HARRELL & HANCOCK-HARRELL - [2016] FamCAFC 47

FAMILY COURT OF AUSTRALIA

HARRELL & HANCOCK-HARRELL

[2016] FamCAFC 47

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the father filed three Applications in an Appeal seeking to adduce further evidence and dispense with the requirement to file and serve a transcript of the proceedings below – applications granted insofar as it relates to the transcripts and evidence of the father’s psychiatric records.

FAMILY LAW – APPEAL – CHILDREN – CONTRAVENTION – where the trial judge dismissed the father’s contravention applications – where the alleged contraventions were in relation to statutory provisions rather than orders – where the father argued the trial judge misinterpreted the heading to Division 13A of Part VII of the Family Law Act 1975 (Cth) – where the Full Court rejected the appellant’s submission – appeal dismissed.

FAMILY LAW – APPEAL – CHILDREN – INTERIM PARENTING ORDERS – where the father appeals against interim parenting orders that child live with the mother and spend supervised time only with the father – where no merit in any of the grounds of appeal – appeal dismissed – no order for costs.

Acts Interpretation Act1901 (Cth) s 13

Family Law Act 1975 (Cth) Part VII, Division 13A, ss 4, 60B(2), 61D, 65DAC, 67Z, 70NAA, 70NAC, 70NAD and 93A

Family Law Rules 2004 (Cth) r 22.45

Banks & Banks (2015) FLC 93-637
CDJ v VAJ (1998) 197 CLR 172
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Goode and Goode (2006) FLC 93-286
Ragless v District Councilof Prospect [1922] SASR 299
Silk Bros Pty Ltd v State Electricity Commission (Vic) (1943) 67 CLR 1
Vanzin & Vanzin [2014] FamCAFC 245

APPELLANT:

Mr Harrell

RESPONDENT:

Ms Hancock-Harrell

INDEPENDENT CHILDREN’S LAWYER:

Ms Judy Stewart

FILE NUMBER:

BRC

1164

2014

APPEAL NUMBER:	NA	38	of	2015
NA	44	of	2015

DATE DELIVERED:

16 March 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Murphy & Kent JJ

HEARING DATE:

16 March 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

12 May 2015
29 May 2015

LOWER COURT MNC:

[2015] FamCA 362
[2015] FamCA 406

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Galbraith

SOLICITOR FOR THE RESPONDENT:

Slater and Gordon

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dart

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Stewart Family Law

Orders

The Application in an Appeal filed 13 January 2016 is dismissed.
The Application in an Appeal filed 25 January 2016 be allowed insofar as it seeks to adduce further evidence of the father’s psychiatrist and the records from the X Hospital and is otherwise dismissed.
The Application in an Appeal filed 4 February 2016 be allowed.
Appeal NA 38 of 2015 filed 9 June 2015 and Appeal NA 44 of 2015 filed 22 June 2015 are dismissed.
There be no order as to costs.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 38 of 2015 and NA 44 of 2015
File Number: BRC 1164 of 2014

Mr Harrell

Appellant

And

Ms Hancock-Harrell

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

MURPHY J

On 12 May 2015, Forrest J heard two separate applications by the father in respect of his child, C, born in 2011. First, were alleged contraventions which the father sought to have dealt with pursuant to Division 13A of Part VII of the Family Law Act1975 (Cth) (“the Act”). Secondly, his Honour dealt with competing applications for interim parenting orders, pending a trial.
His Honour dismissed the applications for contravention and made parenting orders which saw the child living with the mother, her having “sole parental responsibility” for him, and the father having supervised time at a contact centre, two hours each alternate weekend. The father appeals each of his Honour’s orders.
Before dealing with each of those appeals in turn, it is necessary to deal with some preliminary issues.

Preliminary Issues

Although the father appealed, in each case, within the time prescribed by the rules, he did not comply with three separate aspects of orders made by the Appeals Registrar, so as to facilitate the hearing of the appeals. Notifications from the registry as to his noncompliance ensued. The mother sought to have the father’s appeals dismissed pursuant to r 22.45 of the Family Law Rules 2004 (Cth) (“the Rules”).
However, prior to and in ample time for the appeals, the father and each of the mother and the Independent Children’s Lawyer, filed summaries of argument in respect of the substantive arguments involved in each appeal. At the hearing of the appeal, counsel for each of the mother and the Independent Children’s Lawyer conceded, fairly, that they were not prejudiced and wished the appeals to proceed. We were content to permit that to occur.
While that issue remained outstanding, the father filed four applications in an appeal, one of which was subsequently withdrawn. Of the remaining three, two sought to adduce further evidence pursuant to s 93A of the Act and the third sought to excuse the father from the need to file and serve a transcript of the proceedings below.
Counsel for the respondents were content to press their opposition to the latter application, and seek such remedies as might flow, only in the event that the father’s arguments rendered reference to it a necessity. As will become clear, it is not necessary, and an order should be made formally allowing that application by the father.
The father’s applications to adduce further evidence, and the appeals more generally should be placed into the context in which the proceedings before his Honour occurred. The background relevant to each was set out in the reasons for judgment, by his Honour, pertaining to the interim parenting applications.

