Dowling & Molloy
[2007] FamCA 68
•16 February 2007
FAMILY COURT OF AUSTRALIA
| DOWLING & MOLLOY | [2007] FamCA 68 |
| FAMILY LAW – APPEAL FROM DECISION OF FAMILY COURT JUDGE – CHILDREN – WITH WHOM A CHILD LIVES – Allegations of judicial bias – Conduct of the trial by the parties’ own lawyers - Appeal dismissed. FAMILY LAW – APPLICATION TO ADDUCE FURTHER EVIDENCE – Admissibility of evidence in children’s cases - Material sought to be adduced did not meet the requirements espoused by CDJ v VAJ (1998) 197 CLR 172– Court proposed to admit the evidence as the application was not challenged by the respondent or the Independent Children’s Lawyer – Application allowed. |
Commonwealth Evidence Act
Family Law Act 1975 (Cth)
Allesch and Maunsz (2000) 26 Fam LR at 237
Australian Coal & Shale Employees Federation v. The Commonwealth (1953) 94 CLR 621
Bellenden (formerly Satterthwaite v Satterthwaite) (1948) 1 All,ER 343
CDJ & VAJ (1998) 197 CLR 172
Clifton v Stuart (1991) FLC 92-194
Fox v Percy [2003] HCA 22
G & G [2004] FamCA 1179
Gronow & Gronow (1979) 144 CLR 513
Johnson v Johnson (3) 2000 FLC 93-041
Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91‑712
OP & TP & The Child Representative (Conduct of Counsel) (2003) Fam LR 281
Vakauta and Kelly (1989) 167 CLR 568
| APPELLANT: | DOWLING |
| RESPONDENT: | MOLLOY |
| FILE NUMBER: | NCF | 1008 | of | 1995 |
| APPEAL NUMBER: | EA | 82 | of | 2005 |
DATE DELIVERED: | 16 February 2007 |
| PLACE DELIVERED: | Brisbane |
| JUDGMENT OF: | KAY, WARNICK & MAY JJ |
| HEARING DATE: | 12 September 2006 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 June 2005 |
| LOWER COURT MNC: | [2005] FamCA 539 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Appellant appeared on his own behalf |
| COUNSEL FOR THE RESPONDENT: | Mr Jackson |
| SOLICITOR FOR THE RESPONDENT: | Valerie Marjkus Solicitor |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Sundstrom |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Thomas Mitchell Partners |
Orders
That the appeal be dismissed.
That there be no order as to costs.
| FAMILY COURT OF AUSTRALIA AT |
Appeal Number: EA 82 of 2005
File Number: NCF 1008 of 1995
| DOWLING |
Appellant
And
| MOLLOY |
Respondent
REASONS FOR JUDGMENT
In an amended Notice of Appeal filed 26 October 2005 the father, Mr Dowling, appealed against all of the orders made by Steele J on 29 June 2005. In essence those orders provided that the child, born 13 September 1991 reside with the mother, Ms Molloy, who is also to have sole parental responsibility. Orders were made in relation to contact by the father sending letters and gifts to the child to a post box and that the mother be at liberty to read such letters first before providing them to the child. The mother was ordered to provide the father with a copy of the school reports.
Grounds
The Notice of Appeal contains a number of grounds which can be described as follows:
(1)A denial of procedural fairness including an allegation that the Judge was biased towards the mother’s case and displayed a hostile attitude towards the father. This ground includes an assertion
“That the presiding Judge cross examined every witness from the bench extensively; and that this was in a way that amounted to curial or inquisitorial. That in doing this the presiding Judge aided the applicant [mother] in putting words in her mouth to assist her in perjured evidence.”
It is also contended that the appellant was “abruptly stopped” from giving his evidence.
(2)That his solicitor was “seemingly intimated” and incompetent and that counsel did not act on his instructions. Further, that the trial Judge sought to limit his legal representative’s questioning of Ms Molloy causing the barrister to cut short his questioning;
(3)That Mr Peter Hartley who had been appointed separate child representative in early 2004 was replaced by another child representative being someone who had no contact with the child. Further that the child representative, Miss Gillard, did not appear in the Court at any time;
(4)The family report failed to address parental alienation despite it being ordered that such an issue be considered and that for various reasons the evidence of the family report writer should not have been relied upon;
(5)The trial Judge wrongly ruled that previous reports could not be relied on and otherwise did not rely on evidence available to him. In particular, the evidence of the Family Report writer:
“…of August 2003, and of September 2004, either perjured her evidence, or was so seriously incompetent as to give totally false statements of what I had said to [the child] during family report contact (10 minutes or less) with my daughter in her presences. It is my belief that she is guilty of a serious crime as an officer of the court in the following manner. These inlude [sic] her attemts [sic] to minimise evidence regarding continued alienation by the mother [Ms Molloy] and her partner.
(6)The trial Judge did not take into account the appellant’s hearing difficulty;
(7)The trial Judge allowed a “…low and or non-existent standard of evidence to sway his judgement…”. This included attachments to the mother’s affidavits.
