DKG v SJB
[2016] WASCA 149
•26 AUGUST 2016
DKG -v- SJB [2016] WASCA 149
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 149 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:49/2015 | 23 MAY 2016 | |
| Coram: | NEWNES JA MURPHY JA MITCHELL JA | 26/08/16 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time within which to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | DKG SJB AJB |
Catchwords: | Practice and procedure At trial appellant in hospital following alleged chest pains Finding by primary judge that chest pains concocted to delay trial Whether failure to adjourn trial constituted denial of procedural fairness Family law Child-related proceedings Family Court Act 1997 (WA), s 66C Whether primary judge erred in reducing time appellant entitled to spend with child Turns on own facts |
Legislation: | Family Court Act 1997 (WA), s 66C |
Case References: | Ex parte Bone; Robins and the Shire of Greenough [1990] WAR 94 Harris & Hadfield [2014] FamCAFC 41 House v The King [1936] HCA 40; (1936) 55 CLR 499 Sullivan v Department of Transport (1978) 1 ALD 383 Talbot & Talbot [2015] FamCAFC 132 Taylor v Taylor [1979] HCA 30; (1979) 143 CLR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DKG -v- SJB [2016] WASCA 149 CORAM : NEWNES JA
- MURPHY JA
MITCHELL JA
- Appellant
AND
SJB
First Respondent
AJB
Second Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram : MONCRIEFF J
Citation : DKG and SJB [2015] FCWA 8
File No : PTW 1136 of 2007
Catchwords:
Practice and procedure - At trial appellant in hospital following alleged chest pains - Finding by primary judge that chest pains concocted to delay trial - Whether failure to adjourn trial constituted denial of procedural fairness
Family law - Child-related proceedings - Family Court Act 1997 (WA), s 66C - Whether primary judge erred in reducing time appellant entitled to spend with child - Turns on own facts
Legislation:
Family Court Act 1997 (WA), s 66C
Result:
Extension of time within which to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr D J Garnsworthy
First Respondent : In person
Second Respondent : Mr S Jones
Independent Children's Lawyer : Ms R L Cohen
Solicitors:
Appellant : In person
First Respondent : In person
Second Respondent : Clement & Co
Independent Children's Lawyer : Legal Aid (WA)
Case(s) referred to in judgment(s):
Ex parte Bone; Robins and the Shire of Greenough [1990] WAR 94
Harris & Hadfield [2014] FamCAFC 41
House v The King [1936] HCA 40; (1936) 55 CLR 499
Sullivan v Department of Transport (1978) 1 ALD 383
Talbot & Talbot [2015] FamCAFC 132
Taylor v Taylor [1979] HCA 30; (1979) 143 CLR 1
1 JUDGMENT OF THE COURT: This is an appeal from a decision of Moncrieff J in the Family Court of Western Australia, who, on 18 November 2014, made orders that TJ, the child of the appellant/father and the first respondent/mother, reside with the second respondent, the child's maternal grandmother, and spend limited supervised time with the appellant. The appeal was commenced out of time and the appellant requires an extension of time within which to appeal.
2 The appellant did not attend the trial of the proceedings in the Family Court at which the orders were made, a facsimile having been sent to the Family Court late in the evening of the day before trial to say that he had been admitted to hospital and was unable to attend the trial. The primary judge concluded that the appellant's symptoms were fictitious and simply calculated to prevent the trial proceeding. His Honour declined to adjourn the trial, which proceeded on an undefended basis.
3 The appellant contends that the failure of the primary judge to adjourn the trial constituted a denial of procedural fairness. The appellant also attacks the orders the primary judge made as to the time the appellant is permitted to spend with TJ.
4 Before turning to the substance of the appeal, we should mention that, as counsel for the appellant conceded [ts 7], the appropriate course was for the appellant, instead of appealing, to apply to the primary judge to set aside the orders his Honour had made and to rehear the matter, on the basis that the trial had taken place in the appellant's absence: Taylor v Taylor [1979] HCA 30; (1979) 143 CLR 1; Talbot & Talbot [2015] FamCAFC 132. The appellant chose not to take that course. Counsel for the appellant told us that the appellant had chosen to appeal because he did not think he had much chance of success before the primary judge. Counsel acknowledged that that might smack of forum-shopping.
