H & R

[2006] FamCA 878

[2006] FamCA 878

FAMILY LAW ACT 1975

IN THE FULL COURT      
OF THE FAMILY COURT OF AUSTRALIA                  Appeal No NA19 of 2006
AT BRISBANE  File No DGF250 of 1999

BETWEEN:

H
Appellant Father
- and -
R
Respondent Mother
INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

CORAM:  FINN, KAY & MAY JJ
DATE OF HEARING:                 11 August 2006
DATE OF JUDGMENT:             8 September 2006

APPEARANCES:  Mr Laurie of Counsel, instructed by Robert Halliday & Associates, Suite 1B, 147-151 Foster Street, Dandenong, Vic 3175, appeared on behalf of the Appellant Father.

The Respondent Mother in person.

Mr Linklater-Steele of Counsel, instructed by Emerson Black Lawyers, PO Box 13166, George Street, Brisbane, Qld, 4003, appeared on behalf of the Independent Children’s Lawyer.

H & R
NA19 of 2006
CORAM:  Finn, Kay & May JJ
DATE OF HEARING:  11 August 2006
DATE OF JUDGMENT:                8 September 2006

Catchwords:           FAMILY LAW – CHILDREN – Contact – Appeal against order of trial Judge that father have no face-to-face contact with his children aged 10 and 6 – During the five years in which the parties cohabited the father was extremely violent towards the mother and had threatened to kill her on more than one occasion – There were no incidents of violence after the final separation – After final separation there were nine occasions of supervised contact between the father and the children – At this point the mother disappeared with the children and travelled to Queensland – Proceedings were instituted by the father but the mother’s whereabouts was not discovered for two years – At trial the father sought a resumption of supervised contact – The trial Judge found that the mother remained terrified of the father and that any form of face-to-face contact between the children and the father would be detrimental to the mother’s parenting capacity – Similarities with Russell v Close – Evidence as to the trauma and anxiety caused to the mother by the prospect of the children having contact with the father – No error of trial Judge in exercise of discretion – Appeal dismissed.

1. This is the father’s appeal against orders made by Bell J on 2 March 2006 that had the effect of denying the father any ongoing face-to-face contact with his children J born in August 1996 and B born in October 1999.

1. In his Notice of Appeal the father sought supervised contact at a contact centre for two hours, on two consecutive days, every three weeks for a period of six months, and a review of the matter at the end of that period.  In light of the amendments to the Family Law Act 1975 (Cth) introduced by the Family Law Amendment (Shared Parental Responsibility) Act2006 (Cth) there appeared to be a reluctant acknowledgment by the appellant’s counsel that in the event that the appeal was successful the matter would need to be remitted for a rehearing.

1. When the appeal came on for hearing before us the father and the independent children’s lawyer were each represented by counsel.  The mother appeared in person.  Her solicitors had recently filed a Notice of Ceasing to Act, it being alleged that there had been a breakdown in communication between the mother and her solicitors.  There was discussion between the bench and the bar table as to whether it would be appropriate to further adjourn the proceedings to enable the mother’s application to be legally aided at the appeal to be reconsidered, given that communication had been re-established.  We expressed the view that it would only become apparent after we had heard argument on behalf of the appellant and on behalf of the independent children’s lawyer (who was opposing the appeal) whether it would in fact be necessary to hear from the respondent mother.  In the circumstances we determined to hear the argument from the appellant and the independent children’s lawyer, and indicated that in the event we thought there was substance in the appeal we would call upon the mother to advance submissions in writing as to why the appeal ought not be allowed.  The hearing then proceeded before us on the understanding that this was the appropriate course of action to be followed.

Background

1. The parties commenced cohabitation in Victoria in September 1995, finally separating in April 2000.  The relationship was punctuated by periods of separation.  There was a major separation between June 1998 and August 1999 and a further separation between September 1999 and February 2000. 

1. Throughout the relationship the father was extremely violent towards the mother.  Whilst the trial judge did not make the findings in relation to each and every incident described by the mother in detail in pars 66-157 of her affidavit filed on 4 March 2005, his Honour did say:

‘2.Generally I find in cases of this nature the person always, and quite understandably, puts their best foot forward, hence to magnify their benefits and denigrate by magnifying the failure of the opposite side.  But this is a case where I have to determine whether I accept the evidence of the applicant father or the respondent mother.  The applicant father in his evidence has in effect conceded now that his conduct was, to use a fairly neutral phrase, not all that could be desired in relation to his physical attitude towards the respondent.  I am more than satisfied that over a period of some five, six years, he continually assaulted the respondent and assaulted her to a greater or lesser extent.  He has on occasions attempted to choke her.  He has on one occasion smashed her nose resulting in her seeing a plastic surgeon for respiratorative (sic) surgery.  He has broken windows of motor vehicles, either by his fist or by his foot, and that in itself I would have thought is a fairly strong indication of the amount of power that this man, who is not shall we say small, has used in relation to the mother.