(8)“There were other documents apparently relied on by the trial judge but never seen in open court which the trial judge has relied upon to make findings i.e. that a named person made a complaint to D.O.C.S. claiming that I had pulled [the child] onto my knee and pulled her breast.”
The Judgment
The background facts were set out by the trial Judge. Those relevant to the appeal are as follows. The child was born on […] 1991 so that at trial she was nearly 14. The parents lived together for less than three years separating on 29 November 1993 when the mother and child left the former matrimonial home and began living in a caravan park nearby.
At first the child spent three days per week with the father and consent orders were reached in April 1995 for shared residence on a week about basis. Thereafter the father’s contact with the child has gradually diminished to the point where at trial he was having no face to face contact with her.
In part there was a change to the arrangements and orders because of the mother’s desire to move intrastate and the father’s response that he would move there also. Orders were made on 8 September 2003 providing the father with contact from after school on Thursdays to the commencement of school on Mondays each alternate week together with half the school holidays. The mother and her family moved intrastate on 31 December 2003.
On 4 May 2004 consent orders were made providing only limited supervised contact and that was reduced further by an order made on 15 October 2004 to make no provision for physical contact, that there only be contact by correspondence. The child has had no face to face contact with her father since May 2004.
At trial the mother asked that the father only have contact by correspondence. The father asked for contact in terms of the orders made on 8 September 2003 on the giving of fourteen days notice to the mother. The father did not oppose an order that the mother have residence but asked for joint parental responsibility.
The child representative, as they were then called, supported the mother’s position asking that there be added a provision that the mother provide copies of the school reports. Of these applications, the trial Judge remarked at paragraph 6 of the judgment:
“6.…The evidence is such that reinstating the Orders of 8th September 2003 is not a practical option and the real issue to be determined is whether [the child] should have any face to face contact with her Father either supervised or unsupervised.”
At the time of trial the mother was living intrastate with her husband, Mr Molloy, who she married on […] 1996. They have two children, a daughter, then seven years old and another daughter, then five years old. Mr Molloy is in receipt of a disability pension.
The father who was then aged 61 is a pensioner. He moved to the town in January 2004 when the mother and child moved there to live.
Although Mr Molloy said in evidence that he acknowledges that the child loves her father, he believes that the child has been unhappy about contact and would want supervision. Despite an assault on the father in 1995 by Mr Molloy, the trial Judge said of him he “…seemed to me to be a sensible person who was supportive of [the child]. He seemed to me to bear no ill will towards the Father.”
The trial Judge made a number of observations about the father including at paragraph 32 of the judgment:
‘32.The Father gave evidence and was cross examined at some length. He seemed to me to be an intelligent man, but consistently talked over counsel before the question was completed and had to be constantly reminded to answer the question. … He was taken to many documents which recorded allegations by [the child] of what he had said and done at various times. When unable to explain what he was alleged to have said he resorted to denying that the person who prepared the document had correctly recorded what [she] or he had said. …”
It is not submitted in this case that his Honour applied a wrong principle or mistook the law in relation to proceedings about children’s issues. In paragraph 14 the trial Judge said:
“14. This task in this case is partly to evaluate the risk, but the emphasis in the evidence has related more to physical and emotional abuse than sexual abuse. [The child] is nearly fourteen years of age and issues of [her] wishes have assumed significance as do questions of the practical capacity for enforcement of any Orders made against the wishes of the Child.”
The allegations made by the mother against the father began after a contact visit in September 2003:
“22.[The child] informed the Mother after a contact visit in September 2003 that the Father had caused [the child] to sit on his lap in a way which made her feel uncomfortable and poked her breasts, remarking at the time on their level of development. This disclosure to the Mother was made by [the child] in September 2003.
23.The Mother reported the matter to D.O.C.S., who spoke to [the child] in the absence of the Mother, but not until on 17th October 2003. Following that interview an officer of D.O.C.S. informed the Mother that it was his opinion that [the child] was not at risk of sexual abuse and that she should continue to have contact with her Father. The Mother cannot recall the name of the D.O.C.S’ Officer who gave her that advice but material produced by D.O.C.S.’ (being part of Exhibit M4)….
24.Some time later on about 15th December, [the child] told her Mother that she had informed the counsellor at school about her continuing problems with the Father. The Counsellor apparently informed [the child] that she would have to speak to her boss who might inform D.O.C.S. On 16th December 2003 the Mother received a call from [the] Police asking to speak to [the child] and when the Mother collected [her] from school she arranged for [her] to ring the police as requested from school. The next morning the Mother in [the child’s] presence rang D.O.C.S and spoke to [an officer], who in turn spoke to [the child]. After speaking to [the child] he spoke to the Mother and informed her that [the child] did not have to go on contact with her Father and that if she (the Mother) forced her to go against her will she could be charged with abuse. [The officer] said he would ring the Father.
