Harris & Hadfield

[2014] FamCAFC 41

FAMILY COURT OF AUSTRALIA

HARRIS & HADFIELD [2014] FamCAFC 41

FAMILY LAW – CHILDREN – APPEAL FROM DECISION OF FEDERAL MAGISTRATE – WITH WHOM A CHILD LIVES AND SPENDS TIME – Where the Federal Magistrate made orders that the appellant have virtually no contact with the children – Where the appellant was self-represented at the trial and the hearing of the appeal - Where the appellant alleged that the Federal Magistrate had failed to afford procedural fairness - Where the appellant submitted that the Federal Magistrate had failed to give appropriate weight to the evidence and improperly exercised judicial discretion – Where the Federal Magistrate gave extensive and thorough reasons – Where the appellant’s allegations of abuse and neglect in the respondent’s care were rejected by the Federal Magistrate – Where expert evidence suggested that the children were at risk in in the appellant’s care and impeded the respondent’s ability to parent – Where the Court considered the duties owed by trial judges to litigants in person to ensure procedural fairness – Where the grounds of appeal had no merit - Appeal dismissed.

FAMILY LAW – APPEAL FROM DECISION OF FEDERAL MAGISTRATE – COSTS – Where the appellant resisted a costs order if the appeal was dismissed– Where the appeal was wholly unsuccessful – Where the grounds of appeal had no merit – Where the respondent had been put to significant cost in defending the appeal – Where the respondent submits that the appellant has the financial resources to meet a costs order –Where the particular circumstances justify a costs order being made -The appellant to pay the respondent’s costs of the appeal and application in an appeal to be assessed failing agreement.

Family Law Act 1975 (Cth)
Federal Circuit Court Rules 2001
Federal Magistrates Court Rules 2001

Bookhurst & Bookhurst  [2010] FamCAFC 26
Cachia v Hanes (1994) 179 CLR 403
Gallo v Dawson (1990) 93 ALR 479
Hartmann & Gardiner [2013] FamCAFC 126
House v The King (1937) 55 CLR 499
Nabers & Nabers [2011] FamCAFC 145
Neil v Nott (1994) 121 ALR 148
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Rice v Asplund (1979) FLC 90-725

APPELLANT: Mr Harris

RESPONDENT: Ms Hadfield

INDEPENDENT CHILDREN’S LAWYER: Michael Weston

FILE NUMBER: MLC 8871 of 2008

APPEAL NUMBER: SOA 22 of 2012

DATE DELIVERED: 14 March 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Melbourne

JUDGMENT OF: May, Strickland & Murphy JJ

HEARING DATE: 18 June 2013

LOWER COURT JURISDICTION: Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE: 24 February 2012

LOWER COURT MNC: [2012] FMCAfam 2

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Appellant appeared in person

COUNSEL FOR THE RESPONDENT: Mr Arnold

SOLICITOR FOR THE RESPONDENT: Rochelle Belcher Lawyer

Orders

1. The appeal be dismissed.

2. The appellant father pay the mother’s costs of the appeal and of the application in an appeal, failing agreement, to be assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harris & Hadfield 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 MELBOURNE

Appeal Number: SOA 22 of 2012
File Number: MLC 8871 of 2008

Mr Harris

Appellant

And

Ms Hadfield

Respondent

REASONS FOR JUDGMENT

May J

1. This is an appeal from orders made on 24 February 2012 by Bender FM (as her Honour then was) relating to children’s matters. The complexity of this matter and the attention to detail is reflected in the reasons of her Honour being 673 paragraphs in length and 140 pages.

2. Mr Harris (“the father”) appeals against the orders of the Federal Magistrate by way of notice of appeal filed 23 March 2012. He seeks that the orders be discharged, and that the matter be remitted for rehearing by a judge other than Federal Magistrate Bender. Ms Hadfield (“the mother”) opposes the appeal.

3. The father, who appeared for himself at the trial complains that he was not afforded procedural fairness, and that there was a failure by the Federal Magistrate to properly consider the needs of the children.

4. We were advised that the Independent Children’s Lawyer (“the ICL”) was refused aid to appear in the appeal. Consequently, we were without the assistance of Mr Weston.

5. It is necessary to set out the orders of the Federal Magistrate fully. It will be seen that the father has virtually no contact with the children. The orders are as follows:

   (1)All previous parenting orders be discharged.

   (2)The wife have sole parental responsibility for the children [X] born 2002 and [Y] born 2004.

   (3)[X] and [Y] live with the wife.

   (4)[X] and [Y] spend no time with the husband and communication between [X] and [Y] and the husband be solely as provided for in these orders.

   (5)The husband be at liberty to send [X] and [Y] letters, cards and gifts PROVIDED THAT such items are sent by ordinary pre-paid post addressed to either of [X] and/or [Y] to their residential address.

   (6)The wife shall be at liberty to read correspondence sent by the husband to [X] and [Y] pursuant to order 5 herein and she shall be at liberty to not provide the correspondence to [X] and/or [Y] or if it is critical of her, her family or the environment in which [X] and [Y] are being brought up, or, in her absolute discretion she considers it to be otherwise inappropriate.

   (7)The husband be and is by himself restrained from:

   (a)approaching within 100 metres of the wife, [X] and [Y];

   (b)attending at or within 500 metres of [X] and [Y]’s school/s;

   (c)attending at or within 500 metres of the residence of the wife and [X] and [Y];

   (d)attending at or within 500 metres of the wife’s place of work; and

   (e)emailing or otherwise communicating with the wife save as provided for in these orders.

   (8)The wife authorise any school/s attended by [X] and [Y] to forward to the husband, at the husband’s expense, copies of all school reports, school photograph order forms and newsletters usually provided to parents.

   (9)The wife be authorised to provide a copy of this order to the Principal/s of [X] and [Y]’s school/s and to any of [X] and/or [Y]’s treating medical practitioners.

   (10)The wife advise the husband in writing by email of any serious illness or injury suffered by either of [X] and/or [Y] and authorise [X] and [Y]’s treating medical practitioners to speak directly with the husband.

   (11)The wife is authorised and permitted to apply for and receive an Australian passport for [X] and [Y] without first obtaining the written consent of the husband.

   (12)The wife be permitted to take [X] and [Y] out of the Commonwealth of Australia without first obtaining the consent of the husband.

   (13)The Independent Children’s Lawyer shall meet with [X] and [Y] to explain the orders to them within 14 days of the date of this order and the wife shall do all things necessary to make [X] and [Y] available to meet with the Independent Children’s Lawyer pursuant to this order.

Background

1. These proceedings concern the parties’ two children: X aged 11 and Y aged nine.

2. It is essential to understand how the Federal Magistrate ultimately reached the conclusion that it is not in the best interests of the children to see their father.

3. The matter first came before the Federal Magistrate on 19 February 2009, when her Honour made final parenting orders by consent. They provided for equal shared parental responsibility and for a shared time arrangement, in which the children resided with the mother for nine days before spending five days with the father (with time after school until 7:00 pm each alternative Thursday).  

4. The parties had serious difficulties with those orders. On 21 May 2009 the father filed a contravention application. On 26 May 2009 he filed an urgent ex parte application for residence of the children. The latter appears to have been precipitated by the father’s assertion, that the mother’s mother had left the youngest child, Y, in the bath unattended and that he had fallen asleep, only to be pulled out by the eldest child, X. The matter was heard by O’Sullivan FM (as his Honour was then) on 2 June 2009. Interim orders were made that neither parent leave the children unsupervised in the bathroom.

5. On 3 July 2009 the father’s contravention application was heard by the Federal Magistrate. The father made a further application for the children to reside primarily with him. The Federal Magistrate dismissed the applications, finding no substantial change in the children’s circumstances since the consent order, and that the alleged contraventions were the result of poor communication. As a consequence, the Federal Magistrate amended the orders of 19 February 2009 in an attempt to clarify the implementation of the orders.

6. The mother filed an initiating application on 11 January 2011, seeking the discharge of the previous consent orders, sole parental responsibility and an order that the children live with her, and spend time with the father on alternate weekends.  

7. The father’s response filed 11 March 2011 sought a range of orders, including that he have sole parental responsibility for the children, that they live with him and spend unspecified time with the mother. He further sought both interim and final orders, that the children “not be left in the care of individuals with known and diagnosed psychiatric disorders. Exception be [sic] granted to the mother and her immediate family with appropriate precautions”. He also requested final orders that where the children have head lice for more than one month, “the children enter the sole custody of the father for 3 continuous weeks for the purpose of correcting the situation”.

8. On 23 August 2011 the father withheld the children from their return to the mother, in contravention of the orders then in place. The father filed an application seeking the suspension of the mother’s time with the children, and that the children spend time with the mother only under supervision. The father alleged that, whilst in the mother’s care but unsupervised, X had threatened Y with a knife. The father also sought orders that the Federal Magistrate be removed from hearing the matter, and it be placed before a “more experienced” Federal Magistrate. The father later withdrew that aspect of his application.

9. In response, the mother filed an application on 24 August 2011 seeking the return of the children and the suspension of the father’s time with them. It can be seen that by this time both the father and mother had competing applications before the Court that the other party’s time with the children be suspended.

10. On 25 August 2011 the interim proceedings came before Whelan FM (as her Honour was then) who ordered that the father return the children to the mother at 5.00 pm that day and suspended the father’s time with the children until 1 September 2011. Her Honour further ordered that the children attend upon Mr P for the preparation of an updated family report. Whelan FM later ordered on 9 September 2011 that previously ordered psychiatric assessments be placed before the court and adjourned the matter until 4 October 2011 before the Federal Magistrate.

11. During an interim hearing on 4 October 2011 the father made various applications including one to have Mr P (the family report writer) and Mr Weston (the ICL) removed from their involvement in the proceedings. The father’s applications were unsuccessful.

12. On 10 October 2011 the Federal Magistrate made interim orders suspending the time the children spend with the father and restraining him from being within 500 metres of their school, the mother’s residence or place of work. These orders were made after the ICL expressed concerns that in the lead up to the final hearing the father might intensify his alleged “unrelenting questioning about their time in their mother’s home” and the suspended time would afford “six weeks respite from the pressure and conflict to which they are currently being exposed”.

13. The mother, by way of an amended initiating application filed 2 November 2011, sought, among other orders, that there be no order for the father to spend time with the children, and that any future time be conditional upon the father engaging in psychiatric treatment.

14. In essence, the orders sought by the ICL were as follows:

    …

    ·    The mother have sole parental responsibility for the children

    …

    ·    Subject to compliance by the father with attendance on Dr [K], the children spend time and communicate with the father as follows:

    (a)      on 18/12/11 from 11am to 3pm

    (b)      on 25/12/11 from 4pm to 8pm

    (c)on 1/1/12 from 11am to 3pm and each alternate Sunday thereafter.

    …

    ·    The father continue treatment with Dr [K] and for this purpose:

    (a)he shall comply with all reasonable requests as to treatment, of Dr [K]

    (b)make arrangements with Dr [K] for a comprehensive treatment plan

    (c)authorise Dr [K] to liaise with the ICL

    (d)request Dr [K] provide a report as to therapeutic progress and prognosis prior to the further hearing.

    ·    The father is restrained from:

    (a)denigrating the mother in the presence or hearing of the children or knowingly allowing any other person to do so

    (b)discussing these proceedings with the children.

    ·    The mother and the father attend upon Dr [E] or such other psychiatrist as may be nominated by the ICL, for a further psychiatric review prior to the further hearing.

15. The final hearing commenced before the Federal Magistrate on 16 November 2011 and continued until 18 November 2011 before being adjourned until 5 December 2011. The hearing was finalised on 6 December 2011; a trial of some four and a half days. The Federal Magistrate delivered reasons for judgment on 24 February 2012.

16. The reasons of the Federal Magistrate were extensive, and included a thorough discussion of the evidence before her. It is not necessary to repeat those parts which do not directly relate to the appeal, although the wide ranging grounds demand an extensive examination of the reasons.

17. The experts referred to in the reasons and orders are Dr K (a clinical and forensic psychologist the father has attended upon), Dr E (a consultant psychiatrist who provided a psychiatric assessment of the parties in the proceedings) and Mr P, a clinical psychologist (the family report writer).

Reasons for judgment of the Federal Magistrate

1. The Federal Magistrate’s summary of the parties’ background is not controversial:

   13.The wife was born in 1965 and is 46 years of age.  She is employed on a part-time basis as a [manager].  She has not

   
   

   re-partnered though she has an ongoing friendship with [Mr K].

   14.The husband was born in 1964 and is 47 years of age.  He is self employed as  [a consultant].  He has not re-partnered.

   15.The parties commenced cohabitation in 1996 and married in 1998. They separated in 2008.  They remained separated under the one roof until 2008 when, by court order, the husband vacated the former matrimonial home

The mother’s case

1. After setting out the background to the litigation to which I have referred and the history of the parties, her Honour summarised the evidence and submissions of the mother, the relevant parts of which is set out below:

   57.The wife is seeking orders that she have sole parental responsibility for [X] and [Y], that they live with her and spend no time with the husband until such time as the husband attends for psychiatric treatment and there is a determination by an independent psychiatrist that the husband’s psychological functioning is no longer disturbed and out of balance, and that his insights have evolved such that the risk to [X] and [Y] and the wife are removed.

