GINGHAM & GINGHAM

[2013] FamCAFC 30

FAMILY COURT OF AUSTRALIA

GINGHAM & GINGHAM [2013] FamCAFC 30

FAMILY LAW – APPEAL – CHILDREN – Where the appellant mother appealed against orders inter alia providing for the child to live with the respondent father and spend no face-to-face contact with her unless the child might so otherwise request – Where there was evidence of the child expressing the view that he did not wish to have any face-to-face contact with the appellant mother – Where the appellant mother had absented herself from the child’s life for a significant period of time – Where the appellant mother was self-represented on the appeal – Where the appellant mother brought a number of complaints against the orders of the trial Judge – No appealable error established.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

APPELLANT: Ms Gingham

RESPONDENT: Mr Gingham

INDEPENDENT CHILDREN’S LAWYER: Ms Cleeland

APPEAL NUMBER: NA 46 of 2011

FILE NUMBER: BRC 2720 of 2010

DATE DELIVERED: 13 March 2013

PLACE DELIVERED: Sydney

DATE HEARD: 6 September 2012

PLACE HEARD: Brisbane

JUDGMENT OF: May, Strickland &
Ainslie-Wallace JJ

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 13 May 2011

LOWER COURT MNC: [2011] FamCA 223

REPRESENTATION

FOR THE APPELLANT: Ms Gingham in person

COUNSEL FOR THE RESPONDENT: Mr Hamwood

SOLICITOR FOR THE RESPONDENT: Crowley Greenhalgh Solicitors 

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Page SC

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sarah Cleeland Family Lawyers

Orders

1. The appeal is dismissed.

2. The application in an appeal filed by the appellant mother on 16 May 2012 is dismissed.

3. The appellant mother pay the respondent father’s costs of and incidental to the appeal as agreed by the parties or, failing such agreement, as assessed on a party-party basis by a Registrar of the Family Court of Australia.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE   

Appeal Number: NA 46 of 2011
File Number: BRC 2720 of 2010

Ms Gingham

Appellant

And

Mr Gingham

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Notice of Appeal filed 10 June 2011, Ms Gingham (“the mother”) appeals from parenting orders made by Murphy J on 13 May 2011 in relation to X (“the child”) who was born in November 1997. The child is now 15. Mr Gingham (“the father”) is the respondent to the appeal and he opposed the same.

2. An Independent Children’s Lawyer appeared before his Honour at trial.  Subsequently there was a change in that representation. Senior Counsel for the Independent Children’s Lawyer appeared on the appeal. Explaining that aid had only recently been granted he sought and was granted leave to file submissions out of time and then, with leave, withdrew.

3. On 13 May 2011, his Honour made the following declaration and orders (as relevant to the appeal):

   IT IS DECLARED THAT:

   1. The presumption of equal shared parental responsibility prescribed by the Family Law Act 1975 (“the Act”) is rebutted in the best interests of [the child]…

   IT IS ORDERED THAT

   Parental Responsibility

   2. The father shall have sole responsibility for making all such decisions as might be necessary in respect of the child’s schooling including, but not limited to, the school which the child attends.

   3. The father shall otherwise have sole parental responsibility for the child with respect to “major long-term issues” as that expression is defined in the Family Law Act 1975 (“the Act”), SAVE THAT prior to the father making the sole ultimate decision about each such major long-term issue he shall:

   a.Advise the mother in writing of the nature of the decision to be made and matters he is considering affecting that decision;

   b.Invite the mother to provide her succinct written input to that decision;

   c.Make the decision having considered the mother’s input;

   d.Inform the mother of his ultimate decision in writing.

   4. The father shall have sole parental responsibility for the child with respect to all issues that are not “major long-term issues” as defined in the Act.

   Live With, Time and Facilitation of Relationship

   5. The child shall live with the father.

   6. The child shall spend no face-to-face time with the mother save in accordance with the succeeding provisions of this order and save otherwise as he might request.

   …

   8. The father and mother shall, commencing on 1 August 2012, nominate in writing and seek to agree upon an appropriately qualified child and adolescent psychiatrist to be consulted by the child as and from 1 December 2012 with a view to the child discussing all such issues as he might choose and with a view to considering, with the assistance of that psychiatrist, the re-establishment of face-to-face time with his mother.

   …

   10. Each of the parties shall do all such things, sign all such authorities or other documents and the father pay all such fees as might be necessary so as to facilitate the attendance of the child, as and from 1 December 2012, upon the psychiatrist contemplated by paragraphs 8 or 9 of these Orders.

   …

   Communication

   13. The child is at liberty to telephone the mother twice per week (on Tuesday and Thursday or otherwise as agreed) and otherwise as he might choose, with such telephone calls to be initiated by the child, and the father shall do all such things as might be necessary so as to encourage and facilitate such calls.

   …

   17. Save as otherwise agreed between the parties in writing, the mother shall not, except in accordance with the provisions of these Orders, initiate communication with, or seek to initiate communication with, the child.

   18. Save as otherwise agreed between the parties in writing and except for the mother providing in writing her contact details to the child’s school, the mother be restrained, and an injunction issue restraining the mother, from contacting any school which the child shall attend, and from causing or permitting others to contact, or trying to contact, the child and any school he attends.

   …

   Leave to File Further Proceedings

   24. Neither the mother nor father shall file any application in respect of the child or these Orders without first obtaining the leave of the court and, in that event:

   i. An affidavit shall accompany such application setting out the reasons why leave should be granted, with such affidavit referring to these Orders and the Reasons for Judgment delivered herewith;

   ii. The application shall be served on the other party and the Independent Children’s Lawyer;

   iii. The other party and the Independent Children’s Lawyer shall be at liberty, should either or both so choose, to:

   (a)Not file a Response; and/or

   (b)Not file an affidavit in response; and/or

   (c)Not appear at the hearing of such application.

   IT IS FURTHER ORDERED THAT

   25. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

   …

4. It is unclear precisely which orders the mother appeals against, but from a combination of her Notice of Appeal and an email sent to the Court on 4 September 2012 just prior to the hearing of the appeal and in which she set out the orders that she was then seeking, it seems that she appeals against orders 2, 3, 4, 5, 6, 8, 10, 17, 18, 24 and 25.

5. We observe that in her Notice of Appeal the mother sought leave to appeal against the orders made by his Honour, but leave is not required.

6. The mother also filed an application in an appeal on 16 May 2012 seeking, in summary, that this Court obtain any transcripts that may be required for the purposes of the hearing of the appeal, leave to adduce evidence, leave to appeal against interlocutory orders made by the trial judge on 29 October 2010, and seeking to stay and amend various of the orders made by the trial judge.

7. By email dated 12 September 2012, the mother provided further brief submissions to the Court.  These submissions were received with the consent of the father.

Procedural History

1. As did the trial judge, we consider it necessary to first comment on the history of these proceedings, including what we regard to be a failure of the Federal Magistrates Court to afford the matter proper attention.

2. In 2007, proceedings between the parties in relation to the child were commenced in the Federal Magistrates Court of Australia. Prior to the commencement of those proceedings, the child’s primary caregiver was his mother. A three day hearing took place before Wilson FM in November 2007.  While the circumstances attending the conclusion of the matter are somewhat confusing, it seems that the mother dispensed with the services of her then counsel and indicated to the Court that, if the Federal Magistrate was minded to make an order that gave significant care of the child to the father, then the child was “better off being with him 365 days” and that she would effect that by bringing the child to Court.  The Federal Magistrate made an interim order on 7 November 2007 that the child live with the father “effective immediately”.  No provision was made for time to be spent between the mother and the child.  The Federal Magistrate indicated that reasons were to be delivered at a later date. No reasons were ever delivered. 

3. In March 2009, the mother, not having seen the child since the date of the interim order, sought to reopen the hearing because she said new evidence had come to light.  That application was successful. 

4. Federal Magistrate Wilson adjourned the matter on four occasions without either hearing the new evidence or delivering reasons in relation to the interim order of 7 November 2007.

5. On 26 February 2010, the Federal Magistrate of his own motion transferred the matter to the Family Court of Australia.  No reasons were given for this transfer.

6. In his reasons for judgment of 13 May 2011, the trial judge said of this history:

   4. I have expressed my consternation at this matter’s procedural history on numerous occasions.  In my view, it is, with respect, plainly unacceptable.  More importantly, it has, in my view, contributed to the situation currently faced by [the child] and his parents. 

7. We agree entirely with his Honour’s views.

Background

1. The proceedings thus have had a complex history.  Clearly the mother’s actions at the conclusion of the three day hearing before Wilson FM had far reaching and, from her point of view, disastrous consequences; consequences that she probably never foresaw.

2. Given this history, we set out some background from the evidence before the trial judge to give context to his Honour’s reasons for judgment and findings.

3. The proceedings were commenced by the mother who sought, inter alia, an order that the father pay the child’s school fees at a private school in Brisbane.  The father, in his response, sought orders that he have sole parental responsibility for the child; that the child live with him; and that he facilitate the child spending time with the mother in the event that the child asks to do so and provided that he is satisfied appropriate arrangements can be made.

4. While the matter was before the Federal Magistrates Court in 2007, Ms Q, a family consultant, interviewed the parties and the child, and prepared a family report for the Court dated 6 June 2007. 

5. At the time Ms Q interviewed the parties, the child was living with the mother and spending time with the father each alternate weekend and for half of the school holidays.  She noted that the father proposed that the child live with him and that he be solely responsible for making long term decisions for the child.  She said:

   [The father] is willing to consider [the child] spending up to equal time with the mother.  [The father] said his application was precipitated by [the mother’s] decision to change [the child’s] school without his agreement.

6. Ms Q said that she had concerns both as to the mother’s presentation to her and some matters of the mother’s history.  She recommended that the mother be assessed by a psychiatrist to determine her capacity to make major decisions about the child’s long term care and welfare.

7. Ms Q said:

   [The child’s] most significant attachment appears to be with his mother. She has undertaken the majority of his care for most of his life and this is apparent in the interactions he has with her. He is likely to miss his mother when he spends time away from her. Any changes to [the child’s] arrangements need to ensure that he continues to spend significant and substantial time with his mother.

8. On Ms Q’s recommendation, the Federal Magistrate ordered the mother to attend for psychiatric assessment to be conducted by Dr V.

