GMF & VMS

Case •

[2005] FamCA 714

•

4 August 2005

[2005] FamCA 714  JFGMFVMS

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT BRISBANE

Appeal No. NA 5 of 2005
File No. BRF 2331 of 2003

IN THE MATTER OF:

GMF

Appellant/Father

- and -

VMS

Respondent/Mother

REASONS FOR JUDGMENT

BEFORE:  Coleman, May & Boland JJ
DATEOF HEARING:          26th & 27th days of May 2005
DATE OF JUDGMENT:     4th day of August 2005

APPEARANCES:                 Mr Page of Senior Counsel, (instructed by Jones Lawyers) appeared on behalf of the appellant father.

Mr Murphy of Senior Counsel, (instructed by Barry & Nilsson Lawyers) appeared on behalf of the respondent mother.

Ms Hogan of Counsel, (instructed by Legal Aid Commission) appeared on behalf of the children.

Name of Appeal  GMF & VMS
Appeal Number  NA 5/2005
Date of Appeal hearing  26th & 27th days of May 2005
Date of Judgment  4th day of August 2005
Coram  Coleman, May & Boland JJ

Catchwords:   Appeal against orders providing for no face to face contact between appellant and child.

Challenge to the adequacy of the trial Judge’s reasons with respect to residence – Trial Judge was obliged only to refer to those s 68F(2) provisions which impacted upon the determination of the issue – No matter to which the trial Judge did not refer could have influenced his exercise of discretion and thus was not necessary to be referred to – Held that the trial Judge did not rely on any extraneous fact or circumstance and had considered all relevant circumstances.

Appellant contended that trial Judge failed to provide reasons for not making an order for supervised contact – Appellant never sought supervised contact as an alternative position at trial – Inappropriate to strictly apply cases such as Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 and Metwally (No 2) v University of Wollongong (1985) 60 ALR 68 to restrict appellants from presenting a “new or different” case on appeal, in cases concerning the welfare of children – In reliance on U v U (2002) 211 CLR 238 his Honour was obliged to consider and give reasons with respect to the relief sought by each party and alternatives to such relief, the submissions and the evidence, however this did not extend to an “unfettered”, “roving inquiry of the matter” – Although the trial Judge did not give adequate reasons for not ordering supervised contact, he was entitled to proceed on the basis that supervised contact was not an “alternative proposal” and thus was not required to give reasons.

Challenge with respect to the respondent’s belief of abuse by the appellant – Trial Judge held to have given adequate reasons and considered all relevant circumstances for his finding that contact between the child and the appellant would impact adversely on the respondent and thus the child’s welfare - Russell v Close (Fogarty, Baker & Lindenmayer JJ, 31 March 1993).

Appeal dismissed
Appellant to pay respondent’s costs

  1. By Notice of Appeal filed 14 February 2005 the father appealed against orders made by Bell J on 17 January 2005 in proceedings between the father and the mother with respect to residence of and contact with the child of the former relationship of the parties, who was born June 1998.  The mother resisted the father’s appeal and sought to maintain the orders of the trial Judge, refusing the father contact with the said child other than “for forwarding presents to the child on her birthday, Christmas and any other special days, should he wish to do so”.  Counsel for the child representative supported the respondent in resisting the appeal against the trial Judge’s orders.

BACKGROUND FACTS

  1. Some background to the dispute is helpful, the following emerging from the Court record.

  2. The father was born in August 1963 and was aged 41 at the date of the trial Judge’s judgment.  The mother was born in August 1965 and was aged 39 years at that time.

  3. The parties cohabited between June 1982 and March 2003. After the parties separated in March 2003 the mother and the child commenced to reside with the child’s maternal grandparents where they were living at the date of hearing. The child was six years of age at the date of the trial Judge’s orders. 

  4. On 15 July 2003, after a contested hearing, orders were made by a Deputy Registrar providing that the child reside with the mother who was granted day to day parental responsibility for the child and that the father have contact during school term each alternate weekend from Friday afternoon until the following Monday morning; from Thursday afternoon to Friday morning in the week following weekend contact; for a specified period at Christmas; on Father’s Day; the child’s birthday; the father’s birthday; by telephone two evenings per week; and, from 2004, for one half of Christmas holiday periods.  Periods of contact during the September 2003 school holiday period and the Christmas 2003 school holiday period were also ordered. 

  5. On 1 October 2003 the orders of 15 July 2003 were suspended and orders made that the father have contact with the child each Sunday from 9am to 4.30pm “such contact to be supervised by a person/persons suitable to the child representative”.  Such orders followed upon an alleged disclosure in August 2003 of inappropriate touching by the father. 

  6. Subsequent to the orders of 1 October 2003, contact occurred on a number of occasions in the presence of a number of different supervisors but, due to difficulties arranging supervisors, did not occur on every occasion provided for by the Court’s orders.  The father had no contact with the child between August 2003 and the making of the orders of 1 October 2003.

REASONS FOR JUDGMENT

  1. Although the proceedings before the learned trial Judge related to residence and contact, it is apparent from counsel’s Grounds of Appeal and the orders sought in the event of his appeal being successful, that it is the refusal of contact between the father and the child which is the focus of this appeal.   Accordingly, a review of the trial Judge’s reasons focuses primarily on the contact issue. 

  2. Having identified the competing applications before him, the trial Judge recorded that the father had, since the orders of 1 October 2003 “exercise[d] supervised contact subject to the limited availability of supervisors”, having “found it extremely difficult to have supervisors” (Judgment, paragraph 6). 

10.  The trial Judge recorded submissions made on behalf of the father and by the child’s representative in relation to the issue of “unacceptable risk” of abuse of the child in the event of contact with the father being ordered. 

11.  Reference was made by his Honour to records of complaints made by the mother to a doctor at a mental health service (Exhibit “3”) in relation to the father and “obscene photographs and provocative poses in relation to [the child]” and the mother’s concerns “with respect to Internet publication”, the child’s “soiling and wetting” having made the mother “more suspicious”. 

12.  The trial Judge referred to the child having been examined by a paediatrician who found “no physical signs of abuse”.  He concluded that, at the time, the mother had been “satisfied that there was no sexual abuse”.  His Honour recorded the allegations of abuse against the father by reference to the mother’s diary (Exhibit “8”) and referred to entries from the diary of 24, 25, 30 July 2003 and of 1 and 2 August 2003.  He further referred to “Other matters of some concern in the diary and on a video tape” which he detailed.  He further referred to a diary entry of 10 August 2003.  His Honour then referred to “other matters which are of concern” being “[the child’s] soiling, wetting, defecating in her mother’s shoes and on clothes in 2001”, to the child having “regularly run away, 20 - 30 times since three years of age” and to her insistence “on someone wiping her bottom” although she was toilet trained at that time (Judgment, paragraph 15). 

13.  His Honour recorded “great concern about the mother’s emotional state and capacity to cope”, finding on the evidence that the mother had “on several occasions, been diagnosed with depression and with obsessive compulsive disorder”.  His Honour referred also to the mother having “presented to a Dr C with a long history of anxiety, depression, compulsive scratching and alcohol abuse” in August 2002 and to “problems with the mother and child attachment, which resulted first in the referral of the mother and child to the [R Centre] and subsequent to this to the [mental health service]” where a doctor noted the mother to be a “very obsessional person for whom emotions are a burden and a waste of time and energy” (Judgment, paragraph 18). 

14.  The trial Judge referred to admissions made by the mother in early 2001 that the father was “very good with [the child]” and of her “resentment that [the child] has always favoured [the father]” and to a video tape from which it was “quite clear that the father engaged warmly, naturally and appropriately with the child and the mother did not” (Judgment, paragraph 19).  The trial Judge expressed “quite grave concerns about the mother’s attitude towards the child in that the mother complains that the child’s behaviour post-separation was characterised by tantrums, mood swings, poor sleep, poor appetite and sexualised behaviour”.  His Honour concluded that it was “clear [the child] exhibits and has exhibited for some time since separation a range of sexualised behaviours” particulars of which he detailed (paragraph 21). 