   …

   60.It was the wife’s evidence that since the parties physically separated, she has been the subject of constant and increasingly vitriolic attacks in relation to her parenting capacity from the husband.  She reports a litany of complaints from him about the most minor of incidences and that any reasonable explanation or denial of those complaints are not accepted by the husband, who accuses her of being a negligent mother, of being manipulative, of being a compulsive liar and of placing the children at risk whilst in her care.

   61.It is the wife’s evidence that the husband has reported her to the Police, the Department of Human Services, the children’s school, the children’s kindergarten and daycare centres, to Centrelink, to the Child Support Agency and has continuously taken his concerns to friends and acquaintances.

   62.It was the wife’s evidence that she has been the recipient of continuous, abusive and demeaning emails from the husband over a period of almost two years.  The wife annexed to her affidavit sworn 22 December 2010 and filed 11 January 2011 a selection of the hundreds of emails received by her from the husband between 19 November 2009 and 29 October 2010 in relation to her alleged poor parenting and in particular to what can best be described as the husband’s obsession about [X] and [Y] having lice in their hair and his belief that the failure for this problem to be eradicated arose from the wife’s failure to properly treat this issue.

2. Her Honour then set out a selection of those emails which were annexed to an affidavit of the mother’s noting that at [63] it was “tempting to include those emails in this judgment in their entirety in order to demonstrate their frequency and vitriole [sic]”. It is not necessary to set out those emails here in their entirety other than to observe that the description of them by the Federal Magistrate was correct. This is illustrated by the following passages of one email from the father, which are taken from [63] of her Honour’s judgment:

   …

   29 August 2010

   1)Are the pickup and after school arrangements for your children appropriate when in your alleged care?  You wouldn’t be feeding your daughter with words again would you?

   2)Do you really think it is appropriate to expose your children to the people that you do? E.g to the sleepovers of someone who is schizophrenic with a violent past.  As if the outcomes of [PD] were not enough.  People who commit suicide?

   3)Re Quit Nits – seem to remember you received medical advice after noting this treatment was ineffective months ago.  Wouldn’t it be wise to listen to medical advice then follow it?  i.e. can you figure out why the kids father can get the lice out of hair and stop the kids from developing head scabs but the mother won’t (not can’t)?

   4)Haven’t you forgotten to apologise for your actions re [X]’s birthday. – I’m sorry I forgot, of course you would not know how to.  Perhaps you missed your calling, your kids welfare would have been more secure had you become a lawyer.  But even better still just stop the denigration and manipulation.

   5)Re call of 22/8 – yes fax was on that day – no you have not dialled the wrong number – just listened to your message on the phone today.

   6)What class of individual tells here (sic) daughter to get off the phone, after your daughter checks with you as to which phone to use, then has the phone intended for use engaged.  (Answer the same class of individual who abuses her own son the night before when he needs to speak to his father.)  Of course you would not try to minimize the time your children can be in contact with their father would you or be attempting to discourage ringing?  As I said before [Ms Hadfield] the clock is ticking and the bell tolling.  Time will see the chickens come home to roost.  It would seem you are oblivious to the constant requests of your son for more Dad time or your daughters comments – Any idea what you might have done in recent weeks for cause an escalation here?????  Does the night of your daughter’s birthday give you a clue?  Note others have also noted the resulting change in her behaviour over this time too.  Proud of yourself are you [Ms Hadfield]?

   7)Also forgot to mention – next year instead of preventing your daughter from going to [A]’s birthday party, perhaps it would be better if I took her, that way [X] & [A]’s contact is not disrupted as a result of your actions.

   8)Also what class of individual then does not return a call both when emailed and SMSed.  -  Answer the same sort that has blocked calls from the father to the children for 1 year +.  Grow up [Ms Hadfield].

   9)Perhaps it would be pertinent to turn up to [X]’s gym class, whilst the children are occupied, we could publicly discuss the relative quality of care – of course I can bring pictures to show the other parents too.  That way they can see the facts for themselves.  But don’t you think it would be better if you woke up to yourself and actually put some effort into treating your kids heads?  [But be in no doubt I will not hesitate to publicly shaming you if that is what it takes to get you to act appropriately.  How many copies to pictures and other material do you think I should make in preparation?]

   10)Re children’s health to communicate, please call.  Why waste breathe when you already have all the solutions required in writing [which you can read slowly & multiple times if needed until you get the message].  All that needs happen is you read and do as you have already been advised.  Besides it has been noted by many that your auditory input and verbal output is not the best.  [Even your mother has made comment of this – just in case she has forgotten it was right around the time she said ‘All I want to do is have a normal relationship with my daughter’.]  She is not the only person to have noted this of you.  By way of another example recall how for 6-12 months when your kids were young how you needed my translation of what you (sic) children were saying to you.  Combined with the fact that I confess to not suffering fools lightly and become impatient in their presence it is probably best that you just [re]read all relevant information slowly at a pact you can absorb.  That way at least the lice issue can be dealt with.  With regard to the psychological stress you have put your kids under by your actions, as per previous correspondence I shall seek the counsel of an expert and relay the message to you accordingly.  Re [Y]s mouth – yes I have been treating this too.  Are there any other kids health issues to be addressed?  When is their next trip to the dentist?

   …

   Hopefully you will realise the gravity of your actions prior to further damage being done to your kids.

   Please give consideration to the kids being in my sole custody until you can get your act together and learn how to act appropriately.

   The Bell Tolls once more.

   Signed A Decent Parent

   [Mr Harris]

   …

1. At [65 – 70] the Federal Magistrate detailed several incidents in which the father had allegedly acted aggressively towards the mother in front of the children causing distress. The judge then considered the evidence of a hearing, in the state Magistrates Court, of the mother’s Application for an Intervention Order. A transcript of that hearing was before her Honour. The Federal Magistrate excerpted the reasons of the state Magistrate, including the following finding at [77]:

   …

   I accept the version given by [Ms Hadfield] and her father,
   Mr [Hadfield], with respect to the events on two occasions involving physical aggression towards them but I note that that’s on the balance of probabilities.  What concerns me most is the lack of insight that [Mr Harris] has into his conduct.  The lack of acceptance he has of the impact his behaviour has on others, and ultimately, he may pay a very dear price with his children’s wellbeing by thinking he is acting in their interests when it is certainly not in their interests to alienate and denigrate the other people in their lives.  And, it is a particularly harmful course of conduct.

2. The Federal Magistrate noted the orders that had been made by a state Magistrate, before considering the father’s successful appeal to the County Court.

3. At [101] to [110] her Honour set out the evidence of the mother’s father, Mr Hadfield. The Federal Magistrate considered Mr Hadfield’s evidence about a violent incident involving the father:

   104.It was Mr [Hadfield]’s evidence that at approximately 7.00 pm he went to the front of the house and stood on the footpath waiting for the husband and the children to arrive.  It was his evidence that the husband pulled up in his car a couple of houses down from the wife’s home and that when the husband got out of the car he was holding his phone appearing to take photographs of the vehicles parked in the street.

   105.It was his evidence that the husband approached him in an agitated and aggressive manner, that he was verbally abusive to him, nearly poked him in the eye and then proceeded to push him in the chest so that he fell over.

   106.It was Mr [Hadfield]’s evidence that [X] pleaded with her father, saying “Dad, stop it, for once in your life, take notice of me" and that [Y] was crying.

   107.It was his evidence that he and the children then went into the house and the husband left.

4. At [109] the trial judge set out a passage of correspondence received by Mr Hadfield from the father dated 20 June 2010:

   “Further so there is not the need for repeated correspondence between ourselves I bring to your attention matters related to last Christmas.  Prior to the children being in Tasmania the kids indicated there would be an extended family gathering.  My concern here relates to those who may be present in addition to your immediate family.  Under most normal circumstances, I expect your combined judgements would not see the exposure of my children to less desirable elements of your extended family.  And again, so you do not misconstrue these words, I do give you credit under normal circumstances for having the common sense not to allow these individuals near my children.

   However, my concern remains, as it cannot be denied that from time to time there are substantial abnormal lapses in judgement, reasoning and common sense by yourselves and your daughter. 

   Accordingly, I ask that you provide an assurance that my children will never be exposed to anyone with a criminal record whilst in your care.  This definitely includes any sex offender or prostitute to which of you are related.  Again to emphasise the positive, I believe that in normal circumstances you would not allow these people near my children, not withstanding as above I seek your assurance that there shall never be contact between these people and my children.”

5. Mr Hadfield gave evidence that the “correspondence was shattering and that he had never seen anything like it in his life.  It was his evidence that it distressed both himself and his wife to the degree that they both lost sleep” (at [110]).

The father’s case

1. Her Honour carefully considered the evidence relied upon by the father, appreciating the father’s case (at [155]) that the mother neglected the children when they are in her care. These allegations were addressed under the following headings:

   a)        Lice Infestation;

   b)        Children left in the care of persons with psychiatric illness;

   c)        [X] taught to tongue kiss;

   d)The wife has had the children, and [X] in particular, taught to punch;

   e)[Y] running away and the police being called;

   f)[Y] left unsupervised in the bath;

   g)The wife denigrates the father to [X] and [Y];

   h)Dressing the children in worn out or inappropriate clothing;

   i)[Y] being hit with a video control by the wife’s friend Mr [K].

   j)Fighting between the wife and [Mr K] on holiday in Tasmania in December 2009;

   k)The wife leaves [X] and [Y] unsupervised; and

   l)The knife incident.

2. Her Honour moved through each of the issues raised by the father as to the mother’s quality of care, carefully analysing the evidence before her.

3. The father’s interaction with external agencies is of significance. The father’s dealings with the Department of Human Services were considered at [234-235] of the Federal Magistrate’s reasons:

   It was the husband’s evidence that he has made upwards of 12 complaints to the Department of Human Services in relation to his concerns about the wife’s care of [X] and [Y].

   Whilst conceding that the Department of Human Services had advised him that they had no concerns in relation to [X] and [Y]’s welfare when with the wife, it was his evidence that he strongly disagreed with the findings that the Department had made.

4. The Federal Magistrate then considered the father’s concerns about the conduct of the Victorian Police and the children’s school:

   243.The husband agreed that he had made formal complaints to the Ethical Standards section of Victoria Police in relation to the behaviours of certain Police Officers stationed at the [W] Police Station.

   244.The husband was asked to produce to the court copies of his communications with Victoria Police and the Ethical Standards Committee.  He did so.

   245.The documents produced by the husband were a series of correspondence and email exchanges between himself and the Police arising from the husband’s concerns about the manner in which complaints by the wife he had overheld [X] and [Y] were dealt with at the [W] Police Station on 19 April 2009.  The tenor of the husband’s communications, particularly in circumstances where he was unhappy with the response he was receiving from Victoria Police, can be best summarised in the following extract from an email he sent to the Acting Sergeant dealing with the complaint, with a copy to the Ethical Standards Department on 23 May 2009:

   “You have provided no response in the last 2 weeks, nor have you addressed any of the questions raised.

   I now request you escalate the matter to an accountable authority who is authorized and competent to address the questions raised below and in my original email on 19/04/2009.  I also request you identify who that person is as well as their contact details.

   Any failure of Victoria Police / Ethical Standards to fully and satisfactorily address all matters in 7 days, shall result in my escalation of the matter to the Police Ombudsman and/or the Minister for Police.  At my discretion I shall also launch civil proceedings against both Victoria Police and the unethical member concerned.  Please be advised I have already sought expert legal opinion and the potential case against both parties has been described as ‘very sound’.”

   246.It was the husband’s evidence that he had raised with [X] and [Y]’s school a number of issues in relation to the children’s care, including his ongoing concerns in relation to the wife’s failure to deal with the children’s lice infestation, his concerns in relation to [Y] being assaulted by [Mr K], his concerns in relation to the quality and standard of clothing and footwear provided to [X] and [Y] whilst in the wife’s care, including the provision of photographs of that clothing, his concerns that the school had failed to properly implement Education Department policy in relation to issuing “green notices” when any child in a classroom was found to be infected by lice and that he had provided the school with separate envelopes and instructed them on the requisite procedure to ensure that they forward to both parents, and himself in particular, duplicates of any notices and other information relating to [X] and [Y].

   247.The husband confirmed that at times he had been dissatisfied with the school’s response to these issues, and had raised those concerns directly with the school.

5. The father’s dealings with legal practitioners was summarised as follows:

   248.In the course of the history of this litigation before the court, the husband has been represented by three different firms of solicitors.

   249.It was the husband’s evidence that his first solicitor was unable to continue to act for him as it was discovered that they were in a conflicted position as that firm had previously been consulted by the wife in relation to family law matters.  The husband was very critical of that firm, and the solicitor with whom he dealt, and confirmed that he had made a formal complaint to the Legal Ombudsman in relation to the matter.

