ETOLA & IMANI
[2018] FamCAFC 196
•15 October 2018
FAMILY COURT OF AUSTRALIA
| ETOLA & IMANI | [2018] FamCAFC 196 |
| FAMILY LAW – APPEAL – PARENTING – Where the primary judge ordered that the children spend no face to face time with their father and not be required to communicate with him – Where the father asserts the primary judge mistook facts, did not take into account material considerations, allowed irrelevant matters to affect the outcome and that the orders made were unreasonable and plainly unjust – Where the primary judge was not in error in any of the ways asserted by the father – Whether the primary judge denied the father procedural fairness – Where the primary judge did not deny the father procedural fairness – Appeal dismissed. FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – DISQUALIFICATION – Whether the primary judge should have recused herself on her own motion – Where there was no basis for the primary judge to do so – Appeal dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Whether leave should be granted to the father to adduce further evidence – Where part of what the father wished to adduce could have been reasonably obtained by him at the time of the hearing and where the further evidence would not have produced a different result if it had been available at the trial – Where the further evidence does not demonstrate that the order under appeal is erroneous – Application dismissed. |
| Family Law Rules 2004 (Cth) rr 22.22, 22.45 Family Court of Australia, Practice Direction No. 1 of 2017 – Conduct of Appeals, 22 December 2016 |
| CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 |
| APPELLANT: | Mr Etola |
| RESPONDENT: | Ms Imani |
| FILE NUMBER: | MLC | 4188 | of | 2015 |
| APPEAL NUMBER: | SOA | 13 | of | 2018 |
| DATE DELIVERED: | 15 October 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Alstergren DCJ, Aldridge & Watts JJ |
| HEARING DATE: | 29 August 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 1 February 2018 |
| LOWER COURT JUDGMENT: | Subject to non-publication order |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Smallwood |
| SOLICITOR FOR THE RESPONDENT: | Lander & Rogers |
Orders
The appeal is dismissed.
The appellant pay the respondent’s costs of the appeal in the sum of $25,000.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Etola & Imani has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 13 of 2018
File Number: MLC 4188 of 2015
| Mr Etola |
Appellant
And
| Ms Imani |
Respondent
REASONS FOR JUDGMENT
ALSTERGREN DCJ & WATTS J
Introduction
On 1 February 2018, Bennett J (“the primary judge”) made final parenting orders in relation to B, born 2006, (“the elder child”) and C, born 2011 (“the younger child”) (collectively, “the children”). These orders were based upon the primary judge’s conclusion that the best interests of the children required the mother to have sole parental responsibility; that the children live with her; spend no face to face time with their father and not be required to communicate with him. The mother was also permitted to change the children’s surname to her surname. The father appealed these orders.
Background
At the time of the trial, both the mother and father were 45 years old. The elder child was completing grade six and the younger child was in prep.
The parties commenced cohabitation in about August 2005 and the mother alleged a separation under the one roof in October 2013. The parties physically separated when the mother moved out of the former matrimonial home in January 2015.
Interim parenting orders were made by consent on 23 June 2015 which provided the children live with their mother and spend time with their father each Saturday between 11 am and 6 pm and communicate with him on three occasions a week. Pursuant to these orders, the mother and father were assessed by Dr G, psychiatrist, on consecutive days in October 2015 and the family was also assessed in October 2015 by Ms F who is a Regulation 7 family consultant. Ms F recommended that the mother have sole parental responsibility and the time the children spend with their father be reduced to four hours each week to be supervised by a professional supervisor.
On 12 November 2015, new interim orders were made, by consent, in the terms of Ms F’s recommendations. In addition, those orders provided that the children have no telephone contact with their father. The Z Service was engaged to provide the professional supervision.
On 8 July 2015, the elder child commenced seeing psychologist, Dr P. In early 2016 she ceased therapy with Dr P and commenced to see psychiatrist, Dr L, about each fortnight and continues to do so.
On 21 June 2016, an interim intervention violence order was made at Suburb M Magistrates’ Court against the father, covering both the mother and the children.
In the middle of 2016, the children commenced showing some resistance to seeing their father.
In August 2016, Ms H, an in-house family consultant, provided a further family report. She recommended a suspension of the operative interim orders and a therapeutic process.
On 14 September 2016, the primary judge ordered the family to attend Dr D, child and adolescent psychiatrist, to explore the possibility of participating in “intensive family therapy”. Dr D had 11 sessions with various members of the family. The elder child refused at the outset to see her father with Dr D and he ceased therapy with her. In two meetings in June and May 2017, Dr D arranged the younger child to meet with her father, but this was not successful in reconciling the relationship.
At the time of the hearing before the primary judge in August 2017 the children had not spent time with their father for more than one year.
The mother’s application in an appeal
The mother filed an Application in an Appeal on 3 August 2018 seeking an order pursuant to r 22.45 of the Family Law Rules 2004 (Cth) (“FLR”) that the appeal be dismissed. That application was supported by an affidavit by the mother’s lawyer affirmed on 3 August 2018 which detailed the procedural history of the appeal at that date.
The application was based on the fundamental failure by the father to file a summary of argument. Orders and Notations were made on 30 April 2018 which included at Notation D:
Any summary of argument must be prepared in accordance with Rule 22.22 of the Family Law Rules as amended by paragraph 4 of Practice Direction No. 1 of 2017, a copy of which is attached.
Subparagraph 4.1(a) of the Practice Direction sets out clearly what a Summary of Argument must do and is substantially replicated in r 22.22(2)(a) of the FLR.
The father had prepared, but not effectively filed, three documents entitled “Summary of Argument”, the latest of which was Exhibit JMP-15 to the mother’s lawyer’s affidavit. The documents did not comply with r 22.22(2)(a) of the FLR which requires the summary of argument to set out each ground of appeal and, for each ground of appeal, a statement of the arguments setting out points of law, facts and the authorities relied on together with references to the relevant page(s) of the appeal books and transcripts.
At the outset of the hearing we suggested to Counsel for the mother, that the appeal might proceed on the basis that the father would not be allowed to rely upon any written “Summary of Argument”, but only on his oral submissions in respect of any grounds set out in his Notice of Appeal filed 28 February 2018. On that basis, Counsel for the mother withdrew the mother’s Application in the Appeal and it was dismissed.
Leave sought by the father to make an application in an appeal
After the commencement of the hearing, the father sought leave to make an Application in an Appeal in the terms of a document which is included in Exhibit 1. That application sought:
·To adduce unspecified evidence “not allowed during the trial”;
·To adduce unspecified “further evidence”;
·Cost orders against the mother’s lawyers and Legal Aid Victoria;
·An injunction to prevent the mother’s lawyers from continuing to act for her;
·The “allocation” of a new ICL from a private firm “outside the family law system”;
·An adjournment of the appeal until the end of 2018;
·An order enrolling the children in an intensive family/reunification therapy chosen by the father;
·Orders immediately recommencing video calls with the children in private for one hour each day;
·“Sword of Domacles [sic]” order for the AFP to arrest and incarcerate the mother for three months if she failed to produce the children for intensive therapy;
·The children be placed on the Airport Watchlist;
·Copy of the orders to be provided to “police, Children’s Court, Magistrates Court, schools and doctors”;
·The father be at liberty to apply for an “IVO” for the children against the mother; and
·The father be at liberty to record all contact, therapy and assessments with the children.
