concerned [the child] was not residing with the mother and that the mother should not be entitled to any correspondence relating to the child itself with [the school]. As far as I am concerned I think initially that it was a deception on the part of the [Normans] Senior, particularly [Mrs Norman], in relation to the child not residing with the mother.’
His Honour rejected the evidence of Mrs Norman that she had discussed these arrangements with the mother and found that there had been somewhat of a deception by the grandparents. Although his Honour found that there had been some deceitful behaviour his Honour also found that the mother ‘herself acquiesced in this arrangement and acquiesced to such an extent that she virtually showed to the school, to the senior [Normans] and in effect to her daughter no interest in the child's education’ (Para 16). Thus, the school counsellor said in evidence that she was ‘gobstopped’ when she discovered that the child’s mother was alive (Para 18).
His Honour found that in the past five or six years the child has resided with the grandparents for the majority of the week and attended primary school locally since 2001 where ‘she had done remarkably well’ (Para 16).
The more recent difficulties between the grandparents and the mother were dealt with in some detail in the judgment. As his Honour said, on about 23 or 24 February 2005 the mother endeavoured to change the arrangements being that up until that point the child was collected by her from the grandparents’ house. The mother arrived at the school and attempted to collect the child. The school authorities resisted this because there was no notice from the grandparents that these arrangements were acceptable. The mother asked the Police to intervene however it seems that they did not wish to assist. She then went around to the grandparent’s house and became hysterical when she discovered that the child was not there. His Honour found that:
‘21.But as a direct result of that Ms [Norman] unilaterally decided that she was going to cease contact with the mother and there is a letter which is dated 4 March from her solicitors indicating that and the reason why she should do so. I think that was a terribly high-handed action on her part, an arrogant action and an action which should never have been taken and which unfortunately has caused, directly caused in my opinion, a great deal of angst, uncertainty, confusion and worry for [the child], who up until a comparatively short time before then was exhibiting all those attributes that any parent would love to have in a child of her age.
22.Since that time and slightly before then [the child] has gone downhill. [She] has become concerned that in fact her mother is going to remove her from [the school], which she dearly loves. She is concerned that her mother is going to interfere with her extra-curricular activities, of which she has many. In particular, that she will not allow her to partake as extensively as she has in netball.’
His Honour found that the first interim order exacerbated the concerns of the child and that the steps taken by the grandmother subsequently were not of assistance. For example his Honour referred to the grandmother enrolling the child in the counselling section of the school.
His Honour referred to Exhibit 17 being the report of the school counsellor dated 9 June 2005 called a Confidential Psychological Report which demonstrated the change in behaviour of the child. Considerable emphasis was placed on the evidence of the school counsellor who is an educational psychologist and employed at the school. His Honour regarded her work in assisting the child as being:
‘25.…eminently unsuccessful and, if anything, [the child’s] despair has increased. It has increased, as [the school counsellor] says, and is supported by…the welfare officer employed by the Legal Aid Commission, to become more concerned with the shared care arrangement, which is causing her great distress.
[The school counsellor] has spent at least she says 100 hours with this child since the early part of March when she first commenced counselling the child and has expressed grave concern about [the child]. At one stage the mother insisted that - being a mother - that the counselling should stop, she herself not having consented in counselling and a letter was written [the principal] and [the school counsellor] to the child's representative on 9 December 2005, wherein they were particularly concerned that not only was she showing signs of emotional distress, but also was showing signs that she may physically harm herself and/or - well, first of all run away or harm herself.’

