Dunst & Dunst

[2016] FamCAFC 15

FAMILY COURT OF AUSTRALIA

DUNST & DUNST [2016] FamCAFC 15

FAMILY COURT – APPEAL – Hearing for dismissal for want of prosecution – Where the appellant had failed to file a Summary of Argument before the hearing – Where the appellant was informed that the appeal was listed for dismissal pursuant to the Rules – Where the appellant sought an adjournment of the appeal – Where the appellant filed written submissions subsequent to the appeal – Where the appellant had sought a supplementary report to be provided by the expert –  Whether there was insufficient evidence to support findings of there being a risk of harm to the children –  Whether the trial judge erred in the exercise of his discretion – Appeal dismissed.

Family Law Act 1975 (Cth) s 60CC, s 60CG
Family Law Rules 2004 (Cth) r 22.45

Gronow v Gronow (1979) 144 CLR 513

APPELLANT: Mr Dunst

RESPONDENT: Ms Dunst

FILE NUMBER: NCC 1405 of 2012

APPEAL NUMBER: EA 167 of 2014

DATE DELIVERED: 18 February 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Finn, Ainslie-Wallace & Aldridge JJ

HEARING DATE: 16 September 2015

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 11 November 2014

LOWER COURT MNC: [2014] FamCA 964

REPRESENTATION

THE APPELLANT: In person

SOLICITOR FOR THE RESPONDENT: Hannaway Lawyers

Orders

1. The appeal against the orders of the Honourable Justice Austin of 11 November 2014 is dismissed.

2. Any submissions in relation to costs are to be filed and served within

   
   

   twenty-one (21) days of the date of this judgment.  Any submissions in reply are to be filed and served within fourteen (14) days thereafter.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dunst & Dunst has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number:  EA 167 of 2014
File Number:  NCC 1405 of 2012

Mr Dunst

Appellant

and

Ms Dunst

Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Dunst (“the father”) appeals against parenting orders made by Austin J on 11 November 2014. The trial judge ordered that the five children of the father and Ms Dunst (“the mother”) live with the mother who was to have sole parental responsibility for them.  No order was made for the children to spend time with the father.  On the contrary, he was restrained from entering upon or approaching within 500 metres of the mother’s residence, the post office box or postal address that was to be obtained by the mother to receive letters, cards and gifts for the children from the father and from any school attended by any of the children.

2. The appeal was listed before us on 16 September 2015 for consideration of whether the father’s appeal should be dismissed for want of prosecution pursuant to the provisions of r 22.45 of the Family Law Rules 2004 (Cth)

   
   

   (“the Rules”).  That listing came about as follows. 

3. The Notice of Appeal was filed on 10 December 2014 by lawyers then acting for the father. Procedural orders were made by the Appeals Registrar on 28 January 2015.  Those orders required the father to file the appeal books and his Summary of Argument by 11 March 2015. No date was set for the hearing of the appeal.

4. Those orders were not complied with by the father.  By consent, the time for filing the appeal books was extended until 10 April 2015.

5. On 10 April 2015 the father filed an Application in an Appeal seeking a further extension of time until 8 May 2015 to file the appeal books.  On 20 April 2015 the Appeals Registrar listed the application for hearing on 13 May 2015. 

6. By an email of 6 May 2015 the father advised the Appeals Registrar of difficulties in obtaining the transcript and sought yet another further extension of time in which to file the appeal books.

7. On 13 May 2015 the Appeals Registrar made an order again extending time for filing the appeal books until that day.  The appeal books were duly filed in accordance with that order.

8. Also on 13 May 2015 the Appeals Registrar directed the father to file and serve his Summary of Argument on or before 10 June 2015. 

9. On 18 May 2015 the Appeals Registrar sent a letter to the parties’ legal representatives informing them that the appeal was fixed for hearing on 16 September 2015.

10. The father did not comply with the order for filing his Summary of Argument.

11. The lawyers for the mother then asked the Appeals Registrar to re-list the matter. She did so and on 29 July 2015, after hearing from the lawyers for each of the parties, the Appeals Registrar noted in a letter to the parties that the father was trying to raise funds for his appeal and that the mother opposed any further extension of time for the father to file his Summary of Argument. The hearing of the appeal on 16 September 2015 was confirmed. The Appeals Registrar directed that, subject to any orders of the Full Court, in the event that the father did not file his Summary of Argument by 28 August 2015 the appeal would be listed before a Full Court on 16 September 2015 for consideration of whether the appeal should be dismissed pursuant to r 22.45 of the Rules.

12. On 1 September 2015 the Appeals Registrar wrote to the parties confirming that the matter was listed before the Full Court on 16 September 2015 for consideration of dismissal of the appeal pursuant to Rule 22.45.

