Farrand & Mahdi
[2021] FamCAFC 122
•22 July 2021
FAMILY COURT OF AUSTRALIA
Farrand & Mahdi [2021] FamCAFC 122
Appeal from: Farrand & Mahdi [2020] FamCA 875 Appeal number(s): NOA 76 of 2020 File number(s): BRC 11658 of 2018 Judgment of: AINSLIE-WALLACE, AUSTIN & TREE JJ Date of judgment: 22 July 2021 Catchwords: FAMILY LAW – APPEAL – Appeal against final parenting orders providing for the children to live with the respondent and spend no time with the appellant – Risk of harm – No apprehension of bias – Adequate reasons – No error in the acceptance of the respondent’s evidence over that of the appellant – Weight challenges – Findings open on the evidence – Decision of the primary judge not plainly wrong – No error of law – Appeal dismissed – Appellant to pay the costs of the respondent and the Independent Children’s Lawyer in a fixed sum. Legislation: Family Law Rules 2004 (Cth) Sch 3 Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
R v Mahoney (2000) 114 A Crim R 130; [2000] NSWCCA 256
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Division: Appeal Division Number of paragraphs: 161 Date of hearing: 11 May 2021 Place: Heard in Brisbane, delivered in Sydney Counsel for the Appellant: Mr Geddes QC with Ms Bryan Solicitor for the Appellant L&S Lawyers Counsel for the Respondent: Dr Brasch QC Solicitor for the Respondent: Murdoch Lawyers Counsel for the Independent Children’s Lawyer: Mr McGregor Solicitor for the Independent Children’s Lawyer: Legal Aid Queensland ORDERS
NOA 76 of 2020
BRC 11658 of 2018APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS FARRAND
Appellant
AND: MR MAHDI
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
AINSLIE-WALLACE, AUSTIN & TREE JJ
DATE OF ORDER:
22 JULY 2021
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 8 March 2021 is allowed.
2.The appeal against orders made by a judge of the Family Court on 16 October 2020 is dismissed.
3.The appellant pay the respondent’s costs fixed in the sum of $31,295.37 within thirty (30) days of the date of this order.
4.The appellant pay the Independent Children’s Lawyer’s costs fixed in the sum of $4,161.90 within thirty (30) days of the date of this order
.Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Farrand & Mahdi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE, AUSTIN & TREE JJ:
Ms Farrand (“the appellant”) appeals from final parenting orders made by a judge of the Family Court on 16 October 2020 which dismissed her application to spend time with her grandchildren.
The appellant is the maternal grandmother of two children, X born … 2011 and Y born … 2012 (“the children”). Mr Mahdi (“the father”) is the children’s father.
On … 2018 the children’s mother, Ms B Mahdi (“the mother”), the daughter of the appellant, died. Her death were it not tragic enough precipitated a bitter dispute between the appellant and the father over the appellant’s desire to spend time with the children.
Without wishing to inflict further anguish on a family already grieving for the loss of a daughter, wife and mother, it is necessary for us to delve into the circumstances of the mother’s death to give context both to her Honour’s reasons and to the issues agitated on appeal.
It is clear that the mother abused alcohol. In 2015 she suffered a stroke which resulted in her having epilepsy, depression and anxiety. On an evening prior to her death, the mother having left the house and not returned, the father contacted the police who eventually discovered her. The mother was rushed to the hospital in a critical condition where she was placed on life support. On the next day the mother was pronounced dead.
Shortly after the mother’s death a Police Report of Death to a Coroner (“Form 1”) was prepared and it is on this document that the appellant relied to claim that the father had in some way, brought about her daughter’s death. The second line of the first page of that report said:
TYPE OF DEATH: Violent/unnatural death: [Suspected suicide]
The document continued and set out in detail the circumstances of the discovery of the mother including a list of medications found in her handbag and scattered around her at the scene and how many tablets had apparently been removed or were missing from the packets (at pages 5 and 11–12). The document also listed further medications apparently prescribed for the mother and found at her home (at pages 6 and 12).
On page 14 of that document, the author of the report expressed the opinion that the mother’s death was suicide by “Drugs/Alcohol/Poison overdose”.
The coroner prepared a final report dated in early 2019. It records the findings that the mother’s death was not attended by suspicious circumstances and that she died from “multiple organ failure due to mixed drug toxicity” (at [1]).
The appellant considered that the father had some hand in her daughter’s death. On … 2018 she sent a text message to the father:[1]
I’ve just read the coroner’s report (Form 1). Instead of helping [the mother] who suffered from depression, you bestially attacked her. How can you live with it? How can you face her children and her mother? I pray that justice will be served and you will rot in jail. I am under police protection now.
[1] Father’s affidavit filed 21 August 2020, paragraph 165.
When the father responded to the appellant asking her not to come to the house or to contact him again, she responded by saying that the contents of the Form 1 was for their eyes only and that she did not intend to share it with anyone. She asked that they retain a cordial relationship.
While the appellant had spent considerable time with the children over the years before the mother’s death, it seems it had not been without its controversies as text messages between the appellant and the mother suggested. However, it was not in dispute that the appellant had a warm and loving relationship with the children before their mother’s death and had spent time with them.
The appellant attended the family home on … 2018 and the children returned with her to her house and stayed overnight. She spent time with the children on the … and … 2018, 13 July 2018, 12 August 2018 and 9 September 2018. The appellant spent shorter times with the children on … 2018 and 26 August 2018. The father arranged telephone calls between the appellant and the children on 3 August 2018 and 30 August 2018.
The father said that despite an incident which occurred on … 2018 between the appellant and him, he suggested that the appellant have the children stay with her overnight on one night each week. The appellant on the other hand said that the offer was for one overnight each fortnight. Whatever time was in fact offered, the appellant did not take it up.
The father said that the appellant made frequent requests to spend time with the children and to have updates as to how they were faring. Often the requests were followed up by text messages. On 27 July 2018 the father sent the appellant a text message in which he agreed that a relationship with all grandparents is important and continued; “it should not be to the detriment of the children engaging in normal family/social/sporting events”.[2] He offered that the children spend one day each month with her. The appellant responded “[i]n your last message you omitted words such as grief, love & maternal family”. She said that his actions were “hurting people closest to [the mother’s] heart”.[3]
[2] Father’s affidavit filed 21 August 2020, paragraph 101.
[3] Father’s affidavit filed 21 August 2020, paragraph 102.
On 30 July 2018 the father received a letter dated 27 July 2018 from a solicitor engaged by the appellant which said that the appellant was concerned whether he intended “to facilitate the children continuing to see their grandmother”. The letter continued and noted the appellant’s particular concern was that the children were not available to spend time with her because the older had a “play date” and the family went boating.[4]
[4] Father’s affidavit filed 21 August 2020, paragraph 99.
