Dennison & Wang
[2010] FamCAFC 182
•17 September 2010
FAMILY COURT OF AUSTRALIA
| DENNISON & WANG | [2010] FamCAFC 182 |
| FAMILY LAW - APPEAL – CHILDREN – With whom a child lives and spends time – Where the trial judge ordered the mother and father have parental responsibility, but for the children to have no time with the father – Unsubstantiated sexual and physical abuse allegations made by the mother against the father – Where the trial judge made adverse findings against the mother – Where the children could be emotionally and physically harmed if orders required the children to spend time with the father – The working of the Family Law Act 1975 (Cth) and the paramountcy of children’s best interests – Where the findings of the trial judge were consistent with evidence – Where the necessity to preserve children’s physical and emotional safety and welfare overwhelming – Where there is a need for the litigation to end – Reality of the situation a major consideration – No appealable error made by the trial judge –Appeal dismissed. FAMILY LAW - COSTS – Where costs sought by the mother who was in receipt of Legal Aid – Father self-represented and despite not being in affluent circumstances was denied funding – In the circumstances of the case no order made as to costs. |
| Family Law Act 1975 (Cth): s 60B, s 60CA, s 60CC, s 65DAA |
| Gronow & Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 MRR v GR (2010) 263 ALR 368 |
| APPELLANT: | Mr Dennison |
| RESPONDENT: | Ms Wang |
| FILE NUMBER: | MLF | 2835 | of | 2004 |
| APPEAL NUMBER: | SA | 5 | of | 2010 |
| DATE DELIVERED: | 17 September 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | May, O’Ryan and Strickland JJ |
| HEARING DATE: | 5 July 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 December 2009 |
| LOWER COURT MNC: | [2009] FamCA 1251 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Ms Wiener |
Orders
The appeal is dismissed.
There is no order as to the costs of the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Dennison & Wang 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 MELBOURNE |
Appeal Number: SA 5 of 2010
File Number: MLF 2835 of 2004
| Mr Dennison |
Appellant
And
| Ms Wang |
Respondent
REASONS FOR JUDGMENT
Introduction
At the commencement of hearing the appeal an extract from House v The King (1936) 55 CLR 499 was read to the father.
It is also an appropriate reference to commence this judgment. The reading of the passage was not intended to be some criticism of the grounds of appeal but rather to assist the father with his submissions. The relevant portion, from paragraphs 504 to 505 is as follows:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
It is as well to also refer to the well known paragraph from Gronow & Gronow (1979) 144 CLR 513 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.
The father, in his notice of appeal filed 14 January 2010, set out seven grounds of appeal. These can be summarised as follows. That the trial judge:
· Failed to give any or sufficient regard to the primary consideration of the benefit to the children of having a meaningful relationship with both their parents and siblings;
· Failed to give any or sufficient weight to the findings that were critical of the mother and the finding that said that the father had much to offer the children;
· Erred in accepting parts of the mother’s evidence, particularly the mother’s evidence in regards to the reunification attempts;
· Gave excessive weight to the expert evidence of Mr A, a family consultant, in circumstances where he found the mother to be truthful and only concerned with the wellbeing of the children, and where the children were in the care of the mother when they were interviewed;
· Placed excessive weight on a Centacare report in the circumstances where the report writer was not available to give evidence or be cross-examined in court and where the report writer relied on the mother’s representations;
· Erred in not ordering that the mother be psychiatrically assessed, and;
· Failed to give any or sufficient weight to the mother’s refusal to comply with the 20 March 2009 orders.
In essence, the father is unable to understand how, at the end of a lengthy trial where the trial judge made strong and adverse comments about the mother, and no comments of a serious nature against the father, that the orders provide him with no physical contact with S and N, his two daughters, aged 12 and 10 respectively.
The answer to this understandable inquiry is that the trial judge was bound to make orders in the best interests of the children. In our view, the orders made by the judge were in the children’s best interests.
The matter was heard before Justice Bennett over 26 days between February and August 2008. Reasons for judgment were delivered on 20 March 2009 and interim orders were made.
Following an attempt to reunite the children with the father in accordance with the interim orders, further hearings took place on 16 July and 24 August 2009. Reasons for judgment were delivered on 18 December 2009 and final orders were made. It is from those orders that the father appeals.
The essential parts of the orders are as follows:
· the mother and father each have parental responsibility for the children;
· the children live with the mother;
· the father be able to communicate with the children, through letters on the children’s birthdays and at Christmas and Easter each year, and as otherwise requested by the children;
· the father is given an opportunity to assure the children, either directly or in the company of Mr A, that he is available to them at any time should the children wish to see him or spend time with him;
· the mother is to actively keep the father informed of the residential address of the children, the details of their school and of any medical emergency or serious medical condition of the children;
· the father advise the mother, the children and the school of any change in his residential and contact address;
· the father is at liberty to contact the proper officer of the school which the children attend, to obtain progress reports of the children’s education and well being incidental to their education. The school officer, at their discretion, may convey to the father any interest that the children may express in contacting their father;
· the school at which the children attend are to be made aware that the father has equivalent parental responsibility to the mother and therefore is forwarded any correspondence of the school that is customarily provided to parents.
It was also noted by the trial judge in the orders that there is no order requiring the children to spend time with the father.
We were notified prior to the hearing of the appeal that the Independent Children’s Lawyer (the “ICL”) would not take part in these proceedings. The ICL had been discharged by the trial judge at the conclusion of the proceedings. We were informed by letter that Victoria Legal Aid would not fund the ICL to participate in the appeal.
To appreciate the unusual circumstances of this case, the history and reasons for judgment will be set out in considerable detail.
A brief history
It was agreed at the outset of the appeal hearing that the chronology provided by the ICL at the trial was a useful tool. We have incorporated parts of this document in this part of our judgment.
The father was born in India in 1954. The mother was born in China in 1964.
The mother has a daughter from a previous relationship, Ms L, who was born in China in 1984. The mother effectively abandoned Ms L when the child was two years old, leaving her with her paternal grandparents in China. The mother and daughter were not reunited until Ms L was an adult.
The father has two sons from a previous relationship, J and E. Although he separated from his sons’ mother he has a good relationship with the sons. His sons are both academically and socially successful.
The mother and father met in China in 1995, were married in 1996 and moved to Australia in 1997.
