Fortnum & Fortnum (No. 3)
[2008] FamCAFC 133
•4 September 2008
FAMILY COURT OF AUSTRALIA
| FORTNUM & FORTNUM (NO. 3) | [2008] FamCAFC 133 |
| FAMILY LAW – APPEAL – No material error of finding vitiating exercise of discretion established; House v The King (1936) 55 CLR 499 applied. Allegations of bias and bullying by trial Judge not established. Complaints in relation to denial of natural justice not established. |
| Family Law Act 1975 (Cth) Section 68F(2) |
Australian Coal & Shale Employee’s Federation & The Commonwealth (1953) 94 CLR 621 (at 627)
House v The King (1936) 55 CLR 499
Norbis v Norbis (1986) 161 CLR 513
CDJ v VAJ (1998) 197 CLR 172
Gronow v Gronow (1979) 144 CLR 513
Abalos v Australian Postal Commission (1990) 171 CLR 167
Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472
Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588
Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705
Ramsay v Watson (1961) 108 CLR 642
Briginshaw v Briginshaw (1938) 60 CLR 336
Longman v R (1989) 168 CLR 79
M & M (1988) 166 CLR 69
R v Maxwell (1998) 217 ALR 452
McCrossen and McCrossen (2006) FLC 93-283
Guinness and Guinness [2008] FamCAFC 10
| APPELLANT: | MR FORTNUM |
| RESPONDENT: | MRS FORTNUM |
| INDEPENDENT CHILDREN’S LAWYER: | LAURIE ROBERTSON |
| FILE NUMBER: | SYF | 631 | of | 2002 |
| APPEAL NUMBERS: | EA EA | 66 18 | of of | 2006 |
| DATE DELIVERED: | 4 September 2008 |
| PLACE DELIVERED: | Parramatta |
| JUDGMENT OF: | FAULKS DCJ, COLEMAN & CRONIN JJ |
| HEARING DATE: | 6 June 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 June 2006 |
| LOWER COURT MNC: | [2006] FamCA 524 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Litigant in person |
| SOLICITOR FOR THE APPELLANT: | Litigant in person |
| COUNSEL FOR THE RESPONDENT: | Mr Moss |
| SOLICITOR FOR THE RESPONDENT: | DGB Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Ward |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Robertson Solicitors |
Orders
That the parenting appeal be dismissed.
That within twenty-one (21) days the respondent wife file and serve submissions in support of any application for costs of the parenting appeal.
That within twenty-one (21) days thereafter the appellant husband file and serve submissions in response to the submissions on behalf of the respondent wife in relation to the costs of the parenting appeal.
That within fifty-six (56) days the husband file and serve submissions in support of his appeal against the order for costs made against him by the trial Judge.
That within twenty-eight (28) days thereafter the wife and the ICL file and serve submissions in answer to such submissions.
That within fourteen (14) days thereafter the husband file and serve submissions in reply to the submissions of the wife and the ICL.
IT IS NOTED that publication of this judgment under the pseudonym Fortnum & Fortnum (No. 3) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Numbers: EA 66 of 2006 and EA 18 of 2007
File Number: SYF 631 of 2002
| MR FORTNUM |
Appellant
And
| MRS FORTNUM |
Respondent
REASONS FOR JUDGMENT
By Amended Notice of Appeal filed 2 May 2008 Mr Fortnum (“the husband”) appealed against orders made by Cohen J on 31 May 2006 in parenting proceedings between the husband and Mrs Fortnum (“the wife”).
Although the Amended Notice of Appeal, and the cover sheet to the Court’s orders, suggest the substantive orders were made by the trial Judge on 31 May 2006, it is clear from other parts of the record that judgment was delivered and orders made on 16 June 2006. Nothing turns on that for present purposes.
The effect of the trial Judge’s orders was that the parties’ child H, who is now aged 11½, reside with the wife and that the husband have “no contact whatsoever with the said child” and be restrained “from directly or by his agent having or attempting to have contact with or intentionally coming within sight or hearing of the said child, his home, his school or any other place where he is known to be or frequent”. A number of ancillary orders were also made by the trial Judge.
In lieu of the trial Judge’s orders, the husband seeks that “orders be made with the aim of a gradual re-introduction of a contact regime” between the child and the husband, “the manner, frequency and duration of the contact to be determined in line with the best, long term interests of the child”.
The wife resisted the husband’s appeal and sought to maintain the trial Judge’s orders. The wife sought an order for costs against the husband.
The Independent Children’s Lawyer (ICL) also resisted the husband’s appeal and sought to maintain the trial Judge’s orders. The ICL also sought an order for the costs of the appeal.
By Notice of Appeal filed 19 February 2007 the husband appealed against an order made by Cohen J on 22 January 2007 that the husband pay the wife’s and the ICL’s costs of the parenting proceedings which he had determined in June 2006.
On 28 February 2007 Boland J ordered that the husband’s costs appeal be heard “immediately after” the husband’s appeal against the trial Judge’s parenting orders. Both the wife and the ICL resisted the husband’s appeal against the orders for costs of 22 January 2007. It was agreed at the hearing of the husband’s appeal with respect to the parenting proceedings that his costs appeal be determined after the judgment in the parenting proceedings was delivered.
Background
The parenting proceedings before the trial Judge related to the one child of the former relationship of the parties to whom reference has been made. In those proceedings the wife sought that any face-to-face contact the husband had with the child be supervised but that telephone contact between the husband and the child be unsupervised.
The husband sought that the child spend equal or nearly equal periods with each parent in a week-about regime. The wife sought that she have sole parental responsibility for the child. The husband sought that parental responsibility be equal with respect to major aspects of the child’s upbringing and that the party with whom the child was residing at any particular time have responsibility for his immediate care.
The parties commenced cohabitation in 1990, married in 1995 and separated under the one roof in April 2002. The parties finally completely separated in September 2002. At all material times since the parties separated in 2002 their child, who was then aged 6 has lived with the wife. The wife was aged 46 at the date of the trial Judge’s judgment and the husband was aged 53.
The husband had contact pursuant to court orders until January 2003. In March 2003 Lawrie J ordered that the husband have supervised contact for two hours each week and daily telephone contact which was not required to be supervised.
The husband did not exercise the supervised contact ordered by Lawrie J and has seen the child on only two or three occasions subsequent to April 2003.
Relevant Legal Principles
It is convenient at this stage to identify the principles that govern an appeal from a discretionary judgment.
The presumption that a trial Judge’s decision is correct is outlined by Kitto J in Australian Coal & Shale Employee’s Federation & The Commonwealth (1953) 94 CLR 621 (at 627):
I shall not repeat the references I made in Lovell v Lovell (1950) 81 CLR 513, at pp 532–534 to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.
The husband thus bears the onus of demonstrating that his Honour’s decision was “clearly wrong”.
In House v The King (1936) 55 CLR 499 the High Court said at 504-505:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In Norbis v Norbis (1986) 161 CLR 513 Brennan J said at 539 – 540:
The difficulties in the way of developing guidelines beset an appellate review of the exercise of discretion under s.79. Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made is not just and equitable. How does the Full Court arrive at that conclusion? In Bellenden (formerly Satterthwaite) v. Satterthwaite [1948] 1 All ER 343 at p.345 Asquith LJ stated the rationale of an appellate court’s approach:
“…It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
In CDJ v VAJ (1998) 197 CLR 172, Kirby J said at 230 – 231:
Discretionary and evaluative decisions
186.A number of general propositions may be stated:
1. Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
2. Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the W of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.
The words of Stephen J in Gronow v Gronow (1979) 144 CLR 513, at 519-20 are apposite in the circumstances of this appeal. His Honour there said:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. 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.
The well known principles regarding the trial Judge’s advantage are pertinent to this case. In Abalos v Australian Postal Commission (1990) 171 CLR 167 (at 178) McHugh J (with whom Mason CJ, Deane, Dawson and Gaudron JJ concurred) referred to “the power of the Court of Appeal” and to the judgment of Lord Sumner in SSHontestroom v SS Sagaporack [1927] A.C. 37 (at 47):
…not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.
His Honour said:
Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied “that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion. Watt or Thomas v. Thomas [1947] A.C. 484, at p. 488 (at 178).
His Honour further said:
…when a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his or her determination cannot be overlooked. (at 179).
In Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472 (at 479) Brennan, Gaudron and McHugh JJ observed:
More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”. (at 479).
In Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588 (“Earthline”), having extensively reviewed the history of “Appellate review of facts”, and the “Emphasis on the duty of appellate review and its constraints”, Kirby J explained “the trial judge’s real advantages” in relation to the credit of witnesses. In the course of his judgment (619, paragraph 90) his Honour said:
The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary of electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge. These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge was driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified. (at 619).
The trial Judge’s judgment
Having identified the competing proposals and the background to which we have referred, the trial Judge referred to the evidence before him of two adult children of the husband’s first marriage, they being his daughter L and his son S.
The trial Judge recorded with respect to those children that:
11.…Their evidence was in support of the wife’s case, as was the evidence of Ms [W], a psychologist who has been an expert witness in proceedings Ms [Fortnum] is conducting in the Northern Territory under its criminal injuries compensation legislation. Ms [Fortnum] is seeking compensation for criminal harm she alleges the husband has perpetrated on her. She is aged 28 years and married. She claims that as a child she feared her father because he hit and intimidated her, especially when Mrs [Fortnum] was absent. She says that on one occasion when she was very small, he raped her with the handle of a hairbrush. More importantly, she claims that, at the age of about 12, the husband took part in a conspiracy with a friend or acquaintance of his who Ms [Fortnum] knew as [V] to have [V] rape her to prepare her for constant sexual abuse by each man. The husband and [V] are alleged to have, thereafter, raped her on many occasions, sometimes after she had been drugged by injection. The rapes were usually vaginal, but the husband also anally and orally raped her. She says the husband usually assisted or actively took part in her rape by [V]. She was vaginally raped by [V] with the barrel of a pistol. This was intended to terrify her. She alleges that [V] and the husband perpetrated other grossly cruel and terrifying acts on her and [V] took pornographic photographs of her with the husband’s collaboration, sometimes forcing her to pose for them. The husband is said to have injected her with a drug designed to make her less resistant or to interfere with her ability to relate her experiences. One of the reasons why Ms [Fortnum] says she did not recall these incidents and/or tell anybody of them is that they were accompanied by threats to kill her from both [V] and her father. A reason she gives for not avoiding the husband is that she was required by Orders of this Court to have contact with him and believed she would have to live with him if she did not comply with the contact orders. It is clear that, in all the terrible things which are alleged to have befallen this witness, the husband is said not only to have been a willing and active participant but to have been an instigator.
His Honour also recorded:
12.The allegations against the husband are not limited to allegations that he has harmed Ms [Fortnum]. [S Fortnum], now aged 26 years and married, according to Ms [Fortnum], was twice raped by the husband, once anally, when he was about 13 years of age. [S Fortnum] says he lived in fear of the husband as a child but does not recall being raped. He does not deny being raped and says that he believes Ms [Fortnum’s] version of such events. Ms [Fortnum] says she was present and saw the rapes. When asked why he believes it when he cannot recall being raped, [S Fortnum] said he believed the father would be capable of such behaviour because of the type of man he knew him to be. He has refused to have contact with the husband for some time. He does not wish to have contact with him in future. It should be made clear that [S Fortnum’s] beliefs are relevant, not because they are admissible to directly bear on the truth of Ms [Fortnum’s] allegations about her father but because they are relevant to determining whether [S Fortnum’s] lack of recall of the events which Ms [Fortnum] says befell him is consistent with Ms [Fortnum’s] version of them.