3.The mother became justifiably as I find terrified of this man.  This man at one stage attempted to suggest that she gave as good as she got.  I reject that out of hand.  I am more than satisfied that his conduct towards the mother was nothing else but a cowardly brutal attack upon her on frequent occasions.  The mother was in the first occasion assaulted by the father to such an extent that it appears, prima facie to me, that this caused the birth of her first child [J].  She was assaulted to such an extent on the following day she went into labour and [J] was born some two weeks, I think, two weeks, or five weeks premature.

4.Similarly, after separation the mother as is quite well known in cases of wife bashing, she returned to him on at least two occasions, I think three all together.  And on one of these occasions when she returned she believing that he had in fact improved, that he recognised the error of his ways, she became pregnant with [B].  And it was once again that after an assault she was delivered of [B], some 10 weeks I think it was, premature.  The conduct of the father towards the mother was absolutely reprehensible in the extreme.  I think it is one of the worst cases I have ever heard in my 30 years of experience at the Bench here.’

1. Whilst the trial judge’s findings speak in generalities of the extent of the father’s violence, which findings were not the subject of any challenge before us, the matters alleged by the mother in greater particularity in her affidavit evidence were the subject of a general admission by the father in his affidavit  although some particulars were denied. The father made many admissions in cross-examination.  We think it is important to detail the extent of the alleged violence whilst at the same time noting that there is no suggestion of any attacks upon the mother once the parties finally separated in early 2000.

1. In her evidence in chief the mother asserted that

·     the first incident occurred in August 1996 when she was 35 weeks pregnant with the child J.  The appellant hit her across the head causing her to fall off the front porch.  She managed to get into a car but the appellant jumped on the bonnet of the car and smashed the windscreen by throwing his feet through it.  The next morning she went into labour and the child J was born five weeks premature.  Approximately six weeks later the parties separated for a period of about three months before they reconciled.

·              In or around June 1997 in the course of an argument the appellant grabbed the respondent with one hand around her throat and lifted her from the ground and punched her with a closed fist to the face. 

·     In or around October 1997, the appellant, a passenger in a car that the respondent was driving, punched the windscreen with a closed fist breaking it. 

·     In January 1998 the respondent locked the appellant out of the house whilst he was yelling at her.  He broke the door to get back in, grabbed her around the neck, pushed her onto a couch and squeezed her neck very hard.  Over the next two weeks the respondent later suffered a miscarriage.

·     Around  Easter 1998 the appellant pulled the respondent from the car by the arm after threatening to punch the window in. 

·     In June 1998 the appellant punched the driver’s side window in when the respondent was driving in the car with the child J.

·     In June 1998 when the respondent advised the appellant that she was intending to leave him and take the child J with her, the appellant threw his body into the bonnet of the car she was in, yelling ‘I’m going to fucking kill you’, ‘I’m going to open you up like a tin of fucking sardines!’.

·     In August 1998 at an attempted changeover for contact the appellant leant into a car being driven by the respondent. He was carrying a spanner and said to the respondent ‘Stop the fucking car or I’ll put this fucking spanner through your fucking head, you cunt!’.  Later that evening he left a message on the respondent’s answering machine that said ‘Now you come near me cunt, I’m going to blow your fucking head clean off.  Give this fucking tape to the coppers you fucking give up cunt.  You’re nothing but a fucking dog’.

·     The parties resumed cohabitation in August 1999.  In September 1999 the appellant arrived home at 4.00am yelling and slurring his words.  The respondent locked him out of the house and told him to sleep it off in the caravan.  He threatened to break the door down so she opened it.  He then broke a window with his fist which led to the respondent barricading herself and the child J in a bedroom for about half an hour. 

·     Shortly before the birth of the youngest child in October 1999 the respondent told the appellant that she was going to the Child Support Agency for maintenance to which he replied ‘You fucking do, you give up cunt, and you’re as much as dead’.

·     In 1999 there was an incident at the Family Court in Dandenong in which a woman was murdered outside of the court.  At that time the respondent alleged that the appellant told her ‘That’ll be you next’.

·     According to a police statement made by the respondent on 16 April 2000  in the course of an argument on 9 April 2000 the respondent stated that the appellant:

‘called me a fucking cunt and that he was going to get someone to top me.  By top me I knew he meant kill me.  He was ranting and raving and I was scared,  I thought that he might get someone to kill me…’

·     On 15 April 2000 in the course of an argument the appellant hit her with the back of his right fist across the left side of her face.  Her nose started to bleed profusely.  As she headed towards the telephone he struck her with a clenched fist and ‘gave me four or five good backhanders continuously across my head making contact with the front of my face, temples and ears’.  He punched with a right clenched fist to the chin.  That was the last assault and the last time the parties cohabited (AB 145-146).

