F & B

[2005] FamCA 265

[2005] FamCA 265

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT MELBOURNE  Appeal No. SA49 of 2004

File No. LNM2912 of 2002

BETWEEN:

F

(Appellant Husband)

and

B

(Respondent Wife)

CHILD REPRESENTATIVE

CORAM:  THE HONOURABLE JUSTICE KAY

DATE OF HEARING:         31 March 2005

DATE OF JUDGMENT:      13 April 2005

REASONS FOR JUDGMENT

APPEARANCES:

The appellant husband in person.

Mr Fitzgerald of Counsel, instructed by Temple-Smith Barclay, Solicitors, PO Box 796, Devonport, Tas 7310 appeared on behalf of the respondent wife.

Mr Walker, Solicitor, Verney Walker & Co, Solicitors, PO Box 1005, Devonport, Tas 7310, appeared as child representative.

F & B
SA49 of 2004
CORAM:  Kay J
DATE OF HEARING:         31 March 2005
DATE OF JUDGMENT:     13 April 2005

CatchwordsCHILDREN – fathers appeal against residence and contact orders – change of residence for 4 year old twins after 3 years of living with father - whether the Federal Magistrate exhibited bias and pre-judgment – whether the Magistrate failed to give appropriate weight to the status quo, namely that the father had apparently successfully raised the children over the three years since separation - whether the Magistrate failed to give weight to the psychiatric evidence that there was no risk to the children in their father’s care if they had regular contact with their mother – whether the result was plainly unjust – appeal dismissed – no evidence the Magistrate was biased – Magistrate gave consideration to relevant s 68F(2) factors – Magistrate gave weight to the psychiatric evidence and it was open to him to reach the conclusion that the welfare of the children would better be promoted in the mother’s household – no order as to costs.

1. This is the husband’s appeal against orders made by Federal Magistrate Roberts in Launceston on 28 July 2004.

1. Those orders provided that the parties’ twin boys W and X, both born November 2000 reside with their mother and that their father have contact with them effectively every second weekend and half the school holidays.  These orders had the effect of reversing a long standing situation whereby the children had been raised by their father.  The husband seeks to revert back to that situation.

1. I heard this appeal sitting as a single judge of the Family Court pursuant to arrangements made under s 94AAA(3) of the Family Law Act 1975.

1. The preparation and presentation of the appeal has been complicated by the appellant acting for himself. 

1. The original Notice of Appeal was filed on 25 August 2004.  It recited three grounds, namely:

“1.       The Trial Judge placed too much weight on erroneous facts.

2.        The Trial Judge did not attach enough weight to significant facts.

3.        Denial of procedural fairness and natural justice issues.”

1. I made some directions on 4 November 2004 which enabled the appellant to file and serve an amended Notice of Appeal on or before 30 November 2004.  Those directions required the appellant to obtain the relevant transcript of evidence by 30 November 2004. 

1. Subsequently the appellant filed an amended Notice of Appeal in accordance with my directions but also made application to be relieved of the obligation to provide a copy of the transcript.

1. The amended Notice of Appeal contained 31 paragraphs, many of which raised issues which required an examination of the evidence that was before the Magistrate or of the transcript to discover whether there was any substance in the assertions that the appellant had not been allowed procedural fairness.

1. On 27 January 2005 I made further directions requiring the appellant to advise the Court in writing by 25 February 2004 of the grounds he sought to argue given that he was not intending to provide any transcript of the hearing at first instance.  That led to the appellant filing a document headed “Re:  Grounds I intend to argue – Appeal File No SA49 of 2004”.  That document did not clarify the issues that I suspect that the appellant wished to ventilate before me.  Indeed, if anything, it added further confusion to the matters.

1. In Neil v Nott (1994) 121 ALR 148; (1994) 68 ALJR 509 the High Court said:

“…a frequent consequence of self representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy…”

1. In order to sort out the wheat from the chaff in this appeal it is necessary for me to outline some further procedural background before endeavouring to identify what was truly in issue before me.

1. In so doing it is convenient to remind the reader of this judgment that this was an appeal from a discretionary judgment and that in order to succeed it is necessary for the appellant to demonstrate an error of principle, a material error of fact or a result which is plainly unjust.  See House v the King (1936) 55 CLR 499; and Gronow v Gronow (1979) 144 CLR 513. I shall return to these requirements later in this judgment.

Background

1. The parties married in July 2000.  They separated in July 2001.  Each of the parties has a child from another relationship.  The wife has a son Y born October 1997 who resides with her.  The husband has a son Z who is seven years of age and resides with his mother in Queensland. 

1. After separation the twins remained with their father.  Orders were made by consent in the Family Court of Australia on 11 October 2001 providing that the children would reside with their father and the mother would have contact with them each weekend from Saturday 9.00am until Sunday 6.00pm.  The orders also provided:

“That each parent contribute half of transport for contact ie each contact, one picks up and the other drops off, or arrange in advance if either parent has difficulty and reimburse for traveling expenses.”