The letter continued:
[The appellant] has advised us of concerns about the children’s possibly seeing and hearing events within their home and immediately prior to [the mother’s] death. Given the Police’s investigation in regards to [the mother’s] death, those concerns have been communicated to the Police; and in turn [the appellant] has been advised to contact Child Safety; which she has done. Whilst [the appellant] appreciates that immediately following [the mother’s] death she has said things to you which she has subsequently regretted, that was out of overwhelming grief and concern about the circumstances surrounding [the mother’s] death and impact it has on the children. [The appellant] anticipates that as a result of the above matters, you have opposed communicating with her…
The father facilitated time between the appellant and the children on several occasions after receipt of that letter. The father said that the appellant undermined his parenting decisions and cited a conversation between the children and the appellant which followed a request by her for time with the children on a day not convenient to the father. He overheard the appellant tell the children to ask him to let them see her and she said “perhaps daddy will be nice and let you see me”.[5]
[5] Father’s affidavit filed 21 August 2020, paragraph 126.
The appellant last saw the children on 9 September 2018. That evening, on returning from spending time with the appellant, as a result of things said to him by the children, the father came to the view that the children’s wellbeing was being adversely affected by the appellant’s conversations with them and he stopped contact between the children and the appellant.
Thus the appellant commenced proceedings in October 2018 and, at first sought orders that the children live with her. She then amended the orders to seek that the children live with the father but she have extensive weekend, school holiday and other times. Ultimately the orders she sought at the hearing were that the children live with the father, that the father have sole parental responsibility for decisions concerning the major long-term issues about the care, welfare and development of the children and that the children spend time with her initially on a supervised basis, graduating to unsupervised overnight time from 10.00 am Saturday to 4.00 pm Sunday for the last weekend of each month. The appellant also sought orders for time on special occasions. The appellant sought orders that when the children spend time with her, she be responsible for the daily care, welfare and development of the children.
Before the primary judge the appellant contended that the father was “punish[ing]” her by refusing her time with the children because of her comments to him immediately following the mother’s death.[6] She further argued that he had “alienated” the children’s affections from her as a form of punishment.[7] The appellant persisted in claiming that the father had alienated the children from her to the end of the trial. When asked, in submissions, what was the evidence on which the claim of alienation was based, counsel then appearing for the appellant relied on the fact that she had not seen the children.
[6] Appellant’s written submissions dated 14 September 2020, paragraph “F”.
[7] Appellant’s written submissions dated 14 September 2020, paragraphs 15–20.
The appellant’s application was resisted by the father, who sought orders that she have no time or other contact with the children and she be restrained from attempting to remove the children from Australia. The father expressed concern that the appellant would not refrain from expressing her negative views about him to the children and she would undermine his parental relationship with them, as he said, she had done in the past.
The appellant maintained that while she had accused the father of murdering the mother she would not discuss her views with the children. The primary judge dismissed the appellant’s application and made a number of injunctions restraining her from having any direct contact with the children.
THE PRIMARY JUDGE’S CONSIDERATION
The primary judge acknowledged that given the appellant’s negative view of the father in the past it was “perhaps understandable… that the [appellant] would reject the non-suspicious circumstances of her daughter’s death, particularly when the [appellant] said that when she last spoke to the mother, she was happy and talked about future plans” (at [28]).
After reflecting on the “terrible grief” the appellant would have experienced, the primary judge said:
28.… However, the [appellant’s] behaviour, including making extraordinary allegations against the father without any reasonable foundation, and her intrusion and undermining of the father’s relationship with the children, combined with her extraordinary lack of insight, cannot be neutralised by a simple acknowledgement that she is a grieving mother.
The primary judge set out in some detail the appellant’s allegations against the father and to whom they were made including forwarding to the coroner numerous documents to be taken into account in the determination of the circumstances of the mother’s death, which included a recording of the children answering questions asked of them by the appellant and a recording of a session between a clairvoyant/psychic and the appellant in which the clairvoyant confirmed that the father had murdered the mother. Her Honour also listed the allegations or more accurately the insinuations made by the appellant in relation to the father; about the company he kept and his parenting of the children (at [72]).
Her Honour concluded that the allegations made by the appellant against the father and his friends were “vicious and without foundation” and had been rejected by the police and the coroner (at [73]).
The primary judge found that before the mother’s death the children enjoyed a meaningful relationship with the appellant and said that this would likely have continued but for the appellant’s suggestions that the father played a role in the mother’s death and what the father saw as her interference in and undermining of his parenting (at [15]).
Although the primary judge acknowledged that the appellant wished to put the events of the past behind her, she noted that the appellant’s trial affidavit contained criticisms of the father, his parenting style and included reference to an allegation she made against him in 2015 (at [74]).
A significant plank in the appellant’s case was her contention that despite her allegations and criticisms of the father, she had not shared those views with the children and she contended that if she was reintroduced to the children’s lives she would contain herself because she had “moved on”. The primary judge rejected that she had “moved on” and concluded that the appellant’s attempts to undermine the father’s parenting were of long standing and, on occasion she had exposed the children to those views (at [78]).
The primary judge considered the appellant’s evidence, in particular her dismissal of the father’s reaction to her past behaviour, and found that she lacked empathy and insight which increased the risk to the children that she would if not intentionally, unintentionally expose the children to her negative views (at [79]).
Thus the primary judge made orders which, in effect, prevent the appellant from having any contact with the children at all but which permitted her to send a gift and card to the children via the father at Easter, their birthdays and Christmas in each year. Her Honour also made orders requiring the father to send the appellant an annual written update about the children’s welfare.
APPLICATION IN AN APPEAL
On 8 March 2021 the appellant filed an Application in an Appeal to adduce further evidence, namely an audio recording of events that occurred in mid-2018 made by Mr S, a friend of the father. We admitted the audio recording as further evidence on appeal and its relevance will be discussed later in these reasons.
THE APPEAL
Before we turn to the grounds and the challenges to her Honour’s orders, we feel moved to comment on the histrionic way in which the grounds were couched and in which many of the submissions for the appellant were articulated. For example, in Ground 1(a) it is asserted:
[T]he trial judge displayed an unjustified, cumulative disregard for aspects of the [appellant’s] case…
In Ground 2 it was contended that her Honour displayed a “[systematic] preference” for the father’s evidence over that of the appellant.
