Hopkins & Walker - [2007] FamCA 317

FAMILY COURT OF AUSTRALIA

HOPKINS & WALKER

[2007] FamCA 317

FAMILY LAW - APPEAL – parenting orders – leave to file proceedings – 10 years of constant litigation – undertaking given not to bring proceedings without leave – after undertaking one of two children began to reside with father – 12 months later father sought leave to require mother and other child to have contact with child in his care – leave refused – material change in circumstances not decisive in considering whether leave should be granted – Considerations of the impact on Mother’s mental health in determining whether leave should or should not be granted were entirely appropriate

FAMILY LAW - APPEAL – Application to adduce further evidence allowed – Independent Children’s Lawyer sought to adduce further evidence regarding Mother’s mental health – Father objected on grounds that he had only received the evidence five days prior and would not have the opportunity to question the report writer – report merely updated circumstances which were fully explored at an earlier hearing – as the application to seek leave would normally be conducted without cross-examination the absence of an opportunity to challenge the report outweighed any prejudice suffered by its late delivery – report bolstered the findings of the trial Judge and was clearly relevant

Family Law Act 1975 (Cth), s 60B, s 68B(1), s 68B(2),s 60CC, s 93A, s 93A(2)

Bennett v Bennett (2001) FLC 93-088

CDJ v VAJ (1998) 197 CLR 172

N and R (1991) FLC 92-252

Queen v Watson ex parte Armstrong (1976) 136 CLR 248

Rice v Asplund (1979) FLC 90-725

Wollongong Corporation v Cowan (1955) 93 CLR 435

Zabaneh (1986) FLC 91-766

APPELLANT:

MR
HOPKINS

RESPONDENT:

MS
WALKER

INDEPENDENT CHILDREN’S LAWYER:

JULIE ANN HARRINGTON

FILE NUMBER:

BRF

4770

1995

APPEAL NUMBER:

2006

DATE DELIVERED:

12 APRIL 2007

PLACE DELIVERED:

BRISBANE

JUDGMENT OF:

KAY, WARNICK AND BARRY JJ

HEARING DATE:

28 FEBRUARY 2007

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

26 SEPTEMBER 2006

LOWER COURT MNC:

[2000] FamCA 1057

REPRESENTATION:

THE APPELLANT:

IN PERSON BY VIDEOLINK FROM HOBART

THE RESPONDENT:

NO APPEARANCE

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

MS BRASCH

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

MS JULIE HARRINGTON

Orders

That the appeal filed 18 October 2006 be dismissed.
That the cross appeal filed 25 January 2007 be allowed by consent.
That Orders 1 – 6 of the orders made by Justice Jordan on 26 September 2006 be set aside.
That the application of the father filed 7 November 2005 be otherwise dismissed.
That any further court listing relating to the application be otherwise vacated.