What Circumstances Inform the Applications and Appeals?

The parties separated in 2013 when the child was not quite two and a half years old. After separation, the child and the mother lived with the mother’s parents, and have lived there since. Shortly after the separation, the father commenced proceedings. In the approximately two years since, litigation between the parties has occurred in the Federal Circuit Court of Australia, the Family Court, and the Queensland Magistrates Court; the latter pertaining to allegations of family violence and breaches of domestic violence orders.
When the father commenced proceedings in February 2014 in the Federal Circuit Court of Australia, he sought orders that the child live with the mother during the week and with him over the weekend. He contended that the parties should have equal shared parental responsibility. Accompanying that application was a Notice of Child Abuse filed by the father. Approximately a month later, the father filed another Notice of Child Abuse. In light of the arguments advanced, both below and before this Court, it is convenient to quote the substantive part of the notice filed on 19 March 2014:
1.[The mother] yells in [the child’s] face and hits him and grabs him by the arms and shakes him and bangs the table and stamps her feet and makes him cry.
2.[The mother] has told me on numerous occasions that she has physically disciplined [the child], including the way described above.
3.I argued with [the mother] on 18 October and 5 December 2014, during my breakdown, in the presence of [the child].
4.[The mother] has advised me that her parents shoot snakes at the suburban residential property where [the child] is living and to the best of my recollection that her mother’s favourite snake gun is an illegal weapon and not declared. She also indicated that the guns and ammunition are not always properly stored and accounted for.
5.[The mother’s] mother and father bicker and fight and [the mother’s] mother corrects and control [sic] [the mother’s] father and speaks in derogatory terms about people in front of children including [the child].
6.[The mother’s] sister argues violently with her husband in front of children and [the mother] has exposed [the child] to these people frequently.
7.[The mother] has advised me that her [aunt] and her [aunt’s] adult children have a violent and aggressive relationship that requires intermediaries at times to communicate and [the mother] has exposed [the child] to these people frequently.
8.That I was advised, by my mother,[the paternal grandmother], that when [the mother] was taking her, my father [the paternal grandfather], and [the child] to his christening in January 2012, the mother deliberately chose to drive through a red light with [the child] in the car.
On 28 March 2014, Judge Baumann made interim orders that “[the child] live with his mother and spend time with the father on specific occasions, gradually increasing to daytime contact each Sunday.” That time was to be supervised by one of a number of people named in the order. The father sought to appeal that decision out of time. This Court denied to the father the extension of time necessary for him to pursue that appeal. Subsequent to separation, the mother had sought and obtained protection orders from the Queensland Magistrates Court under that state’s family violence legislation.
In July 2014, the father was arrested and charged with breaches of that protection order. The hearing of those charges was listed for early December 2014. In the meantime, the parties appeared again in the Federal Circuit Court, on this occasion before Judge Lapthorn. Judge Lapthorn ordered that the child live with the mother and spend time with the father from 10 am Saturday until 4 pm Sunday each alternate weekend. His Honour also made a recovery order, but determined that the order lie in the registry, to be activated in the event that the father fails to return the child to the mother at the end of a period of time.
Particularly relevant to future events, his Honour also restrained each of the parties from communicating with each other, except for the purpose of making arrangements for the child and in respect of any emergency relating to the child. It is not in issue that, notwithstanding the order just referred to, the father continued to send emails and texts to the mother. In an affidavit in the proceedings below, the mother annexed a screenshot of her email inbox, which shows 44 emails having been received from the father. His Honour found that, “their contact was, at times, angry, abusive, and laden with profanities”, (Reasons [13]).
That seems, to us, an apt description. Indeed, the father effectively conceded as much before us, saying he considered that the language used in at least some of those emails was entirely inappropriate.
Some, at least, of those exchanges led to the mother making a further complaint to the police. The father was arrested. He was charged with fresh offences in respect of the offence of breaching the protection order. As he had been on the previous occasion, the father was granted bail. In early December 2014, the new charges referred to were mentioned in the Suburb I Magistrates Court. They were adjourned to February 2015. As a condition of the grant of bail to the father, his only contact with the mother by email was to be if an emergency crisis arises while the child is in his care.
While those proceedings were continuing in the State courts, in mid-December 2014 the father filed a contravention application. His Honour dismissed that application on 12 May 2015. In the meantime, in early February 2015, the father was charged with a third breach of the protection order earlier referred to by reason of having sent an abusive email to the mother during the weekend that the child was with him. The abusive email arose, as his Honour found, because “the mother had not sent parts of a toy with the child on that weekend”, (Reasons [17]).
That email constituted a breach of the father’s bail conditions.
The following day, the father applied to the same State Magistrates Court to revoke the protection order. His bail was revoked on that occasion and he was remanded in custody. He spent several weeks in prison thereafter as a consequence. When the matter returned to the Federal Circuit Court on 12 February 2015, the father was in prison. Attempts to contact him were unsuccessful. Orders were made to suspend time between the father and child “until further order” and the matter was transferred to the Family Court of Australia.
On that occasion, Judge Lapthorn also made an order restraining the father from contacting the mother’s legal representative or the Independent Children’s Lawyer (who had earlier been appointed), save for the purpose of serving court documents and the exchange of correspondence solely addressing the conduct of the litigation. Judge Lapthorn had earlier made orders facilitating a family report and/or a psychiatric report, as the Independent Children’s Lawyer might direct. At the time of making those orders, there was already before him an initial report from a family report writer, Ms G.
Upon his release from prison on 16 March 2015, the father sought an extension of time within which to appeal Judge Lapthorn’s orders. That application was refused by this Court.
On 12 May 2015, Forrest J dismissed the father’s application for contravention, giving reasons ex tempore.
His Honour thereafter proceeded to hear and determine on the same day, the father’s amended application in a case for parenting orders. It seems that responsive orders were sought orally by the mother on that occasion. The parties’ competing proposals for interim parenting orders are set out in his Honour’s reasons and will later be referred to.
It will be appreciated, from the short history just given, that by the time Forrest J had heard and determined the father’s applications for contravention and for interim parenting orders, the litigation history between these parties directly concerning, or arising from, their co-parenting of the child, included:
(a)Three orders made by the Federal Circuit Court of Australia;
(b)Three sets of charges emanating from breaches of family violence protection orders;
(c)An alleged breach of bail conditions involving the father contacting the mother contrary to an undertaking;
(d)The father’s imprisonment for a period of approximately six weeks;
(e)An application for extension of time within which to appeal initial interim orders made by the Federal Circuit Court, which such application was refused; and
(f)A further application to appeal out of time the subsequent interim orders made by the Federal Circuit Court of Australia, which such application was also refused.