9. Dr V interviewed the mother in July 2007 and prepared his first report for the Court dated 14 August 2007.

10. Dr V said:

    Mental state examination could find no evidence of a diagnosable psychiatric disorder in the areas of Psychosis, Organic Brain Syndrome, Mood or Anxiety. There were some aspects of her history that raised the possibility of a Somatisation Disorder in view of her unusual medical history…

    There were some aspects of the history, which in themselves might not be significant, but because of ongoing and unusual emotional responses and actions that would suggest that [the mother] shows features of having a Personality Disorder.

    …

    Notable aspects of her personality shows features of dissociation (removal from conscious awareness of emotionally distressing thoughts), dependency and rigid obsessionality.  Her rigid obsessionality affects judgment, as she can seem powerless to change a determined course of action despite obvious negative consequences as per the school experience. (original emphasis)

11. We observe that the final page of Dr V’s report was not included in the Appeal Books.

12. While the matter was before the Federal Magistrates Court in 2009, on instructions from the Independent Children’s Lawyer, Mr W, a psychologist, interviewed the parties and the child on two occasions and prepared a family report for the Court dated 10 November 2009.

13. Mr W focussed his report on the circumstances following the hearing in the Federal Magistrates Court in November 2007.  He said:

    [The child] has told me, during two interviews conducted approximately six months apart, that he does not want to spend time with his mother. He would also prefer not to have to speak on the telephone with her. He is of the opinion that his mother has lied to him and that she represents only an interference and disturbance in his life. …

14. Mr W referred to Dr V’s report and his comments about the mother’s personality with which he agreed.  He said:

    I am very concerned that the outstanding features of [the mother’s] personality, as noted above, will be harmful to [the child] should she spend time with him, in person, without supervision. She is very focussed on what she believes to be the need to ‘set the record straight’ with [the child], regarding what she understands his father has told him. …

15. Mr W recommended that the child live with the father.  He noted that the child would prefer that there be no communication with his mother which was, at that time, telephone calls twice each week.  He recommended that the telephone calls continue but be reduced to once each week.

16. Having read Mr W’s report, Dr V prepared the third report for the Court dated 18 October 2010.  Although he had made an appointment for the mother to see him, she did not attend.  He said:

    In my initial psychiatric assessment, I noted that “[the mother] is the primary psychological carer of [the child] and disruption of this attachment would have severe negative consequences for [the child]”. It is my opinion that [the mother’s] unilateral cessation of contact with [the child] following the Court Case of 2007, showed a severe lack of empathic parent attachment. This, unfortunately, confirms my assessment of a Personality Disorder but also adds a dimension of an inability to put her child’s needs ahead of her own, that is, it shows a pathological degree of failed attachment and bonding.

17. Dr V continued under the heading “In summary”:

    Given [the mother’s] trajectory regarding her relationship with her son, [the child], and some of her other behaviours and responses, I have no reason to change my diagnosis. The one important factor that has changed is that she is no longer [the child’s] primary psychological care-giver. This appears to have arisen as a result of her own actions.

    …

    On the basis of the information available to me at this point in time, and considering the severe attachment trauma she has subjected him to, it is my opinion that there are characteristics of [the mother] that impinge on her capacity to provide a reasonable ongoing care for [the child]. This is not to say that it may not be in [the child’s] interests to mend the disrupted relationship that he has suffered with her.

18. Ms R, a family consultant, prepared a family report dated 14 February 2011 after interviewing the child.

19. Ms R said:

    [The child] was abundantly clear in his stance that he did not want to pursue contact with his mother.

    …

    [The child’s] comments presented as reflective of his views. They did not present as the result of external influence. It is noted that he used age appropriate language and that he referred to events from his experience.

    Given the level of conflict that has existed between the parents, it is reasonable to assume that [the child] has been exposed to some comments about his mother from his father. However, [the child’s] comments at interview did not present as coached.

20. The mother obtained reports from two experts: Professor C, a psychologist; and Dr P, a consultant psychiatrist.  In his report dated 24 October 2010, Professor C said that, in his opinion, “[the mother] does not suffer from any diagnosable personality disorder or any significant psychopathology”.  In his report dated 13 October 2010, Dr P also found no evidence of any personality disorder, or affective or psychotic traits.  He made an Axis I diagnosis of “Chronic Adjustment Disorder, consequence of prolonged stress and grief reaction secondary to stress of alienation from her son and irresolvable conflict with her ex-husband”. 

21. Both experts gave evidence in the hearing before the trial judge.  His Honour, in our view correctly, gave little weight to their reports and to their oral evidence.  The report of Dr P was prepared on the instructions of the mother and was limited by the circumstance that he had not seen the child or the father and he did not have access to the family reports and Dr V’s report.  With the report of Professor C, he too had not seen the child or the father and he relied on the mother’s statements as being factual and the basis for his opinion.   

The Reasons for Judgment of the Trial Judge

1. The trial judge initially set out his findings as to uncontroversial matters (at [23]).  His Honour noted that, up until the proceedings before Wilson FM in 2007, the mother had been the child’s primary caregiver and his primary attachment (at [23, point 1]).  His Honour further noted that the parties were also in conflict being unable to agree on any matter touching on the child’s welfare or basic needs (at [23, point 2]).

2. His Honour observed that, at a time after the interim order of 7 November 2007, the child’s former nanny had a conversation with the child that led her to believe that the child wanted to be with his mother (at [26]).

3. However, after referring to the evidence of statements made by the child since November 2007, his Honour said:

   30. The tone and content of many, if not all, of those statements from a 13-year-old trouble me. I am also very troubled by the fact that (as the father agreed in the witness box) the evidence reveals that almost every statement by [the child] since coming into his father’s care is wholly negative of the mother and wholly positive of the father and his time with the father.

1. His Honour referred to the reports of Dr V and noted that, in his first report dated 14 August 2007, Dr V said that, while he found no evidence of a diagnosable psychiatric disorder, there were circumstances that “…would suggest that [the mother] shows features of having a Personality Disorder” (at [46]).

2. His Honour continued:

   48. At the time of writing this report, the mother was [the child’s] primary carer and Dr [V] observed “irrespective of the personality disturbance, it is clear that [the mother] is the primary psychological carer of [the child] and disruption of this attachment would have severe negative consequence for [the child]”.

3. His Honour observed in relation to Dr V’s further report dated 18 October 2010 and prepared after the interim order of 7 November 2007:

   61. According to Dr [V], the events following on and directly following 7 November 2007 would have caused significant distress to [the child]. Dr [V] made the following observations regarding those events in his report filed 19 October 2010:

   It is my opinion that [the mother’s] unilateral cessation of contact with [the child] following the Court Case of 2007, showed a severe lack of empathic parent attachment. This, unfortunately, confirms my assessment of a Personality Disorder but also adds a dimension of an inability to put her child’s needs ahead of her own. That is, it shows a pathological degree of failed attachment and bonding. …

4. After reviewing the evidence of the experts, his Honour said:

   63. This evidence gives added emphasis, and in my view cogency, to Mr [W’s] often repeated opinion that [the child’s] own direct experiences of his mother are sufficient to explain his current views of her (as opposed to, for instance, [the child’s] exposure to comments made by his father and/or the father’s partner Ms [K]).

5. His Honour considered the views expressed by the child and the apparent change in them over the time since the interim order of 7 November 2007.   

6. His Honour noted the mother’s submission that the child had been exposed to negative comments made about her by the father and his partner. His Honour said that he was “…not prepared to accord to the father as benign a role in [the child’s] developing statements about his mother…” (at [76]).

7. His Honour continued:

   77. ….Here, I am quite convinced that Dr [V’s] evidence provides the key to understanding [the child’s] statements. However much he is “parotting” what he has heard or making statements by rote, the statements represent his true feelings because they represent honestly portrayed “defensive psychological postures” used as a means of “reconciling what he perceived as an abandoning mother”.

8. His Honour concluded:

   107. There can be no doubt that the mother is completely preoccupied with her fervent belief that the father has exposed [the child] to negative statements about her and it is as a result of such statements (and, probably, only as a result of those statements) that [the child] feels the way he does. It will be clear that I disagree; her own actions (and inaction) are, in my judgment, a telling contribution. And, even more unfortunately, I consider that [the child’s] own experiences significantly account for his current views of his mother.

9. His Honour returned to the issue of the child’s views later in his reasons for judgment. His Honour found that those views had been in part shaped by the child’s exposure to negative comments about and hostility to the mother by the father and his partner (at [233]). His Honour found that the father had, “…contrary to his evidence, failed to properly insulate [the child] from those comments” (at [233]).

10. Despite these findings, his Honour said:

    234. However, in my judgment, [the child’s] exposure to those comments have played but a minor part in shaping his current views. Of far greater significance as contributors to his considered views are:

    ·His experience of his mother’s sudden absence from his life in circumstances where his parents had been in high conflict and his mother had, erstwhile, been his primary carer.

    ·His experience of his mother’s behaviours which have embarrassed and upset him deeply (the “[child’s former school] incident” is the best example).

    ·His exposure to his mother’s obsessiveness.

    ·His experience of greater emotional and psychological peace and stability since coming into his father’s care.

11. There was no dispute that, since the interim order of 7 November 2007, the mother had not seen the child face-to-face but had had telephone contact with him.  The parties disputed the reason why that was so.  The father asserted that the mother had not attempted to see the child.  The mother denied this.

12. His Honour found:

    116. There is little doubt that the mother has attempted to have face-to-face contact with [the child], including, for instance, on significant occasions… But, evidence of more recent times however, does not counter the assertion that immediately following the 2007 proceedings the mother made no attempt to contact [the child] or arrange for contact with him nor does it diminish the strength of that fact as a foundation for the expert opinions of Dr [V] and Mr [W] earlier referred to.

13. His Honour considered the matters to which s 60CC(2)(a) and (b) refer, namely the benefit to the child of having a meaningful relationship with each parent and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence (at [168] and following).

14. His Honour concluded:

    171. The sad reality of this case is that [the child] has not seen his mother or had any form of meaningful contact with her (other than by way of telephone calls) in nearly four years. What is more, [the child] has fervently asserted that he wants nothing to do with his mother, and would prefer it if she left him alone.

15. His Honour though, accepting the expert evidence, found that it was likely that in the future the child may find a way of making a relationship with the mother.