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE WITH VIDEO LINK TO HOBART

Appeal Number: NA 86 of 2006
File Number: BRF 4770 of 1995

MR HOPKINS

Appellant

And

MS WALKER

Respondent

REASONS FOR JUDGMENT

The parties in this matter have been litigating for more than ten years. They are the parents of two children B born in June 1993 and C born in February 1995. The issue we were asked to determine affected whether the father should have been given leave to continue the litigation at this time.
Having heard the submissions of the Appellant at the time of the hearing of the appeal on 28 February 2007 we made orders dismissing the appeal and, by consent, allowing a cross appeal filed by the Independent Children’s Lawyer. These are the reasons given for the orders made at that time.
On 29 July 2004 Warnick J made orders that the Father have contact with his daughter, then nine years of age, on alternate weekends and for half school holidays. Simultaneously with the making of those orders the Father gave two undertakings that were referred to in the orders and were annexed to them.
The first undertaking was in the following terms:
“I undertake to the Court
(1)I will bring no further Applications pursuant to the Family Law Act 1975 against the mother …in relation to this matter without leave of the Court; and
(2)I will not approach:
(i)Any teachers of the children; or
(ii)Treating professionals of the children.
Subject to my ability to write in, appropriate terms, letters seeking
clarification of further information arising from reports from such people.
(3)I accept that B is of an age where she can choose whether or not to come on contact and in the event of her refusing to do so I will accept her decision and not bring Contravention Applications arising from her non-attendance and not raise her non-attendance with the mother.
(4)I will not present the children or either or (sic) the children to any medical practitioner or health professional for treatment save only for an emergency and in such event arrange for such medical practitioner to inform the mother forthwith.
(5)I will abide strictly with any terms of any order for contact and not seek to vary them in any way.
(6)I will not communicate or attempt to communicate with the mother either directly or by correspondence at any time.
(7)I will note (sic) approach or go near the mother at any contact changeover or at any other time.
And I agree to be bound by this undertaking until ___ or excused by the court.
I acknowledge that:
a)The nature and terms of the undertaking have been explained to me; and
b)I promise the court that I will comply with the terms of the undertaking; and
c)The undertaking has the same effect as an order of the court; and
d)If I breach the undertaking, I may be guilty of contempt of the court and may be punished by a fine or imprisonment.”
The child B at the time was eleven years old. She will be fourteen in June this year.
The second undertaking related to the discontinuance by the Father of any extant applications.
The orders of 29 July 2004 were made after a three day hearing the previous month. The issues before Warnick J were the Mother’s application that the Father’s contact with his children be suspended and he be declared a “frivolous and vexatious litigant”. It is apparent from the orders made on 29 July to which we have previously made reference his Honour did not make any orders suspending contact to C but his Honour declined to make an order in relation to B .
It is common ground in late July 2005 C commenced to live with his Father and has continued to do so to the present time. The Mother did not consent to this change. No orders have been put in place validating the change of circumstance.
In more recent times the Father has relocated with his son from South East Queensland to Tasmania. The Mother continues to reside with her daughter in the Brisbane/Ipswich region.
On 7 November 2005 prior to his move to Tasmania the Father filed an Application for Final Orders together with an Application for Interim Orders in identical terms. The orders sought are as follows:
“C
(1)Have contact with his Mother and B every second weekend.
And half school holidays for the first half of the June/July and August/September school holidays from Friday (the last day of school) to the following Saturday 5.30 pm.
(2)For the first half of the Easter holiday period in 2005. For the second half of the Easter holiday period in 2006 and alternating years then after.
(3)For the second half of the Christmas holiday period in 2005. For the first half of the Christmas holiday period in 2006 and alternating years then after.
B
(4)Have contact with her father and C every second weekend.
(5)And half school holidays for the second half of the June/July and August/September school holidays from Saturday 5.30 pm to the first day of the school week.
(6)For the second half of the Easter holiday period in 2005, from Saturday 5.30 pm. For the first half of the Easter holiday period in 2006 to Saturday 5.30 pm and alternating years then after.
(7)For the first half of the Christmas holiday period in 2005, from Saturday 5.30 pm. For the first half of the Easter holiday period in 2006 to Saturday 5.30 pm and alternating years then after.
(8)Should the father’s birthday fall on a non-contact weekend the children to have contact with their Father that weekend.
(9)The contact of C and B to co-inside (sic) so that they spend weekends and school holidays together.
Phone contact
(10)C and B be able to communicate with each other whenever they wish and with each parent whenever they wish.
(11)That the Mother is not remove (sic) from the children’s procession (sic) or to make unusable any mobile phone the children may have the use off (sic). To also ensure no other member of the family or other person, interfere with any such mobile phone.
Contact changeover
(12)The Father collect B from school or out of school care on Friday afternoon and return her to school on the first day of the school week.
(13)The Father collect B from school or out of school care on Friday afternoon and return her to school on the first day of the school week.
C
(14)The Mother collect C from school or out of school care on Friday afternoon and return her to school on the first day of the school week.
(15)Should contact changeover occur on a non-school day, changeover to take place at [a local family restaurant].
(16)Vary or discharge the undertaking as is appropriate.”
These applications were initially returnable on 21 November 2005. On that date Jordan J adjourned the hearing on the merits to 30 May 2006 before himself. In doing so his Honour observed:
“My inclination Mr [Hopkins] is to neither dismiss your application, nor grant the relief sought by you at this stage but, as if we were, to hold the matter in abeyance, say, for another six months to see what, if anything, emerges over that time and reconsider the options then.