So too in the oral submissions it was argued that the primary judge “form[ed] such a strong view and dislike” of the appellant and continued the primary judge “clearly has a distaste for the woman”.[8] It was said that her Honour’s view of the appellant’s conduct was “uncharitable” and she did not “extend one scintilla of understanding to this grieving grandmother”[9] and that the primary judge was not “sympathetic” to the appellant’s circumstances.[10]
[8] Transcript 11 May 2021, p.7 lines 22–24.
[9] Transcript 11 May 2021, p.15 lines 5–6.
[10] Transcript 11 May 2021, p.20 line 41 to p.21 line 7.
Ad hominem attacks on the primary judge are inappropriate. It was not her Honour’s role to be “sympathetic” or “charitable”, but to hear and determine the dispute before her according to the evidence and the relevant law. We reject Queen’s Counsel’s characterisation of her Honour’s reasons and express some surprise that such an attack would be mounted.
Further, it is apposite to include here what was said in R v Mahoney (2000) 114 A Crim R 130:
15.This is a classic example of what has been described as an “armchair appeal”, where after the trial, counsel not involved in the trial has sat down and gone through the whole of the transcript and summing up looking for error, without reference to the manner in which the trial was conducted…
(Citations omitted)
Many, if not all of the grounds are unrelated to the way in which the matter was conducted before the primary judge. The grounds appear to be an attempt, through the appeal, to argue another case entirely. So much was submitted by Queen’s Counsel for the father who argued that none of the challenges articulated in the Amended Notice of Appeal filed on 5 March 2021 reflects how the trial was conducted before the primary judge and the appeal should be thus dismissed.[11] Nonetheless her submissions continued and addressed the asserted grounds. Queen’s Counsel for the appellant, apart from acknowledging the accuracy of his opponent’s point, gave no explanation as to why he was conducting a different case nor why he should be permitted to do so. While there is considerable force in the contention that the appeal should be dismissed on this point, we will nevertheless consider the grounds of appeal as raised.
[11] See Metwally v University of Wollongong (1985) 60 ALR 68 at 71.
Grounds 1, 2 and 3
These grounds were argued together and it is convenient if we take the same approach.
Ground 1
It was contended that the primary judge’s conduct gave rise to an apprehension of bias on the basis of prejudgment because of comments made by the primary judge during the hearing and in her published reasons for judgment.
So far as the ground relates to comments made by the primary judge during the hearing, we observe that nothing was said during the trial about any comment or questions asked by the primary judge which might have led to such an apprehension. No application for recusal was made during the trial nor was any complaint made to her Honour about her conduct which might have been said to give rise to the apprehension.
It is of assistance here to consider the law. While the appellant’s Summary of Argument referred to the well-known articulation of principle in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”), where the alleged apprehension arises from claimed prejudgment, more is to be said.
In Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [185], following discussion of the Ebner test, Hayne J noted the several distinct elements underlying the assertion that a decision-maker has prejudged or will prejudge an issue, or the assertion that there is a real likelihood that a reasonable observer might reach that conclusion. His Honour said:
185.… First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to the matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case…
As Gleeson CJ and Gummow J observed in that case at [71] the question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. This is so whether the assertion is that the decision-maker is actually biased or that there is an apprehension of bias.
The appellant’s Summary of Argument says:
5.Here, what is respectfully said to have led her Honour to decide the case other than on its merits was her Honour’s distaste for the [appellant]…
The impugned conduct was particularised in the submissions as:
- Disregarding “aspects” of the appellant’s case;
- Preferring the father’s evidence over that of the appellant and failing to provide adequate reasons for that preference (this complaint also forms a separate ground of appeal, Ground 2);
- Making findings adverse to the appellant that were not “anchored” in the evidence; and
·Making unsupportable findings in relation to an incident which occurred in mid-2018 and uncritically accepting the father’s evidence despite inconsistencies (this too is a separate ground, Ground 3).
Apprehended Bias through prejudgment during the hearing
The first manifestation of prejudgment was said to have arisen during the submissions of the Independent Children’s Lawyer to the primary judge.
The contentious comment is:[12]
… her views about the father… seem to be long held, disapproving and becoming more and more sinister.
[12] Transcript 14 September 2020, p.224 lines 38–39.
It was argued that her Honour’s comment was “proffered without context or explanation as to what her Honour considered were the [appellant’s] more recent as opposed to earlier views and how they had evolved to become more disturbing”.[13]
[13] Appellant’s Summary of Argument filed 5 March 2021, paragraph 5(a).
It is helpful to set out the context in which this comment was made. The Independent Children’s Lawyer submitted that there should be an order for supervised time between the appellant and the children unless the primary judge found that the appellant was likely to discuss her “distaste” for the father with the children in which case, the Independent Children’s Lawyer submitted, there should be no contact, not even supervised.[14] The Independent Children’s Lawyer said:[15]
[COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER]: The children knew that she exists. She is part of their family and their reality is that she’s part of their identity. There is some contact with the family in [Country C] through telephone calls with the grandfather and, I understand, perhaps other relatives. But she’s here. It’s just – it can’t happen at the moment, because the impact on the [appellant] on the father and the fact that she won’t stop. It is a – an incessant campaign by her to try and get time with the children. And she told [the Family Report writer] she wouldn’t stop…
[14] Transcript 14 September 2020, p.222 lines 32–34.
[15] Transcript 14 September 2020, p.223 lines 24–30.
There followed a discussion between the primary judge and the Independent Children’s Lawyer about the tenor of the appellant’s trial affidavit which her Honour said was critical of the father. The Independent Children’s Lawyer submitted that the appellant’s case was not that she wished a rapprochement with the father, but she “want[ed] the children”.[16]
[16] Transcript 14 September 2020, p.224 line 26.
Her Honour then said:[17]
HER HONOUR: Yes. And I suppose in some ways, though, she may never change her views about the father and they seem to be long held, disapproving and becoming more and more sinister. I wouldn’t have to be satisfied that she rejects all of those views. I would have to be satisfied that she wouldn’t even subliminally… pass those views onto the children. That’s what I’m focused on, isn’t it?
[17] Transcript 14 September 2020, p.224 lines 37–45.
Her Honour’s comments put in context reveal that she was quite properly reflecting on the evidence and how it was to be taken into account in determining the issue before her, the best interests of the children.
The next representation of the asserted prejudgment again arose during the submissions of the Independent Children’s Lawyer.
As with the earlier impugned remark, her Honour was responding to the Independent Children’s Lawyer’s submissions which concerned the appellant’s “incessant campaign by her to try and get time with the children”.[18] In that context her Honour asked the Independent Children’s Lawyer for submissions about the content of the appellant’s affidavit and her evidence during cross-examination as to whether her Honour was able to make a finding about the appellant’s insight and capacity to refrain from criticising the father.