The Applications In The Appeals

The father’s application in relation to the transcript has already been referred to.
The remaining two applications seek to adduce further evidence in the appeals. If only because the father represents himself, I think it important to set out at least part of the often-cited passages from the decision of the High Court in CDJ v VAJ,[1] setting out the principles applicable to the reception of further evidence by this Court. It was said there, in respect of the statutory provision relating to the receipt of further evidence in s 93A(2) of the Act, as follows:
109. One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence, where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
…
111.Still another consideration is that the discretion is given to an appellate court hearing an appeal against an order made in the exercise of original jurisdiction. No doubt it is true that, because the appeal is by way of rehearing, the Full Court’s jurisdiction is neither purely appellate nor purely original … Nevertheless, it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
[1] (1998) 197 CLR 172; Citations have been inserted in the settled reasons.
The application filed by the father, on 13 January 2016, sought the introduction of two pieces of evidence, only one of which was pursued. The father sought to rely on an affidavit of the mother filed in the proceedings below, but not apparently read in the proceedings before his Honour. As best as I could understand the father’s argument, the evidence was sought to be adduced so as to demonstrate that the mother had earlier given inconsistent statements. The role of the judge in interim proceedings in resolving disputed matters of fact will later be referred to. In any event, I am not persuaded that the matters contained in the mother’s affidavit illuminate, in any respect, any error, or asserted error said to be made by his Honour.
In that regard, particular attention might be paid to the High Court’s references to evidence being received after a trial, and, in particular, the Full Court being satisfied that the further evidence, “would have produced a different result if it had been available at the trial”.[2]
[2] CDJ v VAJ (1998) 197 CLR 172, at [111].
Similar considerations apply to the evidence that is the subject of the second of the two applications to adduce further evidence, although different considerations apply to the evidence sought to be adduced by the father as to his psychiatric health.
In the latter respect, the father sought to adduce a report of his own psychiatrist, prepared after the hearing before Forrest J, but in respect of issues emerging in the treatment of the father before that hearing. The father also sought to adduce psychiatric records from the public hospital. Each will be referred to in more detail in a moment.
I am persuaded that, in light of the self-represented father’s reliance upon arguments pertaining to his psychiatric health and what I see as his erroneous interpretations of what his Honour found in that respect, the evidence just referred to should be admitted. Those views were expressed to my colleagues on the bench, and after some short discussion, we were in agreement that that evidence ought be received and will be seen as buttressing the findings of his Honour.

The Appeal Against the Dismissal of the Contravention Application

The application for contravention, filed by the father on 7 May 2015, alleged 38 separate contraventions. They included assertions such as “[the child’s] non-biological grandfather, [name] has alleged family violence to stop my wonderful little boy [C] seeing me and exercising his right to my parenting but has not submitted the mandatory report.” Ultimately, 30 of the alleged contraventions (numbered 7-22 inclusive and 30-37 inclusive) were not proceeded with.