There are two children of the marriage; S, born in February 1998 and N, born in March 2000. The children are now 12 and 10 years old respectively.
The mother alleged a history of domestic violence. There is, however, no independent evidence of the father ever assaulting the mother. There is a police record of the mother physically assaulting the father. In early 2001 she separated from the father and moved into a refuge with S and N.
The mother contacted the Department of Human Services (“the Department”) in February 2001. It was alleged that the father had physically abused S. Orders were first made in the Federal Magistrates Court in May 2001. The parties have continued to litigate since then.
The parties resumed cohabitation in November 2002. Ms L commenced living with them.
Just prior to 7 October 2004 consent orders were made. In summary, the orders provided for the following:
· The father to have contact (as it was then described) with both girls each Wednesday from 5pm to 6pm and alternate weekends from Friday 5pm to Sunday 2pm and from 10.30am to 12.45pm on the alternate Sunday, and half of the school holidays;
· The father was permitted to attend S’s school, and;
· Each party was to keep their own property as at the date of the orders.
There were numerous notifications to the Department in relation to both the mother and the father.
It was alleged by a friend of the mother that in November 2004, S made statements indicating she had been sexually abused by her father. It was not until October 2005 that the mother filed a notice of risk of child abuse containing various allegations, including that the father had abused S. As already mentioned, the mother alleged that the father had physically abused S in February 2001.
The mother made another notification to the Department in November 2005, alleging the father had scratched S’s face with a key. The father’s contact with the children was suspended on 30 November 2005.
As a result of a number of complaints made by the mother, the father was charged with various serious criminal offences, including indecent dealing with the child S.
The father’s trial commenced in the County Court in October 2007. The judge directed a not guilty verdict on some counts, and on others the jury returned a verdict of not guilty.
As a result of the criminal proceedings, the hearing of the parenting matter was delayed in the Family Court of Australia.
On 10 December 2007 the father filed an amended application for final orders.
Judgments
Although the father is not appealing the interim orders made 20 March 2009, the information provided in that judgment is necessary to understanding this complex matter. In the reasons for judgment on 18 December 2009 her Honour said:
2. The facts set out in my earlier reasons will not be restated. These reasons should be read in conjunction with my earlier reasons particularly in relation to the history of the matter.
First Judgment (Order of Bennett J of 20 March 2009)
As explained in the reasons for judgment, the background to this hearing was that in October 2005 the mother filed an application to suspend the father’s time and communication with the girls. She also filed a notice of risk of child abuse in which she alleged the following:
1. The children have complained of being repeatedly hit by the father during contact visits and have returned from contact badly bruised.
2. The child [S] has complained of the father pinching her, pulling her hair, strangling her and refusing to leave her alone during contact periods.
3. The child [S] has complained of the father touching her all over and touching her private parts in the bath during contact periods.
The father’s time with the children was suspended in November 2005, by order of the Federal Magistrates Court. The proceedings were then transferred to the Family Court. As we have already noted, the father was subsequently charged with various criminal offences. He was committed for trial on numerous charges which the trial judge described at paragraph 8 as follows:
·one count of intentionally causing injury;
·six counts of reckless injury;
·one count of assault with a weapon;
·eight counts of unlawful assault;
·one count of incest by a parent;
·one count of indecent act on a child under 16, being S;
·two counts of intentionally threaten serious injury;
·one count of threat to kill; and,
·one count of reckless conduct endangering a serious injury.
We repeat this list to demonstrate the gravity of the charges against the father. Ultimately, the father faced trial on 12 charges, including, in relation to S, the count of incest and a lesser charge of an indecent act with a child under 16. Both offences were alleged to have occurred on 8 November 2004.
As her Honour stated in the reasons for judgment on 20 March 2009:
10. The date of the alleged offences is significant because, in the current proceedings, the facts relevant to the alleged sexual abuse by the father of [S] are alleged by the mother to have occurred in July 2005, whereas the charges laid against the father are based on the same circumstances having occurred on 8 November 2004.
During the course of the father’s criminal trial both children were cross-examined. They were aged 5 and 7 at the time. The jury was directed to acquit the father on a number of charges. Otherwise, the jury returned a not guilty verdict on the remaining charges.
The father has had no weekend or overnight time with the children since July 2005.
The cases as presented to the trial judge
The trial judge set out the proposals of the parties and the ICL which we summarise below, as it is of some interest in considering the appeal.
The mother’s proposal
The mother’s case at first was that there is an unacceptable risk of the children being sexually abused by the father if they were to spend unsupervised time with him in the future. She was of the view that it was inappropriate for supervised time to be ordered on an ongoing basis.
However, on the sixth day of the hearing, a significant concession was made by the mother. She acknowledged that there was insufficient evidence for the court to be satisfied that the children were at an unacceptable risk of sexual abuse by the father in the future. The mother sought orders that the children live with her and that “the parties and the children attend upon such family therapy counsellor as [is] nominated by the independent children’s lawyer for the purposes of assessing whether reintroduction of the children to the [father] is possible and, if so, under what conditions and whether same is in their best interests”.
The father’s proposal
Initially, the father asked that the children live with him and have limited contact with the mother so that the children were no longer subject to the mother’s emotional abuse.
The father reassessed his position and at the conclusion of the trial asked for equal shared responsibility, with him being responsible for their day to day care and welfare, and that the children:
· reside with the father;
· spend time with the mother on alternate weekends, half of school holidays and special occasions. This was to be for a preliminary period lasting 6 weeks from the date of the judgment, after which the children were to continue living with the mother and spend time with the father, and;
· move into the father’s care through a transitionary process.
The father also sought that the mother be psychiatrically assessed and treated, and that the father be permitted to take the children to India to visit family.
In the alternative, the father sought that the consent orders of October 2004 be reinstated or that if the court did not make orders for the father to spend any time with the children, that orders be made for the children to spend time with their siblings.
The proposal of the independent children’s lawyer
The ICL noted that the children had a primary bond with the mother, and that the children would be “very distressed” should they be removed from their mother’s care.
The ICL sought, among other orders, that:
· the mother and father have equal shared parental responsibility for the children;
· the children live with the mother, and;
· the children spend time and communicate with the father, first for a two month period at the discretion of the counsellor at Centacare, then for alternate weekends with one overnight, for one half of school holidays, on special occasions, and by telephone at all reasonable times.