25.The Mother says that later that afternoon the Father rang her to dispute the validity of what the D.O.C.S.’ worker was saying. On 17th December 2003 the Child attended for an interview at D.O.C.S.’ in the absence of the Mother. The record of interview is Part of Exhibit M4. On 22nd December 2003 the Child attended [the] Police Station with the Mother and made a statement. (Exhibit M2). The statement records a number of complaints by [the child] about her Father’s conduct towards her over the previous few years. If true, they amount to a significant number of occasions of physical and emotional abuse.
26.On 31st December 2003, the Mother and her family, including [the child] relocated to reside [intrastate] “
The child has been interviewed by members of the Department of Children’s Services, known as DOCS, and the Police. The record of interview is exhibit M4 and the child’s statement is M2. The Police applied for an interim apprehended violence order which was made on 7 January 2004 and an order was made on 20 January 2004 for a period of 12 months upon the father’s consent without admission. It has since been extended.
The involvement of DOCS emanated from the child speaking to a counsellor at school in December 2003. As the trial Judge records the father simply denies all the allegations contained in the statement made by the child to the Police in December 2003. An example of the allegations and the response of the father is contained in paragraph 42 of the judgment as follows:
“42.One incident which is recorded in paragraph 14 of [the child’s] statement to the Police is an event which is said to have occurred at a local [shopping centre] when she was there with her Father. She says in effect, he was badgering her about math’s questions and some people nearby were so upset with his conduct that they took issue with him about the way he was speaking to her. She said that he just told them to mind their own business. During cross examination the Father denied that anyone had ever spoken to him about those matters at [the shopping centre]. The Father was then confronted with paragraph 15 of his record of interview […] at D.O.C.S.. That paragraph records an incident at [the shopping centre] somewhat similar to the one described by [the child] in paragraph 14 of her statement. When confronted with paragraph 15 of the D.O.C.S’ record of interview, the Father simply asserted that he didn’t say that and that the person who recorded it had done so wrongly. He was then referred again to paragraph 57 of his affidavit filed 20th September 2004. In that paragraph he again denied any strangers ever making adverse comments about his activity of questioning [the child] about maths when they were shopping at [the shopping centre]. I do not accept the Father’s evidence about that issue and am comfortably satisfied it occurred as [the child] has said. It is an example of his emotional abuse of [the child].”
The trial Judge referred to a letter from the child representative which he said was tendered without objection. The letter purported to record a telephone conversation the child representative, Miss Gillard, had with the child on 20 June 2005. The letter is exhibit CR1 and is recounted in the judgment (Paragraph 34):
“34.…‘The writer telephoned [the child] last night.
[She] said that she wished to leave things as they are and that she will contact her father when she wants to. She does not want to be tied down.
She emphasized that she does not want phone contact. She said when this was happening before she couldn’t get off the phone. When she said “I had to go” her father would reply “Don’t you love your Daddy?”.
When asked about letters and cards she said “They’re fine”.
35.The Father when confronted with that letter refused to accept that it was necessarily what [the child] had said to the Child Representative and claimed if it was what the Child had said to the Child Representative then [the child] was heavily influenced by her Mother and was only really mouthing her Mother’s wishes and not her own.
36. The Father during cross examination simply refused to accept that it was [the child’s] wish not to have any face to face contact with him. There is in fact, a litany of persons who have from time to time recorded [the child’s] wishes all to the effect that she does not wish to have face to face contact with her Father despite at all times expressing her love for her Father. These people include the [person] who supervised contact between [the child] and her Father on Christmas Eve 2003 (his report being part of Exhibit M4), […] the Child Protection Case Worker at D.O.C.S. who interviewed [the child], the counsellor, […] who interviewed [the child] for the purposes of the Family Report, the Police who interviewed [the child], (although admittedly in the presence of her Mother) on 22nd December 2003 and the Child Representative herself. Many of these people obtained information from [the child] in circumstances where the Mother was not even in the vicinity. The Father’s refusal to accept that [the child] does not wish to have face to face contact with him, in the face of material from all those persons is lacking in reason.”
The trial Judge expressed some concern about the father’s mental state noting that there was no evidence relating to his psychiatric state. The father had been attending counselling with [a psychologist] since September 2004. [The psychologist] gave evidence in the father’s case. The trial Judge said [the psychologist] “…acknowledged that he was a most difficult man, but said he observed nothing which led him to believe the Father suffered a psychiatric disease.”(paragraph 38)
In paragraph 48 his Honour further referred to the evidence of [the psychologist] noting that he was;
“48 “…in a sense disadvantaged, because he was not provided with [the child’s] statement to the Police which recorded the substance of most of her complaints. There was some question about whether he had seen the Second Family Report and his cross examination was adjourned to enable him to read both documents.