13. No Summary of Argument was filed by the father.  The mother filed her Summary of Argument on 3 September 2015.

14. On 7 September 2015 the father’s lawyers filed a Notice of Ceasing to Act.

15. On 16 September 2015 the father appeared before this Full Court representing himself.  He informed the court that he had recently returned from Belgium where he had obtained sufficient funds to enable him to instruct lawyers but due to his recent return to Australia had not yet had the time to do so.

    
    

    He sought an adjournment of the appeal. The wife opposed the adjournment.

16. After some discussion between the parties and the court the following orders were made:

    1. The father have until 4pm on 16 October 2015 to file with the Eastern Appeal Registry and serve on the solicitor for the mother a Summary of Argument and List of Authorities in support of his Notice of Appeal filed on 10 December 2014.

    2. In the event that the father files and serves a Summary of Argument as required under Order 1 of these orders, the mother shall have until 4 pm on 7 November 2015 to file in the Eastern Appeal Registry and serve on the father any Amended Summary of Argument or Reply she may wish to file.

    3. In the event that the father does not file and serve a Summary of Argument in accordance with Order 1 of these orders, then the Full Court will proceed to determine the father’s appeal on the basis of the material already filed by both parties.

    4. By 4 pm on 28 September 2015 the father or his solicitor shall file in the Eastern Appeal Registry and serve on the solicitor for the mother a Notice of Address for Service.

    5. In the event that the father does not file a Notice of Address for Service the Court and the solicitor for the mother will proceed on the basis that the father’s address for service is [Town K property].

    6.        The costs of today are reserved.

17. During the course of the discussion between the bench and the father, it was indicated that if he did, in fact, file his Summary of Argument, the appeal would then proceed on the basis of the documents before the Full Court without further need to appear and without oral argument. That course was accepted by the father.

18. We took this course as it gave the father one last chance to have his appeal considered on its merits rather than being summarily dismissed. As the mother had already filed her Summary of Argument this course would not cause her any significant prejudice and we were of the opinion that the interests of justice were best served by the above orders.

19. On 16 October 2015 the father filed his Summary of Argument which had apparently been prepared by counsel.  No submissions in reply were received on behalf of the mother. Thus, in accordance with the position agreed to by the parties, the Full Court has proceeded to deal with the appeal on the basis of the documents filed.

Background

1. The parties met in 1994 and married in 1996.  It is likely that they separated sometime in 2006 but in any event, they continued to live on the same rural property until March 2012.  They had five children who were born in 1997, 1999, 2004, 2006 and 2008. 

2. Throughout the marriage the parties lived on a remote rural property where they were essentially self-sufficient.  It is uncontroversial that there were frequent arguments between the parties. At some time in 2001 the father commenced to live in a shed on the property where he remained until

   
   

   March 2012. In April 2006 the parties entered into a written agreement as to the division of their property and the time the father was to spend with the children. The father, at least, regarded this as reflecting the date of separation. The mother’s evidence did not directly address this issue. The date of separation, however, is not critical. Notwithstanding the agreement, the parties and the children continued to live on the property, the mother in the house and the father in the shed.

3. A violent incident occurred in March 2012 in the course of which the mother and the eldest child subdued the father until the police arrived and the father was then arrested. He was charged with a number of offences including assault occasioning actual bodily harm, common assault and firearms offences, one of which concerned the possession of a pistol. He pleaded guilty to those offences and was sentenced to a term of imprisonment which ended in March 2013.

4. As the trial judge said at [90], the mother used the father’s time in prison to disappear with the children. She moved to another part of the state and changed her surname.

5. In March 2012 the mother obtained an apprehended violence order with the protected persons being the mother and the children. Those orders prohibited the father from contacting the mother.  After the order of March 2012 expired, similar orders have been made since, with the last being made on 9 May 2014. It will expire on 8 May 2016.

6. In November 2013 the father telephoned the mother saying words to the effect “don’t you know who this is?”.  Obviously, the father had located the mother in some way. The father was charged with breaching the order preventing contact with the mother. In December 2013 the father was convicted and imprisoned until March 2014. 

7. At the hearing before the trial judge the mother contended that the father had been verbally abusive to her throughout the marriage and from 1999, when she was pregnant with the parties’ second child, physically violent to her. She asserted that the level of the violence was such that she fears for her life at the hands of the father. Further, she asserted that the abuse and violence took place in the presence of the children who now hold similar fears. She sought an order that the children live with her and not see the father at all.  

8. The father denied the mother’s allegations of abuse and violence. Rather, he contended that, on occasions, the mother had been physically violent to him. He contended that the mother had constantly made derogatory and abusive remarks to him in the presence of the children. This, he said, was the cause of any difficulties in his relationship with the children.

9. Initially, the father sought an order that there be equal shared parental responsibility for all of the children and that the children live with him. In his Amended Response filed on 30 July 2014 he continued to seek equal shared parental responsibility for all of the children but that he have sole parental responsibility to make decisions as to the schooling of the three younger children. He proposed that the three younger children live with the mother and spend time with him. At first that was to be for three hours a week. After three months the time was to increase to six hours and then to overnight time in alternate weeks of two nights and one night respectively. He also sought orders providing for the three younger children to spend half of each school holiday with him.