[18] Transcript 14 September 2020, p.223 line 29.
The Independent Children’s Lawyer responded:[19]
[COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER]: She professes that she wants to make up with the father and to apologise to him. She has had plenty of opportunity to do that. Her affidavit doesn’t read like somebody who wants to make up [to] him and apologise to him.
[19] Transcript 14 September 2020, p.224 lines 37–39.
Her Honour referred to the appellant’s criticisms of the father which she says go “way back”. She then says:[20]
HER HONOUR: … The allegations of domestic violence… Descending to criticisms of the father being openly authoritarian. I mean, I was just reading that, thinking why would that be in her evidence-in-chief when she’s trying to persuade the father that she’s a changed person and can be trusted to… have a relationship with the children?
[20] Transcript 14 September 2020, p.224 lines 7–19.
The complaint is that her Honour’s remarks did not acknowledge the appellant’s explanation for including criticisms of the father in her trial affidavit. This particular, and the whole challenge seems to suggest that her Honour was debating the merits of the case with the Independent Children’s Lawyer and was in some way obliged to articulate each of the countervailing arguments to the point being discussed. Her Honour was raising matters with the Independent Children’s Lawyer for his comment and submissions as she was perfectly entitled to do.
We observe too that her Honour’s comments were made at the conclusion of the evidence and thus her comments were informed by the evidence both oral and written. Nor is it to be overlooked that her Honour’s comments were also informed by the cross-examination of the appellant by Queen’s Counsel for the father which revealed the depth and persistence of the appellant’s allegations against the father including in her trial affidavit.
For example, throughout her oral evidence the appellant said that while she had alleged that the father murdered the mother, exposed the children to risk of abuse, failed to ensure they were properly counselled and queried whether the father was the older child’s biological parent, she maintained that that was then and she was very different now. She was cross-examined on her criticisms of the father in her trial affidavit filed mere weeks before the hearing and she agreed with Queen’s Counsel for the father that she held no present concerns that the children would be hit by the father. She was taken to paragraph 162 of her trial affidavit which said:
162.[The older child] also told me words to the effect: “Dad smacked me on my bottom till it was red. He squeezed my neck and arms but not to strangle me or to kill me, just the back of my neck.” I asked “Did it hurt?” and [the older child] said “no”. I said “Hurting people is wrong.” [The older child] then said “Dad had bad punishments for Mum, too.”
The following exchange occurred between the primary judge and the appellant:[21]
[21] Transcript 10 September 2020, p.48 lines 20–42.
HER HONOUR: … I just wonder why it’s in your affidavit, if it’s not an issue for you, now?
[THE APPELLANT]: My understanding was that I should be consistent. So whatever was in previous affidavit should be transferred to the current one. I am not a solicitor…
HER HONOUR: Yes. But see, this is your case. You’re trying to persuade me that I should make an order that the children spend time with you, unsupervised. And you’re trying to persuade me that I can trust you ---?
[THE APPELLANT]: Yes
HER HONOUR: --- that you won’t undermine the father, or make pejorative, or derogatory comments about him, aren’t you?
[THE APPELLANT]: Yes
HER HONOUR: All right. And then, in your affidavit, I must say, all I see are criticisms of him?
[THE APPELLANT]: I didn’t mean to be critical, your Honour.
HER HONOUR: You didn’t mean to be critical?
[THE APPELLANT]: No
…
HER HONOUR: And you disagree, clearly, with how he parents the children. And that’s in your affidavit?
[THE APPELLANT]: My understanding was that I was obliged by law to disclose any information about the present and the past, your Honour.
The next comment said to reflect prejudgment concerned text messages passing between the mother and the appellant.
The exchange, again made during submissions, commenced with the Independent Children’s Lawyer dealing with the strained relationship between the mother and the appellant.
The Independent Children’s Lawyer made reference to text messages passing between the mother and the appellant and said:[22]
[COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER]: One of the significant things about that is you have to [sic] sets of texts that come from the telephones. One produced by the [appellant], that really is just nice, pleasant conversations between the [appellant] and the [mother], setting up what a lovely relationship they had and then there are the ones that came through the expert engaged by the father, that give you the other side of the story. And it’s interesting that in the presentation of the case, you weren’t given the whole story by the [appellant]. And one wonders why.
[22] Transcript 14 September 2020, p.211 line 45 to p.212 line 4.
The primary judge said:[23]
HER HONOUR: And she acknowledged that in her cross-examination, didn’t she?
[23] Transcript 14 September 2020, p.212 line 6.
This question, or rather comment was not answered by the Independent Children’s Lawyer. The appellant argued that this comment was incorrect – we assume by which is meant the fact that the appellant did not acknowledge something in cross-examination.
However, the gravamen of the challenge is not apparently related to the comment but it was said that her Honour overlooked the “nuanced” nature of the texts. The submission continues:[24]
[5(c).] … It is an unfair suggestion by her Honour that the [appellant] had somehow conceded she tried to distort the presentation of her case to make herself look better.
[24] Appellant’s Summary of Argument filed 5 March 2021, paragraph 5(c).
We are unaware how her Honour’s comment could be said to convey the imputation contended for in the submission. The Independent Children’s Lawyer wondered why the appellant had not provided all of the text messages to give “the whole story”. Given that this was the Independent Children’s Lawyer’s submission, we wonder quite how her Honour’s question, even if it was incorrect, could say anything about her Honour’s state of mind.
Finally, during submissions on behalf of the appellant on the form of orders sought by her, counsel appearing for the appellant said:[25]
[COUNSEL FOR THE APPELLANT]: … Their whole relationship will be based on the orders. In relation to what has happened in the past, it’s my respect for [sic] submission that what was in the past, should be left in the past…
[25] Transcript 14 September 2020, p.248 lines 15–18.
Her Honour said:[26]
HER HONOUR: But, see, I might have had some sympathy for that submission but for what your client said in the witness box. She’s still getting experts to look at documents to discredit the father, given as late as Friday…
[26] Transcript 14 September 2020, p.248 lines 20–22.
It was submitted that since the appellant had not used the word “discredit” or “directly implicated the father in the creation of the documents” and had explained why she had sought expert evidence because the diary notes included in the father’s affidavit were “unfamiliar”, her Honour’s comment displayed another instance of apprehension of bias through prejudgment.[27]
[27] Appellant’s Summary of Argument filed 5 March 2021, paragraphs 5(d) and 6–7.
Again, context is everything. The evidence to which the primary judge referred was given by the appellant when she was being questioned about her relationship with her daughter and the father and in relation to the time she wanted to spend with the children.