We dismissed the appellant’s application for leave to proceed with this Application in an Appeal and reserved our reasons which we now provide.
The majority of the orders sought in the appellant’s application are not orders which can be made on appeal.
The father did not proffer any evidence or document in support of any part of the application except for the application to adduce further evidence. Relevant to that application, Exhibit 1 included a document entitled “Affidavit” which purported to be an affidavit by the father and documents entitled “Annexure CAR-4; CAR-4 (2 copies); CAR-5; CAR-7; CAR-8 and CAR-9”. These documents were not referred to in the document entitled “Affidavit”.
Section 93A(2) of the Act provides the court with a wide discretion to admit further evidence on appeal. The High Court in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) set out the relevant principles which constrain the exercise of that discretion.
Gaudron J said at [55], that “ordinarily, further evidence should not be admitted on appeal if it was available, or could reasonably have been obtained, at the time of the hearing” but McHugh, Gummow and Callinan JJ made clear at [116] that “no invariable rule concerning the failure to call the evidence can or should be laid down”.
Further in CDJ v VAJ, McHugh, Gummow and Callinan JJ said at [115]:
Other limitations on the exercise of the power arise from the fact that the discretion which s 93A(2) confers must be exercised judicially. In most cases concerned with parenting orders that means that it should only be exercised in favour of the receipt of the further evidence if that evidence is not only relevant to the welfare of the children but is also admissible according to ordinary principles or by statute, and if there is no reason apparent to the Full Court of the Family Court for believing that the evidence is not credible.
The “Affidavit”
The document entitled “Affidavit” was not correctly sworn or affirmed (the jurat being left entirely blank). It bears no date apart from one apparently written by a Justice of the Peace at the bottom of some of the pages of the document, namely, 14 August 2018.
The text of the affidavit refers to orders made by the primary judge on 14 September 2016 for the children to have intensive family therapy and makes assertions that:
·On 14 September 2016, the court was misled to believe Dr D “is equivalently qualified” to provide intensive family therapy “as Dr [I] (para 22)”. It is not clear what “para 22” is in reference to;
·The mother’s solicitors continued to mislead the court until 14 July 2017 “when Dr [D]’s first report was released” (AB 1100). This is a reference to annexure C to Dr D’s trial affidavit which is a letter Dr D wrote on 14 July 2017;
·The mother’s solicitors were in breach of their duty to the court and have criminally conspired to pervert the course of justice;
·Dr D “perjuriously misled the court that he had informed the ICL in his initial email that he could not perform intensive family therapy”;
·Dr D “contemptuously failed to carry out the intensive family therapy ordered by the court”; and
·Dr D contemptuously failed to produce his initial email to the Independent Children's Lawyer “as ordered by the court” and the Independent Children's Lawyer continues to refuse to produce that email.
Even if the father’s “affidavit” had been properly executed, there is no admissible evidence in this document. We now turn to the “Annexures” handed up by the father (as indicated, these documents were not referred to in the “Affidavit”).
The “Annexures”
Emails between the father and the ICL about an email from Dr D to the ICL (“CAR-1”)
This annexure is pages 1, 4, 6, 7 and 8 of a document containing emails between the father and the Independent Children's Lawyer (“ICL”). Those emails are dated 30 August 2017; 31 August 2017; 14 April 2018; 21 May 2018 and 1 June 2018. It is far from clear whether these emails are a complete set of communications.
On 25 August 2017 (the fifth day of the hearing), Dr D said during cross-examination, that he had made it clear to the ICL at the outset that he did not offer “intensive family therapy aimed at reunification” (Transcript, page 416, line 20). Dr D was unable to immediately locate an email he said he had sent to the ICL to that effect. He looked for the email. The primary judge intervened and reiterated (her Honour said for about the “tenth time”) that her Honour had ordered “intensive family therapy” and said “It did not have the word reunification in it” (Transcript, page 416, line 39). Dr D was unable to finally locate the email. The father then said “there seems to have been a bit of misunderstanding. So that is fine” (Transcript, page 417, line 24).
After the hearing was completed, the father reignited the issue in the email exchange which he now seeks to adduce into evidence. The email from the father to the ICL on 30 August 2017 contains the following:
Dr [D] under oath stated that he sent you an email informing you that he couldn’t do the type of intensive therapy offered by Dr [I].
I asked the ICL barrister to ask you to forward that email to me but I have not as yet received anything.
The ICL replied on 30 August 2017 saying that the issue the father raised had “been dealt with at the trial”. This may be a reference to the father’s comment “so that is fine”. The father responded to the ICL’s email by asking the ICL whether or not such an email existed. That request was repeated in emails dated 14 April 2018 and 21 May 2018 by the father to the ICL. On 1 June 2018, the ICL sent an email to the father in the following terms:
I have responded to your request. I do not intend to continue to respond to the same questions. I do not believe that I have any emails/correspondence from Dr [D] that the parties were not copied into.
An affidavit was filed by Dr [D], of which you should have a copy where he addresses what he could offer.
I have perused my file and do not appear to have any such email as you have suggested below.
I otherwise reiterate it is my understanding that this matter was dealt with at trial.
The father seems to seek to rely on these emails between himself and the ICL to attempt to demonstrate that Dr D made an incorrect statement to the court when under oath. No conclusion of that nature could be reached based on the information in CAR-1 without Dr D being given the opportunity to produce any email he was unable to produce when he was in the witness box.
The primary judge did not refer to any evidence about the efficacy of intensive treatment programs in her Honour’s Reasons. The primary judge did, however, make some general comments about the father’s complaint that Dr D had failed to conduct reunification therapy at [137]:
It was a source of constant complaint by the father that Dr [D] had failed to conduct reunification therapy between the father and the children. The father’s complaint was misconceived. In September 2016 I ordered “intensive family therapy” and not reunification therapy. Indeed reunification therapy would have been premature. Part of my consideration and necessary assessment in this proceeding is to determine the extent to which a meaningful relationship with both parents is going to be of benefit to the children (or either of them). Now, having heard the evidence, I am satisfied that it would be contrary to the children’s interests to have a meaningful relationship with the father. Unfortunately, the father was unable to grasp the distinction and, more likely than not, still thinks that Dr [D] was deficient because he did not conduct some model of reunification therapy which, of course, is not the case.
An assertion that Dr D had misled the court about sending an email to the ICL does not relate to any specific ground of appeal. In addition, we are unable to conclude that the evidence, if accepted, would demonstrate that any order under appeal is erroneous or a different result would have been produced at the trial.
Emails between the father and Dr D (“CAR-4” and “CAR-5”)
CAR-4 contains the text of two emails. The first is written by the father to Dr D on 26 July 2017 which complains that Dr D had not provided “intensive reunification”; asserts Dr D had been involved in a serious breach of professional conduct and seeks that Dr D produce documents which might establish ex parte communication between Dr D and the mother. The father’s email of 26 July 2017, somewhat ironically, is an ex parte communication between the father and Dr D.