1. In cross-examination the appellant admitted that he “probably” struck the mother when she was 35 weeks pregnant with J.  He did not recall the event in June 1997 but said:

‘You know, there’s a lot of alcohol involved and I’m absolutely disgusted that these things have happened.  I’m not proud of one thing I’ve done to Ms [R].’

1. He admitted that he punched the windscreen in 1997 and then, when asked about choking her in January 1998, he said:

‘There was (sic) very many incidents where I’ve hurt Ms [R] which I am very, very remorseful for.  As I said I’ve got no animosity towards Ms [R] anymore and I know everything that I did was very, very wrong.’

1. When cross-examined by counsel for the children’s representative the appellant accepted that he had threatened to kill the mother on a couple of occasions. 

1. Following the final separation, proceedings were commenced in the Family Court of Australia, in which the father sought orders for contact with the children.  A children’s representative was appointed and a family report was prepared.  The conclusion and recommendation of that report was as follows:

‘Although the writer feels that Mr [H] is to be commended for his efforts to demonstrate stability and behave responsibly any form of contact that requires him to interact with Ms [R] should be avoided.  Whilst his denouncement of violence is a positive development he continues to espouse the view that he only behaved violently whilst under the influence of alcohol and when attacked or provoked by Ms [R].  In so doing he attributes responsibility to the disinhibiting effect of alcohol and a provocation by Ms [R], rather than in accepting responsibility himself.  Accordingly there is reason to feel sceptical that he would not behave violently or irresponsibly were he to find himself inebriated or resentful of Ms [R] in the future.

Given his difficulties in maintaining boundaries for anger the options, that the writer suggests, are to limit contact to a very low level so that any risks to the children and to Ms [R] are minimised or to rule out contact all together.  The writer however favours limited contact because:

1.Mr [H] demonstrated that he can be loving and affectionate with [J] and [B] and there can be substantial emotional benefits to the boys from his affection.

2.Eliminating contact may ultimately serve to reduce the boys’ self-esteem if they identify with a parent whom they imagine to be so damaged as to be banned from contact.  In addition their fear of him may increase through fantasy.

3.If contact is eliminated [J] and [B] may develop rescue fantasies, particularly when normal resentment for age appropriate restrictions in freedoms and parental control plug into a perception that life with their father would be less restrictive.

Accordingly the writer suggests that contact occur under the supervision of a neutral third person in a closed setting, if only to ensure that neither [J] nor [B] inadvertently “blurt out” information that could compromise Ms [R]’s privacy.  The writer suggests one to three hours per fortnight at a contact centre.’

1. Following the preparation of that report orders were made by consent on 18 September 2001 that provided for an adjournment of the proceedings for a period of five months, during which time there would be fortnightly periods of two hours supervised contact at a contact centre..

1. It took some time to make arrangements for contact to commence at the centre and the parties agreed to postpone the period for the review to take place to accommodate that delay.  Supervised contact commenced on 16 November 2001 and took place on some nine occasions, the last being 20 April 2002. 

1. In May 2002 the mother disappeared with the children.  At that time she had formed a relationship with one Mr M who invited her to join him in Queensland.  She left no forwarding address.  Several orders were made during 2002 and 2003 in an endeavour to ascertain the whereabouts of the mother and children.  The case was given wide publicity in the media.  The whereabouts of the mother and the children were only discovered early in 2004.  On 29 March 2004 the Federal Police attended at the mother’s residence and provided her with a copy of recovery order that had been made in proceedings in D.  The mother immediately obtained a stay of execution of the recovery order and on 16 April 2004 the D proceedings were transferred for further hearing in B.  The 2001 contact orders were suspended.

1. The effect of the mother’s behaviour in removing the children surreptitiously in May 2002 was that, by the time the matter came on for trial before Bell J, the only time the father had seen the children from April 2002 until March 2006 was in the course of the preparation of a welfare report in December 2004.

1. In the proceedings before Bell J the father sought orders:

(a)      that the mother return with the children to reside within 50 kilometres of the Melbourne CBD;  and,

(b)      that the father have regular and frequent contact to the children.

1. The mother opposed the orders sought by the father and proposed that there be no contact between the children and their father.

1. During his closing address counsel for the father indicated that the father was abandoning his claim that the mother relocate back to Victoria with the children and submitted that a regime of contact that commenced with several periods of supervised contact, leading eventually to unsupervised contact would be appropriate.

The orders at trial

1. The orders made by Bell J on 2 March 2002 provided for the children to reside with their mother and that she have responsibility for their long-term day to day care, welfare and development.  The father’s contact was limited to telephone contact once per week and an ability to correspond with and forward presents to the children from time to time.  The mother was to provide the necessary authority for copies of school reports to be issued to the father at his expense and to advise the father of any serious accident or emergency involving the children.