The cross-examiner took the appellant to letters found by the father on a computer addressed to the appellant, written by the mother but never sent. The appellant did not accept that the letter had been written by her daughter, and questioned how it was that the father had come across the letter. She said:[28]
[THE APPELLANT]: … How did [the father] know that [the mother] did not send the letter? How did he know?
[28] Transcript 11 September 2020, p.130 lines 36–37.
The appellant was then taken to diary notes written by the mother and found on her computer. The appellant was asked:[29]
[COUNSEL FOR THE RESPONDENT]: … Now, you also dispute – my client… annexes some diary notes of [the mother] that he found on the computer. You dispute that they’re hers, as well, don’t you?
[THE APPELLANT]: I do, because I submitted all these documents apparently or allegedly written by [the mother] to an expert, and I submitted other original pieces written by [the mother] and I will receive an expert opinion.
…
[COUNSEL FOR THE RESPONDENT]: And you did it very recently to discredit my client and what he says?
[THE APPELLANT]: My intention was to prove who – and to find out who actually wrote those letters and whatever notes, which I had never seen in my life. My daughter never wrote anything in English. [The mother] was very busy. She – she didn’t like writing in general. She was always on the go, go, go, go, go, “Mum, we will talk when I come over.” Even sending a text message was a waste of time to her.
[29] Transcript 11 September 2020, p.130 line 44 to p.131 line 17.
True it is that while the appellant did not use the words “discredit”, the entire thrust of her answers made it plain that she did not believe her daughter had written the documents and, it followed that the father must have written them. The appellant’s submissions in this regard must be dismissed. In our view, her Honour’s comment only reflected the evidence and was a reasonable inference to be drawn from the appellant’s evidence.
Given that the majority of her Honour’s impugned comments occurred during the submissions of the Independent Children’s Lawyer, one would have expected counsel then appearing for the appellant when commencing his submissions to correct her Honour’s errors and unfair comments. He did not. When her Honour’s last impugned comment was made during the appellant’s submissions, no reproach or correction was raised by counsel appearing for the appellant.
None of the particulars to which the argument pointed establishes anything other than the primary judge discussing the evidence with the lawyers during submissions. To the extent that the challenge asserts bias through prejudgment, it will be dismissed.
Apprehended Bias through prejudgment in the reasons
It was also argued that her Honour demonstrated “prejudgment” in her reasons.
In SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 von Doussa J explained:
38.… Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party’s interests such as a hostile attitude throughout the hearing… an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias.
(Citations omitted)
The Summary of Argument filed by the appellant contends:[30]
7.As a consequence of her Honour’s unflattering perception of the [appellant], it is asserted that her Honour decided the case in a way that a fair-minded lay observer might reasonably apprehend was not impartial and was other than on the merits, in that her Honour’s [sic] did not bring to bear a dispassionate mindset when assessing the risks posed by the [appellant] to the children. Instead, it is respectfully said that her Honour pre-judged that the [appellant] lacked insight and was thus an unacceptable risk to the children…
[30] Appellant’s Summary of Argument filed 5 March 2021, paragraph 7.
What then follows in the submissions are in truth challenges to her Honour’s fact finding although under the rubric of prejudgment. It seems to be implied in the submissions that where the appellant’s account of events was not accepted or more particularly where the complexion sought to be attributed to various circumstances advanced by the appellant were not accepted, it was by reason of her Honour not having an open mind.
To give but one example of asserted error, reference was made to her Honour’s finding at [39] in which she rejects the appellant’s assertion that the father had “violently attacked” her. The submission accompanying this particular point is not easy to understand and there is little light to be shed by setting it out here in full, however it appears that the thrust of the submission is that her Honour failed to appreciate that there is a difference between the father “raising his hand” to the appellant and “violently attacking her”.
The genesis of this allegation is in an incident which occurred in mid-2018, which itself is the subject of a ground of appeal (Ground 3). The appellant recounts what happened on this evening in her affidavit. She said that she went to the father’s house with food that she had cooked for the children and things that they had left at her house when they had stayed with her the previous day. On her knocks on the door being unanswered she entered the house and went inside.[31] She said:
138.As I was putting dinner on the table, [the father] and his friend, [Mr S], came in from the back patio with beer bottles in their hands. They looked shabby and happy. I smelled alcohol and smoke on [the father].
139.[The father] started yelling at me “Get out of my house” and “Never come into this house unannounced.” I was numb and said nothing.
140.[The father] started moving towards me with his free hand raised, the one not holding a beer bottle. I believed [the father] was going to hit me because his hand was raised, he was moving towards me, his voice and face were agitated. At that point, I was extremely fearful of [the father].
[31] Appellant’s affidavit filed 13 August 2020, paragraphs 136–137.
The appellant told the father that she was going to report him to the police. On her return home, she made a report to the police because, she said she felt unsafe and “I hoped that if I was hurt by [the father] in the future, the Police would know who did it to me”.[32]
[32] Appellant’s affidavit filed 13 August 2020, paragraph 149.
The appellant was cross-examined on letters she sent to the coroner. In one, she referred to the incident in mid-2018 and she agreed that the letter contains no mention of the father raising his hand to her.[33] A little later, on the same point, the appellant said that while there was nothing in the letter about the father raising his hand to her, she said she wrote to the coroner what she could recall at that particular moment, which she agreed was a matter of days after the event.[34]
[33] Transcript 10 September 2020, p.37 lines 7–8.
[34] Transcript 10 September 2020, p.39 line 31 to p.40 line 3.
The appellant agreed that she told the expert, Dr BB that “[the father] attacked me violently in his house”.[35] She disagreed that her words implied a physical attack and said that there was never any physical attack.[36]
[35] Annexure “I” to Dr BB’s affidavit filed 24 April 2019, p.34.
[36] Transcript 11 September 2020, p.98 lines 11–22.
A little later, in the same cross-examination, Queen’s Counsel for the father referred to the appellant’s assertion that she was “violently attacked” and the appellant said that she did not recall saying “violently”. Despite being asked on a number of occasions whether her assertion was that the father “violently attacked” her or “raised his hand” to her the appellant’s answer was equivocal.[37]
[37] Transcript 11 September 2020, p.100 lines 16–46.
It is important to understand that the fine distinction sought to be advanced, namely that there was a difference between the father “raising his hand” to the appellant and “violently attacking” her was not made during the trial, neither was there cross-examination of the father on this point, nor were any submissions made about it.
This part of the challenge amounts to nothing more than a complaint that the primary judge found against the appellant. The assertion that her Honour failed to bring an impartial mind to the resolution of the facts is not made out.