The second email is Dr D’s response of the same day, requesting that as the father was then legally represented, all communication take place regarding his report “via your solicitors and copying all other parties and the Independent Children's Lawyer”.
CAR-5 consists of an email by the father dated 11 August 2017 (who indicates that he was then a self-represented litigant) to Dr D requesting a copy of his clinical notes and renewing the call for copies of alleged ex parte communications and requesting details of any oral ex parte communications which were not the subject of notes. Dr D replies to the father indicating that it is his understanding that the correct procedure is to issue a subpoena or to otherwise obtain the mother’s permission for the release of the information requested.
CAR-4 and CAR-5 were in the father’s possession at the time of the hearing before the primary judge but he did not tender them. The primary judge deals with the subject matter to which these emails relate and the father has not demonstrated that any different result would have been produced had these documents been admitted.
Email to the father from Company R (“CAR-8”)
CAR-8 is an email dated 12 December 2017, sent by Company R to the father, in response to a message sent to them by the father which is not provided. The email is written by Mr S, apparently an employee of Company R. The company on the face of its document, apparently, inter alia, offers services in intensive reunification]. Mr S states that he is “trained to facilitate [an intensive reunification program]”. He indicates it is important that the father have a family assessment that ideally supports a case for change of residence and parental responsibility to himself and if not then at least this company can provide adversarial expert evidence.
Mr S asserts in this document that “Recent studies in 2015 indicate that up to 95% of the children who have been through an [intensive reunification program] recover a positive relationship with a parent whom they have rejected after completion of the four day residential program”.
CAR-8 seems to be connected to Ground 8 which is discussed below.
Leaving aside issues of relevance and weight, the father gives no explanation as to why the information from Company R could not have been obtained before the hearing and put before the primary judge.
It is again not possible to conclude that CAR-8, if accepted, would demonstrate that any order under appeal was erroneous.
Letter between the parties’ lawyers (“CAR-7”)
The document CAR-7, which predates the hearing before the primary judge, is a letter dated 4 November 2016 written to the father’s former lawyers by the mother’s lawyers. It is essentially a complaint that a general subpoena had been issued by the father’s lawyers seeking a copy of all the notes from Dr L and Dr P in circumstances where at that time the mother’s lawyers asserted that the therapy provided by those practitioners to the elder child was non-reportable therapeutic counselling.
This document does not appear to be relevant to any ground of appeal or that this document would have produced a different result had it been successfully tendered by the father at the hearing before the primary judge.
Emails between the father and the Z Service (“CAR-9”)
The document CAR-9 is a series of emails between the father and Ms T, a supervisor at the Z Service. The Z Service had requested the father enter into a “contract” with them after it was alleged that he had failed to take direction from a supervisor during a period of supervised time with the children. A copy of that proposed “contract” was in evidence (Exhibit M.15, AB 1004 to 1010).
In an email of 12 April 2016 the father makes it clear he will not sign such a document, saying that to do so would be prejudicial to his position in this case. The father says “I have no doubt that [sic] the origins of this contract. In the spirit of transparency can you please forward to me all the communication you have had with my ex and her lawyers since I fired [my previous solicitors]”. The father’s email goes on to complain about the supervisor sharing “with my psychopathic ex” something the father had reported to the supervisor that the younger child had said to him. The supervisor had put what they had heard the father say to the child in a report about that supervised visit.
It is again ironic that on the one hand the father is raising concerns about ex parte communications between the mother and the Z Service, but on the other, is complaining that the father’s ex parte communications with the service had been shared with the mother.
An email of 15 April 2016 from the father to the service indicates that he had been told by a parenting course that he had attended that the contract he had been asked to sign was “completely inappropriate and breathtakingly unprofessional”.
In a response from Ms T of 15 April 2016, she repudiates any suggestion of ex parte communication and invites the issue of a subpoena.
In an email by the father to Ms T of 17 April 2016, the father complains about the behaviour of the children during a recent period of time with him, alleging amongst other things that the younger child had attempted “to insert a thick penis shaped stick into father’s bottom”. The father goes on to say that that should be the subject of mandatory reporting.
Again all of the documents in CAR-9 were available to the father at the time of the hearing but not tendered by the father. None of them obviously relate to a ground of appeal although there is an implication in the email of 17 April 2016 that one supervision report excluded a relevant detail. That implication falls short of being supportive of the part of Ground 10 which claims the supervision agency doctored their reports. There is no basis to grant leave to adduce CAR-9 into evidence.
Conclusion
For those reasons we dismissed the father’s Application in an Appeal.
Grounds of appeal
The Notice of Appeal sets out 27 grounds of appeal (grounds 1 – 10; 12 – 27; there was no ground 11 but there were two grounds 26 which were renumbered 26a and 26b). The father abandoned grounds 1, 19, 21, 24, and 26b. The father did not specify in relation to any particular ground of appeal what error the primary judge had made in the exercise of her Honour’s discretion or what other ground he was relying upon but it is tolerably clear the father asserts that the primary judge mistook facts, did not take into account material considerations, allowed irrelevant matters to affect the outcome and that the orders made were unreasonable or plainly unjust (House v The King (1936) 55 CLR 499). The father also asserts that he was denied procedural fairness and that the primary judge failed to recuse herself.
As set out below, in a number of the grounds of appeal, the father raises new arguments which he failed to put at the hearing before the primary judge.
In Metwally v University of Wollongong (1985) 60 ALR 68 at [7] the High Court said:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
The High Court in Water Board v Moustakas (1988) 180 CLR 491 at [497] said:
Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied. See Suttor v. Gundowda Pty. Ltd. (1950) 81 CLR 418, at p 438; University of Wollongong v. Metwally (No.2) (1985) 59 ALJR 481, at p 483; 60 ALR 68, at p 71; Coulton v. Holcombe (1986) 162 CLR 1, at pp 7-8; O'Brien v. Komesaroff (1982) 150 CLR 310, at p 319.
All of the assertions made for the first time by the father in this appeal do not arise from facts the mother admits or facts which are beyond controversy. The mother has been deprived of the opportunity of ventilating these issues before the primary judge. The father should be bound by the conduct of his case before the primary judge.
Ms F’s report (Grounds 2 and 3)
Ground 2 is in the following terms:
Her Honour erred by basing the bulk of her judgment on Ms [F]’s untested and stale assessment after talking me out of cross examining [Ms F] on grounds of it being historical and irrelevant.
As part of the primary judge’s discussion of “Background and Procedural History”, her Honour summarises part of Ms F’s family assessment at [86] – [96] of the Reasons. At [96] the primary judge states:
96.Ms [F]’s report was relied upon for historical context. In that sense it is important to note that the parents have had notice of Ms [F]’s expert opinion for nearly two years. However, during that time, the father has not modified his behaviour and the hostility by [the elder child] to him has not abated. The father referred to Ms [F] “telling lies” but elected not to cross-examine her at the final hearing.