RECORDED: NOT TRANSCRIBED

Mr [Hopkins], accepting what you have set out in your material, I have a great deal of sympathy for the propositions that you are advancing, and provided they are all bona fide and not intended to cause any harassment of the Mother or B , then your stated aims represent honourable wishes that these children should have the opportunity to have a relationship. However, on balance I am not satisfied that, at this stage, I should give you leave to institute proceedings.”

On 30 May 2006 the Applicant Father once again appeared. Jordan J made an order for the appointment of an Independent Children’s Lawyer, giving his reasons why he chose to adopt that course.
The matter came before his Honour on 26 September 2006. At that time his Honour made orders in the following terms:
“1.The Father has leave to proceed with paragraphs 1, 2, 3 and 4 of his application filed on 7 November 2006 in relation to the child, C … .
2.A further Welfare Report shall be prepared by Ms [S.L.] and, for the purposes of that report, she interview the Father and C on one occasion, and then C, the Mother and B on another occasion, without requiring the Mother and the Father to be brought together and without requiring B to participate in that exercise with the Father.
3.The Mother and the Father are to take all steps necessary to attend upon such interviews and secure the attendance of any child in their care as requested by the Independent Children’s Lawyer.
4.The Father is at liberty to file a further affidavit upon receipt of the Report.
5.The Mother is at liberty to file an affidavit if she so chooses, but is not required to do so.
6.The matter is adjourned to 10.00 am on 17 November 2006 before the Honourable Justice Jordan.
7.The Mother is excused from appearing at Court on 17 November 2006.
8.A copy of the Reasons for Judgment given today be made available to the parties.
9.Each of the parties and the Independent Children’s Lawyer have liberty to apply in relation to these orders upon the given of 2 days notice.
IT IS REQUESTED THAT
10.The Independent Children’s Lawyer provide a copy of this Order and Reasons for Judgment to the Mother.”
It is these orders that are the subject of the Appeal and Cross Appeal presently before this Court.
In summary, the Father appeals against his Honour’s determination not to make orders in terms of paragraphs 5 to 17 of his application which were the provisions involving the child B .
The Independent Children’s Lawyer filed a Cross Appeal on 25 January 2007 seeking orders that the Court set aside his Honour’s orders giving the Father leave to proceed with paragraphs 1 to 4 of his application namely the orders relating to the child, C .

Application by Independent Children’s Lawyer to Adduce Further Evidence

At the hearing of the appeal, the Independent Children’s Lawyer sought to adduce further evidence in the form of a report of a psychiatrist Dr K.P. dated 5 February 2007.
Dr K.P. had previously prepared reports on 9 November 2003, 10 February 2005 and 29 November 2006, which reports are appended to the latest report.

Dr K.P. was a witness at the hearing before Warnick J and was subjected to cross examination at that time.
The Appellant, who represented himself in the course of the Appeal hearing, objected to the introduction of this further evidence on two grounds:
·he had only received the report five days previously; and
·he would not have the opportunity to question the doctor or any persons who participated in the compilation of the report.
We reserved on the admissibility of the further evidence but directed the parties to proceed on the basis that the further evidence may be admitted.