It was also requested that an order providing that the children live with the mother, be conditional on her continuing to permit the children to spend time with their father.
After summarising the evidence before her the trial judge then proceeded with the judgment under a number of headings. For convenience we will use the same headings here.
Findings of fact
The trial judge noted the numerous allegations:
39. There are a great many facts in issue in these proceedings. This is not a case concentrated on one or two instances of sexual abuse. The mother puts in issue the father’s behaviour for all of the cohabitation in Australia and alleges that not long after her arrival in Australia the father began to assault her and treat her cruelly. It is her case that this continued after separation. She alleges that the father kicked and punched and pinched both [N] and [S] from an early age and tried on occasions to strangle them. It is alleged that the bruising to [S]’s throat was so deep that it bled. She alleges that at some point in the 10 days preceding 10 July 2005, the father inserted two fingers into [S]’s vagina whilst she was bathing and otherwise scrutinised her bathing to an extent that made [S] feel uncomfortable. The father denies each and every allegation of the mother. The father alleged that the mother has been overbearing to the girls and will not permit the girls to have a meaningful relationship with him.
…
41. As far as the father is concerned, he alleges that the mother has fabricated the allegations of violence and sexual abuse and that she will not permit the girls to have a meaningful relationship with him.
Credit & impression of witnesses
The parties made quite different impressions on the trial judge. The references to each parent will be outlined, including the comprehensive findings made by the trial judge.
The mother
The mother gave evidence over 20 days, through Mandarin interpreters. In total there were five interpreters employed.
The trial judge explained that the length of the trial was due to the mother. The trial judge noted that the mother appeared to be utilising the extra time afforded to her whilst the question was translated into Mandarin, to try and guess the direction in which the questioner was heading rather than in formulating a responsive answer. It seems the result was that the mother gave unresponsive answers which prolonged her evidence significantly.
In addition her Honour found that the mother was not particularly impressive in a non-verbal sense. It was observed that the mother had:
45. … an utter contempt for, and loathing of, the father, a complete denial of their union having been good for anything and a heartfelt conviction that the children would not benefit, and will only be damaged by, having anything to do with the father.
The trial judge, when commenting on the mother, stated:
48. Having watched and listened to the mother give evidence and having given in her favour every allowance for the strain which she must have been under by virtue of proceedings being conducted in a language which is not her native language, I find that much of her evidence, both oral and in affidavit form, was misleading, inaccurate, exaggerated and, quite frequently, untruthful. I am unable to say whether the mother’s unsatisfactory presentation as a witness was attributable to dishonesty on her part, impaired mental or psychological functioning, or because the mother could simply not be bothered to give sensible or responsive answers lest the questioner feel encouraged to continue.
49.The mother was an unsatisfactory and unreliable witness on matters of truth.
…
52. … In the trial, the mother appeared to me often to respond to the question which she understood had been asked in English and without her having much regard for the question as it was interpreted to her in Mandarin.
Mr Weston
Mr Weston’s (the mother’s solicitor) experience of the mother coincided with that of the trial judge. At this point it is not necessary to explain why the mother’s solicitor gave evidence, other than to mention that privilege was waived.
Where the evidence of the mother conflicted with the evidence of Mr Weston, Mr Weston’s evidence was preferred. In addition, the mother’s evidence that she did not know what was in her affidavit of evidence in chief sworn 18 January 2008 because it was not appropriately interpreted to her, was rejected.
The trial judge set out in some detail the evidence of Mr Weston in relation to some of the mother’s allegations. We will refer to those which have relevance to the appeal.
On 29 July 2005, Mr Weston met with the mother and Ms V (an interpreter). This meeting was 19 days after the children had returned to the mother’s care after spending 10 days with the father. Mr Weston’s evidence was that the mother did not mention the alleged statements of S, which may have been indicative of sexual abuse. It was noted however, by the trial judge that:
62.Mr Weston referred to 30 August 2005 as being ‘the first time I had any indication that there was sexual abuse involved.’ I accept that evidence as to Mr Weston’s state of mind. However, there is sufficient mention in his file to corroborate that, as at 12 July 2005, the mother had told [Ms V] that [S] had told the mother that she was not comfortable with how the father was bathing her, that is, ‘washing her bum.’ There was no cross examination of Mr Weston directed to explaining why the mother neglected to mention the sexual abuse allegation to Mr Weston on 29 July 2005.
In summary, her Honour said:
70.Mr Weston gave his evidence openly and was not defensive. I accept his evidence as truthful and accurate. Where his evidence conflicts with the evidence of the mother, I prefer his account to hers. It follows that I reject the mother’s evidence that she did not really know what was in her affidavit of evidence in chief sworn 18 January 2008 because it was not appropriately interpreted to her. Furthermore, I find that she gave that evidence to that effect (extracted above) dishonestly and in order to avoid adverse credit findings arising out of the very many times during the trial that her affidavitory evidence was demonstrated to be false or inaccurate.
71.Mr Weston’s evidence is also supportive of the proposition that the mother did not mention the alleged statements of [S] (indicative of sexual abuse) because they had not been made as the mother contends or at all.
Ms H (the mother’s friend)
Ms H alleged that in November 2004, S informed her that the father had scratched her face with a key. In addition, she claimed that in July 2005, S had told her that the father had inserted two fingers into her vagina when S was bathing.
Despite Ms H being a “constant presence” in the lives of the mother and the children, the trial judge found her to be an unreliable witness. Her Honour stated that Ms H was “positioned to be somewhat of an ornament to the [mother’s] case, but that is not what transpired”. The trial judge continued:
76.Having watched and listened to her give evidence and having perused the documents relevant to her involvement, I find Ms [H] to be a well intentioned but unreliable witness upon whose evidence as to statements, observations and behaviours indicative of sexual abuse I can place no weight. (footnote omitted)
The father
Although the father, when cross examining the mother, often could not frame questions adequately, his organisation and topics for cross examination were found by the trial judge to be most impressive. As a self represented litigant the judge said he conducted his case skilfully and was thoroughly prepared.
The father was found to be a truthful witness, intelligent, sensitive and principled. The trial judge was of the opinion that the father:
116. …conducted himself with laudable forbearance in the fact of persistent, unfounded and most unsavoury allegations stemming from the mother’s determination to have her way at whatever the cost to the children or the father.