10. As is apparent from the above brief statement of facts, at the time of the hearing before the trial judge, the children had not spent any time with the father since March 2012.

11. As part of the preparation for the hearing the court ordered that a report be obtained from a single expert psychiatrist. Dr W, who was the expert so appointed, prepared a report dated 7 May 2014. For that purpose, he interviewed the parents and saw the children with the mother. He did not see the children in the presence of the father because he thought the children would be distressed and because Dr W held concerns for the safety of the children.

12. On 29 August 2014 the father filed an Application in a Case seeking, amongst other things, an order directing Dr W to observe the children in the presence of the father. The application came before the trial judge on 2 September 2014 and his Honour adjourned the application to the hearing so that Dr W’s views on the matter could be obtained. After the cross-examination of Dr W the father renewed the application which was dismissed.

13. The father appeals from the final parenting orders and also from the dismissal of his application that the expert see the children.

Reasons of the trial judge

1. The trial judge found that the two elder children rejected the father outright, either through contempt or fear, but that the three younger children had ambivalent feelings about the father and retained some positive memories of him.  This led the trial judge to find that restoration of the three youngest children’s relationship with the father would most likely benefit them. 

2. This, as was noted by the trial judge, was, of course, subject to other considerations.  The trial judge then turned to the allegations of family violence made by the mother and denied by the father.  Accepting the mother’s evidence, the trial judge found that:

   104.The evidence justifies a finding that the father poses an unacceptable risk of physical and psychological harm to the children by his exposure or subjection of them to family violence. He poses the same risk to the mother, which is an additional consideration of significance (s 60CG).

3. After discussing the additional considerations required to be taken into account under s 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”) the trial judge concluded:

   143.The father’s proposal exemplified his lack of insight. Its genesis was his desire, not the children’s best interests. Just as the single expert explained, the father’s personality caused him to either thoughtlessly or deliberately put his interests ahead of the children’s.

   144.The single expert was reluctant to even recommend that the youngest children spend time with the father at a contact centre, but even if that was to occur, the single expert considered the father needed counselling about “the consequences of interrogating the children about their mother”, which the children would find upsetting. The father could not conceivably be compelled by court order to accept such counselling as a condition of his interaction with the children. His pride and obduracy would incline him against submission to therapy. Orders of that sort would almost certainly fail, resulting in more litigation.

   145.Orders cannot safely be made for the children to spend unsupervised time with the father.

   146.Nor can orders safely be made for the children to spend time with the father under professional supervision at a contact centre.

   147.    Those conclusions are dictated by the following considerations:

   (a) The need to protect the children from the risk of physical and psychological harm posed by the father’s subjection or exposure of them to family violence;

   (b) The need to protect the children from the risk of psychological harm which would be caused by the father’s repetitive lectures designed to correct their attitudes about him and assign blame to the mother;

   (c) The need to protect the mother from the risk of family violence at the hands of the father;

   (d) The need to assuage the mother’s reasonably held fear of her sufferance of family violence at the hands of the father;

   (e) The clearly expressed resistance of the two eldest children to any form of interaction with the father;

   (f) The need to abate the worry of the mother and two oldest children about the prospect of the father harming or abducting the three youngest children if they spend time with him;

   (g) The ambivalence of the three youngest children to the resumption of their relationships with the father, which must be balanced against the benefit each of them would probably derive from re-establishing and maintaining some form of relationship with the father; and

   (h) The need to inure [sic] the children from the father’s probable continued use of illicit drugs; and

   (i) The single expert’s reluctance to recommend that the children spend time with the father even in the sanctity of a contact centre.

   (Footnotes omitted)

Grounds of Appeal

1. The Notice of Appeal contains 11 grounds of challenge. Grounds 1, 4, 8 and 11 were not pressed. 

Ground 2 - His Honour erred in refusing the father’s application for a supplementary report to be provided to the Court by the single expert when to allow such application would have given the Court the opportunity to observe the children with the father in circumstances where they have not seen him or had any contact with his [sic] whatsoever since March 2013 [sic].

1. As we have said, the court had before it a report dated 7 May 2014 prepared by the single expert psychiatrist, Dr W.  Although the children attended the interviews with Dr W, he did not see any of the children with the father.  He said of this decision:

   I decided not to see the children with their father for several reasons.  I was particularly concerned that the two older girls’ vehemence about their father would agitate and distress the three younger ones too much and also that they would have at least overnight for them to reflect on this.  I was also concerned that Mr [Dunst] had not been completely candid with me about some issues bearing on dangerousness and the safety of such an interview – particularly firearms possession and use, and the November 2013 breach of the AVO.