16. After considering the evidence of Dr V and other reporters who had interviewed the child, his Honour said:

    182. On their face, the opinions of Mr [W] and Ms [R] seem somewhat at odds with that of Dr [V]. But, on closer inspection, all three are, in my view, remarkably similar. Whilst Dr [V] is of the view that ultimately, [the child] should have a relationship with his mother (and may very well find his own way to her), the re-commencement of such a relationship is, according to Dr [V], largely dependent on [the child’s] emotional state. The reports and oral evidence of Mr [W] and Ms [R] suggest that, at the current time, [the child] is not currently in an emotional state necessary for contact between him and his mother to be of any benefit to him.

17. The mother raised a number of concerns about the child being in his father’s care. 

18. The mother said that, in 2007 and again in 2010, the child threatened to commit suicide. In respect of the first incident, his Honour referred to an email sent from the child’s school in which the Head of Junior School said that he discussed the matter with the child and felt that “…[the child’s] comments that he wants to ‘kill himself’… probably came from the emotional ‘melt down’ that [the child] did have [at school] but most probably as a result of tiredness, overload and the difficulties in making the transition to his new school…” (at [119]). In respect of the second incident, the threat was said to be contained in some creative writing done by the child in the course of NAPLAN testing. In light of the evidence of Mr W and the letter from [the child’s school] describing the “stimulus picture” as depicting “a lady in a harness on a flying fox about to step off a cliff”, his Honour did not accept that what the child had said was a threat to commit suicide (at [123]).

19. In 2002, the child was diagnosed with ADHD and a regime of medication was prescribed.  His condition and the medication regime are supervised by a medical practitioner.  The evidence before his Honour was to the effect that the child’s condition requires a stable and routine environment.  The issue of compliance with the medication regime was an issue before his Honour.  The mother asserted that the child’s academic results had significantly declined since he had been in the care of his father and alleged that it was because the father was not providing the child with his medication.  She also asserted that the child had many absences from school which were also because of the father’s failure to provide the child with his medication.  The mother further asserted that when the child broke his arm it was because he had not been medicated.

20. His Honour found no deterioration in the child’s academic results (at [131]), nor that his absences from school were excessive and were as a result of a failure to medicate him (at [135]). His Honour did not accept that the evidence supported the mother’s contention about the child’s broken arm (at [143]). His Honour found that the father had taken appropriate steps to ensure that the child is medicated in accordance with the directions from his treating doctor (at [145]).

21. His Honour also referred to the mother’s allegation that, nine years before, the father had assaulted her (at [183] and following).  His Honour found that the mother’s evidence as to this “is a very significant exaggeration and, possibly, completely false”. 

22. His Honour concluded as to all these allegations:

    188. The evidence before the Court falls a long way short of that which would be required to find that [the child] is at risk of either physical or psychological harm whilst in his father’s care. [The child’s] reports of that care are positive. Ms [K] [the father’s partner] struck me as an honest witness; her account is of a very positive relationship. There is no reliable evidence that suggests otherwise.

23. A concern expressed by the father and supported by the expert opinion was that the mother would, should she have face-to-face contact with the child, “attempt to set the record straight” in that she would tell the child what “she perceives to be the truth” (at [147]). His Honour concluded that, based on the evidence before him and his own observations of the mother, she would not be able to stop herself from doing that if she had the opportunity to speak to the child directly (at [149]).

24. His Honour declined to afford the child’s views little weight as had been submitted by the mother.  His Honour found that the child’s views were more likely to be a reflection of his experiences rather than the influence of the father (at [191]).

25. The relationship between the child and his mother was described by his Honour as “very tenuous” (at [192]), and his Honour said that the child’s account was that he likes living with his father (at [194]).

26. Turning to the issue of parental responsibility, his Honour found that the parents were unable to cooperate on any level about the child’s welfare and found that it was in his best interests for the presumption to be rebutted (at [226]).

27. Considering the mother’s proposed orders, his Honour found that her proposals would be highly detrimental to the child (at [243]). His Honour said, referring to the mother’s proposed orders, that they were “…wholly contrary to the views of a mature, intelligent and thoughtful 14-year-old child” (at [233]).

28. In terms of being able to discuss long term issues about the child’s care with the father, his Honour found that the long standing intractable disputes about the child’s school demonstrates that the parties are incapable of reaching a consensus and the father should be “ultimately responsible” for making those decisions albeit with a process of consultation (at [246]).

29. His Honour said:

    249. The issues just discussed lead in my view to a conclusion which would see orders that permit [the child] to continue to live with his father; to accept [the child’s] wish to not have face-to-face time with his mother for the time being; to permit him to continue to have telephone contact with his mother (two times a week and as he requests) and to communicate by email and letter.

    250. Also, however, they lead to a conclusion that some steps should be put in place to provide a structure within which [the child] might be assisted to commence a process of repair of the relationship with his mother and, consequently, a re-approachment to her, but on his terms and at his pace.

The Appeal

1. The mother’s Notice of Appeal contains three grounds of appeal.  Ground 1 asserts that his Honour’s decision was against the weight of the evidence.  Ground 2 asserts a denial of procedural fairness and natural justice.  Ground 3 challenges the “legal route” taken by his Honour in arriving at his decision.

2. In her written summary of argument, the mother helpfully groups those grounds under two broad headings. In addition, she provided the Court with very comprehensive submissions with detailed references to the transcript, exhibits and evidence.  We have carefully read and considered the mother’s submissions and the references contained therein.  It is not necessary for us then to repeat the mother’s submissions or set out here the detail contained in the references.

3. It is important to note that the mother’s written summary of argument does not precisely relate to the grounds set out in the Notice of Appeal.  The father’s submissions though align with the mother’s written summary and the responses correspond with the mother’s headings in that summary.  We too will consider the appeal grounds as set out in the mother’s written summary.

4. Before considering the grounds of appeal, we consider it necessary to refer to the orders sought by the mother.  In her Notice of Appeal, the mother sought that certain orders made by the trial judge be set aside and that others be amended.  She also effectively sought that, if the appeal was successful, the matter be remitted for rehearing.  Then, in her email sent to the Court on 4 September 2012 and referred to in paragraph 4 above, the mother indicated that she no longer sought that the matter be remitted for rehearing, but she did seek the following interim orders:

   1.Stay upon order 17–18 pending setting aside of final orders

   2.Amend order 13 immediately by way of deleting the word “father” and inserting the word “school”

   3.Amend order 8-10 effective immediately “no less than 4 joint sessions per month with the first joint appointment occurring on or before the 30/9/2012” to be amended by way of mutual consent between the appellant and child

   4.Leave for the appellant to file further late written submissions regarding the issue of prejudice foreshadowed above - if still deemed necessary no later than the 7^th October 2012

   (appeal book references omitted).

   By way of final orders, the mother sought that orders 2, 3, 4, 5, 6, 17, 18, 24, 25 and parts of the judgment of the trial judge be set aside as well as seeking the grant of a costs certificate

5. We have a number of concerns about these proposed orders including that it is not possible in this case to set aside parts of the judgment of the trial judge.  We agree with the submission of the father that, “[t]he effect of the orders sought by the appellant would be to deprive the child of any of the protections afforded by those orders currently and to give the appellant carte blanche with respect both to her relations with regard to the child and to any further proceedings she might wish to commence”.

6. In any event, we now turn to the mother’s grounds of appeal as contained in her written summary.  We have set out those grounds without alteration or amendment.

Ground 1:  Denial of procedural fairness and natural justice by way of the following circumstances resulting in numerous errors of facts

1. Before considering the matters to which the mother refers under this section, we observe that the “errors of fact” identified by the mother seem to us to be findings of fact made by his Honour which do not conform to the mother’s submissions or proposed orders in the case.

(a) Court have (sic) destroyed/lost valuable trial evidence and documents held under subpoena

1. The mother contends that “[o]ver 1000 pieces of valuable trial evidence held under subpoena” have been “lost”. 

2. It seems that the mother inspected the court files and, she says, found that documents were no longer held by the Court. 

3. The mother engaged in correspondence with the Court about what she claimed to be “missing documents”. 

4. The evidence in this regard is not found in the trial transcripts (except obliquely) but is comprised in numerous emails passing between the Appeals Registrar and the mother.

5. By her application in an appeal filed 16 May 2012, the mother sought, amongst other things, leave to adduce further evidence on the appeal in relation to the issue of “lost documents”.  The mother attached the emails and correspondence between the Registrar and her on the issue of documents.

6. The emails and correspondence attached to the mother’s application commence on 5 April 2012.  Emails and correspondence on the same point from late November 2011 have been extracted from the court file to give a complete view of the mother’s claims.

7. By letter from the Court dated 13 March 2012, the mother was informed that, in accordance with usual practice, documents produced to the Court pursuant to subpoena had either been returned to the person or body that supplied the documents, or, with the consent of the supplying person or body, had been destroyed.  It is important to appreciate that documents produced under subpoena that are later destroyed are merely copies of original documents held by the supplier.  To say that the documents had been destroyed does not mean that the documents ceased to exist.

8. It seems to us from the emails and correspondence between the mother and the Registrar, that the issue ultimately devolved not to a search for documents previously produced and now unable to be located (although the mother submitted that some documents were never found) but rather to the mother pressing for some sort of “admission” that the Court had “destroyed documents”.  In the mother’s application in an appeal, she seeks to introduce copies of these documents as further evidence.  It is obvious to us that in many respects she is in possession of copies of the documents that she says are “missing”. 

9. Although the mother submitted that “over 1000” pieces of evidence had been lost, in her written submissions she makes specific reference only to some documents.  We will concern ourselves with the specific documents mentioned in her submissions on the appeal.

Department of Education 

1. In her oral submissions on the appeal, the mother conceded that subpoenas had been issued to the Department of Education and were answered.  However, she asserted that there was a “gap” in the material produced.  She did not specify what in particular was missing nor did she (other than appears in her submissions and to which we will refer) indicate any document or class of document that she wanted to tender from documents produced to the Court under subpoena and which were not available.

2. On 27 October 2010, the first day of the hearing, his Honour discussed the evidence to be relied on.  The mother had filed a voluminous affidavit to which some 680 pages of documents were annexed.  The mother told his Honour that “…all the other documents are attached to my affidavit that are held under subpoena”. The mother said, “[t]here’s over a thousand, but the ones I seek to rely upon are there”.  She explained that the documents that were not annexed to the affidavit were documents produced by the Department of Education and in relation to which no leave to photocopy had been given.  She indicated that she wanted to tender the whole Department file.  His Honour quite reasonably asked her instead to “…identify… those documents which you say are relevant to the decision I need to make…”.  His Honour observed later that the mother had marked documents on which she wished to rely from the produced documents from the Department of Education.