Second Judgment (Order of Bennett J of 18 December 2009)
In the second judgment her Honour again characterised the evidence before her under a number of headings. For consistency and convenience these headings will again be adopted.
The court was provided with the expert report of Mr A, a family consultant from the Family Court in Melbourne. His role, in addition to compiling a family report, included making arrangements with Centacare for the children to have counselling and to have contact with their father and siblings.
In his report Mr A recommended that the children remain living with the mother and not have any contact with the father for the time being. It was suggested that the children should receive counselling to “address their unresolved feelings about their familial relationships”, and that the father also seek ongoing support.
It was also suggested by Mr A that the children have the final orders explained to them by a professional to ensure that they have an understanding of the fact that they can contact their father in the future if they so decide, and how this could be facilitated.
The orders made by her Honour on 18 December 2009 are the final parenting orders made in this matter.
The final orders have been summarised in paragraph 9 of this judgment.
As previously mentioned, the trial judge noted that the reasons for her decision should be read in conjunction with her earlier reasons, particularly in relation to the history.
Her Honour was of the opinion that the father’s evidence portrayed little insight into the emotional needs and well being of the children, now or into the future. However, the trial judge found that the allegations of physical and sexual violence made against the father were without foundation. The trial judge was also satisfied that the mother had purposefully conditioned the children to believe that they had been abused by the father, in an effort to cut the father out of their lives.
The evidence of Mr A about the possibility that the children may change their minds about not wanting to see their father during their development in adolescence and that “the children may have a conflict with the mother which is a catalyst to reconnect with the father” was accepted.
Each party had proposed that new orders be made. Their positions will be summarised below.
The father’s position
The father’s proposal was that the children live with him and spend no time with the mother for a period of six months. The children would eventually spend time with the mother on alternate weekends, on special occasions and during school holidays.
Should the court find that the children should remain living with the mother, the father asked that the children spend graduated time with him for approximately two weeks, before resuming the orders made in 2004. Those orders provided for the father to have time with the children every Wednesday afternoon for one hour, on alternate weekends from Friday to Sunday afternoon and four hours on a Sunday every other week.
As a third proposal, the father sought that under the supervision of Mr A, the children be immediately removed from the mother’s care and placed in temporary community care, until such time as contact could be resumed with the father.
The mother’s position
The mother supported the recommendations of Mr A that the children remain living with her and have no contact with the father. She rejected the father’s proposal that the children live with him and said that she believed that the children would not accept the situation and that they would be at risk of harming themselves. She also strongly rejected the proposal requiring that the children be placed into care.
The mother also maintained that she had cooperated with the orders of 20 March 2009, with the exception of what was referred to as “the train station incident” about which further reference will be made later in this judgment.
The ICL’s proposals
The ICL supported the recommendations of Mr A.
It was submitted that the children are not at risk of harm by sexual or physical abuse from the father. Despite this however, the ICL’s position was that there should be no orders requiring that the children spend time or communicate with the father. The ICL proposed that the children live with the mother and communicate with the father by letter. He also proposed that the children and the father attend meetings at Centracare for the father to assure the children that he wishes to see them and spend time with them in the future as and when they may wish.
The children’s time with the father
The children attended a counselling session at Centacare on six occasions from 15 April 2009 to 17 June 2009. A session was scheduled for 22 April 2009; however the children did not attend the session. It was accepted from the mother’s evidence that S refused to embark the train (the “train station incident”).
The children first saw their father on 27 May 2009, following a session with their counsellor on the same day.
On 3 June 2009, the children saw their father for a second and final time, again following a session with their counsellor. The father was told on this day by the counsellor and the children that the children did not want to continue with the process. According to the father, S stated:
It is not fair. It is not all mum’s fault. If we see you then we have to live with you. Then it is not fair for mum. Mum has given us birth and done all the things for us. Then she will never see us again. We do not want to come here and waste our time. We waste 6 hours every time to come here. We do not need any relative or brothers or sisters or father. We are very happy with our mum. (footnote omitted)
The trial judge recorded that Centacare were of the opinion that despite the intensive work undertaken with the mother and the children their resolution would not soften. Further, the position of Centacare was that the children demonstrated a strong bond with their mother and appeared to have no capacity to believe that they can have a relationship with their father.
The children’s views
Mr A concluded that S’s feelings about the possibility of living or spending time with her father are influenced by her recollections of what she believes her father has done to her in the past. These feelings are compounded by the ongoing parental conflict, the longstanding court proceedings, and the perceived effect this has had on her mother.
If the children were forced to live with their father, S stated that she has considered self-harming. It was alleged that she even thought about how she might carry this out.
N has also expressed that she would harm herself if she were required to live with her father. It was the opinion of Mr A, that N’s view is less developed when compared to S’s.
The parents’ attitudes
The mother was described by Mr A as open and cooperative, who was able to focus on the children’s happiness as the prime issue. The mother emphasised the children’s views are an important factor. She understands the gravity of complying with the orders and is adamant that she did so.
In contrast the father was described, by Mr A as being “mildly argumentative” and heavily focussed on past issues and attributing blame to the mother for the failure of the Centacare referral. The father had expressed an inability to “walk away” from his children, given his success with his other children. He was insistent that the removal of the children from their mother’s care is the answer to the current impasse. The father was also dismissive of S’s threats to self-harm.
Although Mr A expressed an understanding of the father’s position, he concluded that the father’s actions are perpetuating the parental conflict, increasing the risk of harm to the children and further polarising the children’s views of him. In his opinion, the father appeared to be incapable of considering that the children may have formed an independent view of him, independent of their mother’s influence.
Mr A concluded that the children require a settled, peaceful environment where they are able to move beyond the parental conflict and focus on their development. He noted that:
…there is a significant risk, given their respective ages, that not only will the girls begin to ‘act out’, but their academic skills will deteriorate and their anger and frustration about the current situation will compromise their capacity to meet important milestones. In addition, there is the ever present spectre that [N] and [S] (sic) will engage their respective thoughts about harming themselves.
The conclusions of Mr A were accepted by the trial judge.