As proceeded with, the alleged contraventions focussed, in broad terms, on the failure of the mother to file a Notice of Child Abuse, Family Violence or Risk of Family Violence, despite allegations by the mother and members of her family that the father represents a risk to the child. Section 67Z of the Act requires the filing of such a notice. The alleged contraventions also related to a significant issue in the parenting proceedings. For example, it is contended that “[t]he respondent has knowingly kept my wonderful son [C] in an environment of illegal firearm holdings neglecting his best interest and exposing him to unacceptable risk” (Contravention 6).
Expressed broadly, the father argued before his Honour that the heading to Division 13A of Part VII of the Act, “Consequences of failure to comply with orders, and other obligations, that affect children”, permitted the father to seek by way of contravention remedies in respect of obligations and responsibilities cast upon parents of children by the legislation, notwithstanding that no specific orders in that respect had been made.
For example, the father argued before his Honour, and would seek to argue before this Court on the appeal, that what might be described as sections prescribing general duties, responsibilities and obligations, could be the subject of applications for contravention. The father cited a number of examples, but perhaps the most pertinent might be s 60B(2)(c), which provides “parents jointly share duties and responsibilities concerning the care, welfare and development of their children.” The father also instanced s 61D of the Act, which refers to the rights, duties and responsibilities of parents, comprising their parental responsibilities not being affected unless an order was made altering that position by the court.
In essence, the father contended that, while breaches of orders occur after the orders are made, prior to any orders being made (and indeed subsequent to any orders being made), the more general obligations cast upon parents by the Act persist. When one has regard to the Objects and Purposes of the Act, but more specifically Part VII in respect of children, the purposes, objects, duties and responsibilities provided for should have real meaning, and the failure to comply with them could be, and should be, the subject of an application for contravention.
More specifically, the father contends that his interpretation is lent considerable weight by the heading of the specific division of the Act relating to contraventions, to which I have earlier referred.
Section 13 of the Acts Interpretation Act1901 (Cth) provides relevantly, in subsection 2, that “any heading to a Chapter, Part, Division or Subdivision appearing before the first section of the Act” form part of the Act. In Statutory Interpretation in Australia,[3] Pearce quotes Latham CJ in the case of Silk Bros Pty Ltd v State Electricity Commission (Vic).[4] The former Chief Justice said this:
The headings in a statute or in Regulations can be taken into consideration in determining the meaning of a provision where that provision is ambiguous, and may sometimes be of service in determining the scope of a provision … “But where the enacting words are clear and unambiguous, the title, or headings, must give way, and full effect must be given to the enactment”.[5]
(The Chief Justice’s reference to an earlier case is omitted; Citations omitted).
[3] Dennis C. Pearce, Statutory Interpretation in Australia (Butterworths, 1974).
[4] (1943) 67 CLR 1.
[5] Silk Bros Pty Ltd v State Electricity Commission (Victoria) (1943) 67 CLR 1, at 16.
Pearce also quotes Murray CJ, in South Australia, in the decision of Ragless v District Council of Prospect [1922] SASR 299 at 311 to this effect:
So I think the rules [as to the use of headings] may be stated thus:- 1. If the language of the section is clear and is actually inconsistent with the headings, the headings must give way. 2. If the language of the sections is clear, but, although more general, is not inconsistent with the headings, the sections must be read subject to the headings. 3. If the language of the sections is doubtful or ambiguous, the meaning which is consistent with the headings must be adopted.
More recently than either of those decisions just referred to, the High Court of Australia in Concrete Constructions (NSW) Pty Ltd v Nelson,[6] said this in respect of the case involving s 52 of the Trade Practices Act1974 (Cth):
The general heading “Consumer Protection” at the commencement of Pt V is part of the Act (Acts Interpretation Act 1901 (Cth), s 13). It constitutes part of the context within which the substantive provisions of Pt V must be construed and should be taken into consideration in determining the meaning of those provisions in case of ambiguity. The heading does not, however, control the permissive scope of the substantive provisions of Pt V and cannot properly be used to impose an unnaturally constricted meaning upon the words of those substantive provisions … In these circumstances, it is not permissible to give to the heading of Pt V the effect of confining the general words of s 52 to cases involving the protection of consumers alone.[7]
(Citations omitted)
[6] (1990) 169 CLR 594, per Mason CJ, Deane, Dawson and Gaudron JJ.
[7] Ibid, at 601.