As we have said Ground 1 seems to be a portmanteau of complaints of errors demonstrating apprehended bias of one kind or another. In aid of the contention of apprehended bias demonstrated in the reasons, the appellant points to the primary judge’s findings about the incident in mid-2018 and her Honour’s findings of fact where they are adverse to the appellant.
Both of these latter complaints are themselves the subject to separate grounds of appeal. However, to the extent that these complaints are said to represent an apprehension of bias, we reject the submission.
Ground 2
Here, the appellant asserts error in that the primary judge failed to give reasons for preferring the father’s evidence over that of the appellant. The ground contends that her Honour’s preference for the father’s evidence was “systemic” [sic] and the submissions contain a table showing where the primary judge preferred the father’s evidence over that of the appellant.
It must be said however, that the force of the argument is diminished by the fact that not one of the factual issues to which this ground relates was the subject of cross-examination by counsel then appearing for the appellant.
On the other hand there was extensive cross-examination of the appellant on her evidence with the result that significant concessions or changes to her evidence were made. We have already referred to the appellant’s evidence about whether the father “violently attacked” her in his house and the various explanations she gave to justify the words used while retreating from there being a physical attack.
Other of the appellant’s responses to cross-examination would well have persuaded her Honour to approach her evidence with significant caution. For example, for a time, the appellant suggested that the father was not the biological father of the older child. When asked whether the father reading her assertions would be distressed, she replied:[38]
[THE APPELLANT]: I said this before, it was in 2018, two years ago. At that time, my way of thinking was different as it is now.
[38] Transcript 10 September 2020, p.55 lines 17–19.
She said she offered the father no apology because “it didn’t matter anymore”, and added “[i]t was clarified and I forgot about it”.[39]
[39] Transcript 10 September 2020, p.55 lines 23–25.
In the appellant’s affidavit in reply to that of the father and in particular in relation to the events in mid-2018 and the presence of Mr S, the appellant said:[40]
I do not recall the children ever talking to me about [Mr S] which indicates that his impact on [the children’s] life is minimal. He frightened me when I saw him in the house in [mid-2018]…
[40] Appellant’s affidavit filed 28 August 2020, p.28.
The appellant was cross-examined on this assertion by reference to her trial affidavit, and the appellant accepted that nowhere in that account did she say she was afraid of Mr S. The appellant said:[41]
[THE APPELLANT]: I wrote what I thought was relevant at the time. I didn’t think it would – one word would make a significant difference. It happened two years ago and I… didn’t pay attention.
[41] Transcript 11 September 2020, p.108 lines 21–25.
The appellant’s evidence was riddled with similar backtracking and self-serving excuses in explanation for inconsistent accounts or to justify the scurrilous allegations she made against the father and his friends.
It is little wonder then that the primary judge preferred the father’s evidence to that of the appellant, particularly so, as we have said, when the father was hardly challenged in cross-examination on his evidence.
This challenge must be dismissed.
Ground 3
This ground refers to the incident that occurred on … 2018 and asserts that her Honour erred having “uncritically accept[ed]” the father’s evidence and in circumstances where it was said, other evidence about the incident was inconsistent with the father’s evidence. We must thus delve into the incident which occurred on … 2018, mere days after the death of the mother.
This encounter was recorded by Mr S, a friend of the father who happened to be in the father’s house at the time. The audio version was played in court during the cross-examination of the appellant. It was not however tendered. At the commencement of the appeal hearing, Queen’s Counsel for the appellant sought to tender the audio version and for the Full Court to listen to it. Queen’s Counsel for the father did not object to this course. The audio file was not then in the courtroom, but it had been sent by email to the court registry. By oversight it was not marked as an exhibit in the appeal. It has however been listened to. It was said that the tone of the interaction between the appellant and the father in the recording contradicts the primary judge’s conclusions about the appellant’s conduct during that encounter. Regrettably we do not agree with Queen’s Counsel’s submissions about the tone of the conversation.
A written transcript of the audio version was prepared and was in evidence before the primary judge. It was the subject of submissions in the appeal and it was marked MFI-1 in the appeal. We have had regard to it in the course of considering the submissions on this ground and on others where the events in mid-2018 are said to be relevant.
We have at [84] and [85] set out the appellant’s version of this incident and there is no need to repeat it.
The father gave evidence about this incident. His account differs significantly from that of the appellant as to the beginning of their encounter.
It is hardly unusual for there to be competing versions of events in family law proceedings especially when the incident occurred at a time of heightened emotion. In this case, Mr S was present and used his mobile phone to record part of the interaction. He swore an affidavit in the proceedings and produced the audio recording. His account closely accords with that of the father, in particular in relation to the appellant’s comments about being “busted” and that she threatened to report him to the police.[42] Mr S said that at a point in the interaction, the appellant walked outside. He said:[43]
16.I was greatly alarmed and surprised by [the appellant’s] aggressive behaviour. So much so, that upon her return to the house, I started recording on my phone…
[42] Mr S’s affidavit filed 20 August 2020, paragraph 14.
[43] Mr S’s affidavit filed 20 August 2020, paragraph 16.
Mr S continued and set out the conversation between the appellant and the father. He was not required for cross-examination. More particularly there was no cross-examination of the father about his version of events of that evening.
Turning then to the primary judge’s reasons, Her Honour recounted the events of that night in accordance with the evidence of the father and Mr S.
The challenge to her Honour’s acceptance of this account was said to be her “uncritically accepting” the father’s affidavit even where there were discrepancies between his account and the transcript of the recorded conversation. It was further contended that in not having the whole of the audio recording in evidence before her, it rendered her findings unsafe.
Dealing with this second point first, although parts of the audio version were played to the appellant during her cross-examination it was not tendered as an exhibit in the trial. At the conclusion of the cross-examination, Queen’s Counsel for the father asked whether the primary judge required the audio version to be tendered. Her Honour asked whether there was an issue about the “tone of voice”, noting that she had the written transcript. The audio version was not tendered and counsel then acting for the appellant did not press for it to be tendered. Once again, this is a challenge unrelated to the way in which the trial was conducted by counsel then acting for the appellant.