The judgment

1. After setting out the findings in relation to the history of the matter that we have already referred to above, his Honour indicated that he remained highly critical of the father’s attitude towards violence, saying:

‘12.     …I have to consider whether in fact he deserves contact with his children or whether the children should be put in the position of having as a role model a cowardly bully.  He says, as I said, that he has changed.  I am not quite sure whether he has at this stage.

…

15.      I do not trust Mr [H].  Mr [H] came across as a man who genuinely attempts to put forward a fact that he has changed, that he has seen the error of his ways, that he is no longer a cowardly bully who will assault women, or in particular one woman.  …

…

26.      It is a great concern here, as I have made it quite clear, that this man has not remodelled himself.  I think it is absolutely essentially that he show to the mother and to the Court, of course, that in fact he has and that he will undergo anger management courses and any course which is readily available in Victoria in relation to abuse of women, domestic violence courses.’ 

1. His Honour made reference to the evidence of Ms D, a family therapist/child and adolescent counsellor, who had prepared two family reports, and Dr C, a psychiatrist, who had examined both the father and the mother.  His Honour noted that whilst Dr C concluded that neither party had any psychiatric illness, he did find that the mother was suffering a deep degree of anxiety as a result of the father’s conduct towards her.  His Honour said ‘this is the crux of the matter…’.  He then said:

‘18.Is there sufficient evidence for me to decide that the mother would be gravely affected or her parenting would be affected?  I am quite sure that there is.  Ms [D] in effect concedes that she is satisfied that the mother is very stressed.  She refers to the absenteeism of [J] from school and says that upon contacting the school teacher the teacher was of the view that the mother was very stressed.  “That she is having a bad time of it”.  I think they were the exact words that Ms [D] referred to, and that she quite clearly has inferred that this lack of attendance at school was brought about by the mother's difficulty in parenting [J] being brought about by her rational, I say, rational and justified fear of the father.

19.Her mental health is at risk.  She gives evidence that in fact if there is any suggestion that the father will come anywhere near her or her children she becomes violently ill.  She has increasingly difficulty sleeping.  She does have nightmares, I think, some 3-4 times a week.  She has sought assistance not only from counsellors in Victoria which (sic) she was secreted in a refuge in [B], but also has sought Relationship Australia counselling here in an endeavour to lessen the anxiety which she clearly showed.  She was a most distressed young woman and exhibited that in Court.  I am more than satisfied that such stress was genuine.  I am more than satisfied that in fact her parenting of the boys would be at risk should there be any form of contact between the father and the children which would be face to face contact and put her in the position of having to deliver these children to a contact centre albeit under such circumstances as she would not be seen by the father, nor the father be seen by her.

…

22.I am more satisfied in the circumstances here this is a classic Russell v Close which has been brought about by the applicant's own conduct and attitude towards the mother.  As I have said in argument, I think it was in a question rather to one of the parties, he is the author of his own misfortune.  He cannot blame the Court.  He cannot blame the mother.  He cannot blame anybody except himself for his viscous (sic) conduct towards this inoffensive woman.’

1. After determining to make the contact orders by telephone and correspondence only, his Honour indicated that in the future it would be:

‘26.     …absolutely essentially (sic) that [the father] show to the mother and to the Court, of course, that in fact he has [remodeled himself] and that he will undergo anger management courses and any course which is readily available in Victoria in relation to abuse of women, domestic violence courses.’

The appeal

1. In his Notice of Appeal the father sought to argue four grounds.  They are as follows:

‘1.That his Honour erred in concluding that the parental ability of the mother would be so affected by any physical contact, including supervised contact between the children of the marriage…and the appellant that the benefit of any such contact for the children would be outweighed by the detrimental effect on the mother’s parenting ability.

2.That his Honour erred in concluding that it was in the best interests of each of the children that they have no physical contact whatsoever with their father.

3.That his Honour’s findings in relation to the effect on the mother’s parenting ability of supervised contact with the father was ordered was against the evidence and – or the weight of the evidence.

4That his Honour failed to take into account the interests of the children as the paramount consideration and placed undue weight upon the distress which physical contact between the children and their father might have upon the mother personally as opposed to her parenting ability.’

1. In the course of oral argument Mr Laurie on behalf of the father acceded to the proposition that the appeal was, in essence, about one point only, namely whether it was open to the trial judge, on the material before him, to properly conclude that the detriment that the children would suffer from the possible diminution of their mother’s parenting ability should face to face contact be ordered, would outweigh the detriment that the children would suffer should such contact not be ordered.  Particular emphasis was placed upon the proposition expressed by the Full Court in Re W (Sex Abuse; Standard of proof) (2004) FLC 93,192; (2005) 32 Fam LR 249 at par 19 where the Full Court said:

‘The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort.’