15.  Reference was then made to the matter of:

… grave concern to all the professionals in relation to this matter and that is the observed incident of excessively affectionate kissing and licking that involved the father and took place over a considerable period of time (Judgment, paragraph 22). 

Such behaviour was observed and reported by Ms L, a counsellor, in November 2003 and was considered by Dr M, the reporting psychiatrist, “a highly experienced child psychiatrist” to be “very unusual, concerning behaviour which was possibly sexualised”.  The behaviour described to her was considered “very uncommon and not encountered by her before”, an opinion shared by Ms L, the Family Report writer. 

16.  Dr C, the mother’s treating psychiatrist, also considered the behaviour:

… inappropriate, quite unusual and concerning because it was a demonstration of sexualised behaviours directed at someone else and sustained and was behaviour which led him to wonder whether [the child] had been exposed to it and which led him to opine that she had been exposed to sexualised activity.  (Judgment, paragraph 23) 

17.  His Honour’s conclusion in relation to the behaviour was (paragraph 27) that it was:

… open for me to find and conclude that the child has been exposed to behaviour in the sense of it happening to her or her observing it, which is of a sexualised nature. The behaviour of [the child] was outside the range of ‘normal’ behaviours and whilst [the child] has nominated the father as being the party responsible for such playing, given her age, unsettled behavioural background referred to herein before, behaviour demonstrated to persons other than the father and the evidence as to what is required, I could not be satisfied to the requisite standard of proof that the child has been sexually abused by the father. (emphasis added) 

18.  His Honour considered whether:

… having reached that conclusion it is still open for me to have to conclude whether or not in fact contact with the father would expose [the child] to an unacceptable risk”, concluding “I do not consider on the evidence to which I have referred … that I am not concerned that the father would present an unacceptable risk if he had contact with her  but once again is not the end of the matter” (Judgment, paragraph 28, emphasis added). 

19.  His Honour referred to the unreported Full Court decision of Russell v Close (Fogarty, Baker & Lindenmayer JJ, 31 March 1993) which he said “recognised that there are cases in which a residential parent’s parenting may be adversely affected by his/her genuine belief in a set of facts which perhaps, have not been proved to the satisfaction of the Court”.

20.  His Honour reiterated that he was:

… of the opinion that the child has not been sexually abused by the father, nor being open to inappropriate sexual behaviour, nor there being any chance of unsubstantiated risk to the child should he have contact, the mother’s view of the matter is such that it may be … that the father having contact with the child would be detrimental, not only to the mother, but more particularly to the child in that the mother has expressed grave concerns about her being able to handle either residence if it was awarded to the father nor [sic] contact if such contact was ordered to be unsupervised, or even if it is on a supervised basis. (Judgment, paragraph 30, emphasis added) 

21.  He concluded that:

The respondent mother’s psychological and psychiatric evidence appears to me to suggest that she is a particularly vulnerable person subject very easily to views which she comes to, and in this case, all of the professional observers once again believe that the mother’s belief is genuine. (Judgment, paragraph 31)

22.  His Honour accepted that the mother “genuinely believes that the father has sexually abused [the child]” and referred to the fact that the father accepted that the mother had such belief, as did Dr C, Dr M and Ms L.  He expressed the “concern” that a change of residence and/or contact by the father “of an unsupervised nature” would result in “any relationship between the mother and the child” being “totally destroyed” (Judgment, paragraph 34). 

23.  Having referred to the submissions of counsel, the trial Judge concluded that he was:

… of the opinion that I could not find that the mother’s belief at trial was entirely irrational and baseless, particularly given Dr [C’s] evidence that he on more than one occasion during discussions with the mother professed of the view that certain described behaviours exhibited by [the child] were concerning. Not only is the relationship between [the child] and the mother perhaps at risk should residence be changed and/or contact ordered, it would more than likely mean that the child, who has a close relationship with the maternal grandparents – with whom she lives with her mother, she would be distanced from such relationship with the maternal grandparents, if not that relationship would be shattered altogether. (Judgment, paragraph 39)

24.  His Honour further recorded:

As I have said on several occasions I am of the belief that the mother has a genuine belief and consequently, as I have said, I have been left in the invidious position of having to decide the least detrimental alternative for the child and regrettably this comes down in favour of the child not having any contact with the father and I will therefore dismiss the father’s application. (Judgment, paragraph 41)

25.  A “request” was made that the “treating psychiatrist of the mother” be requested to “counsel the mother in relation to future contact with the child”.  His Honour further added:

I am so dubious as to any form of contact by the father with the child ie. by way of letters etc, that I will not at this stage not make any orders for written communication by the father with the child. However I will Order that the father be entitled, should he wish to do so, to forward presents to the child on her birthday and Christmas Day and any other special days. I can only hope in the fullness of time that the belief of the mother will somehow or other become overborne by the facts as I have found them and that she will recognise that it is important and it is the child’s right to have contact with her father, she is entitled to know her father and it is particularly important for her emotional development at a later stage that she do know her father. (Judgment, paragraph 43)

GROUNDS OF APPEAL

26.  Learned Senior Counsel for the father argued the five grounds raised by the Notice of Appeal in two groups.  The first group, encompassing grounds 1 and 2, was described by learned Senior Counsel as comprising “Reasons” grounds.  The second group, comprising grounds 3, 4 and 5, was described by learned Senior Counsel for the father as “The application to this case of the principles arising from the decision in Russell v Close” and addressed the substantive reasoning of the trial Judge in relation to the decision to make no order for face to face contact between the child and the father. 

27.  Given the overlap between grounds 1 and 2 and between grounds 3, 4 and 5, it is convenient to deal with the Grounds of Appeal in the manner adopted by learned Senior Counsel for the father, particularly as learned Senior Counsel for the mother, and learned counsel for the child adopted the same approach to addressing the Grounds of Appeal.

28.  Grounds 1 and 2 provide:

1.That in dismissing the application for residence by the appellant the trial Judge erred in that he:

(a)    failed to give any or any adequate reasons for his decision;

(b)   failed to properly consider the application for residence as an alternative to the application for contact;

(c) failed to consider all of the matters set out in Section 68F(2) of the Family Law Act relevant to the issue of residence.

2.That in dismissing the application for contact by the appellant the trial Judge erred in that he failed to have regard to the relevant matters in Section 68F(2).

29.  It was submitted in support of the grounds that the issues before the trial Judge were “clearly defined by Counsel”.  Relevantly for present purposes at trial counsel for the father defined the issues as:

1.First, determine whether or not there is an unacceptable risk of sexual abuse to [the child] in the care of the father whether in terms of contact or residence – M v M (1998) 166 CLR 69, FLC 91-979;

2.If the Court finds that there is no such risk, decide what order for residence and/or contact is in the best interests of the child.

30.  At trial counsel for the child representative defined the issues in the following terms:

(a)    if the Court makes a positive finding that [the child] has been sexually abused by the Father, there should be an order that [the child] continue to reside with her Mother and that there be no contact between [the child] and the Father because, on the evidence, this case does not fall within those ‘most extraordinary cases’ where contact orders would still be made; [footnote omitted]

(b)   if the Court makes a finding that there is an unacceptable risk to [the child] of unsupervised contact with the Father on the basis of the allegations of sexual abuse:

(i)it should order that [the child] continues to reside with her Mother; and

(ii)it should not order unsupervised contact between [the child] and the Father; and

(iii)because such conclusion is based on an acceptance of some degree of inappropriate sexual interaction by the Father toward [the child], it should not order that she have contact with the Father, even on a supervised basis, because of the impact such order would have on the Mother and her ability to parent [the child] given the Mother’s equivocal and genuine belief that [the child] has in fact been sexually abused by the Father. 