   (Expert’s report, page 17, paragraph [i])

2. By an Application in a Case filed on 29 August 2014 the father sought to vacate the hearing date and sought an order be made for the preparation of a supplementary report by Dr W, the purpose of which was to observe the children in the company of the father.  That application came before his Honour on 2 September 2014.  On that date, his Honour declined to vacate the hearing date and he adjourned the application for a further expert report to the hearing in order that Dr W’s views on that issue could be ascertained during his evidence at the hearing.  At the conclusion of that evidence the father renewed his application that Dr W see the children in the presence of their father.  The application was dismissed, with the reasons for that dismissal appearing in his Honour’s final reasons for judgment.

3. As we have said, Dr W declined to see the children with the father because he was concerned about their safety and possible distress. The father cross-examined Dr W on his decision. Dr W said this was the first time that he had deliberately chosen not to observe children with the non-residential parent.  The trial judge summarised the answers given in cross-examination as:

   27.…The single expert said he was “unhappy about the father’s obliqueness about guns”, he “wasn’t sure about the dangerousness issue”, and he was unhappy with the safety arrangements that could be made at his professional rooms.

1. Nonetheless, Dr W said he would undertake the exercise if the court “wanted it” or considered it “essential”. 

2. The trial judge found that any additional observation of the children was neither desirable nor essential because the evidence had already established that the three youngest children would benefit from the restoration of the relationship with their father (and thus a supplementary report was not necessary).

3. The trial judge further found the proceedings would be unduly delayed if the application was granted.

4. The father asserts that in refusing the application, the trial judge denied him natural justice; had pre-judged the issue; and had mischaracterised the evidence of Dr W. 

5. As to whether an order for a further report from Dr W would have caused the proceedings to be unduly delayed, the father submitted that, as it was the trial judge who had delayed hearing the father’s application from 2 September 2014 to 29 October 2014 (the date on which Dr W gave his evidence), it was a denial of natural justice to take into account the effect of further delay in the proceedings as part of his determination not to grant the father’s application. 

6. It is important to consider what the trial judge said on this point:

   31.Finally, but less importantly, the proceedings would have been unduly delayed by the father’s proposal. That was a consideration of some significance, at least from the perspective of the mother and children. The mother commenced the proceedings well over two years ago and the proceedings passed through the hands of two other courts before being transferred to this Court only four months ago. The mother is in hiding from the father and understandably anxious about the outcome of the litigation. The children are also aware of the unresolved litigation and must be wondering about their future.

   32.It was impossible for the single expert to conduct the fresh observation of the children with the father and to then give evidence about the observation (even without compiling a supplementary report) during the course of the final hearing in October 2014. Initially, the single expert was not available until the third or fourth day of the trial, which was listed for hearing over four days, but following a request the single expert made himself available on the second day, but only because he could give evidence by telephone rather than by attending the Court in person. The single expert practices in Sydney and the trial was conducted in Newcastle.

   
   

   The parties earlier agreed to the single expert giving evidence by telephone. The single expert could not confer with the children and the father for several weeks and the compilation of a supplementary report would take at least another week. An adjournment of the hearing was therefore inevitable. The hearing could not then be resumed until late February or early March 2015. By then the litigation would have been pending for about three years, which is an unreasonably long period for the mother and children, if not the father, to be waiting for a determination of their dispute.

   (Footnotes omitted)

7. In considering the father’s application for a further report, the trial judge was obliged to take into account a number of matters which included providing the father with an opportunity to advance his case by calling relevant evidence as well as any delay and its effect upon the parties to the case.

8. The delay, if the father’s application was granted, would have been in the order of four to five months in circumstances where the case had been pending in the Federal Circuit Court for over two years before being transferred to the Family Court. This would result in the proceedings being concluded three years after they had been commenced.

9. The trial judge was obliged to take this delay into account and properly did so. As his Honour said, however, the effect of delay in this case was of lesser importance than the benefit to be gained from any adjournment. His Honour considered that he would be assisted by hearing the evidence of Dr W on this issue because the evidentiary value of his observations with the children was a controversial issue.  His Honour’s decision to delay consideration of the application for a further report to the hearing, when Dr W’s views could be ascertained, was both appropriate and a decision that was properly open to the trial judge.

10. This aspect of the ground is not made out.

11. As to the lack of procedural fairness asserted by the father, the purpose of the adjournment was to seek Dr W’s views on the benefit of him seeing the children with the father. After referring to the concerns of Dr W if he was to see them with the father, his  Honour continued:

    28.Such concerns of the single expert informed against the father’s proposal, but were not a complete answer because the single expert said he would undertake the task if the Court “wanted it” or considered it “essential”. Simply stated, the additional observation of the children with the father, the provision of a supplementary report, and further cross-examination of the single expert was neither desirable nor essential. There were several reasons for that conclusion.