   250.The husband confirmed that he and his second solicitor were embroiled in court proceedings as his solicitor was pursuing him for unpaid costs.  It was the husband’s evidence he defended that claim successfully.

   251.The husband was represented by lawyers in relation to his Appeal before the County Court against the Intervention Orders that were made against him in the [state] Magistrates Court in March 2011.

   252.Some two to three weeks prior to this matter proceeding to final hearing, the husband retained these solicitors, together with the Counsel who appeared for him in the County Court, to represent him at the final hearing of this matter in November 2011.  24 hours before the final hearing was due to commence, the husband’s solicitors filed a Notice of Ceasing to Act and the husband represented himself at the final hearing of this matter.

   253.When asked as to why he was no longer represented, it was the husband’s evidence that:

   “I said we were going to run it one way;  he wanted to do it another.”

   254.When asked whether Counsel briefed on his behalf fell into the same category as his former solicitor, it was the husband’s evidence as follows:

   “They were both working together.  You people are outrageous.  I mean, you take the money to start with and you have been given instructions in writing as to how to go about it and don’t want to do it and then just walk away at the last minute.  It’s absolutely unacceptable.” 

   255.It was the husband’s evidence, in a very disparaging tone:

   “Yes, you’re a wonderful profession, aren’t you?  Really I am just stunned that you can stay in business the way you are.”

6. The father’s interactions with Mr P, the family report writer, were also considered by her Honour:

   256.The husband was very dissatisfied with the Reports prepared by Mr [P] in relation to this matter.  He was particularly critical of Mr [P]’s failure to have [Y] engage with him and with his initial failure to discuss with [X] the letter that she had written to [Y] shortly after the knife incident.

   257.As noted, the husband made Application to the court for an alternate psychologist and Family Report Writer to be appointed, and for Mr [P]’s Reports to be disregarded.  That Application was dismissed.

   258.Annexed to Mr [P]’s affidavit sworn 31 October 2011 and filed 4 November 2011 was a copy of an email forwarded by the husband to Mr[P]’s assistant, [Ms A], on 18 September 2011.  That email read as follows:

   Hello [Ms A],

   To ensure communication from Friday is in writing.

   Q1)     What is the process for lodging professional complaint against [Mr P]?

   Noting your answer of not knowing the process and that [Mr P] is not in the office today and that you were on your own is difficult to accept.  Particularly given you have been with [Mr P] for some time and this is not the first complaint with basis against [Mr P].  Further I believe you are aware of previous complaint against [Mr P].

   (In short [Ms A] I do reference check people and circumstances and your answer to date simply does not stack up.)

   That such a serious matter would not have been brought to [Mr P]’s attention immediately begs disbelief.  He may not be in the office, but that would not have stopped you from contacting him, the professional association or acting on my query immediately.

   Perhaps, with your background, you were attempting to use a standard technique researched and known to be effective to influence people.  That being when a question is asked, to give an answer, even though the answer does not address the issue.  Perhaps you were attempting to delay in the hope time would not result in complaint being lodged.  Please be advised, if that was your intent it would be best to seek an alternate path.

   If you genuinely do not know the process for lodging a complaint and were unable to determine it, then this is very very surprising, further it would not have taken you long to find out.

   Q2)     Does [Mr P] have legal representation and would he prefer further correspondence be directed to legal representation?

   Awaiting a response, in writing please, ASAP.

   Regards

   [Mr Harris]

   259.In response to that email, Mr [P] wrote to the husband on 19 September 2011, and that, in part, was in the following terms:

   “However, regardless of what course of action, I now ask you formally to desist from having contact with my office, and to have no further contact (sic with) my secretary, to not speak with her, or send to her any email communication.  The claims in your email of 18 September 2011 are completely misguided and the conclusions you have drawn erroneous.  I ask that if you intend to communicate with me that you do so through the Independent Children’s Lawyer.  Please do not respond directly to me with respect to this e-mail.”

   260.It was Mr [P]’s viva voce evidence that his assistant, [Ms A], had been extremely distressed by her telephone communications with the husband as he had been abusive and rude and that the emails received from him had been most distressing to her.

   261.When challenged as to the appropriateness of his interactions with Mr [P]’s assistant, [Ms A], the husband was prepared to concede he may have been somewhat out of line, but made it clear that he plays “hard ball”.  He was not at all apologetic for how he had sought to intimidate Mr [P]’s assistant.

   …

   288.Perhaps the husband’s attitude to Mr [P]’s evidence is best summed up in the following exchange between himself and Mr [P] whilst the husband was cross-examining Mr [P]:

   The husband –

   “So what I’m saying to both you, and I’ll say to [Dr E] as well, is you guys don’t get it, okay.  The behaviour that’s supposed to be me is actually her flipping it around, right.  And you guys don’t see it, and that’s what worries me, all right.  Okay.  You’ve got a circumstance where, yes, I understand what you’re saying, that the emotional impact and psychological impact the children of this circumstance is more concern than the physical evidence – you know, physical events, okay.  But I am not going to have my children come into my care for over nearly two years with lice where something is preventable.  I am not going to have my children come into my care and get told about being hit with video controls.  Not acceptable.  What is the psychological impact of that?  What is the psychological impact for that, sir?”

   289.Mr [P] then read to the husband four quotations from [X] that were contained in his Report as follows:

   “Dad makes me feel sad and when he’s like that I don’t want to talk to him and it’s a bit scary, and when he’s angry at mum he doesn’t want to talk to us much and we get frightened and stuff.

   My dad is always unhappy with my mum.  He always feels angry with her and he never wants to see her again.  I just see him as an unhappy person.

   Dad just thinks really negative about mum.  I don’t think it’s right for dad to feel so negative.  It’s just not true what he thinks. 

   My dad makes me nervous.  He makes me feel scared.  I don’t like it when he asks me questions about mum and her place.  It makes me feel unsafe.”

   290.At this point in time, the husband interjected with the following:

   “May I stop you there on that one?  There’s where you’ve got out of her what hasn’t happened, all right, because I do not ..... my daughter for questions.  I do not interrogate my children for questions – with questions.  That is where you are wrong, wrong, wrong, sir.  I have told that to the ICL many times.  I have stood up in court beside him and I’ve heard him say that it must be true because it’s in your Report.  Utter rubbish, sir.  Rubbish.  Now, how can you get that out of my children when it hasn’t happened?”

7. The trial judge also dealt with the father’s difficulties with the ICL in the following paragraphs:

   262.The husband sought to have the Independent Children’s Lawyer removed because of what he perceived to be his inaction in having not interviewed the children immediately upon his appointment and for not overtly bringing to Mr [P]’s attention the letter that [X] had written to [Y] following the knife incident.  Again, the husband’s Application in this regard was dismissed.

   263.In cross-examination, the husband confirmed that he had made a formal complaint to Victoria Legal Aid in relation to Mr Weston’s performance as the Independent Children’s Lawyer.

   264.It was put to the husband in relation to his dealings with the various Departments, the Police, the school, his lawyers and the professionals in this matter, that if they did not agree with his point of view, then his response was to accuse them of failing to properly perform their duties and to escalate a complaint process to the highest possible authority.

   265.The husband denied that this was his response but rather indicated that where he perceived that people or organisations failed to act professionally and competently, then he pursues the matter aggressively and to the fullest extent.  He was completely unapologetic about the manner in which he interacted with these agencies and these professionals.

8. There were similar difficulties between the father and Dr E:

   291.The husband was completely dismissive of Dr [E]’s Report.  He was of the view that he and Dr [E] did not hit it off from the very commencement of his interview and assessment with Dr [E].  It was his submission that Dr [E]’s Report was biased, based on erroneous information and that the conclusion that Dr [E] reached that the husband represented a risk to the children was ridiculous.

   292.It was the husband’s evidence that he considered Dr [E] to be a “knucklehead” and that if he hadn’t thought an adverse inference would have been drawn against him, he would have walked out within 10 minutes of his interview with Dr [E] starting.  It was his evidence that he shut down and that at no time did he engage with Dr [E] in a meaningful way.

9. At [274-275] of her judgment the Federal Magistrate set out a portion of the father’s cross-examination of the mother:

   274.When cross-examining the wife, some of the questions put to her by the husband were as follows:

   “I put it to you, Madam, you are a liar, nothing more and nothing less.  Absolute liar.  How do you respond?...

   I said, are you a liar?...

   I put it you’ve learnt well from your father.”

   and

   “I put it to you, you used those circumstances very conveniently, knowing the intervention order was in place and knowing you could leverage them to your benefit in this and other courts?  Yes or no?”

   275.When addressing the wife, the husband used the following terms:

   “Madam, the court might believe you, I mightn’t be able to get that as evidence but…”

   “There is a history here of lack of trust and an ability to con people.  And I’m trying to defend against that…”

   “I put it to you, you have a lengthy history of fabrication, madam, a very lengthy history.”

   “Do you agree you have got a history of exaggeration and fabrication but you are very cunning about it?”

   “I put it to you, you use your father and he is willing to comply in these set-ups?”

   “Very skilful the way you present this information, isn’t it?  It’s handy having a lawyer as a friend, isn’t it?”

   “I put it to you that you did a beautiful con job on the police at that time then.  Magnificent.  So much so that the police were on the phone abusing me, okay, telling me I'm an idiot.”

   “Good old [Ms Hadfield] has wound the police up again, false information.  I then warn the police that, if they don’t back off, I will have ethical standards on top of them.”

   “I put it to you that you’ve tried to con the police on more than one occasion and, unfortunately, you are successful at it, and that’s to the detriment of police officers and myself.”

   “I put it to you that you are fabricating, you are manufacturing, you have done this for years and you are persisting to do it for years.”

   “Oh, dear, you’ve left the children alone in the house.  Oh, dear, you need some retribution.”

The Evidence of the Experts

1. In this difficult matter Her Honour had the benefit of expert evidence from Dr K, Mr P, and Dr E. The Federal Magistrate analysed the evidence of Dr K as follows:

   297.Dr [K] is a clinical and forensic psychologist who the husband has been consulting since 14 November 2008.

   298.Dr [K] prepared a Report on behalf of the husband which was placed before the court in an affidavit sworn by Dr [K] on
   9 November 2011 and filed on 10 November 2011.  Dr [K] also gave viva voce evidence at the final hearing of this matter.

   299.In his Report, Dr [K] indicated that he had had the opportunity to peruse the Reports of Mr [P] and Dr [E].

   …

   301.Further in his Report, at paragraphs 15 and 16, Dr [K] makes the following observations:

   15.Although he has achieved well in his career, Mr [Harris] has been impatient at times.  The major personality components that are identifiable as themes relate to social anxiety and social discomfort which have been present over time and remain relevant.  This social anxiety at times affects
   Mr [Harris]’ social skills and at times he can present to the world as abrupt and possibly lacking empathy.

   16.In situations where Mr [Harris] feels out of control, he can respond with defiance.  In these situations, it is his social skills that are relevant rather than serious personality problems.  Under stress he tends not to be diplomatic and it is possible at those times he could alienate others.  Equally at those times, he may present as defensive, or under other circumstances, aggressive.  However, based on the therapeutic contact identified, it is not my professional view that Mr [Harris] has any personality or psychiatric problem and does not harbour any emotional vendetta against his partner.  Rather his behaviour tends to be driven by his anxiety, and affected by his social skills.

   302.In relation to the husband’s attitude to the wife, Dr [K] reports in paragraph 17 of his Report as follows:

   “… his behaviour in relation to his ex-partner is not driven by any desire to harm others or gain revenge but rather for him to be in a position to be able to care for and protect his children.  He fully endorses his children’s right to have a positive relationship with their mother.  It is possible that his reactivity at times may well be difficult for others to deal with in a Family Court context.  However, Mr [Harris] clearly has felt besieged both within and outside the family court processes, and this feeling may well have induced patterns of coping which may not have always been entirely helpful to others’ perception of him.”

   303.In the final two paragraphs of his Report, Dr [K] makes the following observations:

   18.Mr [Harris] has relatively sound insight into his own behaviour, and has the ability to reflect on and modify his approach, although at times it is clear that he may speak without reflecting on the possible impact of his actions and so potentially alienate others.  These issues are some of those being addressed in therapy, with positive gains to date.  I note that Mr [Harris] attending therapy over this time has been of his own volution, in recognition that he wished to function as well as possible for the benefit of this children over this stressful period.

   19.From the therapeutic contact described above, the picture of Mr [Harris] and his motivations contrasts with the descriptions of the court-appointed clinicians.  As with many anxious people, Mr [Harris] may well present to others not well known to him in a particular fashion, creating an impression that does not reflect his intentions or values.