The trial Judge referred to evidence given by the husband’s first wife […] and recorded:
14.…she says, not aware of any sexual abuse of her children. She confirmed that the allegations relate to a time after the parties separated and that nothing Ms [Fortnum] now says is inconsistent with what she knows from her own direct experience to have occurred. She has only fairly recently learnt of Ms [Fortnum’s] allegations. She said that the husband did use excessive force and modes of intimidation so that Ms [Fortnum] and [S Fortnum] feared him when they were children.
The trial Judge referred to the evidence of Dr N, the Order 30A expert who “remained in Court during the whole” of Ms Fortnum’s evidence, having previously read the affidavits of S Fortnum and the husband’s first wife. The trial Judge recorded Dr N’s evidence that:
15.…there was nothing in what Ms [Fortnum] said in evidence which was inconsistent with her claims or presentation and that she did not appear to be affected by any psychological, psychiatric condition or anything else which might cause or influence her to fabricate her allegations. She is satisfied that Ms [Fortnum] has been the victim of severe trauma as a child; trauma such as that which she has described.
Reference was then made to the evidence of Ms W who the trial Judge concluded was:
16.…a clinical psychologist who has had many years of experience with both victims and perpetrators of sexual assaults and abuse. Her experience with paedophiles has been both therapeutic and clinical. She impressed me as an objective expert despite having been engaged by Ms [Fortnum’s] solicitors to assist in the conduct of her victim’s compensation claim. I regard her as an exceptionally credible and convincing witness who is thoughtful, insightful and analytical in reaching her opinions. She seems to have brought no prejudices, dogma nor fashionable ideology into her assessment of Ms [Fortnum] or the husband. She has relied on learning, experience and realism to form her opinions.
His Honour recorded Ms W’s opinion:
17.…that Ms [Fortnum’s] allegations are true and that the husband is a sadistic paedophile who, if given the opportunity, is likely to do to [H] what he had already done to two of his children; violate and abuse them to punish their mother, who had rejected him, and satisfy his own perverted needs. Her evidence is very convincing and compelling. The wife also rejected the husband. According to her, he has threatened retribution.
The trial Judge also recorded:
18.I have read all the material which is before the Court in relation to Ms [Fortnum’s] history of emotional dysfunction from about the age of 12 years. There is simply no suggestion by any of those who examined or treated her that she is a liar or suffers from any condition or has any syndrome of characteristics which include any propensity to be deluded or the type of liar she must be if her allegations are untrue.
The wife relied in support of her case upon her having:
19.…always been [H’s] primary carer and is his primary attachment, that [H] wishes to live principally with her, that the father [husband] has hit and commenced to intimidate [H] and has already started to groom him for sexual abuse.
The trial Judge considered that:
20.The wife’s stance recognises the fact that [H] is attached to the husband, despite having seen little of him in the 6 months prior to the hearing, and wants to have face to face contact with him and to continue their telephone contact.
Of the husband’s case, the trial Judge said:
21.The husband denies all wrongdoing. He specifically denies Ms [Fortnum’s] allegations and that he poses any danger to [H]. He relies on the fact that he has not been charged with any criminal offence which might have been involved in Ms [Fortnum’s] allegations and that it is not suggested that he has ever been convicted of a relevant criminal offence. In addition, he says that [H] has a strong need for a good relationship with both parents and wishes to see much more of him. He says he was the primary care giver, from when [H] was about 1 year old, for 3 years. He decries the fact that he is being undermined in [H’s] eyes by the wife and others; usually females who are involved at the periphery in these proceedings such as counsellors, medical and psychological experts, school teachers and potential supervisors.
His Honour also recorded:
22.He asserts that, as the wife knows the allegations against him are untrue yet relies on them, there is reason to fear that the wife will continue to manipulate [H] to undermine his relationship with him. He says any complaints that the wife has about his care of [H] relate to the differing parenting styles each parent has adopted, where one is not preferable to the other. The husband argues that [H’s] needs a male role model, that he is the most appropriate model and, therefore, has an important beneficial part to play in [H’s] life and should not be excluded from it. He blames the wife for withholding contact between [H] and himself and makes the point that such withholding, in view of [H’s] need for more contact, amounts to psychological violence and abuse being perpetrated on [H] by the wife. He also claims that the wife has been physically violent towards himself.
The evidence satisfied the trial Judge that the wife was “capable of providing [H] with adequate day to day physical care” but that her ability to protect H from physical and psychological harm was “more open to question”. Notwithstanding that the wife was “now convinced that Ms [Fortnum’s] allegations are true” and thus believed that H should have “no face to face contact with his father [husband] until he is 15 or even 18 years old” the wife was “quite untroubled by the prospect of [H] speaking to his father [husband] by telephone quite frequently and without supervision despite the nature of some of her complaints about the husband’s recent conduct with [H]”.
His Honour considered that the mother lacked “the personal resources, understanding and realism needed to be effective” in protecting H, for reasons which he provided, observing that:
24.The wife impressed me as feeling extremely protective of [H], yet as lacking in the personal resources, understanding and realism needed to be effective in achieving her aim in this respect. She seems to believe that if she follows generalised and completely undirected and non-specific guidelines which she has learnt by rote while in the employ of the various child welfare branches of government departments and the like, this will provide [H] with the wherewithal to protect himself from the husband if he is as predatory, calculating and dangerous as her case asserts. For example, she acknowledges that if it is found that access to [H] by the husband must be restricted for many years because the allegations are found to be of sufficient substance to warrant such a course, she recognises that some form of explanation will have to be provided to [H] and believes it will be so provided and that it is her obligation to provide it, yet she seems to have no idea, nor any germinating thoughts, about how to provide that explanation or what might appropriately be said….
The evidence left the trial Judge with “a high level of dissatisfaction about the wife’s capacity to protect [H] from the dangers to which [H] could well be exposed by the husband if he is as he is portrayed by the wife and remains able to maintain sufficient relationship with [H] to influence him when [H] is of an age when he is capable of acting independently of the wife, without her knowledge and contrary to her wishes and his own best interests.”
Careful consideration was then given to “evidence which the wife has called against the husband which may not be reliable”.
The trial Judge, for reasons which he provided in considerable detail, concluded that a number of H’s drawings which the wife provided to Dr N were “the product of coaching by the wife” and thus “should be given no weight in the wife’s case against the husband”.
His Honour concluded that the drawings:
28.…tend to show something that the wife demonstrated consistently while she was in Court, both in the witness box and while seated behind her counsel; that she is highly emotional and unrestrained in her quest to achieve her ends and cannot be relied on to exercise much insight, good judgement or common sense in attempting to rear [H].
The trial Judge closely considered the “horrific allegations” made by Ms Fortnum against the husband.
The background to the making of those allegations, and his Honour’s assessment of them was stated prior to the particular allegations being examined, his Honour recording that:
30.There is one aspect of Ms [Fortnum’s] allegations which must be understood. It is that Ms [Fortnum] does not claim to have what might be regarded as ordinary recollection of the terrible events she relates. In fact, until March 2002, although she had suffered from a range of psychological psycho-somatic and behavioural problems for about 10 years, and their cause was ultimately regarded as stress related, the cause of the traumatic stress was not known. Although at times she felt she knew of incidents or had flashes of memory, she claims to have had no realistic memory of any sexual abuse or abusive incidents, although she did recognise that the husband had been intimidating and severe in using physical punishment to discipline her; severe enough to make her fearful of him. When she was about 17 years old she had had a feeling that something in her past was remiss but did not have any specific recall. In March 2002 she claims to have had, for the first time, a few scintillas of realistic recall of terrifying past events. These are said to have led her to recall considerably more detail of some of these events. Her recall is alleged to have been evolving and improving by the day when she gave oral evidence in these proceedings now before this Court. By this time she said she recalled quite a few events in detail.
Having referred to the timeframe within which Ms Fortnum’s allegations against her father emerged, the trial Judge turned to examine the allegations and the evidence advanced in support of them. Such examination commenced with events alleged to have occurred in April 1988, the first occasion on which Ms Fortnum alleged that she had been “raped by the husband’s friend”.
His Honour referred to a psychologist report to “the [W] authority” of February 1990 and the report of consultant paediatrician in September 1988, and to the diagnosis reached by each of those professionals.
Reference was also made to Ms Fortnum’s consultations with a Darwin psychiatrist in July 2000.
The trial Judge referred to Dr McL’s letter to Dr W, Ms Fortnum’s GP in May 2002 stating:
44.…
“This young lady continues to improve, but matters have been complicated recently by the emergence of quite a clear recollection of being raped at the age of twelve. This was entirely spontaneous and has made a lot of sense out of certain other memories which have bothered her for years.
I have to point out that I have absolutely no confidence in what is called “recovered memory” and, in particular, do not believe that all adult mental disorder is caused by childhood sexual abuse. The most damaging part of it, however, is that the man was in fact a friend of her father’s and she has a high level of suspicion that her father knew about it.
The trial Judge observed:
45.Despite Dr [McL’s] scepticism about “recovered memory” he still appears to accept Ms [Fortnum’s] story as genuine. It is inherent in what he says that he accepts that childhood sexual abuse can cause “adult mental disorder”.
His Honour recorded:
49.Although it is not necessary to repeat all the detail of Ms [Fortnum’s] allegations against the husband, it is necessary to ensure that a proper understanding of their extent and nature is told because, only with such understanding can one judge whether or not or to what extent Ms [Fortnum] can be believed and, to the extent that she is able to be believed, the level of seriousness of the behaviour by the husband which is alleged. I shall describe the essential elements of the alleged rapes and associated incidents which Ms [Fortnum] claims to recall. I shall only relate some of Ms [Fortnum’s] feelings and symptoms at the time or subsequently because most are not relevant to any decision about whether or not [H] is in danger.
Against that background, there followed a close examination of Ms Fortnum’s allegations against her father in the course of which the first rape alleged by her to have been committed by the husband’s “friend” “[V]” when Ms Fortnum was 12 years of age was referred to in detail.
A number of subsequent incidents during which Ms Fortnum alleged that she had been raped or otherwise abused by the husband and/or “[V]” were then detailed by the trial Judge.
Reference was made to Ms Fortnum having, in October 2002, alleged, for the first time, other occasions when the husband and/or “[V]” had raped or abused her, and those allegations were detailed.
Amongst the allegations made by Ms Fortnum in October 2002 were the allegations that, after the husband raped her in October 1991 he had anally raped his son S whilst “pressing a kitchen knife against [S’s] neck”.
As the trial Judge recorded, S Fortnum, who was “not quite 14 years old” in October 1991, “does not recall the incident”. Reference was then made to Ms Fortnum’s recollection in January 2003 of another occasion in 1991 during which the husband raped Ms Fortnum and then endeavoured to rape S.
Having thus referred to the allegations made by Ms Fortnum, the trial Judge said:
76.To determine if there is an unacceptable risk to [H] or to decide on the probabilities whether Ms [Fortnum’s] allegations are true, I have weighed a number of factors very carefully. I am conscious that, although the onus of proof on the wife is on the balance of probabilities, the allegations are very serious and the consequences to the husband, the wife and to [H] could be extremely grave irrespective of my decision [sic]. I am therefore required to be actually persuaded that the allegations Ms [Fortnum] has made are realistically likely to have occurred (see Briginshaw v Briginshaw (1938) 60 CLR 336) if I am to conclude that they probably did happen rather than that there is an unacceptable risk.