Relevant law- parenting issues
At paragraphs 291 to 372 of the trial judge’s reasons of 20 March 2009, the principles applicable to a determination of parenting matters, the relationship between the objects of the legislation and the principles, and the findings of fact in the context of the primary and additional considerations were discussed.
Primary considerations
The trial judge said that the primary considerations set out in s 60CC(2) of the Family Law Act 1975 (Cth) (“the Act”) mirror the two objects set out in s 60B of the Act. In this case both the primary considerations are relevant.
With regard to the primary considerations, the trial judge noted that in both the parties’ proposals, the quality and nature of the children’s future relationship with the other parent is at risk.
Both the mother and the father submitted to the trial judge that the children are at risk in the care of the other parent. The mother submitted that the children are at risk of self-harm if they are placed in their father’s care. The father submitted that the children are at risk of psychological abuse and exposure to violence by the mother.
The trial judge found that:
63. … There is no evidence that substantiates that the children are currently at risk of physical violence by the mother. I have found previously that the mother’s false allegations against the father, and her involvement of the children in those allegations, constituted emotional and psychological abuse of the girls. As undesirable as it may be from the father’s perspective, the potential for the children to continue to suffer emotional abuse by the mother in this manner diminishes if the children do not spend any time with the father.
Additional considerations
The following additional considerations set out in s 60CC(3) were also considered by her Honour.
The children’s wishes
The strong opposition of the children to spending time with, let alone living with, the father was at the fore of the trial judge’s determination.
The trial judge found that the children have always been exposed to the unhappiness of their parents’ marriage. They have been participants in police investigations, the Department’s investigations, a criminal trial (in which they gave evidence and were cross examined), and the protracted litigation in this court.
Her Honour also found that despite being intelligent, capable and articulate children, they have not developed any immunity from the destructive nature of the parental conflict.
The views of the children were deemed by the trial judge to be genuinely held by them. Her Honour accepted that the children:
67.…hold unwavering negative views of their father, and that requiring the children to spend time with him, or requiring them to attend therapy directed at re-unification of the children with him would place them at an unacceptable level of emotional and physical risk.
Consideration was also afforded to the children’s views and positions from the unarticulated position of wanting and needing to stay with the mother. The trial judge was satisfied that the children fear that their mother will reject them should they have any association with their father. It is to be remembered, the children have both direct and indirect experience how their mother dealt with Ms L.
The evidence revealed that the mother “demonised” Ms L to the children, it can be said, in the same unjustified and cruel way that she demonised the father to them. The trial judge said the mother’s treatment of Ms L:
72.…is a poignant illustration to the girls of how the mother will treat them if they, like [Ms L], tolerate having any relationship with the father. The girls could be in no doubt that to embrace any positive relationship with the father is to risk the complete loss of their relationship with the mother.
The willingness and ability of each parent to facilitate and encourage the children’s relationship with other;
The capacity of the parents to meet the children’s needs;
The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents
The trial judge said that:
73.…[t]he mother’s past actions have decimated the girls’ relationship with the father but they have also had the effect of damaging her own relationship with, and authority over, the girls. That is a further tragic aspect of this case.
Her Honour found the father to be intelligent and forbearing. However, her Honour said that the children’s need for peace seemed beyond his understanding, and that proved to be a real difficulty for the father. The trial judge found that the father:
76....has pursued with grim unrelenting determination the opportunity to have a meaningful relationship with [N] and [S] but has not done so out of any bitterness or vindictiveness towards the mother. Nor has his campaign been based on selfishness. I find that he is solely motivated by a desire to provide his daughters with a warm and loving home environment which he believes, with some justification, it is beyond the capacity of the mother to provide.
…
78.The father demonstrates a better attitude to the responsibilities of parenthood than does the mother. The father is well motivated to, and would, permit the girls to have a meaningful relationship with the mother whereas the mother is not at all inclined to do so vis a vis the girls and the father. However, the total estrangement of the girls to the father and their opposition to consider having any involvement with him in the future means that he has no opportunity to exercise his skills as a parent.
Her Honour also noted that:
77.It is a sad fact in the family law jurisdiction that a determination which is most consistent with the best interest of the children can appear to reward bad behaviour on the part of one parent and work in apparent injustice for the well motivated and best performing parent. The Court has regard to what is fair as between the parents but, ultimately, parental interests must be subordinated to what is in the best interests of the children, at least to the extent of any conflict…
The children’s maturity, sex, background and other characteristics
Her Honour found that it is probable that the removal of the children from their mother will leave them without any parent in an emotional sense and bereft of any stability.
Any family violence involving the children or any member of the children’s family and family violence orders
As stated earlier by the trial judge, the mother’s previous allegations of family violence were unsubstantiated, and fostered by malicious intent on her part and in circumstances which have been extremely detrimental to the emotional wellbeing of the children.
Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children
It was accepted by the trial judge that an end to the litigation would be the most positive step that could be taken for the children, despite the absence of any reconciliation with the father. The trial judge was aware that in the short term there was no reunification in sight or likely to occur.
Her Honour found that the father’s struggle to maintain contact with the children has been constant. In his final address the father proposed that the children be assessed by an expert psychiatrist. The trial judge was satisfied that a psychiatric assessment would not assist:
86.… There was no specific evidence about psychiatric assessment but I am confident that if the family consultant had considered it would help, he would have mentioned it accordingly. I am comfortably satisfied that it will not assist and will, in fact, drive the children even further away from the father.
Any other fact or circumstance the Court thinks relevant
The trial judge indicated that the interim orders were aimed at allowing a final opportunity for the relationship between the father and children to reconcile. Consequently, her Honour found that all possible interim measures had now been exhausted.
The trial judge was confident that the mother, if left to her own devices, would not present a fair or balanced picture of the father to the children’s schools. This was considered by her Honour in making the final orders.
Parental responsibility
The trial judge stated that the equal shared parental responsibility presumption “does not provide a starting point about the amount of time or communication that a child is to have with parents”.
Her Honour was satisfied on the evidence that it was neither practicable nor feasible for the parents to share parental responsibility. However, her Honour noted that:
98.…the best interests of the children require that the father be able to access information about their education and medical care. With the exception of the religious and cultural upbringing of the children, the father’s responsibilities should be equivalent to those of the mother and his status in this regard should be communicated to all concerned.
Consequently, it was ordered that each party have parental responsibility.