(c)    the Court positively finds that the Father has not sexually abused [the child] and positively finds that there is not an unacceptable risk to her of interaction with him, the Court could:

(i)order that [the child] reside with the Mother and have regular, frequent and unsupervised contact with the Father but, on the evidence, the Mother clearly will not and cannot support such orders because of her genuinely held belief that the Father has, in fact, sexually abused [the child] and, on her evidence, it is likely that she would send [the child] to live with the Father and would have no contact with her at all;

(ii)order that [the child] reside with the Father and have regular contact with the Mother but:

A.this would see [the child] separated from the day to day care and involvement of her maternal grandparents and her Mother; and

B.on the Mother’s evidence, there would be no contact between the Mother and [the child] because she (the Mother) could not deal with being reminded of the fact that, in her view, [the child] was in the care of a person who had sexually abused her;

C.on the evidence of Dr [C], the Mother’s treating psychiatrist, such outcome may well pose significant risks to the Mother’s state of mental well-being.

11.It is clear from the above summary of options that, for [the child], whatever orders the Court determines to make in this case, the same will involve her in the loss of a relationship with one of her parents and, by implication, extended family.  It is submitted, therefore, that, in addition to the other matters about which definite conclusions of fact must be made by the Court, the Court must make an assessment of the extent of loss to [the child] which is likely to be caused in each scenario.

31.  The trial Judge found that he “could not be satisfied that the child had been sexually abused by the father” (Outline of Submissions by Appellant Father, paragraph 5), that “the father did not present an unacceptable risk to the child if he had contact” (paragraph 6) and that “the belief [of the mother] that the father had sexually abused the child” was “not entirely irrational and baseless” (paragraph 7).  He also found that “the relationship between the child and the mother was at risk should residence be change [sic] or contact ordered” (paragraph 8).  None of those findings has been challenged in this appeal.

32.  It was thus contended by learned Senior Counsel for the father that:

The orders made by the Trial Judge go to the extent however of providing that there be no contact at all to the child be any means whatsoever and it is the appellant’s submission that the Trial Judge did not provide any or any adequate reasons for that exclusion. (Outline of Submissions by Appellant Father, paragraph 9)

33.  It was further submitted that the trial Judge had “never considered the provision of residence of the child with the father as an alternative”, there being “no reasons that explored the possibilities of that occurring with the provision of continuing contact between the child and the mother”.  It was thus submitted that the “basis upon which the Trial Judge determined that there be no contact and that the residence application be dismissed is not supported by what reasons were given or any other reasons” (Outline of Submissions by Appellant Father, paragraph 14).

34. In support of the contention that the trial Judge failed to adequately address matters relevant to s 68F(2) or to make findings in respect of them, a series of particular complaints were made. It was submitted in reliance upon such complaints that any “contrast of the two competing households was entirely missing” from the trial Judge’s judgment.

35.  It is appropriate to set out each of the matters thus relied upon:

Matters relevant to s68F(2) upon which there were no findings by the Trial Judge are as follows:

(a)    The attachment of the child to the father and the fact that the child was actively seeking out opportunities to see him;

(b)   Interactions between the child and the father gave Ms [L] no cause for concern in terms of the relationship existing between them;

(c)    The loss which the child might suffer known only perhaps to her as an adult by the cessation of contact with her father;

(d)   The capacity of the father to provide for the day-to-day physical needs of the child;

(e)    The need to protect the child from attitudes and actions of the maternal grandmother;

(f)     The willingness of the maternal grandmother to reach conclusions in relation to the actions of the child detrimental to the relationship of the child with the father;

(g)    The recognition by the mother that the father had a good relationship with the child;

(h)    The fact that the mother left the child in the care of the father and other secondary caregivers;

(i)   The long term psychiatric treatment of the mother with Dr [C];

(j)     The action in limiting contact and her ability to foster any relationship between the child and her father;

(k)   The nature of the relationship between the child and her mother and the maternal grandparents;

(l)   The significance of leaving much of the care of the child to the maternal grandparents against the father’s ability to restrict his work to school hours;

(m)  The consequence of the finding that there was no unacceptable risk with the father instead of the psychiatric difficulties experienced by the mother. (Outline of Submissions by Appellant Father, paragraph 18)

36.  It was submitted that the failure to address such matters established the complaint in relation to the adequacy of the trial Judge’s reasons. 

37.  On behalf of the mother it was submitted that, in the circumstances of this case:

… issues that might otherwise be specifically related to “the s. 68F(2) factors” were subsumed by that overarching issue. For a trial judge to detail and specify conclusions in respect of each relevant s. 68F(2) factor in such a case can be “entirely artificial” [footnote reference, In the Marriage of A (1998) 22 FamLR 756 @ 769; [1998] FLC 92-800]. (Outline of Submissions by Respondent Mother, paragraph 2)

38.  It was further submitted that the trial Judge:

… clearly appreciated (as had been submitted by all parties and, in particular, the Child’s Representative) that, if ultimately it was concluded that there was no sexual abuse or no unacceptable risk of abuse, the choice for the court was difficult and stark.  (Outline of Submissions by Respondent Mother, paragraph 4)

On behalf of the mother it was asserted that the trial Judge’s conclusion that “Either way the child is going to lose one of her parents” (Judgment, paragraph 37) was the only conclusion “reasonably open on the evidence” (Outline of Submissions by the Respondent Mother, paragraph 5). 

39.  The mother’s contention was that the trial Judge provided “clear and cogent reasons for dismissing the application for residence by the father” having “made a series of findings that logically and clearly led to that ultimate decision”.  Particular findings relied upon by learned Senior Counsel for the mother in that regard included the finding that contact would be “detrimental, not only to the mother, but more particularly to the child” (Judgment, paragraph 30); that the “mother genuinely believes that the father has sexually abused [the child]” (Judgment, paragraph 32); the trial Judge’s acceptance of some of the criticisms made by the father of the mother’s parenting, but nevertheless finding that if he ordered “a change of residence, and/or b) contact … of an unsupervised nature, then any relationship between the mother and the child would … be totally destroyed” (Judgment, paragraph 34).  None of those findings of fact has been challenged in this appeal.  Reference was also made to a number of passages in the evidence in support of the trial Judge’s finding. As will be seen, in relation to the challenge to the adequacy of the trial Judge’s reasons for refusing contact, it is necessary to carefully consider the competing applications and evidence before the trial Judge and submissions made to him. 

40.  It was submitted by learned Senior Counsel for the mother that the trial Judge had “provided a clearly discernable path of reasoning” in support of his findings.  A number of those findings were then detailed.  (See Outline of Submissions by Respondent Wife, paragraph 18).  The concession was fairly made on behalf of the father that “there was evidence which supported a finding that the relationship between the mother and the child would be at risk if contact or residence was ordered” (Outline of Submissions by Appellant Father, paragraph 27).  In those circumstances, it is unnecessary to further consider the series of findings outlined by learned Senior Counsel for the mother.

41. In response to the submission that the trial Judge failed to consider making an order for residence in favour of the father, Senior Counsel for the mother suggested (Outline of Submissions by Respondent Mother, paragraph 25) a series of s 68F(2) factors which he asserted that the trial Judge had reasonably considered to be the “matters which, on the evidence before him, were crucial to the decision”. It was submitted that, whilst the trial Judge had not, and was not obliged to, “list, seriatim, the relevant matters pursuant to” s 68F(2), the trial Judge’s reasons revealed that such matters as were relevant to the issues of residence and contact had been considered “appropriately, in the circumstances of the case before him” (Outline of Submissions by Respondent Mother, paragraph 24). To the extent that other matters were suggested by learned Senior Counsel for the father to have been matters which were not referred to by the trial Judge, it was submitted that the trial Judge was obliged only to have regard to those which related to “crucial issues in the case” and the “crucial pointers to [the child’s] best interests”.