The demeanour of the husband during the trial was commented upon by the trial Judge in the following terms:
78.During the hearing the husband seemed to me to enjoy listening to Ms [Fortnum] repeat her descriptions of some of the alleged rapes, including that of [S]. He seemed to be unstressed by the proceedings, even blasé, despite telling me that they did cause him stress. At times he was flippant and light hearted during Ms [Fortnum’s] evidence. He seemed to relish the opportunity to cross-examine her. Whether she had made up her story or not, one would not expect this, but the object of his cross-examination seemed to be even more inconsistent with his innocence. Often it seemed to be directed more at self-justification than self-defence. He is canny enough to appreciate the difference but did not seem to be able to resist this urge. The husband is quite intelligent. He could not help but know the truth. If Ms [Fortnum] was being truthful, one might understand why the husband appeared to enjoy himself so much. If she was being untruthful, one could only conclude that she is extremely psychologically disturbed. One would not expect a normal father, as Mr [Fortnum] claims to be, to enjoy having to cross-examine his disturbed daughter even if he needed to do so to clear his name of horrific allegations.
The basis upon which the trial Judge considered that the husband denied Ms Fortnum’s allegations was described by the trial Judge in the following terms:
79.The only reasons the husband proffered as to why Ms [Fortnum] might seek to harm him without justification are greed or an inability to discriminate between reality and imagination. He says he has never known anyone of [V’s] description although he knew a [V] of a different description. The husband’s denial of Ms [Fortnum’s] allegations is little more than that. It is not supported by much detail which might assist his case. His defence is largely based on theories about the availability of information on the internet or from books which might permit Ms [Fortnum] to falsify her allegations or are at the root of delusions or false memories about his behaviour. He relies strongly on the fact that Ms [Fortnum] could have disclosed the occurrences to protect herself and could have avoided him but did not do so. He points out that Ms [Fortnum] says she never ran away or tried to escape. She not only did not attempt to avoid him but chose to live with him for a short period of time. He made the point that despite saying in evidence that she believed she had her mother’s love and support, she did not confide in her. These factors make Ms [Fortnum’s] stories inherently unbelievable, according to Mr [Fortnum].
For reasons which he detailed, the trial Judge regarded Dr N’s evidence that there was “nothing inconsistent in what Ms [Fortnum] and S Fortnum] said” to be “highly likely to be correct and as a verification of the consistency of Ms [Fortnum’s] and [S Fortnum’s] claims and current learning on the affects [sic] of extreme trauma, the validity of claims of memory loss of traumatic events; what is commonly known as repressed memory, the possibility of recovery of memories which have been repressed and the manner of their recovery”.
In support of that conclusion, his Honour referred in some detail to particular evidence Dr N had given, recording that:
82.…She said “I am prepared to say that I believe her account to be consistent with someone who has experienced significant trauma – that it is highly likely that she has experienced significant trauma of the type described”. This evidence could not be much more specific in verification of the consistency between Ms [Fortnum’s] claims and her claimed reactions to symptoms. I asked Dr [N] if there was anything in Ms [Fortnum’s] presentation to lead her to believe Ms [Fortnum] is suffering from any mental or emotional condition which was not caused by terrible trauma. Dr [N’s] answer included this opinion “She did not appear on clinical grounds to be suffering from any additional mental disorder or mental condition which might account for the allegations she was making”.
Having considered Dr N’s evidence, the trial Judge recorded that:
83.It is not often that a judge, when faced with a story which might at first acquaintance seem to border on the incredible, can receive credible expert evidence which can actually be used on the issue of credit. This is the case here. It would be equally incredible if Ms [Fortnum] was able, after many years of treatment, treatment which commenced when she was about 12 years old, to fabricate a story for financial gain which is completely consistent with medical knowledge. Ms [Fortnum] is very intelligent. She is not that intelligent. If her story were merely the result of delusion it would be quite unlikely that she would be seen by an expert to have acted consistently with its truth.
The evidence of Ms W, “a Clinical Psychologist with 20 years experience” with “specialised training”, “much practical clinical experience in sexual abuse in the family context”, and a “Masters Degree in Family Therapy” “with a research thesis on intra-familial sexual abuse”, was considered in detail by the trial Judge.
At the outset, the trial Judge recorded that “it cannot be overlooked that she [Ms W] originally assumed that what Ms [Fortnum] told her is the truth” but nevertheless “tested her story against her expert understanding of the expected behaviour of perpetrators and their victims”.
For reasons which he detailed, the trial Judge accepted Ms W’s expert opinion evidence with respect to the husband and the consistency between Ms W’s observations and his own “impressions of an aspect of the way the husband conducted himself before me.” His Honour recorded:
98.I accept Ms [W’s] opinion that the husband is a sadistic paedophile. He is also a sadistic pederast. As I also accept that the wife has rejected him and he has, more than once, threatened to get even with her for leaving him or preventing him from seeing [H], I regard [H] as being in great danger by having contact with him.
So far as the credibility of Ms Fortnum and the husband was concerned, his Honour concluded:
95.My own assessment of Ms [Fortnum] as she gave her oral evidence is that she was telling the truth. I did not feel the husband was a credible witness. Although it was by no means decisive, I have asked myself why Ms [Fortnum] would have involved her brother if she was such a cunning plotter. His claim of failure to recall does not, superficially, seem to support her case. If he was knowingly and actively supporting false allegations, it would be much more likely that he and Ms [Fortnum] would have planned for him to pretend to recall events after being allegedly told of them by Ms [Fortnum].
His Honour further concluded that:
96.…after weighing the above considerations and bearing clearly in mind that Ms [Fortnum] is highly intelligent, wishes to become a creative writer and stood to gain financially from having her story believed, I am satisfied to a much greater degree than the balance of probabilities that her claims about the husband and [V’s] treatment of her and her brother are true. I also accept the truth of Ms [Fortnum’s] account of her thoughts and feelings and symptoms given in oral and written evidence. Although Ms [Fortnum] is highly intelligent, she would have to be much more able than she appears to be to have fabricated a plot as subtle as it would be if the allegations are untrue.
Notwithstanding his finding of fact in relation to Ms Fortnum’s allegations, the trial Judge recorded that:
99.If I am in error in finding, on balance, that the husband has sexually abused Ms [Fortnum] and [S Fortnum], and it cannot be said on the evidence before me that he did such ghastly things, I am still left with a high degree of belief that the allegations are such that contact between the husband and [H] will place [H] in a situation of highly unacceptable risk. Even if [H] is only permitted supervised contact, whether it be face to face or by another means of communication, supervised contact will tend to maintain a relationship between [H] and the husband which will increase the likelihood that [H], once he is old enough to be independent and escape supervision, will meet the husband whilst unsupervised.
Having thus concluded, the trial Judge considered other matters revealed by the evidence, the first of which related to the husband’s alleged excessive physical discipline of H. Notwithstanding that there was “no evidence that the smacking has harmed [H]”, the trial Judge considered the relevance of the husband’s actions towards H as being “consistent with Ms [Fortnum’s] and [S Fortnum’s] experience with the husband” and the evidence of Ms W that “generally, beatings put a small child in fear of the perpetrator and that fear is an element which helps permit that person to control the subject of the beatings and thereby set the stage for an abusive relationship which is not disclosed by the victim”.
His Honour ultimately concluded in that respect:
105.Even if the smacking was unexceptional, in the context of what happened to Ms [Fortnum] and [S Fortnum], it is relevant and an adverse factor to the husband’s contact or residence claim.
Having referred to statements allegedly made by H to the wife in about August 2002, May 2003, and June 2003, the truth of which the husband denied, his Honour concluded:
111.Of course, the husband has denied the allegations about secret places and that he might have been doing or saying anything which might prompt [H’s] request to the wife. He says that any smacks he administered were within acceptable limits and for normal purposes.
Reference was made to the evidence of Ms W that “if abuse has not commenced, it is her view, that, if the husband has abused Ms [Fortnum], he would do it to [H]” and to Ms W’s warning “against permitting the husband unsupervised telephone contact because it would give him the opportunity to groom [H]”.
His Honour also referred to the evidence of Dr. N in the following terms:
113.Dr [N] said that any form of continued contact between [H] and the husband involves risk to [H]. To avoid such risk, she said, it would have to be “very closely supervised”. She pointed out that a long-term strategy would have to be undertaken to ensure [H] would not at 14 or 15 years seek out or agree to meet the husband without the wife’s knowledge.
Against the findings of fact which he had thus recorded, the trial Judge considered the then relevant legislative provisions. Reference was made to H’s expressed wish to see his father “for 2 hours at a time”.
His Honour concluded that:
117.Although Dr [N] said that, when seen, [H] understood the arrangement he wanted because he was mature enough to do so, I am of the view that [H’s] wishes should be largely discounted because he does not know and is not mature enough to understand the implications of the factual findings of sexual abuse I have made.
H’s primary attachment was found to be with his mother.
His Honour acknowledged that the child had “spontaneously hugged” the husband and “spoke briefly” with him when they were seen by Dr N.
So far as H’s relationship with the husband was concerned, his Honour concluded that:
122.It is my firmly held view that, if the chance is presented, the husband’s relationship with [H] will become sexually abusive. I accept that the husband’s threats to take revenge on the wife were not merely empty threats. I do not regard the wife as having the imagination or resources to defeat the husband’s plans to harm her by harming [H]. The Court will have to make orders which help her do so to the extent it is able. The husband has been calculating and cunning enough to evade detection and any criminal charges over the years of sexual abuse he has perpetrated on Ms [Fortnum] and the sexual abuse he has perpetrated on [S Fortnum] which I regard, as a result of Ms [W’s] evidence, to be likely to have been more extensive than that witnessed and recalled by Ms [Fortnum].
The likely effect of changing H’s circumstances was considered by the trial Judge who concluded that H was “likely” to miss the husband if contact were denied but that there was “no evidence to suggest that the reduction in contact which has occurred over the years since separation has done him any emotional harm. Nevertheless, if it is to be reduced further, careful handling of its introduction and justification to [H] will be necessary”.
His Honour then considered the practical difficulties associated with contact and concluded in that regard:
125.The main relevant practical difficulty which arises here is whether or not supervised contact with the husband will be adequate to protect [H] from him. I think that continued face to face, telephone or any other type of contact will increase the husband’s ability to get [H] to take secret steps to see the husband once he has sufficient independence. The husband is likely to be able to use any form of contact other than face to face contact to cultivate in [H] a love for and need to see him. This will encourage [H] to attempt to do so secretly if he is not allowed to see him openly. I do not regard the wife as sufficiently astute and able to combat the husband’s efforts. The Court will have to restrain the husband from taking any steps to encourage [H] to have contact with him to a degree which is more than that permitted, irrespective of the level of contact ordered. The practical difficulties are such that they displace [H’s] right to have contact with, be cared for by and maintain a relationship with the husband.
Having concluded that there was “no reason to believe that the wife cannot adequately” meet H’s needs, including emotional and intellectual needs”, the trial Judge concluded that:
127.I have little doubt that the wife can meet [H’s] emotional needs if she is able to protect him physically. Contact with the husband is highly likely to cause [H] a very high level of emotional damage. Not only is the husband likely to sadistically sexually abuse him, he has a history of actively and deliberately denigrating the wife and women in general to him and in his presence. I accept that the wife’s evidence that the husband habitually denigrated her and all women in front of and to [H] and did it with the intention of teaching [H] to scorn women. The husband’s demeanour in Court was laden with the inference that he regards women as of a lower order than men.