Conclusion
Her Honour found that the necessity to preserve the children’s physical and emotional safety and welfare was overwhelming. The outcome ultimately ordered was in her Honour’s opinion the only decision which would afford the children the peace that they require now whilst permitting some possibility of a relationship between the father, the children and their siblings in the future, however long term that may be.
Summary of Appeal Grounds and the father’s submissions
The father submits that her Honour relied too heavily on the false evidence of the mother, despite it being acknowledged by the judge that the mother’s evidence was not reliable. He questions how, in light of the adverse findings, the orders afford the father no contact with his children. We have given considerable thought to the father’s arguments, as clearly, did the trial judge. Some of his submissions to us are reproduced below.
Conditioning of the children
The father believes that the children have been conditioned to speak out against him. However, he does not object to the suggestion that the children are angry at the situation that they are in:
MR DENNISON: The children are taken to the so many different people, from the social workers, from Department of Human Services, to the police. And children are made to say things, and they're – they’re over and over and over they are - how can you say - rehearse and trained to say things against the father, and the mother's solicitors very clear; everybody agree that the children are very clever. There is a way back from the school, both when the schoolteacher and the principal from the both schools come too, they said the evidence was that they think that the children are very clever and what they were doing to protect themselves, and they learn to do that one, and that is quite clear.
…
Okay, so children are very much used to this kind of thing, and at the moment, Mr [A] says the child was very angry because of the situation what she is in. Absolutely true. I don't – I don’t make any objection on that. Any child will be frustrated with this, what is happening. The court is kind of repeating the same thing over and over and over, same thing, just different people, and ask the children and the mother. Mother is holding with the gun behind her back and threatening them, and children has to go back to that house, okay.
Absence of psychiatric and psychologist reports
The absence of psychiatric and psychological reports is also seen by the father as problematic, especially in light of the matter’s serious and complex issues. In the appeal hearing the following exchange took place:
MR DENNISON: She is such a violent mother, okay. I have - there is enough evidence there and ‑ and in this one. It's very violent, very vindictive, a person who has no reason to be angry. It is quite common that people for some reason somebody does, they get angry and it's quite later certain time, there forget about it, whereas this mother, I have not done anything, but I suffer and suffer and suffer and tried to give to her whatever I give to her, but she is vindictive, and she is hateful and she ‑ this is a sickness, okay, and in spite of all that one, the children - - -
MAY J: When you say "this is a sickness", I know that at the end of the trial, you asked the judge to please order that the mother attend a psychiatrist. Was there any evidence at all from anybody that the mother suffered from a psychiatric illness?
MR DENNISON: Nobody ever bothered to do all these things, your Honour. I - in their response, they said that I never made an application except for the last time, but in the day first in 2008 before the trial started, in mine, I very clearly specified that mother should be tested for psychiatric illness, okay.
…
MAY J: So one of your submissions, Mr Dennison, is that the judge should have ordered a psychiatric report in relation to the mother?
MR DENNISON: Yes. Her Honour already questioned few times during the questioning her because the way she was acting.
Although there was a request for the mother to undergo a psychiatric assessment early in the proceedings, the matter was not again raised until very late in the proceedings and after the mother had finished her evidence. Given the length of the trial and the views formed by the trial judge about the matter, it cannot be seen as an error on her Honour’s part to have not ordered such a report.
In addition, to the psychiatric assessment of the mother, the father submits that the children should have been psychologically assessed:
MR DENNISON: It has to be ‑ the order has to be done that the children to be reconnected. I will ‑ I will choose very good psychologist, whatever the cost is, and, you know, children should be sent there without mother's interference, whatever it is. If needed, I will get some volunteers from the church, from Centacare. I talk to the directors, pick up the children, and go to psychologist and talk, and without mother's interference whatsoever, and then if those people think children are good enough, they should make a report to the court, and the children to be continued to see me, you know, however long it takes, one day, two days, three days, one month.
The children has to be taken to the psychologist, independent, well-qualified psychologist, who could write a report to the court what's going on, okay, and then when the judge ‑ the psychologist thinks appropriate, the children should be contacted to me and start communication, and if the psychologist find that the ‑ they find that mother is an obstruction, they should work out, they will work out, qualified psychiatrist. They found out the mother is an obstruction, then that has to be dealt with in the court, your Honour. That is ‑ that is the best I can do, and how the court can say that one ..... another point I want to make up, but this war should stop.
From the judgment it is clear that the trial judge was considering the children’s best interests. It was not in their interests to be subjected, yet again to more assessments. By ordering the involvement of Centacare, the trial judge was ensuring that the children received counselling and that attempts of reunification were made in this controlled and supportive environment. We are also of the opinion that the children should not be the subject of further psychological assessments.
We do not consider the failure to order these reports was an error on the part of the trial judge.
Court’s role in the continuation of abuse
It is the position of the father that the court has aided the mother in the continuation of the abuse of the children. It is alleged that the children know what a terror the mother is. For the father, as he sees it, if the court does not recognise this, then there is no justice. He believes it is not right to leave the children who have been abused for so many years by their mother in her care and isolated from other members of their family:
MR DENNISON: …even if the children are completely brainwashed, it is that ‑ it is the duty of this society to help them to fix that problem rather than leave it in the hands of an advisor who always her intention was keep the children away from the father and never have a father to them.
…
The problem here is the children know mother is very vindictive. What her Honour has done is that one. They given the shot in the children’s hand. Now, what would happen if the children said ‑ the children know this very well - but what would happen if the children say, "Okay, we have no problem. We want to see the father". That is enough for the mother to hate them forever, finish. "You chose between me and the father". The children, the ‑ the court should never put the children in this situation.
MAY J: Well, that's exactly what the trial judge was concerned about, wasn't she? Bennett J was – was very anxious to not put the children in the position where their lives became impossible.
MR DENNISON: That's exactly what she has done. What she has done now is that let the children be safe when they're ready. It should not be that done. Judges should ..... No, make the law here, the order here, and, you know, if you don't agree with that one, you will be punished. This would have finished, your Honour. Five years ago it would have finished. Even today it would have finished…
We are of the opinion that no more could have been done given the circumstances of the case, as unsatisfying as it may be for the father. This ground of appeal has no merit.