Whilst the primary judge made reference to Ms F’s report, together with the other professional reports, in her Honour’s assessment of the children’s views and attitudes, there is no basis upon which it can be asserted that the primary judge based the “bulk” of her Honour’s judgment on Ms F’s assessment.
In relation to the assertion that the primary judge talked the father out of cross-examining Ms F, during the hearing there was a discussion where Counsel for the ICL made it clear that if Ms F had to come to court to give evidence, her fee would be $1000. The father indicated that he would pay that amount to have her do so. However, on the fifth day of the hearing the father indicated he did not require Ms F for cross-examination.
In oral submissions before us, the father conceded that was so, but continued to assert that he did so under pressure. There is nothing on the face of the transcript that would confirm or corroborate the father’s assertion that the primary judge talked him out of cross-examining Ms F.
Ground 3 is in the following terms:
Her Honour erred in failing to recognise [Ms F]’s doctored report by failing to recognise the allegation she had made that the father had put Tadpoles into the swimming pool was illogical on at least two levels. Firstly that there was no need to put tadpoles into a disused swimming pool as native frogs will lay eggs which will hatch into tadpoles. Secondly that it is illogical to put tadpoles into a pool as within a few weeks they grow arms and legs and hop out of the pool.
This ground asserts that the primary judge was mistaken about the reliability of Ms F’s report because of an incorrect reference to “tadpoles”. When discussing the mother’s concerns, Ms F said in her report (AB 903):
These included the uncovered deep pool of dirty water in the garden where he has put tadpoles and she understood there was no effective fencing around it.
During his oral evidence about this event, the father said “We were getting tadpoles” (Transcript, page 449, line 9). In oral submissions before us, the father insisted Ms F had made an error because “Catching tadpoles is different to putting them in there”. Even if Ms F had made an error about the father putting tadpoles in the deep pool, that error was not referred to by the father in submissions at trial nor is there any reference to “tadpoles” in the primary judge’s Reasons.
There is no merit in Grounds 2 and 3.
Dr D’s evidence (Grounds 4, 5, 7, 8, 15 and 27)
We deal with Grounds 4, 5, 7, 8, 15 and 27 sequentially. These grounds all seem to assert that the primary judge erred by making an order to appoint Dr D; accepting Dr D’s evidence; curtailing the father’s cross-examination of Dr D; or failing to recognise that Dr D’s evidence was biased.
Grounds 4 and 5 are in the following terms:
4. Her Honour erred by acting in the mother's best interest instead of the children's best interests by ordering a therapist of mother's choosing rather than the most qualified, or most effective.
5. Her Honour erred in her logic by ordering a therapy that was several times more expensive and numerous times less effective on the false premise that it was cheaper and yet made the father pay for it anyway.
As was discussed during oral submissions before us, the order appointing Dr D is an interim order that the primary judge had made on 14 September 2016 prior to the final hearing. Those orders were not the subject of the Notice of Appeal.
Ground 7 is in the following terms:
Her Honour erred to accept the evidence that Dr [D] had behaved unprofessionally by having extensive ex parte communication with the mother's lawyers, failed to disclose his relationship with the daughter's therapist until cross examined, gave opinions outside his area of expertise, and taken on a dual role as both a therapist and examiner.
The father does not particularise what “extensive ex parte communication” he says Dr D had with the mother’s lawyers. During cross-examination, Dr D said “I’m meticulous about making sure that information to one solicitor goes to the other” (Transcript, page 409, line 35). In final submissions to the primary judge, the father made the bald assertion that there had been ex parte communication, without developing that submission, or pointing to any evidence to support the submission.
In relation to the assertion that Dr D had “failed to disclose his relationship with the daughter’s therapist until cross examination” that issue is discussed by the primary judge at [248] of the Reasons:
The father put to the mother that a Dr [U] [a doctor not connected to this case] was a good friend of the mother and that she had done a presentation with Dr [L] [the elder child’s therapist] and the mother thus had some personal connection with Dr [L]. The mother agreed that she was a friend of Dr [U]’s and that she saw the presentation when the father sent it to her solicitors by email. The father then asked if Dr [L] and Dr [D] worked on a Parliamentary inquiry together, the mother said she was not aware of it. The father then asked whether, and the mother agreed that, Dr [D] was recommended by Dr [L]. He put to her that Dr [L] recommended him because they were friends. I intervened and asked if this was communicated to her; and the mother responded that Dr [D] had told her when she met him, that he was in the same peer group as Dr [L] and Dr [L] had confirmed this. The father put to the mother that she had asked Dr [D] not to communicate this to his solicitors, the mother denied this.
The father did not challenge the primary judge’s summary but submitted that the primary judge should have found that as a result of the relationship between the mother and Dr [U], it should be presumed, that because of Dr [U]’s relationship with Dr L on the one hand, and Dr L working with Dr D on a Parliamentary Inquiry on the other hand, that Dr D’s independence was compromised. There is no basis for this challenge.
During the father’s oral submissions, before us, he asserted that the opinion expressed by Dr D which was outside of his expertise was that intensive family therapy would be “too traumatic for the children”. The father did not cross-examine Dr D in relation to his expertise in being able to form this view nor was any relevant submission made by the father to the primary judge about Dr D’s lack of expertise.
In his report dated 14 July 2017, Dr D, having completed his therapy, wrote “I am not prepared to engage in what I believe would be an extremely traumatic process of forcing the children to spend time with their father against their will”. The same report makes clear, that Dr D had provided therapy on the basis that he “could not guarantee to provide ‘intensive family therapy’” nor did he “offer the reunification therapy, as apparently offered by Dr [I].”
The father has not established that these statements made by Dr D were outside his area of expertise. Given Dr D’s qualification, experience and the time he had spent with the family, the primary judge did not err in accepting that Dr D could form the view that it would be extremely traumatic to force the children to spend time with their father against their will.
In relation to the final part of ground 7, in the father’s case outline document (at AB 1070), the father asserts that Dr D’s report cannot be relied upon because, inter alia, he took a dual role as a therapist, while purporting to provide an independent opinion. The father submitted that this was against medical ethics and it was “best standards” for a treating practitioner to not give evidence about treatment.
It is a novel proposition that a treating professional is necessarily prohibited from giving evidence in a parenting case. There may be cases where giving evidence will not be allowed on the basis that the therapy was explicitly non-reportable or where the giving of evidence might jeopardise a continuing therapeutic relationship. In this case, the order for the family to attend Dr D did not provide that his therapy was to be confidential and there was no ongoing therapeutic relationship.
Ground 8 is in the following terms:
Her Honour failed to recognise Dr [D]'s logical fallacy of appeal to authority and appeal to ignorance at the same time in forming his opinion. Dr [D]'s assertion that he doesn't know about any treatment in psychiatry that is 95% effective, therefore it can't exist, is appeal to ignorance (argumentum ad ignorantiam). Dr [D] gave no evidence or rationale for his assertion that reunification was going to be too traumatic for girls other than his opinion (argumentum ad verecundiam). Independent evidence of the family assessor was that the children's behaviour was fake, therefore the onus of proof was on Dr [D] to show that the children's refusal for contact was not fake and too traumatic to overcome. (Onus probandi incumbit ei qui dicit, non ei qui negat).