49.[The psychologist] said that he had tested the Father for depression and saw no significant signs of depression, but there were significant signs of anxiety. He said, as l have earlier recorded, that if a supervisor was to be appointed for supervised contact, he or she would have to be particularly strong to combat the Father’s tendency to talk over people. He said that many times during his counselling[sic] sessions he had to shout at the Father and say “Stop and listen to me”. [The psychologist] said that the fact that the Father had agreed to attend the “Hey Dads” programme was a positive sign. He did not however think a lot of progress had been made.”
An essential finding made by the trial Judge in relation to the father is contained in paragraph 40 of the judgment as follows:
“40.The Father’s attitude towards [the child] has elements of obsession to it. He agreed that on one occasion he flagged down a school bus on which [the child] was a passenger, but said that there was nothing to stop him using a school bus and that it was a mere coincidence that [the child] was on it. He denied the suggestion contained in paragraph 46 of the First Family Report that he had been asked by the teachers at [the child’s] school not to attend at lunch and playtimes. He said that was quite untrue and that if the teachers, or any of them said that to [the Family Report writer] it must have been a consequence of their being influenced by the Mother. Material from the school later produced records such events. He asserted to [the Family Report writer], as is recorded in paragraph 41 of the First Family Report, that she had been influenced by Ms Molloy. He asserts of course, that [the child] has been influenced by Ms Molloy and her husband.”
On all the objective evidence available to the trial Judge, it was well open to him to find as he did that the father’s behaviour has been causing the child distress for some time. His Honour referred to documents produced from the primary school where the child attended before her move intrastate (Paragraph 44). It was apparent to the trial Judge that the father had absolutely no insight. For example, when asked to comment on the child saying that she was scared of her father he
“46.…merely stated that he didn’t believe they correctly recorded [the child’s] statements and that, there was, in his view some evidence of concoction. The Father vehemently denied ever touching [the child’s] breasts. Asked to answer various questions on the basis that the letter from the Child Representative ( Exhibit CR1) truly expressed [the child’s] wishes, he was unable to suggest any solution to the problem facing the court, except for the court to examine more closely the Mother’s position, and her responsibility for the problem.”
The trial Judge placed considerable weight on the evidence of the Family Report writer. In relation to the father’s assertion that the only possible explanation for the child’s statement was that the mother had influenced her:
“51.]The Family Report writer] said that although the Father spoke to her about Parental Alienation Syndrome, she had formed the view that this was not such a case because in the first place the Child was not alienated from the Father as she loved him dearly, and secondly, to her observation the Mother was trying to work with the Child to find a way that she could have satisfactory contact with the Father.
52.[The Family Report writer] said [the child] was a sensitive, compassionate and mature young girl and that in her view, her expressed wishes are her own views, though it is possible there is some influence from her Mother. She said that in summary the major problem of the Father’s relationship with [the child] is his refusal to respect her boundaries.”
Under the relevant headings of section 68F (2) the trial Judge made a number of key findings some of which we will repeat here.
(a) Child wishes
His Honour correctly observed that the ‘evidence of wish by [the child] is voluminous’. The trial Judge then referred to the letter from the child’s representative, exhibit CR1, and concluded that:
“Significant weight should be given to [the child’s] expressed wishes.
She is a mature girl for her age and [the Family Report writer] has said and l accept that she has a better understanding of her relationship with her Father than he does. Her position in relation to her wishes appears to have hardened more recently” (AB page 40)
(b) The nature of the relationship of the child with each of the child’s parents
Under this heading his Honour accepted that the child has a real fear of her father.
(c) The likely effect of any changes in the child’s circumstances
His Honour considered the effect on the child if there is no order for contact and said:
“…[The child] may have some concerns about the Father being hurt. These concerns are likely to be less harmful though than the increased anxiety occasioned by having face to face contact.
In the First Family Report [the writer], recorded her concern that if [the child] is left to state her preferences to her Father it puts her at serious risk of depression.
It is my view that continuing contact either supervised or unsupervised will expose [the child] to an unacceptable risk of emotional abuse. [The psychologist] who supported the Father’s case suggested that if supervised contact was to be ordered, the supervisor would have to be a very strong person indeed because he thought the Father may be unlikely to change….”
(e) The capacity of each parent
His Honour under this heading made this finding:
“The Father seems to me to be incapable of providing for [the child’s] emotional needs. He simply refuses to accept that [the child’s] wishes expressed many times to many people, are that she not spend one on one time with her Father and more latterly that she not have any face to face contact at all.
The Father appears to have a personality trait which does not allow him to accept that he could be wrong. …”
(g) The need to protect the child from physical or psychological harm
His Honour made a very clear finding as follows:
“I am satisfied [the child] has over the past four or five years and perhaps before that been the subject of both physical and emotional abuse at the hands of her Father. The Father simply denies all this. He refuses to acknowledge her expressions of wish not to have face to face contact. If Orders were made requiring contact to take place l am satisfied [the child] would be the subject of very significant stress and anxiety. She is a genuine, kind girl, who loves her Father and is concerned not to hurt him. [The child] should in the circumstances be protected from those pressures. …”
(k) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
His Honour said:
“I think that if some limited form of face to face contact is ordered it can almost certainly be predicted that the Father will actively pursue enlargement or expansion of that contact. The parties have been engaged in litigation since 1995.”