1. Neither party was represented by a lawyer at the time the consent orders were made.

1. Difficulties arose concerning the implementation of the consent orders and on 3 December 2002 the wife filed an application in the Federal Magistrates Court of Australia in Launceston seeking an order that the twins reside with her and that the father have contact with the children each second weekend.

1. The father filed a response seeking detailed orders that would see the twins remain living with him and the mother having contact alternate weekends, she to be responsible for all transport, and that if she was to default in respect of contact she was to forfeit the whole contact and be immediately liable to pay, in lieu of the forfeit contact, the sum of $300 (to cover lost income) to him upon failure to comply without written agreement or a substantial excuse.

1. That application also sought what some may see as some unusual procedural orders such as:

“4.That the labels HUSBAND/FATHER and WIFE/MOTHER, or any similar, not be used in these proceedings due to the fact they are sex based, gender role stereotype labels and as such incite unconscious, indoctrinated sex discrimination against men and for women in family matters.

5.That the Court forward to the Office of the Attorney General a recommendation such that:

(a)Research be undertaken to discover any and all social, sex based, stereotyping indoctrinate existing causing the incitement of sex discrimination against men.

(b)A plan be designed to educate the population of Australia, so creating an awareness of such stereotypes and begin practical de-construction.

(c)A new Act of Law be constructed to define and protect the ‘Equal Rights and Opportunity for Men in the Home/Family’.  To be based on the precedent set by the ‘Equal Opportunity for women in the Workplace Act 1999’ and such that the Law is expanded towards true equality, rectify the current inequity and comply with the International Conventions and Australian Law regarding equality between the sexes.”

1. On 15 January 2003 the husband also filed an application that sought orders:

1.    That the respondent be held accountable for multiple contraventions of the orders sealed by the Family Law Court of Australia in Hobart on 11 October 2001;

2.    That the respondent be held accountable for the flagrant contempt of court displayed;

3.    That the respondent be held accountable for the failure to fulfil her parental responsibilities and pay the applicant compensation for expenses incurred and damages suffered.

1. On 15 January 2003 the husband also filed an application that sought orders that the wife pay child maintenance “in a sum and to a schedule the Honourable Court deems fit to [adequately] provide for the needs of the twins” and that the wife pay spousal maintenance “in a sum and to a schedule the Honourable Court deems fit to adequately provide for the caring parent of twins”.

1. The application and the response were returnable on 23 January 2003.  On that date Roberts FM made orders requesting the appointment of a separate representative for the children, some interim contact orders in favour of the mother each week from Saturday morning until Monday afternoon, and then adjourned the matter for further mention on 7 April 2003. 

1. On 20 February 2003 the wife filed an application asserting that the husband had contravened the orders in that he had failed to provide the mother contact on 25 January 2003.

1. On 7 April 2003 consent orders were made enabling the child representative to request the psychiatrist to assess the parties and provide a report to the Court. 

1. On 28 November 2003 the husband filed an application seeking orders that the child representative pay the husband $100,000 and that the psychiatrist pay the husband the sum of $1 million.  He further sought orders that the child representative and the psychiatrist be included in the proceedings and that the child representative be dismissed as child representative in the proceedings.

1. On the same day he also filed an amended Response which purported to seek orders relating to residence and contact, spousal maintenance, child maintenance, and included a claim for damages against the wife “as compensation for the multiple contraventions of orders causing financial hardship, defamation, libel and slander”.

1. On 1 December 2003 Roberts FM made orders adjourning the matter for hearing in the sittings commencing 9 February 2004 (noting a time estimate of two days).  He directed that the parties and the child representative make file and serve all affidavit material upon which they intend to rely by 27 January 2004.

1. The husband filed yet a further amended Response on 28 January 2004 and a document headed “Urgent Application”.

1. Amongst the matters canvassed by the “Urgent Application” were assertions that the mother had failed to comply with earlier orders.  It sought an order:

“1.THAT the time allocated for the Final Hearing of the proceedings LNM2912/02 be used for an Interim Hearing to deal with the following Procedural Orders, Interim Orders and Applications.

2.THAT B be held to account for the attached list of Contravention of Orders, named ‘APPLICATION CONTRAVENTION: 25/12/2003’ ‘LNM2912/02’ during this Interim Hearing.

…

4.THAT the respondent [the child representative] be dismissed as Child Representative in proceedings LNM2912/02.

…

6.That the two applications made by [the husband] and filed on 15^th of January 2003 be withdrawn.”

It also sought the dismissal of the wife’s applications filed 3 December 2002 and 20 February 2003.

1. It also sought further orders which included an order:

“THAT B undergo counselling to the ends that:

a.It be discovered why B was unable to Comply with Court Orders, keep agreements and fulfil her responsibilities.

b.It be discovered what help is required, and the same be found to assist B to overcome these issues whether by counsellor, psychologist or psychiatrist;

c.It be discovered if some form of relationship counselling between B and F would be of long term benefit to the children.”