42.  Counsel for the child representative embraced the submissions of learned Senior Counsel for the mother and submitted that it was “possible to discern in the Reasons for Judgment the path which the trial Judge followed in reaching his ultimate decision”.  It was submitted that the trial Judge determined the “competing applications for residence” and had given adequate reasons in that regard (Outline of Submissions by Child’s Representative, paragraph 2).  Numerous references were made to passages in the trial Judge’s reasons in support of the submission that such reasons were adequate both in relation to residence and contact (see Outline of Submissions by Child’s Representative, paragraph 3).

DISCUSSION

43.  It is apparent that grounds 1 and 2 raise two complaints in relation to the adequacy of reasons of the trial Judge.  The first is that the trial Judge’s reasons do not reveal the reasoning process by which he determined that residence of the child should remain with the mother.  Whilst it was conceded that the trial Judge gave some reasons in relation to residence, it was submitted that the failure to give reasons in relation to the twelve matters, which we have set out above from paragraph 18 of the submissions of learned Senior Counsel for the father, rendered the trial Judge’s reasons for his decision inadequate.  The second challenge raised by these grounds is that the trial Judge totally failed to provide any reasons for not making an order for supervised contact in favour of the father.  The two challenges raise somewhat different issues and are best dealt with separately.

44.  The law regarding the adequacy of reasons is not in doubt and can be briefly stated.

45.  In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279, McHugh JA said:

… without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as ‘a necessary incident of the judicial process’ because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.

46.  Soulemezis v Dudley (Holdings) Pty Ltd and other authorities were followed by the Full Court of this Court in Bennett and Bennett (1991) FLC 92-191. The Full Court there said at 78,266:

Counsel for the wife urged that there was a failure by her Honour to give adequate reasons for judgment, and that this, of itself, amounted to an error of law. In this regard he relied upon the line of New South Wales Court of Appeal decisions commencing with Pettitt v Dunkley (1971) 1 NSWLR 376, and including Housing Commission of NSW v Tatmar PastoralCo Pty Ltd (1983) 3 NSWLR 378, and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In the latter case, McHugh JA said that without the articulation of reasons, a judicial decision could not be distinguished from an arbitrary decision. His Honour took the view that the requirement for reasons serves at least three purposes, namely, to enable the parties to see which of their arguments had been understood and accepted as forming the basis of a Judge's decision; secondly, to further judicial accountability; and thirdly, to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future.

47. As was submitted by learned counsel for the mother, the trial Judge was not obliged to refer “seriatim” to every provision of s 68F(2). His Honour was clearly obliged to refer to those provisions which impacted upon the determination of the issue of residence. We propose approaching the matter by reference to the matters to which his Honour in fact referred for that purpose and to those which have been submitted on behalf of the father to have been erroneously overlooked or ignored.

48.  It is relevant in this context to reiterate that no finding of fact of the trial Judge has been challenged in this appeal.

49.  It is apparent from the transcript of the proceedings, the written submissions of counsel at trial and the trial Judge’s reasons that the issue of “unacceptable risk” was the major focus of forensic enquiry during the trial.  The findings of fact of the learned trial Judge were not in any way adverse to the father’s application for residence or contact, whether supervised or unsupervised, and no submission made on the father’s behalf in this appeal contends otherwise. 

50.  The trial Judge recorded that there was “a great concern about the mother’s emotional state and capacity to cope” (Judgment, paragraph 16), the reasons for which concern he detailed.  His Honour then referred to the “problems with the mother and child attachment” (Judgment, paragraph 18).  He recorded his “quite grave concerns about the mother’s attitude towards the child and that the mother complains that the child’s behaviour post separation was characterised by tantrums, mood swings, poor sleep, poor appetite and sexualised behaviour” (Judgment, paragraph 20). 

51.  The conclusion of the trial Judge was that he:

… could not find that the mother’s belief at trial was entirely irrational and baseless, particularly given Dr [C’s] evidence that he on more than one occasion during discussions with the mother professed of the view that certain described behaviours exhibited by [the child] were concerning. Not only is the relationship between [the child] and the mother perhaps at risk should residence be changed and/or contact ordered, it would more than likely mean that the child, who has a close relationship with the maternal grandparents – with whom she lives with her mother, she would be distanced from such relationship with the maternal grandparents, if not that relationship would be shattered altogether. (Judgment, paragraph 39) 

52.  The evidence of the court counsellor Ms L was accepted “in relation to the mother’s relationship with the child should residence and/or contact be ordered, [which] was that the separation of the child from the mother and the maternal grandparents would cause devastating effects upon the child” (Judgment, paragraph 40).  It is evident from these passages that the trial Judge carefully considered the relationship between the child and the mother and the child’s maternal grandparents. 

53.  The trial Judge referred to the “mother’s view” that:

… the father having contact with the child would be detrimental, not only to the mother, but more particularly to the child in that the mother has expressed grave concerns about her being able to handle either residence if it was awarded to the father nor contact if such contact was ordered to be unsupervised, or even if it is on a supervised basis. (Judgment, paragraph 30) 

54.  Reference was also made to the trial Judge’s “concern” that if he were to “either force a change of residence” and/or “contact was of an unsupervised nature, then any relationship between the mother and the child” would be “totally destroyed” (Judgment, paragraph 34).  He concluded that:

… to give to the father what he wants either by way of residence or contact then this would necessitate, as far as I’m concerned, the total breakdown and rejection of the child by the mother or I regrettably dismiss the application of the father in relation to residence and/or contact and this will cause him to lose contact with his child. (paragraph 36).

55.  His Honour regarded the Court as thus

… unfortunately faced with a decision to come to which is of the least detrimental nature or effect.  Either way the child is going to lose one of her parents and the evidence as it stands at present strongly supports the view that the removal of the mother from the child would be devastating to the child and to a lessor extent the removal of her grandparents with whom she has a warm and loving and affectionate nature would also cause her to stress. (Judgment, paragraph 37) 

56.  The trial Judge thus concluded that as:

… the mother has a genuine belief and consequently, as I have said, I have been left in the invidious position of having to decide the least detrimental alternative for the child and regrettably this comes down in favour of the child not having any contact with the father and I will therefore dismiss the father’s application. (Judgment, paragraph 41) 

57.  These passages leave little scope for doubting that the trial Judge considered the effect on the child of a change of residence or contact with the father, at least on an unsupervised basis.

58.  The trial Judge referred (paragraph 33) to submissions made by counsel then appearing on behalf of the father that:

The mother has historically worked and in all probability will continue to work long hours, leaving much of the care of [the child] to her parents.  It is submitted that the Court will have some concerns as to their capacities given:-

1.The controlling and, it is submitted, emotionally abusive behaviour of the grandfather to [the child] eg pinning her arms to her sides, marching her to the breakfast table;

2.The grandfather’s account of his own parenting style eg his technique of ‘intimidating’ his own children;

3.His specious denials of physical abuse of the mother, particularly in the context of the mother’s assertions of his physical aggression towards her;

4.The grandmother’s bizarre and phobic attitude to sexuality in general;

5.The grandparents’ history of parenting as exemplified both by the mother, who is a long term depressive with obsessive compulsive tendencies and by the mother’s brother who was extremely physically violent to the mother and has a history of drug abuse (it is noted that there are allegations that the brother was himself sexually abused – however, query whether this accounts either causally or chronologically for his abusive behaviours towards his sister).

and accepted that “there is some concern in relation to the attitude not only of the mother but the mother’s parents towards those matters particularised therein”. These submissions his Honour considered had “perhaps some strength” albeit, as is apparent from subsequent paragraphs of his judgment, they did not render orders for residence in favour of the mother inconsistent with the child’s best interests. The limitations and unsatisfactory aspects of capacity and attitude of the mother were thus clearly apparent to the trial Judge and were taken into account by him pursuant to s 68F(2).