His Honour further concluded:
128.At [H’s] age, he would be unable to resist the husband’s efforts to harm him as he harmed Ms [Fortnum] and [S Fortnum]. [H] will have to be very much older before he can protect himself. Even once he is an adult or near adult, [H] may not be able to protect himself because the husband probably is able, as he has been able in the past, to enlist equally perverse and callous helpers who will be able to overpower or overbear [H]. The most that can be done to protect [H] is to ensure he understands enough to be able to resist and/or report any attempt the husband makes to sexually abuse him.
The trial Judge accepted that there was a need to protect H from physical and/or psychological harm on the basis that:
129.[H] is in frank danger of being physically and psychologically harmed if he has contact with the husband. Although he may suffer upset and destabilisation from being prevented from having contact with the husband, the resulting harm is likely to be minor by comparison with the harm he is likely to suffer at the hands of the husband.
So far as the attitude to parental responsibilities was concerned, his Honour recorded:
132.As I think the husband plans to harm [H], it is not necessary to say more about his sense of responsibility toward [H] than that it is at the same level as his sense of responsibility towards Ms [Fortnum] and [S Fortnum] has been. That the husband has refused to see [H] in a supervised situation is of great concern. In the light which is best for the husband, his refusal must be regarded as based on his own needs rather than those of [H] who he knows wishes to see him although he understands it would be while under supervision at the premises of [C]. At worst, the refusal could have been based on the uselessness of interim contact if, because it is supervised, it could not be readily used to advance his purpose.
The trial Judge ultimately concluded:
136.A weighing of all the facts and matters to which I have referred leaves no realistic option but to refuse to permit the husband to have any contact of any type with [H]. The danger of allowing any contact is that it is likely to maintain a relationship between [H] and the husband which will encourage [H] to wish to have more and closer contact with the husband. I think that any contact will both provide the husband with an opportunity to maintain a sufficient relationship with him until [H] is old enough to have furtive contact with the husband and is likely to result in face to face contact. The husband is likely to be able to devise many ways of encouraging or initiating such contact.
His Honour explained that:
138.The Court should not send him the mixed message that despite what the husband has done and the danger he poses, it is acceptable for [H] to have a relationship with the husband and thereby use him as an appropriate role model. I do not think that it is in [H’s] interests to have any relationship with the husband. He could not have a worse role model. An order for any kind of contact bears too great an element of inferred approval of the husband and too insufficient an element of concern to protect [H] from him.
The Grounds of Appeal
In his Amended Notice of Appeal, the husband articulated seven grounds. On 23 May 2008, the husband filed a detailed written outline of his contentions. Those contentions do not identify which grounds of appeal they are asserted to support, and appear to raise complaints not readily falling within the ambit of any of the seven grounds articulated in the Notice of Appeal.
On the hearing of the appeal, the husband provided a document of some twelve pages headed “Introduction to the problem” which the husband confirmed encapsulated the submissions which he wished to make to this Court. For more abundant caution, and in fairness to the husband, who has represented himself throughout the proceedings, we propose considering the complaints made by him in each of the documents to which we have referred, and also to the husband’s reply to the submissions of Counsel for the wife and the ICL dated 6 June 2008 and filed in Court by the husband on the hearing of his appeal.
Rather than attempt to divine whether any of the husband’s written material is intended to advance any particular ground of appeal articulated in his Notice of Appeal in circumstances where the husband has completely failed to do so, we record that in no material to which we have been referred has the husband provided a possible basis for upholding any of the grounds appearing in his Amended Notice of Appeal. For completeness, we record that the husband’s grounds of appeal asserted:
1.The Counsel for the respondent failed to discharge his duties to the Court and misled the Court by presenting what he knew or ought to have known to be misleading or deceptive evidence or the evidence that could mislead or deceive.
2.The independent Counsel for the child failed to discharge his duties to the Court and to this client, [H], by failing to properly test the evidence presented on behalf of the mother. He knew or should have known that the evidence presented was misleading or deceptive or that it could mislead or deceive.
3.It was not open to the Trial Judge to make “factual findings” based on the evidence before the Court, some of which is of a highly dubious probative value. The Trial Judge allowed himself to be misled by the Counsel and by some of the witnesses and at the same time failed to take into account, or gave little if any weight, to the evidence offered by the father.
4.The Trial Judge gave an appearance of bias against the father and either came to the trial with a prejudiced mind or made up his mind well before the full evidence was presented.
5.On a number of occasions the Trial Judge was prompting a witness or a counsel on what to say, thus interfering with the presentation of evidence and the argument, thus interposing his own views.
6.The Trial Judge either failed to fully explain to the father his right to object to some questions when being cross-examined or he mislead the father in that respect. Throughout the cross-examination of the father the Trial Judge (and on occasions the Counsel for the child) was making suggestions to the father to object to the questions or declining to uphold the objection by the father, thus selectively including or excluding the pieces of evidence.
7.On a number of occasions the Trial Judge made remarks towards the father which, to a fair-minded observer, would appear as bullying.
As is apparent, though capable, if established, of providing a foundation for appellate intervention, the grounds themselves are no more than a series of assertions. Other than by presuming, in the absence of being satisfied that such is the case, that the grounds must have substance, they cannot succeed. It is appropriate to consider whether, howsoever agitated, the husband can establish a basis for appellate intervention.
Turning to the Summary of Argument filed by the husband on 23 May 2006, under the heading “[Ms Fortnum’s] testimony”, the husband detailed a number of alleged discrepancies in the accounts Ms Fortnum provided of the husband’s abuse of her. The thrust of the husband’s complaint in relation to “[Ms Fortnum’s] testimony” appears to be that, because of the discrepancies to which he referred, neither the trial Judge nor the expert witnesses who heard Ms Fortnum’s evidence were entitled to rely upon it. We are not persuaded that this complaint has substance. Nothing to which we have been referred demonstrates that the trial Judge was not entitled to accept Ms Fortnum’s evidence.
As the authorities recognise, the trial Judge had the advantage of seeing Ms Fortnum extensively cross-examined. As his Honour recorded, the cross-examination of Ms Fortnum by the husband was revealing. In the absence of clear circumstantial or other evidence supporting Ms Fortnum’s allegations, or the husband’s denial of them, on the evidence before him, it was reasonably open to the trial Judge to prefer the substance of Ms Fortnum’s allegations to the husband’s denials of them, or vice versa.
As his Reasons for Judgment make clear, the trial Judge was acutely aware of the nature of the evidence before him, the long time which elapsed between the making of allegations, the gravity of the subject matter of those allegations, and the need to be comfortably satisfied that the allegations were true. It is difficult to think of a case in which the trial Judge’s advantage would have been greater than it was in this case. In this case, to a greater extent than in many cases, the demeanour of key witnesses was likely to have been influential. The trial Judge saw and heard the witnesses, an advantage not enjoyed by this Court. No misuse of his Honour’s “advantage” as the trial Judge has been demonstrated.
To the extent that the husband complains about inconsistencies in Ms Fortnum’s various accounts of the husband’s alleged abuse of her, his submissions proceed on a false premise in logic. Ms Fortnum’s recollections were made 14 years after the first incident alleged by her occurred, and a decade after the last of the alleged incidents occurred. Having regard to her age at the time the alleged incidents occurred, the nature of the incidents which she alleged and her subsequent history, had Ms Fortnum made entirely consistent allegations, this may well have aroused disquiet in the trial Judge’s mind. In context, the discrepancies complained of by the husband are minor, and supportive of the entitlement of the trial Judge to accept Ms Fortnum’s claims.
As is also apparent from the trial Judge’s Reasons for Judgment, the allegations of Ms Fortnum and the husband’s denials were not examined in isolation. The trial Judge carefully considered the evidence before him in relation to Ms Fortnum’s history subject to the alleged incidents occurring.
His Honour also relied, and in our view was entitled to rely, upon the expert evidence of a lack of significant inconsistency in Ms Fortnum’s accounts. Without suggesting that the members of this Court would have done so, on the evidence before him, the trial Judge could have failed to be satisfied that Ms Fortnum’s allegations were made out to the requisite standard proof. That however is not the test, the husband bearing the onus of demonstrating that the trial Judge could not have accepted Ms Fortnum’s allegations. The husband has not discharged that onus. On the evidence before him, the trial Judge was in our view entitled to find Ms Fortnum’s allegations substantially made out.
Under the heading “[Ms Fortnum’s] mental health”, the husband said:
20.One has to ask a serious question: what were the reasons for this incredible testimony by [Ms Fortnum]. An obvious possibility is that [Ms Fortnum] suffers from some psychological disorder which caused her to either hallucinate or have intrusive thoughts or dreams where she “experienced” the sexual assaults of a kind that she describes in her testimony. There is a lot of evidence in the Appeal Books and the oral evidence presented at the trial. The Trial Judge’s conclusion is that [Ms Fortnum’s] psychological problems began at the age 12, at the time or soon after the first alleged rape. The recent evidence points in that direction, however, one has to keep in mind that the evidence presented had one purpose, and one purpose alone: to show that the father should not have any contact with his son [H].
Ironically, the trial Judge, in the course of considering Ms Fortnum’s allegations and the evidence in relation to them, essentially posed the same question. For reasons which he cogently detailed, and supported by reference to the evidence before him, the trial Judge concluded that Ms Fortnum’s allegations ought not be rejected by reference to her “mental health”.
The crux of the matters agitated by the husband in support of this complaint seems to be his assertion that:
43.The foregoing evidence and reasoning is a clear indication that [Ms Fortnum’s] problem began well before 1988 and the root cause of those problems were not the rapes by her father which, allegedly began in 1988. The problems began when she was ten years old or even earlier, when her mother and father started experiencing difficulties in their marital relationship. The pressure on this young girl’s sensitive mind peaked at the time of divorce and custody battle — and real physical battles between her parents. Her absence from school, as was pointed elsewhere, contributed to her problems by her not having peer group support: she was an isolated loner, sitting in her bedroom all day long — worrying herself into depression.
Even if the husband is correct in his assertions that “[Ms Fortnum’s] problem began well before 1988” nothing to which we have been referred by the husband establishes that Ms Fortnum’s credit in relation to the allegations of rape and abuse made by her against him were thereby unable to be accepted. The trial Judge carefully considered that possibility and rejected it for reasons which he cogently detailed. No error in the reasoning process which led his Honour to so conclude has been shown to be erroneous.
Having regard to the matters relied upon by him, the husband’s assertion must be that Ms Fortnum either fabricated her allegations against the husband, or imagined that he had abused her in the ways she detailed. No other possible explanations appear to emerge from the evidence of the husband’s denials. Nothing to which the husband has referred this Court in any of the evidence upon which he relies establishes in our view that it was unsafe to rely upon Ms Fortnum’s evidence by reason of her “mental health”.
To the extent that this complaint seeks to gain support from the fact that Ms Fortnum’s allegations of two incidents involving abuse of S Fortnum at the hands of the husband of which S Fortnum has no memory, that, as the trial Judge recorded, was not necessarily indicative of either imagination or fabrication on the part of Ms Fortnum. Moreover, to have fabricated such an allegation in the absence of knowledge that S Fortnum would corroborate the allegation would have been extraordinary, as the trial Judge appreciated, and explained.