Principles Governing Admissibility of Further Evidence

Section 93A(2) of the Family Law Act states:
“Subject to section 96, in an appeal the Family Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence upon questions of fact, which evidence may be given:
(a)by affidavit; or
(b)by or examination before the Family Court or a Judge; or
(c)as provided for in Division 2 of Part XI.”
Section 96 is not relevant for present purposes.
The principles relating to fresh evidence being adduced on appeal were set out in CDJ v VAJ (1998) 197 CLR 172, (1998) FLC 92-828, (1998) 23 FamLR 755 a decision of the High Court. In the majority judgment of McHugh, Gummow and Callinan JJ their Honours observed:
“104. In the exercise of the discretion conferred by a power such as s 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion. In an application at common law to admit further evidence, the court applies principles, bordering on fixed rules. In an application under s 93A(2)and similar provisions, the Full Court or Court of Appeal weighs factors, although it may of course develop guidelines for weighing those factors and exercising the discretion.”
At paragraph 109 their Honours observed:
“109. One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.”

Report of Dr K.P. dated 5 February 2007

The report is in the form of a response to a letter from the Independent Children’s Lawyer posing certain questions to the Doctor.
The Doctor diagnosed the Mother as displaying:
“A pattern of symptoms associated with traumatic stress disorder.”
This diagnosis had been made as early as November 2003. In response to a query of how the symptoms manifest themselves the Doctor noted at paragraph 2:
“The underlying feeling is now hopeless and helpless depressiveness. She is a person who has needed order in her life. The constant change and challenge of the last decade or more has never allowed for the stability and predicability she has needed. She has had an overwhelming sense of powerlessness. She has lost her sense of self and identity. She is fearful, phobic, anxious and exhausted. She remains in grief about the loss of her son C . She has withdrawn from her family of origin. Emotionally she has become numb. This is used as a protective mechanism but is a sign of major depression.- - -
This was a different person to the one I saw in May 2005 when she was quite settled after that last Court hearing. In November, 2006 I thought she was worse than the person I saw and wrote about in February 2005. She had always said she would never suicide because of her strong religious convictions, but this lady in November 2006 had lost the fight that had kept her going as long as I had known her. She came to me for support and I believe if she did not get a strong show of support (hence my letter at that time) there could be a risk of self harm.”
In relation to the Mother’s prognosis the Doctor opines (paragraph 4 of his report):
“4.The prognosis issue depended on being free of Mr [Hopkins] and ongoing Court cases - - -
She has become fearful (phobic) about Court. She cannot contemplate any further applications, even those of her own instigation.”
When asked to comment on the effect upon the Mother if the Court were to order that C and B were to spend time together the Doctor noted at paragraph 4:
“4.I believe she would seriously decompensate. The prognosis in that situation is quite bad. Taking her own life would be possible. It is likely she will give up completely, eg., and giving up all claim to access or residence of either of the two children who are the subject of this application.
I would suggest the outcome for B (at thirteen years of age), if that happened, would be a major trauma to her sense of self. This would affect the way she would relate to people for the rest of her life. - -
7.She cannot, after the last ten years or more, tolerate even the merest suggestion, let alone the reality, of that intrusion.
8.The fact that Mr [Hopkins] will be back in this lady’s life, with this pattern of always taking yet another step; the fact that there would have to be some negotiation, even through third parties; the fact that she will have to deal with the children’s reactions to issues to do with their father; will lead to her destabilisation.
She has indicated for two years she cannot tolerate any further trauma at the hands of this man. He has then continued to contravene Court Orders and has taken their son from school and not returned him. He continued to try to make contact with his daughter. Her reaction to these events is an indication of the severity of the decompensation possible in this lady:
(i)she has not been able to apply for contravention orders;
(ii)she has developed an unhealthy denial response to the loss of her son;
(iii)the only option she can think of, in her current state, (should the Court make Orders for contact and the children remaining in each parent’s home) is for her to hand both children to their father and withdrawing all further contact with them.
This lady has been severally traumatised by Mr [Hopkin’s] actions and by the Court’s apparent inability to force him to abide by the Court’s rulings.”