5 That in itself is enough for an extension of time to appeal to be refused. In any event, for the reasons set out below, the grounds of appeal have no merit so that no proper purpose would be served in granting leave.
Background
6 TJ was born in July 2006. The appellant and the first respondent have never married so that any child-related proceedings fell under the Family Court Act 1997 (WA) (the Act). Proceedings were not long in coming. On 7 March 2007, the appellant commenced proceedings in the Family Court seeking, in effect, orders that TJ live with him and that the first respondent spend time with TJ under the supervision of the second respondent at times to be agreed. An Independent Children's Lawyer was appointed on 4 September 2007.
7 The trial was listed for hearing on 28 October 2008 but that date was vacated and the trial actually commenced on 25 May 2009. On the third day of trial, agreement was reached between the appellant, the first respondent and the Independent Children's Lawyer, and consent orders were made, in substance, that TJ was to live with the first respondent and the appellant was to have supervised time with TJ. The effect of the consent orders was that the appellant's original application remained on foot, with liberty to relist it.
8 Over the following three years, numerous applications were made by the parties and numerous interim orders were made by the court in respect of custody and access, the effect of which was that over that time TJ was shuttled back and forth between the appellant and the first respondent as first one and then the other applied for orders that TJ live with them. The fluctuating position appears to have been at least in part a result of allegation and counter-allegation by the appellant and the first respondent regarding the consumption of illicit substances by the other. The consequence, however, was that, as the primary judge put it, TJ was like 'a Ping-Pong ball passing between [the appellant and the first respondent].'
9 On 26 October 2012, the second respondent was given leave to intervene in the proceedings and interim orders were made that TJ live with the second respondent, with the appellant and the first respondent to spend time with TJ on a supervised basis.
10 The primary judge made programming orders on 2 December 2013 to bring the matter to a final hearing. Those orders included an order that the matter be included in a callover of cases awaiting trial to be held on 14 February 2014 and orders as to the filing of affidavits by the parties.
11 The appellant subsequently sought to vary the orders. On 7 January 2014, the primary judge removed the matter from the 14 February 2014 callover list and extended the time for the filing of affidavits.
12 When the matter came back before his Honour on 11 March 2014, the appellant was still not ready to proceed to trial. It was relisted in a callover on 23 May 2014 and the time for the filing of affidavits by the appellant was extended by a further 42 days. The primary judge ordered that if the appellant failed to comply with that time limit all outstanding applications by him would stand dismissed and the second respondent would have leave to proceed on an undefended basis.
13 When the matter came before the primary judge on 19 May 2014, the appellant had failed to comply with the previous order. On this occasion, the appellant was represented by counsel and the primary judge was persuaded to remove the matter from the callover list on 23 May 2014 and to relist it in a callover on 20 June 2014. (We should interpolate that apart from that occasion the appellant appeared in person throughout.) His Honour extended the time for the filing of affidavits by the appellant to 16 June 2014. He again ordered that if the appellant failed to comply with that time limit all outstanding applications by the appellant would stand dismissed and the first and second respondents would have leave to proceed on an undefended basis.
14 Between July and September 2014, the appellant filed various affidavits relating to further interim applications he had made. None of the affidavits addressed the final orders he sought.
15 The matter was not set down for hearing at the callover on 20 June 2014 and was then listed for a callover on 15 August 2014. Shortly before the August callover, the appellant wrote to the court complaining that the Independent Children's Lawyer had not assisted him with subpoenas, so that he was not ready for trial, and also saying that he was medically unwell with depression 'from being victimised'. Two days before the callover, the appellant filed a callover certificate in which he requested that the case be removed from the callover list on the ground of his poor health. The appellant claimed that because of the Family Court he had 'bad depression'.
16 The appellant attended at the callover and requested an adjournment. As it turned out there were no dates available for the trial and the matter was stood over to the September callover.
17 On 26 August 2014, the appellant made an interim application seeking, among other things, variations to the arrangements regarding the time he was to spend with TJ. The appellant's affidavit in support of the interim application included statements as to further deterioration in his health, including the onset of anxiety attacks, and a warning he claimed to have received that if he had another heart attack it was likely to be fatal.