His Honour was of the view that it would have been preferable that the mother had been involved in the counselling with the welfare officer, however:
‘29.[The school counsellor's] answer to that is that in fact she was surprised first of all that [Ms Dennett] was alive and secondly she was waiting for [Ms Dennett] to approach her in order that she may assist [Ms Dennett] to understand the difficulties under which her daughter was labouring at least whilst in the [Norman's] household and at least while at school.’
His Honour also found at paragraph 48 of the judgment that ‘…the mother’s been particularly remiss in not supporting the child during her academic career at [the school] and I do feel as though I would have some doubt about her ability to do so in future.’ Further, reference was made to the submissions of counsel for the Normans that there had been a large number of days that one of the other children in the mother’s family had missed at school.
There were two important exhibits provided to his Honour. One was a diary of the child, being exhibit 3, and the other is a letter written by the child sent to the Family Court in January prior to the hearing, which is exhibit 2. Being aware of the contents of these documents, his Honour considered the expert evidence of the Family Report writer. The trial Judge quoted from parts of the family report in paragraph 32 of the judgment.
’32.It unfortunately did not happen that way. What does it come down to? It comes down to as [the Family Report writer] says - and I must say with great respect I am somewhat surprised at her evidence - it comes down she says to in effect the following - see para 70:
(1)[The child] is still psychologically dependent on carers and no strong weight should be given to [the child’s] wishes, giving her age and developmental stage.
that also is supported by para 78.
(2)The mother is the child's biological mother and at para 84 [the Family Report writer] seems to encapsulate the whole of her recommendation in this and the following paragraph - and I quote:
"The benefits of restoring [the child] to the care of the mother would be restoration of the bond with her biological parent. The long-term consequences for children separated from biological parents can be significant. Children under such circumstances not infrequently suffer vulnerabilities associated with a perceived sense of abandonment. In turn these difficulties can contribute to having a poor self-concept and negatively impact on the capacity to form successful adult attachments."
33.Note of course that in cross-examination [the Family Report writer] wished to delete the word "restoration" and insert in lieu there "improvement" because there is no evidence before me that there other than had been up until February a bond between the child and the mother. And the next paragraph 85:
"An additional benefit in restoring [the child] to the care of the mother would be the restoration of the sibling group. A strong sibling bond can be a protective factor sustaining children as they grow and negotiate development hurdles."
34. Briefly, if I might encapsulate it.
(1)She is too young, her wishes come from a child who is too young for her wishes to be listened to with any great intensity - naturally of course wishes do not bind the Court.
(2)She has almost elevated the biological mother to a position of superiority because she is the biological mother.
(3)That the child has three half-siblings… and that it is necessary that this sibling bond, which is a sibling bond, be encouraged so that there can be a protective factor sustaining her.’
His Honour then dealt with the importance of the sibling relationship referring to the three other children being then from about 17 years of age to 23. Apparently at the time of the hearing the eldest son had left home and the youngest son had left but had recently come back. His Honour then said:
‘35.…There is no principle in this Court that the biological parent of a child has a special position. It has been held, as Mr Foley of counsel quite properly conceded, that it is a significant factor, per Lindenmayer J, and I agree it is a significant factor and it is significant that there has been many many cases put before me and many experts have said the child who is separated from a biological parent can suffer various things, it does not necessarily must suffer.’
In paragraph 37 his Honour set out his conclusions in response to the expert report:
‘37.I must say that to me [the Family Report writer’s] statements in so far as the biological parent are concerned and the restoration, shall we say, of the improvement of the bond between the mother and the child and also the restoration of the sibling relationship does not adequately take into consideration the wishes of this child. She indicates that she is of the opinion that the child is too young, too young and psychologically dependent on carers.
38.The child is 10, she will be 11 next year. The child has, since she was nine, vehemently - and I use the word vehemently perhaps excessively - has strenuously indicated to anybody who would listen to her, save for the mother, that she wants to reside with the people whom she has looked upon as her mother and father since she was around about two or three because since she was of that age, that is early 1998, she has been, as I have found and on the evidence I am entitled to find, in the care of the [Normans] for the majority of the week.
39.The [Normans] have paid all financial costs in relation to her education. The [Normans] have always been looked upon by the school as the guardian or the grandparents of [the child] since they are always there. It may be they are over the top, but at least they have shown to [the child] that they have an interest in her welfare and in particular in her schooling and this, unfortunately, is not the case with the mother.
40.Her wishes have been consistent and, as has been recognised by [the Family Report writer], the wishes have become more intense since the time [the Family Report writer] saw her on or about 1 June. I note in her diary, of course, she said that
"She wasn't asked very much by the Court lady"
as she refers to and that is 2 June in her diary and also the fact that, as she sees it, the counsellors did not wish to do with her, did not wish to see her diary. [The Family Report writer] has given evidence that in fact she read it before she interviewed the child.’
Ultimately his Honour found:
‘41.…I am of the opinion that this child has always looked upon - not always - has always whilst at [the school] looked upon, as I have said, the senior [Normans] as her primary carers and that to be removed from them would cause in my opinion a great deal of emotional distress and [the Family Report writer] concedes that and that it would be intense distress she says in the short-term. I cannot see that. This child has been expressing distress ever since she has been removed from the primary caring of the [Normans]’
His Honour also found whether or not it was through the deliberate attempts of the grandparents but that:
’42.…The affections of the child are not totally alienated from the mother, but the child has indicated to me quite a clear preference for herself to live in the residence of Nanna and Poppa.’
His Honour did not accept the recommendations of [the Family Report writer].
His Honour found that;
‘46.…I think the child has a close, warm and loving relationship with [Norman] Seniors. I think she did have a close, warm and loving relationship with her mother until the incidents in February and the subsequent Court orders. I am afeard that such a relationship by the child with the mother could be put at risk should she be forced to remove herself from the senior [Normans] at this stage.’
As to the child’s emotional needs his Honour found that she needs the support of the Norman’s and although he was not ‘overly impressed’ with the Norman’s attitude towards the mother ‘…and I sincerely hope that they will become a little bit more negotiable and more flexible than what they have been in the past’ (Para 50). Ultimately his Honour made orders in terms of the draft provided by the Child’s Representative. The Independent Children’s Lawyer did not support the appeal.
The father played a very limited role in these proceedings. As his Honour explained unfortunately prior to the relationship with the mother he developed an amphetamine habit. The evidence was that he has been treated and there is some reason to believe that he is much improved. Reference was made to affidavits of two psychologists.