1. His Honour said to the mother:

   So – all right, we will clarify the position and make sure that we identify the matters that are – the documents that are annexed to your affidavit as being part of your evidence---at the same time that we deal with the items that you propose to tag in the Department of Education file.

2. His Honour then confirmed with the mother that “…[n]o other evidence will be relied upon by you---or looked at or considered by me in your case for the purpose of these proceedings” [Transcript 27 October 2010, p. 30, lines 23-28].  She agreed.

3. After the mother had been cross-examined by the father and the Independent Children’s Lawyer, his Honour discussed with her a process by which she would give some evidence, in effect, by way of re-examination.  During that discussion, the Independent Children’s Lawyer referred to an issue raised in cross-examination (to which we have already referred), being the mother’s assertion that the child had threatened suicide in writing he had produced at school. The Independent Children’s Lawyer said that she had suggested to the mother that the source of the assertion could have been in some creative writing produced by the child.  The Independent Children’s Lawyer informed his Honour that the mother had subpoenaed the Department file and documents had been produced as a result.  She tendered several pages from the produced documents.  The mother subsequently tendered correspondence with the child’s school and a further document she received from that school.

4. The mother made no complaint to his Honour that, on inspection of the documents produced by the Department of Education, documents were missing or that she was in any way hampered by not having documents from the Department of Education necessary to her case.

5. As referred to above, after the hearing of the appeal had concluded, the mother sent further submissions on this point with the consent of the father.  In the submissions she asserts:

   Order dated 22/6/2010 number 8 - The ICL was only granted leave to issue a further subpoena in relation to child’s schooling for documents created subsequent to the previous subpoena issued by the Department of Education which the courts have now confirmed as being destroyed. I note that Mr Hamwoods oral submissions to the court were in effect that ‘this later subpoena issued by the ICL requested the same materials now in dispute’.

6. The further submission does not advance the mother’s argument about missing documents.

After School Care Records

1. The mother specifically referred to the attendance records for the child’s after school care as documents that were “lost”. 

2. She contended that records from the child’s school, had they been available, would have demonstrated that after the father took over the care of the child he was collected by a number of people other than the father.

3. The mother was seeking to refute the father’s assertion that “he would be the primary carer” of the child for “90% of the time”, and said that documents that would have enabled her to disprove this assertion had been “lost”.

4. In this regard, the transcript references in the footnotes to her submissions do not concern missing documents but her request of the trial judge to “complete her cross examination of the husband” which was in fact an application to recall him for further cross-examination, an application which was refused by the trial judge.

5. The mother complained to his Honour that although he made an order requiring the Independent Children’s Lawyer to issue subpoenas on her behalf, the Independent Children’s Lawyer had not issued subpoenas to the child’s school seeking the identity of the people who had collected the child from after school care.  There was the following exchange between his Honour and the Independent Children’s Lawyer:

   HIS HONOUR: Well, there has been an ongoing debate issue about whether the father discloses the names of carers and the like. It has been going on forever.

   MS BRASCH: That’s right.  Your Honour, the independent children’s lawyer has done their darndest, done their best, to find them – the three people, even though the order is only concerning Ms [J]. But as I understand the mother’s case, she wishes to assert that other people – these three identities – are dropping the child to school, picking the child up. We have been able to secure the sign in and sign out records for the child, which – a tally has been done. So in my submission, the relevant evidence will be able to be before the court, being how many times the father, or Ms [K], or [D] or anybody else, drops the child to before or after school care and collects the child. (our emphasis)

6. The mother also persisted in seeking to issue subpoenas to the people who, she said, would be able to give evidence that the child was not medicated on instructions from the father.  His Honour declined to permit subpoenas to be issued to them.

7. The after school care documents were available to the mother and tendered in the trial.  Copies of them were attached to her affidavit in support of the application in an appeal to adduce further evidence.  She did not refer to any other documents that would have assisted her to disprove the father’s assertion and which were unavailable.

School Attendance

1. The mother asserted that the records of the child’s school attendance would have assisted her in proving that, once the father had taken on the care of the child, his school attendance dropped markedly.

2. His Honour referred to the issue of the child’s absences from school and to the mother’s submission that the absences were as a result of the father not attending properly to the child’s medication.  His Honour rejected both that the absences were excessive and that they were as a result of a failure to medicate (at [132 and following]).

3. The mother cross-examined the father on the school records.  She showed him documents produced by the school which set out the child’s absences and the reason for the particular absence, if given.  The documents established, and it was agreed, that in 2009 and 2010 the child had been absent from school for 24 days.  In respect of some of those absences, notes were given, on others, none.

4. In suggesting to the father that while the child was in her care he only had five days absent from school, a proposition that the father rejected, the mother asserted that the “documents will show” that he only had five days away from school.  The mother conceded to his Honour that these documents were not “under subpoena”.

5. First, it seems clear that the mother had documents sufficient to allow her to make the point about the school absences, a fact that the father conceded.  Secondly, at no time in this cross-examination did she complain to the trial judge that documents she needed were missing or otherwise unavailable.

6. The mother makes the general assertion that “valuable evidence held under subpoena” was destroyed by the Court.  As we have said, this is an apparent misunderstanding of the handling of produced documents.  It seems that, notwithstanding the emails and correspondence from the Registrar, the mother continues to assert that the Court destroyed documents in the sense that no copies of those documents continue to exist.  That the mother clearly has copies of relevant documents seems proof positive of the falsity of her assertions.

7. We find that in this regard, the mother suffered no prejudice nor has she shown any appealable error.

(b) Court’s unacceptable delays – 6 years for the contact applications – 6 yrs (sic) for the departure applications and 8 yrs (sic) for the contravention applications

1. We have already agreed with the trial judge’s assessment of the way in which the case was handled in the Federal Magistrates Court and, again, we say that it was wholly unacceptable.

2. The mother justifiably complains about the delays she encountered in the Federal Magistrates Court.  Unfortunate as it was, there is little to be gained on this appeal from traversing the failings of the Federal Magistrate.  It is true that when Wilson FM transferred the matter to the Family Court, the mother’s applications seeking that the father be dealt with for contravention of orders had not been determined.  None of those applications was dealt with by the Federal Magistrate before the transfer.

3. Part of the mother’s complaint under this heading relates to the contravention applications.  She contends that the trial judge was in error in failing to deal with her contravention applications and applications for associated orders.  As we indicated to her during the course of the appeal, the contravention applications, while no doubt contained in the file transferred from the Federal Magistrates Court, were not listed for determination before the trial judge and it was unsurprising then that they were not finalised.  The mother was under the misapprehension that because she listed the contravention applications and supporting affidavits in her list of documents to be relied on in the trial before the trial judge, that in some way his Honour was obliged to determine those applications.  That is not the case, and thus no error has resulted.

4. In the document sent to the Court after the appeal hearing, the mother made further submissions on this point.  She said:

   I note that the Family Commonwealth Portal reflects that the amended application in case filed by myself pursuant to order 22/6/2010 3 (b) for final orders relating to enforcement proceedings including parenting and financial matters (appeal book 1 pg 155) was accepted by way of orders dated 20/9/2010 4 (k) (appeal book 1 pg 158 titled ‘final orders no 22 contravention proceedings’ and pg 50 (k)). I also note that the orders dated 22/6/2010 pt 3 (a-c) grant me leave to rely upon the contravention applications annexed within my affidavit in chief (doc 36 pgs 225-941) as described within my finals (sic) orders sought in amended application in case dated 10/9/2010 titled ‘final orders enforcement hearing’ and again described within my summary of argument for the final hearing of the matter (doc 59 pg 1296-1423) further supported by trial submissions (doc 68 pg 1460-95).

5. On 22 June 2010 in preparation for the trial, his Honour ordered the mother to file and serve one affidavit of her evidence in chief (3(a)) and that she file a further amended application “setting out the orders sought by her at the final hearing of this matter, including any application for costs under section 10 of the Federal Proceedings (Costs) Act 1981” (3(b)).  The mother filed these documents.  Then, on 20 September 2010 his Honour ordered:

   b. i. The mother is granted leave to rely upon all documents filed by her in respect of the forthcoming final hearing of the matter, notwithstanding that such documents have been filed later than the date specified in earlier orders made by his Honour Justice Murphy.

6. His Honour further ordered:

   4. k. The mother is granted leave to rely upon that part of the Amended Application in a Case filed on 10 September 2010 commencing with the heading “Final Parenting Orders Sought” as an Amended Application for Final Orders.

7. On 10 September 2010 the mother filed an amended application in a case in which she sought interim pre-trial orders, in Part D she sets out the 17 final parenting orders sought by her. Order 18 seeks an order that the costs of her proposed witnesses be paid pursuant to s 10 of the Federal Proceedings (Costs) Act 1981 (Cth), orders 19-22 seeks discharge of various orders earlier made. Order 22 (repeated) seeks:

   That the courts apply the maximum penalty of $6000 per breach of each court order as detailed within the contravention proceedings of the mother and the father forward a cheque payable to [the mother] as trustee for [the child] for the future benefits of the child.

8. As we understand the mother’s argument on this point, the leave granted by the trial judge on 20 September 2010 had the effect of causing order 22 to become one of the final orders sought in the trial.  She then claims that by reference to the contravention applications annexed to her trial affidavit, his Honour then became seized of the issue of the alleged contraventions.  This submission is both wrong and disingenuous.  The order sought as order 22 could never be properly considered an invitation to the trial judge to embark on a hearing of some inchoate allegations contained in applications attached to the mother’s affidavit.

9. His Honour did not deal with the contravention applications because they were not properly before him.  No error has been demonstrated.

(c) Court’s failure to provide Appellant’s trial submissions to his honor (sic) in accordance with his trial directions prior to the writing of the judgment

1. The basis for this ground is not found in the evidence before his Honour but in events that occurred after the trial concluded and before his Honour delivered his reasons for judgment.

2. On or about 18 April 2011, after the matter had concluded and the trial judge had reserved his decision, the mother sent an email to the Registrar attaching a submission for delivery to the trial judge.  The mother’s email said that his Honour had granted her leave to file a document which merged her written summary of argument and her trial submissions.  She sent a further revised document to the Registrar on 19 April 2011.  She asked on 20 April 2011 that the Registrar confirm that the document had been forwarded to the trial judge.  She wrote again on 28 April 2011 observing that “his Honour has still not received a copy of my enclosed submissions”.