   …

   308.When cross-examined by the wife’s Counsel, Dr [K] expanded further in relation to his opinions as to the husband’s personality and social skills.  It was his evidence as follows:

   “I think I’ve indicated that there are personality dimensions with Mr [Harris] which make him vulnerable to reacting in these kind of ways when he feels out of control, unable to act, not knowing what to do.  I’ve certainly said that I think that it’s driven in part by anxiety but there are personality dimensions including social skills elements which make it very difficult for Mr [Harris] at times to see the consequences of his behaviour at those times and the fact that these behaviours inevitably will alienate people.  I think he is aware of those in reflection and certainly we’ve discussed that, but I think at the time he finds it difficult to consider that his behaviour at those times will in fact come back to hurt him and also hurt his future situation.”

   …

   317.It was Dr [K]’s evidence that he believes the husband does have the capacity to change his behaviours.

2. The Federal Magistrate’s analysis of the evidence of Mr P is as follows:

   320.Mr [P] is a clinical psychologist.  Mr [P] prepared a Family Report dated 28 January 2009 on behalf of the parties when this matter was first before the court.  Mr [P] prepared an updated Family Report for this matter dated 26 May 2011 which is before the court pursuant to his affidavit sworn 19 June 2011 and filed 27 July 2011.  A further affidavit from [Mr P] sworn 31 October 2011 was filed by the Independent Children’s Lawyer on 4 November 2011 annexed to which was a further brief Report dates 9 September 2011, as well as copies of correspondence addressed to the husband dated 19 September 2011 and to the Independent Children’s Lawyer dated 27 September 2011.  Mr [P] also gave viva voce evidence at the final hearing of the matter.

   321.When discussing the husband in his Report of 26 May 2011, Mr [P] in paragraph 8 made the following observation:

   8.The persistent theme to emerge from my interview with Mr [Harris] was his criticism to do with the level of care and attention to the children provided by their mother.  He conveyed his concern that the children were being neglected in the extreme, physically and emotionally… He was critical of [Ms Hadfield] at generally every level of her parenting, that extended to the quality of care from people with whom she left the children, including the maternal grandparents and her partners…

   322.In paragraph 10 of his Report, Mr [P] made the following observation in relation to the husband:

   10.Most significant of all is that Mr [Harris] does not acknowledge or accept that he has had a negative emotional impact on [Ms Hadfield], or that he has caused her to loose (sic) confidence or impacted adversely on her welfare, despite the fact that the thrust of his campaign in relation to her has been to prove her negligent, unable to elevate the needs of her children ahead of her own and that she has been derelict in her care of the children…

   323.In paragraph 12 of his Report, again when considering the husband, Mr [P] stated the following:

   12.… I noted however that he showed a tendency to confabulate, that is, a tendency to take information and to create a story to fit his central beliefs, by exaggerating and embellishing.  I felt at times that Mr [Harris]’ presentation reflected a sense of grandiosity, dramatic over exaggeration and communicated a clear, persistent, unrelenting personal criticism of [Ms Hadfield], her individual functioning, her parenting and her care of the children… When I raised with him concern about the emotional fallout on the children of these proceedings, and their embroilment in this milieu of conflict, his response was that the people who lie should be held accountable.  I spoke with Mr [Harris] about the concepts of “a pyrrhic victory” insofar as this dispute, but his position was unrelentingly “she has blatantly lied and should be held accountable for the deceit and manipulation of the children.””

   324.When discussing the wife in these proceedings, in his Report of 26 May 2011, at paragraph 14, Mr [P] stated the following:

   14.[Ms Hadfield] presented as a woman genuinely tormented by Mr [Harris] and his unrelenting attack on her and her character…

   325.In paragraph 15 of his Report, Mr [P] stated:

   15.I was left in little doubt that [Ms Hadfield] felt traumatized by the treatment of her by Mr [Harris], that she experienced him as at least emotionally violent, felt in need of protection and security, but also conveyed a sense of hopelessness and despair at the likelihood of any change.  Her greatest concern is the psychological impact on the children of the constant exposure to their father’s negativity and criticism of her, his lack of understanding of the impact that this actions have upon her, let alone the children, and his extreme tendency to abdicate any responsibility for his actions in favour of a constant criticism of her.  [Ms Hadfield] referred to multiple abusive, derogatory, critical and denigrating emails with which she has been bombarded, and the obsessive and abusive correspondence that Mr [Harris] has shared with third parties, without any appreciation of the impact on her.

   326.In paragraph 17 of his Report, Mr [P] made the following comments:

   17.Of particular concern to [Ms Hadfield] is the embroilment of the children in these proceedings, and what seems to be Mr [Harris]’ conscious and deliberate embroilment of the children in his beliefs.  She described him as a person who generates enormous conflict around him, and not just with her, because his beliefs become fact and all other considerations and all other points of view become irrelevant.  She referred to the head lice issue as a perfect example of how he became so fixated in his beliefs, and so preoccupied that she was neglecting [X], that nothing she said or did was sufficient to shift his fixed immutable beliefs.  Not surprisingly, she worries about the children’s feedback, that their father questions them unrelentingly and that they feel intimidated, as this reinforces her fear that he lacks empathy and insight.

   327.When discussing [X] in his Report of 26 May 2011, Mr [P] made the following observations:

   22.[X] presented as a friendly but initially cautious girl, who was hesitant and reluctant to talk much about her family… Even though she described her parents in positive terms, she was much more circumspect about her father, telling me that she loved him but that he was very stern and that he didn’t laugh often.  From [X]’s perspective, the greatest source of her father’s consternation is her mother, and [X] was very aware that her father was critical and did not believe that her mother looked after them well, that he was very angry about her having head lice, and his belief that she was not treating the problem appropriately, even though [X] told me, “She does, dad just doesn’t believe it.  We tell him she does, we tell him all the time, that she uses the comb and everything, but he doesn’t believe us.”

   328.In paragraph 23 of his Report, Mr [P] reports as follows:

   23.Whereas [X] was more cautious in relation to her father, this wasn’t the case in relation to her mother.  She described her mother as kind and loving, generous, happy and that she looks after her very well…

   329.In Mr [P]’s Report, at paragraph 23, he indicated that [X] advised that she would like to make her father more like her mother, and when asked to explain what she meant by this, told Mr [P] the following:

   “If dad was less stern it would make a lot of difference.  Me and [Y] would be happier about mum and dad.  He makes me feel sad and when he’s like that I don’t want to talk to him and it’s a bit scary, and when he’s angry at mum he doesn’t want to talk to us much and we get frightened and stuff.”

   330.In paragraph 26 of his Report, Mr [P] describes [X] as someone feeling enormous divided loyalties and as someone who feels responsible for the happiness of her parents.

   331.Of even greater concern, Mr [P] further reports in paragraph 26 of his Report of [X] worrying about her father’s preoccupation with her mother and that her father might seek some kind of revenge against her mother if her father was to feel that her mother was not looking after she and [Y] properly.

   332.Mr [P] indicated that what was clear and obvious was that [X] does not share the same perception of her mother as that of her father and in contrast perceives her mother as warm, loving, safe and secure.

   333.Again in paragraph 26 of his Report, Mr [P] reports the following comments to him by [X] in relation to her concerns:

   “Dad just thinks really negative about mum.  I don’t think it’s right for dad to feel so negative.  It’s just not true what he thinks.”

   334.It was apparent to Mr [P] that [X] is tense and anxious about her parents and their relationship, and in particular most apprehensive about changeover when she told Mr [P] the following:

   “… my dad makes me nervous.  He makes me feel scared.  I don’t like it when he asks me questions about mum and her place.  It makes me feel unsafe.”

   335.In relation to [Y], Mr [P] noted that he was an extremely difficult boy to interview.

   336.In paragraph 27 of his Report, Mr [P] described [Y] in the following terms:

   27.… He was guarded and cautious in the extreme.  He actively resisted any question about his parents or about any difference within the family, and so tense was he that he actually conveyed a pressure of speech, that is unusual for a child of his age.  He was reluctant to participate in any activity, he was hesitant to complete drawings, he would enter into no discussion about his drawings, and his interaction conveyed a sense of extreme control.

   337.Mr [P] then further explained his observations in relation to [Y] in the following terms in paragraphs 28 and 29 of his Report of 26 May 2011:

   28.The themes to emerge from the limited information produced related to feelings of fear of loss, anxiety about his parents and their safety.  It is as though he feels consumed by his parents’ conflict and unable to defend against the unhappiness in which he is immersed and the feelings of loss attached.

   29.He impressed as a boy who was particularly emotionally shut down and cut off, and he would not discuss his parents whatsoever.  His presentation was in my experience very atypical for a child of his age.

   338.In the conclusions to his 26 May 2011 Report, Mr [P] makes the observations in paragraph 39:

   39.With the passage of time, the problems in this family have only intensified…

   339.Paragraphs 46 to 48 of his Report of 26 May 2011 summarises the conclusions reached by Mr [P]:

   46.It is of great concern that this family’s functioning has deteriorated so significantly.  The common denominator to this deterioration is the criticism and the attack by Mr [Harris] upon [Ms Hadfield], her parenting and the children’s relationship with her.  It most obviously impacts upon her, but in my clinical opinion also severely impacts adversely upon the children.  The inability of Mr [Harris] to reflect upon the fallout on the children and to not reflect upon the enormity of the consequences of a pyrrhic victory suggests that it is he who has enormous difficulty elevating the children’s needs ahead of his own.  It is my concern that he distorts the children’s experience, compromises their welfare, and does so from a misguided platform of trying to act in the best interests of the children, when the objective reality is that the attack and criticism of their mother to the extent to which he does can only have an adverse effect upon them. 

   47.My assessment of Mr [Harris]’ presentation was of a person obsessed and preoccupied by a set of beliefs that reflected grandiosity, exaggeration, confabulation, and at the very least, a profoundly over inflated investment in the criticism of [Ms Hadfield] and her parenting, when the objective reality suggests that the parent most likely to be adversely compromising the welfare of the children is Mr [Harris].

   48.Mr [Harris] has shown a propensity to be in conflict with anyone who has a view different to his own.  His perception is that none of the other persons or agencies involved with his children are capable of acting protectively, and that his concerns are ignored.  He does not reflect at all upon the possibility that his concerns are not shared, and that his view may not be correct.

   340.In paragraph 49 of his Report, Mr [P] concluded with the following observations:

   49.There however can be no denying that the children love their father and want to see him, and at least insofar as [X], one of her fears is that she will not see him.  I again reiterate the sentiment in my previous report, that is, that there is no sharing and no likelihood of sharing in this dispute.  In my view, any future Court Orders should reflect the hopelessness of this situation and the extreme likelihood that there will be no shared parental responsibility.  It may be that a decision should be made on behalf of Mr [Harris] and [Ms Hadfield] for one or the other to be responsible solely for making decisions to do with education and medical care…

   …

   349.Under the heading ‘Conclusions’, Mr [P] stated the following:

   CONCLUSIONS

   The problems in this family remain unchanged as do my concerns.  From what the children present, it is not their mother but rather their father who is a source of great anxiety and concern to them.  [X] states very clearly that his anger and his incessant questioning of her causes her considerable distress.  [Y] was very regressed and unable to separate from his mother and clearly, his understanding of the process and that somehow speaking with me would entail discussion of his family was sufficient to prevent him from being able to meet with me.  It is important to note that notwithstanding the concerns regarding [Ms Hadfield] that [Y] clung to his mother for comfort and reassurance at a time of distress and showed anything but apprehension but rather sought much active reassurance from her.

   My concerns regarding this family remain unchanged…  It still seems to me a crucial consideration that both Mr [Harris] & [Ms Hadfield] have psychiatric assessments completed.  I am concerned that notwithstanding his motivation and intent that Mr [Harris] has escalated conflict around something that could have been managed very differently without awareness or understanding of the impact that his actions had either upon the children or upon [Ms Hadfield].  This seems to me to be a pattern associated with Mr [Harris] and his behaviour, that is that he seems not to understand how his actions impact upon those around him and instead maintains a self righteous stance, justifying his behavior on the basis of perceived injustice, maltreatment, abuse and neglect that has occurred.

   My assessment and observation of the children is that they convey anything but being abused and neglected by their mother and to the contrary feel that she is great source of comfort, reassurance, that she empathizes with them, that she understands them and their needs and acts accordingly.  It seems also clear that these children love their father and want a relationship with him.  Ultimately consideration needs to be paid to what extent his behaviour to them becomes harmful and damaging regardless of his intent.

   350.In his very brief Report of 27 September 2011, Mr [P] notes that he again interviewed [X] and he observes as follows:

   “it is my overwhelming concern that she is being severely, negatively impacted by the conflict between her parents and in particular the negativity felt from her father in relation to her mother.  Her unhappiness is palpable… She is distressed…. She told me she would like them to know how sad they make her feel and that they speak with each other in an awful way.”

   351.On the second page of his brief 27 September 2011 Report, Mr [P] makes the observation that the contents of the note left by [X] for [Y] are significantly less important than the impact on the children of these proceedings.  Mr [P] set out the following very insightful observation by [X]:

   “I think dad makes too big a deal of when me and [Y] get angry with each other”.