In conclusion under the heading “The Resolution of the Issues” the trial Judge said as follows:
“53.The Father’s denial of the various allegations made against him is in my view, unconvincing. I am satisfied there have over the years been many occasions of physical and emotional abuse which have left [the child] with a real fear of her Father.
…
55.There is an abundance of material relating to things said by [the child] to a whole range of people which makes it clear that she has a real fear of her Father. The Father’s performance in the witness box has been quite extraordinary. He doesn’t listen to questions and simply refuses to even consider any view which does not accord with his own. In her telephone conversation with the Child Representative, [the child] indicated that she did not wish to have telephone contact with her Father because she would not be able to end the conversations with her Father without a dispute. That concern was exemplified by the Father’s conduct in the witness box.
56.I am satisfied that [the child] has a deep love of her Father and he in his own way loves her. It is not clear to me that he is free of what may be significant psychological or even psychiatric problems, though of course, there is no evidence enabling me to make any findings or even come to any provisional view about those matters. I am satisfied that no issue of parental alienation has been established by evidence.
…
58. I accept the counsellor’s evidence which l have found helpful that it is best that [the child] have no direct contact with her Father for some years. Accordingly, l propose to accept the recommendations made by the counsellor and make to the Orders sought by the Mother.
Application to adduce further evidence in the appeal
In an application filed by the father on 30 August, 2006 leave was sought to adduce evidence in the appeal not available to the trial Judge at the time of the hearing at first instance, and which was intended to persuade the Court that the outcome would have been different in light of that evidence.
The fresh evidence which was sought to be adduced consisted of an affidavit, Exhibit A, which was executed by the appellant’s niece, appeared as an annexure to the affidavit of the father filed on 30 August, 2006.
In addition, the appellant sought to adduce evidence in the form of photos taken before and after the hearing before Steele J (Exhibit B); letters and cards written by the child, one of which the father alleges expresses the wishes of the child to see her father; and copies of school reports (Exhibit C) and other material that was allegedly altered at trial.
The evidence that the trial Judge accepted at the hearing did not include the abovementioned items.
It was submitted by the father that the evidence sought to be admitted are reflective of his character and relate to the issue of the paramountcy of the best interests of the child, and his tentativeness in engaging in the trial at first instance.
The photos, which were annexed to the application filed on 30 August, 2006, were asserted by the father to reflect a “…happy and competitive child…” in her father’s care. The photos were not dated and reflected a younger child than, perhaps, her age would indicate. The photos, not individually nor collectively, show nothing with clarity or significance. It is not the mother’s case that the child has never had any happy times with her father.
The father also asserted that a card written by the child to her father on Father’s Day, 2004, reflected her wishes to see her father “soon”. The card was not dated and the envelope had been discarded.
The father further submitted that the child’s wishes had not been accurately reflected in the evidence before the trial Judge and that the child had been “…falsely spoken for”.
Counsel for the mother did not object to the inclusion of the evidence in the appeal as it was submitted that the material would be unlikely to influence the outcome of the case.
Similarly, the Independent Children’s Lawyer did not oppose the admission of such evidence asserting that the fresh evidence had little effect on the primary decision of the trial Judge, and would not be of large moment to the outcome of the appeal.
The principles which govern an application to adduce further evidence were considered by the High Court in CDJ v VAJ (1998) FLC 92-828; (1998) 197 CLR 172. We refer, in particular to the following paragraphs:
‘104. In the exercise of the discretion conferred by a power such as s 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry.
…
111. …Ordinarily, where it is alleged the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge, and put that person to the expense, inconvenience, and worry of a new trial.
…
113. …[W]e cannot accept that the discretion to receive further evidence is so wide that the Full Court can admit further evidence merely because it is useful (Original emphasis). Such a criterion is inconsistent both with the nature of the appellate jurisdiction exercised by that Court and with the perceived purposes of s 93A (2).
…
114. No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account when considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial.”Consequently, the Court is able to admit further evidence where that evidence, if accepted, would demonstrate that the decision of the trial Judge was erroneous.
The High Court decision of Allesch and Maunsz (2000) 26 Fam LR at 237 considered the nature of an appeal by way of re-hearing, which is the basis of an appeal to this court. Gaudron, McHugh, Gummow and Hayne JJ said at 245:
‘31. If on an appeal by way of rehearing from a discretionary judgment an appellate court is minded to exercise the discretion in question by reference to circumstances as they exist at the time of the appeal, it is necessary that the parties be given an opportunity to adduce evidence as to those circumstances. It is not entirely clear that that happened in the present case, particularly as the Full Court indicated that it could only speculate as to the likely outcome of a fresh application of the principles governing property settlement to the property then owned by the parties.’