Grounds of Appeal

We will deal with the grounds of appeal grouped in the manner suggested by counsel for the appellant but not in that order.

Appellant’s Argument

Ground 1. The learned trial Judge made an error of law in admitting into evidence the affidavits and oral testimony of the school counsellor as an expert witness when that witness had shown bias including religious bias, was not impartial and had not considered all material facts as required by Family Law Rule 15.59.

Ground 2. The learned trial Judge made an error of law in admitting into evidence an unsworn diary (exhibit 2) prepared by the child and used in counselling with the school counsellor and an unsworn letter to the Judge from the child (exhibit 3).

Ground 3. The learned trial Judge acted on a wrong principle in preferring the evidence of the school counsellor who had heard only one side of the dispute over the evidence of the Family Report writer, who had heard all sides of the dispute.

It was submitted by counsel for the appellant that the trial Judge’s acceptance of the expert opinion of the school counsellor that to place the child with the mother would mean that ‘the relationship with the mother would be put at risk’ was fundamental to the reasons for judgment and an error (Para 46). It was submitted that this appears to have been sourced from the letter of the school counsellor dated 9 June 2005 (Exhibit 17) as there was no other evidence on this point. It was submitted that there was no proper or logical basis for the acceptance of this as an expert opinion, particularly as the school counsellor had only had one meeting with the mother but numerous meetings and discussions with the respondent grandmother.
It is useful in appreciating this argument and his Honour’s judgment to set out parts of the report of 9 June 2005 and 19 August 2005:
‘Report 9 June 2005
[The child] was referred for individual counselling by [the school] in February 2005 for support during a family custody dispute. I have seen [the child] approximately weekly since April 2005. During this time she presented with psychological distress, anxiety and deteriorating school work, which [the child] attributes to the current custody arrangements and her fear of the future with regard to her residence. It was my understanding that [the child] would also be attending a Family Court Counsellor. I have told [the child] that this person would be advising the Family Court on the suitability of her care-givers.
My sessions with [the child] were usually on Fridays when she was often very emotional and tearful. [The child] would state that she was upset and angry as she did not want to spend the weekend with her mother as per arrangements of the Family Court Custody Order. In counselling, [the child] has stated that she loves both her grandparents and her mother, however, she would prefer to remain living with her grandparents who have been her primary care-givers to date.
…
Until 2005, [the child] has always been a model student at [the school]. She has always been a socially and emotionally well-adjusted child who is academically able and motivated.
…
In terms of emotional stability, until this year’s custody dispute I would have described [the child] as a happy child with an easy-going and relaxed disposition. However, in 2005 due to the psychological distress of the family custody dispute, her school work has suffered and [the child] often appears anxious, withdrawn and tearful at school.’
‘Report 19 August 2005
… I am not in a position to evaluate the respective merits of the applicant or the respondent.
…
Over the last months, we have noted at [the school] a marked decline in [the child’s] academic performance. She is restless and inattentive in class and is often off-task and disorganised in her work habits. Emotionally, [the child] appears anxious and depressed. She attributes her unhappiness to uncertainty about her future and her level of dissatisfaction with the shared custody arrangements. Socially, [she] is becoming more isolated from her peers. Once a gregarious child with many friends, she is now withdrawn and will play with only one or two special friends who are tolerant of her moodiness and bad temper. She is increasingly involved in social problems with her peers of a trivial nature e.g. someone irritating her. [The child] has become emotionally labile.