    29.As was revealed by the evidence and is later discussed, it can be readily accepted that the three youngest children would benefit from restoration of their relationships with the father without the need for a supplementary report to say so. If the single expert subsequently reported those three children interacted warmly with the father, it would prove nothing more than is already known or assumed. If the single expert reported to the contrary, it could only serve to impair the father’s case. The adjournment and procurement of the supplementary report would not therefore be of material advantage to the father and so he is not unreasonably prejudiced by the rejection of his proposal. Conversely, the absence of the supplementary report more probably serves to deprive the mother of the chance to argue that even the three youngest children’s relationships with the father are beyond salvage. She is not prejudiced though, because she does not want the supplementary report.

    30.Even though the three youngest children would derive benefit from restoration of their relationships with the father, which is a primary consideration (s 60CC(2)(a)), other evidence tended to bear out the risks of harm posed by the father. Those risks of harm to the children were an equally important consideration (s 60CC(2)(b)) and, as is later explained, in aggregation with additional considerations (s 60CC(3)), carried greater weight in the determination of the proceedings. It was consequently futile pondering the desirability of restoration of the relationships between the three youngest children and the father when stronger evidence militated against it regardless.

12. It was submitted by the father that his Honour wrongly characterised Dr W’s position about seeing the children with the father as “lukewarm”.  We first observe that his Honour did not use that expression, as the above quotation makes clear and thus to the extent that the ground relies on his Honour so characterising Dr W’s view, it cannot be made out.  Dr W said, in the course of cross-examination:

    …You – it’s something, as you know, that the husband would like the opportunity to do.  Do you think that it would benefit, in terms of hearing what you’ve heard today, do you think that it might benefit you in actual recommendations – either no contact or supervised or non-supervised contact, that you have that opportunity? - - - Well, ordinarily I would see – see children, really push for it as I mentioned in the thing.  Well, I gave a couple of reasons why I didn’t.  But – but I – I guess I was pretty unhappy with the outcome of the report in the sense that I felt that I wasn’t able to be as clear as I might be had I had the opportunity to do that.

    Yes? - - - And so if the Court – if the Court wanted me to do that I think it would probably allow me to give a more informed view about the father’s time with the three younger children.  Yes, I would  - - -      

    I mean, it’s a very extensive report but there’s just that one piece missing from the puzzle, isn’t there? - - - I know.  I know.  And as I say, normally I would have pressed but because I was really unhappy about the father’s obliqueness about the guns and – and about bringing – and with that – with myself not really having a – how can I say – I mean, it would have involved me having to get – get the children back and I  didn’t see that as necessarily being - being a problem but I just didn’t know how high I needed to put the risk in terms of me actually conducting that assessment in my rooms.

    …

    …In a nutshell, the reason that I didn’t bring them back at the time as because I wasn’t sure quite – I wasn’t sure about the dangerousness issue.  And - and I was worried about forcing the mother to bring – to bring the children back under circumstances where I really wasn’t comfortable about the safety of the setting in which I’m doing – in my office, sort of, setting.  I mean it’s not that – and I would have to say it’s the first time I’ve ever done this in over 3000 of these assessments where I said, “No, I’m not going to see the father of the children.” or “Yes, I am.”  And so the issue about dangerousness in seeing the children doesn’t really relate to the – in a direct way to that paragraph on page 47.  It was – it was a sort of a separate consideration where I was really raising the possibility that I would be prepared to see – to see the children if – if the Court was satisfied, you know, bearing in mind what material it had in front of it, that – that they thought it was still essential.  In other words, the Court was at a stage where it was – didn’t regard the father as so dangerous that the orders that he wanted are inconceivable and that it would assist the Court to get some more information in this way – in this regard.  So that’s sort of where I stand on it.  I’m – it’s – it’s a really unsatisfactory situation, from my point of view, and I’m sure from the Court’s point of view.  And I apologise for that, but I just felt that I – and I actually discussed this with a group of my peers, in anonymous terms, about what to do in a case – in a case like this.  And as a result of that discussion, that’s why I wrote the report in the way I did.  Is that, sort of, clear?

    (Transcript 29 October 2014, p 175, line 29 – p 176, line 3; p 176, lines 25-45)

13. Thus while Dr W was concerned that he had taken an unusual course which was not entirely satisfactory and that he might be aided by the proposed course, he was apparently far from convinced as to the merit in the proposed course.

14. In any event, the determination of the issue was a matter for his Honour.  Clearly he was concerned to understand the expert’s position in relation to the father’s application but ultimately the decision was one for his Honour.  As his reasons amply demonstrate, he concluded that the evidence then before him was sufficient to enable him to ascertain and characterise the relationship between the children and the father and to find that a further interview and report was not necessary.