The father in his submissions relied on CDJ v VAJ (supra) in bringing forth new evidence in the appeal.
In view of the lack of resistance and although the material sought to be adduced does not meet the requirements espoused by CDJ v VAJ (supra), the Court proposed to admit the evidence, including the photographs, correspondence and school reports. Exhibits D and E, which were orders sent by the father to the school and a computer printout, were not admitted.
We have considered this evidence, in the context of this appeal. The application and evidence before the Court did not effectively challenge the judgment and would have had little or no bearing on a new trial if the appeal were allowed and a new trial ordered.
Appellant’s Argument
The Summary of Argument provided by the appellant did not refer to any of the grounds and his oral argument largely followed the written submissions.
For this reason we intend to deal with the arguments as raised by Mr Dowling although some of them seem to have only a tenuous connection with the grounds and it must be observed as submitted by both counsel for the respondent and the Independent Child’s Lawyer many are hardly grounds of appeal in any event.
As we refer to the appellant’s submissions we attempt to deal with them linked to the evidence and the transcript although the appellant provided us with very few such references. The various arguments have been reduced to a number of categories and are a summary:
(1)It was submitted that witnesses were available to support the father’s case that he had been a “nurturing and caring father” but were not called. Further it was submitted that there was an error by the trial Judge in understanding what affidavits were relied upon in the father’s case.
Unfortunately the transcript provided to us by the appellant is not complete. It does not include the commencement of the hearing where it would have been apparent what affidavits were read by counsel. We can only assume that they included the affidavits in the father’s case now contained in the appeal book.
Examples of people that were not required for cross examination given to us by the appellant are his brother, his sister and three other named persons. The obvious response to this claim is that it is entirely a matter for counsel for the mother and for the Independent Child’s Lawyer as to whether they cross examined any of these people. If they thought that the evidence could be left unchallenged or had little probative value then such a decision might well have been made. Certainly the trial Judge did not refer to any of these affidavits in his judgment.
The only evidence of witnesses that were called of which we have a transcript is the mother and the father, Mr Molloy, the mother’s husband and the father’s psychologist. Of note, we do not have the transcript of the evidence of the author of the family report although it is clear from the submissions of the Independent Children’s Lawyer that she was cross examined. It should be observed in this case the evidence most relied upon by the trial Judge was not that of the mother or any of her supporting witnesses but rather evidence from the Family Report and statements made by the child.
(2)The trial Judge relied on evidence contained in documents from people who did not swear affidavits. In addition the trial Judge excluded evidence that was relevant. The other part to this submission appears to relate to matters of weight, that the trial Judge wrongly placed more weight on some evidence and not enough on others.
Further, it is submitted that the finding in paragraph 36 that “…There is in fact, a litany of persons who have from time to time recorded [the child’s] wishes all to the effect that she does not wish to have face to face contact with her Father despite at all times expressing her love for her Father.” was not open to the trial Judge. In particular in his oral submissions the appellant complains that the trial Judge referred to a report marked exhibit M4 in relation to supervised access. It was submitted that, for example the conclusion provided in the report (AB 470) that it was “very obvious that [the child] loves her father when he behaves in an appropriate manner when it is also very obvious that she is not sure which side of her father she is going to encounter and the inappropriate side scares her a lot” should not have been relied upon.
Likewise, it was submitted that the affidavit provided to the Children’s Court of New South Wales from the Child Protection case worker should not have been placed before his Honour. It is this affidavit that contains notes of the interview between the child and the case worker on 17 December 2003 where the child made the complaint about the father hitting her and otherwise his inappropriate behaviour toward the child. It seems that the submission of the father in relation to this is that the trial Judge should not have admitted this evidence without further investigation to see if there was another side to the story. This demonstrates on the fathers’ part a misapprehension about the trial process.
The appellant complains that the whole manner in which the case was conducted treated him unfairly. In addition, that an error was made by the trial Judge in placing too much emphasis on the child’s wishes and the alleged treatment by the father of her.
(3)The solicitor for the father did not give the appellant the opportunity to give him instructions which would have denied the allegations made by some witnesses and in some documents. The father describes his legal representation as “inept”. Further it was submitted that counsel for the father was intimidated by the Judge and the father was told to stop giving instructions during the hearing. A complaint of the appellant is that counsel failed to object to hearsay evidence when he should have done so. In oral argument the father said that this had caused injustice to him because of the limited skills of the solicitor as opposed to the skills of the barrister for the Independent Child’s Lawyer and the mothers lawyers. A reading of the transcript reveals that there were objections made by Mr Haricharan who represented the father which were dealt with by his Honour at the outset and during the hearing.
(4)The father complains that he has never been interviewed by the police and therefore had no opportunity to refute the evidence which is in any event, he asserts, hearsay and “grossly inadequate”.