In my opinion, [the child] is not coping psychologically with the new parenting regime. She is displaying clinical symptoms of anxiety and depression. [She] displays an irrational level of anger and resentment towards her mother for the current living arrangements. This bitterness is injurious to the development of a positive mother-daughter relationship and may well be irreversible. She finds it impossible to take her mother’s point of view. [The child] has stated in counselling that if her mother wins custody she will run away or harm herself. At this stage I believe these statements to be idle threats and the child to be in no immediate physical danger.
…
[The child’s] relationships with significant people in her life are variable. She maintains a warm and loving relationship with her grandparents. As stated previously, her relationship with her mother is problematic. She has regular contact with her father, often by phone as he is currently interstate. Her relationship with her siblings is developing slowly. [The child] reports that her brothers and sister are much older than her and she doesn’t see them frequently as they are often busy socialising with their own friends on the weekend.’
Objection was taken on the grounds of bias to the evidence of the school counsellor whose evidence was relied upon by the Independent Children’s Lawyer. In the submissions to the trial Judge reference is made to Family Law Rule 15.59(3) which provides that:
‘15.59(3) The expert witness has a duty to:
(a) give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witness’s knowledge and capability;
(b)conduct the expert witness’s functions in a timely way;
(c)avoid acting on an instruction or request to withhold or avoid agreement when attending a conference of experts;
(d)consider all material facts, including those that may detract from the expert witness’s opinion;
(e) tell the court:
(i)if a particular question or issue falls outside the expert witness’s expertise; and
(ii)if the expert witness believes that the report prepared by the expert witness:
(A)is based on incomplete research or inaccurate or incomplete information; or
(B)is incomplete or may be inaccurate, for any reason; and
(f) produce a written report that complies with rules 15.62 and 15.63.’
It was submitted that apart from questions of bias the school counsellor’s credentials were not appropriate as she was merely an educational psychologist [Exhibit 16 is her certificate of registration as a psychologist] and had no experience in giving evidence in Family Court proceedings which she admitted (Vol 5 p901 t/s p342 line 40).
Further it was submitted that apart from issues of admissibility her evidence should not have been accepted because the school counsellor had not checked facts as recounted to her by the child nor the facts contained in the referral to her dated 24 February 2005 which was from the grandmother. It is submitted that the school counsellor allowed herself to ‘…become an unwitting ally of one side of the dispute and her evidence is thus tainted with bias’.
In any event it is submitted that even if her evidence was admissible under Rule 15.41 it exceeded the proper grounds set out in the Rule.
Submissions were made about expert opinion evidence generally and reference was made to the well known statement of Hayden JA in Makita (Australia) Pty Ltd v Sprowles (2001) NSWLR 705:
‘85 In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R (1999) 197 CLR 414 on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise" (at [41]).’
In relation to ground 2 being that the trial Judge should not have admitted the child’s diary, which is exhibit 3, or the child’s letter, which is exhibit 2, it is obviously correct that the child’s letter made an impact on the Judge as submitted. Counsel for the mother submits that this was an error particularly in view of the evidence of the Family Report writer that such expressions of the child’s wishes should be seen as her views reflecting one side of the dispute and that the letter was brought into existence after the grandmother had informed the child of the recommendations of the family report. The letter from the grandparent’s solicitor dated 23 June 2005 (AB Vol 2 p282) and the transcript (Vol 5 p 811 & 812) do not support that submission although it is clear that the child was told that she would be spending more time with her mother.
It was submitted that the child’s letter and the diary should not have been allowed into evidence because evidence of a child cannot be placed before the Court unless an order is made allowing the child to do so (see section 100B). In addition, it is submitted that in this case there was evidence from the author of the family report that the circumstances surrounding the diary suggested that this was an unreliable expression of the child’s wishes (Vol 5 p396-397).