3. On 29 April 2011 the Registrar wrote to all parties seeking their consent to the delivery of that document to the trial judge and asking that consent be given by 4pm on 4 May 2011.

4. On 4 May 2011 the Registrar wrote to all parties advising that, there being no opposition to the delivery of the submissions to the trial judge, the document was that day provided to the trial judge’s chambers.

5. Although not apparent from the email correspondence that the mother included in these pages of the appeal book, it seems that the Registrar must have informed the mother that the consent of the other parties was required before the submissions could be delivered to the trial judge, because in her email to the Registrar the mother says:

   I find it unfair and prejudicial to myself and my child that you rely upon the respondents interpretation of his honors directions and not allow his honor to adjudicate upon this issue himself for which I was granted appropriate leave to ensure this document arrived no later than last Monday.

6. In any event, on the morning of 4 May 2011, the submissions were delivered to the trial judge’s chambers.

7. The judgment was delivered on 13 May 2011.

8. The mother asserts that the trial judge had not received her submissions before writing his judgment and, to demonstrate the correctness of her assertion, observes that his Honour’s findings do not reflect the orders sought by her and his Honour did not give sufficient weight to the matters on which the submissions rested.

9. Apart from the mother having no basis in fact for asserting that the judgment was written before her submissions were received, it seems that she had given the trial judge a version of those submissions during the final stage of the hearing and her trial summary was before his Honour at the outset of the trial.  The document which was delivered after the conclusion of the case was a “merger” of those two documents and a document to which the mother had added references.

10. Her assertion is not supported by any evidence.  That his Honour came to a decision that was not consistent with her submissions and made orders which were different from those she propounded is not evidence of her assertion.  There is no merit in this complaint.

(d) Court’s failure to provide family report writers with correct materials

1. When Ms Q was engaged to interview the parties and prepare a report for the proceedings in the Federal Magistrates Court, the mother was concerned that Ms Q had not been given “6 of the professional expert affidavits supporting the appellant’s case”.  She argued on the appeal that subsequent report writers “relied heavily” on this initial report, perpetuating the difficulty [the mother’s written summary of argument, page 5].

2. In an effort to ensure that Ms Q, who made the original family report, had all relevant documents, the mother sent an email to the Federal Magistrate annexing the omitted documents.  That email was tendered before the trial judge (Exhibit M6). 

3. When Mr W was cross-examined by the mother, she put to him that by not having considered the reports of Dr P and Professor C, his opinion was “unbalanced” [Transcript 16 February 2011, p. 190].  The mother did not challenge Mr W of having placed undue reliance on Ms Q’s report nor did she suggest to him that he had not had the benefit of reading the affidavits which she said Ms Q had not been given. 

4. However, when cross-examining Ms R on her report, the mother did suggest to her that she was at a disadvantage by not having had read “nine affidavits” which she said were affidavits by a Professor S, Dr L, Dr W and [the child’s former nanny] [Transcript 12 April 2011, p. 49].  Ms R had not seen those documents.  The mother then read considerable parts of the evidence of Dr V to Ms R.

5. The mother did not suggest to Ms R in what way her opinion might have been assisted by reading the affidavits to which she referred.

6. The mother also contended that the expert reports relied on controversial issues that she said were subsequently disproved and, it seems, argued as a consequence, that their conclusions could not safely be relied on.

7. In cross-examination, the mother put a series of propositions to Dr V because she said that information given to him earlier had been incorrect.  Dr V did not change his earlier expressed view because of the information put to him by the mother.

8. It seems to us that the mother misunderstood the role of the report writer which is not to decide facts; that was for his Honour to do.  Indeed, his Honour told the mother precisely that [Transcript 29 October 2010, p. 5].

9. It was of course open to the mother to challenge the experts on their opinions by reference to the asserted omitted documents and the resolved controversies, but she failed to do so and she cannot now challenge his Honour’s findings on that basis. 

(e) Appellant denied leave to tenders (sic) exhibits, issue subpoenas, or cross examine key witnesses on issues that were central to the trial dispute resulting in numerous errors of fact

Tender of Documents

1. On 12 April 2011 the matter resumed having been adjourned part heard.  When the hearing commenced on that day, the mother sought his Honour’s leave to tender documents that had been produced under subpoena but which had not yet been tendered.  The mother indicated that she had marked the relevant pages with tags.  The documents were produced by a Professor S, a Professor of Clinical Psychology.  His Honour gave the mother leave to reopen her case to tender these documents.

2. As we have noted, when the matter resumed, the mother had already been cross-examined by all parties.  His Honour gave her the opportunity to give some evidence by way of re-examination.  In that process the mother sought to tender documents that she said would disprove assertions of the father.  In relation to each proposed tender, his Honour heard the mother’s submissions on the document’s relevance and ruled on each proposed tender.  In this process, the mother indicated that she wished to tender the NAPLAN documents on which she had cross-examined Dr V and in relation to which she proposed to ask the father some questions.  The documents were tendered.

3. His Honour was fully seized of the issues in dispute.  The admission or rejection of proposed tenders was squarely a matter for him.  That he ruled that some proposed tenders were irrelevant to the issues for determination despite the mother’s view otherwise does not speak of error.

Issuance of Subpoenas

1. This complaint relates to the mother’s desire to issue subpoenas to people who had collected the child from after school care and is a topic that we have already touched upon.  His Honour had earlier made a direction that any subpoenas that the mother wished to issue would be issued by the Independent Children’s Lawyer.  His Honour however asked the mother why she wished to call evidence from these people given that the records from the before and after school care centre were available and demonstrated who delivered the child and who collected him after school.  She said [Transcript 27 October 2010, p. 12, lines 27-31]:

   MS [GINGHAM]: Well the primary carers that had more care than the father, looking at the statistics here, will be able to provide the court with valuable evidence that [the child] was not medicated in the morning or evening and that nobody attended to his homework, his education or his medical needs, and that they were instructed not to medicate him. …

2. In response to his Honour’s question about how the mother could know this, she said that “a long time ago” she had spoken to one person who cared for the child.  In answer to his Honour’s further question about the evidence the other people could give, the mother said; “[w]ell, this is why I require to cross-examine them”.

3. Unsurprisingly, his Honour refused to permit subpoenas to be issued to the nominated people merely on the basis of an assumption by the mother of what they might or might not say.  We find no error in his Honour’s approach. 

Examination of Important Witnesses

1. The mother told his Honour that she wished to “finish my cross-examination of the father” [Transcript 12 April 2011, p. 15, line 3].  At his Honour’s invitation the mother indicated the areas on which she wished to further cross examine the father.  His Honour heard the mother’s submissions and ruled in relation to each proposed area of cross-examination.  It is important to understand that the mother had already cross-examined the father and her application was, in effect, to cause the father to be recalled for further cross-examination.  His Honour reminded the mother of the imperative of concluding the case to bring certainty to the child and the parties.  Without repeating each of the issues on which the mother wished the father to be recalled, some were clearly entirely irrelevant to his Honour’s determination, and the judge said so.  For example, she wished to cross examine the father (and had unsuccessfully sought to tender documents on the same point) to show that the father had driven under the influence of alcohol.  She also wished to cross examine him to suggest that he had improperly interfered in her Bankruptcy proceedings by having contact with the Trustee in Bankruptcy.  His Honour’s refusal to allow further cross-examination on these and other issues was entirely correct. 

2. There were other matters raised by the mother in respect of which his Honour pointed out that the father had made concessions and there was thus no need to ask questions or tender documents.  As to other issues, his Honour was able to tell the mother that there was sufficient evidence on the point so as not to require the father to be cross-examined again. 

3. That his Honour refused to permit further cross-examination also has to be seen in the context that the case before him concerned a child whom the mother had not seen in three years and who said he did not want to see her.  In the light of this pressing issue, it is clear to us why his Honour found that he would not be assisted by evidence on the topics suggested by the mother.

4. The mother also complains that his Honour refused to allow her to further cross examine Dr V about “what personality disorder he would diagnose the father with” and on other issues that the mother said had been asserted but which “[had] now been disproved” [the mother’s written summary of argument, page 6]. 

5. The essence of this submission seems to be that the mother wished to cross examine Dr V to see whether he would change his opinion that the father did not have a personality disorder.  The issue of Dr V’s opinion about the father’s mental state is considered in another ground of appeal. 

6. We note that Dr V gave evidence on 17 February 2011 and the mother cross-examined him extensively.  During that cross-examination, the mother put a series of propositions to him based on matters that she said were incorrect.  Dr V did not change his opinion.  At the conclusion of all of the evidence on 12 April 2011 the mother requested his Honour’s leave to re-call Dr V for further cross-examination.  The basis for the application was [Transcript 12 April 2011, p. 83, lines 39-43]:

   …Dr [V] states in one of his early reports that if your Honour found that the evidence – my – any of my contentions were true, and your Honour found evidence to support that, that he would reassess his diagnosis of the father as having a personality disorder, but he didn’t state which or what form, and that was on the presumption that your Honour found that the evidence was correct…

7. His Honour refused the application. 

8. Importantly, his Honour, on numerous occasions, told the mother that the trial, having had three days of hearing in October 2010 and a further three days allocated to it in early 2011, had to finish. Practically and legislatively, his Honour was obliged to conduct the trial in as expeditiously a manner as possible. Section 69ZN of the Act plainly sets out the principles to be applied in conducting child-related proceedings. One such principle is that the proceedings are to be conducted without undue delay. Further, s 69ZX of the Act specifically provides that the Court may limit or not allow cross-examination of a witness.

9. As Division 12A of the Act emphasises, the reception or otherwise of evidence is a matter within his Honour’s discretion, and we find no error in the exercise of that discretion in this case.

(f)   His honor (sic) erred in fact and law when he failed to adequately deal with contravention proceedings before him or give appropriate reasons for many of his decisions which went against the weight of the expert evidence

1. We have already addressed the issue of the contravention applications and the mother’s misapprehension as to whether they were before his Honour for determination.

2. As to the assertion that his Honour failed to give adequate reasons for his decisions in relation to the expert evidence, we have set out above his Honour’s consideration of the competing opinions of the experts.  His Honour’s reasoning process for not accepting the opinions of Dr P and Professor C are entirely apparent from the judgment.  No error has been demonstrated in this regard.

3. The balance of the submission concerns witnesses to whose evidence, it is said, his Honour failed to give appropriate weight.  The challenge is one to the exercise of his Honour’s discretion.