The train station incident
The father also submitted that the train station incident alleged to have occurred on 22 April 2009 did not occur at all. The father claims that the appointment was cancelled by S, on the instructions of the mother on 15 April 2009. Centacare informed the father of this and it was agreed that the father and Ms L would instead attend a counselling session on 21 April 2009. He submitted the fact that the train station incident was not raised in court on 16 July 2009 also can be seen to support his argument. The father also asserts that the train station incident further supports his submission that the mother is alienating and abusing the children. The following exchange took place during the hearing of the appeal:
MAY J: How are you – how are you able to say that that was not true?
MR DENNISON: Okay, number 1: I told you the appointment was given to me on the 15th to see the children. On the 16th, the appointment was cancelled, and the appointment was 22nd, okay. So they already cancelled their appointment on 22nd. The second day, the 22nd, the appointment was already cancelled. Okay, number 1: that's the one thing. Then I seen them on - here you can see - on the 22nd, 21st I went with [Ms L], and I saw them, and we discussed about this matter, and all the, you know, there is no evidence, but the matter was that she said, "She is very difficult. Everybody know it, [Mr Dennison]. There is nothing to lose for her, you know, if she doesn’t abide, but if you get contact with the children, she is going to lose the children. She knows, you know, so it's very difficult, [Mr Dennison], but we’re working on it, okay". That's one, your Honour.
The second one is we were back on 16 July to the court, okay. We were back on 16 July in the court. In that, the transcript - you might have read about it - they have never, ever mentioned anything about the train incident, your Honour. That is months later this supposed to happen. We've gone through that one, and none of this ever mentioned. This idea of the train incident was not even considered even in the month of July, your Honour. It was not there. They never mentioned why. It's such a serious matter. The children are running away from the train station to avoid the father, but it was not one mention in July, your Honour, in that year.
Instead, what they said was - first they said no, no, the mother abide by the court order, everything was fine, and later ‑ in later they said when I put an argument with her Honour, then slowly, you know, their barrister said, "Oh, there was only one hiccup at the beginning, then everything was fine". That hiccup was the mother didn't bring the children, okay, and they agreed the mother didn't bring the children, but they never said anything about the train, okay.
Even if it is accepted that the train station incident did not occur, it is simply another criticism of the mother and that cannot render her Honour’s orders erroneous. Nothing can turn on it. In our view this is not a sustainable ground of appeal.
The family report
It is the submission of the father that the family report should not have been considered at all in the judgment dated 18 December 2009. The father believes that the evidence of Mr A was afforded too much weight, especially given the fact that Mr A did not read the judgment of 20 March 2009.
He also complains that Mr A did not observe the father and the children together. The father submits that Mr A was conditioned by the mother to believe the children before he even met them personally. Consequently, he is left questioning how the report writer considers the mother so truthful when the court has found her to be not reliable. In his submission to us the father said:
MR DENNISON: But he has already, for some reason, he has made up a decision, number one, your Honour, and second, when you’re going to see the children, he told me the first thing in the morning, he said, don't get ‑ "Don't stay around here, because, you know, make sure you keep in the corner there, because if they see ‑ if the children see you, they might freeze; they might not open their mouth to talk to me, so keep away from them". His impression was already there, your Honour. He is already contaminated with the impression; I don't know where he got it from; he is already ‑ before seeing the children and anything happen, he said, you know, he thinks the children are so terrified of me, and then obviously his report is coming that way because his mindset is already there.
Probably he has read the report from the other ‑ there was another report made by another family consultant before we started the trial, and that report was ‑ that report was so bad. The report writer said that the father should never be allowed to come near the children and, you know, he has abused the children and it's quite clear and blah blah blah, you know, because he also listened to the mother when she said ‑ ‑ ‑
There is no conclusive evidence that Mr A did not read the judgment of 20 March 2009. Further, the father had an opportunity to cross-examine Mr A and he chose not to as the transcript reveals:
HER HONOUR: So I can assume there is no questions for Mr [A] from you?
MS GLASTEEL: No, I don’t have any questions, your Honour.
HER HONOUR: Right. From you, Ms Wiener?
MS WIENER: No, your Honour.
HER HONOUR: No. Mr [Dennison]? No?
MR DENNISON: No, I just wonder whether you would be able to call them and just get the dates of the appointments and cancel the appointments.
HER HONOUR: Okay. Well, that is not a question for him, but thank you.
MR DENNISON: That will ….. bit more - - -
HER HONOUR: Yes. Okay. Sit down.
MR DENNISON: Thank you.
We are of the view that these complaints should have been raised with the trial judge. In the absence of submissions before the trial judge and a request to cross examine Mr A, such complaints have no merit on appeal.
The best interests of the children
The father submits that if the best interests of the children are to be considered, then the children must be reunited with the father and the rest of the family. As he said to us:
MR DENNISON: It is not an option, your Honour, to leave the children with her, why I have very clearly explained to them, the children – if the mother had ….. in family around here - she has got uncles, or she has got brothers and sisters and children, got other cousins, and it kind of, you know, functional family around there, your Honour, I would have not bothered at all, but in this situation at the moment, mother don't even have one friend, your Honour, good friend.
In dealing with the file, the judge asked her to give some names, and she would not give one particular person that’s good friend who they will spend a night with them or complete full name and surname. She couldn't provide, your Honour, and I've seen this. I lived with her. She is isolating person. She love to be a – one of these isolating for some reason. She just want to be isolated, and also she cannot live with children or anybody who is taller than her or bigger than them. Once they start arguing, then she will start rattling and smashing things around. As long as they're small, under her hand control, everything will be fine.
…
My concern is, and your Honour said before about the children always will know and they will know the truth, your Honour, I have no problem about ‑ I don't want to defend myself in the future. That is no problem. My problem is, and I'm begging here the court that today, now, the children need and they have an opportunity of the wellbeing of the physical material, psychological, and they allow the family and everything they need now, and if they don't get it now, and if they are living in that really horrible place with the mother without all these things, no human beings, even in - I already explained in my affidavit - even in all the animals, even in the animal grouping, they always live in a commune.