   352.Mr [P] concludes his short further Report of 27 September 2011 with the following observations:

   “From a clinical perspective, the sense of hopelessness about the family’s situation as communicated by [X] was most concerning.  She sees little way forward.  I am deeply concerned that the core issues in this dispute are not being understood. 

   Given the problems between Mr [Harris] & [Ms Hadfield], I wonder whether continuation of the current arrangement is in fact feasible in the long term or whether this family’s situation falls within that category for whom the shared care of children is not possible because of the amount of chronic conflict between their parents.  It is difficult to foresee how Mr [Harris] & [Ms Hadfield] will share parental responsibility given the intractable nature of their problems.”

   353.It was put to Mr [P] in cross-examination that the impact upon the wife in these proceedings of the husband’s ongoing behaviour has been significant.  Mr [P] agreed with that and said:

   “I’ve said it’s profound and that she was tormented.”

   354.In commenting further on the impact of the husband and his behaviours on the wife and her parenting, it was Mr [P]’s evidence as follows:

   “If she is more emotionally resourced then her parenting of the children is going to be significantly improved.  I assume you’re also very aware of the social science literature on the impact on the primary parent, of their emotional state being so depleted.  That’s how I see her; I see her as very depleted and very battle-worn and emotionally exhausted.  And I think it’s more likely than anything that that is going to impact in a protective sense on the children.  The better she is able to parent them on a fulltime basis, the more likely they are going to do better.”

   355.Mr [P] was questioned by Counsel for the Independent Children’s Lawyer as to what, if any, insights the husband had developed in relation to the impact of his behaviours, particularly given his evidence that he will continue to video changeovers to ensure he is protected from the wife’s manipulation and his evidence that the only behaviours he needed to change to help [X] and [Y] were to simply stop sending the wife sarcastic emails.

   356.It was Mr [P]’s response in the following terms:

   “I’ve really pondered about this case, your Honour, and I wondered whether in fact the word “insight” didn’t genuinely convey my concern, and that maybe a lack of empathy might better account for how I perceive the process.  In order to have empathy you have to have insight, insight and understanding, but just because you’ve got insight doesn’t mean you’ve got empathy.  And he doesn’t seem to understand how what he does affects the people around him who are the recipients of his words, his actions, and that there is a tendency to justify his behaviour on the basis of how other people have behaved.  And if the reason for my behaviour is always because of something or someone else, then it’s not likely that I will change because the locus of control is external to me.”

   …

   367.In relation to the therapy that the husband has been having with Dr [K], it was Mr [P]’s observation as follows:

   “It may be that the treatment, to work, it needs to be more intensive and longer term.  You know, I think 13 sessions over three years is probably not at the frequency that I would imagine significant change would require.”

   …

   372.Mr [P] noted that [X] still maintains love and affection for her father, notwithstanding that his behaviours are causing her great confusion.  Most tellingly, Mr [P] gave evidence that he thinks that the husband’s behaviours are damaging to [Y].

   373.It was put to Mr [P] that if things continue as they are – ie. the current parental dynamic and the behaviours of the husband, then [X] and [Y] would be severely damaged.  Mr [P] agreed with this.  When asked to expand on what the damage would be, it was Mr [P]’s evidence as follows:

   “I think you will have tremendously anxious and confused, stressed children.  The question of how they go about dealing with this conflicted reality is a very challenging one…  That group of kids, your Honour, who I see who are caught in this situation do the worst, by far, of any group.  And during adolescence it’s really associated with tremendous acting out.  I think, you know, the social science research is really clear on this point.  These kids are at significantly higher risk of problems with anxiety and depression, alcohol and substance abuse and, not surprisingly, significantly higher risks of being unable to sustain intimate relationships in their own adult lives.  And it’s most simple;  if this is the model of how you deal with conflict and how you deal with intimate partners, then it augurs poorly.”

   374.Mr [P] was questioned as to the very real improvement in [Y]’s behaviour, as observed by his school teachers from an angry little boy who was constantly throwing tantrums, unable to focus on his work, lacking resilience and displaying quite serious oppositional behaviour to one who is happy, engaging in his work, showing more confidence, whose body language had altered and who is cracking jokes and is just a happier and more light-hearted spirit.

   375.Mr [P] was asked as the major change that predicated [Y]’s improved functioning was the suspension of his time with the husband, was that indicative that the husband had been at the root of [Y]’s behavioural difficulties?  It was Mr [P]’s evidence as follows:

   “I think there are probably two parts to that… I think it’s really common for children who are highly oppositional and defiant, controlling and aggressive, to have very high levels of underlying anxiety, and that their endeavour to control the world is manifest in this very oppositional, controlling behaviour.  And they’re trying to control their internal state by controlling the world around them.  It’s also very common for these youngsters to be unable to contain themselves, so they have these explosions.  Now, to what extent he is being affected by the enormous tensions between his parents – you, know, this deposit in him of his father’s negativity, the unrelenting conflict that he feels because of being told different things, coupled with being settled in one house with one parent who cares for him and whom he trusts, I think that’s an interesting equation.  I guess for me the big things are that in the care of his mother he is settled;  not moving actively between houses he is more settled, and that not being exposed to this constant double bind is probably a source of the alleviation of great anxiety.  He is living continuously, and both children are living continuously, with two stories that can’t integrate in a meaningful whole, so their only solution is to split the world so that they say one thing to one parent and one thing to another, or in fact just manifest this continuous state of driving anxiety, which is unfortunately very common in families where one or both parents are constantly telling the children negative things about the other.  There’s no defence against that.  The assault upon the children is overwhelming.  And if it doesn’t fit with their experience then how do they make sense of it?  What do they do?  They get tense and stressed and anxious and worried and frightened and fearful.  And I think it’s really interesting that the words and the language used by [X] talks about feeling unsafe, because the world isn’t in calm equilibrium, that Mr [Harris] interprets as [Ms Hadfield] causing.  I mean, it’s completely off skew.”

   376.It was put to Mr [P] that the husband had suggested that there would have been exactly the same level of improvement in [Y]’s behaviour if the court had ordered that [X] and [Y] live solely with him, rather than with the wife.  It was Mr [P]’s evidence that this might be true because for both the children it would have removed the intolerable conflicting realities. 

   377.However, Mr [P] made this very telling observation:

   “But I would suspect that if they were living with him they would become more alienated from their mother, is I think the likely scenario, and they would become more aggressive towards her.”

   378.Mr [P] was asked on more than one occasion by Counsel for the Independent Children’s Lawyer and the wife what his recommendations were in relation to the living arrangements for [X] and [Y], especially given his strongly held belief that the prognosis for the husband was poor and he was unlikely to develop the empathy that would enable him to change his behaviours.

   379.It is fair to say that Mr [P] struggled with this question and in formulating a definitive position as to the best way forward for [X] and [Y].

   380.However, Mr [P] was in no doubt that given the dynamics of the parties in these proceedings, this was a matter where there could not be equal shared parental responsibility.

   381.Mr [P] was also quite clear in his evidence that a continuation of the existing arrangements of 9:5 was not in the best interests of [X] and [Y], nor was any increase in the time that [X] and [Y] spend with their father.

   382.It was Mr [P]’s evidence that to continue the existing arrangements where they have so palpably not worked in the hope there would be a different outcome would be fraught with problems.

   383.It was Mr [P]’s evidence that ultimately [O] and [C] need to see both of their parents.  It was his evidence that they love their father, that they want to see him and that from his observations, the husband is very good with [X] and [Y].  He made the following observation:

   “However, at some point the balance of the advantages and disadvantages is something that has to be struggled with, and struggled with carefully.”

   384.Mr [P] suggested one possible outcome was that [X] and [Y] spend each alternate weekend with their father.  He was concerned however about the impact of such an order on the wife. Mr [P] made the observation that one of the things that he had not factored into his initial evaluation of these parties when he prepared his written Reports and the recommendations contained in them for time between [X] and [Y] and the husband was the impact on the wife of her having no respite from having to deal with the husband and what the flow-on affect of her having to do so has been on the children.  He described the wife as a woman who was tormented and overwhelmed beyond description.

   385.It was put to Mr [P] that the court needed to try and determine which was the greater risk to [X] and [Y] – ie. spending no time with the husband or continuing to spend time with the husband in circumstances where it was unlikely his behaviours and attitude towards the wife would change and she and they would continue to be exposed to those behaviours and attitude Mr [P]’s response to this was as follows:

   “It feels like neurosurgery with a chisel, your Honour, you know, trying to do something really delicate that feels just so grossly – but, yes, in some ways I think, crudely - with respect, crude as your analogy is and your suggestion is, it’s something like that.  It seems to me as though there are infinite number of better options in the middle, none of which have worked, all of which should have worked.  And I think we would be naive to think that they will work if they haven’t thus far.”

   386.When it was put to Mr [P] that the wife’s proposal is that [X] and [Y] spend no time with the husband, Mr [P] indicated that that came as no surprise to him given the level of torment in her that he had observed arising from the impact on her of the husband’s behaviours.

   387.Mr [P] was asked whether the wife’s current levels of distress and the impact that has on her parenting and the relief she would be accorded through not having to deal with the husband was sufficient unto itself to support an order that [X] and [Y] spend no time with the husband.  It was his response that whilst he would normally say no to such a proposition, in this matter it was ultimately the question that this court would have to struggle with.  He was not prepared to proffer an opinion.

   388.At the conclusion of Mr [P]’s evidence, he was again asked whether he had a view as to whether the risk of [X] and [Y] continuing to see their father was greater than the risk to them of not spending time with him: 

   “Does one risk outweigh the other?”

   389.It was Mr [P]’s response to this question as follows:

   “There of course is the short and the long term implications.  I think it’s likely that in the short term there will be some respite, just not being in the midst of it all and having a break.  Their mum having some space and not having to deal with it will I think have a very significant and substantial impact short term.  The long term implications are really difficult to answer.  I think it would be naive to believe that not seeing one of your parents for a significant amount of your life is not going to have some fallout, okay.  I know that’s a very general answer and I don’t mean to be evasive, but I don’t know if I can answer that question more specifically.”

1. The Federal Magistrate considered the evidence of Dr E, commencing at [390] of the reasons.

   390.Dr [E] is a Consultant Psychiatrist who provided a psychiatric assessment of the parties in this matter.  His assessments were contained in Reports dated 19 September 2011 which were annexed to his affidavit sworn 18 October 2011 and filed 20 October 2011.  Dr [E] gave viva voce evidence at the final hearing of this matter.

   The wife

   391.In his Report dated 17 September 2011, Dr [E] firstly chronicled the parties’ history provided to him by the wife.

   …

   394.Under the heading ‘SUMMARY’, Dr [E] stated as follows:

   SUMMARY

   “Ms [Hadfield] described some minor emotional difficulties during her childhood.  Based on her account and presentation, she is not someone who suffers from Bipolar Disorder, though I understand that Mr [Harris] has continued to perceive her as suffering from that condition based on Dr [S]’s opinion.  I note Dr [K]’s opinion in that regard.

   Ms [Hadfield’s] account as to her husband’s treatment of her was graphic and provided in what appeared to be genuine and understated manner.  On the basis of her account, she has had to withstand an onslaught of unremitting criticism from her husband.  She impressed as someone who attempted to give a good account of herself, and in my view, she provided a even-handed account of her experience at the hands of her husband.  She spoke with some empathy as to his predicament and his emotional and personality difficulties.  She continues to attend a Psychologist for intermittent support and that is appropriate.”

   395.Dr [E] was cross-examined in relation to his diagnosis that the wife suffers from Post Traumatic Stress Disorder.  It was his evidence that such a diagnosis relates to trauma that is deep and powerful.  It was his evidence that where the trauma continues to occur over a long period of time, then it has a very deep and long-lasting affect upon the recipient.

   396.Dr [E] confirmed that the trauma to which he was referring in relation to the wife was the actions and behaviours of the husband.

   397.It was Dr [E]’s evidence that the wife was one of the most traumatised people that he had seen in the context of a matrimonial dispute.  It was his evidence that he had been struck by the level of the impact on her of the husband’s actions and behaviours, and that he felt the impact was quite significant and ongoing.

   398.Dr [E] gave evidence that one of the more damaging aspects of trauma is where it gets repeated over and over again, and that it was his perception this is what occurs for the wife and from her perspective the husband’s unremitting campaign is really shaking her.

   399.It was put to Dr [E] that given his description of the husband’s behaviour as “unrelenting”, the wife would reach a point where she would lose her ability to care for [X] and [Y], and, to use laymen’s terms, she would have a nervous breakdown.  It was Dr [E]’s evidence that everyone has their breaking point and that this was a real possibility for the wife if the husband’s behaviour continued into the future.

   400.Dr [E] was questioned as to how to treat the wife’s Post Traumatic Stress Disorder.  It was Dr [E]’s evidence that, in contrast to the husband, the wife had impressed him as someone who actually had insight and that he was struck by the degree of empathy that the wife had for the husband, to his predicament and to his emotional and personality difficulties.  It was Dr [E]’s evidence that therapy would be very important to help protect the wife against what she perceives as the onslaught of the kind of experiences that she has with the husband.