1. On 17 February 2004 a further interlocutory hearing took place which resulted in orders that:

1.That all Applications by [the husband] to include … [the child representative] in the proceedings between the husband and the wife be dismissed;

2.That all applications by the husband to dismiss the child representative as the child representative in the proceedings be dismissed;

3.That all applications by the husband for an order that the child representative pay him $100,000 be dismissed;

4.That the husband pay the child representative’s costs in the sum of $1735 within 90 days; and

5.That all extant applications are adjourned for mention only on 22 March 2004.

1. On 4 March 2004 the husband filed several Notices of Discontinuance, one of which sought to discontinue his claim for damages against the psychiatrist.

1. On 22 March 2004 Roberts FM made orders requiring the husband to pay the psychiatrist’s costs in the sum of $1895 and adjourned the competing residence applications for hearing on 21 June 2004 and the contravention applications for mention on 3 May 2004.  He made further directions for the filing of material by 7 July 2004.

1. The court file appears to indicate that on 3 May 2004 there was no appearance by the father although the mother and the child representative were represented at the hearing.  The outcomes sheet on the court file notes that the husband’s contraventions applications were dismissed but no court order was taken out confirming the outcome as noted on the court file. 

1. On 4 May 2004 the husband appears to have contacted the Registry by fax enquiring as to why the Court had not contacted him to arrange a phone link.  It appears there was then some further contact made between the Court and the husband by telephone on 4 May 2004 which resulted in an adjournment of some proceedings on 21 June 2004.  This may explain why the order said to have been made on 3 May 2004 was never taken out.

The Hearing

1. The remaining matters then came on for hearing, commencing 28 June 2004.  The husband represented himself, the wife was represented by Mr Maguire, and the child representative also appeared.

1. As already mentioned, I have no transcript of what occurred at the hearing before the Federal Magistrate. 

1. In the course of his reasons for judgment delivered on 28 July 2004 the Magistrate said:

“14 When this matter came on for hearing on 28^th June 2004, I indicated that, having read the papers, I was not prepared at that time to deal with either party’s contravention applications or the Father’s applications for child and spouse maintenance.  The reasons why I did that were as follows:

a)the numerous contraventions alleged by the Father (said by the Mother’s counsel to number in excess of 300) could take a very long time to resolve;

b)the parties’ competing residence applications had been on foot for nearly twenty months and it was clear to me that I should resolve that issue without further distraction;

c)prima facie, the provisions of the Child Support (Assessment) Act 1989 meant that the Father’s Application for child maintenance was misconceived; and

d)either party had filed any financial material.”

1. By the time the matters came on for hearing on 28 June 2004 it ought to have been clearly apparent that there were competing residence claims due to be determined.  Whilst the husband appears to have hoped to have first had his complaints concerning the wife’s asserted 300 breaches of earlier orders dealt with as a preliminary matter to the determination of the residence applications, it was not incumbent upon the Court to entertain the proceedings in the order that the husband thought would best serve his purposes.

1. It is also apparent from reading the judgment that notwithstanding the directions required the material to be relied upon to be filed by 7 June 2004, the wife relied upon an affidavit which she filed on 11 June 2004 and an affidavit of her sister filed 21 June 2004.  Because of the absence of any transcript I have no way of determining how the issues to the late service of the material was treated.  I have no way of determining whether or not the husband sought to complain about late service and sought a further adjournment of the matter or was ultimately in any way prejudiced by the late service. 

1. The court witness record indicates that the mother’s evidence occupied just under one hour on 28 June 2004 and her sister gave evidence for eight minutes.  The husband’s evidence then occupied the whole of the next day, plus 20 minutes on the morning of 30 June 2004.  The psychiatrist gave evidence for about an hour and a half on 30 June 2004.  The Magistrate reserved judgment, delivering written reasons and making orders on 28 July 2004.

The Judgment

1. The learned Magistrate, after providing brief biographical details, defined what he understood were the matters in contention that he was dealing with.  He concluded that it was clear that each party was seeking that he or she be the primary residence parent, with the other party having fortnightly weekend contact. 

1. After setting out the provisions of s 60B, 65E and 68F(2) of the Family Law Act 1975 the learned Magistrate made reference to the Full Court decision of B and B; Family Law Reform Act 1995 (1997) FLC 92-755 and set out the following passage:

“Section 65E is the fundamental section in relevant proceedings under Pt VII. It makes it clear that the best interests of children is the paramount consideration. The interrelationship of s 60B, 65E and 68F was the essential issue in this appeal. It is also central to the correct approach to be adopted in all cases under Pt VII where the best interests of the children is the paramount consideration.

A court which is determining issues under Pt VII starts from that essential premise and it remains the final determinant. In that process the Court is required to have regard to the provisions contained in s 68F(2) and s 60B.