Ground 8 appears to arise out of evidence Dr D gave when being cross-examined by the father about the intensive reunification program carried out over four days. Dr D rejected the father’s suggestion that this program was 95 per cent effective in treating alienation and would lead to “a lifetime of happiness for the children”. Dr D described this as an extraordinary claim to make which was not supported by scientific data. Dr D also opined that there was not a single intervention in psychiatry that has a 95 per cent success rate.
Regarding the first aspect of Ground 8, during submissions before us, the father argued that because Dr D said that he did not know anything that was 95 per cent effective in psychiatry he was “appealing to ignorance as support for his logic” and, therefore, the primary judge erred in accepting his opinion. The father conceded that no additional evidence was put to Dr D or to the primary judge which challenged the opinion of Dr D or established that there was psychiatric therapy which had a 95 per cent success rate. During submissions, the father did not refer to any specific logical fallacy in Dr D’s answer to these questions.
In relation to the second aspect of Ground 8, as already discussed, it was open for the primary judge to accept Dr D’s opinion that it would be too traumatic for the children to spend time with their father.
Regarding the third aspect of Ground 8, the father, in submissions before us, did not take the court to any evidence, other than his own, in support of the argument that the children’s behaviour had been assessed to be “fake”. Whilst the father did put to the primary judge that the children presented with “fake symptoms” this was in the context of his allegation that the mother had alienated him from the children.
Ground 15 is in the following terms:
Her Honour erred by preventing me from adequately cross examining the expert witnesses about relevant issues or even ethical issues that they had breached.
The father complains he was denied procedural fairness in not being able to ask Dr G about any ethical difficulty in a treating therapist (Dr D) giving opinion evidence. The primary judge rejected two questions on the basis they were not relevant. It was open for the primary judge to conclude that the answers by Dr G to questions about ethical standing were not relevant to the admissibility to Dr D’s evidence.
Ground 27 is in the following terms:
Her Honour erred in failing to recognise that Dr [D]'s opinion is biased in that he denied well established scientific facts that alienation is abuse, and that when confronted by verbal and non verbal communication that more weight should be given to non verbal communication.
Whilst the father did not take us to where Dr D denied “alienation is abuse”, it seems that the father’s complaint is based on the evidence Dr D gave during cross examination (Transcript, page 416, line 6):
[THE FATHER]: … Isn’t alienation a form of abuse?
[DR D]: Alienation, as I said to her Honour, is a phenomenon. How it comes about is a complex matter which involves – often involves each parent and the child or children. And I was very careful to describe it as a phenomenon rather than a form of abuse. Richard Gardiner, when he first described parental alienation syndrome – and there has been a lot of criticism of that – described it as a form of abuse. I think the conflict that can occur between parents post-separation that lead to difficulties in agreeing on the best arrangements for the children creates very significant difficulties for children, and I often conclude my report about – in the Family Court or Federal Circuit Court with a comment about that. I think the phenomenon of alienation is too complex to simply label it as abuse.
The father did not lead any evidence at trial to contradict this evidence by Dr D nor to prove “well established scientific facts that alienation is abuse”.
In relation to the weight to be placed on verbal and nonverbal communications, the following exchange took place when the father was cross examining Dr D (Transcript, page 425, line 19):
[THE FATHER]: I can’t recall, but there are some studies that show – are you aware of any studies that show that non-verbal communication is a stronger predictor of truth than the verbal communication?‑‑‑
[DR D]: Non-verbal communication is an important communication; I don’t dispute that for a moment. I – my practice relies so heavily on verbal communication that I can’t dismiss that either, and that’s true with children as well as with adults, I might add.
[THE FATHER]: Yes. It’s estimated that it’s 93 per cent non-verbal?‑‑‑
[DR D]: You’ve once again quoted a figure which is completely – it cannot be true. That means that everything we say, all but seven per cent is nonsense and that 93 per cent of the non-verbal is what’s relevant. That cannot be correct.
[THE FATHER]: That’s why we use emojis. I mean ‑ ‑ ‑?‑‑‑
[DR D]: Beg your pardon?
[THE FATHER]: That’s why we use emojis?‑‑‑
[DR D]: Come on. Emojis have only been around for the last few years.
In oral submissions before us, the father again accepted that he had not led any evidence about the weight to be given to non-verbal communications. It is not open to the father to argue that the primary judge erred in failing to recognise that Dr D’s opinion was based on a denial of “well-established scientific facts”, when those alleged well established scientific facts were not in evidence.
The father has failed to establish any error by the primary judge when considering Dr D’s evidence. Grounds 4, 5, 7, 8, 15 and 27 fail.
Disqualification (Ground 6)
Ground 6 is in the following terms:
Her Honour erred in continuing to preside over the case after being told that severe alienation cases have a jurogenic component and that she may have played a role in causing the alienation by delaying treatment.
In the father’s case outline (AB 858), the father says:
According to Janet Johnson’s theory of the alienated child, there are iatrogenic and jurogenic contributions to the alienation. In cases of severe alienation such as this, it has been described as “the perfect storm” where aligned assessors, and medical and legal practitioners are a necessary component in causing alienation, in that without the aligned medical and legal practitioners, severe alienation does not occur. I would like a detailed explanation of how I am going to get a fair trial if the court has to judge on their own workers’ misdiagnosis / mismanagement of the case.
That assertion by the father in his case outline, however, does not extend to the gravamen of this ground, namely, that the primary judge should have recused herself on her Honour’s own motion because she had played a role in causing the alienation of the children from him.
Apart from the reference in the case outline document, the father conceded that no application or suggestion was made to the primary judge that her Honour should recuse herself on the basis asserted.
The grounds upon which a primary judge might be disqualified are well-known.
The plurality in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) said:
a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
The fair-minded lay observer is one attributed with knowledge of all the circumstances of the case (Livesey v New South Wales Bar Association (1983) 151 CLR 288) and the High Court in Johnson v Johnson (2000) 201 CLR 488 said:
the test is objective … the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
The plurality in Ebner also emphasised that:
·Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked;
·Judges do not choose their cases and litigants do not choose their judges;
·There needs to be substantial grounds for contending that a judge be disqualified; and
·It would be intolerable if insubstantial objection allowed a litigant to influence the composition of the bench.
The father has not established it could be reasonably apprehended that the primary judge “played a role in causing the alienation” or that the primary judge deviated from a neutral evaluation of the merits of the case.
Ground 6 fails.
Alleged abuse and family violence by the mother (Ground 9)
Ground 9 is in the following terms:
Her Honour erred in failing to recognise severe emotional abuse and domestic violence by the mother.
Given that, it was unclear what material consideration the father asserts the primary judge failed to recognise, the father was given an opportunity during oral submissions before us to indicate the emotional abuse and family violence to which he referred.