As our detailed analysis of the trial Judge’s Reasons for Judgment makes clear, his Honour was well aware of the history of Ms Fortnum’s psychological and emotional difficulties as they emerged from the evidence. As his Honour recorded, the evidence before him, as the experts who testified before him confirmed, was not inconsistent with Ms Fortnum’s allegations.
As we have earlier recorded, ultimately only two witnesses who gave evidence before the trial Judge know the truth about Ms Fortnum’s allegations of abuse by the husband. For reasons which he detailed, and which have not been shown to have been other than reasonably open to him, the trial Judge preferred the evidence of Ms Fortnum to that of the husband. As his Honour noted, there was some corroboration for Ms Fortnum’s evidence. Moreover, the weight able to be given to Ms Fortnum’s evidence was not impaired in the ways in which the evidence of the husband was shown to be.
Under the heading “The ‘Recovered Memory Expert, - Ms [W]” (sic), the husband challenged the qualifications and expertise of Ms W. As is apparent from our review of the trial Judge’s Reasons for Judgment, Ms W’s evidence was supportive of Ms Fortnum’s claims to the extent that, as the trial Judge explained, she gave evidence which his Honour accepted to be within her competence that Ms Fortnum’s presentation was not inconsistent with a person who had been raped and abused in the manner Ms Fortnum alleged. As it is clear from his Honour’s Reasons for Judgment, his Honour was aware of Ms W’s professional qualifications and experience.
Although challenging Ms W’s qualifications to give the expert opinion evidence which she gave before his Honour, nowhere does the husband appear to challenge any of the matters upon which his Honour relied for his conclusion that Ms W was qualified to give the expert opinion evidence which she gave.
Importantly for present purposes, the trial Judge acknowledged that it “cannot be overlooked” that Ms W “originally assumed that what Ms [Fortnum] told her is the truth” but nevertheless “tested her story against her expert understanding of the expected behaviour of perpetrators and their victims”.
Ms W’s evidence, as the trial Judge observed was that “Ms [Fortnum’s] symptoms are ‘very consistent’ with her allegations of sexual abuse” and that “the more subtle symptoms Ms [Fortnum] claims to recall ‘increase the probability of the accuracy of her memories’”.
In Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705 (“Makita”), Heydon JA (with whom Priestly JA and Powell JA agreed) said:
… a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions. … (at 729).
and:
… The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert. (per Lord President Cooper in Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 at 39-40, within Makita at 729-730).
and:
Underlying these observations is an assumption that the trier of fact must arrive at an independent assessment of the opinions and their value, and that this cannot be done unless their basis is explained. (at 733).
At 742-3 of Makita Heydon JA said:
In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it.
Nothing to which we have been referred establishes that Ms W lacked the expertise to give the evidence which she gave, and his Honour accepted.
So far as one of the two major issues of fact before the trial Judge was concerned, it is clear that the trial Judge accepted Ms W’s evidence in relation to the probability of Ms Fortnum’s allegations having substance as “compelling” and explained why he so concluded.
His Honour relied, as in our view was open to him, upon Ms W’s evidence that “she had never known anyone who could make up a story which is so consistent with the scientific knowledge on the situation” and “did not think it would be possible to make up a story as consistent as that which Ms [Fortnum] tells”.
If further underpinning for his Honour’s acceptance of Ms W’s expert opinion evidence was required, which we doubt, his Honour’s further observation that:
91.The insight Ms [W] conveyed which was the most convincing is that the story told by Ms [Fortnum] started when she was 12 years old. As one reads what occurred and what she told experts and what she later alleged, one would have to conclude that to make up the story she would have to have had knowledge which has only become available after she said or did the things which infer that knowledge. The experts have only recently learnt what the consistent patterns are, yet her behaviour was consistent before such behaviour was realised by experts to be consistent with post traumatic stress caused by childhood sexual abuse by a carer. Even if Ms [Fortnum] had been reading text books on sexual abuse, they did not have the information to permit her to assume false symptoms to support a later claim that she had been abused. The symptoms commenced at age 12.
It is not constructive to refer to each of the many and detailed claims articulated by the husband in support of this complaint.
The husband’s cross examination of Ms W is revealing. The husband did not put any questions to Ms W regarding her qualifications or expertise.
As a reading of the trial Judge’s Reasons for Judgment makes clear, the husband misconceives the significance of Ms W’s evidence, and how the trial Judge relied upon it. Ms W could not give evidence of the truth of Ms Fortnum’s claims as such. Her beliefs on that topic were irrelevant, and inadmissible. All that Ms W could depose to in that regard was what Ms Fortnum told her. Whilst such hearsay evidence is clearly admissible by way of background, the High Court in Ramsay v Watson (1961) 108 CLR 642 made it clear that:
Hearsay evidence does not become admissible to prove facts because the person who proposes to give it is a physician. And, if the man whom the physician examined refuses to confirm in the witness box what he said in the consulting room, then the physician's opinion may have little or no value, for part of the basis of it has gone. Each case depends on its own facts.
For the reasons which Heydon JA explained in Makita, if the trial Judge did not accept the substance of Ms Fortnum’s allegations of fact, the foundation for attaching weight to Ms W’s expert opinion evidence that Ms Fortnum’s presentation was consistent with her allegations of abuse would have dissolved, and no affirmative finding in terms of Ms Fortnum’s allegations would then have been reasonably open to his Honour. The extent to which Ms Fortnum’s presentation was consistent, or inconsistent, with the allegations of rape and abuse made by her, was in our view a matter upon to which, there being admissible expert opinion evidence, the trial Judge could have regard in determining whether the substance of the allegations was made out. As is apparent from his material, the husband relies significantly upon alleged inconsistencies of various kinds in support of his assertion that the trial Judge could not reasonably accept the substance of Ms Fortnum’s allegations. At the very least, Ms W’s evidence could have been relied upon by the trial Judge to rebut the husband’s assertions in reliance upon alleged inconsistencies.
Ms W’s recounting, or acceptance, of Ms Fortnum’s allegations could not have been admissible as truth of the proof of those allegations. On the other hand, Ms W having demonstrated expertise which entitled her to express the opinion that Ms Fortnum’s presentation or “symptoms” were “consistent” with her allegations of sexual abuse was in our view, a matter to which the trial Judge as the ultimate trier of fact, could have regard. There could be little doubt that if Ms W’s evidence had been that Ms Fortnum’s “symptoms” were inconsistent with her allegations of sexual abuse, the husband would have been entitled to the benefit of that expert opinion evidence. We see no reason in principle why the converse does not apply. It has not been established before us that Ms W’s opinion evidence was tainted or otherwise rendered inadmissible in any of the ways discussed by Heydon JA in Makita.
To the extent that the husband seeks to advance his complaint by reference to a document which he asserts the Australian Psychological Society produced entitled “Guidelines relating to the reporting of recovered memories, 1994”, this document has not been before us and was not before the trial Judge. Ms W was not cross-examined by the husband in relation to the document.
To the extent that the husband appears to dispute that Ms Fortnum’s “recovered memories” could be safely relied upon, the submissions overlook a number of realities. Nothing to which the husband has referred this Court establishes that, whatever label is attached to the process of remembering, the allegations made by a witness for the first time many years after the conduct complained of is alleged to have occurred are thereby inherently unable to be accepted. As the trial Judge recognised, such allegations, particularly when of the “horrific” nature involved in this case, require very careful consideration before an affirmative finding can be made.
Moreover, the expert evidence of Ms W, which his Honour accepted, and was in our view entitled to accept, was that Ms Fortnum’s allegations involve “repressed memory” rather than “recovered memory”.
Having regard to the matters to which his Honour referred in this context, it is unsurprising that the Australian Psychological Society might issue the guidelines in the terms asserted by the husband. Assuming that the husband has accurately stated the substance of those guidelines, they do not change matters.
Having carefully reviewed the evidence before him, and made findings with respect to the credibility of Ms Fortnum and the husband, the trial Judge, for reasons which he carefully detailed, found Ms Fortnum’s claims of rape and abuse established.
His Honour’s observations in relation to the burden and standard of proof were accurate, and appropriate:
76.To determine if there is an unacceptable risk to [H] or to decide on the probabilities whether Ms [Fortnum’s] allegations are true, I have weighed a number of factors very carefully. I am conscious that, although the onus of proof on the wife is on the balance of probabilities, the allegations are very serious and the consequences to the husband, the wife and to [H] could be extremely grave irrespective of my decision. I am therefore required to be actually persuaded that the allegations Ms [Fortnum] has made are realistically likely to have occurred (see Briginshaw v Briginshaw (1938) 60 CLR 336) if I am to conclude that they probably did happen rather than that there is an unacceptable risk.
Nothing raised by the husband by way of complaint with respect to Ms W’s evidence, or the trial Judge’s entitlement to rely upon it, could enliven appellate intervention.
Under the heading “Counsel ‘assisting’ the Court”, the husband reiterated a number of complaints with respect to “recovered memory syndrome”. Although he would not see it so, the passage cited by the husband from the decision of the High Court in Longman v R (1989) 168 CLR 79 in fact supports the trial Judge’s decision.
As the passages to which we have earlier referred make abundantly clear, the trial Judge in this case “scrutinised with very great care indeed” the allegations made by Ms Fortnum “so long after their alleged occurrence”. In reality, nothing to which the husband has referred this Court in relation to his Honour’s exploration of the allegations, and evidence in relation to them, raises concerns as to the integrity of his Honour’s conduct of that exercise.
In reality, the husband’s only complaint is that the trial Judge accepted the substance of Ms Fortnum’s evidence, notwithstanding a number of matters which weighed against so doing, of which his Honour was clearly conscious, and rejected the husband’s evidence.
The husband’s submission as to his Honour’s acceptance of the phenomenon of “recovered memory syndrome” is misconceived. Nowhere do we discern that his Honour purported to express a concluded view of the kind asserted by the husband. The “factual finding” which his Honour made was that the allegations of rape and abuse made by Ms Fortnum against the husband were established on the balance of probabilities having regard to the decision in Marsden & Winch (No 3) [2007] FamCA 1364, in which Warnick, Thackray and Le Poer Trench JJ said:
138. The views expressed in the High Court in both Briginshaw and Neat Holdings must also now be read in the context of s 140 of the Evidence Act 1995, which provides:
140(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
His Honour accepted Ms W’s expert opinion evidence with respect to “repressed” memory as an explanation for Ms Fortnum’s failure, over a period of more than a decade, to make her complaints. Nothing in the authorities to which the husband has referred this Court establishes that, on the evidence before him, it was not open for the trial Judge to accept that expert opinion evidence of Ms W.
It ought not be overlooked that Dr N, the Order 30A expert, who, with the husband’s consent, remained in Court during the whole of Ms Fortnum’s evidence, about whom the husband makes no complaint in this appeal, and reached the same conclusion, was consistent with that of Ms W, as his Honour’s Reasons for Judgment make clear.
Under the heading “The Trial Judge”, the husband raised a number of complaints, the basis of which is not entirely clear, with respect to the trial Judge’s decision, the first of which was “whether Cohen J had sufficient and reliable evidence on which he based his decision not only to terminate contact between the child [H] and his father but also to inform that child that his father is a criminal of the worst kind”.