It appears that by this ground, the father’s credibility was sought to be impugned because his version of events differed from what was set out in the transcript of the recording. Given that the father was not challenged on his evidence about this event in any way, this aspect of the ground should be dismissed without further discussion. However, that there are discrepancies between two witnesses accounts of the one event, does not, without more speak to a want of credibility. In M v The Queen (1994) 181 CLR 487 at 534 McHugh J said:
It is the everyday experience of the courts that honest witnesses are frequently in error about the details of events. The more accounts that they are asked to give the greater is the chance that there will be discrepancies about details and even inconsistencies in the various accounts. Of course, it is legitimate to test the honesty or accuracy of a witness’s evidence by analyzing the discrepancies and inconsistencies in his or her accounts of an incident. In a case where accuracy of recollection is vital – such as the account of a conversation in a fraud case or the description of a person where identity is the issue – discrepancies and inconsistencies in the witness’s account may make it impossible to accept that person’s evidence, no matter how honest he or she appears to be. But in other cases, discrepancies and inconsistencies may be of far less importance if the honesty of the witness, as opposed to the accuracy of the detail, is the crucial issue…
Here, of course, there was no testing of the father’s recollection of the event in mid-2018, and there can be no basis in this appeal for suggesting that his credibility was wanting nor that he was not an honest witness.
The written argument on this ground is lengthy and provides particulars of the challenge. For example, the primary judge’s finding at [36] that the appellant ignored the father’s requests that she leave the father’s residence is challenged and it is said: “[t]he objective evidence is that the [appellant] was respectful of the father’s boundaries, rather than overstepping them”. It is further asserted that the appellant “responds to the father’s question appropriately”.[44]
[44] Appellant’s Summary of Argument filed 5 March 2021, paragraph 17.
This does not demonstrate that her Honour’s finding is wrong. This and the other particulars of the ground are challenges to the primary judge’s fact finding.
In essence then, the ground challenges fact finding and more particularly the complexion placed on the facts and circumstances of the events in mid-2018 or generally in the trial. It was not suggested that the facts found by the primary judge were not open on the evidence before her nor, in our view could that submission have been made. Equally too, to the extent that the ground challenges the apportionment of weight given to evidence, a matter quintessentially for the primary judge, it must fail because it was not suggested that her Honour’s conclusions were plainly wrong. Merely to assert as the submission does, that the appellant was “respectful” of the father’s boundaries is to complain that the primary judge came to a conclusion adverse to the appellant.
Finally, it was never revealed how not having had the whole of the audio version before her made her Honour’s conclusions unsafe.
The balance of the submissions similarly challenge her Honour’s conclusions about what she heard and proffer different conclusions that were available. That another conclusion might be available from the audio version of the events, is insufficient to engage appellate intervention.
In Gronow v Gronow (1979) 144 CLR 513 (“Gronow”) where Stephen J at 519–520 held:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight…
No error is shown in this ground.
Ground 4
Here it is argued that the primary judge attached “undue weight” to the evidence in concluding that the appellant posed a risk of emotional harm to the children through exposing them to her negative views of the father where there was evidence to the contrary.
A principal issue before her Honour was whether the appellant could and would contain her negative views about the father and thus shield the children from them. Counsel then appearing for the appellant submitted to the primary judge that the issue “comes down to” whether the appellant had the capacity to contain her emotions while with the children. It was argued that in the first three months after the death of the mother, the appellant was grieving and vulnerable to making her feelings about the father known, although it was submitted that she had not said anything to the children (a point on which, as the primary judge pointed out in submissions, there was no evidence either way).[45]
[45] Transcript 14 September 2020, p.248 line 27 to p.249 line 5.
The primary judge rejected the argument that the appellant’s conduct to the father and the allegations she made about him to various people and authorities was driven by the grief of the mother’s death (at [28]).
The primary judge, after concluding that none of the appellant’s allegations was accepted by the police or other authorities, noted that even to the date of the hearing, the appellant maintained her criticisms of the father and his parenting style (at [73]–[74]).
After referring to the submission that there was no evidence that the appellant had shared her views with the children and on that basis it could not be found that she would in the future, her Honour said:
79.A long time has passed since the [appellant] spent time with the children and one might have hoped that her presentation during the trial would provide some level of comfort that her vitriol towards the father had dissipated. Sadly, nothing about the [appellant’s] evidence at trial and the manner in which she gave her evidence gave me any reason to think that the children would not be exposed to her negative views if given the chance. The [appellant] was dismissive of the father’s response to her past behaviour, suggesting basically that he should get over it. What was particularly striking about the [appellant’s] demeanour and responses during cross-examination was the complete and utter lack of empathy or insight. Such a lack of empathy and insight increases the risk of harm to the children were they to spend time with the [appellant] because she does not have the sensitivity to see the potential for harm. While I can accept that the [appellant] would not intentionally expose the children to her negative views of the father, and may have the intellectual capacity to recognise the potential for harm, in my view, she does not have the emotional capacity.
There was expert evidence to support her Honour’s view, including that of the Family Report writer who observed that the appellant continued to hold negative views of the father and who expressed her concern that at a subconscious level, those feelings would inform her actions and comments to the children about the father (at [80]).
It was not argued that the evidence did not support the primary judge’s conclusions, but rather that her Honour gave too much weight on the perceived risk to the children without considering the evidence of amelioration of that risk. That evidence, it was submitted, was Dr BB’s opinion that the appellant had the capacity to contain herself and, he agreed that in the first period after the mother’s death the appellant’s conduct would have been significantly influenced by grief.
It was further argued that the appellant’s current views were affected by being in the final stages of “high-intensity, long-running litigation” in circumstances where she had not seen the children for some time.[46] We pause to observe that this was not the basis on which the case was run. The appellant’s case before the primary judge was that she had “moved on” and she was different immediately after the mother’s death to how she then was. For that reason, we do not propose to consider this submission further.
[46] Appellant’s Summary of Argument filed 5 March 2021, paragraph 30(d).
In short, it was argued that her Honour could have come to a different view of the evidence. No doubt she could have, but that does not enliven appellate intervention as our earlier reference to Gronow makes plain.[47]
[47] See also House v The King (1936) 55 CLR 499.
Finally it was argued that her Honour gave “short shrift” to any suggestion of supervision of time between the children and the appellant.[48] In the written argument on behalf of the appellant before the primary judge, and as part of a general discussion of amelioration of an identified risk of harm, a number of options available to mitigate that identified risk including supervision, was referred to although the submissions concluded by submitting that no risk existed.[49]
[48] Appellant’s Summary of Argument filed 5 March 2021, paragraph 31.
[49] Appellant’s Written Submissions dated 14 September 2020, pp.792–793.
The Independent Children’s Lawyer submitted that there should be supervised time between the appellant and the children four times a year on which she would be able to give them a gift and card. However, that submission was subject to the caveat whether the primary judge was satisfied that the appellant would not express her views in front of the children.
Her Honour found that there was a risk that the appellant would either consciously or subconsciously reveal to the children her feelings about the father. Her Honour found that this would not be in the children’s best interests. That conclusion was well open to her and no error is demonstrated in this ground.