1. In Fitzpatrick and Fitzpatrick (2005) FLC 93-227, the ability of a mother, who firmly believed that the children had been sexually abused, to be able to promote or cope with ongoing contact orders was mentioned by the trial judge. The Full Court, in discussing the appropriate manner to have dealt with the issue in that case, said:

‘[63]     The mother’s ability to cope with ongoing contact was touched upon by the trial judge when she was dealing with the capacity of the parties to provide for the children’s needs, including their emotional and intellectual needs. Her Honour concluded:

“[126] There is a real concern that, if continued contact is ordered, even continued supervised contact, the mother may not be able to cope, in two ways. First, the mother may not be able to continue to ‘force’ [C] and [A] to attend contact. Secondly, the mother may not be able appropriately to deal with the children’s emotions, or indeed her own, as to continued contact, which may affect her parenting ability.”

[64]     In Russell v Close (FamCA, Fogarty, Baker and Lindenmayer JJ, Appeal SA45 of 1992, 25 June 1993, unreported) the Full Court said at 16:

“It is established that in considering the factors in s 64(1), in particular the nature of the relationship of the child with each of the parents (s 64(1)(bb)(i)), the custodial parent’s caregiving capacity (s 64(1)(v)) and ‘the need to protect the child from abuse, ill treatment, or exposure or subjection to behaviour which psychologically harms the child’ (s 64(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 care giver. The majority of the Full Court in B and B (1988) noted at [FLC] 76,924 that the criteria in s 64(1) do not constitute an exhaustive list of matters to be taken into account in proceedings concerning children. In this regard, the court considered that the trial judge should always recognise:

‘That any benefit to the child in access taking place should not be outweighed by disadvantages for the child, including a risk that the child’s relationship with the custodial parent might be undermined by the conduct of the non-custodial parent during access periods’”

Thus the majority found that the trial judge had appropriately considered the attitude of the wife towards access and her belief that the child had been sexually abused by the husband as one of the reasons for suspending access.

Similarly, in the case of In the Marriage of S and P (1990) 14 Fam LR 251; (1990) FLC 92-159 the Full Court of this court found it appropriate that the trial judge had had regard to the wife’s attitudes and concerns in considering whether or not access would be to the ultimate benefit of the child. Specifically, the Full Court, under the heading ‘Other matters taken into account by the trial judge to justify his decision to suspend access’ at 78,109, quoted the trial judge’s findings that the wife would not trust the husband in his care of the child, would not accept any finding exonerating the husband, and as a result of her conviction of his guilt, would continue to be in a state of tension and anxiety should lie have access to the child. The trial judge therefore concluded: ‘This means that she will be an anxious parent and this will impair her mothering capability.’ …

[65]     The mother’s views are thus a factor that needs to be brought into the balance in determining whether the welfare of the children will best be advanced by promoting the limited contact that the father seeks. Absent any expert evidence to assist the court as to the manner in which the mother may be affected in her capacity to care for her children if the contact is continued, it would, in our view be inappropriate for us to draw a conclusion that she might be so overborne by the contact as to be unable to function adequately as the principal caregiver to her children. If such was the situation then we would have expected such evidence to be led at trial or at least explored with the family therapist in the course of her evidence. The issues appear to have been left largely untouched in the evidence and apart from the trial judge’s observations of the mother reflected in the paragraphs referred to earlier it would be mere speculation on our behalf to assume that the mother’s parenting capacity would be so adversely affected by the continuation of contact that the children’s welfare would best be served by acceding to the mother’s wishes. The evidence suggests that the children are currently prospering academically and socially at school, which of course reflects well on the mother.’

1. In reliance on the passage at par 65, counsel for the father sought to urge upon us that it was inappropriate for Bell J to draw the conclusions that he did as to the mother’s capacity to cope with ongoing contact, in the absence of specific expert evidence dealing with the matter. We caution that the passage needs to be read in context. There was no case being urged upon the trial Judge in Fitzpatrick that the mother’s parenting would suffer if ongoing supervised contact took place. Rather it was speculation on the part of the trial Judge in the absence of any evidence at all about the matter.

Discussion

1. In this case, the evidence of the mother’s genuinely held fears and the effect that her fear had had upon her capacity to cope, came from several sources.  In her affidavit of evidence in chief sworn in January 2005, shortly after the preparation of the first of the welfare reports by Ms D, the mother swore that

·     She was absolutely petrified of returning to live anywhere near the appellant;

·     She could no longer cope with working due to stress, and had taken leave from her employment without pay;

·     She had felt extremely anxious and frightened particularly when she knew the father had been in [B].  She was unable to concentrate and felt sick and had been vomiting a lot;

·     She had begun to experience nightmares at night, even though she had already undergone 18 months of counselling to assist her in dealing with them;

·     She often wakes up crying from the nightmares which were recurring three to four times per week. 