   401.Dr [E] gave evidence that whilst treatment can assist people who are in a situation of chronic duress and stress, the most effective treatment or the best outcome is when the duress and stress are removed.

   402.It was Dr [E]’s evidence that if the wife’s exposure to the husband’s behaviours and abuse was significantly reduced, then her prognosis for recovery for her Post Traumatic Stress Disorder would be improved significantly.

   403.Dr [E] was asked how a continuation of the husband’s behaviour would impact on the wife’s ability to parent.  Dr [E]’s evidence was as follows:

   “I think the level of parenting is diminished when one is constantly vigilant, and attempting to deal with a perceived threat, rather than being able to relax, and with some sense of safety.  And to be able to focus on – more fully on the children and their needs, and to be able to participate emotionally more fully – that is, to actually enjoy the process.”

   The husband

   404.As with the wife, in his Report of 19 September 2011, Dr [E] set out the parties’ history as chronicled to him by the husband.

   405.In his Report under the headings ‘MENTAL STATE EXAMINATION, DIAGNOSIS and SUMMARY’, Dr [E] set out his observations and perceptions of the husband.  That component of his Report is set out below:

   Appearance – Mr [Harris] was a man of average height and medium build who was dressed in a suit and sheepskin jacket.  He wore glasses and brought with him a range of documents and his computer.  On entering the consulting room, I noted him to be busily involved with his computer.

   Affect – His affect was anxious and at times defensive.  It was difficult to establish rapport with Mr [Harris].  He was quite wary and it was difficult to not be involved in intellectual arguments, debates and point-scoring with him.  He acknowledged that he had a problem with eye contact.  He was not visibly distressed or agitated.

   Talk – Speech and thought content were entirely focussed on Ms [Hadfield’s] various negative qualities, her tendencies to be manipulative, untrustworthy, unreliable and a poor mother who was both negligent in regard to the children and was positively harmful towards them.  His account was unremitting.  His beliefs were unshakable.  His feelings were those of enmity, anger and underlying rage.  Mr [Harris] impressed as a man who was totally committed to pursuing the “interests of the children” in respect to Ms [Hadfield] to the bitter end.

   Despite the current Orders and contact arrangements, Mr [Harris] has once again instigated further proceedings in relation to a recent “knife incident”.  He is a self represented litigant and spoke of his drive and determination in order to have his various concerns about Ms [Hadfield] heard in the Courts.  He is not a person who is likely to take ‘No’ as an answer.  At interview, he impressed as anxious and threatened by the process.  His struggle with his former wife and the ongoing proceedings he has mounted, have proved stressful.  Those matters continue to occupy a large part of his emotional and psychological experience.  He is consumed by these matters.  My attempts to discuss other possibilities were singularly unsuccessful.

   Cognition – His memory and concentration were intact.

   Perception – There were no perceptual abnormalities noted.

   Insight – Insight was lacking.

   DIAGNOSIS

   Mr [Harris] would be regarded as suffering from symptoms of anxiety which rise to clinical significance.

   SUMMARY

   Mr [Harris] has required treatment with psychotropic medication after the separation on a number of occasions in respect to the outstanding issues between himself and Ms [Hadfield].  His personality is that of an insecure man with rigid temperamental characteristics who subsequent to his perceived lack of attention and love afforded him by his wife, has mounted an unremitting campaign against her.

   His description of the marriage is one in which he increasingly felt that his wife’s various interests and concerns outside of the marriage were more important than him.  Whilst acknowledging that his sense of introspection is likely to have been accompanied by a strong wish to control his wife in respect to those matters and her refusal to be controlled in that regard, this more than likely led to an ensuing power struggle which continues to this day.

   In regard to his developmental history, there are suggestions that Mr [Harris]’ upbringing may not have been as normal as he would have it.  He impressed as not wishing to reveal much of this to myself.  Overall he impressed as a man whose emotional functioning is in fact quite disturbed.  His unremitting rage fuels his determination to essentially persecute Ms [Hadfield] and those motivations are clothed in his pursuit of the children’s interests, a common claim in relation to litigants before the Court.  Mr [Harris] is not a man amenable to reason.  He lacks insight as to his deeper and truer motivations in my opinion.  He is not likely to be someone amenable to treatment.

The conclusions of the Federal Magistrate

1. The father holds a genuine belief that the children are at risk in the care of the mother (see [155] of the reasons).

2. Dealing with each of the father’s allegations in turn the Federal Magistrate dealt with the evidence of the father and mother and the relevant evidence of others in this regard. The Federal Magistrate rejected the father’s claims. These allegations included:

   ·The lice issue (at [471 – 473]);

   ·The children having contact with persons suffering a psychiatric illness (at [477]);

   ·The children being dressed in inappropriate clothing by the mother (at [482]);

   ·Y being left in the bath unsupervised (at [487]);

   ·Exposing the children to arguments between the mother and the mother’s friend, Mr K (at [491 – 492]);

   ·X being taught to tongue kiss (at [495 – 496]);

   ·A man referred to as “PD” (at [500] – [501]);

   ·Y being hit with a video control by the mother’s friend, Mr K (at [510]);

   ·The “knife incident” and the children being left unsupervised (at [519] – [522]); and

   ·The denigration of the parents to the children (at [523 – 530]).

3. The Federal Magistrate found at [531] the following:

   Accordingly, I make a finding that the allegations of the husband of ongoing neglect and/or behaviours by the wife that have placed [X] and [Y] at risk of physical harm are without foundation, and I am satisfied that [X] and [Y] are not at risk when in the wife’s care.

4. The Federal Magistrate also made findings against the father, which I set out below:

   532.I have no doubt that the husband will not accept this finding and will be firmly of the belief that I, as have the Department of Human Services, the Police, the school, Mr [P], Dr [E], the Independent Children’s Lawyer and all other independent persons with whom the wife has had dealings, have been “duped” by her, and that she has manipulated and lied to achieve the outcome that she desires.

   533.However, even if some, or all, of the incidents that the husband claims have occurred whilst [X] and [Y] were in the wife’s care had in some form taken place, they are not of such seriousness that I would make a finding that [X] and [Y] are at risk in the wife’s care.

   …

   638.I have made a finding that the wife is not neglectful or derelict in her parenting of [X] and [Y], and that the many instances of neglect and abuse alleged by the husband had not occurred or that there was a sensible explanation for the events to which the husband alleges negligence or sinister motives.

   639.It is also very apparent to this court that the husband, whilst genuinely holding the belief that [X] and [Y] are neglected by the wife and are at risk of harm in her care and that all his actions are in order to protect them, is completely incapable of accepting this court’s finding or the finding of the Department, the experts and the school to the contrary.

5. The Federal Magistrate found that the father holds the mother in “the highest possible disdain” (at [266], see also [604] and [615]).

6. When given the opportunity to comment on the reports of Mr P the father said the report writer was wrong in every important respect ([285-290]) and he was completely dismissive of Dr E’s report ([291 – 292]).

7. Dr K, the clinical and forensic psychologist who the father had been consulting since 2008 was of the view that the father suffered from anxiety and unlike Dr E was of the view that the father had the capacity to change his behaviours (at [317]). In any event, the father denied that such treatment was necessary ([576]).

8. The conclusions of Mr P have been set out at length – he was very concerned that the mother felt “tormented” ([353]) and that future time with the father would damage the children ([372 – 373]). Mr P was not optimistic about the father changing ([338, 385]).

9. Dr E, a consultant psychiatrist, diagnosed the mother as suffering from Post Traumatic Stress Disorder (at [393]), the cause of the trauma being the actions and behaviour of the father ([396]). In his opinion, the father is emotionally disturbed and not likely to be amenable to treatment ([405]). The doctor further found that the father is a risk to the children who should be protected from the father ([406]). In considering the benefits to the children of having a meaningful relationship with their father, the Federal Magistrate placed considerable emphasis on s 60CC(2)(b), that is the need to protect the children from harm ([454-457], [544], [582], and [602]).

10. The Federal Magistrate was satisfied that:

    615.I agree wholeheartedly with the descriptions of the emails sent by the husband to the wife given by both [the state Magistrate] and Mr [P].  The email communication, the manner in which the husband gave his evidence and cross-examined the wife and the expert witnesses was a form of written and verbal violence, the likes of which this court rarely sees in such an overt fashion.

    616.I am also satisfied that the children have been exposed to the husband’s violence towards the wife and that as such they too have been the victims of his family violence.

11. Under the heading “conclusions” the Federal Magistrate again accepted the expert evidence and rejected the possibility of the children spending some time with the father while he has psychiatric treatment:

    660.I am of the view that, most sadly in this matter, the risks to [X] and [Y]’s emotional well-being and the impact on the wife’s capacity to parent them arising from the abuse at the hands of the husband is such that even such limited time would enable the husband to continue his ongoing campaign of abuse against the wife.

12. Her Honour then said at [662]:

    Accordingly, in these circumstances, I have formed the view that the risk to [X] and [Y] of spending time with their father is so great that it outweighs the benefit of an ongoing meaningful relationship with their father at this time.

The application in an appeal

1. During the hearing of this appeal, the father brought an application to adjourn the hearing of the appeal. He sought this adjournment presumably to allow him to subpoena his former solicitor and counsel so that they might be cross-examined by him as to the circumstances in which they ceased to act for him. We dismissed the father’s application on the basis that there would be no utility in granting an adjournment. In particular, the motivation for the father’s solicitors ceasing to act for him is irrelevant to the appeal.

Grounds of appeal

1. The father’s notice of appeal filed 23 March 2012 contained 14 grounds of appeal. In the summary of argument filed 16 November 2012, the father abandoned grounds 9, 10, and 12 (at [4-6]). The father relied on the following grounds of appeal:

   1.   The court failed to provide the Appellant procedural fairness in that the Appellant was either refused or not provided the opportunity to obtain legal representation and be legally represented throughout the proceedings.

   2.   The court failed to adjourn the proceedings to enable the Appellant to obtain legal representation.

   3.   The court erred in allowing the Appellant’s legal practitioners to withdraw without proper notice to the Appellant late in the proceedings and not affording the Appellant an opportunity to be heard on the said Legal Practitioner’s withdrawal application.

   4.   The court erred in failing to afford the Appellant a reasonable opportunity to file and serve a trial Affidavit after his legal practitioners failed to do so.

   5.   The court erred in making findings of facts that were not open on the evidence presented.

   6.   The court failed to give proper consideration or weight to the principle in fostering the relationship between the children and the Appellant.

   7.   The court failed to properly consider or give sufficient weight to the detriment likely to be caused to the children from being excluded from spending time with the Appellant.  

   8.   The court failed to properly consider the recommendation of the Independent Children’s Lawyer and the Family Report writer as to the other avenues of resolution to the detriment of the needs of the Appellant and the children and the children’s future relationship with the Appellant.

   …

   11. The court failed to give sufficient weight to evidence before the court in support of the Appellant’s application for spending time with the children.

   …

   13. The court erred in coming to a decision that was not open to the court to make upon the evidence before the court.

   14. The court erred in the exercise of its discretion in making orders that were not in the best interests of the children.

2. Grounds 1 – 4 relate to the Federal Magistrate’s management of the proceedings after the withdrawal of the father’s solicitors. Ground 5 alleges errors in the fact finding exercise, whilst grounds 6, 7, 8 and 11 go to complaints about the weight placed on competing considerations in determining the best interests of the children. An improper exercise of judicial discretion is suggested by grounds 13 and 14.

Discussion

1. I will consider the grounds of appeal under the broad categories identified by the father in his summary of argument.

Grounds 1-4 –The Federal Magistrate allegedly failed to afford procedural fairness to the self-represented father.

1. The father’s engagement of legal representation is not entirely clear. In [1] of a summary of argument filed 31 May 2013, the mother asserts that the “Husband had at all times, save for a brief period, been unrepresented… Shortly prior to the trial the Husband instructed a solicitor but on the day prior to the trial terminated those instructions”. The father maintains that his lawyers withdrew “from the proceedings on the afternoon prior to the commencement of the trial” (father’s summary of argument at [1]).

2. In the hearing before us the father strongly submitted that he had enjoyed the benefit of legal representation, and the solicitor had drafted the affidavit material in his case. The affidavit of the father sworn 7 November 2011 refers to the affidavit having been sworn before a solicitor, Mr John Guthrie in Melbourne and settled by a barrister, Mr John Cantwell. In that affidavit the father explains that he engaged Mr Guthrie to act as his solicitor in August 2011 in relation to the County Court appeal in respect of the intervention order and had engaged him in October 2011 to act in this matter. Mr Cantwell was briefed on 19 October 2011. The hearing commenced on 16 November 2011.