As to the admissibility of evidence generally of evidence of a child’s wishes reference was made to Reynolds & Reynolds (1973) 47ALJR 499:
‘The admissibility in custody proceedings of statements made by children of the kind in question is a difficulty subject. The relationship which exists between a child and its parent is plainly a relevant consideration and the wish of a child (of reasonable age) to live with one parent rather than the other is a matter to be taken into account by the court, although the weight to be given to it will depend upon the circumstances of the case. But it is quite another thing to say, as the appellant would have it, that there is a rule, rigid and inflexible, according to which all such statements made by a child outside the court must be received.
It is notorious that children are responsive to the situation in which they find themselves. The probative value of statements which they make to others of their affection or lack of it depends on a comprehensive evaluation of the circumstances in which, and the motives with which, the statements are made. In general their probative value is slight when it is compared with other available means of establishing the wishes and attitudes of a child. To my mind the suggested rule, if adopted, would impose an intolerable burden on the court in receiving the statements and in testing the circumstances under which they came to be made.
The wishes and attitudes of children can be made apparent to the court by their evidence as witnesses and by means of interview in private chambers in circumstances where the judge is at liberty not to disclose to the parties the communications which have been made to him. I do not say that the court can never receive evidence of a statement made by a child as to its attitude to, or affection for, a parent. There may be some cases in which it is desirable, or indeed necessary, for a court to receive evidence in that form in order to determine the relationship which exists between parent and child. But I would reject the notion that the court is always bound to receive such evidence.’
Finally, it was submitted to admit into evidence such a letter or the diary is contrary to public policy because it might encourage children to be drawn into the conflict of a dispute about where they should live.
In relation to ground 3 it is argued that his Honour should not have accepted the evidence of the school counsellor over the evidence of the Family Report writer. It is submitted that in doing so amounted to acting on a wrong principle. This submission largely appears to have been made on the basis that the school counsellor had spoken principally with the child and the grandmother and took no positive action to involve the mother even after she became aware of the Courts’ order where it was intended that the mother be involved (T/s Vol 5 p 915 line 27-30).
It is also submitted that there was some element of a religious bias when the school counsellor said ‘I thought she’s not going to be taking advice from a Catholic counsellor’ being a reference to the mother (T/s Vol 5 p 920 line 8). In our view the school counsellor adequately explained this statement especially recognising that parents may have different religious beliefs (T/s p 921 line 5-8).
It is submitted that in failing to take proper account of the evidence of the expert who had seen all of the parties at length there was a failure to make a residence order in favour of the child’s mother which the trial Judge ought to have accepted in view of the evidence that to do otherwise would produce long term adverse consequences for the child (Vol 3 p 548 para 84). The report writer had said:
‘The benefits of restoring [the child] to the care of the mother would be the restoration of the bond with her biological parent. The long term consequences for children separated from biological parents can be significant. Children under such circumstances not infrequently suffer vulnerabilities associated with a perceived sense of abandonment. In turn these difficulties can contribute to having a poor self concept and negatively impact on the capacity to form successful adult attachments.’