Section 70NAA has considerable importance to the arguments advanced by the father. That section provides, relevantly, that Division 13A of Part VII of the Act “deals with the powers that a court with jurisdiction under this Act has to make orders to enforce compliance with orders under this Act affecting children” (Emphasis added).
The italicised expression in that section is defined in s 4 of the Act as follows:
… order under this Act affecting children, in relation to a court, means:
(a)       parenting order; or
(b)       an injunction granted by the court:
(i)under section 68B; or
(ii)under section 114 in so far as the injunction is for the protection of a child; or
(c)       An undertaking given to, and accepted by, the court:
(i)that relates to, or to the making of, an order or injunction referred to in paragraph (a) or (b) or a community service order referred to in paragraph (f); or
(ii)that relates to a bond referred to in paragraph (g); or
(d) A subpoena issued under the applicable Rules of Court:
(i)that relates to, or to the making of, an order or injunction referred to in paragraph (a) or (b) or a community service order referred to in paragraph (f); or
(ii)that relates to a bond referred to in paragraph (g);
being a subpoena issued to a party to the proceedings for the order, injunction or bond, as the case may be; or
(e)a registered parenting plan within the meaning of subsection 63C(6); or
(f)a community service order made under paragraph 70NFB(2)(a); or
(g)a bond entered into:
(i)under a parenting order; or
(ii)under paragraph 70NFB(2)(b); or
(iii)for the purposes of subsection 70NFG(6);
and includes an order, injunction, plan or bond that:
(h)is an order under this Act affecting children made by another court because of paragraph (a), (b), (e), or (g); and
(i)       has been registered in the first-mentioned court.
In our view, no ambiguity attends the relevant provisions of Division 13A. In particular, reference might be made to s 70NAC, which is in these terms:
Meaning of contravened an order
A person is taken for the purposes of this division to have contravened an order under this Act, affecting children, if, and only if:
(a) Where the person is bound by the order – he or she has:
(i)intentionally failed to comply with the order; or
(ii)made no reasonable attempt to comply with the order; or
(b) otherwise – he or she has:
(i)intentionally prevented compliance with the order by a person who is bound by it; or
(ii)aided or abetted a contravention of the order by a person who is bound by it.
(Emphasis by underlining added; Italics and Bold in original)
The words “if, and only if” should be noted. They are used in connection with the defined expression “contravened an order relating to children”, to which I have already referred, that expression is the linchpin for remedies, sanctions, (and indeed excuses) provided for within Division 13A.
The father is, with respect, correct when he asserts, impliedly, that the expression “other obligations that affect children” used within the heading of Division 13A, must be given meaning. It must be given meaning because the heading is deemed to be part of the Act. However, contrary to the broader meaning contended for by the father, meaning is given to that expression by reference to the obligations that are contained within the definition of orders affecting children earlier set out. The expression is also given meaning by reference to s 70NAD of the Act, which provides as follows:
Requirements taken to be included in certain orders
For the purposes of this Division:
(a)a parenting order that deals with whom a child is to live with is taken to include a requirement that people act in accordance with section 65M in relation to the order; and
(b)a parenting order that deals with whom a child is to spend time with is taken to include a requirement that people act in accordance with section 65N in relation to the order; and
(c)a parenting order that deals with whom a child is to communicate with is taken to include a requirement that people act in accordance with section 65NA in relation to the order; and
(d)a parenting order to which section 65P applies is taken to include a requirement that people act in accordance with that section in relation to the order.
That section, cross-refers to four specific sections of the Act. Reference to each of those sections will see that they are each headed, and each refer to, “obligations” which are deemed to be part orders made relevantly under the Act.
The specific provisions of Division 13A referring to “orders”, seen in the context which I have just described, sit conformably with the heading. The heading refers to “obligation” because specific sections of the Act include obligations within the orders, whether expressed to be within them or not.
Each and all of the sections within Division 13A of Part VII of the Act are, in my view, specific and unambiguous as to their terms. The means by which obligations are contained within those sections, either themselves or by reference to the other sections to which I have referred, make plain the meaning of “other obligations” as used within the heading of Division 13A. His Honour was, in my view, correct in rejecting the father’s argument. The same argument should be rejected before this Court for the reasons just given.