Section 68F(2) makes it clear that the Court must consider the various matters set out in paras (a)-(l). In stating ‘any other fact or circumstance’ para (l) underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.”

1. He went on then to identify the material that was sought to be relied upon and those passages that he allowed into evidence.  He then made a number of findings.  He expressed the view that where there was a difference in evidence between the husband and the wife, the wife’s evidence was to be preferred.  He noted that the children had lived predominately with their father for three years and that the mother had not exercised regular contact until November 2004.  He did note however that the mother had been having consistent contact with the children for three days per week from Saturday morning until Monday evening for the seven months immediately preceding the trial.

1. The Magistrate then reviewed the circumstances that initially led to the mother and father signing consent minutes leaving the children with the father, preferring the mother’s version of events to that of the father.  He reviewed the difficulties that the parties had over contact, at least until late 2004 and set out at some length passages from correspondence passing between them.  He described as particularly bizarre claims by the father that if the mother did not appear for contact as ordered he was going to charge her a babysitting fee of $10 per hour with a late notification fee of $50 if she did not give him at least one week’s notice in advance.

1. The wife had tried to explain to the husband that she had particular difficulties in attending at contact because she did not have a driver’s licence and the only way that she could facilitate contact was to attend by bus.  She proposed to take one child at a time, but the husband was apparently not in agreement with such an arrangement occurring.  In a correspondence to the husband, the wife wrote in most conciliatory terms conceding that he was doing a wonderful job as a father but pointed out that she as the children’s mother was entitled to question health issues that arose and not be punished for questioning by having contact refused.  In contra-distinction, he continued to write to the wife asserting that her failure to avail herself of the contact orders, irrespective of the reasons, was imposing financial burdens upon him for which he was going to hold her responsible.  In one letter quoted by the Magistrate as having been written on 18 September 2002 he said:

“Your finances, relocations, lack of licence, dependence on others and your failure to be organised, in any functional manner, does not excuse your breaches or override the Orders.  It follows that no matter what your excuses, they do not make your responsibilities mine.

I have given you advanced knowledge of my intention to bill you, for my forced fulfillment of your responsibilities and of my method of calculating charges and interest.  Also, that I would continue to charge you in this matter until you consistently follow the orders.”

1. The learned Magistrate noted that the wife had consulted solicitors who wrote to the husband in October 2002 seeking reinstatement of contact in terms of the existing consent orders to which the husband responded that unless the criteria he had provided for contact to resume were met he would have no choice but to make application to the Court asserting multiple breaches of orders and contempt of court and seeking damages.  That led to the wife filing her application on 3 December 2002 seeking a residence order in her favour.  The Magistrate said of the position to that time:

“61.It is clearly the Father’s position that the Mother has been totally irresponsible for her failure to exercise consistent contact with the children between the time that the Consent Orders were made and November 2003.  However, I find that the Father was not willing to make any adjustments to assist the Mother when she found herself in a position of being unable to exercise contact resulting from her not having proper transport.  The Father then compounded this by making outrageous claims for financial compensation and then refusing to permit contact when the Mother did not comply with those outrageous claims.

62.Simply on the basis of his letters, it would not have been possible to know whether the Father seriously believed that he was entitled to the compensation that he was claiming.  However, if he did hold such a belief, it would in my view, cause some concern in relation to his mental state.”

1. The Magistrate then turned to the appointment of the psychiatrist and matters that were disclosed in the psychiatric report.  He said:

“75.In his conclusions, the psychiatrist states that the Father is clinically and demonstrably a man of superior general intelligence.  He says that the father displays enthusiastic and perfectionist traits and clearly tends to obsessionality, although he does not suffer from an obsessive-compulsive disorder.  The psychiatrist comments that in his relations with the Mother, her lawyers and the Children’s Representative, the Father displayed ‘strongly narcissistic characteristics and a very evident desire to control the behaviour of another person, which is consistent with his former partner’s description of his control of a child.’

76.In relation to the Mother, the psychiatrist commented that she is intelligent and somewhat dramatic in her presentation.  He says she has mildly histrionic traits and showed little distress in her discussion of her separation from the children and presented as somewhat casual about her relationship with them.  He said that this ‘is somewhat supported by her reported and admitted failure to exercise the level of agreed access in the past’.

77.In the terms of reference provided to the psychiatrist in the Orders of 7^th April 2003, the psychiatrist was asked to make an assessment of the parties which was to include ‘whether the father and/or the mother is suffering from any psychiatric, psychological or behavioural condition or disorder’.  In relation to that, the psychiatrist said as follows:

‘In my opinion in his relations with (the Mother), her son and with other persons associated with the case, (the Father) shows evidence of ways of perceiving and interpreting himself and other people, and of interpersonal functioning, which if consistent throughout his life would justify a diagnosis of Narcissistic Personality Disorder as described in DSMIV.