Conclusions – Grounds 1, 2 & 3

The evidence of the school counsellor was admissible. The provisions of Part 15.5 do not apply to her as an ‘expert witness’ (R15.41(1)). The school counsellor is a registered psychologist in Queensland. Her role was the child’s guidance counsellor.
The allegation of bias is not supported by the facts. As we have already said her reference to religion was explained by her, she was primarily concerned with the child and the mother did not request to be interviewed by her.
In relation to the assertion that the trial Judge ought to have accepted the opinion of the Family Report writer over the guidance counsellor, his reasons are contained in the judgment and properly based. Whilst in part this was because of the child’s expressed wishes, the trial Judge is entitled to reject the view of the Family Report writer being that little weight should be given to the child’s wishes because of her theory of possible long term harm to the child. Where adequate reasons are provided and other evidence is available the trial Judge is not obliged to accept the opinion provided in the family report.
In relation to the admissibility of the child’s letter and diary it is clear that the contents were relevant to the issues in the trial and revealed the stated wishes of the child. Importantly, no objection was taken at the trial.
The provisions referred to by counsel of section 100B are not relevant. Rather the well known exception to the hearsay rule applies together with the obligation of a Judge to consider these matters as prescribed by the Family Law Act. At the time of the hearing section 100A was in existence which merely set out the exception to the hearsay rule and can now be found in the Family Law Act in section 69ZV.
In addition to questions of admissibility there is an obligation on a Judge to consider such matters as prescribed by the Act. The trial Judge carefully considered the documents, acknowledged that they had influenced him and properly took them into account. What the child said in these documents is consistent with the evidence of the school counsellor.

Ground 7 – The learned trial Judge acted on a wrong principle, or alternatively failed to take into account a material consideration, in granting residence to a party, namely the step-grandmother, who had wrongfully usurped the parental responsibility of the mother by deceptive and misleading conduct over a long period of time.

Ground 8 – The learned trial Judge acted on a wrong principle (albeit following precedent of the Full Court of the Family Court) in failing to proceed on a presumption in favour of the child residing with her parent, rather than with other parties such as the child’s step-grandmother.