The father then referred to what he characterised as “section 60 of the Family Law Act” (transcript page 31). In particular, he submitted that s 60B and s 60CC are relevant in this case. It is his submission that the children’s best interests are not being met as the children are:
· being denied the benefit of both their parents having a meaningful involvement in their lives (s 60B(1)(a));
· not protected from physical or psychological harm (s 60B(1)(b)). This assertion is supported by his claim that the mother is an abuser:
It is ..... the mother is ..... she is violent, and she is emotionally distant, and she will continue to do that. There is no reason ‑ her Honour said that one, "Oh, [Mr Dennison], you're out of sight now; she is not going to abuse". I don't think abuser is always ..... your Honour. She doesn’t need any excuse.
· not receiving adequate and proper parenting in the care of their mother (s 60B(1)(c)):
There are no aunties, no ..... no friends whatsoever, and they have ‑ only they will get is with ….. before, showing the court before.
The education she get from her - for her is that her ‑ her behaviour, advice, going and stealing them, taking the store - shops, taking the jackets and put on and walk out which she has done in front of my eyes. There's no reason that she is not going to continue this behaviour and the children believe to lie and steal.
In addition, the father submits that the children are being denied the opportunity, as outlined in the principles underlying the objectives of Part VII of the Act:
· to know and be cared for by both parents regardless of their parents relationship status (s 60B(2)(a));
· to spend time with and communicate with both their parents and other people significant to the children’s care, welfare and development (s 60B(2)(b)), and;
· to enjoy their culture (s 60B(2)(e)):
There's lots of things they can learn from me and I'm a multicultural, your Honour. I can almost, I can speak quite basic Chinese language and a very good familiar with the Chinese people, and I travel quite often.
The father submits that he is also being denied the opportunity, as outlined in the principles underlying the objectives of Part VII of the Act to:
· jointly share parental duties and responsibilities in regards to the care, welfare and development of the children (s 60B(2)(c)), and;
· agree about the future parenting of the children (s 60B(2)(d)).
It is the father’s submission that this is detrimental to the children’s best interests. He is left questioning how the court can say “[o]h that’s the best interest”.
It was put to the father that as undesirable as not having contact with his children may be, he may just have to wait until the children approach him for contact. In response, the father said:
MR DENNISON: So what more I can say. I don't have ‑ I don't understand why in spite of all this one, why the court just abandon the children and saying "Don't worry, [Mr Dennison], you know when they grow, they will know", but I don't need anything when they grow, your Honour. I have - never have any intention of putting myself out. I am ‑ I have ‑ I believe in ..... I believe in God, I do the right thing, and I don't care what's happening tomorrow. Only my concern is now the children are in front of me, they're destroyed, being totally destroyed in front of me, and that is to be stopped. I need the children now and something has to be done and my proposal is - you know, I'm not a lawyer, your Honour, and commonsense only I'm using here is the commonsense, I can't do much more than that.
The father is of the belief that unless he has time with the children, they will not know that he is available to them:
MR DENNISON: You know, so there is no reason, unless there's a communication going on, there is no reason for them to believe that father is always there waiting for us.
…
So I don't know, you know. This is the centre of that, and another thing is as I said before, talking about children because they're the girls, you know, they don't be with the mother they will ‑ they will ‑ when they grow up they will become this and that, but my argument is that what the children need now love, affection, and all the care they need now, not after they've grown‑up, your Honour, and I ‑ I cannot stay here saying, "Oh, [Mr Dennison], you can just wait there and be around there and show them you are around there". It actually is going to be more ..... than hurting them, then I just be around here, your Honour.
The father asserts that leaving the children with the mother is not going to bring an end to the litigation. As he said to us:
MR DENNISON: Your Honour, leaving this with the children with the mother is not going to end at all. I will go to ‑ you know, because I see from my heart it is not the right thing to abandon the children at this age. From the age of two they gone through all this, I already explained to you.
…
I'm not going to abandon here or I'm not going to stop this litigation here, your Honour. Whatever it takes, if I have to go to the High Court, if I have to collect the fund, whatever it takes, and I will, you know - if not, I will go to the human rights; I will go anywhere. I will not, never, ever going to abandon, and this case is not going to stop here. You know, all I requested was I feel this very genuine and very, I think, very reasonable what I'm asking here now, and that's the best interests of the children, your Honour.
Conclusion
The reasons for judgment and the orders in this case illustrate the working of the Act and the paramountcy given to the best interests of the children concerned.
The court made no order for the father to have time with the children. The orders reflected the evidence presented in this case, particularly about the children. The family report recommended that the children remain living with the mother and that they not have any contact with the father for the time being. It was also suggested that the children have the situation explained to them and that both the children and the father have independent counselling. The conclusions reached in the family report were supported by the ICL, who in addition, submitted that although the children are not at risk in the care of their father, there should be no orders requiring the children to spend time or communicate with him.
Despite the fact that the trial judge made adverse statements against the mother and not the father, we share the view of the trial judge that:
13.Regrettably for the father, it is impossible to imagine that there could be a different result.
Relying on the expert evidence the trial judge found;
·the children held strong views about their father and did not wish to see him;
·the children may harm themselves should orders be made that they see their father;
·the father was unable to appreciate and accept the children’s views, and;
·there is a need for the litigation to end and all possible attempts to reunite the children with the father have been attempted and failed.
In our view, in what is an unusual case, the trial judge made no appealable error.
The “reality of the situation of the parents and the child” (MRR v GR (2010) 263 ALR 368 at 372) was clearly a significant part of the trial judge’s reasons for making no orders, as opposed to the desirability for a parent having a “meaningful relationship” with his children.
Costs
At the conclusion of the hearing we heard submissions as to costs.
Counsel for the mother submitted that if the appeal was unsuccessful an application for costs would be made, as required by the Legal Aid Commission, which provided her funding. Costs would also be sought, as it was submitted that the appeal was entirely without merit.
The father submitted that should the appeal be successful he would not be seeking costs, despite the fact that he had invested considerable amounts of money in printing and obtaining transcripts.
If the appeal is unsuccessful it is the submission of the father that costs should not be awarded against him. He justifies his position by observing that he is a member of the public and that he has been continually denied Legal Aid funding, despite having no means to pay for legal representation.
In the circumstances of this case, including the parties’ financial circumstances, there should be no order as to costs.
I certify that the preceding one hundred and forty seven (147) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court May, O’Ryan & Strickland JJ delivered on 17 September 2010.
Associate:
Date: 17 September 2010
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