The father submitted that there were “too many incidents for me to be able to dig up” but gave the following examples:
The children don’t hit someone that they are afraid of and for the so called experts not to comment about that. When a child tries to put a stick up their father’s backside, when your daughter kicks you in the testicles and numerous other times where they almost poked you out with a stick is I think quite inappropriate.
The father was asked how these alleged behaviours of the children towards him fell within a description of “severe emotional abuse and domestic violence by the mother”. He argued that this was domestic violence “by proxy” and that “the violence is not just towards me through the kids, it is also towards the children”. The father then referred to an allegation that the mother withheld affection from the children and provided them with conditional love as a form of punishment for being disloyal to her by showing the father love or affection. He asserted that he had raised these incidents on numerous occasions with the experts, but the father complained that the experts failed to incorporate commentary on these alleged behaviours in their report.
The father conceded that he did not refer to these alleged behaviours by the mother during final submissions before the primary judge nor raise these with any of the experts during the hearing saying that “I did not know I had to”.
Ground 9 fails.
Alleged doctoring of the Z Service reports (Ground 10)
Ground 10 is in the following terms:
Her Honour erred in failing to recognise ex parte communication between the respondent's legal counsel and the child supervision agency and doctoring of their reports.
In oral submissions, the father clarified that by “child supervision agency” he meant the Z Service engaged to supervise his time with the children after the interim orders were made on 14 September 2016. The father conceded that there is no reference in the father’s final submissions before the primary judge to doctored reports or ex parte communication between the mother’s lawyers and the agency.
During his oral submissions the father asserted that it should have been “obvious” that there had been ex parte communications and the reports had been doctored.
No evidence exists to establish the facts asserted in this ground.
Ground 10 fails.
The elder child’s hair-pulling (Ground 12)
Ground 12 is in the following terms:
Her Honour erred in failing to accept expert evidence that trichotillomania is hair pulling and is due to emotional distress. And that [the elder child] was only pulling her hair at her mother's house and not at school or in the father's company, and hence it was the mother causing her distress and not the father.
In a fulsome discussion between [268] and [279] of the Reasons, the primary judge dealt with issues relevant to the elder child’s hair pulling and trichotillomania (“TTM”), the mother’s evidence, and letters from Dr V, School W and Ms P. To put the issues about the elder child’s hair loss in context, the primary judge records at [268] that the mother’s unchallenged evidence is that the elder child’s hair has now regrown and the elder child is now not suffering from hair loss.
The primary judge concluded at [277] and [279] of her Honour’s Reasons:
277.I accept what [the mother] has said about [the elder child’s] hair loss and I find it was likely due to [the elder child] creating a tight ponytail on her head and playing or twisting her hair.
…
279.I consider that the father’s continued assertion that [the elder child] has engaged in “hair pulling” due to stress provides another example of his tendency to become fixated in his ideas and unwilling to accept alternative views, even when those view are not only proffered by the mother – who at that stage had primary care for [the elder child], but also by an independent expert, who in this instance, the father has not alleged is colluding with the mother.
Dr V gave evidence that the elder child’s hair loss was almost certainly due to tying her hair tightly, but there is an element of TTM as well. Dr G said that if hair loss was due to how the child was tying up her hair then it would not be TTM. The mother agreed that some of the hair loss might have been caused by hair pulling, but not because the child was anxious.
The father asserted that the elder child’s historical hair loss was entirely due to the elder child having TTM, a condition where she compulsively pulled her hair as a result of being anxious. The primary judge was entitled, on the evidence, to reach a different conclusion.
Ground 12 fails.
Alleged sexual abuse of the mother (Grounds 13 and 18)
Grounds 13 and 18 are dealt with together and are in the following terms:
13.Her Honour erred in failing to recognise that the respondent has mislead the court assessors about her past psychiatric history and past sexual abuse and hence all assessments are therefore invalid.
18.Her Honour erred in failing to recognise Dr [G’s] inconsistent evidence that he was unable to read mother's past psychiatrist notes and then went on to state that the mother had been sexually abused.
The primary judge at [180] of her Honour’s Reasons states:
The father repeatedly mentioned that the mother exhibits traits of a borderline personality disorder, that she had been sexually abused and that her father had served time in jail. He gave every impression that he believes these statements to be accurate because he proffered them in the context of submitting generally that the mother’s capacity to care for the children is impaired. However, the father offered no evidence in support of the accusations and did not cross-examine the mother on any of those topics. The father did put to the mother that she had taken anti-depressant medication to lose weight and increase her libido but the mother denied being so motivated. I accept that denial.
The father is technically correct to point out that the primary judge erred in finding (at [180]) that the father did not cross examine the mother about sexual abuse. On the second day of the trial, the mother gave the following answers in cross-examination to the father’s questions (Transcript, page 148, line 31):
[THE FATHER]: Dr [G]’s report is noticeably lacking in past psychiatric history, in relationship history, occupational history and your difficult relationship with your mother. Why did you not talk to Dr [G] about those things as well as the sexual abuse that you encountered?
[THE MOTHER]: I did not encounter any sexual abuse, and I ‑ ‑ ‑
[THE FATHER]: Assault, I meant, sorry?
[THE MOTHER]: Nor assault. And why did I not discuss my relationship about my mother whether – I’m not acknowledging it as difficult as proposed, is because we only had, I think, two hours in total.
The father then asserts that the primary judge also erred in interjecting during an answer being given by Dr G, when he was responding to her Honour’s questions about the mental status of each of the parents. Dr G had opined that the father required psychotherapy. Dr G then opined the mother does not have a serious mental health issue, including not having a borderline personality disorder as asserted by the father. In the context of not making any adverse diagnosis of the mother’s mental status, Dr G said on the fourth day of the trial (Transcript, page 336, line 12):
[DR G] And – but I – all I can say, your Honour, is that I didn’t make that diagnosis and I’ve not read anything which is consistent with it and I’ve made my comments already to the court in regard to Dr [X]’s report. So there is a history, I think, of some sexual abuse, I think, but her description to me ‑ ‑ ‑
[HER HONOUR] Well, that’s interesting, [Dr G], because not one question was put to the mother in cross-examination by the father?‑‑‑About ‑ ‑ ‑
Any sexual abuse, any trauma in that respect. There might be some disagreement, but I will ‑ ‑ ‑?‑‑‑Okay.
(Emphasis added)
It is unclear why Dr G made reference to “sexual abuse” in the context of Dr X’s report. The mother had filed an affidavit from Dr X on 20 June 2017. Dr X is a psychiatrist who had provided psychotherapy to the mother from 2001 – 2002, for issues “including her relationship, and training/work.” He was not required for cross examination, but gave written evidence that in July 2015, the father had attempted to obtain the mother’s clinical notes by representing that he was the mother’s treating psychiatrist. Ultimately, the primary judge allowed Dr G to read Dr X’s report and notes. Dr G gave oral evidence that Dr X’s “report itself was very brief. It just stated that he was seeing her for psychotherapy and that he didn’t think that she was depressed.” He said that the notes hadn’t assisted him in any way.