(5)The role of the Independent Children’s Lawyer:
·There was little cross examination of the mother or her witnesses by counsel for the Independent Children’s Lawyers. The solicitor for the father cross examined the mother from mid morning on the first day to the end of that Court day. At the end of the first day Mr Sundstrom, counsel for the Independent Child’s Lawyer asked the mother several questions. The trial Judge had asked the mother questions himself for some time and then gave the solicitor for the father an opportunity to ask any questions arising out of that which he declined;
·The appointment of the Independent Children’s Lawyer was changed and she never herself appeared during the trial and had no contact with the child;
·The letter from the Independent Children’s Lawyer containing the child’s wishes as communicated on the telephone should not have been admitted. This document was marked CR1 (AB 506);
·The Independent Children’s Lawyer failed in her duty as provided by Rule 8.02;
(6)The trial Judge demonstrated bias by:
·taking an adversarial role and restricting questions of the mother and her partner but asking the father questions at great length;
·not taking steps to ensure that the father could hear Mr Bateman of counsel;
·Deciding the matter early in the hearing in the mother’s favour.
(7)The Family Report writer was not an independent expert witness and attempted to alienate the child from the father. Further, her reporting of what was said and what she observed was biased. In the appellants submission another expert should have been appointed to have investigated the father’s allegation of parental alienation by the mother.
Conclusions
We intend to deal with the appeal under a number of discrete headings:
(1) Bias in the conduct of the trial by the Judge;
(2) The conduct of the trial by the father’s lawyers;
(3)The evidence of the family report writer and her investigations;
(4)Evidence was admitted that was not admissible and evidence although admissible should not have been relied upon, in particular:
ii) (a) DOCS documents including those where objection was taken;
iii) (b) Various affidavits and attachments to affidavits.
Principles
It is useful to begin with the principles that apply to an appeal against a discretionary judgment.
The statements of principle applicable to appeals from discretionary judgments are well known. In the judgment of Warnick J in G & G [2004] FamCA 1179, it was said:
“82. Revisiting those statements, one is struck by the regularity with which the width of discretion of the trial court and the caution that the appeal court should exercise, are stressed. This is demonstrated by adding emphasis within some of the often quoted statements of principle. In Bellenden (formerly Satterthwaite v Satterthwaite) (1948) 1 All ER 343 at 345, Asquith LJ stated the rationale of an appellate court’s approach:
“…We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.” (emphasis added)
83.In Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91‑712 at 75,178 Brennan J stated:
“The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.” (emphasis added)
84.Kitto J in Australian Coal & Shale Employees Federation v. The Commonwealth (1953) 94 CLR 621 at 627 said:
“…there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.”
85.In Gronow & Gronow (1979) 144 CLR 513 at 520, Stephen J said:
“…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.”
86.Finally, in CDJ & VAJ (1998) 197 CLR 172 at 231, touching upon the features applicable to the exercise of discretion in the Family Court, Kirby J said:
“1.…The reference to ‘plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
2.Such reasons for appellate restraint…have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficulty and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions.” (emphasis added)
…
89.Reinforcing the proper reluctance of an appellate court to interfere, is the observation that a trial Judge, in exercising a discretion, may have an advantage over the appellate court in reviewing that exercise. We are, of course, familiar with discussion of the advantage of a trial Judge, particularly in relation to conclusions about the credibility of witnesses. But there are other reasons for such advantages beyond the opportunity to observe witnesses.
90.In Fox v Percy [2003] HCA 22, the High Court considered a decision of the Court of Appeal of the Supreme Court of New South Wales, reversing a judgment of the District Court of that State, following a review by the Court of Appeal of findings of fact based on the trial Judge’s assessment of the credibility of witnesses, but which findings were inconsistent with other incontrovertibly established facts.
91.In discussing the powers and functions of the Court of Appeal, Gleeson CJ, Gummow and Kirby JJ said: [para 23]
“[the appellate court] …must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.” (emphasis added)
In this case, none of the usual grounds relating to discretionary judgments, including reasons and findings of fact were argued. Where there has been some argument about matters of weight, we see that there is no basis in this case that an appeal could be successful. It is thus necessary to examine the other three major points in the appellants’ argument.
The other areas of the law which require discussion are as follows:
a)Allegations of judicial bias;
b)Admissibility of evidence in children’s cases; and
c)The conduct of the trial by a parties’ own lawyers.
(a) Bias
First it should be noted that there was no application at the time that the Judge should disqualify himself by reason of bias. These matters have all been agitated for the first time by the appellant. That fact would normally spell the end of the allegation as a ground of appeal (see the decision of the High Court in Vakauta and Kelly (1989) CLR 568).
In any event, the test is whether a fair minded lay observer might have reasonably apprehended that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question the Judge is required to decide (See Johnson v Johnson (No 3) 2000 FLC 93-041. In this case the husband asserts that the Judge made up his mind early in the proceedings. It is not possible for us to discern from the transcript that this is so. Certainly, the trial Judge on occasions asked witnesses questions, but that of itself does not demonstrate a partial approach. In this case the inquiries made by his Honour were in an endeavour to better understand the parties’ respective positions. There was no reason to conclude that the questions of his Honour impeded either sides’ presentation of their own case nor should they have conveyed to any party that he had some preconceived ideas about the case.