59.  The trial Judge found that the father had in the past, on the mother’s own evidence, “engaged warmly, naturally and appropriately with the child” (Judgment, paragraph 19).  His Honour had earlier recorded that the father had since November 2003 exercised supervised contact “subject to the limited availability of supervisors”, finding that the difficulty in arranging supervision of contact had rendered such contact “problematical” up to the date of trial.

60. It is evident that the foregoing matters were referrable to the s 68F(2) factors we have identified without the trial Judge needing to expressly say so. Whilst the evidence was, understandably, dealt with by the trial Judge in the course of his consideration of the “unacceptable risk” issue, there was other evidence impacting upon the relationship between the father and the child. Relevant in that context is the matter of “grave concern to all the professionals in relation” to the matter being the:

… observed incident of excessively affectionate kissing and licking that involved the father and took place over a considerable period of time and which Dr [M], a highly experienced child psychiatrist, was of the opinion she had never seen anything like it.  This unusual behaviour was observed by Ms [L], the reporter, in an interview of 17 November 2003.  This went on for approximately 20 minutes and as I have said, the professionals in this matter were concerned. (Judgment, paragraph 22) 

61.  His Honour further recorded, accepted and had regard to (paragraphs 23 and 24) the evidence of the court counsellor, that “she had never seen it before and considered it was a sexualised behaviour”.  That evidence clearly impacted upon the relationship between the child and the father.

62. Whilst it is clear that not every provision of s 68F(2) was referred to by the trial Judge, it remains to consider whether, in all the circumstances, any matter to which his Honour did not refer could or would have impacted upon the exercise of his discretion. Clearly, any matter which could not reasonably have influenced the exercise of his Honour’s discretion did not need to be referred to. It can be reasonably inferred that any matter relating to the father to which the trial Judge did not refer forms no part of the reasoning process followed by him.

63.  It is necessary to consider the list of s 68F matters to which the trial Judge referred.  Nothing to which we have been referred suggests that the trial Judge found any absence of desire for contact on the part of the child.  Given the child’s age and history, the weight that could safely have been given to the child’s wishes would have been limited in any event.  The submission that the trial Judge failed to find that “Interactions between the child and the father gave Ms [L] no cause for concern in terms of the relationship existing between them” (Outline of Submission by Appellant Father, paragraph 18(b)) is not supported by the unchallenged evidence to which the trial Judge referred in the portions of his judgment which we have cited in connection with this ground.  Ms L, Dr C, the mother’s treating psychiatrist and Dr M, the Court appointed expert psychiatrist, gave evidence which the trial Judge accepted, the effect of which was contrary to this submission.

64.  The complaint that the trial Judge failed to consider the “loss which the child might suffer known only perhaps to her as an adult by the cessation of contact with her father” (Outline of Submissions, paragraph 18(c)), was clearly dealt with by the trial Judge who recorded that “Either way the child is going to lose one of her parents”. So far as the “capacity of the father to provide for the day-to-day physical needs of the child” (Outline of Submissions by Appellant Father, paragraph 18(d)) is concerned, the trial Judge made no finding adverse to the father in that regard.  It can reasonably be inferred that the trial Judge assumed that the father had such capacity.  Moreover, as a balanced reading of his Honour’s judgment confirms, there were matters of far greater relevance to be considered in deciding where the child’s best interests lay. 

65.  Complaint was made that the trial Judge failed to address “The need to protect the child from attitudes and actions of the maternal grandmother” (Outline of Submissions by Appellant Father, paragraph 18(e)).  His Honour in fact (Judgment, paragraph 33), in the passage to which we earlier referred, dealt with “the attitude not only of the mother but the mother’s parents” with respect to the matters we have reproduced from the submissions made to his Honour at trial by counsel then appearing for the father.  His Honour addressed that issue subsequently in passages to which we have earlier referred, from which it is clear (see Judgment, paragraph 39) that his Honour was well aware of the attitudes complained of (paragraphs 39 and 40) but nevertheless concluded that to separate the child from her mother and the maternal grandparents “would cause devastating effects upon the child”.  This issue was in our view thus adequately addressed by his Honour. 

66.  It was asserted that:

The willingness of the maternal grandmother to reach conclusions in relation to the actions of the child detrimental to the relationship of the child with the father; (Outline of Submissions by Appellant Father, paragraph 18(f))

was not referred to by the learned trial Judge.  We have not been referred to anything in the evidence which gave rise to the necessity to make findings or draw inferences or reach conclusions with respect to this matter, but in any event the observations we have made in relation to the trial Judge’s consideration of the attitude of the maternal grandmother would provide a sufficient answer to the complaint.

67.  The trial Judge was criticised for failing to expressly refer to either:

(g)    The recognition by the mother that the father had a good relationship with the child;

(h)    The fact that the mother left the child in the care of the father and other secondary caregivers;  (Outline of Submission by Appellant Father, paragraph 18)

No part of his Honour’s decision turned on any rejection of the father’s relationship with the child, notwithstanding the evidence of Dr C, Dr M and Ms L to which we have earlier referred.  As such, the absence of reference to the father’s relationship with the child does not in our view represent a deficiency in his Honour’s reasons. 

68.  It is abundantly clear from the trial Judge concluding his judgment by stating:

I apologise to the father, I regret that I am unable to accept his request for residence and/or contact in whatever form he so desires (Judgment, paragraph 44)

that he accepted that there would be benefits for the child in having a relationship with her father.  Other support for that proposition can be gleaned from paragraphs 41, 42 and 43 of his Honour’s reasons.

69.  The complaint that the trial Judge did not deal with the “long term psychiatric treatment of the mother with Dr [C]” overlooks the matters referred to by his Honour in that regard and to his acceptance of that evidence (see Judgment, paragraphs 17, 31, 32, 33, 34, 35).  We are not persuaded that his Honour was unaware of, or failed to consider, the wife’s psychiatric history.

70.  It was submitted that the trial Judge failed to refer to “The action in limiting contact and her [the mother’s] ability to foster any relationship between the child and her father”.  To what this complaint specifically refers is less than clear, but it is apparent that the “limiting” of contact was reflected in an order of the Court of November 2003.  It has not been suggested that the mother had failed to comply with such order or that the “problematical” nature of the contact pursuant to the order was other than the result of the father’s difficulties in arranging supervisors.  The trial Judge referred to the mother’s limited ability to foster any relationship between the child and her father and accepted, in reliance upon the evidence before him, the explanation for that inability.  He made a series of findings in support of his conclusions which have not been challenged in this appeal.

71.  Whilst “[t]he significance of leaving much of the care of the child to the maternal grandparents against the father’s ability to restrict his work to school hours” (Outline of Submissions by Appellant Father, paragraph 18(l)), was not expressly discussed, referring to that factor could not have changed the outcome of his Honour’s decision, with respect to residence, as a reading of his judgment makes clear. 

72.  The complaint that the trial Judge failed to refer to “[t]he consequence of the finding that there was no acceptable risk with the father instead of the psychiatric difficulties experienced by the mother” (Outline of Submissions by Appellant Father, paragraph 18(m)) cannot on a balanced reading of the trial Judge’s reasons be sustained.  It is clear beyond doubt that the central theme of the trial Judge’s reasoning process involved balancing the consequences of finding an absence of unacceptable risk with the difficulties arising from the mother’s psychiatric history.