The father submitted that the primary judge’s interjection was part of a “systematic attempt” to ignore all the negative things of the mother and exaggerating any slight inconsistencies in the father’s case saying, “Sexual abuse is quite significant. It cannot be just opined away”.
There is no basis to conclude that the primary judge interjected as part of a systematic attempt to assist the mother.
Dr G did not state the mother had been sexually abused as asserted by the father in Ground 18. It appears on its face that, when the primary judge interjected, Dr G was about to relate that the mother had described to him something other than sexual abuse. The father also asserted that the interjection also possibly prevented evidence from being provided that might have impugned the mother’s creditability. That submission is entirely speculative.
The primary judge accepted the mother’s evidence generally. The mother’s sworn evidence was that she had not been sexually assaulted or abused. The error that the primary judge made about there not being any cross-examination about sexual abuse (one question, which was withdrawn by the father, two days earlier) was not material.
Grounds 13 and 18 fail.
Consanguinity (Ground 14)
Ground 14 is in the following terms:
Her Honour erred by acting against the best interest of the children by forcing them to live with the abusive parent, exacerbating alienation by ordering no contact orders, ordering change of name and markedly increasing the risk of consanguinity which she declared as one of the main issues in this case.
The father did not explain how the orders the primary judge made were unreasonable or plainly unjust. After diligently discussing matters relevant to all the statutory considerations, the primary judge made findings which were reasonably open to her Honour and made orders consistent with those findings.
The primary judge discussed in the Reasons the father’s history as a sperm donor. She records that this activity was the single most contentious issue for the parents during their relationship. The primary judge concludes at [46]:
The father refused to identify the number of children that he has conceived through sperm donation, initially saying 10-15, then possibly 20, then possibly 25. He said in answer to the mother’s concern about donor children being interested in half-siblings, that “There’s a number of half siblings that they can contact. There’s enough of them.”
In oral submissions before us, the father elaborated on his assertion that the orders made by the primary judge had markedly increased the risk of consanguinity. The father confirmed that by using the word “consanguinity” he was arguing that the primary judge failed to take into account the risk to his two daughters, if either formed a close personal relationship later in life with another person who was born as a result of the use of his genetic material, and the children did not have him in their lives to warn them about the risks of a relationship with such a person. The father did not make this submission to the primary judge. The father also submitted that changing the names of the children increased the risk of consanguinity. Again, this was not a submission that the father made to the primary judge and there was no evidence as how maintaining the father’s name would avoid the alleged risk.
Ground 14 fails.
Alleged manipulation of the judicial docket (Ground 16)
Ground 16 is in the following terms:
Her Honour erred by taking my case from another judge's judicial docket with no cause or reason.
There was no evidence as to there being anything out of the ordinary in the way the primary judge was assigned to hear this case. The father agreed that he made no reference to this alleged error at trial.
There is no merit in ground 16.
Failure to admit video footage (Ground 17)
Ground 17 is in the following terms:
Her Honour erred by excluding large amounts of evidence provided.
In oral submissions, the father indicated that this ground was limited to the failure by the primary judge to admit into evidence video footage that he proffered during his cross-examination of Dr D. The relevant part of the transcript follows a question about an interaction between the elder child and her father during a supervised contact event. The father put a hypothesis to Dr D as to why the elder child behaved in a certain way. Dr D said he could not comment because he had no way of knowing. The following exchange then occurred (Transcript, page 426, line 21):
HER HONOUR: Why couldn’t it be that she’s a nice little girl who doesn’t want to hurt your feelings more than she has to?
[THE FATHER]: Could be that, your Honour.
[DR D]: She’s actually a sweet child, your Honour.
[THE FATHER]: She’s very cute. I would love to show you some videos.
HER HONOUR: I’ve seen some videos. I’ve seen – I’ve looked at the photos.
It was not an error by the primary judge to decline the father’s invitation to view videos of the elder child for the purpose of establishing that she was “very cute” when it was common ground that she was.
Ground 17 fails.
Alleged inculcation of the children by the mother (Ground 20)
Ground 20 is in the following terms:
Her Honour erred in failing to recognise mother's abuse of the children by inculcating them to hate the father by telling them that he was going to "cut [the elder child]", that "fucking dad abandoning us”.
During oral submissions, the father was asked to specify the factual basis for the assertions in this ground. He referred to the notes of supervised time by the Contact Service at AB 635 and 645. The father’s reference to AB 635 was incorrect; the relevant note is to be found at AB 640.
In her oral evidence the mother denied the father’s suggestion that she had told [the younger child] that the father was going to cut [the elder child] on the arm with a knife. During his own evidence, the father maintained that the younger child “came running down and screaming, don’t cut [the elder child]”.
In his report of 6 February 2016 the supervisor, Mr Y, records the following: (AB 640):
The family worker observed [the father] to be outside in the front yard as both [children] walked down the driveway [the father] was observed to call out to the [children], hi [children] both [children] replied hi daddy. [The younger child] said to [the father] daddy why do you want to cut [the elder child] out [the father] replied what do you mean cut [the elder child] out, [the younger child] replied I don’t know.
(Emphasis added)
The expression, “cut [the elder child] out” has a different meaning to “cut [the elder child]”. The father’s cross-examination and evidence about this, was misconceived, as is this part of Ground 20.
In relation to the assertion that the mother had inculcated the children into thinking about “fucking dad abandoning us”, the father referred to another part of the Z Service report for an event on 13 February 2016 in which the following is recorded (at AB 645):
[The younger child] was observed to say to [the father], I was making videos of daddy abandoning us on mummies [sic] mobile phone the family worker observed [the younger child] to say the F word to [the father], [the elder child] said to [the father] you don’t say that word.
The father cross-examined the mother about the note of this observation (Transcript, page 314, line 6) in the following terms:
[THE FATHER]: [The younger child] said, “We [the question misquotes [Mr Y’s] report which records the younger child using the word “I” not “we”] made a movie –” which she means video recording – “of us saying, ‘Effing Daddy abandoned us’?‑‑‑
[THE MOTHER]: I never made such a movie, your Honour. [The younger child] would not know the word “abandoning”, and she ‑ ‑ ‑
[THE FATHER]: And yet she said it?‑‑‑
[THE MOTHER]: And there is a – I think it was [Mr Y], one of the supervisors, that write something along these – these lines in one of his report. I can’t recall. No. I never made any movies. No. I never heard [the younger child] saying such things, and, no, [the younger child] wouldn’t know this word, not – probably not even now.
HER HONOUR: “Abandoned”?‑‑‑
[THE MOTHER] “Abandon”. I don’t think she would understand that.
[THE FATHER]: Of course, she repeats what she hears.
HER HONOUR: So I think the question could possibly be could she have repeated the word “abandoned” without understanding it?
…
Did you use the word “abandoned” in this context?‑‑‑
[THE MOTHER]: No. I haven’t, your Honour, and, in fact ‑ ‑ ‑
[HER HONOUR]: Okay. Next question.
[THE MOTHER]: It’s the opposite. I – I – yes.