What the trial Judge in fact said that the child should be informed of, by whom and why, was in our view entirely appropriate, having regard to the conclusions which he had reached with respect to H’s best interests. We repeat what his Honour in fact said in that regard:
139.I am quite concerned about the wife’s likely inability to ensure [H] knows and understands why he is not able to have any contact with his father. I am equally concerned to ensure that [H] is told what he ought to know in a manner which will do him the least possible harm. At his age, it may not be appropriate or possible to explain everything to [H]. It is likely to be necessary for any explanation which is given to be expanded as he grows older. I regard Dr [N] as able to determine what type of explanation [H] needs at any given age. She is willing to provide the necessary explanations.
and:
140.I shall make orders refusing all contact between [H] and the husband, restraining the husband from having or attempting to have any contact with [H], granting residence to the wife with the sole right to make and implement decisions for his care, welfare and development and requiring her to make an appointment as soon as practicable with Dr [N] to explain to [H] why he will no longer be having any contact with the husband. I shall make orders which allow and encourage Dr [N] to determine when such explanation might be expanded to meet [H’s] increasing maturity and understanding and to require the wife to ensure [H] attends any appointments made by Dr [N] for such purpose. The wife will have to meet their cost.
The authorities cited by the husband are not relevant to this case. As his Honour carefully explained, finding that the husband constituted an unacceptable risk to H would have been sufficient to refuse the husband any contact with the child. As his Honour explained, after carefully considering the evidence, and the need to be appropriately satisfied that the allegations had been established according to the civil standard of proof, the trial Judge made a positive finding of sexual abuse.
In M & M (1988) 166 CLR 69 at 76, to which the husband refers, the High Court said:
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access.
On the findings of fact made by him, that, as his Honour clearly recognised, could have been the end of the husband’s case.
In M & M (supra) the High Court made clear that a finding of sexual abuse may not necessarily be the only matter which required consideration within the context of the best interests of the child.
Notwithstanding that the trial Judge found Ms Fortnum’s allegations of rape and abuse made out, his Honour proceeded to consider the provisions of s 68F(2) of the Act. In our view, in the light of the findings he made with respect to rape and sexual abuse, the trial Judge was not obliged to do so. The husband does not complain that his Honour failed to have regard to any relevant provision of s 68F(2) of the Act.
Nothing to which we have been referred establishes that the trial Judge erred in principle in determining the case in the manner in which he did. We have earlier rejected the husband’s challenges to the findings of fact which his Honour made and to the conclusions which he reached in reliance upon them.
The husband asserted:
68.What is then the reason for the “factual findings” that the Trial Judge made? It would not have escaped an intelligent, reasonable observer that the Trial Judge was biased against the father. The most likely and the most innocent reason appear to be that the Trial Judge was quite sensitive and distressed by the descriptions of the horrific alleged abuses that [Ms Fortnum] described in her written statement and the oral evidence. It would be quite reasonable to expect from a person of normal fortitude. However, the event was not some women’s lib gathering but rather a court of law. The Trial judge, if he could not handle the emotions resulting from hearing those allegations, was at liberty to disqualify himself. Instead, he continued with the trial and not only that allowed himself to be misled by those who were supposed to assist him in establishing the truth, he often assisted them by reminding them what they should say!
Other than in the two passages which follow, the husband referred us to no exchange or comments or other statements made by the trial Judge which might reasonably lead to the conclusion which he asks this Court to draw.
The first of these paragraphs referred to was as follows:
MR [FORTNUM]: And [Ms Fortnum] says:
Abuse from her father stopped.
Well, you say, correction, you say in this report:
Abuse from her father stopped when she acted as if she was enjoying the assault and wanting to be raped.
?---Mm.
How did you qualify that statement? How did you verify its facts?--- As much as you can from talking to one person. I talked to [Ms Fortnum], that was her memory of how the abuse stopped. How the abuse stopped is always important in understanding what’s happening for a victim and [Ms Fortnum’s] understanding was that the more she experienced pain and distress the more the abuse continued. She believed that she had the idea that if she feigned enjoyment it would take her enjoyment away from the situation.
HIS HONOUR: If you said that, does that mean that you regard the husband as a sadist as well as a paedophile?---Yes, yes.
Well, then why did you say – and it was the very first question I asked you, why did you say that you didn’t think there was much prospect of him abusing [H] in order to hurt a wife who had rejected him?---Because I was probably in my head thinking more of the paedophile side and the sadist side and maybe that, yes. I hadn’t thought about that quite frankly. I was thinking more of the paedophile side where the motivation is coming from. The arousal to children but if the sadistic side is very strong I guess that would be a possibility too.
The second of these paragraphs referred to was as follows:
MR ANDERSON: Thank you, your Honour. Dr [N] in her report at paragraph 2.9 of that report says that on her examination there was no suggestion that [H] had been sexually abused or that [H] was aware of those allegations in relation to [Ms Fortnum]. Despite- - -
HIS HONOUR: He will be, won’t he?
MR ANDERSON: Despite that, your Honour, the evidence of Dr [N] was clear in my submission that on one view of the evidence of the mother the father has engaged in conduct which could be called in the common parlance grooming or at worst also identified as being inappropriate behaviour with his son.
His Honour continued:
HIS HONOUR: Mr Anderson, is there any way that one could avoid [H] learning about the allegations relating to his half sister?
MR ANDERSON: I think ultimately, no, your Honour in the ultimate.
HIS HONOUR: What’s the effect on him of learning that if the Court and the mother are seen to not actually distance [H] from his father? What’s the effect going to be? Was there any evidence of that? Was that a question that somebody asked?
Within the context of complaints about the trial Judge’s conduct, the husband also asserted that his Honour had “made up his mind on the third day of the trial, or earlier”. There followed a series of sweeping assertions, supported by only one reference to the transcript, as follows:
MR [FORTNUM]: [Ms Fortnum], I’d like you to go back to the first rape incident, [V’s] first rape. Could you go back and describe step by step, please, what – I’m sorry, if it hurts you, but would you please go back and describe it step by step? --- No
HIS HONOUR: Yes, I think you should. Do the best you can. If you feel that you’re incapable of doing it, tell me, but try. All right, I’ll take an adjournment until 2.15.
Upon resumption of the proceedings, his Honour continued:
HIS HONOUR: Before I deal with the tendered material, I want to ensure that this witness is properly catered for. Ms [Fortnum], do you feel able to answer the question that you were asked? I’m not telling you to answer it. I’m asking you, do you feel able to answer it?---Yes.
…
HIS HONOUR: Mr [Fortnum], do you wish the witness to answer the question you asked before lunch?
MR [FORTNUM]: I would like to try a different question if that’s okay.
HIS HONOUR: It’s up to you entirely.
To read these passages in context is to realise that they cannot advance the husband’s complaints.
Notwithstanding the absence of reference to anything said or done by the trial Judge which might advance the husband’s complaint, we have for ourselves reviewed the transcript in its entirety. Such review is instructive, as the following table demonstrates:
| Date of the Transcript | Page Number | Transcription | Relevance of passage cited |
| March 2 | 35 | Discussion and explanation about Dr N sitting in during the evidence of Ms Fortnum, Lines 19-49 “MR ANDERSON: Your Honour, I can indicate that Dr [N] will be coming tomorrow morning to sit in Court to listen to [Ms Fortnum’s] evidence…. HIS HONOUR: Mr [Fortnum], the general rule is that witnesses aren’t allowed to listen to the evidence until they’ve given their own evidence… Now, it’s not necessarily a good idea for some people, for some of the parties. In some instances it maybe be a great disadvantage for one reason or another. I’m not here to tell you what – how to determine your tactics, but I am able to tell you that you can object to the imposition of a witness…subject to the exception of imposition, so you’re going to have to give thought to whether you’re going to object to anybody giving evidence if the wife hasn’t finished.” In response to the husband’s query if he needs to answer now, his Honour says: “I wouldn’t like an answer now, but if you want to tell me now you can, if you want more time to think you can.” The husband responded that he had no objection, to which His Honour said “I’ve told you your rights, if you change your mind you can tell me.” | Trial Judge explained litigant’s right to have all witnesses excluded other than an expert |
| March 2 | 36 | Judge explains order of cross-examination. After explaining the practice of the calling of witnesses, his Honour said: “Now, I’m not here to advise you, but I’m here to tell you that you can object to that course. It’s entirely a matter for you, but it’s my experience that if anything it helps the other party that they hear all of the evidence first, rather than it gets sprung on them later. It is up to you whether you want to object. I don’t wish to advise you really…” | Trial Judge explained practice of witnesses being called and the order of examination and cross-examination. Litigant given every opportunity to understand procedures |
| March 2 | 42 | Line 30. Judge cross-examines wife. “HIS HONOUR: Mrs [Fortnum], the assumption you’ve been asked to consider is that these things have not only been established but the Court finds that there would be no unacceptable risk to [H]. Now, if that’s the case your fear are just your fears and no more than self-indulgence aren’t they?” | Trial Judge canvassed a number of possible outcomes including one that might have been proffered by the husband. |
| March 2 | 43 | Line 38. Judge critical of wife repeating evidence that should have been in affidavit form. “HIS HONOUR: You’ve said all of those. You don’t have to re-run your case. It doesn’t impress me. You’ve said those things, Mrs [Fortnum], in your affidavits. And your barrister has told me to begin with, so you don’t have to repeat them. It won’t make them more impressive.” | Trial Judge assisted the husband |
| March 2 | 57 | Judge has discussion with counsel for the wife in the absence of the wife who was in the witness box. Before asking these questions, his Honour said: “I don’t want to say what I’m really trying to discover from this witness in front of her but I’ll tell you if she goes outside” and the witness withdrew. | Trail Judge effectively put the husband’s case as to a possible outcome |
| March 2 | 63 | Line 38. “HIS HONOUR: Well I’ll just give you some advice, Mr [Fortnum]: Evidence doesn’t consist of making statements about what your case is. Cross-examination evidence consists of asking questions that are designed to either undermine the wife’s case or to improve yours, to prove facts that you want to prove or to disprove facts the wife is attempting to prove. In order to do that you are required to ask questions, not make statements. Line 47. “HIS HONOUR: You can’t ask leading questions. I explained that to you before…Questions which suggest what the answer should be” | Trial Judge fulfilled obligations to litigant in person (see Re F: Litigants in Person Guidelines (2001) 27 Fam LR 517). |
| March 2 | 66 | Line 39. “HIS HONOUR: Mr [Fortnum], there’s one thing that I should tell you; and that is you should let the witness answer the questions. You tend to ask your next question before she’s finished.” | Trial Judge explained the necessity for the husband to allow the witness to answer questions |
| March 3 | 24 | Line 38. “HIS HONOUR: All right, I’ll deal with those in the same way. You won’t have time to have a look at them because they a bit thick Mr [Fortnum]…MR [FORTNUM]: No, I’m going to have no lunch. Do you want me to read them all? HIS HONOUR: I don’t want you to do anything. If you want to read them they will be made available to you. MR [FORTNUM]: Yes, I will read them all. HIS HONOUR: But I will be asking you after lunch whether you have any objections to them becoming part of the evidence.” | Trial Judge explained to husband the need for him to read documents over lunch break to decide whether he had any objections to them becoming part of the evidence |