We see no merit in the Father’s claim that he has only had five days to peruse the report prior to the hearing of the appeal. The Appellant did not press this aspect as a basis for rejecting the report.
In considering any prejudice to the Father in not being able to question

Dr K.P. we have to balance the impact on the Mother of a continuation of these proceedings as detailed.
Ordinarily further evidence would not be admitted where its credibility is questionable particularly in circumstances where there has been no opportunity on the part of the Appellant to question the accuracy of the material.
However, in the present instance we note that Dr K.P. is a consultant psychiatrist who has been in practice as a specialist since 1979. He first met the Mother in mid-1997 and has seen her every year since then and particularly from July 1998 in appointments for herself.
Dr K.P. was subjected to cross examination by Counsel for the Appellant at the trial before Warnick J. The opinions expressed in his reports to that point in time were to the effect the Wife was suffering from a post traumatic stress disorder entirely due to the chronic history of traumatically stressful experiences relating to interactions between herself and Mr Hopkins. There is no indication in the judgment of Warnick J that his Honour in any way questioned the opinions as expressed by the Doctor.
It is abundantly clear to us that if Dr K.P.’s evidence is admitted at this point in the hearing, it clearly supports the orders made, namely that no leave should be given in relation to the application for contact to B .
Whilst we are conscious that Dr K.P.’s recent reports are at this stage untested evidence, we need to view that submission in light of the process that would have happened at the hearing of the application before Jordan J.
The hearing before his Honour was an interlocutory one to determine whether or not leave ought to be granted to reopen the issue relating to what time, if any, the children should spend with each other or with their respective parents. Such an application would almost always proceed on the written material that was before the Court without an opportunity being provided for cross examination.
We note the Independent Children’s Lawyer gave evidence to the Court at the interlocutory hearing on the 26 September 2006 to report on her attempts at communication with the Mother. His Honour did not propose any cross examination of the Independent Children’s Lawyer nor did the Appellant seek to cross examine Ms Harrington.
Dr K.P.’s report is an updating of circumstances which were fully explored before Warnick J.
Given the extremely dramatic nature of Dr K.P.’s prognosis we think it appropriate that the report should be admitted into evidence. Its evidentiary value and relevance in that regard outweighs any prejudice the Appellant may suffer as a result of being unable to cross examine the author of the report.
Even without the report we would doubt that the Father’s application for leave to commence proceedings in relation to B should have been allowed but the further evidence does buttress the orders that were made.

Husband’s Notice of Appeal Filed 18 October 2006 (Appeal Book Page 3)

The Husband’s Notice of Appeal is in the following terms:
“1.That Jordan has erred in his application of legal principals (sic) and proceedures (sic) as provided by law.
3.(sic)That the orders made by Jordan deprive the father of the right to present a proper and full case.
2.(sic)That the Father’s undertakings do not allow Jordan to to (sic) place restrictions on the Father’s application.
4.The mothers (sic) mental health or inability to cope with her mental health problems.
5.That Jordan has acted in a biased and discrimintary (sic) maner (sic).
6.That the Seperate Representative (sic) has failed in her duty of care to represent her clients and protect their rights.”
In his Summary of Argument document filed 2 February 2007 the Appellant addresses his six grounds of appeal.

Ground One

In paragraph 1.1 of the Summary of Argument document he notes:
“1.1Trial Judge erred in law in his application of legal principles and procedures provided by law.

In paragraph 1.2 the Appellant cites Rice v Asplund (1979) FLC 90-725. It was the Appellant’s contention that once he had established a significant change in circumstances such as C ’s move from the Mother’s household to his, then it followed as of course, he should be given leave to re-litigate issues concerning the children.
With C ’s move to his Father’s residence it was not questioned by his Honour that there had been a material change of circumstances. This however is not the only test to be applied in considering whether leave should be granted to proceed with an application in circumstances such as presently apply. The authorities suggest that the Court should consider:
·the time that has elapsed since the matter was last before the court;
·the merits, if any, of the proposed substantive application;
·the question of prejudice to the respondent;
·what outcome reflects the best interests of the children;
·any change in the attitudes of the parties.
(see Zabaneh (1986) FLC 91-766, (1986) 11 FamLR 167 and N and R (1991) FLC 92-252, (1991) 15 Fam LR 39)
We shall have more to say on the evidence as it relates to these factors later in these reasons. Suffice it to say we see no merit in ground one of the Appellant’s Notice of Appeal.