In my opinion the mother shows histrionic traits that are not on a level justifying a diagnosis of personal disorder.’

78.The psychiatrist said that in his opinion the Father and the Mother were unlikely to benefit from any counselling and did not have conditions requiring medical treatment.

79.The psychiatrist was also asked for his opinion as to the likely impact of any such condition or disorder upon the children or upon the parent’s capacities to care for the children and provide for their physical and/or emotional and/or psychological needs.  In relation to that the psychiatrist said as follows:

‘It is in my opinion more likely than not that (the Father) will, in his care of the children continue to show an intensely controlling parenting style which will probably be in marked contrast to the more relaxed, caring style of the mother.  The father’s management of the children is likely to induce over- compliance, or alternatively, rebellion in the majority of normal children.

A very marked contrast between the two caring styles of the two parents is likely to be productive of difficulties and disagreements between the parents on the management of the children as they grow older.  (The Father) will most probably feel able to justify his management of the children through his reading and uncompleted studies in child care and would be unlikely to change his view.   The mother would appear to be more conscious of how the children feel and more accepting of their behaviour.  She possibly (though this cannot be certain) shows a measure of emotional detachment.  Both parents would appear to be fully capable of providing for the physical and material needs of the children.  Both parents have access to very limited support to their families or origin.’

80.The psychiatrist was also asked for his opinion as to whether either of the parents represented any risk to the psychological well being or safety of the children.  To that he responded as follows:

‘In my opinion neither the father nor the mother represents any risk to the safety of the children. 

The father’s intensely controlling attitude does represent a risk to the psychological wellbeing of the children unless diluted by regular experience of the other parent.’”

1. He went on to find that the father displayed characteristics of Narcissistic Personality Disorder as set in DSMIV and displayed some unusual personality traits.  He noted that the father’s reaction to the psychiatric report was extreme in that he sought to sue the psychiatrist for $1 million damages as well as suing the children’s representative for $100,000 damages and seeking to have him removed from the case.

1. The Magistrate then turned to examine another aspect of the father’s case that he said appeared unusual, namely that the father had deposed in an affidavit sworn 15 January 2003:

“89 …’I have never been healthier, happier, nor more content and fulfilled, in my life.  I have been [sic] never been so busy either.  It is from this point, combined with an extensive range of education and experiences then when added to my legal readings of late, I realise I have been discriminated against all my life.  Primarily due to my natural gender preference being contrary to my sex and sexuality.  Basically it is considered ‘wrong’ or ‘unnatural’ for a masculine, heterosexual male to have any genuine interest in the role of paterfamilias, creating much fear and misunderstanding.  There is also the point of women being unconsciously resistant to relinquishing dominance of role, as men were in relinquishing theirs.’”

and then further deposed in a subsequent affidavit:

“90.…

‘I am the mother of (the children), and the wife of the marriage, in terms of the socially constructed, and widely accepted, gender role of mother and wife.  This form of motherhood is the fundamental basis for consideration in the best interests of the children. 

I, as a male mother, am part of the leading edge of a substantial paradigm shift, the opposite end of the Bell-curve to professional women.  This shift in awareness and acceptance must be respected, encouraged, supported and protected by Law.  This being in the greater best interests of children and in the name of equality between men and women and in accordance with the principles of International Convention.”‘

1. The Magistrate concluded:

“93.In my view, all the father is really trying to say is that, based upon sex alone, there is no reason why a mother should be preferred over a father as a parent.  While he may be putting that forward in an unusual manner, that is clearly a correct statement of the law. The High Court has determined that there is no preferred position of the mother. See Gronow v. Gronow 144 C.L.R 513. See also Raby and Raby (1976) FLC ¶90-104 .

94.In short, there is no legal reason why fathers should not be able to stay at home and devote their lives to the full-time care of children.”

1. He then turned to examine s 68F(2) factors and particularly paid attention to three matters under the headings

• “The Nature of Children’s Relationships”,

• “Capacity of Parents to Meet the Children’s Needs”, and

• “The Need to Protect the Children from Physical or Psychological Harm Caused by Abuse, Ill-treatment, Violence and Other Behaviour”. 

1. The Magistrate noted that the children had resided throughout the whole of their lives more with their father than their mother but had for a period of some seven months spent three days a week with their mother.  He accepted that the father had a good relationship with his children that was in no way abusive.  He accepted the mother’s evidence corroborated by her sister that the children had a good relationship with the mother and their half-brother Y.

1. He turned to examine the parties’ attitudes to the children and the responsibilities of parenthood, concluding that the mother had a normal capacity to meet the children’s needs and that her failure to exercise contact had been explained by her financial and transport difficulties that were in turn compounded significantly by the controlling and unreasonable approach taken by the father.  He found the father to be intelligent but was critical of the father for believing that he could run his own case better than a lawyer could have done.  He thought that attitude suggested that the father put his own feelings of importance above the needs of his children.  He also made reference to the father having questioned medical advice given in relation to the children, including an occasion when he sought to remove one of his children from hospital when the child was suffering from pneumonia and was attached to an intravenous drip.  In the absence of the transcript that would set out the evidence that surrounds the circumstances described by the Magistrate, it would be impossible to entertain any complaint that the Magistrate has misunderstood the evidence or placed undue emphasis upon it.