18 By the time that application came on for hearing on 27 October 2014, the substantive proceedings had been listed for trial on a date not before 18 November 2014. At the hearing on 27 October 2014, the appellant told the court that as a consequence of a medical condition from which he was suffering he would be hospitalised on 18 November 2014 and unable to take part in the trial. The primary judge required evidence as to the medical condition and the hospitalisation if the trial was to be adjourned.
19 The appellant wrote to the court on 10 November 2014 admitting that what he had said was untrue. His explanation was that he was taking diuretic tablets and was too embarrassed to say in open court that he had to go to the toilet 'every 5/10 minutes'. He said he hoped to be off the tablets by February or March 2015. The appellant also wrote to the Independent Children's Lawyer referring to his communication to the court and again complaining that the Independent Children's Lawyer had not issued subpoenas that he wanted issued for his case. (Why the appellant considered that the Independent Children's Lawyer was under an obligation to provide such assistance is not apparent.)
20 As a result of those communications, the proceedings were listed before the primary judge on 14 November 2014. The appellant appeared at the hearing and pressed for the trial to be adjourned. That was refused. The primary judge noted that there was no medical evidence that might justify an adjournment and assured the appellant that any problem of the nature mentioned as a result of the diuretics could be accommodated by the court. On the same day, the Independent Children's Lawyer served on each of the other parties a minute of proposed orders substantially in the terms of the orders his Honour ultimately made.
21 On 17 November 2014, the associate to the primary judge contacted the appellant by telephone and confirmed that the trial would commence the following day.
22 On the morning of 18 November 2014, a facsimile was found to have been received at the court. The text of it was as follows:
HI. THIS IS MRS [G], ([D]'S MOTHER) I AM SORRY HE WILL NOT BE ABLE TO ATTEND THE TRIAL TODAY, AS HE IS IN JOONDALUP HOSPITAL.
YOURS SINCERELY,
AM[G]
23 On the facsimile there was a handwritten date of 17 November 2014 and the notation 'Very Urgent'.
24 When the matter was called on for hearing at 10.00 am that day, the Independent Children's Lawyer informed the court that the same facsimile had come to her attention upon her arrival at work and she had contacted the hospital. She said the appellant had informed her that he had been admitted to the hospital at 10.00 pm the previous day with chest pain. She said he had declined to hand the phone to the attending cardiologist.
25 The matter was stood down to enable the Independent Children's Lawyer to contact the hospital again. The primary judge told the Independent Children's Lawyer to inform the appellant that unless he gave her authority to speak to the cardiologist and there was clear medical evidence that the appellant was unfit, the trial would proceed.
26 The Independent Children's Lawyer subsequently told the court that she had spoken to the cardiologist who said some testing had been carried out. He had told her there was no evidence of cardiac damage, but the appellant would not be discharged until a stress test had been conducted and it was not known when that would be done.
27 The primary judge refused to adjourn the trial. He ordered that the first and second respondents have leave to proceed on an undefended basis and that all outstanding applications by the appellant be dismissed. After hearing submissions from the first respondent, the Independent Children's Lawyer and counsel for the second respondent, the primary judge discharged all previous orders pertaining to TJ and made parenting and other orders, including an order that TJ live with the second respondent and that the second respondent have sole parental responsibility for TJ. His Honour made the following orders for supervised contact by the appellant with TJ:
3. The [appellant] spend time with the child as follows:
3.1 on four occasions per year for no more than 6 hours per visit, being on Father's Day, the Sunday immediately preceding the child's birthday, the Sunday immediately preceding the [appellant's] birthday and the Sunday immediately preceding Christmas Day;
3.2 on other occasions agreed between the parties and confirmed by each of them in writing; and
3.3 on any occasion requested by the child.
28 His Honour also ordered that when TJ turned 12, the parties were to attend mediation to review the time the appellant was to spend with TJ.
29 The orders were made with the consent of both respondents. The primary judge subsequently provided reasons for his decision.
The reasons of the primary judge
30 It is appropriate to deal first with the reasons of the primary judge for refusing an adjournment and proceeding with the trial on an undefended basis. In his reasons, the primary judge canvassed the history of the matter in detail, setting out the various defaults by the appellant in compliance with orders of the court directed to bringing the matter to trial and the previous applications by the appellant for the trial to be postponed.