4. At the commencement of the appeal hearing, the presiding judge, Justice May, read to the mother part of the well known paragraph from the decision of the High Court of Australia in House v The King (1936) 55 CLR 499, one of the many authorities that govern an appeal from the exercise of discretion. It is appropriate that we now set out in these reasons what was said in that case by Dixon, Evatt and McTiernan JJ 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 effect 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.

5. As we have said, and as the authorities make clear, this Court will not interfere with the exercise of discretion in the absence of appealable error being demonstrated.  The mother has not shown any such error.

(g) His honor (sic) erred in fact when finding there are no reasons on file with respect to the transfer of the trial proceedings

1. This ground relates to a comment made by his Honour in the course of delivering an ex tempore judgment on 29 October 2010.  Whether or not the Federal Magistrate gave reasons for transferring the matter from the Federal Magistrates Court to the Family Court can have and did not have any bearing on his Honour’s decision or findings made in the trial before him.  Thus there is no error here.

(h)  His honor (sic) erred in fact when not awarding the appellant the requested costs certificate supported by the evidence. Or grant (sic) the appellant costs reserved

1. In about June 2010, the mother made an application for an order pursuant to s 10 of the Federal Proceedings (Costs) Act 1981 (Cth). His Honour dealt with this application in his reasons for judgment delivered on 29 October 2010 and dismissed the application. His Honour said:

   114.To the extent that the mother asserts that there is any basis, pursuant to the Federal Proceedings (Costs) Act 1981 in respect of any proceedings before me, I find that there is no basis, whatsoever, for any such application. 

   115.If the application is, as I apprehend, in respect of the proceedings which the mother contends were incomplete before Wilson FM, it seems to me that there is a significant difficulty in my making that order, even if I considered that the circumstances were such as to invoke the potential application of the section. 

   116.It seems to me by, for example, reference to s 10(2) of that legislation that, if an order is to be made by me, it must be in respect of “proceedings” which are before me that satisfy the conditions to which the section refers – death, resignation, removal, dismissal from office, protracted illness and the like.

   117.Any application made pursuant to s 10, (whatever might otherwise be its applicability or inapplicability), made in respect of proceedings before Wilson FM cannot be directed to me for the making of an order. That part of the application by the mother is dismissed.

   Despite this, the mother subsequently raised this again before his Honour.  She submitted that his Honour indicated that she was entitled to a costs certificate in respect of the proceedings before Wilson FM if there was evidence to show “loss of commission”.

2. The mother said to his Honour [Transcript 15 February 2011, p. 43 line 42 to p. 44 line 2]:

   You made an order that I could actually, under the Costs Act 1981, section 10, subsection (2) request a costs certificate be issued to myself in the circumstances that the trial has been brought on as a consequence of the federal magistrate losing his commission. But I just wish to adduce evidence – a transcript of a judgment – point 14– that states – the federal magistrate states that his commission expires on 28 February 2010, and for your consideration to issue that costs certificate up to date.

3. His Honour responded [Transcript 15 February 2011, p. 44, lines 6-12]:

   ---but didn’t I make a ruling that, if you wished to apply for a costs certificate in respect of proceedings---in the Federal Magistrates Court, it seemed to me, subject to any other argument that I haven’t yet received – it seemed to me that that “those proceedings” were proceedings in a court separately constituted to this court, and quite distinct form this court, and had to be made to that court?

4. After further submission from the mother, his Honour said:

   But my ruling is, right or wrong, that I do not have the power to issue a costs certificate---I don’t have the power to issue a costs certificate in proceedings in a separate court from this court.

5. His Honour’s ruling was entirely correct.  He made no error in refusing to grant a costs certificate.

(i)     The end orders granted resulted in the total cessation of all contact with the appellant and child and go directly against his honors (sic) own reasons for judgment, the evidence and the intent of the legislation

1. To the extent that the mother argues here that his Honour erred in applying the legislation, we will consider that under the mother’s second ground of appeal. 

2. Otherwise, this challenge to his Honour’s orders seems to us to be flawed.  His Honour’s orders provided not only for communication between the mother and the child (twice weekly by telephone and by email or letter) but his orders provided for a system by which, hopefully, the rift in the relationship between the child and the mother could be repaired.  If the thrust of the challenge though is that his Honour’s orders did not provide for face-to-face contact between the mother and the child, his orders did indeed have that effect, and we are not persuaded that his Honour erred in this determination. 

3. We note that the mother’s submission is to the effect that this Court would rectify those orders.  As we indicated to the mother during oral argument though, in a case such as this, even if appealable error was found, the only course this Court would take would be to remit the whole of the proceedings for re-hearing. 

(j)     His honor (sic) failed to deal with the appellants (sic) list of objections bias and apprehended bias or the appellants (sic) complaints regarding documents destroyed by the court

1. A number of complaints are made under this ground, some of which have already been considered by us under earlier appeal grounds, others of which challenge the weight or importance placed by his Honour on evidence or challenge the correctness of his Honour’s findings of fact, arguing that a different finding should have been made.

2. As to the issue of objections, when the trial started before his Honour on 27 October 2010 he discussed with the parties the evidence on which each was to rely and the witnesses proposed to be called.  The mother took objections to parts of the affidavits filed by the other parties and his Honour ruled in relation to them [Transcript 27 October 2010, p. 24 and following].  Further, a reading of the transcript shows that the mother was well able to make objections to evidence during the trial and to make submissions in support of the objection.  His Honour heard those objections and ruled accordingly.  No error is demonstrated here.

3. As to the challenge by the mother to findings of fact made by his Honour, or the submission that his Honour ought to have found the facts differently, we do not propose to set out all of the contentions of the mother nor the submissions in support, although we have paid close attention to her written submissions and the supporting footnotes.  There are some matters though raised by the mother to which we will particularly refer.

4. From page nine of the written submissions, the mother complains that his Honour erred in accepting Dr V’s evidence; that his Honour was in error in not accepting and acting on the evidence of Dr P and Professor C and that any observation of her behaviour in court was “normal for a stressed litigant and the court should in these circumstances request an adjournment”.

5. It was entirely a matter for his Honour as to the weight he placed on the evidence before him in coming to his conclusion.  That is the essence of a discretionary decision.  As we have indicated, simply because another judge may have come to a different finding on the same evidence or because the result is not one which the mother hoped, does not amount to appealable error.  Equally, that his Honour found little assistance from the opinions of Dr P and Professor C was a matter entirely open to him and well explained in the reasons.  Having read the transcript and the evidence before his Honour, not only do we find no error here, we agree with his Honour’s conclusions.

6. How the mother conducted herself was a relevant issue for the judge and was described by a number of expert witnesses. 

7. In her cross-examination of Mr W, the mother raised this issue directly.  She said [Transcript 16 February 2011, p. 196, lines 1-29]:

   MS [GINGHAM]: Okay. What if - if his Honour finds that the affidavits of the two professors, who state that I don’t have a personality disorder, is correct, and you use that as your basis as to why I’m going to---

   Would that change your recommendation of the risk that I pose to [the child], potential risk?---I haven’t said you have a personality disorder, firstly; I haven’t said that.

   Okay?---I don’t think whether or not you have a personality disorder is important to understand. I’ve witnessed in you directly; I’ve witnessed in you today, by being cross-examined you; I’ve witnessed during the interviews with you; I’ve read the material you’ve prepared; I’ve seen your approach to the family law dispute, I’ve heard from your child his experiences with you; I’ve heard other people’s accounts of your behaviour; and I’ve concluded that your behaviour, your judgment your capacity to exercise your judgment, make decisions, have relationships, manage relationships, to interpret reality, to perceive, to remember, to anticipate to project yourself into other people, and other people into you, that all of those things impair you to the point that you are not a parent who can care independently for your child. That’s what I have concluded.

8. His Honour indicated to the mother that Mr W’s observations “tend to bear out” his Honour’s concern about the mother [Transcript 16 February 2011, p. 197, line 1].

9. Dr V, in reference to whether the relationship between the mother and the child could be rehabilitated, said [Transcript 17 February 2011, p. 19, lines 5-12]:

   Yes. And exploration the capacity to repair – the repair the relationship. Obviously the one that comes to mind is [the child’s] emotional state, and how he’s going to adapt to it. But I think the other issue is the administrative issues in term to, in terms of trying to – to engender that is likely to raise a whole lot of issues about the capacity of mum and dad to – to deal with that, and also in terms of reopening that whole issue – of which parent is going to drive or make decisions around these areas. And is it my strong impression that with due respect, it would be a nightmare working with you.  

   (emphasis added)

10. At this point his Honour said to the mother [Transcript 17 February 2011, p. 19, lines 23-29]:

    Let’s just pause to consider what Dr [V] has said…the Doctor is not in the business of making gratuitous offensive comments…so that when he says to you…it would be a nightmare working with you, that’s not a criticism, that’s not a gratuitous comment, that’s not taking the opportunity to be offensive that’s a clinical judgment…

11. His Honour gave the mother the opportunity to ask Dr V questions about his comment and what it meant.  She said [Transcript 17 February 2011, p. 20, lines 30-33]:

    Okay. I am – the – my behaviours and observations in a legalistic environment with respect to this whole court are unusual, and it’s been observed – and they’re unusual. I put it to you, Dr [V], that these behaviours that are exclusive to the courtroom – and Mr [W] has highlighted them as me… 

12. His Honour interrupted the mother and said [Transcript 17 February 2011, p. 20 line 38 – p. 21 line 23]:

    …I absolutely guarantee you that I consider it an extremely difficult, profoundly stressful, profoundly difficult thing for parents to have to represent themselves in court but particularly in parenting cases… I direct no criticism to you whatsoever in and about your handling of the case.

    …

    That’s not the point that Dr [V] is making. The point that Dr [V] is making is based on his clinical observations of you outside of the courtroom, so too Mr [W]. And the point I was making to you yesterday had nothing to do with the handling of the case, but rather was an observation of the means by which your personality manifested itself in the courtroom, which is a different matter.

1. The mother asked Dr V whether, once the litigation was concluded whether she would “go back to normal, or near normal, as documented for the most of my life”.  Dr V said that he thought that there would be some improvement but added that it would be difficult to know whether it would resolve because his first assessment was conducted in 2007 before the court based trauma.