15. Finally, it was submitted that in refusing the father’s application, his Honour pre-judged the issue.  This was said to be so because the rejection of the father’s application to have Dr W see the children in the presence of the father was made on 29 October 2014, during the course of the trial. The father submits that “…this necessarily involved His Honour concluding that there was no prospect the evidence gleaned from the observations, and the opinions of Dr [W] arising from them as they affected the issues in the case, would alter the outcome”. We do not accept that submission.  The application was heard at the conclusion of the oral evidence.  All that remained in the trial was the tender of a few further documents and oral submissions.  The hearing was thus in an advanced state and the trial judge was well apprised of the issues and nearly the entirety of the evidence which his Honour was entitled to take into account in determining the issue.  No issue of pre-judgment thus could arise and this part of the ground is not made out.

16. Further, as the above paragraphs make quite clear, the trial judge considered that there was evidence available that indicated the youngest children would benefit from a relationship with the father.  As his Honour observed it is difficult to see what the observation of a warm interaction between the children and the father at an interview with Dr W would add to that picture.  As the children had already indicated their views to Dr W, seeking those views again in the presence of the father would be of limited value.  All of this evidence was known at the time of the hearing of the application and, indeed, accepted to be the case.  These findings, which were not otherwise challenged, provided a strong basis for his Honour’s refusal of the father’s application.

17. As is apparent from the trial judge’s reasons, his Honour regarded this factor as being more important than the delay that would follow from any adjournment. 

18. The father submitted to his Honour that such a meeting would test his ability to resist denigrating the mother in the presence of the children.  Accepting that he could avoid doing so for such a short period of time, in front of an expert witness, would, it seems to us, carry very little weight in his Honour’s ultimate determination.

19. We are not satisfied that his Honour erred in refusing the application for a supplementary report. This ground has not been established. 

Ground 3 - His Honour erred in indicating to the father, at the commencement of closing submissions, that it [sic] was of the view that the three younger children would benefit from spending time with their father, in circumstances where it [sic] then made orders which failed to provide for any such time.

1. We do not accept that the trial judge expressed such a view.

2. Shortly after counsel for the father commenced his submissions, the trial judge said:

   HIS HONOUR: … - One of the reasons it occurred to me that it was appropriate to press that was that I accept on the existing evidence that the three youngest children probably would derive benefit from their – or sorry – would derive benefit from a restoration of their relationship with the father.  So getting a report from ‑ ‑ ‑ …That says the same thing doesn’t advance Mr [Dunst’s] cause. … 

   (Transcript 30 October 2014, p 208, lines 10 – 19)

3. Towards the end those submissions the trial judge said:

   HIS HONOUR: But I’m yet to hear from Mr Hannaway and I am left with a grave deal of concern about that that I still have to reconcile with what I can guarantee I will find that the three youngest children would derive some benefit from a restoration of their relationship.

   (Transcript 30 October 2014, p 223, lines 44 – 47)

4. The father had, of course, contended for a finding that the children would benefit from a relationship with him. We have already set out the trial judge’s finding to that effect at [34] and [35] above.

5. The father submits in relation to this ground: 

   22.This issue is explored in relation to the remaining grounds.  In brief, too much weight was given to the historic events in the relationship, and the decision by the father to write his two letters asking the mother to find a less destructive way forward for the family, and to telephone the mother, both of which were found to be deliberate breaches of an ADVO, in deciding the father was an unacceptable risk.  As the only attempts to contact the mother over the course of more than 2 years since separation (except through legal correspondence), it was not available to conclude that the father represented an unacceptable risk of causing physical harm, particularly in the context of supervised time as recommended by the expert. 

   23.The other risks of harm identified did not support the complete end to the relationship since:

   a)There was no positive finding of a risk of sexual harm;

   b)The undisturbed expert evidence was that attempts by the father to undermine the children’s relationship with their mother would fail, and would only endanger his own relationship with the children [AB3:523.24ff, where under cross examination the expert resiles from his conclusion at page 47 of his report that this issue represented a potential unacceptable risk to the children];

   c)The mother was a resilient person and resourceful, according to the expert [AB3:527.10] and in the expert’s opinion [AB2: 327] would support supervised time.  His Honour was not of the same view, and went so far as to find the mother lived

   
   

   “in abject dread” (Reasons para 120).  However, His Honour felt the evidence did not permit him to conclude her parenting capacity would deteriorate, were time to be ordered.  It is hard to reconcile these two conclusions.

6. Essentially, this is a challenge to the weight that the trial judge gave to the evidence albeit one not directly raised by this ground of appeal.

7. Such challenges face a high bar.  Appellants who seek to challenge a discretionary judgment based upon the weight given by the trial judge to various factors face a difficult task.  This is made clear by the following cases.

8. In Gronow v Gronow (1979) 144 CLR 513 at 519 Stephen J said:

   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…

9. The father submitted that, as he had attempted to contact the mother on only two occasions since separation, the trial judge could not find that there was an unacceptable risk of him harming the mother.  It is to be recalled, however, that the father spent a significant part of that time in prison.  Each of the attempts to contact the mother was in breach of orders which prohibited him from doing so. He contacted her by letter for which he was convicted and fined in March 2012. As we have said, he was sentenced to a significant term of imprisonment for his second contact with the mother.