| March 3 | 26-27 | Lines 19-24 - ICL asking questions to test the evidence, including why the witness did not tell anybody about her problems in her sexual relationships at the time, and about her Victims Compensation application. Questions probably should have been asked by the husband but ICL providing assistance. “MR ANDERSON: …I’m asking questions now which I think Mr [Fortnum] probably should ask, but I’m trying to assist the Court. HIS HONOUR: All right, thank you. Go ahead. Well, so far I have to say they have been of assistance Mr Anderson, great assistance.” | Trial Judge appropriately agreed with approach of counsel for the ICL |
| March 3 | 28-29 | Lines 1-8, page 28. In response to the husband’s question, the witness refuses to answer the question. His Honour says: “Yes, I think you should. Do the best you can. If you feel that you’re incapable of doing it, tell me, but try. All right, I’ll take an adjournment until 2.15.” Lines 11-23, page 29. When proceedings resumed, His Honour said: “Before I deal with the tendered material, I want to ensure that this witness is properly catered for. Ms [Fortnum], do you feel able to answer the question that you were asked? I’m not telling you to answer it. I’m asking you, do you feel able to answer it?---Yes.” Line 18 “HIS HONOUR: Mr [Fortnum], do you wish the witness to answer the question you asked before lunch? MR [FORTNUM]: I would like to try a different question if that’s okay. HIS HONOUR: It’s up to you entirely.” | Prior to lunch ajournment the first question that the husband asked his daughter was a very vague question about the first rape incident. The trial Judge adjourned the Court for lunch. Immediately after lunch, the Trial Judge gave husband an opportunity to persist with the question asked before lunch. No interference by the trial Judge nor inappropriate bias on behalf of the judge. |
| March 3 | 33 | Lines 34-36. “MR MOSS: I object to the question, your Honour, of what does the question mean anything else about [V]? HIS HONOUR: Yes, make it more specific.” | Trial Judge suggested to husband who was cross-examining that he should be specific about the details of his question. |
| March 3 | 44 | Lines 11, 21 and 31 “So you’re referring to emotions? “ “Be more specific” “At the time, what does at the time mean? She has had difficulty answering it. It is understandable that she might – what while the gun was pointed at her head, did you think you might get emotional support from her mother? Is that what you are trying to suggest?” | Trial Judge clarified questions put by the husband. Nothing improper in that course of action. |
| March 3 | 45 | Line 18 “HIS HONOUR: Just before you go any further. How much longer do you think you are going to be, Mr [Fortnum], it is not because I am trying to hurry you up or shorten the length of your cross-examination of your daughter but I would take an adjournment for a short time now if I thought we could finish today by going on past 5 o’clock or something like that. But if you don’t think – so if you just tell me how many hours you estimate you will take, bearing in mind how long you have taken so far which is an hour and a half - - - | Trial Judge indicated clearly to the husband that he could take as long as he likes and that he was not being hurried. |
| March 3 | 46 | Line 1 “HIS HONOUR: Would you prefer to finish this examination today, Mr [Fortnum]? MR [FORTNUM]: Yes. But I could do with a break. HIS HONOUR: Well, we will take the break now until 4 o’clock.” | Trial Judge gave husband a break because he requested it. |
| March 3 | 49 | Line 38. Counsel for the ICL objected to a question on the basis that it had already been asked. Judge responds “He is entitled to ask her again”. | Trial Judge clearly protected the interests of the husband in terms of cross-examination. |
| March 3 | 50 | Lines 25-36 “HIS HONOUR: Are you trying to lecture this witness or are you asking her a question? MR [FORTNUM]: Getting carried away, aren’t I. I’m sorry. HIS HONOUR: Well ask a question. MR [FORTNUM]: Yes. HIS HONOUR: And one question at a time.” | Trial Judge cuts off the husband in the middle of a bizarre question and made him turn it into a question rather than a lecture. Judge did not indicate any bias. |
| March 3 | 52 | Line 24 and Line 33 “HIS HONOUR: Don’t comment on the answers. Ask questions. The facetious comments don’t help you, Mr [Fortnum]. MR [FORTNUM]: I’m sorry, to me it’s interesting. HIS HONOUR: Well, keep it to yourself. MR [FORTNUM]: Yes, I will. I will try, I will. HIS HONOUR: You’ll get an opportunity to address me. In the meantime, those comments don’t make your case better.” | Trial Judge told husband not to make comments but simply ask questions indicating that he would have an opportunity to address him in the end. |
| March 4 | 3 | Line 3. “Mr [Fortnum], when I am talking to you I sometimes do it deliberately so you can’t say things, and I do that because there are some things that you shouldn’t tell me and I don’t want to have to hear them and be in a position where I am compromised about giving a judgment by matters which I should not have heard.” Line 44. “MR [FORTNUM]: Thank you. Can I withdraw the question, your Honour? HIS HONOUR: Yes, I think you should. I wouldn’t allow it. I think it’s privileged.” | Trial Judge explained process about ensuring that he would not be compromising his judgment by hearing matters that he should not hear. |
| March 4 | 7 | Line 1-5 “HIS HONOUR: I won’t allow that question. It’s got nothing to do with the case and can’t possibly have any effect on the outcome. MR [FORTNUM]: No problem.” Line 25-39 “HIS HONOUR: What’s it got to do with the child’s welfare? MR [FORTNUM]: Well, possibly later on I might be able to draw a link, but you have made your ruling that’s fine.” | Trial Judge made a ruling about evidence that was not admissible and gave the husband an opportunity to explain what its relevance was and husband accepted ruling. No complaint on appeal arising from such ruling. |
| March 4 | 9 | Line 15 onwards “This material can’t affect the outcome of the proceedings. MR [FORTNUM]: Right. HIS HONOUR: I wouldn’t prevent you from having contact in an unrestricted way with this child, although I am not suggesting that I would find according to what you want or that I wouldn’t for that matter, in any way which is determined by these petty complaints about what you did in a particular room or not or whether there are electric wires running around or whether you kept your eye on him all the time or only some of the time. MR [FORTNUM]: That’s a great relief to me, sir.” | Trial Judge explained that he would not make a determination on matters that were not of significance. The trial Judge called them “petty complaints” and the husband acknowledged “great relief” as a result. Judge then set out obligations under the Family Law Act. |
| March 4 | 13 | Line 25 “HIS HONOUR: Mr [Fortnum], you shouldn’t mistake the times when I tell you that I don’t want to hear from you about matters from an attempt by me to hurry you. I don’t want you to waste time on things that are of no value to the court… That can’t be used to determine the case because they are of not sufficient significance or in no way relevant, but I am not trying to hurry you.” | Trial Judge responded to a suggestion by the husband that he was hurrying. Judge told him that he was not to hurry but simply not to waste time on things that were of no value. |
| March 4 | 17 | Line 6 onwards “HIS HONOUR: Yes, I won’t allow you to ask that. MR [FORTNUM]: Yes. Forget it, cool. HIS HONOUR: If you want to put specific things to her that she can identify, do it. MR [FORTNUM]: To my mind it’s petty anyway. HIS HONOUR: Well, then why are you doing it? MR [FORTNUM]: Because I feel that I must because I’m in this position, backed into a corner, and I feel I must. HIS HONOUR: Well, ask specific questions in that case.” | Husband was putting what he described as “petty” things and told trial Judge that he feels that he was backed into a corner and had to put those matters. Judge responded by telling him to ask specific questions. Nothing objectionable or indication of pre-judgment apparent. |
| March 4 | 17 | Line 33 “The husband is just as entitled to put that, although he hasn’t done it in a very skilful way, to this witness as she was to say it was his fault.” | Trial Judge explained to counsel for the wife about how the husband was endeavouring to cross-examine and was very supportive of the husband’s approach. Nothing of objectionable nature. |
| March 4 | 18 | Line 8 “You can ask that question again so that – but remember this, think about the form that you ask a question. And remember what I said, if you want to allege a certain set of circumstances you are entitled in cross-examination to put them to a witness. But go ahead; you’re entitled to ask the question you’ve asked, or something along the same lines”. | Trial Judge suggested to husband that he think about the form of the question. |
| March 4 | 22 | Line 42 “HIS HONOUR: Do you object to those notes? MR [FORTNUM]: No.” | ICL wanted to put in the notes of the expert witness. Husband was asked whether he had any objections and he replied that he did not. |
| March 4 | 23 | Line 7 “HIS HONOUR: Mr [Fortnum], if there are parts of these notes that you can’t read you will be able to ask this witness to decipher her own notes.” | Trial judge told husband that if the notes were indecipherable, he could ask the witness about what she had written. |
| March 4 | 30 | Line 18 HIS HONOUR: “I would like a moment to think if I want to ask you anything else before you start, Mr [Fortnum], because I don’t want you to be in a position where you haven’t heard all of this witnesses’ major evidence in chief before you cross-examine”. | Trial Judge then tested some of the evidence of the expert witness. Sort of testing that could have been expected from the husband. |
| March 5 | 9 | Line 20 “Again, Mr [Fortnum], you can’t ask somebody about what’s in your mind or what’s been your experiences unless it’s something like, ‘You know I’ve been to Niagara Falls because you came with me’” | Trial Judge explained how to ask a question. Proper compliance with guidelines. |
| March 5 | 20 | Line 35 “Do you have any objection that that, Mr [Fortnum]?” | Husband was asked whether he objected to documents provided by Dr N of drawings by the child. Husband had no objection. |
| March 5 | 38 | Line 28 and Line 33 “your question doesn’t help me…You can ask the witness to make a series of assumptions and answer a question based upon those assumptions, but the assumptions have to be sufficient to make the answer of value to me… It was two separate incidents so make sure that the witness understands that.” | Trial judge explained to the husband about the structure of questions and how the details affect the outcome of the proceedings. Proper discussion about questions based on assumption. No indication of bias. |
| April 1 | 1 | Lines 28-45. HIS HONOUR: Now is the time that you’re entitled to tell your story in-chief if you wish to, in addition to your affidavit. What I mean is add to that?--- Yes. There’s isn’t a lot that I’d like to add. However, when you mention that I should give evidence in-chief on things that you feel are important, I’m not sure whether - - - HIS HONOUR: No, no. I’m not to – you’re not to concern yourself in that way… You should concern yourself with what you think I might think are important?--- Yes, good. HIS HONOUR: I’m not going to tell you unless I – I can ask you questions?--- You can ask me, cool. HIS HONOUR: And by the way, if I ask you a question, you’re entitled to object to answering it, just like as though I was a barrister?--- Right, thank you sir. HIS HONOUR: On the same grounds?---Right. HIS HONOUR: Including self-incrimination?---Right. Thankyou, sir. | Husband started his evidence in chief. Trial Judge allowed him to concentrate on things that he thought were important. Trial judge allowed husband considerable latitude. |
| April 1 | 3 4 | Line 25 “I won’t allow you to say that?---Won’t you. Can I say that my wife is now violent? HIS HONOUR: You can say what she has done but you’ve had the chance to say that in your affidavit?---What she has done? HIS HONOUR: Yes, what she has done which might lead me to conclude that she’s violent?---Okay, fine. Can I add to the end of the affidavit? The affidavit broke off? HIS HONOUR: You can add to your affidavit Line 4. “making these general allegations is not going to help you because you have to be more specific. As I said to you before, I am the determinant of matters – of the weight of your matters and if you simply make a statement like “She is very violent”…I don’t know what it means…You have to tell me so you have to be specific” | Judge refused to allow husband to assert that the wife was violent because it has not been put into an affidavit. Then at Line 34, trial judge allowed the husband to describe his wife as violent in a very general way. On the following page, trial Judge told the husband that he needed to be specific rather than general. He gave specific examples at line 10 and line 14. |
| April 1 | 4 | “Just a second, Mr Moss, tell your client to behave herself. She’s looking at the witness as he’s giving evidence and trying to influence him by shaking her head, grimacing in various ways and in other ways, in my opinion, interfering with his capacity to concentrate, and it’s no use her crying about it. Every time she does something with – every time during the course of these proceedings when something that she didn’t like has happened, she cries. It doesn’t impress me one bit.” | Trial Judge requested Mr Moss to get his client to cease making visible reactions to the proceedings in Court in view of their potential to distract Mr Fortnum and other members of the Court, including his Honour. |