1. In the course of her oral evidence the mother indicated that the father had, at some point in the past, made a promise to hunt her down until the day she died.  In an answer to a direct question as to why supervised contact should not take place she said:

‘My emotional status when I have to deliver my children to this man that I am petrified of.  It is not conducive – it impacts directly on them.  I am – I lose weight.  I lose sleep.  I find it hard to function properly.  I’ve been known to lose seven kilograms in two weeks due to the real fear that I face that I will be followed and that he will carry out his final threat.’

1. When questioned about the children’s schooling problems late in 2005 she said that their attendance was a problem because ‘I came very close to a nervous breakdown last year’.  She went on to say:

‘I don’t want any contact.  I don’t want to see Mr [H] at all.  I don’t want any option of bumping into this man at all.’

1. She maintained that she had a daily fear that the father would travel up from Victoria and kill her. 

1. When cross-examined by counsel for the father and describing her life in Queensland she said:

‘My career has flourished, the boys have thrived here, we are all able to live some semblance of a normal life without looking over – me looking over my shoulder, knowing that the children are safe and---

MR LAURIE:      Indeed.  But just assume for the moment that my client is going to be seeing the boys on a regular basis, is there any difference between here and Melbourne in a real sense?---No, I am still fearful and still – very real fear that, given his antisocial behaviour, that it will be – he will harm the children emotionally, whether that’s supervised, definitely not unsupervised visits, because there was no physical – ‘

1. There was subsequently some discussion as to the likely effects of contact on the children, in light of a report from the contact centre which stated that the children seemed to be functioning well during contact in 2002.  The mother said:

‘I see myself chasing a young child trying to get him into the car because he doesn’t want to go, I see me putting up with two hours travel with two children screaming, and I see me putting up with two hours travel with two distressed children and what I have to go through at home, that is what I see.’

1. When pressed as to whether she would be assisted by reading reports of the children enjoying contact, if it were to proceed on a supervised basis, she said:

‘No, I believe it would assist us, wholly and solely as a family unit, to allow supervised access, would be that the children and I attend counselling for some time to prepare them properly, to give this a chance of working positively, and of course to help me.  I mean, I’m not naïve enough to think that I am a mother, and directly – like, my fear is going to impact on the children, but that’s something I cannot – I am fearful of this man.  And my main priority is the protection of my children and if that isn’t my only crime, then I am guilty.’

1. In her first report dated 23 January 2005 Ms D observed that the mother ‘remains extremely traumatised by her experiences when she was in a relationship with [the father]’.  In her second report dated 22 February 2006 she noted that the children’s schooling was compromised in 2005 due to the mother’s emotional wellbeing.  She acknowledged that the mother’s sudden relocation to Queensland was motivated by a genuine fear for her safety and wellbeing.  In cross-examination she accepted that the mother was still extremely traumatised, that she was very weepy, distraught, and fearful and that she cries and weeps in the presence of the children.

1. In his observation of the mother Dr C said:

‘She remains very anxious about Court and indeed was quite clearly upset talking about the prospect of both further Court hearings and of contact.

There was no disorder in the form, stream, possession or content of her thought other than a marked degree of anxiety about Mr [H] and his intentions.

I did not think this 36 year old lady had an Axis 1 psychiatric disorder.  She certainly has profound anxieties in relation to her ex-husband… She is likely to find contact difficult and potentially frightening.’

1. The doctor went on to say, when psychiatrically assessing the father, that he could see no reason why the father should not have supervised access with his two boys.

1. The doctor was not required for cross-examination by any of the parties.

1. The mother’s presentation during the course of the trial was described by his Honour in the course of Ms D’s evidence as being demonstrably upset.  Mr Laurie, counsel for the father, in his final address  commented that ‘clearly the mother is fearful’. Counsel for the children’s representative in his concluding remarks observed:

‘One thing to bear in mind in terms of the mother’s emotional welfare, yes, she is traumatised, there is no doubt about that, there is no doubt that she has good reason to be…’

Appellate principles

1. This was a discretionary judgment.  The circumstances in which the Full Court should interfere with a discretionary judgment are well known. In Gronow v Gronow (1979) 144 CLR 513, Stephen J said, at 519:

‘The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.’

1. In House v. The King (1936) 55 CLR 499, at pp 504-505 , Dixon, Evatt and McTiernan JJ. said:

‘The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.’

1. Having clarified the issue that the trial judge had to determine, namely evaluation of whether a contact order would carry with it potential detriment to the welfare of the children outweighing the detriment to them of an order for no face to face contact, it becomes difficult to see how, as an appellate court, we can intervene in the exercise of discretion by the trial judge. 