3. Set out in [35] of these reasons is the Federal Magistrate’s account of the father’s history of legal representation (at [248 – 254]). At [1] of his summary of argument, the father asserted that the Federal Magistrate had “allowed or permitted the [father’s] Lawyers to withdraw from the proceedings”. The father suggested in oral submissions before us that the Federal Magistrate was in some way complicit in the solicitor’s withdrawal. Paragraph 252 of her Honour’s reasons (set out above) records that the father’s solicitors filed a Notice of Ceasing to Act. I note that this form is exclusively for proceedings in the Family Court of Australia or the Family Court of Western Australia, but that is of little consequence. The father’s real complaint appears to be that he was not afforded the seven days notice required under the Federal Circuit Court Rules 2001 (“the rules”) (then the Federal Magistrates Court Rules 2001) of his solicitor’s impending withdrawal (see p 6, ln 19 of the appeal transcript).

1. Her Honour also accepted the opinions of the single expert psychiatrist, Dr E. Relevant to the issues on this appeal, the summary in Dr E’s report included the following, quoted by her Honour at [405]:

   …Overall he impressed as a man whose emotional functioning is in fact quite disturbed.  His unremitting rage fuels his determination to essentially persecute Ms [Hadfield] and those motivations are clothed in his pursuit of the children’s interests, a common claim in relation to litigants before the Court.  Mr [Harris] is not a man amenable to reason.  He lacks insight as to his deeper and truer motivations in my opinion.  He is not likely to be someone amenable to treatment.

   (Italics in original).

2. In the subsequent paragraph of the reasons, her Honour quotes from the doctor’s second report:

   …

   6.        Mr [Harris]’ psychological functioning is disturbed.  His life is out of balance and is totally governed by the litigation process and his pursuit of Ms [Hadfield].  As a result, he is not a man who is at peace with himself and is determined that his only source of real satisfaction will be the day that he removes the children from their mother, and the forthcoming proceedings which he is mounting can be understood as only the next chapter in what has become a very sorry saga.  Given that Mr [Harris] is not able to enter into a therapeutic relationship, the prognosis in his case is poor.  In those circumstances, the most worrying feature of all of this is that the children are likely to be harmed by what essentially amounts to his vexatious pursuit of their mother, and in the process, endangering their view of her and destroying their relationship with her. 

   7.In these circumstances, it is my opinion that Mr [Harris] represents a risk to the children and it is my respectful submission that the Court may need to protect them from their father.

   …

   (Italics in original).

3. That her Honour wrestled appropriately with this dilemma is entirely clear from the reasons and is exemplified by her Honour’s ultimate conclusions emanating from the finding that “[b]oth the husband and the wife in this matter are loving, devoted parents” (at [599]) and separate findings to similar effect about the father (at [663]-[666]). However, her Honour went on to make a number of findings, entirely open on the evidence before her, which found the ultimate orders severely restrictive of the father’s time and communication with his children.  For example:

   600.The husband genuinely believes that his actions and behaviours result from his conviction that as a parent he must protect his children from what he perceives to be their negligent care when with the wife.

   601.The husband makes no apology about the manner in which he pursues those he believes have failed to properly respond to his concerns about the risks to his children and it was quite clear that he will continue to pursue all avenues to ensure anything he perceives as putting his children’s safety and well-being at risk is properly addressed.

   602. That in so doing the husband is causing [X] and [Y] enormous distress and harm completely escapes him.

   603. That in so aggressively and bullishly pursuing his cause, he ostracises the very people that he is seeking assist him also seems to escape him.

   604.That his behaviour towards the wife in his unrelenting abuse, denigration and disdain of her has caused her severe mental distress, which in turn has impacted on her capacity to properly be available to [X] and [Y] also completely escapes him.

   605. As Mr [P] so succinctly puts it, the husband “just doesn’t get it”.

4. The seriousness of the father’s conduct and the impact of it upon the children was underscored by her Honour:

   615.I agree wholeheartedly with the descriptions of the emails sent by the husband to the wife given by both [the state Magistrate] and Mr [P].  The email communication, the manner in which the husband gave his evidence and cross-examined the wife and the expert witnesses was a form of written and verbal violence, the likes of which this court rarely sees in such an overt fashion.

   616. I am also satisfied that the children have been exposed to the husband’s violence towards the wife and that as such they too have been the victims of his family violence.

5. Ultimately, her Honour concluded:

   660.I am of the view that, most sadly in this matter, the risks to [X] and [Y]’s emotional well-being and the impact on the wife’s capacity to parent them arising from the abuse at the hands of the husband is such that even such limited time [as four hours per fortnight] would enable the husband to continue his ongoing campaign of abuse against the wife.

   661.This is perhaps best borne out by his evidence that under the previous regime of time when [X] and [Y] were with him for four hours from 3.30 pm to 7.30 pm each alternate Thursday, he would more often than not upon their arrival inspect them for lice and throw them into the bath in the event he was concerned that any such lice were in existence.

   662.Accordingly, in these circumstances, I have formed the view that the risk to [X] and [Y] of spending time with their father is so great that it outweighs the benefit of an ongoing meaningful relationship with their father at this time.

Grounds of appeal  

1. Particularly in light of the father’s self-representation before us, it is important to set out the grounds of appeal, noting that grounds 9, 10 and 12 were abandoned:

   1.The court failed to provide the Appellant procedural fairness in that the Appellant was either refused or not provided the opportunity to obtain legal representation and be legally represented throughout the proceedings.

   2.The court failed to adjourn the proceedings to enable the Appellant to obtain legal representation.

   3.The court erred in allowing the Appellant’s legal practitioners to withdraw without proper notice to the Appellant late in the proceedings and not affording the Appellant an opportunity to be heard on the said Legal Practitioner’s withdrawal application.

   4.The court erred in failing to afford the Appellant a reasonable opportunity to file and serve a trial Affidavit after his legal practitioners failed to do so.

   5.The court erred in making findings of facts that were not open on the evidence presented.

   6.The court failed to give proper consideration or weight to the principle in fostering the relationship between the children and the Appellant.

   7.The court failed to properly consider or give sufficient weight to the detriment likely to be caused to the children from being excluded from spending time with the Appellant. 

   8.The court failed to properly consider the recommendation of the Independent Children’s Lawyer and the Family Report writer as to other avenues of resolution to the detriment of the needs of the Appellant and the children and the children’s future relationship with the Appellant.

   …

   11.The court failed to give sufficient weight to evidence before the court in support of the Appellant’s application for spending time with the children.

   …

   13.The court erred in coming to a decision that was not open to the court to make upon the evidence before the court.

   14.The court erred in the exercise of its discretion in making orders that were not in the best interests of the children.

Procedural fairness – Grounds 1 – 4

Context for the Assertions as to Lack of Procedural Fairness

1. As can be seen, grounds 1 to 4 all assert procedural unfairness emanating from the withdrawal of the father’s legal practitioners and the husband’s consequent self-representation at trial.

2. The complaints in respect of procedural fairness need to be seen against not only the guidelines in Re F: Litigants in Person Guidelines (2001) FLC 93-072 (which the father refers to in his written outline of argument), but also against the mandatory provisions of Division 12A of the Family Law Act 1975 (Cth) (“the Act”), and ss 69ZN and 69ZQ in particular. Those sections were enacted after Re F: Litigants in Person Guidelines. The record reveals plainly that her Honour was aware of the obligations cast by those sections.  Each can be seen to have direct relevance to the father’s complaints. 

3. Given the specific complaint in ground 1 that the father was not accorded the opportunity to obtain legal representation or be represented “throughout the proceedings”, it is important to record that the following findings by her Honour are not the subject of challenge on this appeal:

   251.The husband was represented by lawyers in relation to his [a]ppeal before the County Court against the Intervention Orders that were made against him in the [state] Magistrates Court in March 2011.

   252.Some two to three weeks prior to this matter proceeding to final hearing, the husband retained these solicitors, together with the Counsel who appeared for him in the County Court, to represent him at the final hearing of this matter in November 2011.  24 hours before the final hearing was due to commence, the husband’s solicitors filed a Notice of Ceasing to Act and the husband represented himself at the final hearing of this matter.

   253.When asked as to why he was no longer represented, it was the husband’s evidence that:

   “I said we were going to run it one way;  he wanted to do it another.”

   254. When asked whether Counsel briefed on his behalf fell into the same category as his former solicitor, it was the husband’s evidence as follows:

   “They were both working together.  You people are outrageous.  I mean, you take the money to start with and you have been given instructions in writing as to how to go about it and don’t want to do it and then just walk away at the last minute.  It’s absolutely unacceptable.”

4. In his response to the mother’s initiating application filed 11 March 2011, the father wrote under paragraph 2 of the final orders sought that “…it has been the overwhelming experience of the father that lawyers act in self serving [sic] manner and further complicate matters rather than represent the interest of their clients and solve matters.” The husband did not seek an adjournment to seek legal advice.  All indications given by the father to the court as revealed by the record suggest that he was disdainful of his lawyers, lawyers in general and that he considered he could do as good or a better job of presenting his case to the court than could lawyers.

5. Furthermore, as her Honour recorded (at [248]-[250]), the father had been represented by three different firms of solicitors in the course of the litigation; had complained to the Legal Ombudsman about the first firm; was involved in litigation with the second firm; and, the third firm had filed a Notice of Ceasing to Act before the trial.

6. Her Honour’s reasons reveal that the father relied upon (and her Honour read and carefully considered) five affidavits from himself, including an affidavit prepared by legal practitioners filed eight days prior to the commencement of the trial, and eight affidavits from witnesses in his case (including an expert witness) (at [148]-[149]).  In addition, as her Honour observed, the father “gave lengthy viva voce evidence” (at [148]). 

7. Finally, relevant to all four of these grounds, I consider that the record and her Honour’s comprehensive reasons reflect her Honour paying particular attention to the needs of the self-represented father and to any disadvantage which he might suffer arising inherently from his self-representation.

Grounds 1 and 4

1. The matters just outlined are, of themselves, sufficient to dispose of grounds 1 and 4.

2. Nothing to which we were taken, nor any argument advanced by the appellant father, persuades me of any procedural unfairness resulting from his failure to be legally represented as contended in those grounds. 

Grounds 2 and 3

1. Although not entirely easy to understand, the father’s written outline and his oral submissions before this Court suggest, it seems, that the Federal Magistrate somehow influenced or played a part in the withdrawal of his solicitors. The husband’s comments quoted by her Honour and by me above can put paid to any such suggestion. However, stripped of its hyperbole, the true challenge appears to be, or to be based on, the assertion that the husband was not afforded seven days’ notice of his solicitor’s impending withdrawal as is required under r 9.03(2) of what was then known as the Federal Magistrates Court Rules 2001 (Cth) and/or that he was not given an opportunity to be heard in respect of that occurrence (see, transcript of appeal hearing, 18 June 2013, p 6, line 19).

2. Matters that may be relevant to the relationship between the father and his solicitor were not matters of concern to her Honour and cannot be the basis for any appeal save as they can be said to have given rise to any injustice to the father in relation to the proceedings.  In essence, the husband’s complaint is that the withdrawal of his lawyers disadvantaged him and ought to have resulted in an adjournment. 

3. Any such arguments raised by the husband in that respect are answered by the history of his legal representation; the attitude he himself manifested in respect of his then lawyers and legal representation more generally; and, the highly significant fact that – perhaps as a result of that manifest attitude – he did not at any time seek an adjournment either as a result of the withdrawal of his solicitors or at any other time during the course of the trial.  The record reveals the husband as a highly intelligent and articulate lay litigant and his appearance before this Court confirmed this.

4. Further, and crucially important, leaving aside the provisions of the Act and the Family Law Rules 2004 (Cth) (“the Rules”) that highlight the importance of the expedition of cases (see, for example, ss 69ZN(4), s 69ZQ s 97(3) of the Act and the provisions of Division 12A more broadly and rr 1.04, 1.06(c), 1.07(a) of the Rules), there was a compelling need consistent with the best interests of the children to bring proceedings and conflict between these parents to an end. The evidence of the single expert psychologist highlights poignantly the distress and harm that continuing conflict between the parents was causing these children.

5. No error is established in respect of grounds 2 and 3.

Failure to permit cross-examination

1. Although not the subject of any specific ground of appeal, the father’s written outline of argument asserts a lack of procedural fairness by reason of the Federal Magistrate preventing him from properly cross-examining the mother.  In support of that assertion the husband, during his oral argument before this Court, directed us to the transcript of proceedings before her Honour on 16 November 2011 at page 18, line 10 and following as an example.

2. The record reveals that the father commenced his cross-examination of the mother at 10:35am on the first day of trial and concluded at 3:38pm that day.  The cross-examination occupies 74 pages of transcript.  A reading of that cross-examination renders her Honour’s findings both as to the cross-examination and the father’s attitude to the mother as entirely accurate:

   266.The overwhelming tenor of the husband’s evidence, both in his affidavits and in the manner in which he conducted this matter on his own behalf in the final hearing, was such that the only conclusion the court could reach was that he holds the wife in the highest possible disdain.  He is unrelenting in his criticism of her and cannot refrain from expressing his dislike and his disgust to her and to others including the Department of Human Services, [X] and [Y]’s school, to the professionals who were engaged to assist the court in this matter, to the court itself, to friends and acquaintances of his and of the wife, and, I am of the view, to [X] and [Y] themselves.