| April 1 | 18 19 | Line 32 onwards “Mr Moss is asking you a line of questions about which you have a right to object on the grounds…of incrimination. But you have to tell me, it’s no use just sitting there… Because I don’t know whether you’re thinking of an answer or whether you’re just waiting for me to say something” Line 7 “That’s another question that you should consider whether you wish to answer it or not?---I object to answering that question, your Honour. HIS HONOUR: I won’t require it to be answered.” | Significant discussion about cross-examination of the husband and his right to silence in respect of matters that may incriminate him. Trial Judge provided constant assistance about objecting to questions because they may incriminate the husband. No indication of any bias or inappropriate conduct on the part of the trial judge. |
| April 1 | 22 | Line 32 “there may be critical things that may not be obvious and it’s possible that it might be unfair to you if they’re not put to you?---Yes. HIS HONOUR: So you had better think about those things. And what I mean by that is this. If [Ms Fortnum] has said something in her affidavit that you know you can prove is not true or explain away…normally the way that’s overcome is by each of the questions being put to you and then you get the chance to give this answer that really corrects everything. Now I want you to, over the lunch period… think about the evidence of [Ms Fortnum], if there is anything about that that you think can be explained and shown what she has said to be completely wrong. And even though Mr Moss hasn’t put it to you, you can then give that evidence in your re-examination...” | Trial Judge gave a comprehensive explanation about Browne v Dunn and Jones v Dunkel. Trial judge gave husband an opportunity over lunch to think about what evidence in re-examination he might want to give to explain things that had been put to him. |
| April 1 | 23 | Line 32 “You can’t both choose to either object or answer it…You’ve got to either object or answer it.” | Trial Judge endeavoured to explain that the husband can object to a question but he can’t then answer it as well as object. Appropriate advice. |
| April 2 | 49 | Line 1 onwards | Trial Judge canvassed with the husband gave him an opportunity to give explanations as to why he had not had contact pursuant to supervised contact orders. Nothing indicating inappropriate behaviour, bias or bullying. |
| April 2 (part 1) | 3 | Line 19 onwards “HIS HONOUR: Mr [Fortnum], do you understand, or appreciate I should say, that in any situation if the Court – where a Court would order a supervision, the supervisors will think that whatever they know or don’t know, will think that there is something suspicious going on and it will be you that they suspect, do you understand that?---Yes. And I’m not happy about it sir, your Honour. HIS HONOUR: I’m not suggesting that I’m going to do that Mr [Fortnum], but I’m telling you that that is one of the things you’re going to have to face in the event I do?---Yes. HIS HONOUR: It’s just inevitable, it’s just being foolish and naïve and failing to face reality something that you say you are keen to do?---I – yes. HIS HONOUR: If you concern yourself by the fact that [C] alone will be prejudiced against you, any supervisory will probably be prejudiced against you because of the inferences that arise from an order for supervision, do you understand that?” | Trial Judge explained the reasons why a court would order supervision of contact and the responsibilities for supervisors. No indication of bias or prejudgment. |
| July 5 | 7 | Line 30 “Mr [Fortnum], one of the reasons why I make sure that I say these things that I’m thinking is to give you the opportunity to know what I’m thinking. I haven’t made up my mind, but they’re my tentative thoughts. If I respond in the way I have been rather than sit silently, you have a much better, and in my view fairer opportunity to respond to what Mr Anderson says and to what I say, if you don’t agree with it and that’s the purpose... I want to make sure that you listen to what Mr Anderson, Mr Moss and I say in these submissions. As I say to you, I haven’t made up my mind, but every Judge has views of a conditional nature before finally making up their mind after they’ve heard everything and I have views, things that I’m weighing up, things that I think about, but I wouldn’t like you to think I’ve just made up my mind and what I’m saying is the final thing. There may be plenty of things that will make me change my mind… Or make my mind up in a different way more accurately, because I really haven’t made my mind up. I’m just weighing up things tentatively.” | Trial Judge gave tentative thoughts in final address but made clear that he had not made up his mind. |
| July 5 | 32 | Line 39 “What I’m going to say to you, Mr [Fortnum], you’re just getting nowhere with that point, because life is like that. What you’re suggesting is that all people or the majority of people are prejudiced in some way or another. Is that what you’re really suggesting? MR [FORTNUM]: What I’m attempting to suggest, your Honour, is that the predominance, as I see it, are women… HIS HONOUR: You would choose men, would you? MR [FORTNUM]: No, that’s the whole point that I’m trying to make. I don’t give a damn who they are. HIS HONOUR: Then why are you complaining? MR [FORTNUM]: It is because they are using subjective methods to assess… HIS HONOUR Because they’re women?... What is this method? …The one you’re suggesting?... Theirs is the one you’re criticising. There’s no use criticising something unless you can provide something that’s better. MR [FORTNUM]: Actually, sir, I believe I’m in the process of doing that, if you wouldn’t mind listening. HIS HONOUR: Tell me what it is that you are suggesting should have been done…” | Discussion about gender issues for witnesses. Trial judge endeavoured to have husband explain his objections to the females as witnesses. Nothing critical of the husband. Just testing his hypothesis |
| July 5 | 37 | Line 4 “So you’re saying this, Mr [Fortnum], that Dr [N] has deliberately stated something that you didn’t say?...Now, are you saying that is a lie?...What’s the difference?... Well, tell me how it is, Mr [Fortnum]?” | Trial Judge asked questions of the husband in final address endeavouring to ascertain what his position was. Dialogue does not indicate any prejudgment. |
| July 5 | 43 | Line 1 onwards. Note Line 18, trial judge says: “Well, if you’re so exhausted now or have other need for a break I’ll give you a break, a short break now, five minutes, but otherwise let’s just get on with it. We will be finished by quarter past four on what you’ve said”. Husband responds about needing some time and on the following page, page 44, the husband says after an invitation for a further five minutes, he does not think the matters will be any different. | General discussion by the trial Judge about not pushing the husband to complete. |
| July 5 | 46 | Line 25 onwards “HIS HONOUR: I don’t think he disagrees with that. You’ve been able to read them. MR [FORTNUM]: Yes, I might disagree with what their contents were, but I certainly have read them.” | Husband acknowledged having received copies of authorities and that whilst he did not agree with the content of them, he understood what was in them. |
Nothing to which the husband has referred the Court establishes any of the “bias and bullying” asserted by him. Our own close examination of the transcript of the proceedings before the trial Judge, both for the purpose of those complaints and for the complaint in relation to the delay between the completion of the trial and delivery of the trial Judge’s judgment, provides no basis for appellate intervention.
It remains only in terms of the complaints about the trial Judge’s conduct to consider the complaint arising from the delay in the delivery of Judgment.
As the authorities make clear, where there has been an extensive delay between the conclusion of the trial and the delivery of judgment, as clearly occurred in this case, the Court will “apply the strictest of scrutiny to a criminal judgment which may have been effected by the inevitably adverse consequences of delay”. (R v Maxwell(1998) 217 ALR 452) This Court has on a number of occasions, in the civil context, adopted that statement of principle (see McCrossen and McCrossen (2006) FLC 93-283; Guinness and Guinness [2008] FamCAFC 10).
This we have done although it should be said that no complaint made by the husband could reasonably be seen as being advanced by the dimming of recollection on the part of the trial Judge. That in itself is significant. This complaint is without substance.
Under the heading “Best interests of the child”, the husband asserted that:
76.The fundamental principle on which the Family Law Act reform of 1995 was based, was the need for every child to have meaningful and substantial contact with each parent.
He has further asserted:
77.His Honour gave only a lip service to this provision in spite of the above conclusion of a team of experts involved in the preparation of the cited report that children may suffer serious and long-term consequences of not having regular, substantial and meaningful contact with both of their parents. Instead, his Honour opted for the unqualified opinion about a bogus theory presented by a bogus “expert” who even defied explicit directive from her own professional association. This “expert” has been specifically flown from Victoria to Darwin and then to Sydney because those who were supposed to assist the Court in establishing the truth could not find anyone closer to home who was willing to trample over his or her ethical standards.
Notwithstanding his conclusion with respect to Ms Fortnum’s allegations of rape and abuse by the husband, the trial Judge carefully considered the provisions of s 68F(2) of the Act which, at that time, were the legislative provisions governing the determination of the parenting proceedings before him.
Objectively, only by completely ignoring the implications of the findings of fact in relation to both the husband’s abuse of Ms Fortnum, and his “grooming” of H, could the trial Judge have given the child’s wishes any weight.
His Honour was clearly not in doubt as to the child’s wishes. Nothing to which we have been referred establishes that his Honour erred in declining to give the child’s wishes the weight for which the husband contends.
In our view, having made the findings of fact which he did with respect to the husband’s rape and abuse of Ms Fortnum and his “grooming” of the child H for future sexual abuse it was more than reasonably open to the trial Judge to make the orders he did in refusing the husband contact with the child. Indeed, on the trial Judge’s findings of fact any order more favourable to the husband would have been unsupportable.
The references to the best interests of children being served by having contact with both parents is clearly predicated on such contact not involving the child in question being thereby exposed to the probability of abuse or an unacceptable risk of abuse. That was not the reality in this case.
No complaint agitated by the husband in his Summary of Argument has been shown to have substance.
Although most of the matters appearing in the husband’s document headed “Introduction to the problem” constitute no more than sweeping and unsubstantiated assertions, we record that we have read the entirety of the document. As is apparent from the first 26 paragraphs of the document, no matter raised there is capable of enlivening appellate intervention.
Similar observations apply to the sweeping and unsubstantiated assertions made by the husband under the heading “Asche/Cohen/H, Causal Link”. The question of “[Ms Fortnum’s] mental instability” was again traversed by the husband in a series of assertions unsubstantiated by reference to any matter to which we have not earlier referred.
The basis of the assertions that a judge in proceedings determined in 1986 and the solicitor and Counsel for the wife in the current proceedings in some way perverted the course of justice is not apparent, despite the 46 assertions made by the husband in support of that contention. Nor do the 10 assertions made under the heading “Solicitor/Psychologist/Psychiatrists causal link to violence against H” demonstrate a possible basis for appellate intervention.
We do not propose dignifying the series of assertions made by the husband under the heading “The Family Court” at the conclusion of his written outline of submissions with a response. We simply record that nothing there raised provides a basis for appellant intervention.
Conclusion
No ground of appeal having been shown to have substance, the husband’s appeal will be dismissed.
Costs
We propose directing that written submissions be made in support of any application for costs of the parenting appeal and in response to any such application.
The Costs Appeal
The husband's appeal against the trial Judge's order for costs remains to be determined.
We conclude that written submissions would be more appropriate, and cost effective, than an oral hearing of the husband's costs appeal. As our reasons in the primary appeal reveal, the husband is familiar with written submissions. With respect to him, nothing raised by the husband in his sensibly brief oral submissions at the hearing of the primary appeal advanced matters agitated by him in detail in his written material. We are not unmindful of the reality that, on the husband's own material, any costs awarded against him are unlikely to be recovered. These factors, combined with the more limited issues potentially relevant to the costs appeal persuade us that no injustice or disadvantage could be visited upon the husband if the costs appeal proceeds in reliance upon written submissions, and we shall order accordingly.
I certify that the preceding one hundred and sixty six (166) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 4 September 2008
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