1. We understand that this result may seem from the father’s perspective as being unfair.  He has endeavoured to have contact with his children since separation in 2000.  He attended at supervised contact, even though it involved several hundred kilometres travel for each limited period of contact.  Until the mother disappeared in early 2002 there were no incidents in which the father was said to have further harassed the mother or behaved inappropriately towards her.  After he ascertained her whereabouts in early 2004 there were again no incidents recorded in which it is suggested that he behaved inappropriately towards her or the children.  He had the benefit of existing court orders which the mother deliberately breached by surreptitiously removing the children in 2002 and hiding her whereabouts from the father and from the authorities. 

1. But this case is not just about issues of justice or injustice as between the parents. It must focus firmly upon the children.  In Schenck and Schenck (1981) FLC 91-023, the Full Court (Evatt CJ, Marshall SJ and Lindenmayer J) in determining a custody case in favour of a father who had kidnapped a child from Norway and brought the child to Australia, hiding here for a period of two years, said at 76,240:

‘But the court’s concern is with the child and its welfare, and to that principle the “justice” of the situation as between the parents must be subordinated…In a sense, it could be said that [the husband] has profited from his own wrongdoing.  Nevertheless, we are required to consider the case from the point of view of the child and the welfare of the child…In the absence of any rule that a parent who has behaved in the manner of this father is automatically debarred from being a custodian, we can find no ground for holding that his Honour erred in the exercise of his discretion.’

1. Several cases in which the court determined it was inappropriate to make any contact orders in circumstances where the carrying out of those contact orders could have a deleterious effect upon the health of the primary caregiver were discussed in the decision of Re Andrew (1996) FLC 96-692 (Nicholson CJ, Lindenmayer and Kay JJ) at 83,200 et sec. Their Honours there cited with apparent approval the decision of Russell v Close, (referred to in para 25 above)

1. Russell v Close was a case in which the wife believed that one of the children had been sexually abused by the husband.  Whilst the trial judge rejected the allegation of abuse, she limited contact to day time hours only with no periods of overnight contact ordered.  Their Honours cited with apparent approval a passage from the Full Court decision in B and B (1993) FLC 92-357 at 79,780 wherein the court stated:

‘It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children's protection, as primary caregiver, anxiety about the children's exposure to potential harm is likely to impact adversely on that parent's ability to care for the children.’

1. In Russell v Close, their Honours then went on to say:

‘In upholding children's right to protection from sexual, psychological and/or emotional harm, the court must take into account any anxiety on the part of the primary caregiver concerning the child's exposure to potential harm where such anxiety is likely to impact adversely on that parent's caregiving ability.

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.’ 

1. In Sedgley and Sedgley (1995) FLC 92-623 the Full Court (Lindenmayer, Kay and Moss JJ) set aside orders that had allowed the husband access to an eight year old child where the husband had over a period of years intimidated the wife, failed to return the child at the end of access periods, and who had, according to the trial judge:

‘behaved in an intimidatory and bullying way and shown no respect for court orders’

The Full Court said at 82,259:

‘Whilst the welfare of the child might require some continuity of contact with the non-custodial parent, the need for peace and tranquility in the custodial parent's household may be a more compelling need for the child.’

Their Honours observed at 82,260:

‘The decision to cut the relationship between a parent and child is one which ordinarily the Court takes only with considerable hesitation.’

1. The same court in the following reported case of Irvine (1995) FLC 92-624 also set aside orders granting the father access to three children aged 13, 10 and 7 where there was a serious history of post-separation violence. Their Honours said at 82,273:

‘In deciding whether it would be in the interests of the children to grant such access, the Court had to bear in mind the obvious effect the respondent’s conduct must have had upon their custodial parent.’

1. In the earlier decision of Grant (1994) FLC 92-506 Purdy J had said at 81,259:

‘If the Court comes to the conclusion that an access order will have an effect on the custodial parent which will impair to a significant degree the emotional support and for that matter physical support which the custodial parent can render the child then the Court must take that into account in assessing whether access is for the benefit of the child.’

1. In A and A (1998) FLC 92-800, 22 Fam LR 756, the mother of three children was violently assaulted in her home following separation and suffered severe injuries in what seemed to be an attempt to murder her. She was convinced that the assailant was the children’s father although he was never charged with the crime. The trial judge ordered ongoing contact, but the Full Court (Fogarty, Kay and Brown JJ) set that order aside. In the course of their discussion their Honours looked at the circumstance in which the wife’s belief in the occurrence of events would of itself have been appropriate basis for withholding contact. Their Honours said:

‘3.28    If the wife had such a belief, it is not a necessary component that the belief should be reasonably and objectively based. What is required at this level of the inquiry is that it was genuinely held. The reason for that, as explained in Russell and Close and in cases which have followed that since, is that if the wife genuinely holds that belief that may so impinge upon her capacity as the primary carer of the children to look after them that the question arises whether in the interests of the children contact should continue and/or whether it should be supervised to allay those apprehensions.