The Appeal Against the Interim Parenting Orders

The applications for parenting orders before his Honour saw each of the parents contending that the child should live with them and the child’s time with the other be supervised. The Independent Children’s Lawyer supported the orders sought by the mother in that respect. It needs to be emphasised that the decision made by his Honour was a decision about the best interests of the child, pending a trial of parenting orders yet to take place. Under a repeated statement, that the trial judge “made an error of fact and judicial discretion”, 19 separate grounds of appeal are relied upon in the father’s notice of appeal.
To the extent that many, if not most, of the asserted grounds of appeal allege errors of fact, the purported ground fails to identify any factual error. The self-represented father’s written outline of argument does not elucidate any such error. The outline, in its substantive effect, is overwhelmingly a “running commentary” on his Honour’s judgment and it is difficult, if not impossible, to see how many of the assertions there made relate to any asserted grounds of appeal. In addition, that outline of argument refers to a number of additional matters that are not at all referred to in any ground in the notice of appeal.
The two primary areas of concern to the father in his challenge to his Honour’s orders involve assertions with respect to his Honour’s findings as to firearms and what has, or has not, occurred with respect to them in the mother’s household and asserted findings about the father’s mental health.
The father’s challenge and arguments suffer fundamentally, in my view, from the fact that many, if not all, of the matters said to be findings by the father, are in fact not findings made by his Honour at all. In broad terms, his Honour found that the child’s best interests were best met by the orders which his Honour made pending the trial of the action by reason of:
(a)Acceptance of the family report writer’s opinion that “it is possible the father is unable to control himself when he feels to compelled to act”, and that there was “sufficient cause to take a very cautious approach with regard to the child spending unsupervised time with the father prior to a thorough assessment of his admitted mental health issues” and “it is certainly possible that the father is unable to contain his behaviour and emotions (particularly anxiety in my assessment) to socially accepted norms at times of crisis especially. Despite his apparent intellectual capacity for insight it appears the father is at times of stress unable to act with insightful behaviour to the detriment to himself and potentially others.”
(b)Emails in evidence before his Honour from the father to the mother “completely satisfied” his Honour that that opinion should be accepted.
(c)Acceptance of the family report writer’s opinion that the father “continued to blame the mother” and other environmental triggers for his episodes of poor mental health.
(d)An acceptance of the psychiatric opinion of Dr F that the father appears to hold “fixed firm beliefs about firearms in the maternal grandparents’ home that could not be shifted despite suggestions otherwise, no matter what the mother and her family did.”
(e)An acceptance of Dr F’s opinion that the father’s beliefs were “‘pathological in nature’ with a ‘delusional-like quality’”, and that “‘these morbid beliefs have arisen in the context of his underlying Obsessive Compulsive Disorder’, being secondary thereto rather than a true psychotic process.” (Emphasis in Reasons)
Interestingly, the evidence sought to be adduced by the father, as further evidence in the appeal from his own psychiatrist and hospital records from the public Hospital, in my view entirely supports what Dr F had to say, and indeed, inferentially at least, entirely supports his Honour’s findings.
A specific document sought to be relied upon by the father in that respect is the report from the Dr M, dated 30 July 2015. Importantly, that report records that the father attended for review the day before, that is, 29 July 2015, but that the previous attendance by the father for review was “in late 2014.”
The doctor goes on to indicate that since late 2014 the father has attended his general practitioner “for regular ongoing prescriptions”. The psychiatrist confirms, as indeed the father accepts, that he has a “working diagnosis of obsessive compulsive disorder.” Importantly, as it seems to me, Dr M says:
In relation to the question of [the father’s] pursuit of the question about firearm storage on the [Hancock] property, it remains my view that the intensity of pursuit of this matter by [the father] was reflective of obsessional rumination over an unresolved question rather than indicative of a delusional process.
Here it might be observed that contrary to the assertions made by the father, Dr F does not assess him as suffering from any psychotic disorder, and in particular, does not assess him as suffering from any delusional disorder. He and Dr M are in agreement about that. Dr M goes on to say, in that report, “[t]his pattern of rumination was similar to other obsessional thought processes which he had experienced prior to receiving the OCD diagnosis.”
Again, that seems to me to be entirely in conformity with opinions expressed by Dr F in his report, which in turn, grounded findings made by his Honour.
The father also relied upon documents obtained from the public hospital. It seems clear from those documents, that the father presented to that hospital with a view to receiving psychiatric assessment and treatment, in circumstances where he told the public hospital that he could not afford his private psychiatrist. Significantly, as it seems to me, a note dated 26 April 2015 (which it might be noted is but a few weeks prior to the orders made by his Honour), under the hand of “Ms A” who is described there as a “clinician”, records the father reporting that “he has a six month history of severe psychosocial stressors including separation from the mother in December 2014 after 6.5 years”.
That six month period pertains to the period from about October 2014 to April 2015, in which the father apparently told the relevant clinician at the hospital that he had been suffering from “severe psychosocial stressors”. Again, in my view that conforms with what both Dr F and the family report writer said. Those matters were, in turn, matters upon which his Honour based at least part of the findings directly relevant to the best interests of the child.
Entirely consistent with what Dr F said in his report, and more broadly the opinion of the family report writer (who by the time his Honour heard the proceedings had also had access to Dr F’s report), his Honour said at [41] of the reasons, in quoting from Dr F:
41.…
Given the nature of the father’s ongoing symptoms, I would have concerns that it is possible that the father may well expose the child to his negative views with respect to the child although there was nothing in the documentation to suggest this, and this may be better understood within the context of a family report … It would be my view that it would be prudent for the court to be informed by the father’s treating psychiatrist (if my recommendations with respect to treatment are accepted by the father) and that the fathers [sic] behaviour as well continued assessment by his treating psychiatrist would inform the Court as to the progress of his treatment and as to whether the risk to the child would be such that more extended periods of unsupervised time with the father could be contemplated.
This Court has now had access to at least some of the information which Dr F had in mind, by reference to the documents that I have just referred to. The father misconceives the findings made by his Honour and attributes to his Honour findings about his mental health that were not made. The findings directed to the nature, extent, frequency and content of the father’s communications and behaviours were well open to his Honour in these interim proceedings, and were directly relevant to the father’s capacity to parent and the father and mother’s capacity to co-parent, and the potential impact of each on a three year old child.
The father specifically argues that the presumption of equal shared parental responsibility applied and that his Honour ignored that presumption.
In my view, the father is in error in that respect. First, on each party’s case, including the father’s, the presumption was said to be rendered inapplicable or be rebutted. Each sought an order that they have “sole parental responsibility”. Secondly, his Honour found specifically that, at [56] of the reasons:
56.In this case, on an interim basis, I am quite satisfied on the evidence that the presumption is rebutted. It would not be in the child’s best interests for these two parents, given the history of their co-parenting relationship since separation, to be expected to have to communicate, consult and reach joint decisions about the child. I am quite satisfied that the mother has the capacity to appropriately make decisions about the child by herself that are in the child’s best interests. Requiring her to consult the father on any such decisions and to negotiate a joint outcome might compromise her capacity to provide the requisite care for the child.