31 His Honour went on to note that enquiries of court staff had established that the facsimile of 17 November 2014 had been received by the court at 8.53 pm on 17 November 2014. His Honour considered that the typeface, style, grammar and language of the facsimile were consistent with communications the court had received from the appellant and that it had been produced on the same computer. His Honour noted that the first respondent had confirmed that the signature on it appeared to be that of Mrs G, but concluded that it was likely the appellant was the author of the facsimile.
32 The primary judge concluded that the appellant's symptoms of chest pain were fictitious and simply calculated to prevent the trial proceeding. His Honour referred to the appellant's previous agitation for an adjournment, his previous false representation as to his health, and the fact that the facsimile had been sent an hour before the appellant was admitted to hospital, at a time when he could not have known that he would be admitted to hospital or that he would still be in hospital on 18 November.
33 The primary judge also referred to similar conduct of the appellant in other courts that had been raised by counsel for the other parties. Reference was made to an action the appellant had commenced in the Magistrates Court against the second respondent for an alleged debt in which the appellant had failed to appear at a hearing and instead had sent a note to the court saying that he was unable to attend because he had woken up very ill. The magistrate had not been satisfied that the appellant's excuse was genuine and had dismissed the appellant's application. His Honour also referred to an action the appellant had commenced in the District Court against the Independent Children's Lawyer's predecessor in which the appellant had failed to appear at a mention. When contacted by telephone the appellant had said he was ill and needed to see a doctor, and had then hung up. The court had made a springing order.
34 Having found that the alleged illness was simply a tactic to delay the trial, his Honour ordered that the trial proceed on an undefended basis.
35 Turning to the substantial issues in the proceedings, the primary judge had before him the affidavits of the parties; five reports by the Single Expert, Dr Watts; and reports by Safe Oasis Solutions and Relationships Australia which at various times had supervised the appellant's contact with TJ. His Honour accepted the evidence of the second respondent that the appellant had been responsible for damage that had been caused to her swimming pool and car [138]. He also accepted the second respondent's evidence that TJ had on many occasions expressed fear of the appellant [140]. The primary judge accepted too the opinion of Dr Watts that some of the second respondent's anxiety about the conduct of the appellant was being picked up by TJ [141]. His Honour also accepted the second respondent's evidence that the appellant had commenced legal proceedings against her for a fictitious debt and had pursued that claim by an appeal against its summary dismissal, and that the appellant had threatened to commence further civil claims against the second respondent unless his demands in connection with TJ were met [143] - [144]. His Honour referred to Dr Watts' assessment that if the appellant did not get his own way he launched an 'all out assault' [146]. The primary judge also observed that the Safe Oasis Solutions reports detailed a somewhat oppositional and dysfunctional relationship between the appellant and TJ. His Honour concluded that there was little in the reports that would lead to the conclusion that TJ was positively engaged with the appellant in any substantial or meaningful way [154], [160].
36 The primary judge then turned to consider the matters set out in s 66C of the Act, starting with the primary considerations in s 66C(2).
37 In considering, pursuant to s 66C(2)(a), the benefit to TJ of having a meaningful relationship with both parents, his Honour found that TJ had a meaningful relationship with the first respondent [168] and considered that the focus of this issue had to be largely on the appellant [169]. The 'vexed question', in his Honour's view, was whether TJ derived any benefit from a relationship with the appellant in circumstances where TJ was what his Honour described as 'effectively the pawn in quite extraordinary acts of manipulation and at least psychological abuse [by the appellant] of the [second respondent] coupled with threats, apparently frivolous or vexatious litigation and … an extraordinary desire to extend these proceedings rather than resolve them' [174]. His Honour considered that as the second respondent was TJ's primary carer, this must have a negative effect on TJ [175].
38 The primary judge concluded that the relationship with the appellant could barely be described as meaningful for TJ and that the benefit of a relationship with him was not significant [176]. The primary judge found that the relationship should be limited to the extent that TJ maintained some knowledge of the appellant and his family so that at a later stage she would be in a position to choose whether to have a closer relationship [173], [176].
39 In relation to the matters in s 66C(2)(b), the primary judge found that the second respondent had been subject to threats, property damage and psychologically abusive behaviour by the appellant which affected TJ [179]. His Honour was not persuaded that such abusive behaviour would cease and for that reason the orders for the time that the appellant was to spend with TJ were framed so as to avoid the need for communication between the appellant and the second respondent as any such communication was likely to be abusive on the appellant's part [182].