Ground 5
It was the father’s position before the primary judge that the circumstances of the mother’s death and the appellant’s allegations against him had caused him significant stress and anxiety. Further, he said his anxiety was increased by the appellant’s insistent requests for time with the children against a background, he said, of difficulties he and the mother experienced with the appellant making similar insistent demands. The father said that he also experienced physical symptoms such as chest pain and he felt that he was unable to attend to the children as he would have liked.
The father became a patient of a clinical psychologist whose report was before the primary judge. She said that the father presented with significant symptoms of depression and an ongoing grief reaction to the death of the mother and his functioning was significantly impacted by his symptoms. He remains a patient of that psychologist.
The father’s case was that to reintroduce the appellant into the children’s lives would be a significant source of stress and it would operate to impair his ability to care for the children.
Counsel then appearing for the appellant submitted to the primary judge that she should nevertheless reintroduce the appellant to the children and he relied on the evidence of the father’s psychologist who said that the litigation was a significant source of stress on the father and once that was over he would be in a better position to deal with the appellant in his life. He further relied on Dr BB’s evidence that the father was “resilient”.[50]
[50] Transcript 14 September 2020, p.252 lines 1–8.
Thus he submitted:[51]
[COUNSEL FOR THE APPELLANT]: [The father] is on antidepressant medication that assists him as well. So my respect for [sic] submission, your Honour, in terms of the father’s health being impacted by the children spending time with the [appellant]… it’s my respect for [sic] submission that the father’s health should not be a significant risk factor. He had given the fact that the orders that have been sought by the [appellant] places her at a significant distance from the father…
[51] Transcript 14 September 2020, p.252 lines 20–26.
The primary judge considered the impact on the father of resumed contact between the appellant and the children (at [98]) and concluded that the children need the father to be functioning, attentive and loving and her Honour concluded that this would be put at risk if the appellant was reintroduced into the children’s lives (at [99]).
In the challenge to her Honour’s conclusion, it was argued that while she accepted the evidence of the father’s psychologist that if the court ordered contact between the children and the appellant, his mental health may regress and his mood may worsen,[52] her Honour failed to take into account the evidence of Dr BB that if his mood did worsen, it could be “managed” by medication and attendances on his psychologist.[53] Dr BB said:[54]
[DR BB]: … I think the father has actually shown remarkable resilience, given these terrible circumstances and I think that that’s a credit to him. I think, of course, the death of his wife would have had a more profound effect on him than any proposal for the children to see the children [sic] the [appellant] would be my view, but that’s a speculation and trying to predict the future, which is always difficult. I would add, however, that if it’s true that the father did develop a major depressive disorder that there is a risk, I guess – with any ongoing stressors, that that disorder could return because it suggests an underlying biological propensity to that form of illness and the father would need ongoing monitoring and appropriate treatment for that if that was to occur.
[52] Transcript 14 September 2020, p.172 lines 39–47.
[53] Transcript 14 September 2020, p.201 lines 1–4.
[54] Transcript 14 September 2020, p.200 lines 33–42.
Dr BB, when asked if the father’s mental state was to regress whether it could be managed by medication and therapy, to which he said: “I would think so, yes”.[55]
[55] Transcript 14 September 2020, p.201 lines 3–4.
Her Honour’s reasons on this issue are extensive and traverse not only the stress in the family’s life since the death of the mother but the stress experienced by them from times well before including the father’s description of the relationship with the appellant being troubled for both him and the mother. Her Honour took into account all of these factors in determining whether to reintroduce the appellant to the children’s lives.
Her Honour’s reasons clearly pay attention to the relevant facts including the threat to the father’s mental health if the appellant was reintroduced to the children’s lives and her conclusion was one well open to her.[56] No error has been established.
[56] See Edwards v Noble (1971) 125 CLR 296 at 304.
Ground 6
This ground asserts; “Her Honour fell into error by failing to express in the Reasons how the legislative pathway was applied”. It was conceded, as it had to have been, that her Honour under a heading “Applicable Legal Principles” set out the relevant law to be applied to the case before her and, in an admirably summary way, expressed the guiding and other principles to be addressed.
The ground does not challenge the accuracy of her Honour’s summary of the applicable law nor does it contend that she erred in law in any respect. It was argued that she erred in not taking those sections into account in a “systematic way” thus leaving the reader to “join the dots” between the statutory regime and the reasons.[57] The submissions then segue to complain about the paucity of reasons. Quite how her Honour erred was not revealed in the written argument.
[57] Appellant’s Summary of Argument filed 5 March 2021, paragraph 35.
In oral submissions, Queen’s Counsel for the appellant identified her Honour’s errors as “not having regard to the positive relationship that existed before” as between the appellant and the children and the recognition of the appellant’s culture and language.[58] It was submitted had her Honour followed the pathway “in a proper way” she would have had regard to these matters.
[58] Transcript 11 May 2021, p.58 lines 15–23.
At several places in the reasons, the primary judge acknowledged that the appellant had a warm and meaningful relationship with the children (at [6] and [15]). As to the children’s cultural heritage there was an abundance of evidence from the father about the steps he had taken to inform the children of their mother’s heritage.[59] The father was not challenged on this evidence nor was it suggested that the steps he had taken and those he proposed would be inadequate for the purpose.
[59] See father’s affidavit filed 21 August 2020, paragraph 380.
This ground is not made out.
None of the asserted challenges to her Honour’s order having been established, the appeal will be dismissed.
COSTS
Despite the clearest of directions made by the appeal registrar that any party wishing to make an application for costs in the appeal, must file and serve a schedule of costs prepared in accordance with Sch 3 to the Family Law Rules 2004 (Cth), neither the appellant’s nor the father’s document complied with the direction. However, Queen’s Counsel for the appellant and for the father agreed that the Full Court could, if costs were to be ordered, fix a figure it regarded as appropriate. Counsel for the Independent Children’s Lawyer filed a schedule of costs constrained by the fees paid by Legal Aid, in the sum of $4,161.90 (excluding GST) and sought those costs in the event that the appeal was dismissed.
Queen’s Counsel for the appellant properly conceded that if the appeal was dismissed he could not argue against a costs order.
The schedule of costs for the father, sought a total of $31,295.37. We are of the view that it is an appropriate and reasonable figure and we will order the appellant to pay those costs. So too the costs of the Independent Children’s Lawyer should be paid by the appellant.
Thus we will order the appellant to pay the Independent Children’s Lawyer’s costs in the sum of $4,161.90 and pay the father’s costs in the sum of $31,295.37.
I certify that the preceding one hundred and sixty-one (161) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Ainslie-Wallace, Austin & Tree. Associate:
Dated: 22 July 2021
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