(b) Admissibility of evidence
In essence the appellant complains that the trial Judge ought not to have admitted evidence from persons who had not been the deponents of affidavits. In this Court evidence is regularly admitted from files including files of Departments and schools to reveal important information about children. This may be done because of the provisions of the Commonwealth Evidence Act and at the time of this hearing section 100A of the Family Law Act. This section is as follows:
100A (1) Evidence of a representation made by a child about a matter that
is relevant to the welfare of the child or another child, which would not otherwise be admissible as evidence because of the law against hearsay, is not inadmissible solely because of the law against hearsay in any proceedings under Part VII.
(2) A court may give such weight (if any) as it thinks fit to evidence admitted pursuant to subsection (1).
(3) This section applies in spite of any other Act or rule of law.
(4) In this section:
child means a child under 18 years of age;
representation includes an express or implied representation,whether oral or in writing, and a representation inferred from
conduct.
The appellant offered no effective argument as to why the reception into evidence of any particular document by the trial Judge was erroneous.
(c) The conduct of the trial by his own lawyers
The father complains that his lawyers were incompetent and should have argued various issues with the trial Judge and conducted the trial differently including the calling of other evidence. In OP & TP & The Child Representative (Conduct of Counsel) (2003) Fam LR 281 one of the grounds of appeal was the alleged incompetence of counsel. In that case there was considerably more detail provided as to what was said to be the incompetence and what ought to have been done that was allegedly not done. The Full Court noted:
“[90]In civil litigation a client is normally bound by the actions of his/her counsel. Similar considerations apply in criminal cases. However, in criminal cases the courts have been prepared to set aside convictions in circumstances where the incompetence of counsel has led to a miscarriage of justice”
In referring to a number of cases where such an assertion was made in section 79A cases reference was made to Clifton v Stuart (1991) FLC 92-194. Of that case the Court said:
“[97]The Full Court accepted a submission from counsel for the husband that it was not sufficient for the wife to claim incompetence or neglect by her counsel because nothing could be pointed to which established that the means by which the judgment was obtained was so wrong as to involve a clear injustice. The Court agreed that there might conceivably be cases in which professional incompetence did result in a miscarriage of justice, for example, if the representation was so bad as to be the equivalent of no representation at all, or if the representation was perverse, or if the representative was in league with the other side: see (1990) 14 Fam LR at 517 and 519.
[98].In that case the Court distinguished between an unfair result and an unfair trial and held that only the latter could constitute a miscarriage of justice.
That Court then continued to say:
“[99]…that the principles there stated should be confined to property proceedings in so far as they indicate that an unfair result is not an indicia of a miscarriage of justice.”
Reference was made to a number of cases decided in Canada and the United States. After distinguishing the different causes of action in property settlement and children’s issues their Honours said:
“122.So far as the children’s jurisdiction is concerned, the Full Court has pointed out in the past that this is not strictly an adversarial jurisdiction, see: In re P (a child) (1993) FLC 92-376; Hutchings and Clarke (1993) 92-373; Re Z (1996) FLC 92-694; T and S (2001) FLC 93-086. It is a jurisdiction in which the children’s best interests are paramount. The children, though not parties, are the subjects of the litigation. In such circumstances we think that the principles to be applied to children’s cases are different to property cases, and perhaps should be more liberal than in criminal cases in relation to this issue.
123.We think that it clearly emerges from the cases that we have cited that in criminal and child protection cases the incompetence of counsel can operate to constitute a miscarriage of justice in a number of ways. If the incompetence is of such a nature as to so affect the conduct of the trial that it ceases to be a fair trial then that, of itself, can require the ordering of a retrial, regardless of whether the result is apparently fair.
124.On the other hand, from a procedural point of view the trial may appear to be regular, but incorrect or unjustified tactical decisions made by counsel may have had the effect of producing an unfair result. If this be the situation it is necessary for an appellant to establish, not only that the decisions were wrong or incompetent, but that their effect was likely to have brought about a different result if they had not been made.”
In this case the appellant has failed to demonstrate that his legal representative was incompetent and secondly, it is not apparent that even if any errors were made in failing to agitate certain matters or effectively communicating the views of the appellant the result of the trial would have been any different.
Costs
Counsel for the mother asked that should the appeal not succeed the father pay the costs of the mother referring in particular to the fact that she is legally aided. It was conceded by him that both parties are in modest financial circumstances.
The Independent Child’s Lawyer made an application for costs because he is supported by legal aid.
The appellant asked that there be no order as to costs and referred to his circumstances including that he is dependent on a disability support pension and has no assets. In our view although this appeal was entirely unmeritorious the financial circumstances of the respondent are such that taken together with the nature of these proceedings there should no order as to costs.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 16 February 2006
Dowling & Molloy [2007] FamCA 68
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