2. As we have said, it was for his Honour to consider the expert evidence and give weight to the opinions expressed.  That Dr P and Professor C expressed different opinions is not to the point.  The evidence before his Honour more than enabled him to make the comment at [59] of the reasons for judgment:

   The observations of each of those experts and particularly, the references to rigidity, obsession with detail and the tendency to be demanding are all entirely consistent with my own observations and impressions of the mother’s demeanour and material.

3. This ground further contains a complaint that “[n]o party sought a finding with respect to…the…issue of a personality disorder and therefore it was not up to his honor to make this findings which was not supported by the…evidence”.  In her footnotes, the mother points to [56] of his Honour’s reasons for judgment.

4. At that paragraph his Honour refers to Dr V’s report and said:

   …Dr [V] reaffirmed his previous conclusion that the mother was suffering from a Personality Disorder…

5. It is to be recalled that Dr V’s involvement in the matter came about because of concerns expressed by Ms Q about the mother.  The order was that he asses the mother’s capacity to make decisions about the child.  That he came to a preliminary view in his first report that the mother exhibited behaviour suggestive of a personality disorder and that subsequently firmed as his view was entirely within his expertise and the ambit of that which he was asked to asses.

6. It is important to bear squarely in mind Dr V’s opinion given [Transcript 17 February 2011, p. 13 line 40 – p. 14 line 4]:

   Well, the child had a very close, trusting, enduring relationship with the mother, which was abandoned in a very short period of time, and which endured for a surprisingly long period of time. I think the information that I had from the…that following the dramatic exit from court, and the giving of the care of the child to the father, there was really effectively no contact for many months, maybe six – nine – nine to 12 months, I don’t know the exact period of time. And I would hypothesise that that would have been a incredibly painful, traumatic and damaging event that is likely to have resulted in a number of defensive psychological postures by [the child] in terms of reconciling how to deal with what he perceived as an abandoning mother, and that the issue of parental alienation I think, in the context of that, and given what available evidence we have, is a relatively minor event.

7. We find no error established.

8. A further complaint in this ground is that his Honour did not give sufficient weight to “his own findings that; ‘the father has a blind spot with respect to our son’s education’”.  The mother cites [54] of his Honour’s reasons for judgment where his Honour said:

   Dr V did state that:

   [The father’s] concern about [the child’s] continued need for affection and the plans for boarding school next year suggests a mild blind spot on his part in understanding issues of bonding and attachment. This may reflect his early upbringing and education as well as some rural pragmatics of meeting children’s educational needs. It does not suggest that he is unfit to be his son’s main or only Carer.

9. Again, the weight to be attached to the evidence is a matter for the exercise of the trial judge’s discretion and no error in that regard has been demonstrated.  It is pertinent to observe, in the context of this case in which the child had not seen his mother for three years and who expressed a firm wish to have no further contact with her, the father’s “mild blind spot” about education seems to us to be a matter of small moment amongst the matters for his Honour to consider.

10. It was also the mother’s contention that the child’s school grades had deteriorated significantly while in his father’s care and that this deterioration was a direct result of the father refusing to provide the child with his prescribed medication for ADHD.

11. We have touched on this issue already, but for completeness we observe that his Honour considered these assertions at length in his reasons for judgment (at [124] and following).  He noted the father’s denial that he failed to give the child his medication and referred to the evidence of Mr W in which he said that the child told him that he takes his medication every day (at [126]).  His Honour’s rejection of the mother’s contention about the child’s grades was one entirely open to him on the evidence and no error is demonstrated.

(k)    Objections to Mr Hamwood misleading the witness by way of providing historical facts that were full of factual controversy over ruled (sic) resulted in errors of fact

1. The mother points to [40] and [41] of his Honour’s reasons for judgment as the foundation for this ground of challenge.  These paragraphs comprise part of his Honour’s consideration of the evidence of Professor C who had prepared a report at the mother’s behest and which addressed the mother’s mental health and also expressed opinions about the father and his adherence to the medication regime for the child.  As we have referred to already, his Honour considered that the background material on which Professor C based his opinion was limited by not having seen either the child or the father and, that in relation to some controversial issues, including that of the child’s medication, Professor C had accepted the mother’s statements on the matter.

2. His Honour said:

   40. As but one example, Professor [C] states that Dr [V’s] reference to the mother suffering from Multiple Sclerosis was “inaccurate” as the mother “emphatically denied ever having MS”.  If Professor [C] had been provided with the mother’s earlier affidavits, he would have noted that, in 2007, the mother herself referred to having Multiple Sclerosis.

   41. During oral evidence, Professor [C] said that he relied upon the mother’s information whenever a dispute arose between versions in the material. When, during oral evidence, the Professor was provided with a more detailed recitation of the evidence currently before the Court, the professor stated that, in light of that evidence, it would seem that the mother has a “vendetta against the father”.

3. The mother’s submission on this point proceeds on the basis that, in setting out this point, his Honour accepted that the mother did indeed have a vendetta against the father.  His Honour did not make that finding. 

4. In cross-examination of Professor C, the father’s counsel put to him various suggestions made by the mother in relation to the father, such as that a skiing accident suffered by her may have been caused by the father’s ex-fiancée, and that the brakes of her car may have been tampered with causing an accident and the father was the most likely person to have done it.  At this point the mother interrupted and the following exchange occurred [Transcript 29 October 2010, p. 50]:

   MS [GINGHAM]: No. I said I didn’t know who had done it, Mr Hamwood, but I---

   HIS HONOUR: But it didn’t stop you attributing the possibility of it to the father, though, did it?

   MS [GINGHAM]: I was in a fearful state. I’ve been an abused woman….

   MS [GINGHAM]: I’m fearful. I said that the most probable suspect, or the only suspect person that I could think of that would harm me would be the father---but that I didn’t know.

   HIS HONOUR: …That’s probably the fair way to put it, Professor, that the only viable suspect was the father. Yes, what do you say? That told you?---Apart from issues of paranoid personality, you would have to be asking questions of whether there is a vendetta going on.

5. Professor C said that of these assertions by the mother, apart from questions of paranoid personality, “another prosaic explanation would be that [the mother] is engaged in a vendetta against her husband, her against him, and is seeing everything in the worst possible light beyond that which many people might regard as being remotely reasonable through reasons of vindictiveness or spite or whatever”.  He then suggested that “…in all fairness, another very remote option is that all of these things did happen” [Transcript 29 October 2011, p. 51].

6. It is also to the point to observe that during his cross-examination Professor C agreed that his assessment of the mother “to the extent that it relies upon information provided by [her], is restricted in terms of its accuracy to the extent that that information is reliable”.  In this regard, he agreed that the mother had not told him that she had been an involuntary psychiatric patient in the past.  Understandably, Professor C said that this information would have been of assistance to him in coming to his conclusions about the mother’s mental health [Transcript 29 October 2011, p. 51].

7. In her submissions, the mother suggested that Dr V should have revised his diagnosis of the father, and she refers to the final page of Dr V’s report on the father dated 10 September 2009.  He there said:

   Mental state examination could find no evidence of a diagnosable Psychiatric Disorder and no evidence of a Personality Disorder. He displayed good judgment and insight….

   I note there is voluminous documentation, especially from [the mother], describing domestic violence, alcohol abuse, neglect and unusual behaviour and actions of [the father].

   The discernment of the validity of these allegations is something for the Court to decide.

   On the basis of my examination of both parties, I can find little to support these allegations.

   However, if the Court does find that the general thrust of these allegations is true, then I will revise my opinion as to whether [the father] has a Personality Disorder.

   I can find no evidence that demonstrates maladaptive parenting in [the father], which would preclude him from caring for [the child].

8. Dr V reviewed both the father and mother in 2010.  In his report in relation to the father he said, after noting that on review there was no “substantial variance” from his earlier assessment:

   As events unfolded, [the father] was forced to take on the full-time parenting role of his son… He appears to have performed his duties as a parent at a good level. There is no evidence that [the child] was either inappropriately treated or maltreated by his father….

   He shows no signs of a diagnosable psychiatric illness or a Personality Disorder.

9. Although the mother cross-examined Dr V at some length, she did not suggest to him that he was wrong in not altering his opinion of the father’s mental state.

10. The mother has not demonstrated any appealable error in the various arguments made under the first ground.

Ground 2: His honor (sic) erred in Law as a consequence of reasons stated in appeal point 1 when not taking the correct legal route in accordance with Family Law Legislation Amendment Bill 2011 and the (sic) Family Law Act 1975 sect 60cc factors when not placing appropriate weight upon the evidence as described within the appellant’s submissions, summary of argument and chronology resulting in numerous errors of facts (sic)

1. This ground seems to encompass a number of issues; first, that his Honour’s errors in fact finding to which the first ground of appeal relates, were such that there was an error of law.  As we have indicated, no error has been established by the mother under the first ground of appeal, and thus this argument must fail. 

2. Secondly, that his Honour failed to adhere to the legislative pathway in determining the parenting issues, and thirdly that his Honour failed to give sufficient weight to the evidence to which the mother referred in her submissions, her written summary of argument and her chronology in determining those issues, and thus fell into error.

3. We turn first to consider the mother’s submission that his Honour failed to conform to the legislative pathway in determining where the best interests of the child lie, and, ultimately, what order he should make.

4. It is quite clear from the reasons, especially those commencing at paragraph 160 that his Honour appreciated the relevant statutory provisions and followed them logically.

5. As to s 60CC(2)(a), his Honour considered the benefit to the child of a meaningful relationship with the mother and thereafter set out the evidence and his relevant findings including that the relationship with the mother was “very tenuous and, as the child expresses it at least, burdensome” (at [192]), and concluded that the child was not then in such an emotional state that contact with the mother would be a benefit to him.

6. In her oral submissions the mother argued that the trial judge had failed to weigh the benefit to the child of a meaningful relationship with her and to consider the question of whether it was in the child’s interest to spend substantial and significant time with her against the father’s failure to facilitate the child’s relationship with her.

7. To have made such an order would have been completely against the expert evidence. In addition the mother complained that the father had not provided opportunities for the child to spend time with her, by not informing her of major decisions concerning the child’s schooling and about the child’s medication. In relation to these final matters, his Honour found at [155] and [157] that the father knew full well that the issue of the child’s schooling was important to the mother but did not inform her of the proposed change and that the father deliberately failed to inform her of a proposed change.

8. The mother in her written summary of argument submitted that the child had been subjected to conduct which amounted to abuse (s 60CC(2)(b)), and using her headings:

1.      Preventing Family member from making or keeping connections/contact with the child

1. The mother emphasised that since the child has been placed in the care of the father no “contact has occurred for 5 years despite orders permitting same”, and the child has expressed negative views about her and about seeing her.