40 His Honour then turned to the additional considerations in s 66C(3), observing that some of them had already been considered in the course of considering the primary considerations. He noted that TJ had clearly stated that she wished the present arrangements to continue and had expressed fear of the appellant. (In fact, in his most recent report Dr Watts had said that TJ told him she did not want to see the appellant at all.) The primary judge considered that TJ was of an age at which her wishes warranted serious consideration [186] - [187]. His Honour found that the relationship between TJ and the second respondent was a positive one that TJ clearly enjoyed and in which she had thrived [188]. He noted that the appellant had made no financial contribution of substance for TJ's care, that financial responsibility having been assumed by the second respondent [189].
41 His Honour considered that of the additional considerations that fell to be taken into account under s 66C(3), the most significant were TJ's wishes and the likely effect of any changes in TJ's circumstances. He found that TJ had a loving and secure relationship with the second respondent. For the first time TJ had stability and predictability, and had been able to form appropriate social attachments and to progress at school [191]. To remove her from that environment was likely to have a catastrophic effect on her well-being and was not compatible with her best interests [192]. His Honour also considered that the appellant's capacity to provide for TJ's needs, including her emotional and intellectual needs, was unclear in light of repeated claims as to various disabilities, although his Honour expressed some doubt as to the credibility of many of the appellant's claims [196].
42 It was for those reasons the primary judge made the orders described earlier.
43 The appellant appeals from his Honour's decision.
The grounds of appeal
44 The appellant relies on four grounds of appeal. The substance of those grounds are that the primary judge erred in law in:
1. exercising his discretion to refuse to adjourn the trial and in ordering that it proceed on an undefended basis (grounds 1 and 2);
2. admitting evidence as to proceedings in another jurisdiction (ground 2.2);
3. limiting review of the order as to contact between the appellant and TJ until TJ was 12 years of age and in failing to provide for overnight stays by TJ with the appellant (ground 3); and
4. dismissing the applications made by the appellant without having heard from him (ground 4).
The disposition of the appeal
Grounds 1, 2 and 4
45 These grounds can conveniently be considered together. Whilst the finding of the primary judge that the appellant's symptoms of chest pains were fictitious was not challenged in the grounds of appeal, it became apparent on the hearing of the appeal that the appellant did seek to attack that finding. It is appropriate to deal with these grounds on the basis that it is in issue.
46 While it was expressed in various ways, the substance of the appellant's case was that the refusal of the primary judge to adjourn the trial, in circumstances where the appellant was in hospital and unable to attend, constituted a denial of procedural fairness.
47 It is clear that a failure or refusal to adjourn a hearing can constitute a denial of procedural fairness if the consequence of that failure or refusal is that a party has not been afforded a reasonable opportunity to present their case. A failure to adjourn a hearing can be a denial of procedural fairness even if no application for an adjournment was made:Sullivan v Department of Transport (1978) 1 ALD 383, 403; Ex parte Bone; Robins and the Shire of Greenough [1990] WAR 94, 103 - 104. But the principle that a party to a proceeding must be given a reasonable opportunity to present their case does not require that the party takes up that opportunity or takes the best advantage of it: Sullivan v Department of Transport (403). In particular, the principle does not require that a party be heard but only that the party be given a reasonable opportunity to be heard. Whether in any case a failure or refusal to adjourn a hearing amounts to a denial of procedural fairness will depend upon the particular circumstances of the case.
48 In the present case, it was implicit in the facsimile of 17 November 2014 that the appellant sought to have the trial adjourned. In any event, ordinarily an assertion by a party to proceedings that they are unable to attend a hearing due to sudden ill-health or incapacity squarely raises the issue whether, in order to afford the party procedural fairness, the hearing should be adjourned. That issue was clearly raised in this case, as the primary judge recognised. We do not, however, consider that his Honour's refusal to adjourn the trial amounted toa failure to afford the appellant a reasonable opportunity to put his case or otherwise involved a failure to observe the requirements of procedural fairness.