At the outset, counsel submitted that the trial Judge erred in failing to apply a principle that the mother in this case ought to have been preferred. In particular Mr Foley submitted that:
‘Courts should show respect for the lawful authority of parents and should not trespass on that authority without good and compelling reason.
That doctrine applies when Courts, for example, show respect for the lawful authority of other Courts and legal entities conferred with lawful powers, duties, powers, responsibilities and authorities. It is insufficient and wrong in principle to reduce the significance of parenthood merely to a significant factor in the exercise of a broad discretion as to the child’s best interest as was done by the trial Judge.’
In support of this argument counsel referred to various provisions of the Act including section 61B and section 61C. It was also submitted that the Family Court has a duty to uphold parental responsibility and it should not lightly grant residence to a party who has wrongly usurped this responsibility by deceptive and misleading conduct, including the provision of false information on the school enrolment (Para 7.3 written subs).
After referring to Hodak v Newman (1993) FLC 92-421 and B & BFamily Law Reform Act 1995 (1997) FLC 92-755, it was submitted that those decisions were in error and should be overturned as they failed to give proper consideration to the statutory provisions regarding parental responsibility. It was submitted that the decision of Rice v Miller (1993) FLC 92-415 has been statutorily overturned by the parental responsibility provisions of section 61C.
Despite reference being made during the oral argument to Re Evelyn (1998) FLC 92-807 counsel submitted and urged us to decide that the current line of cases are incorrect. The Full Court considered in Re Evelyn (supra) competing residency applications for a young child between the natural father and his wife based in Queensland and the natural mother and her husband based in South Australia. At p.85106 their Honours said:
‘In Rice v Miller (1993) FLC 92-415 the Full Court adopted the reasoning of Lindenmayer J in Re Hodak; Newman; Hodak (1993) FLC 92-421 that while the fact of parenthood is an important and significant factor in considering which of the proposals best advance a child’s welfare, the fact of parenthood does not establish a presumption in favour of a natural parent nor generate a preferential position in favour of that parent from which the Court commences the decision making process.
Their Honours stressed that each case must be decided on its own particular facts with the welfare, (now best interests) of the child being the paramount consideration.(80,240)
Notwithstanding that the present case concerns a surrogacy situation ,it remains clear, as a matter of principle, that there is no presumption in favour of a biological parent nor any presumption in favour of the biological mother where the child is female.’
Finally, it is as well to remember what the High Court said in Gronow & Gronow (1979) 144 CLR 513 about a proper approach to appeals from discretionary judgments in relation to children and in particular the submission in this case that there should be some presumption in favour of the mother. At p.526 their Honours said:
‘The principle invoked by the respondent – that a young female child is best left in the custody of the mother – is not, and never has been, a rule of law. It is, or was, a canon of common sense founded on human experience. The weight or value to be given to it has varied with the times and from case to case.
In earlier days, when there was no role for a father in the upbringing of children and in the running of the household, the care and the upbringing of children was left almost entirely to the mother who was able to devote the whole of her time and attention to that responsibility and to household affairs. In this situation it was natural that the so-called principle carried very considerable weight.
…
But in recent times, particularly in the last twenty years, there has come a radical change in the division of responsibilities between parents and in the ability of the mother to devote the whole of her time and attention to the household and the family. As frequently as not, the mother works, thereby reducing the time which she can devote to her children. A corresponding development has been that the father gives more of his time to the household and to the family. The consequence has been to diminish the strength of the principle or of the factual presumption as it has been applied by the courts.’
In this case the trial Judge was faced with making orders about the amount of time the child would spend with the mother, the father and the father’s parents. Although there is some attack on the weight given to the evidence of the school counsellor in the appeal it is quite clear that in discharging his responsibility the trial Judge did give consideration to the fact that the appellant was the mother of the child but also took into account the respective roles of the parties, the contributions each of them had made historically to the child and what ultimately was in her best interests.
The Court also referred counsel to D & F (unreported) [2001] FamCA 382 where the grandmother was seeking residence of a young child and the mother was the respondent. In paragraph 56 the Court said:
‘56.There is a clear need in each case to understand the ramifications of applying the factor of parenthood. The factor may have little weight if the child has had no relationship whatsoever with the parent. It may be of little significance where the parent poses a real risk to the child's welfare. It may also not be a decisive factor in cases where other factors overwhelmingly outweigh it, but it may be very significant in a dispute between a capable parent and a more capable grandparent, and determinative in a dispute between a capable parent and an outstanding neighbour, foster parent, sibling or other person with a proper interest in caring for the child.’
In our view, the trial Judge correctly applied settled principles in the present case. Whilst it might seem that he preferred the grandparents he did so because of the evidence before him including balancing the potential parenting capacities of each party and in our view based on the expert evidence it was entirely clear that he should do so. In view of the very clear provisions of the Family Law Act and the cases to which we have referred we do not see any basis in this argument.

Ground 4 – The learned trial Judge breached the rules of procedural fairness in accepting into evidence a bundle of documents indicating the school attendance records of the applicant mother’s other children when the contents of those documents (from which adverse inferences were drawn) had not been put to the mother and she had had no opportunity to respond to them.

Ground 5 - The learned trial Judge mistook the facts as to the length of time the school counsellor had been at the child’s school.

Ground 6 – The learned trial Judge failed in the duty to set out properly the reasons for the decision, including a failure to give reasons for preferring the evidence of the school counsellor to that of the Family Report writer and a failure to give reasons and to make relevant findings of credit and credibility in relation to the finding of fact as to who had been the primary care giver for the child.