73.  We are not persuaded that any of the complaints raised in relation to the trial Judge’s failure to give reasons for his decision in relation to residence has substance.  It is clear why the learned trial Judge concluded as he did in relation to residence.  It has not been demonstrated that he relied upon any extraneous fact or circumstance in that process, nor has it been demonstrated that he failed to have regard to any relevant fact or circumstance.  We thus regard these challenges as lacking merit. 

74.  It is necessary then to consider the challenge to the absence of reasons for declining to make an order for supervised contact.  As is clear from a reading of the trial Judge’s judgment, “supervised contact” was in fact only expressly referred to by him on one occasion, namely at paragraph 35 where his Honour said that there was “not an unacceptable risk of her being exposed to harm if in the possession of her father at any time whether supervised, unsupervised or by way of residence”.  It is clear that the trial Judge was aware that the father had been having “supervised contact subject to the limited availability of supervisors” (Judgment, paragraph 6) from November 2003 to the date of trial.

75.  It is not in dispute that the father at no time formally sought an order for supervised contact in the alternative to an order for residence or, if that be declined, unsupervised contact.  As is clear from the written submissions made to the trial Judge by his then counsel at the completion of the evidence, the father did not, by way of alternative remedy, seek supervised contact.  It can fairly be said that the father did not conduct his case before the trial Judge on the basis that supervised contact was relief which he sought in the event that the other forms of relief which he sought were declined.

76.  It was sensibly conceded by learned Senior Counsel for the respondent mother that it was inappropriate to apply the strictures discussed by the High Court in the series of well known authorities commencing with Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 and including Metwally (No 2) v University of Wollongong (1985) 60 ALR 68, to these proceedings. The limitations which confront an appellant seeking to present a “new or different” case on appeal to that which has been presented at trial being not necessarily entirely applicable to proceedings concerning the welfare of children. The rationale for such concession was, correctly in our view, the “paramountcy principle” in such proceedings.

77.  Learned Senior Counsel for the mother referred the Court to the decision of the High Court in U v U (2002) 211 CLR 238 with particular reference to passages in the judgment in that case of Hayne J. Hayne J said at 284-5:

In these circumstances, it would be quite wrong to treat the decision that is to be made as confined to a choice between whatever may be the particular "proposals" that the parents may make for the residence of, and contact with, the child. So to confine the inquiry would, in this case, have required the Family Court to ignore admittedly relevant evidence that was led about what the mother would do if it were decided that the child should live in Australia rather than India. More fundamentally, it would confine the Court's inquiry to what the parents suggested would be in the best interests of the child, regardless of whether those suggestions were informed, even wholly dictated, by the selfish interests of one or other of the parents. To confine the inquiry in this way would, therefore, disobey the fundamental requirement of the Act that the Court regard the best interests of the child as paramount. Those interests may, or may not, coincide with what one or both of the parents put forward to the Family Court as appropriate arrangements for residence and contact.

His Honour however added an important rider to that statement at 285:

That is not to say that the Family Court is to embark upon some roving inquiry about the matter, unfettered by any regard for the evidence led and the matters which the parties seek to contest. Due account must be taken of the fact that proceedings in the Family Court are conducted in a framework of adversarial procedure familiar to the common law. (I do not stay to consider how or to what extent that adversarial model has been modified by the Act or rules of court made under it.)

78.  Learned Senior Counsel for the mother reminded us that Gleeson CJ (paragraph 1) agreed “with the observations of Hayne J” which we have set out above.

79.  Gaudron J said at 248 in U v U:

Where, as in the present case, the paramount consideration is the child's best interests, it is not always appropriate that the issues be explored and the evidence revealed strictly in accordance with the adversarial procedures that apply in party-party litigation. That being so, it is noteworthy that in this case there was no consideration of the possibility that the father could return to India permanently to avail himself of frequent and regular contact with his daughter. The failure to explore that possibility, particularly given the father's origins, his professional qualifications and family contacts in India, seems to me to be explicable only on the basis of an assumption, inherently sexist, that a father's choice as to where he lives is beyond challenge in a way that a mother's is not.

It is apparent from that passage, and others appearing in her judgment, that her Honour did not disagree with the observations of Hayne J. 

80.  McHugh J (paragraph 44) also agreed “with the additional comments made by Hayne J”.  

81.  Gummow and Callinan JJ said at 255:

No doubt there will be cases, perhaps many cases, in which a court can and should adopt, with few changes or additions, the arrangements proposed by one of the parties for the future of the child or children whose welfare is paramount, in preference to the other. As was said in AMS v AIF [(1999) 199 CLR 160 at 251 [284], per Callinan J. ]

"It will generally not be possible for a trial judge to construct a framework and environment for the upbringing of a child. What happens in practice is that those competing for the care and custody of a child will present proposals to the Court to advance the welfare of the child. Judges frequently will be able to mould or adopt such proposals in making orders but rarely will they be able to invent or construct substantially different arrangements for children from those proposed by the parties." (Footnote omitted.)

There will, however also be cases, and not a few of them we suspect, in which it will simply not be possible for a judge to adopt exclusively or perhaps even substantially, a proposal of either party. In such a case the final order will evolve out of the evidence as it emerges, and submissions as they are developed.

82.  Their Honours further said at 260:

We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. Whether the Court is obliged, or will be able in every case to treat each of the three steps as discrete and in the suggested order may be another question. But the Court is not, on any view, bound by the proposals of the parties. The Court has to look to the matters stated in s 68Fand elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child's best interests.

83.  Having regard to these statements by the various members of the High Court in U vU, and the concession correctly made by learned Senior Counsel for the mother in relation to the authorities cited earlier, we conclude that the obligation of the trial Judge to consider, and give reasons in relation to the issue of supervised contact was ultimately determined by reference to the relief sought by each party and alternatives to such relief (which potentially included supervised contact); the submissions made by the parties (in which supervised contact was never suggested by either party or the separate representative); and the evidence before the Court.  As Gummow and Callinan JJ explain, from those sources “the final order will evolve”. 

84.  As Hayne J explained, the “inquiry” by the trial Judge was not confined to an examination of the orders sought by the parties on the one hand, but on the other, was not “some roving inquiry about the matter, unfettered by any regard for the evidence led and the matters which the parties seek to contest” (U v U at 285).

85.  An examination of the transcript of the proceedings before the trial Judge, taken in conjunction with the formal applications of the parties and, in this case, written submissions made to the trial Judge, are essential to evaluate these grounds.  On the facts of this case, if there was an obligation on the trial Judge to give reasons for his decision in relation to the refusal of supervised contact, it is difficult to suggest that such reasons as the trial Judge gave in that regard could be considered adequate.  The focus of the inquiry is thus whether, in all the circumstances, the trial Judge had an obligation to give reasons for declining to order supervised contact.

86.  Learned Senior Counsel for the father sought to advance these grounds in reliance upon the following exchanges in the course of the mother’s cross-examination by counsel for the child representative:

So if his Honour made a view that in his mind that had not occurred and that it was appropriate for [the child] to see her father and made orders for contact, you could not, I take it, consistent with what you've just said, envisage [the child] being able to go on contact with her father, could you?---If there's supervisors, I could - if there's supervisors.  If responsible supervisors - not drug people or not anything like that - responsible, blue card holding supervisors.  I'd be very happy with that.

All right.  And would you see that - sorry, I withdraw that.  In terms

of - - -?---That's if I had no choice as well.

HIS HONOUR:  I'm sorry?  What was that?---I said that's if I had no choice as well.

That's if you had no choice, yes?---Yes.