49 The only information before the primary judge to support an adjournment was the appellant's statement that he had suffered chest pains which had led to his admission to hospital. While the appellant's admission to hospital was not in doubt, in the circumstances his Honour was entitled to reject the appellant's assertion that he had suffered the chest pains that had led to his admission. The facsimile of 17 November 2014 itself cast very considerable doubt on the circumstances of the appellant's admission. As his Honour observed, it was sent an hour before the appellant was admitted to hospital, at a time when he could not have known that he would be admitted to hospital or that he would still be in hospital on 18 November 2014. His Honour was also entitled in assessing the truthfulness of the appellant's claimed symptoms to have regard to the repeated attempts the appellant had made to avoid the trial being listed for hearing and then, after it was listed, to have it adjourned to a date in the following year.
50 The appellant's conduct throughout had made it apparent that he was anxious to avoid the trial proceeding. The initial programming orders to bring the matter to trial were made on 2 December 2013. The appellant failed to comply with those orders and with the various extensions of time he was subsequently granted. He then sought to have the matter removed from the August 2014 callover on the basis of alleged ill-health and when that failed he attended at the callover and (unsuccessfully) requested an adjournment. Some three weeks before the trial was due to commence the appellant again sought to have it adjourned, claiming that he would be in hospital on the trial date. When required to produce medical evidence to support that claim, he admitted that it was untrue. At the hearing on 14 November 2014, four days before the trial was due to commence, he once more sought to have the trial adjourned on the basis of an alleged medical condition that was unsupported by any medical evidence.
51 Contrary to the appellant's submission, the fact that on the morning of the trial a stress test had to be carried out before the appellant would be discharged from hospital did not give rise to an inference that the appellant's alleged symptoms had been found to be genuine or that the stress test was required as a result of clinical findings. There was no evidence to that effect and nothing the cardiologist said to the Independent Children's Lawyer suggested that the stress test was other than a routine test in such cases.
52 At the time the primary judge made the order that the trial proceed, there was no medical evidence before him that the appellant suffered from a medical condition that would or could have prevented him from appearing at the trial. We should note that nor was any such evidence sought to be adduced on the appeal.
53 The primary judge was also entitled to have regard to evidence of occasions in other proceedings on which the appellant had failed to appear in court on the basis of his alleged ill-health. That evidence went to the credibility of the appellant's claim of ill-health on this occasion. It is not a proper objection to its admission that the evidence was hearsay. In child-related proceedings, which the proceedings below were, the ordinary rules of evidence relating to (among other things) hearsay do not apply unless the court decides to apply them to an issue in the proceedings: s 202H(1) of the Act. The court did not decide to apply such rules of evidence to any issue in this case.The question of the weight to be given to the evidence was a matter for his Honour: s 202H(2).
54 On the material before him, the primary judge was entitled to conclude, as he did, that the symptoms that had caused the appellant to be admitted to hospital were fictitious and had been concocted simply in order to delay the trial. The primary judge was not in error in the exercise of his discretion in refusing to adjourn the trial and in ordering that it proceed on an undefended basis. In the circumstances, the appellant was not denied a reasonable opportunity to present his case; he chose not to take that opportunity. These grounds of appeal have no merit.
Ground 3
55 The determination of the time that a non-custodial parent may spend with a child involves the exercise of a discretion. It is therefore necessary for the appellant to show that the exercise of the discretion miscarried in one of the ways explained in House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505: see Harris & Hadfield [2014] FamCAFC 41 [110]. That is, it is necessary to show that the trial judge made an error of fact or law, took into account irrelevant considerations or failed to take into account relevant considerations, or that whilst the error is not manifest the result is so unreasonable or plainly unjust that error may be inferred.
56 The paramount question for the court in making parenting orders is the best interests of the child. The matters to which the court must have regard in determining what is in the best interests of the child are set out in s 66C of the Act. The primary considerations are the benefit to the child of having a meaningful relationship with both parents (s 66C(2)(a)), and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 66C(2)(b)). Greater weight is given to the latter than the former: s 66C(3A). The additional considerations to which the court is to have regard are set out in s 66C(3) of the Act.
57 The appellant did not provide any written submissions in support of this ground. In his oral submissions, counsel for the appellant did not allege any express error by the primary judge in the exercise of his discretion but submitted, in effect, that error was to be inferred.