1. Finally, the Magistrate expressed concern that the father’s behaviour might cause the children some psychological harm, setting out two passages from the psychiatric report:

“108.There is no evidence in this case that the Father is deliberately abusive or violent.  However, I do have some concerns that his ‘other behaviour’ could cause the children some psychological harm.  In this regard, I repeat that the psychiatrist said:

‘It is in my opinion more likely than not that (the Father) will, in his care of the children, continue to show an intensely controlling parenting style which will probably be in marked contrast to the more relaxed, caring style of the mother.  The father’s management of the children is likely to induce over-compliance or, alternatively, rebellion in the majority of normal children.’ 

109.    I also repeat that the psychiatrist said:

‘The father’s intensely controlling attitude does represent a risk to the psychological well being of the children unless diluted by regular experience of the other parent.’”

1. The Magistrate’s view of the evidence was that the mother was more likely to be encouraging of normal childhood activities than the father and more likely to promote the relationship with the other parent than the father would.

1. The Magistrate’s conclusion was that it was in the best long term interests of the children to reside predominately with their mother and their half-sibling Y, whilst having regular contact with their father.  He also concluded that it was appropriate that the mother have the sole responsibility for the children’s long term care, welfare and development in relation to medical matters because of the incidents described in the father’s behaviour at the hospital. 

1. The orders were framed to take place immediately upon the publication of the judgment, namely 28 July 2004 and I was informed at the hearing that the orders have been operative since that time, with the children residing with their mother now for the last eight months.

The Appeal

1. As already indicated, the documents produced by the husband in support of his appeal do not clearly indicate precisely what it is that he is complaining about. 

1. At the hearing of the appeal I spent some time trying to ultimately determine the nature of the complaint that was being made by the appellant as I found the documentation provided by him in support of the appeal unstructured and confusing.  The possible grounds for appeal were to be found, as already indicted, in the original Notice of Appeal, the amended Notice of Appeal, the affidavit filed on 18 January 2005 in support of the application to extend the time for obtaining the transcript, and in the document filed 10 March 2005 headed “Grounds I intend to argue”.

1. The oral discussion at the hearing of the appeal seemed to confine the appeal to four areas:

1.        That the Magistrate exhibited bias and pre-judgment.

2.        That the Magistrate failed to give appropriate weight to the status quo, namely that the father had had the children since separation for a period of over three years and had apparently raised them successfully during that period of time.

3.        That the Magistrate had failed to give weight to the psychiatric evidence that there was no risk to the children in their father’s care if they had regular contact with their mother.

4.        Finally, there was a sort of an omnibus ground argued that the result was plainly unjust.

1. The argument in support of the assertion that the Magistrate was biased and had pre-judged the issues was, as best as I could understand it, based on the outcome of the proceedings.  It was suggested that the judgment was selective in the material it focused upon and that the matters that were highlighted were chosen to support a pre-determined outcome.

1. Nothing was drawn to my attention in the conduct of the proceedings or within the confines of the judgment itself that would support any proposition that the Magistrate did not approach the case from a position of appropriate neutrality.  Absent the slightest evidence to suggest that the Magistrate approached his task with a closed mind, nor any suggestion that at any time the Magistrate was called upon to disqualify himself because of a perception that might be had that he was somehow biased in the proceedings, it would be quite inappropriate for me to uphold the bold assertion of the appellant that the result is indicative of such an approach.  In my view, there is no substance in the ground as asserted.

1. The matter canvassed by the second ground, namely the failure to give appropriate attention to the status quo is something that has caused me some concern.

1. As already indicated by reference to the relevant legislation, the Court is obliged to make an order in a parenting case that will regard the best interests of the child as the paramount consideration. The Court is directed to give consideration to matters that will assist it in determining what is in the child’s best interests, those being the relevant matters set out in s 68F(2).

1. Not all of the matters set out in s 68F(2) are relevant in each case. The Magistrate particularly identified three areas of s 68F(2) that he thought were relevant to his considerations in this case. The husband’s assertion is that he ought effectively to have drawn different conclusions relating to the nature of the relationship of the children with each of their parents and particularly paid attention to s 68F(2)(c) namely the likely effect of any changes in the children’s circumstances arising from any separation from the person with whom they have been living, namely their father.

1. The difficulty that I face as an appellate judge is that I have no idea of the extent to which this was a matter that was raised in issue before the Magistrate.  The Magistrate was clearly conscious that the children had been living predominately with their father for several years.  He was also conscious of the fact that for at least seven months up to the date of hearing the children had been seeing their mother on three days a week and he found on the available evidence that they had a good relationship with their mother.  There does not appear to have been any evidence referred to that would indicate the children would not adequately cope with a change in their living arrangements.