Grounds Two and Three
“3.(sic)That the Orders made by Jordan deprive the Father of the right to
present a proper and full case.

2.(sic)That the Father’s undertakings do not allow Jordan to to (sic) place
restrictions on the Father’s application.”

In his Summary of Argument the Appellant appears to deal with these two grounds under the same heading (refer paragraphs 1.8 – 1.22). The Appellant commences his submissions by noting:
“Second principal (sic) of law is set out in Bennett v Bennett – that the best interests of the children is not a determining factor in whether an application can proceed.”
In his Summary of Argument the Appellant challenges any suggestion he could be described as a “frivolous or vexatious litigant” on the basis:
“1.14In all three previous applications which have gone to trail (sic) the Mother has been the applicant.”
At paragraph 33 of the Summary of Argument document filed by the Independent Children’s Lawyer it is noted:
“33.Separately, the Appellant’s characterisation of the mother as the applicant in all 3 previous matters (3.8) is to forget and overlook the numerous applications made by the Appellant:
a.AB 26 at paras 22-23 – 5 contravention applications filed by the Appellant.
b.AB 27 at para 30 – Appellant instituted proceedings against the Education Department and the children’s school principal.
c.AB 28 at para 35 – contravention proceedings filed by the Appellant with respect of medical information, homework and bedwetting.
d.The Appellent (sic) has pursued Child Support matters including a High Court Special Leave application […]
e.The Hon. Trial Judge described him (sic) “litigious and assertive” past (AB p36 para 84).”
The principle enunciated in Bennett v Bennett (2001) FLC 93-088, (2001) FamCA 462 is in our view limited to the proposition that s 68B(1) and (2) is not a source of power for making an order restraining a litigant from bringing proceedings in relation to a child.
We accept the proposition advanced by the Independent Children’s Lawyer’s in her Summary of Argument :
“26.The Appellant’s reliance upon Bennett is misconceived. More so, a reading of Jordan J’s decision and relevant transcript clearly indicates that his Honour:
a. neither relied upon Bennett;
b. nor relied upon s68(1) or (2);
c.nor used the children’s best interest as a “determining factor” in the application for leave to proceed.”
We see no merit in grounds two and three of the Notice of Appeal.
Ground Four
“The Mother’s Mental Health or Inability to Cope with Her Mental Health Problems”
In the Summary of Argument document of the Appellant under the subheading “The Mother’s Mental Health” the following submissions are made:
“3.1It would appear that Jordan has decided that it is not in the best interests of the Mother to be exposed to further litigation (reasons for judgment 26 September 2006 Appeal Book page 13 paragraphs 25 and 26).
3.2And it appears that her mental health may be the reason for it (transcript dated 21 November 2005 Appeal Book page 169 lines 30 – 35 and 170, lines 35 and 172, lines 32 – 35.
3.3I am not aware of any principal (sic) of law within the Family Law Act which implies that an application can be denied or restricted because of the mental health of a party to the proceedings.
3.4And that the Mother a party to the proceedings, not take part in direct litigation.
3.5Why should the children’s and the Father’s relationship continue to suffer because of the Mother’s inability to cope with her mental health problems and further litigation.
3.6Why should the children and the Father be prevented from giving a full and proper case because of the Mother’s inability to cope with her mental health problems and further litigation.
3.7One would have thought that one’s mental health was an issue that would be subject to s 60B and s 60CC of the Family Law Act, an issue relating to the best interests of the children.”
In furtherance of this ground of appeal during the course of oral argument the Appellant submitted:
“This mental health is going to be a permanent and ongoing problem which is going to prevent the making of an application to the court. This has become a means to basically exclude me from access to the court”.
…
“I don’t question the fact that the Mother has a mental health problem. I question the basis for reasons that I am the sole blame for it. I can’t agree with that and never will.”
The Appellant seemed concerned at any suggestion in any of the material that the Mother’s mental health was in way attributable to conduct on his part.
At paragraph 8 of his Honour’s decision of 26 September 2005, his Honour noted:
“I am required to take into account the interests of the Mother. Those interests include a right in general relating to litigation and the obligation of the courts to strive towards finality so that people are not exposed to endless litigation. That general principle appears to have greater imperative in this case, given the Mother’s emotional and mental wellbeing as identified by Warnick J and the adverse impact of the Father’s conduct in the litigation upon her, upon her functioning and necessarily upon her capacity to parent the children in her care.”
His Honour further expressed his concern on 21 November 2005 :
“…about the prospect of the Mother receiving papers which reopen the wounds and bring back all of the nightmares that she has experienced over the years.”
It was at that point in time that his Honour announced that he intended to adjourn the proceedings for a period of six months.
We do not interpret his Honour’s remarks in any of the decisions delivered in this matter as meaning the Father was solely to blame for the Mother’s mental health problems. This may well be the fact but his Honour did not make any positive finding on this aspect.
In any leave application it may well be relevant to consider whether the consequence of a grant or refusal of leave would be likely to lead to a deterioration in a litigant’s already fragile mental health. Such a deterioration may have significant consequences for the litigant and for the children the subject matter of the litigation. His Honour’s comments about the impact on the Mother’s mental health in considering whether leave should or should not be granted were entirely appropriate.