58 That submission was developed as follows. Prior to his Honour's order, the appellant had been having supervised time with TJ on a fortnightly basis. (That, we should interpolate, appears to have been pursuant to an order of the court of 28 July 2014 by which the appellant was to spend time with TJ for such times and periods as Relationships Australia could negotiate with the parties.) The order made by the primary judge limited that time to four occasions per year, with a mediation to review the position when TJ turned 12. At the time of the proceedings, TJ was eight and a half years old. No explanation appeared from his Honour's reasons for the change in the arrangement or for the long period before it was to be reviewed, and there was no basis in the evidence for either. In his last report, dated 24 October 2013, Dr Watts did not recommend any reduction in the then fortnightly contact.
59 There are several difficulties with that submission. In the first place, the attack on his Honour's orders appears to go well beyond the grounds of appeal, which are limited to the period of time before the contact regime was to be reviewed and the absence of overnight contact.
60 Secondly, Dr Watts' report of 24 October 2013 was expressed to be limited to an assessment of a request by the appellant that contact time should be increased by overnight contact and not to be a comprehensive assessment of the contact arrangements. In the report, Dr Watts concluded that he could not see any benefit to TJ in increasing contact at that stage and especially in introducing overnight contact. He considered that overnight contact would be likely to have a negative impact on TJ. It was in that limited context that he recommended there should be 'no change to the current arrangements [for contact]'. It is also significant that much of the manipulative, abusive and threatening conduct by the appellant against the second respondent, including damage to the second respondent's swimming pool and car, frivolous or vexatious litigation, and threats of further litigation ([138] - [144]) that the primary judge accepted had occurred, had taken place since Dr Watts' report.
61 Thirdly, there was a good deal of evidence that put in issue whether, or at least the extent to which, contact with the appellant was in TJ's best interests at this stage of her life. It appeared from Dr Watts' report that TJ did not want to see the appellant at all and there was evidence from which it was open to the primary judge to find, as he did, that the relationship between the appellant and TJ 'could barely be described as meaningful' for TJ and that the benefit of a relationship with the appellant was 'not significant'. There was also evidence of the adverse effect on TJ of the appellant's conduct towards the second respondent, TJ's primary carer. His Honour's finding that TJ had become 'the pawn' in acts of manipulation, psychological abuse, threats and apparently frivolous or vexatious litigation by the appellant against the second respondent, was one that was open to him on the evidence. In that connection, it appears that the manipulation and psychological abuse to which his Honour referred included the appellant's continuous attempts to forestall the trial and thereby to perpetuate the state of uncertainty for the second respondent, with consequential adverse effects on TJ.
62 In those circumstances, his Honour was entitled to conclude that it was appropriate to reduce the time that the appellant was entitled to spend with TJ in order to limit contact by the appellant with the second respondent and thereby to limit the consequential adverse effects on TJ.
63 Fourthly, the primary judge did not in fact order that contact was to be limited to four occasions per year. His Honour ordered that there was to be contact on the four specified occasions per year and 'on other occasions agreed between the parties and confirmed by each of them in writing … and on any occasions requested by [TJ].'
64 The finding that it was not in TJ's best interests for the appellant to have overnight contact was supported by Dr Watts' report and consistent with his Honour's findings as to the state of the relationship between the appellant and TJ, and the appellant's conduct towards the second respondent. It also appeared from Dr Watts' report that Dr Watts considered the question of contact should be reviewed when TJ was 10 or 12 years old, when he believed TJ would be better placed to make her own decision about the level of contact. While it is the case that that recommendation was made when the contact was fortnightly, we do not accept the appellant's submission that Dr Watts can be regarded as advising that there should not be any change to the contact arrangements in the meantime. It is clear that Dr Watts was simply suggesting an age at which TJ's views should be reconsidered, not impliedly recommending that fortnightly contact should be maintained until then.
65 On the evidence, his Honour was entitled to find that, having regard to the state of the relationship between the appellant and TJ, and the appellant's conduct towards the second respondent, it was in the best interests of TJ, at least until she reached the age of 12, that the time she was to spend with the appellant be limited to the extent that TJ maintained some knowledge of the appellant and his family so that when she was older she would be in a position to choose whether to have a closer relationship. The orders his Honour made were appropriate to give effect to that conclusion.
66 We should add that the order of the primary judge as to the review period does not, of course, preclude a further application by the appellant to change the contact regime if a change in circumstances in the meantime justifies it.
67 This ground of appeal has no merit.
Conclusion
68 An extension of time within which to appeal should be refused and the appeal dismissed.
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