10. There are serious considerations which support his Honour’s findings that the father posed a risk of harm to the mother. To those must be added the evidence of the father’s conviction for serious assault and possession of a pistol.

11. As to the other matters raised by the father it is sufficient to observe that a judge is not obliged to accept all of a single expert’s findings and recommendations and may reject them all or reject some and accept some. 

12. The trial judge’s findings were open to him on the evidence.

13. Ultimately the court’s task is to make orders that it considers are in the best interests of the children.  In doing so the court will take into account all of the relevant considerations arising under s 60CC.  This the trial judge did.  In this case there is no basis for asserting the trial judge should have found that the benefit to the children of seeing their father outweighed all other considerations.

14. This ground has not been established.

Ground 5 - His Honour erred in finding that the father has ongoing access to firearms and that such access constituted a risk to the children.

1. His Honour said:

   93.The mother’s fear of the father is elevated by his access to firearms. While it may be presumed the firearms seized by police upon the father’s arrest in March 2012 were not returned to him, she has no comfort he has not since obtained others. The father was impelled to admit he is known by numerous alias names, which are noted on his criminal record, and that he holds other official forms of identification in a false name. Significantly, he held a firearms licence in a false name, and may still do so.

   94.The single expert found the father evasive, if not dishonest, when discussing the firearms he formerly possessed. Similarly, his evidence on the topic at the hearing was incredible. Notwithstanding his firearms convictions in March 2012, during cross-examination the father said “I have never had a gun”. When challenged about the absurdity of that answer he tried to explain how he meant he did not “own” a gun, not that he did not “possess” a gun. His explanation was facile and unconvincing.

1. The trial judge then continued:

   98.The mother has every reason to still harbour fear of the father in circumstances where: he made many past threats to kill her, the children, and himself; he previously had ready access to rifles, shotguns and pistols and gave no reason to believe he does not still have; he cannot forgive perceived slights against him easily; he is defensive and irritable; he has a strong sense of entitlement; he lacks empathy; he was cunning enough to discover the locality of her residence despite her best efforts to avoid his detection; and he is willing to deliberately flout court orders to achieve his ends.

   (Our emphasis)

2. In his written submissions counsel for the father said: 

   24. …It could not be denied the evidence established the possibility the father still had access to firearms could not be ruled out.  He certainly did not help himself in that regard, but it was not put to the father he still had firearms…

3. The first sentence accepts the finding of the trial judge emphasised by us.  As to the second sentence of the submissions we do not accept that the trial judge found that the father had access to weapons or that he would use them to harm the children.  Clearly, the trial judge found that there was a basis for the mother’s belief that he did and that therefore the mother “has every reason to still harbour fear of the father”.  The finding as to the weapons was thus made in a limited way and was one that was open to the trial judge on the evidence.

4. This ground is not established. 

Ground 6 - His Honour erred in finding that the father poses an unacceptable risk of physical and psychological harm to the children by his exposure or subjection of them to family violence in that such findings were not supported by the evidence.

1. As developed in the father’s written submissions, this complaint essentially is that the evidence did not support a finding that the father posed such a risk to the children and that any such risk could not be ameliorated by supervised time.

2. The facts to which we have already referred comfortably support his Honour’s finding that the father was violent, and even if that violence was not directed to the children, it had occurred in their presence. It is sufficient to refer to the following two paragraphs from the single expert’s report:

   I have noted that the children have progressively aligned themselves with their mother, primarily because of her centrality in their lives, and also because I think they felt their father treated her in a bullying and harsh way.  Overtly physically violent incidents seem to have been rare and I note that in the final incident [the child Y] and her mother overpowered Mr [Dunst].  I think they are probably most afraid of his hypersensitivity and irritability and also of him never giving up on contacting them and perhaps harming their mother.

   …

   In my view there are several matters which represent an unacceptable risk to the children.  The first is that I am of the view that the father’s beliefs about the mother are unshaken and that he would use any opportunity with the children to insistently press his views on them until they said they agreed with him.  He probably would not even accept this and I think it is likely that he would continue to ask the children to reiterate that they accept his view.  In my view this would occur at any unsupervised contact and for that reason, if the Court does order contact in my view it needs to be supervised.

   (Expert’s report, page 46, paragraph [j] and page 47, paragraph [k])

3. There was ample evidence before the court that established the father posed an unacceptable risk of physical and psychological harm to the children by his exposure or subjection of them to family violence.

4. The trial judge, however, did not base his decision that the father should not see the children solely on that basis.  His Honour said:

   119.The single expert considered the mother would probably support any orders that provided for the children to spend time with the father on a “professionally supervised basis”,  but I am not similarly convinced. I doubt the mother would deliberately sabotage implementation of orders to that effect, but she is too traumatised by her former experiences with the father to actively support such orders. Shortly after the parties’ separation, the mother was diagnosed with “a form of PTSD” due to her former “fraught domestic situation”,  for which she briefly sought counselling before moving away.