1. In Sanders and Sanders (1976) 1 Fam LR 11,433; (1976) FLC 90-078, before the enactment of s 68F(2), the Full Court said:

“In a custody case the question to be answered differs from that posed in many other cases involving the exercise of a discretion. It is not a question of ‘how much?’ or of quantum as is sometimes the case in property or maintenance disputes (or in questions of damages or sentencing); nor is it a question ‘whether or not?’ as in cases where the onus is on one party to satisfy the court of some matter in order to persuade it to exercise a discretionary power. Custody cases pose the more subtle and difficult question of preference between different alternatives. The principles to guide the court are set out in s 64(1) of the Act: the court is required to ‘regard the welfare of the child as the paramount consideration’.

The Act does not specify which matters are to be considered as relevant to the welfare of the child (compare ss 75(2) and 79(4)). What is relevant and significant will vary from case to case and any guidelines or list of factors should not be taken as fixing priorities in a particular case. Nevertheless, most decisions involve at least some of the following factors:—

·findings of fact about the child in its current setting;

·findings of fact about the competing parties, their character and suitability as parents;

·findings of fact about other significant adults/children;

·findings and/or inferences about the child’s relationships with parents and others;

·findings of fact about the competing households and physical environment; an assessment of the merits or otherwise of the competing proposals for the custody of the child;

·a determination that one of the proposals is preferable to the other.

In some cases both parents are adequate and there is little to choose between the competing situations. The determining factors are to be found within a narrow compass. In other cases there are significant disparities between the two situations. When this occurs the judge has to exercise his (or her) discretion by balancing diverse matters, giving more weight to some and less to others. There may be recognized community standards to guide the judge (sometimes referred to as ‘principles’); but often the judge is faced with competing sets of values. A value judgment must often be made to determine which course of action is appropriate to the welfare of the child.

The nature of custody cases, therefore, requires findings and inferences of fact in respect of the matters mentioned above, an assessment of the characters and personality of the parties and sometimes an assessment of competing values or standards…”

1. This passage was cited with approval by the Full Court in Raby (1976) 2 Fam LR 11,438; (1976) FLC 90-104 and subsequently by the Full Court in White (1995) 20 Fam LR 37; (1995) FLC 92-648.

1. Similarly, in Gronow (1979) 144 CLR 513 Stephen J said:

“5.In this case the fine balance of competing circumstances not only made the decision facing the learned trial judge a difficult one. It should also have gone far to satisfy the Full Court that this was not an occasion upon which it was proper for an appellate court to disturb the outcome of a discretionary judgment, particularly when made after a most careful review at first instance of all relevant circumstances and made with that unique advantage which the primary judge alone possessed, that of seeing the parties and those associated with them and gaining at first hand some personal impression of their personalities. Where very evenly balanced competing claims are in question and where it is custody that is in issue this advantage must be of particular significance.”

and Aickin J said:

“15.It is clear that that test will not be satisfied merely by reason that the appellate court, considering the matter de novo, would itself have arrived at a different result. The fact that a decision on custody depends upon the exercise of a judicial discretion recognizes that in many cases different minds may arrive at different conclusions.

16.The advantage which a trial judge has of seeing and hearing the witnesses is of particular importance in matters of custody where so much depends on an evaluation of the characters and personalities of the parents, and their attitudes, not only to the child, but also to each other. The attribution of comparative weight or importance to various factors will generally be influenced by the impression formed on seeing and hearing each parent, and in appropriate cases the child or children involved. …”

1. This was a case in which the Magistrate arrived at what he described as a “firm conclusion”.  He identified the factors that influenced that decision, particularly his assessment of differences in the parenting style of the parties and their capacity to provide a balanced future relationship for these children with the other parent.  It was his assessment that the welfare of the children would best be advanced in the mother’s household.

1. Whilst it may well have been preferable for the judgment to have set out more of the findings that are referred to as being appropriate in Sanders’ case relating to the competing households, their physical environment and the proposals of each of the parents, it is easy to understand that if those matters were not the focus of the battle before him they might be matters that were left out of the reasons for judgment.  The battle ground chosen by the parties appears to have focussed upon the personalities of each of them, the father wanting to demonstrate that the mother had been less than attentive to her duties as a parent, whilst the mother sought to demonstrate that the father had placed himself in a position of dominance and control that would reflect poorly on the future welfare of the children.  The Magistrate made findings according to the battle ground that appears to have been chosen.  To the extent that the appeal is in essence an attack on the adequacy of the reasons of the Magistrate then the appeal must fail.