3.29 … the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party’s capacity as the resident parent and so impinge on the best interests of the children. The Court then needs to take steps proportionate to that circumstance…’

1. The matter was taken up again in Fitzpatrick (referred to in para 25 above) in a case in which the father successfully appealed against an order that he have no contact with three children aged 9, 8 and 6.  The Full Court acceded to his application for ongoing supervised contact to the two youngest children, the eldest having firm views that she did not wish contact to take place. As already referred to at par 25 above, the Full Court expressed the view that the mother’s attitude to contact and the effect that contact would have upon her ability to function as a parent was a matter that could be appropriately explored at trial, but as it had been ‘left largely untouched in the evidence’ it was not a matter that ought to have affected the outcome of the proceedings in that case.

1. In the more recent decision of C and B (2006) FamCA 513 (Bryant CJ, Kay and May JJ) the Court dismissed an appeal against orders that the father have no contact with his children in circumstances where the wife had been the victim of a violent home invasion and was clearly of the view that the husband was involved in setting up that invasion. The trial judge spoke of the evidence of the wife being ‘compelling and revealed her true terror of what the father might do in the future’.  The counsellor had concluded that unless the Court could make a clear finding that the father was not involved the mother would have difficulty in adjusting to ongoing contact.  Her psychiatrist had taken a more optimistic view that it was more likely than not that the mother would be able to cope with contact.  The Full Court concluded that the proper question to be asked was whether the evidence persuaded them that the granting of an order for contact at this time would expose the children in the case to an unacceptable risk of harm:

‘126.…it may be harm to the child directly or it may be harm indirectly in that it may lead to the person responsible for the day to day care of the child being unable to adequately function in the manner referred to in Russell and Close.  Either way it is the risk of harm to the child that has to be weighed up against the detriment to the child of not having an ongoing relationship with both of its parents.’

1. We think that at the time the trial judge determined this case, the applicable principles were well settled. Whether they may need to be re-examined in light of the amendments introduced by the Family Law Amendment (Shared Parental Responsibility) Act2006 (Cth) that affect orders made after 1 July 2006 is a matter it was conceded that we do not need to pay any attention to in this judgment.

1. The trial judge concluded that ongoing face to face contact orders would gravely affect the mother’s parenting.  He concluded on balance that it was appropriate to order no physical contact for the children.  Such an approach is entirely consistent with the observations of the Full Court in Russell v Close where their Honours said:

‘38.     Judges are entitled, and are frequently called upon, to draw inferences as to the likely future behaviour of a party to proceedings from that party's past behaviour, as revealed by evidence in those proceedings. There is no difference, in principle, between behaviour of a party as revealed by evidence in the proceedings and behaviour of that party as revealed to the court directly in the course of the proceedings. No doubt when considering whether the behaviour of a party in court during the hearing of proceedings is a reliable guide to likely future behaviour by that party out of court, a judge will take into account the context in which the former behaviour occurred, and make due allowance for the fact that the surroundings and atmosphere of the courtroom are novel and perhaps stressful for the party and quite different from the context in which the party normally functions. Nevertheless, we are of the opinion that it is open to a trial judge to draw inferences as to a party's likely future conduct in another context from the conduct which that party has displayed in the courtroom during the hearing of the proceedings. That is what her Honour did in this case, and we are unable to conclude that, in doing so, she erred in any way.

39.      Having thus properly concluded that the wife's likely reaction to an order for overnight access by the husband would be to indulge in a “hysterical and deliberate pattern of behaviour” involving further allegations of sexual abuse leading to “further scenes” between the parties, her Honour was entitled also to infer that such “hysterical behaviour” and “scenes” would be likely to impact adversely upon the children's welfare, notwithstanding the absence of direct evidence of any such impact to date. Judges are entitled to bring to bear, upon the evidence before them, their ordinary common sense and general knowledge and experience of human nature and conduct. It seems to us that no direct evidence is required to entitle a judge to conclude that if children are constantly subjected to overt conflict between their parents over access, particularly where the custodial parent indulges in hysterical outbursts directed to the other parent involving allegations of sexual abuse, the children's welfare is likely to be adversely affected.

40.  We are therefore of the opinion that her Honour's finding about the wife's likely reaction to an order for overnight access and her conclusion as to the impact of that reaction upon the children were open to her upon the evidence, including the evidence which her Honour herself witnessed, in the form of the wife's conduct and demeanour in the witness box in the course of the proceedings.’

1. As we have already indicated, an outcome of no physical contact for the time being was open to the trial judge in accordance with well established principles. No error has been demonstrated to us as to the manner in which that result was reached.  In the circumstances the appeal will be dismissed. We note that no orders for costs were sought in the event the appeal was dismissed.

Order

1. The appeal is dismissed.

I certify that the 55 preceding
 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.



Associate