87.  Learned Senior Counsel for the father further relied upon the evidence of Dr C, the mother’s treating psychiatrist, in which Dr C was asked:

So in terms of your experience and within your expertise, given your ongoing therapeutic relationship with [the child's] mother, are you able to offer any opinion as to how, if at all, she would cope in the future with orders that saw [the child], firstly, seeing her father in the supervision of others?

to which he replied:

The supervision part [the mother] has struggled with, but has been able to do.  I think one of the concerns is if that supervision breaks down, because it is one of those things - again, as I said before, if you believe that your child has been put into a position of danger, you are going to get very distressed about that.  Do you continue to be a party to that, or do you step away and leave?  I don't know what I would actually choose in a scenario like that.

88.  Learned Senior Counsel for the mother referred the Court to a letter written to the separate representative by the solicitors for the mother on 11 May 2004, and subsequently supplied to the solicitors for the father, wherein the mother proposed that “[a particular contact centre] supervised the father’s future contact with [the child]”.  The letter indicated that all employees of the facility were required “to be in possession of a blue card”.  On 25 June 2004, the solicitors for the father replied to such letter, advising:

Our client takes the view, however, that the current arrangements are preferable to those proposed by your client.  Contact at a contact centre is further restrictive by its very nature.  As we understand the position, our client does not have the opportunity to take [the child] away from the centre.  Our client is also concerned about [the child’s] reaction to being introduced to a range of new people at a time when she has contact with our client.  Our client notes the anxiety expressed by [the child] to the counselling sessions at the [T] Centre.  We are instructed that [the child] is comfortable with the approved supervisors.

89.  We would not see that correspondence, particularly as it pre-dated the trial of the proceedings, as indicative of any “disavowal” of the offer of supervised contact by the father, particularly as in no submission made on behalf of the mother at the completion of the trial was that asserted. 

90.  The Court was referred by learned Senior Counsel for the mother to the submission on behalf of counsel for the child representative at trial that :

the Mother’s anxiety about what might happen to [the child] if she had unsupervised contact (and even supervised contact) was clearly manifest through-out her cross-examination as well as being evident to Dr [M] and Ms [L] in the course of the observation session conducted during the course of the trial.

Whilst the trial Judge did not differentiate between supervised and unsupervised contact, he clearly accepted, and discussed at some length in his reasons, the mother’s “anxiety” in the event of the father having contact with the child. 

91.  Further reliance was placed by the mother’s counsel upon the submission of counsel appearing for the father at trial that:

If the child resides with the mother, she will not support contact even if it is supervised and long term supervision is not practicable.  This is inappropriate in the absence of any disqualification in the father to exercise contact.

And upon the further submission that:

Should the Court not consider that a change of residence is appropriate, it is submitted that the contact ordered by Registrar Dittman be reinstated without supervision forthwith.  The Court may expect of the mother that, it being clearly in the child’s interest to have a good and unfettered relationship with her father, the mother will do what is necessary, including undertaking such further psychiatric or counselling attendances as may be required to adjust her behaviours.

92.  Whilst not necessarily a “disavowal” of supervised contact, the submissions made on behalf of the father could not reasonably be construed as revealing any willingness to accept supervised contact in the event of residence and unsupervised contact being refused, much less to actively seek contact in such form.

93.  Learned Senior Counsel for the mother relied upon the wife’s statement that the child “shouldn’t be allowed near him [the father]”, her affirmative response to the question “what is damaging, the current situation?”, and her suggestion that the father had “cancelled” 53 per cent of all supervised contact visits. 

94.  In response to a series of questions by the trial Judge, the mother reiterated that she had, in July 2003 opposed any form of contact and gave her reasons for so doing.  When asked about her stance in the proceedings before the Registrar in July 2003, the mother suggested:

I didn’t seem to have much choice in that.  Her behavioural problems didn’t come into it a great deal.  When I wanted a psychiatrist I was told no - for [the child].  I wanted some help with the child.

I just want to get it quite clear in my own mind that you told us yesterday that prior to Dittman R coming to a conclusion on an interim matter that you were of the belief there should be no contact at all between the father and the child because of the child's conduct?---If I had that choice, yes, definitely.

No, you told us that you - am I right in saying - well, perhaps I'll have to get a transcript.  It's just that it intrigues me that if you were so adamant that there should not have been any contact between the father and [the child] because of [the child’s] contact (indistinct)?---I didn’t like contact, no, because there was numerous problems.

95.  Whilst “supervised contact” was mentioned on a number of occasions throughout the trial, other than to the extent that we have indicated, such references were in relation to the course of supervised contact subsequent to the orders made by the Court in 2003.  Such references, and the father’s own case, supported the trial Judge’s finding that such contact had been “problematical” if only because of the difficulty of arranging supervisors.

96.  The trial of the proceedings occupied some four hearing days.  The transcript was recorded in 757 pages.  Sixty-six pages of written submissions were made to the trial Judge by the parties.  In our view, having regard to the manner in which the proceedings were conducted before him, save as a consequence of going on some sort of “roving inquiry”, the trial Judge could not, without having invited further submissions from all parties, reasonably have made an order for supervised contact.  Having regard to the written submissions made on behalf of the father and the child, after the evidence to which we have referred was adduced, the trial Judge was in our view entitled to proceed on the basis that supervised contact was not an “alternative proposal”, nor one which, on such evidence as there was before him, required him to give reasons for not considering such contact.  We are thus not persuaded that either of the grounds encompassed by the first broad category of submissions has been made out. 

GROUNDS 3, 4 AND 5

97.  Grounds 3, 4 and 5 provided:

3.That in dismissing the application for contact the trial Judge erred in that he failed to take into account either adequately or at all his finding that the respondent’s belief as to the risk of contact by the child with the appellant was in part irrational and baseless.

4.That in finding that if he ordered contact to the appellant the relationship between the respondent and the child would be at risk and/or distanced or shattered the trial Judge erred in that he failed to consider alternate forms of physical contact.

5.That in finding that an order providing contact of the child with the appellant would cause devastating effects upon the child such as to justify a cessation of future contact, the trial Judge erred in that he:

(a)    failed to have regard to the history of the longstanding attachment difficulties between the respondent and child;

(b)   failed to recognise that the appellant had a very good relationship with the child;

(c)    failed to recognise that the respondent had worked long hours leaving the care of the child to the appellant and other secondary caregivers;

(d)   failed to take into account that the respondent had commenced long-term psychiatric treatment with Dr [C] in August 2002 which treatment continued up to the separation and was ongoing at the time of trial;

(e)    failed to take into account the terms upon which contact had been ordered since July 2003.

98.  It is convenient to deal with ground 4 before considering the remaining grounds.  The focus of the ground is that the error of the trial Judge was in failing “to consider alternate forms of physical contact”, the only such alternate which the trial Judge could have considered having been supervised contact.  Our reasons for rejecting the second limb of the challenges contained in grounds 1 and 2 substantially deal with this ground.  The concession to which we earlier referred (Outline of Submissions by Appellant Father, paragraph 27) from which learned Senior Counsel for the father properly never sought to resile, taken in conjunction with the reasons we have earlier advanced in relation to the adequacy of reasons for refusing supervised contact, are sufficient to dispose of this ground.