Ground Five

“That Jordan has Acted in a Biased and Discriminatory Manner”

In his Summary of Argument document under the subheading, “Bias, Prohibition Order Against Jordan”, the Appellant quotes from the High Court of Australia decision of the Queen v Watson ex parte Armstrong (1976) 136 CLR 248, (1976) 50 ALJR 778, (1976) FLC 90-059 The principles of law quoted are relevant where bias is an issue. At paragraphs 2.5 to 2.7 of his Summary of Argument document the Appellant notes:
“2.5 Jordan has predetermined the outcome of several issues.
2.6Jordan has made a predetermination of the Father’s character.
2.7Process abuse. Where Jordan talks of a condition called process abuse, and that the Father is guilty of this because of the undertakings he made and implies that he has concern the that the (sic) application may be a means of harassment (transcript dated 21 November 2005 Appeal Book page 167 paragraphs at lines 5 and 10 and reasons for judgment dated 21 November 2005 Appeal book page 102).”
When addressing this ground of appeal during the course of oral argument the Appellant somewhat incongruously asked the rhetorical question:
“Why does he allow an application which is going to fail?” - - -
“By excluding B from the application that is what is basically going to happen” - - -
What I’m saying is that they by only allowing C ’s case going ahead he has ensured the proceedings - - - are basically a waste of time.”
When pressed by the Presiding Judge to particularise the claim of bias the Appellant responded:
“He has preconceived ideas - - - I believe he is harsh in the way he has approached it.”
The transcript and the reasons given in November 2005 and September 2006 reveal his Honour at all times dealt with the leave application in a careful, impartial and sensitive manner. We see no merit whatsoever in this ground of appeal.

Ground Six

That the Separate Representative has Failed in Her Duty of Care to Represent Her Clients and Protect Their Rights