[THE FATHER]: Can you think of any scenarios where [the younger child] may have heard the word, “Effing Daddy abandoned us,” other than in your house?‑‑‑
[THE MOTHER]: No, your Honour. I don’t know.
The father submits in this appeal that the primary judge should have found that the younger child, who had just turned four years of age, was accurately reporting that she was making videos of “daddy abandoning us” on her mother’s mobile phone, in preference to the mother’s sworn evidence that no such movie was made and that she had not inculcated the children in the manner suggested by the father. At the hearing, the father did not refer to this issue in final submissions nor did the primary judge make any reference to the younger child “making a video” in her Honour’s Reasons. It is not an error for the primary judge to have failed to have found that the mother had encouraged the younger child to make a video of the father abandoning the family and it follows that it is not an error for the primary judge to have failed to recognise the mother’s abuse of the younger child in that way.
Ground 20 fails.
The younger child’s diagnosis of Autistic Spectrum Disorder (Grounds 22 and 23)
Ground 22 is in the following terms:
Her Honour erred in accepting a diagnosis of Autistic Spectrum Disorder in the youngest child from rating scales done by two professionals unqualified to make that diagnosis when there were several doctors that had not made and/or excluded that diagnosis.
This ground challenges the primary judge’s acceptance of the opinion expressed by Ms E that the younger child had Autistic Spectrum Disorder (ASD). Ms E had made a similar diagnosis of the elder child which, despite the father not being convinced about this diagnosis, is not the subject of this ground.
Ms E is a clinical psychologist. Initially Dr L, the elder child’s psychiatrist, asked Ms E to provide an opinion as to whether the elder child suffered from ASD. Subsequently, Ms E was asked to undertake an assessment of the younger child by the child’s speech therapist.
The primary judge extensively discusses Ms E’s diagnosis of both children having ASD and the father’s “non acceptance of ASD diagnosis” at [243] – [246] and [253] – [267]. The father was invited to identify where in these paragraphs the primary judge had erred. The father referred to [257]. The primary judge commences [257] as follows:
The father asked Ms [E] several questions about how she differentiated between a child with ASD and one who was anxious or had obsessive compulsive disorder. I set out the exchange, almost in full, because of the evidence the father later gave which demonstrated that he continued to doubt Ms [E]’s ability to differentiate between those disorders.
The primary judge then sets out a lengthy exchange that occurred during the father’s cross-examination of Ms E (AB 99 – 102) and concludes at [258]:
In describing the children’s characteristics that supported Ms [E]’s diagnosis of ASD, the father interrupted Ms [E] and said; “you were almost describing me to a T.” It was an astute observation – a self-assessment. There are similarities in the description of [the elder child] provided by Ms [E] and the father’s presentation in court, namely his exaggerated gestures, verbosity and tendency to give unresponsive answers and go off on tangents when asked a simple question.
At [264] of the Reasons, the primary judge accepts Ms E’s assessments are correct.
The father submitted that the primary judge erred in accepting Ms E’s diagnosis. Notwithstanding the father’s earlier criticisms of Dr D’s evidence, the father relies upon the following statement by Dr D:
While I have not conducted a formal ASD assessment of [the younger child], her presentation during my sessions with her were not consistent with this diagnosis…
The father submitted before us that, “Dr [D] is more qualified and spent more time with the child on a more longitudinal basis”.
It was open to the primary judge, on the evidence that was available to her Honour and for the reasons which she comprehensively expresses, to accept Ms E’s diagnosis of the younger child. Consequently, no error has been demonstrated.
Ground 23 is in the following terms:
Her Honour erred in failing to recognise the traumatic impact on the self esteem of a normal child inappropriately labelled as suffering from a serious illness and being given inappropriate treatment to that effect.
The father accepted that there was no reference at any point during the trial to a traumatic impact on the self-esteem of either of the children as a result of being diagnosed with ASD. He asserted that it would have been “common sense” for the primary judge to recognise this traumatic impact. There is no error in the primary judge failing to do so, particularly, in circumstances where the primary judge accepted the ASD diagnosis.
Grounds 22 and 23 fail.
Parentification and separation anxiety (Ground 25)
Ground 25 is in the following terms:
Her Honour erred by failing to incorporate parentification and separation anxiety into her formulation which were accepted by both parents …, and described by Dr [D] and Dr [H].
The father accepted during oral submissions that neither Dr D nor Dr H incorporated parentification or separation anxiety into any opinion expressed by them. The only reference to parentification during the trial was in the context of the older child taking care of the younger child whilst in their father’s care.
Consequently, Ground 25 must fail.
Abused children wanting a relationship with an abusive parent (Ground 26a)
Ground 26a is in the following terms:
Her Honour erred by not accepting that even abused children want to have a relationship with the abusive parent. On the first day of trial Her Honour was given the reference to the paper The Alienated Child by Janet Johnson whose formulation of alienation was accepted by the taskforce into parental alienation conducted by chief justice Dianna Bryant.
At the commencement of the hearing, the father said to the primary judge “I can provide a copy of Janet Johnson’s original paper.” The father did not subsequently seek to tender it. The father accepted in oral submissions that he had not put anything written by Janet Johnson to any of the expert witnesses.
Consequently, the proposition that “Even abused children want to have a relationship with the abusive parents” (something which the father asserted Janet Johnson had written) was not an expert opinion that was before the primary judge.
Further, the primary judge’s responsibility was to make parenting orders that were appropriate and in the children’s best interests, not ones that the children “want” which are not in their best interests.
Ground 26a fails.
Conclusion
Given that the father has not been successful in establishing any ground set out in his Notice of Appeal, his appeal shall be dismissed.
Costs
The mother made an application that the father pay her costs on an indemnity basis (in the sum of $34,665.65), or alternatively, on a party/party basis at scale (in the sum of $19,941.22), as set out in the mother’s Itemised Schedule of Costs.
The father has been wholly unsuccessful.
The mother indicated that her income is approximately $112,000 per annum. Her assets are a car worth $20,000 and savings of $70,000.
The father indicated that his income is approximately $180,000 per annum and that he had the capacity to pay any cost order in the range identified by the mother.
It was appropriate for the mother to seek the order in her Application in an Appeal given the father’s serious noncompliance of the relevant Family Law Rules and with orders made for the purposes of readying the appeal for hearing. The order in relation to the provision of a Summary of Argument was provided to the father in April 2018. The mother took the sensible course at the commencement of the appeal to deal with the merits of the father’s appeal on the basis which we suggested. It is just that the mother have a cost order in respect to that Application in an Appeal on an indemnity basis. The father should pay the remaining costs of the mother on a party/party basis.
In order to minimise future court events, we intend to assess costs on an overall basis in the sum of $25,000 and a cost order shall be made in the mother’s favour in that amount.
ALDRIDGE J
I have read the reasons of Alstergren DCJ and Watts J. I agree with the orders proposed by their Honours and, generally speaking, with their Honours’ reasons.
I certify that the preceding one hundred and seventy-three (173) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Alstergren DCJ, Aldridge and Watts JJ) delivered on 15 October 2018.
Associate:
Date: 15 October 2018
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