99.  In support of ground 3, reference was made to the trial Judge’s conclusion that:

It is regrettable that I am of the opinion that I could not find that the mother’s belief at trial was entirely irrational and baseless, particularly given Dr [C’s] evidence that he on more than one occasion during discussions with the mother professed of the view that certain described behaviours exhibited by [the child] were concerning. Not only is the relationship between [the child] and the mother perhaps at risk should residence be changed and/or contact ordered, it would more than likely mean that the child, who has a close relationship with the maternal grandparents – with whom she lives with her mother, she would be distanced from such relationship with the maternal grandparents, if not that relationship would be shattered altogether. (Judgment, paragraph 39)

  1. Reliance was placed upon the unreported decision of the Court in Russell v Close, and in particular the following passages of the judgment in that case:

    It is established that in considering the factors in s64(1), in particular the nature of the relationship of the child with each of the parents (s64(1)(bb)(i)), the custodial parent's caregiving capacity (s64(1)(v)) and "the need to protect the child from abuse, ill treatment, or exposure or subjection to behaviour which psychologically harms the child" (s64(1)(va)), an appropriate consideration is the custodial parent's belief that the child or children have been sexually abused whilst on access and the effect of that belief on them as the primary caregiver. (paragraph 30)

    …

    In taking into account the belief of the custodial parent of abuse by the non-custodial parent of the children and the effect of such belief on that parent as primary caregiver of the children, and consequent harm to the children, a subjective test is employed. However, it must be shown that such belief on the part of the custodial parent is genuinely held. Where it appears on the whole of the evidence that such belief is entirely irrational and baseless, the genuineness of the subjective belief of the custodial parent will clearly be open to doubt. (paragraph 33)

  2. It was submitted that the trial Judge had to have regard not only to his inability to “find that the mother’s belief at trial was entirely irrational and baseless” in conjunction with the finding that he “was not concerned that the father would present an unacceptable risk if he had contact with the child” (Outline of Submission by Appellant Father, paragraph 24). 

  3. It was thus submitted:

    The Trial Judge having found that the belief of the mother was not entirely irrational and baseless, could not, in the appellant’s submission, have found that the belief was genuine.  The Trial Judge needed to explore and give adequate reasons for a determination that in the face of that determination the Trial Judge should act upon that belief in making a determination that there be no contact at all.  (Outline of Submissions be Appellant Father, paragraph 26)

  4. In support of his submissions, learned Senior Counsel referred to cross-examination of the mother by counsel for the child representative and to the evidence of Dr M, the reporting psychiatrist, referred to earlier.  

  5. In oral submissions, learned Senior Counsel for the father asserted that despite what the mother said there was no basis for finding that she could not in fact cope with contact, a proposition we have some difficulty reconciling with the concession in paragraph 27 of learned Senior Counsel’s submissions.  

  6. The concession in paragraph 27 with respect to the grandparents also causes us some difficulty in relation to the submission in support of ground 5 which “takes issue with the link between the beliefs of the mother and the grandparents and the effect upon the child of any contact with the father” (Outline of Submissions of Appellant Father, paragraph 29).  So far as the five particular complaints contained in ground 5 are concerned, it is apparent that the trial Judge, in the passages to which we have earlier referred, had regard to the “history of the longstanding attachment difficulties” (ground 5(a)) between the mother and the child; to the mother’s long-term psychiatric treatment with Dr. [C]” (5(d)); and to the “terms upon which contact had been ordered since July 2003” (5(e)), in respect of which his Honour made an unchallenged finding of fact that such contact had been “problematical”. 

  7. The trial Judge did not base his decision on any absence or undesirable features of the father’s relationship with the child as contended in ground 5(b).  A reading of his reasons for judgment makes this clear.  In the passages to which we have earlier referred, it is evident that the trial Judge was conscious of the “good relationship” which the father had with the child, as if confirmed by the comments made in the final four paragraphs of his reasons.  Whilst the trial Judge did not specifically refer to the evidence that the mother had “worked long hours leaving the care of the child to the appellant [father] and other secondary caregivers” (5(c)) prior to separation, the unchallenged findings made by him leave no scope for suggesting that having done so could have changed the outcome of the proceedings before him.

  8. On behalf of the mother it was submitted that:

    Indeed, there are specific findings, unchallenged on this appeal by the appellant, that:

    “Dr [C], Dr [M] and Ms [L] all accept that the mother presents with a genuine belief that the father has sexually abused [the child]”

    and

    “It appears to me, having observed the mother, that the mother genuinely believes that the father has sexually abused [the child]…”

    (Footnotes omitted, Outline of Submissions by Respondent Mother, paragraph 29)

  9. In paragraph 32 of his reasons the trial Judge recorded that “The father himself, after seeing the mother give evidence, told Ms [L] that he accepts that the mother genuinely believes that he has acted in this manner”. That finding has not been challenged in this appeal. 

  10. It was submitted on behalf of the mother in relation to the assertion of learned Senior Counsel for the father that, although genuine, the mother’s fears were without objective foundation that:

    There was a perfectly sound, rational and cogent basis for the mother’s belief including, not least of all, the child’s bizarre behaviour in licking the father in Ms [L’s] presence.  The experts were unanimous that this was a matter of grave concern and the mother’s own treating psychiatrist’s view – expressed to the mother – was that the child had been exposed to sexualised activity. (footnotes omitted, Outline of Submissions by Respondent Mother, paragraph 32)

  11. As learned Senior Counsel for the mother submitted, relevant to the issue of “objective foundation” for the mother’s fears was the trial Judge’s finding “that the child has been exposed to behaviour … of a sexualised nature” (Judgment, paragraph 27).  That finding of fact has not been challenged in this appeal. 

  12. We are not persuaded that the trial Judge failed to address any relevant fact or circumstance referred to in the context of these challenges.  Nor did he rely upon any extraneous fact or circumstance in the exercise of his discretion.  Nor are we persuaded that the evidence before him did not entitle the trial Judge to accept that the mother’s genuine belief was not “entirely irrational and baseless”.  There was evidence before the trial Judge, to which he referred, which entitled him to so find.  Moreover, to the extent that it has been submitted on behalf of the father that, even if the belief was genuine, the absence of objective foundation deprived it of the significance given to it by the trial Judge, the trial Judge’s acceptance of the observations of Ms L, and the opinions of Dr M and Dr C in relation to it, provided objective foundation for his Honour’s conclusion that the belief was genuine.  The trial Judge did not find that contact between father and child would impact adversely on the child but rather that making an order for contact would, by reason of its impact on the mother, be detrimental to the child’s welfare.  This his Honour clearly stated on a number of occasions in his reasons in the passages to which we have earlier referred.  We are thus not persuaded that any of these grounds has substance.

CONCLUSION

  1. No ground having been successful, the appeal will be dismissed. 

COSTS

  1. Learned Senior Counsel for the mother sought an order for costs in the event of the appeal being dismissed.  Counsel for the child representative sought no order for costs in the event of the appeal being dismissed.  Learned Senior Counsel for the father opposed any order for costs in the event of the appeal being dismissed. 

  2. We were informed that neither party was on Legal Aid. 

  3. This was an appeal against a discretionary judgment.  The obstacles to success in such appeals are well known (see Gronow v Gronow (1979) 144 CLR 513 per Stephen J at 519-520). A significant part of the appeal involved raising issues in this Court in relation to supervised contact which were not raised at trial. Although the appeal was neither hopeless nor vexatious, nor lacking bona fides, it has been “wholly unsuccessful”. Primarily for that reason we consider that circumstances justify an order for costs being made in favour of the mother against the father. Nothing to which we have been referred militates against so ordering.

ORDERS

  1. The Court will accordingly order:

    1.That the appeal be dismissed.

    2.That the father pay the mother’s costs of and incidental to the appeal as agreed or failing agreement as assessed under Division 19.6.2 of Chapter 19 of the Family Law Rules 2004 on a party/party basis in accordance with the relevant scale.

I certify that the preceding
116  paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.
 

Associate
Date: 04/08/05


Key Legal Topics

Areas of Law

  • Civil Procedure

  • Administrative Law

Legal Concepts

  • Appeal

  • Judicial Review

  • Jurisdiction

  • Procedural Fairness

  • Standing

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Gronow v Gronow [1979] HCA 63
Gronow v Gronow [1979] HCA 63