Dealing first with Ground 4 we are of the view that the simple answer to this is that although this bundle of documents were admitted into evidence and the mother when cross examined may not have had an opportunity to make any response to them, the fact of the matter is that his Honour did not seem to have been concerned about them other than to make reference to the submission about the child’s youngest brother missing a substantial amount of school. His Honour went on to say ‘I note, of course, [the son] is now employed and is doing a good job as a tyre fitter.’ It cannot be seen that his Honour in some way attributed blame to the mother or concluded that her capacities as a parent in some way were diminished by this fact. As submitted by counsel it would have been open to the mother’s representatives to have asked that the mother be recalled to give evidence in relation to this point although she had been cross examined about the child’s absences and gave some evidence.
Counsel conceded that ground 5 was a minor matter relating only to possible issues of weight. The trial Judge found that the school counsellor had been there for five years. It seemed that she had been there for three. We cannot see that this would make any difference to the impact of her evidence in relation to the child.
Ground 6 is an argument in relation to reasons in relation to the school counsellor and findings of fact about ‘the primary care giver for the child’. Reference was made to the written submissions of counsel to the trial Judge which included an attack on the witness the school counsellor for her lack of partiality and failure to check accuracy of facts before providing reports. It is therefore submitted that the reasons did not deal adequately or at all with the issues raised by counsel.
It is our view that the reasons provided by the trial Judge were entirely clear. (See Bennett & Bennett (1991) FLC 92-191).
This submission seems to misunderstand the process by which the trial Judge considered the evidence. It was not the case that one witness was not believed in terms of credit issues or that he preferred the evidence of one rather than the other rather that his Honour considering all of the evidence before him considered particularly the evidence of the school counsellor and the concern about the child’s behaviour and strongly expressed wishes. It was of some moment that the school counsellor had spent some 100 hours with the child between March 2005 and the trial whereas of course the report writer had spent the usual time which is allowed.
It is also submitted that the trial Judge failed to provide reasons in relation to the issue of the amount of time that the child had spent with each of the parents. Reference was made in this respect to the written submissions where it was asked that a finding be made in relation to the amount of time that the child had spent with each of the parties. It was submitted that the trial Judge ought to have made a finding about who had been the primary care-giver of the child. In our view such a finding was unnecessary because it could not have led to any further assistance in deciding the ultimate issue other than what his Honour said about the history of the matter.
In paragraph ten his Honour made a very clear finding to which we have already referred. In particular at paragraph 41 of the reasons for judgment his Honour in considering the child’s wishes said:
‘41.… I am of the opinion that this child has always looked upon - not always - has always whilst at [the school] looked upon, as I have said, the senior [Normans] as her primary carers and that to be removed from them would cause in my opinion a great deal of emotional distress and [the Family Report writer] concedes that and that it would be intense distress she says in the short-term.’

Ground 9 – The weight of the admissible evidence indicated that the best interests of the child would be served by an order that the child reside with the applicant mother.

It is submitted that the weight of the admissible evidence, including the affidavit and oral testimony of the family report writer made a compelling case that the best interests of the child would be served by ensuring that she reside with the mother. It was submitted in not doing so the trial Judge failed to give adequate weight to the relationship between the child and her siblings. This submission was supported by a reference to the family report in particular paragraph 85 where it was said ‘An additional benefit in restoring [the child] to the care of the mother would be the restoration of the sibling group. A Strong sibling bond can be a protective factor sustaining children as they grow and negotiate developmental hurdles.’
His Honour did refer in the judgment to the mother’s three other children. It is clear that he carefully referred to the relevant issues as required under the legislation. We need only refer in dealing with this ground and the appeal generally to the decisions of Gronow & Gronow (supra) to which we have previously referred in particular to the following paragraphs. At page 517 Stephen J remarked:
‘In this case the fine balance of competing circumstances not only made the decision facing the learned trial judge a difficult one. It should also have gone far to satisfy the Full Court that this was not an occasion upon which it was proper for an appellate court to disturb the outcome of a discretionary judgment, particularly when made after a most careful review at first instance of all relevant circumstance and made with that unique advantage which the primary judge alone possessed, that of seeing the parties and those associated with them and gaining at first hand some personal impression of their personalities. Where very evenly balanced competing claims are in question and where it is custody that is in issue this advantage must be of particular significance.’
And then at 519:
‘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 our view none of the grounds of appeal can succeed and the appeal should be dismissed.

Costs

Counsel for all the respondents asked for costs submitting that the appeal had been a burden on the grandparent’s savings. None of the respondents are in receipt of legal aid. The grandparents have what was described as ‘modest capital’. Counsel for the appellant relied on the general principle contained in section 117 that each party should bear their own costs. It was submitted that the appellant is reliant on government benefits and has no other income or assets. She is in receipt of legal aid for these proceedings.
In the circumstances of the mother’s poor financial circumstances together with the nature of the appeal we are of the view that there should be no order as to costs.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 13 February 2007