2. She further argues that the father’s assertion that she did not seek contact with the child after the November 2007 hearing was false.  As we have referred to already, his Honour did not accept the father’s account of this and found at [116] that the mother had attempted to have face to face contact with the child including on significant occasions.  He did however find as follows:

   116. …But, evidence of more recent times however, does not counter the assertion that immediately following the 2007 proceedings the mother made no attempt to contact [the child] or arrange for contact with him nor does it diminish the strength of that fact as a foundation for the expert opinions of Dr [V] and Mr [W] earlier referred to.

2.      Repeated derogatory taunts – denigration

1. The mother refers to her assertions that the father has denigrated her to and in front of the child.  These assertions were not the subject of findings by his Honour, however his Honour was alive to the fact that the father had not, contrary to his assertions in evidence, properly shielded the child from adverse or hostile comments about the mother made by him or in his presence.

3.      Deprivation of liberty – child exposed or present during acts of violence including economic abuse. Subsection 67ZBA applies when violence is alleged by a parent and appropriate consideration should be made by the courts when making end orders

1. In this submission the mother makes reference to her assertions and her interpretation of the evidence, none of which was accepted by his Honour.  For example, the mother contends that the trial judge erred in preventing her cross-examining the father on her assertion that he had taken action “…to evade a property settlement in the amount of $619780-00 by way of his dishonest conduct which his honor denied leave to cross examine the witness upon. (sic) Is now supported by documents held under subpoena and forms the basis of the fathers subsequent complaints surrounding the appellants bankruptcy and should have resulted in major findings of credit against this person the likes of those made earlier by the court” (Mother’s written submission page 20 paragraph 3(f)).  We observe that matters concerning the parties’ property were not before his Honour.  To the extent that the submission concerns findings made by his Honour, the mother challenges the correctness of the findings, and asserts that the findings were not open to his Honour. We do not accept the mother’s complaints in this regard.

4.      Causing child to suffer psychological or physical harm which threatens a child’s physical, emotional, psychological education (sic) and behavioural wellbeing

1. Again, the matters on which the mother relies in submitting that this applies here are assertions made by her during the hearing before the trial judge, but which were not found as facts by him.  The mother submits that the child has suffered emotional abuse because the father “[Refused] to provide [the child] with the educational environment he needs in accordance with the orders of the court and undertakings to comply with the recommendations of Dr [L] and other professionals” (Mother’s written submission, page 23, 4(d)).  We understand that this relates to the child’s need for medication and the mother’s complaint that the father has persistently failed to provide the medication prescribed for the child.  The trial judge rejected the mother’s contention, finding that the father had adhered to the child’s medication regime.

5.      Neglect is defined to cover failure of medical attention

1. Here the mother repeats her assertion that the father had failed to maintain the child’s medication regime and her contention that, as a result, the child’s school marks declined dramatically and he was frequently absent from school.  We point out again that his Honour found at [145] that the father had “taken the steps necessary to ensure that [the child] is medicated in accordance with the direction of appropriately qualified professionals”.  Further, his Honour did not accept the assertion that the child’s absences from school were either excessive or related to a failure to provide him with his proper medication (at [135]), nor that his school marks had dramatically declined (at [131]).

2. The mother also argued that his Honour failed to adopt the correct approach to the additional considerations under s 60CC, in particular by not taking proper account of the child’s wishes.

3. His Honour considered this issue from [160]. There he said, correctly in our view, that the child’s views, “permeate every aspect of these proceedings” (at [162]) but noted that they were but one of the s 60CC considerations (at [164]).

4. In determining what parenting orders to make, his Honour observed that, while the father had failed “to properly insulate” the child from hostile comments and negative views about the mother, he concluded that this played but a minor role in the child’s views as expressed (at [233] and [234]).

5. His Honour then considered the presumption of equal shared parental responsibility and, in light of the sustained conflict between the parties, found at [227] it to be in the child’s interests that the presumption be rebutted.

6. He further found that the parties were “utterly incapable” of reaching consensus about important issues in the child’s life (at [246]).

7. His Honour’s reasoning leading to that conclusion was conducted in accordance with the legislation.  Although the mother argued that his Honour placed insufficient weight on the father’s failures to facilitate contact and insufficient weight on the benefit to the child of a meaningful relationship with the mother, those matters fall squarely within his Honour’s discretion and no error in that exercise has been demonstrated.  In our view, the decision to which his Honour came was not only open to him on the evidence, but it was driven by the strength of the evidence.

1. No error has been demonstrated in how his Honour followed the legislative pathway. 

2. Turning to the third matter raised under this ground of appeal, that of weight attributed by his Honour to the evidence and the asserted error in not giving effect to the mother’s submissions, and in her oral argument, the mother helpfully summarised the points of challenge that she makes under this heading.

3. She argued that his Honour placed too much weight on the child’s views expressed to the experts who gave evidence in the trial before his Honour without taking properly into account his views recorded in 2007.

4. The mother further argued that his Honour had not taken sufficient account of the child’s statements that he was afraid of his father.  She referred to [65] of his Honour’s ex tempore reasons for judgment delivered on an interlocutory application on 29 October 2010 in which his Honour quotes from the report of Ms Q where she reports on her interview with the child:

   …[The child] did appear nervous about the interview process. He asked the interviewer and the childcare workers, several times, if he would be interviewed with his father. [The child] was gregarious, humorous and chatty during the interview except when asked anything about parenting arrangements. At these times, he averted his gaze and answered, “I don’t know”. The impression was gained, [the child] wished to avoid talking about this.

5. It is appropriate however to consider the subsequent paragraph in his Honour’s reasons for judgment where he said:

   68. Apart from that sentence, I can see no reference, by [the child], to any adverse comments made about his father. The position then, on the evidence before me, other than from the parties, is that, as at May 2007, after [the child] had been in the continuous primary care of his mother for the vast majority of his life, [the child] was saying nothing adverse about either of his parents.

6. The mother submitted that his Honour ought to have taken the comment of Ms Q together with the content of the documents attached to her affidavit, and in particular the mother’s alleged breaches of domestic violence orders in assessing the weight to give the child’s views.

7. As we have already observed, his Honour accepted as being uncontroversial that before proceedings started in 2007, the child’s primary carer was the mother and his primary attachment was to her, and that a conversation between the child and his former nanny suggested that after the events of November 2007 the child still wanted to be with his mother.  However, at the time of the hearing, as his Honour said:  

   28. First, [the child] has, effectively, told anyone who will listen to him that he wishes to continue living with his father and that he does not wish to have any meaningful face-to-face contact with his mother…..Further, whilst [the child] has had telephone contact with his mother for some time, occurring twice weekly, [the child] is reported as saying that such contact is too frequent.

8. The mother, in oral argument, accepted that the evidence established that the child has said many negative things about her since November 2007, but disputed that they are reflective of his real feelings and asserted that the father had poisoned his mind against her.

9. As we have already pointed out, his Honour accepted the evidence of Dr V supported by Mr W and Ms M, saying:

   77. …Here I am quite convinced that Dr [V’s] evidence provides the key to understanding [the child’s] statements. However much he is “parotting” what he has heard or making statements by rote, the statements represent his true feelings because they represent honestly portrayed “defensive psychological posture” used as a means of “reconciling what he perceived as an abandoning mother.”

10. The overwhelming effect of the evidence before his Honour was that although there was a time after the orders of November 2007 that the child wished to see his mother, he was implacably against any contact with her at the time of the hearing. 

11. Indeed his wishes were that there be no contact between them of any nature, including telephone calls.  His Honour’s orders do not accede to the child’s wishes in that regard, considering the expert opinion that it was in the child’s interest that contact of that type should continue and that some reconciliation with his mother should be attempted with expert help.

12. The weight to be attached to the child’s views was part of the exercise of his Honour’s discretion, and the mother has not demonstrated any appealable error in this regard.

13. The mother, under this ground, again raises the delays experienced in the Federal Magistrates Court.  She argues that his Honour did not give sufficient weight to the delay as it affected the child, and she refers to the evidence that she was the undisputed primary psychological attachment for the child in 2007.  It is not apparent though what the mother would have flow from this submission.  His Honour was clear in his criticism of the delay in dealing with the mother’s case.  He was also clearly mindful of the need to complete the case before him so as to bring some certainty to the child’s future.  The unfortunate fact from the point of view of the mother was that, accepting the evidence of Dr V, Mr W and Ms R, the child considered himself to have been abandoned by the mother, and did not want to have anything to do with her.  His Honour was clearly mindful of this and no error has been demonstrated in how his Honour addressed this.

Application in an Appeal

1. We now turn to consider the application in an appeal filed by the mother on 16 May 2012.

2. Save for the application to adduce further evidence, and the order sought in relation to transcript, none of the orders sought in that application are properly matters for an application in an appeal.

3. As to the issue of transcript, of the nine days or part days of hearing before the trial judge, the only transcript not contained in the appeal books is that of the hearing between 2:10pm and 2:55pm on 14 April 2012 (day nine), and that would appear to be when oral submissions were being made.  We do not require this part of the transcript to determine this appeal.

4. The “further” evidence attached to the mother’s affidavit in support of the application was in fact not documentary evidence “lost by the court”.  As we have already indicated in referring to documents as being lost, the mother was proceeding on a misapprehension as to the court processes.  In any event, as we have also indicated, this evidence was sought to be tendered or relied on in the trial but rejected by his Honour.  Thus there is no basis to receive these documents as “further evidence” to demonstrate error by the trial judge.

5. We propose to dismiss the application.

Costs

1. As is customary, we sought submissions from each party as to costs on the appeal. 

2. Counsel for the father argued that if the appeal was unsuccessful, the mother should be ordered to pay costs.  The mother resisted that application, saying that she was an undischarged bankrupt. 

3. This is an appeal which has been wholly unsuccessful and which in our view had no prospects of success.  It is a matter in which the mother should be ordered to pay the father’s costs.  That she is a bankrupt might make it difficult for the father to secure the payment, however, such is the nature of this matter that the mother ought to be ordered to pay those costs.

Conclusion

1. Having found no merit in any ground of appeal, the appeal must be dismissed.

I certify that the preceding two hundred and thirty-seven (237) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Strickland & Ainslie-Wallace JJ) delivered on 13 March 2013.

Associate:

Date: 13 March 2013