In his Summary of Argument document the Appellant submits:
“4.4This person has been paid out of the public purse to represent the children and protect their rights.
4.5According to the children’s separate representative there is little more that she can do for these children at this time (transcript 26 September 2006 Appeal Book page 144 line 46).”
At page 8 of the Summary of Argument document the Appellant notes:
“Julie Harrington has continually over a number (sic) has run the principal (sic) “that the best interest of the children is served by looking after the interest of the Mother” and supported the Mother in her application for there to be no contact between the Father and the children.”
We note that the appeal is against the orders made by his Honour. In considering such an appeal we are required to consider the reasons for judgment given by his Honour.
It is quite apparent the orders made by his Honour have nothing to do with the manner in which the Independent Children’s Lawyer has conducted herself in these proceedings. In any event we would observe the attack on the conduct of the Independent Children’s Lawyer appears to be entirely without basis.
The Independent Children’s Lawyer has been engaged in these proceedings since, at least, the hearing before Warnick J in June 2004. There is no evidence to indicate other than that she has acted in a thoroughly professional manner at all relevant times.
At paragraphs 12 to 15 of his reasons for judgment the subject of the current appeal his Honour observed:
“12.In my view, the issue of ongoing contact between B and the father was decided in 2004 by the Court and, even more fundamentally, was decided by the father himself. Over two years ago, when B was but 10 years of age, whatever be the cause or causes of any difficulties, the father of this child decided it was not in his child’s best interests to press contact. Obviously, that decision by the father was acknowledged and supported by the Court and reinforced by its decisions and orders.
13.B is now 13 years of age and if the reality that the father recognised when she was but 10 was appropriate, it is a greater reality for this child now she is 13 years of age. If it was appropriate for the father to observe that at the age of 10 B was at an age where she could choose whether or not to attend contact, certainly that proposition must logically and necessarily have greater application over 2 years later when she is older, wiser and even better able to understand the implications of the decision she is to make.
14.The father has not demonstrated anything in his material in relation to those fundamentals by way of any positive change. B has not chosen to seek out her father in that two years. Certainly, there is no such evidence before this Court to such effect. Sadly, and despite the end of litigation, there is evidence of further conflict between the households as set out in the father’s material in relation to mobile phones provided. C has left the home and become separated from his mother and sister.
15.There is evidence before the Court from the records referred to by the Independent Children’s Lawyer from the Queensland Government which I should, for the purposes of this (sic) proceedings, admit into evidence and mark Exhibit 1, which outlines an unfortunate attendance of the father at B ’s school which led to conflict between the father and school authorities which, in turn, came to the notice of B which, in turn, required the involvement of the police. This is the only evidence relating to the relationship between B and the father that emerges from the material and, as I say, that is not a positive development. It is certainly nothing to now override the considered decisions of the father and the Court in 2004.”
We agree with the observation of counsel for the Independent Children’s Lawyer in her Summary of Argument:
“4. His Honour’s reasoning at ABP 10 paragraphs 12 – 15 is irresistible.”

There was as Jordan J indicated a complete lack of evidence to suggest that B was at all anxious to recommence any form of communication with her Father. Indeed such evidence as was available would appear to indicate the contrary.
At paragraph 11 of the Summary of Argument produced by Counsel for the Independent Children’s Lawyer the Appellant’s position is neatly summarised:
“11.There is something a little artificial about allowing the Father to press for orders favouring the Mother when she seeks no such favour. Thus, permitting the Father to proceed with respect to C and his Mother will be an exercise of futility and with no unreasonable likelihood of success.”
We have considered the grounds of appeal as presented by the Appellant but see no merit in them

Cross Appeal

In his Summary of Argument document under the heading, “The Application as allowed by Jordan is an application designed to fall (we presume fail is intended)” the Appellant noted:
“2.12What is the point of the application as allowed by Jordan, all he is simple (sic) doing is wasting everyone’s times (sic), court time and public money, to give the impression that he is holding an impartial hearing.”
After we had indicated we intended to dismiss the appeal from the orders relating to B the Presiding Judge enquired of the Appellant:
“Kay J: Do you wish to proceed on with your orders relating to C or do you wish to abandon your application relating to C in face of the fact that you can’t proceed on with your application relating to B ?
Mr [Hopkins]: There is no point in going any further then your Honour.
Kay J: Well I take that as a yes you will consent to that cross appeal is that reasonable?
Mr [Hopkins]: Yes your Honour.”
In light of the indication given by the Appellant at that time the cross appeal was allowed.

I certify that the preceding seventy-five (71) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate: J. Turnbull

Date: 12 April 2007