   120.I unreservedly accept the mother still lives in abject dread of the father’s prospective re-entry into her life and the lives of the children. The single expert confirmed in cross-examination that the mother’s fear was indeed genuine, but he remained uncertain whether her parenting capacity would be deleteriously affected if orders were made for “unrestricted contact” between the children and the father.

   121.The available evidence falls short of proving the mother would react so adversely to future personal interaction between the children and the father that her parenting capacity would deteriorate and impinge the children’s best interests, thereby justifying elimination of the father from their lives (see Marriage of Sedgley (1995) 19 Fam LR 363 at 371; Re Andrew (1996) 20 Fam LR 538 at 544-546; Hepburn & Noble (2010) FLC 93-438 at [43], [49]-[64]). Nonetheless, the mother’s fear, which was not only genuine but also objectively reasonable, is still a feature of the evidence that favours curtailment of the children’s interaction with the father.

   (Footnotes omitted)

5. These were findings that were open to his Honour on the evidence and justified the orders ultimately made.  

6. This ground is not established. 

Ground 7 - His Honour erred in finding that the children were at any risk of sexual abuse.

1. The trial judge did not make such a finding.  The trial judge found:

   106.Both parties ventilated grievances about the risk of the children’s sexual abuse, but the evidence did not warrant their professed level of concern.

2. In relation to events that occurred between the father and his half-sister before, the trial judge found that that activity:

   107.… is insufficiently suggestive of the father’s willingness to sexually molest any of the children. It may be a risk, but it is not quantifiable as unacceptably high. …

3. There was thus no finding that the children were at any risk of sexual abuse. In the submissions counsel for the father properly accepted that if this was the correct understanding of the trial judge’s reasons the ground could not be pressed.

4. This ground is thus not made out.

Ground 9 - His Honour erred in finding that the mother’s fear of the father was a feature of the evidence which favours curtailment of the children’s interaction with the father.

1. Section 60CG of the Act provides:

   (1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order:

   (a) is consistent with any family violence order; and

   (b) does not expose a person to an unacceptable risk of family    violence.

   (2)For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.

2. The mother’s fear of the father and the possibility of exposing her to an unacceptable risk of family violence were matters that the trial judge was obliged to take into account.  Based on his Honour’s findings, those considerations clearly favoured curtailment of the children’s interaction with the father rather than the reverse and his Honour was quite correct in so finding.

3. Again, as developed in the written submissions, the complaint was essentially that, notwithstanding the findings, supervised time remained a viable option.  We have already addressed that issue in the context of the trial judge’s findings as to the mother’s fear of the father and find that the course taken by his Honour was properly open to him.

4. This ground does not succeed.

Ground 10 - His Honour erred in allowing any future time spent by the children with the father to be at the absolute and sole discretion of the mother. [I]n circumstances where the Court clearly envisaged that the children will probably have very little to do with their father henceforth.

1. The trial judge found:

   156.The orders make no provision for any of the children to spend any time with the father, but nor do the orders preclude it. Whether any of the children spend time with the father and, if so, the circumstances under which it is allowed to happen will be decided by the mother as an incident of her sole parental responsibility for the children. It could be that in the future one or more of the children do express to the mother a stronger desire to see the father. It is feasible the mother may conclude that they have attained sufficient maturity that they are able to safely visit the father briefly and in secure circumstances. An injunction should not preclude such an eventuality.

2. It is abundantly clear from the above paragraph that the trial judge considered making an order that the children not spend time with the father but decided that the better course was to leave open the possibility of a brief and secure visit with the father.  As the mother had parental responsibility she was the only person who could make that decision. 

3. Thus, whilst it is true that this is likely to mean that the children will have very little to do with their father, the alternative was an order that the children spend no time with the father.  In deciding against this the trial judge left open the possibility of the children spending some time with the father.  It is possible that the potential effect may be the same but the orders do not prohibit contact.

4. It was submitted that there were a number of options available to the trial judge, such as supervised time or a gradual re-introduction of the children to the father, and it was argued that it was “a step too far” to terminate the children’s relationship with the father.  The argument, in order to succeed, must be that the decision made was outside the range of a proper discretion.  Having regard to the findings as to the risk of physical and, importantly, psychological harm to the children if they were to see their father and the impact of the mother’s fear of the father on the children, we do not agree.  The course taken by the trial judge was well open to him on the evidence.

5. It follows from the above that the appeal should be dismissed.

COSTS

1. Neither party addressed the issue of costs in their written submissions. Directions will be made for submissions as to costs.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Ainslie-Wallace & Aldridge JJ) delivered on 18 February 2016.

Associate:     

Date:  18 February 2016