1. The third of the grievances extracted from the husband was the complaint that there was a failure to give weight to the psychiatric evidence that the children were not at risk with him if they were regularly seeing their mother.  This was first identified in paragraph 80 of the judgment and then repeated in paragraph 109 of the judgment.  Clearly the Magistrate was aware that the effect of any shortcomings of the husband in relation to the psychological wellbeing of the children could be overcome by regular contact but even so it was still open to the Magistrate in my view to reach the conclusion that the welfare of the children would better be promoted in the mother’s household.

1. Firstly the Magistrate expressed some concern that the children’s relationship with their mother would not be promoted.  What would flow from that of course would be that opportunity for regular exposure to the mother would be at risk.

1. Ultimately the task of the Magistrate was to determine on the evidence available to him in whose care he felt the best interests of the children would be advanced and to make orders accordingly.  The fact that a different conclusion might have been reached by a different judicial officer is not the point.  At issue in these proceedings is whether that conclusion was open to the Magistrate on the material before him.  I do not have the totality of the material that was before him, but nothing has been drawn to my attention that would indicate that such a conclusion was not available.

1. The best I can make of the balance of the appellant’s material is that it amounts to complaints of a procedural nature suggesting that somehow there was not a fair trial because, firstly, the child representative or the Court did not carry out a proper role as an investigative body in searching for all of the evidence that might assist it in reaching its determination, and secondly, not allowing the husband a fair opportunity to present his case.  Such generalised complaints misunderstand both the role of the child representative and the judicial role.

1. Ultimately the judicial role is to determine the proceedings on the material presented to the court.  It is not an investigative body conducting an inquisition but rather it is an adjudicative body determining a dispute that is brought before it. 

1. As the Full Court said in T v S (2001) 28 Fam LR 342; (2001) FLC 93-086:

“although proceedings involving the welfare of children are not strictly adversary in the usual sense…they are not to be equated with inquisitorial proceedings.  The court and its procedures are simply not equipped to conduct inquisitorial proceedings…”

1. At the hearing before the Magistrate the children were separately represented.  Although the father has complained that the children’s representative did not appear to carry out his task in a manner which would have perhaps given the Court a greater insight into the parenting capacities of the parties or the particular needs of the children, by, for example, seeking a family report, once again absent the transcript and absent an opportunity to examine the matters canvassed at the trial, it would be impossible for me as appellate judge to be critical of the Magistrate for failing to conclude that he was unable to reach an appropriate conclusion that would advance the welfare of the children without further investigation to take place.  The Court has an obligation to balance its hearing lists, to provide for an orderly conduct of its business.  It had set aside the time for the determination of these proceedings.  The wife was entitled to have her application seeking the residence of the children heard and determined, and as the Magistrate indicated, it had already been waiting in the lists for some 18 months.  In those circumstances, in my view, there could be little criticism of the Magistrate for conducting the hearing on the material that was then available to him rather than further adjourning it for yet another indeterminate period of time without good cause being shown as to why it was necessary to assist the Magistrate in carrying out his task.  Absent any record of what occurred at the trial, it is impossible for me to assume that this was an issue that was either raised before the Magistrate or was not properly determined by him.

1. Ultimately this was a hearing of competing residence applications in which each side had an arguable case.  Each party was provided with an opportunity to be heard on the issues that were relevant to the determination of the proceedings.  The case occupied three days of court time. The learned trial Magistrate chose one of the two outcomes that were available to him on the issue. Nothing has ultimately been demonstrated to me that would indicate that it would be appropriate for an appellate court to interfere in that determination.

The Enforcement Proceedings

1. In the course of the hearing I expressed concern as to the present status of the other application that the Magistrate had declined to hear, namely the husband’s enforcement application.  The Magistrate had ordered:

“10.That the parties’ applications in relation to children’s matters be otherwise dismissed and removed from the pending cases list.”

1. I expressed concern as to whether that had amounted to a dismissal of the application and was assured by both counsel for the wife and counsel for the child representative that should the application be relisted for hearing they would not be urging upon any subsequent court that the Magistrate intended to deal with the contravention application in such a summary manner.  They each expressed the view that if the husband wished to continue on with the application in so far as it sought to have the wife dealt with for alleged breaches of orders then no objection would be taken to it being relisted for hearing at a time convenient to the Court. 

1. Having regard to that assurance I do not propose to make any order about the matter but note that it would appear that if the husband is still anxious to have the application filed 28 January 2004 relating to alleged contraventions proceeded with and heard, then he is at liberty to apply to have the matter relisted for hearing.

Costs

1. At the conclusion of this matter the counsel for the wife and the child representative each sought an order for costs in the event the appeal was dismissed.  The mother is legally aided.  The child representative is legally aided.  The father claims to be bereft of any funds.  Even though the appeal has been found to be without merit, in my view the provisions of s 117(1) should prevail and there will be no orders as to costs.

1. The formal order will be that the appeal is dismissed.

   I certify that the preceding 84 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Kay
   The 13th day of April 2005
   
   Associate: Elizabeth Hore