Although not specifically referred to in terms in that paragraph, his Honour was plainly referring to the requirements of s 65DAC of the Act. That section provides:
Effect of parenting order that provides for shared parental responsibility
(1)This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
Note:Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3)The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
It should also be noted that his Honour had earlier recorded at [39], in respect of Dr F’s report, that:
39.[Dr F] did express the opinion that for certain issues the father’s capacity to make decisions in the child’s best interests may be impaired by his morbid beliefs although not necessarily across all domains. He said that the father’s capacities would “be expected to be retained if the father was able to demonstrate significant improvement in his obsessive compulsive symptoms to a degree that it was not impairing his judgment with respect to the child”.
(Emphasis in original)
The second specific aspect of the father’s challenges to his Honour’s orders relates to the father’s ongoing concerns about firearms, which he alleges are in the mother’s household, and what he alleges are the untruthful statements by the mother and members of her family as to the number, type and safe storage of those firearms.
The first point to be made is that his Honour was entirely alive to the father’s contentions in respect of the firearms. For example, at [26] of the reasons, his Honour set out clearly and cogently the father’s case in that respect:
26.The father’s case is centrally built around the allegation that the mother and her family, with whom the child is currently living, present an unacceptable risk to the child’s safety and well-being, such that he should not continue to live with the mother. As I understood the father, who was unrepresented, he came to Court on 12 May, completely convinced that he would be totally successful in all of the contravention applications and that such success would prove that the mother was a risk to the child, in that she simply did not value and facilitate the child’s relationship with the father. Further, and, seemingly most importantly, the father maintained that the mother’s actions in respect of his allegations about the illegal possession and storage of firearms at the place where she and the child were living demonstrated her incapacity to provide a safe living environment for the child.
Equally, his Honour was alive to the mother’s assertions to the contrary. They are set out at [27] of the reasons, again with respect, cogently and succinctly:
27.On the other hand, the mother’s position which was simultaneously the position of the ICL, was that the father’s apparent obsession with the issue of the firearms in circumstances where police and child welfare departmental officers had satisfied themselves that the firearms issue was in hand and, where the mother and her family had since taken steps to cause the firearms to be removed from the premises, was a symptom of a flare-up of his obsessive compulsive mental health disorder. As such, particularly given his inability to be able to reasonably control himself as demonstrated by his communications with the mother and her legal representatives, as well as his continued obsession with the issue of firearms, they submitted that the child would be exposed to an unacceptable risk to his well-being if he spends unsupervised time with the father at the moment.
Plainly, the factual issue in respect of firearms could not be resolved at an interim hearing by his Honour. At that hearing, with all of its inherent limitations, even if the father’s case was accepted, the overwhelming issue was the father’s behaviours emanating from the concerns, as distinct from the concerns themselves.
We sought to ascertain from the father whether he understood the nature of the proceedings before his Honour. He said that he did, but I remain concerned that his submissions indicate that he was unaware of the nature of the interim proceedings. For that reason, it should be stated here that the orders made by his Honour are not parenting orders made after a trial, but interim orders made pending a trial. Relevant factual issues will be agitated, and determined if necessary, at that trial.
Interim parenting proceedings involve axiomatically the application of the provisions of the Act which mandate the means by which a child’s best interests is to be determined, but they are of necessity, truncated in nature and do not permit of the resolution of contested factual issues. Reference should be made to the decisions of this Court in Goode and Goode,[8] Banks & Banks,[9] and Vanzin & Vanzin,[10] as examples.
[8] (2006) FLC 93-286.
[9] (2015) FLC 93-637.
[10] [2015] FamCAFC 245.
It cannot be said, in my view, that his Honour did not consider and measure any risk to the child by reference to the concerns of the father, when balanced against other concerns that his Honour had about risk of harm to the child on the evidence before him. Paragraphs [45] and [46] of his Honour’s reasons exemplify precisely that:
45.Whilst the evidentiary matters the father took me to did appear, on some consideration, to suggest that there had been some inconsistent information given by the mother and her parents about the guns over a period of time, I became increasingly troubled about the father’s singular, unshifting focus on the issue, even months after the guns had been disposed of by the mother and her parents, a fact the father did not dispute or doubt. My sense of concern about this increased upon hearing that the father had never seen firearms at the mother’s parents’ home but rather had raised his allegations post-separation as a consequence of the mother having told him when they were still a happily married couple that her parents had a “snake gun” on their semi-rural property.
46.Whilst he focused on the issue of the guns, the father adduced no evidence about any ongoing treatment or renewal of treatment by a psychiatrist or a psychologist. There was also no evidence adduced by the father about any medication he was taking at the time. Of course, being unrepresented as he was, the father’s failure to adduce such important evidence is easily understood, but this absence of evidence really added to the serious concerns about the father’s current state of health the Court developed through the course of the day-long hearing of these matters on 12 May.
His Honour quotes from Dr F, at [35] of the reasons, and the quote there included, has been earlier referred to. Importantly, in light of the arguments advanced before his Honour and before us, in respect of findings allegedly made by his Honour in respect of the father’s mental health condition, his Honour quotes Dr F at [36] as follows:
36. …
My concern currently is that while his more classic obsessive compulsive symptoms may well be in significant remission, the obsessions have transferred to the Family Court process and the welfare of the child for which he is seeking reassurance from others about the safety due to his ongoing intrusive ruminations.
… the father’s seeking of reassurance has become quite extreme and to the extent that he has come to the attention of forensic mental health services …
(Emphasis added)
That quotation emphasises the points sought to be made to the father during the course of the hearing before this Court; it is the manifestation of his behaviours in and about his concerns, rather than the concerns themselves, that were the foundation of the findings made by his Honour with respect to the interrelationship of the parties as they sought to co-parent the child and what his Honour perceived, on an interim basis, to be the risk to the child.
I am unpersuaded that his Honour made any error in making the interim parenting orders which his Honour did. I can see no error in his Honour’s approach or findings. In my view, that appeal should be dismissed, as indeed should the appeal in respect of the contraventions.
I would make the following orders:
(1)That the father’s Application in an Appeal filed 13 January 2016 be dismissed;
(2)That the father’s Application in an Appeal filed 25 January 2016 seeking to adduce further evidence from his treating psychiatrist and relevant X Hospital records be allowed, but otherwise be dismissed;
(3)That the father’s Application in an Appeal filed 4 February 2016 so as to permit these appeals to proceed in the absence of a transcript be allowed;
(4)That Appeal NA 38 of 2015 be dismissed;
(5)That Appeal NA 44 of 2015 also be dismissed.