   267.The husband’s cross-examination of the wife was frequently hostile, badgering, bullying, insulting and at times just plain rude.

3. A reading of the transcript of the father’s cross-examination of the mother also reveals clearly that such interruptions to, or restrictions of, the husband’s cross-examination were entirely consistent with the proper control of a cross-examiner by the court and entirely consistent with the principles and duties specified in, respectively, s 69ZN and s 69ZQ of the Act.

Errors of Fact – Ground 5

1. Ground 5 asserts errors in “findings of fact”.  The father’s written outline of argument identifies two asserted errors: a reference to an affidavit by the wife’s mother at [186] and [187] of the reasons; and, a reference to what is said by her Honour at [653] of the reasons emanating from evidence by Mr P.

2. At [186] and [187], her Honour found:

   186.As noted previously in this judgment, it was the husband’s evidence that [X] advised him that [Y] had been left in the bath by her maternal grandmother, that he had fallen asleep and that she had been required to lift him out of the bath.

   187.The maternal grandmother filed an affidavit in which she adamantly denied that this had occurred, and deposed that both [X] and [Y] had been suitably supervised when bathing.

3. The husband asserts that the affidavit of the wife’s mother does not depose to those matters.  He is correct.  An earlier affidavit by that witness filed in respect of contravention proceedings some two years earlier had deposed to those matters, but that was not in evidence before her Honour.

4. That finding, however, has a context.  In particular, her Honour found (at [486]) that, as the relevant child was four years old at the time, he was “…old enough not to require constant supervision while he was having a bath, though from time to time he would have no doubt been checked on.” That finding is not the subject of any challenge on this appeal. 

5. Further, as will be apparent from what has already been said, the assertion as to lack of supervision is but one of a plethora of allegations made in respect of the mother’s care of the children.  No findings made in respect of those matters are the subject of challenge on this appeal.  Each was dealt with comprehensively by her Honour.

6. Nothing to which this Court was taken points to the materiality of the factual error nor can I see for myself how it could be said, in the context of a 673-paragraph judgment, that the error is productive of any miscarriage of her Honour’s discretion or productive of injustice to the father.

7. As to the second component of ground 5, her Honour found at [653] of the reasons:

   Whilst Mr [P] was not quite prepared to voice a recommendation that there be an order made that [X] and [Y] spend no time with the husband, it was my clear impression of his evidence that such an order was well and truly within an appropriate exercise of this courts’ [sic] discretion when considering [X] and [Y]’s best interests.

8. The father contends in his written outline of argument that her Honour erred factually as:

   …there was no basis for her Honour to form such an impression let alone a clear impression of what Mr [P]’s evidence was or what he was prepared to voice or not voice.  Her Honour ought not to have made nor was she entitled to make such an assumption.

9. The following exchange between Mr P and the mother’s counsel is instructive:

   [Mother’s counsel]: And that’s why I say, if the prognosis is so poor, wouldn’t it be best to have no contact [between the children and their father] and wait for the change, wait for the therapy [undertaken by the father] to have effect?

   Mr [P]: For how long?

   [Mother’s counsel]: For however long it takes?

   Mr [P]:I don’t know if that is the best option or not.  It’s obviously an option.

   (Transcript of proceedings, 5 December 2011, p 342, lines 34-37. Emphasis added).

10. No factual error is apparent.  To the extent that error is alleged, it is asserted that a finding was made without it having an evidentiary foundation or that her Honour took account of irrelevant considerations. An examination of Mr P’s written and oral evidence, the evidence as a whole, and her Honour’s reasons reveal plainly that her Honour’s conclusion was entirely open to her and it is not established that in reaching that conclusion, her Honour took account of any consideration that was irrelevant. 

1. There is, then, no merit in ground 5.

Error in Attribution of Weight – Grounds 6, 7, 8 and 11

1. The complaints in grounds 6-8 as to the attribution of weight to, respectively, “fostering the relationship between the children” and their father and to the “detriment likely to be caused to the children from being excluded from spending time with the applicant” face, of course, the difficulties confronted by an appellant which are inherent in challenges to weight.  Those difficulties are well traversed in the authorities and need not be repeated here.

2. The challenge here can be seen to be met by what has already been canvassed in these reasons.   There can be no doubt that her Honour agonised over what excluding the father from the children’s lives in the manner contemplated by the mother’s proposed orders would mean for the children, and carefully weighed what her Honour considered to be detriments to the children caused by those orders against what her Honour considered to be benefits to the children of those orders.  Her Honour’s ultimate conclusions make explicit that appropriate balancing exercise (see, for example, at [662]).

3. In particular, as outlined above, the Federal Magistrate was explicit in specifying the father’s qualities as a parent and what he had to offer the children.  Equally, her Honour was explicit in specifying the harm she considered the father’s behaviours were causing the children and that those behaviours were unlikely to change.  Each of those conclusions was soundly based in evidence before her Honour, in particular the expert evidence, and the father demonstrates no error before this Court in respect of them.

4. No arguments advanced by the father suggest that ground 11 is anything other than a restatement of the challenge founding grounds 6 and 7.

5. During oral submissions before this Court regarding ground 8, reference was made to the minute of order put forward by the Independent Children’s Lawyer at the conclusion of the trial.  That minute provided for the making of interim orders with significantly more limited time than the father had erstwhile had with the child, but which provided for some time between the father and the children, subject to the father continuing treatment with Dr K.

6. As I understand the father’s argument, it is that the orders proposed by the Independent Children’s Lawyer reflected at least some acknowledgement of the matters referred to in grounds 6 and 7 (transcript of appeal hearing, 18 June 2013, p 32, lines 4-6 and p 33, lines 6-9). More specifically, the final orders ultimately made were not as proposed by the Independent Children’s Lawyer and, thus, were made without having sufficient or any regard to the considerations referred to in those grounds. Ground 8, then, is another challenge to weight based on an asserted failure to have any or any sufficient regard to the matters referred to in grounds 6 and 7. 

7. It is, however, misleading to focus attention upon the orders proposed by the Independent Children’s Lawyer alone.  The orders were contended for, but in the context of significant misgivings apparent from the submissions on behalf of the Independent Children’s Lawyer (transcript of proceedings, 6 December 2011, pp 437-444).  In particular, the minute of order was proposed in the context of counsel submitting:

   Accordingly, our submission is that time must either cease at some point – whether that’s today or at another juncture – time between the father and the children must cease unless he is able to demonstrate that capacity to stop the damaging behaviour.  Even if he doesn’t gain insight – and your Honour is well aware of the prognosis of both experts in this case that that is poor – even if he doesn’t gain insight what Dr [E] said was that perhaps these proceedings and the loss that he has suffered and could continue to suffer might be the lesson that he needs.  But the father’s time, in our submission, must either cease or be seriously curtailed.

   (Transcript of proceedings, 6 December 2011, p 437, lines 36-43).

   And, at the submission’s conclusion:

   …what the independent children’s lawyer says to the father is that now is the time he has to recognise that if changes do not occur and improvements for these children whilst seeing him don’t occur then he risks the very real risk that there may be no time between him and his children…

   (Transcript of proceedings, 6 December 2011, p 443, line 44-p 444, line 2).

8. Further, her Honour also found, at [576] that:

   The husband, in his closing submissions, having had the benefit of hearing the Independent Children’s Lawyer’s proposal, was adamant that he did not accept that he needed to engage in an intensive or structured therapeutic relationship with Dr [K] or any other psychologist.  He made it clear to the court that he would not engage in such an intervention.

9. During the hearing of the appeal, the father was asked to indicate the error in that finding. He could not. During his submissions at the trial, the father stated:

   So in terms of am I seeking counselling, yes, I am seeking counselling with [Dr K].  Okay.  Where I think we will have difficulty with that is if we are to establish a treatment plan, and that treatment plan says you must be this, therefore, we’ve got to solve that problem for you, if I’m sitting there saying, “Well, no, I don’t accept the evidence on which that’s based” then we’re going to have a big problem with that, right, because I see a totally separate view, perhaps I haven’t been able to communicate all the facts that I’ve seen, perhaps I haven’t put evidence before the court which should have been before the court, yes, both of those are true, okay.

   (Transcript of proceedings, 6 December 2011, p 447, lines 15-22. Emphasis added).

10. There was, then, no error in her Honour’s finding at [576]. That finding, together with the fact that, as referred to earlier in these reasons, her Honour carefully considered and weighed the competing considerations relevant to the best interests of the children, including the matters referred to in grounds 6 and 7, satisfy me that no error is demonstrated in respect of grounds 6-8 and 11.

Error in the Exercise of Discretion – Grounds 13 and 14

1. These grounds – expressed as they are in general terms and without particularity – might be seen to be a means of summarising the specific challenges mounted by the earlier grounds. Indeed, the written outline of argument by the father at [7(a)] and [7(b)] might be seen as confirming that.   Further, and in any event, no asserted error save, perhaps, those contended in earlier grounds as to weight, is evident from the father’s written argument  which contends in respect of these grounds (at [7(a]):

   No reasonably minded judicial officer would have made the Orders that the children spend no time with the [father] particularly in light of the fact that both children had indicated and stated to both to the Family Consultant Mr [P] and also to the Independent Children’s Lawyer in private consultation that they loved their Father and wished to spend time with him.

2. It should also be observed that it was not in issue that the children loved their father and wished to spend time with him; indeed her Honour made specific findings to each such effect: “[t]here is no doubt that [X] and [Y] love their father and, in the ideal world, want to spend considerable and substantial time with him” (at [649]).

3. Other parts of the written outline contend for matters that might be seen as an additional challenge based on a lack of procedural fairness.  For example, at [7(d)] of the outline, the father contends that her Honour “ought to have afforded the [father] the opportunity of clarification of his submissions” and of “such a program being undertaken by him” in respect of the treatment plan contained within the Independent Children’s Lawyer’s minute of order.  In the absence of that, it is contended (at [7(c)]) that “it was not open” to her Honour “and the Independent Children’s Lawyer” to conclude that the father was not prepared to accept that recommendation for treatment.

4. I have previously addressed her Honour’s finding (at [576]) that the father was “adamant that he did not accept that he needed to engage in an intensive or structured therapeutic relationship with Dr [K] or any other psychologist.”  I have observed that this finding is entirely consistent with the submissions made by the father at the conclusion of the trial.

5. In any event, the premise for the submissions in [7(c)] and [7(d)] of the father’s outline is incorrect; her Honour found that the risk to the children of time with the father was such as to warrant the orders whether he undertook the programme or not.  So much is clear from the conclusions set out by her Honour at [658] and following of her reasons which discussion includes her Honour saying:

   666.It is the fervently held wish of this court that the husband will realise the necessity to address the issues that have been identified in this matter so that he can resume an important role in his children’s lives in the future.  For this reason orders will be made that the husband have liberty to make further Application in relation to spending time with [X] and [Y] upon production of proof to this court that through the appropriate therapeutic intervention he has addressed the behaviours that have given rise to his time with [X] and [Y] being suspended

   …

   672.The onus will be on the husband to prepare any further Application upon appropriate grounds and he must understand he would have to place before the court all relevant evidence to satisfy the court that he has achieved the necessary changes so that he no longer posed a risk to [X] and [Y], including evidence he has fully engaged in the appropriate psychiatric therapeutic interventions.

6. By reference to the first of those passages, the husband contends (at [8] of his written outline of argument) that her Honour erred in not making an order granting him liberty to apply.   It was not necessary for her Honour’s orders to make any such provision.  The husband is, of course, free to make application for further parenting orders should he consider that he can satisfy a court of the requisite change in circumstances and that such orders as he might propose are in the best interests of the children.

7. For the preceding reasons, grounds 13 and 14 must fail.

Conclusion

1. The appeal will be dismissed

Application in an appeal

1. During the hearing of the appeal, the husband made oral application that the appeal be adjourned.

2. The sole basis articulated for that application was that the adjournment was needed so as to permit him to subpoena, and thereafter cross-examine, his former solicitor and counsel as to the circumstances in which they ceased to act for him.

3. The application had no merit and was dismissed.

Costs

1. The Court sought submissions from both parties at the conclusion of the hearing of the appeal in the event that the appeal was either allowed or dismissed.

2. The appeal has been dismissed.  In that event, the mother seeks costs.

3. The father should pay the mother’s costs of the appeal, including his unsuccessful application in the appeal. By reference to s 117(2A) of the Act, the husband has been wholly unsuccessful; the appeal had little merit; the mother has incurred significant expense in responding to it; and, the financial circumstances of the parties point to a costs order being made.

I certify that the preceding one hundred and ninety-five (195) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 14 March 2014.

Associate:

Date: 14 March 2014