KENT J

I agree with the orders proposed by Murphy J, and I agree with the reasons expressed by his Honour for those orders.

MAYJ

I also agree with the reasons given by Murphy J, and would dismiss the appeals, and the applications, as described by the judge.
The orders therefore will be as follows:
(1)The Application in an Appeal filed 13 January 2016 is dismissed.
(2)The Application in an Appeal filed 25 January 2016 be allowed insofar as it seeks to adduce further evidence of the father’s psychiatrist and the records from X Hospital and is otherwise dismissed.
(3)The Application in an Appeal filed 4 February 2016 be allowed.
(4)Appeal NA 38 of 2015 filed 9 June 2015 and Appeal NA 44 of 2015 filed 22 June 2015 are dismissed.

Costs

MAY J

At the end of these proceedings, when orders were made dismissing two appeals and orders were also made in relation to three applications brought by Mr Harrell, we asked for submissions from counsel representing the mother and counsel representing the Independent Children’s Lawyer. Ms Galbraith who appears for the mother, asked that the father pay the costs of the mother of this appeal. In support of that application, she indicated to us that the mother was legally aided and that an assessment, in relation to the costs for the Legal Aid Office Queensland of this appeal, is in the sum of $3,549. It was asked that should an order for costs be made we make an order in that sum.
The matters to which Ms Galbraith particularly drew our attention were first, that the appeals had been wholly unsuccessful. Secondly, that the father has a history of filing applications in relation to appeals which have also been unsuccessful. Ultimately, it was conceded, that the father is a man of limited means but as Ms Galbraith urged upon us that was only one factor, which of course is entirely correct.
Ms Dart, counsel for the Independent Children’s Lawyer, also made an application for costs, explaining that, the Independent Children’s Lawyer is in receipt of Legal Aid, although not a lawyer within Legal Aid Queensland.
The grant, in that case, is approximately $4,000 including GST. Again, reference was made to father’s financial circumstances, which is particularly relevant in view of the fact this is an application for costs by an Independent Children’s Lawyer (s 117(4)(b)). When one considers the father’s financial circumstances, which are attached to his affidavit filed on 4 February 2016, it would be difficult to imagine that an order in the sum of $4,000 would not cause him real difficulty.
The father resists an order for costs, referring to his statement of financial circumstances which demonstrates that he is a man of limited income. Currently he is on a Newstart Allowance.
There is no obvious property from which an order for costs could be satisfied, other than an application on the basis of hardship, that money be released from his superannuation fund.
Although both appeals have been dismissed, and some of the applications of the father have been dismissed, the appeal in relation to the contravention orders, raised some important issues including questions of statutory interpretation. Added to that the parties’ financial circumstances, and particularly the father’s financial circumstances, in my view there should be no order as to costs.

MURPHY J

I agree that each party should bear their own costs. I have nothing to add to the reasons of the presiding judge.

KENT J

I agree there should be no order as to costs, and I also have nothing to add to the reasons delivered by the presiding judge.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Murphy & Kent JJ) delivered on 16 March 2016.

Associate:

Date: 4 April 2016