HOUSTON & HOUSTON
[2011] FamCAFC 178
•1 September 2011
FAMILY COURT OF AUSTRALIA
| HOUSTON & HOUSTON | [2011] FamCAFC 178 |
| FAMILY LAW – APPEAL – CHILDREN – where the mother appealed against interim parenting orders providing for the father to have sole parental responsibility for the children and for the children to reside with the father – whether the trial judge was biased and failed to provide adequate reasons – whether the trial judge erred in his treatment of certain expert evidence and the evidence of the children – whether the mother was denied natural justice and procedural fairness – whether the trial judge erred in failing to provide for the children to spend substantial and significant time with the mother – no merit found in any grounds of appeal – appeal dismissed. |
| Family Law Act 1975 (Cth) s 93A(2), s 60CC(2)(a) |
| Abalos v Australian Postal Commission (1990) 171 CLR 167 CDJ v VAJ (1998) 197 CLR 172 SS Hontestroom v SS Sagaporack [1927] A.C. 37 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588 (“Earthline”) |
| APPELLANT: | Ms Houston |
| RESPONDENT: | Mr Houston |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 10248 | of | 2007 |
| APPEAL NUMBER: | NA | 36 | of | 2010 |
| DATE DELIVERED: | 1 September 2011 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Thackray, Strickland and Ainslie-Wallace JJ |
| HEARING DATE: | 17 February 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 February 2010 |
| LOWER COURT MNC: | [2010] FamCA 112 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Cilento |
| SOLICITOR FOR THE RESPONDENT: | Family Law Doyle Keyworth & Harris |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Fleetwood |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Falcomer, Legal Aid Queensland |
Orders
The appeal be dismissed.
There be no order for costs.
IT IS NOTED that publication of this judgment under the pseudonym Houston & Houston is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 36 of 2010
File Number: BRC 10248 of 2007
| Ms Houston |
Appellant
And
| Mr Houston |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by Ms Houston (“the mother”) against interim parenting orders made by Barry J on 19 February 2010 with respect to the parties’ children A Houston born May 1999 and twins K Houston and M Houston born August 2000. The respondent to the appeal is Mr Houston (“the father”).
In summary, the trial judge’s orders provided, inter alia, until further order, for the father to have sole parental responsibility for the children and for the children to live with the father, on the condition that he resided in the same premises as his sister, Ms A, for six months from the date of the orders. The mother was to spend no time with or communicate with the children for a period of five weeks from the date of the orders and thereafter was to spend supervised time with the children at a contact centre once a fortnight. Orders were also made allowing the mother to communicate with the children by telephone following the expiration of the five week period and the parties were restrained from removing the children from the school in which they were enrolled. Further orders were made with respect to the mother’s mental health, including for her to consult with a general practitioner and attend upon a psychiatrist. The mother and children were also placed on the Airport Watch List and the mother was restrained from obtaining passports for the children and from taking the children from Australia. Finally, orders were also made with respect to any future complaints by the mother regarding alleged abuse of the children. The matter was to be listed for further mention on a date 12 months or thereabouts from the date of the orders.
Both the father and the Independent Children’s Lawyer seek that the mother’s appeal be dismissed.
Background
At the time of the trial the father was aged 46 years and the mother was aged 36 years. The mother was born overseas, although there was some confusion as to whether she was born in the Ukraine, Russia or specifically Siberia. The father was born in Australia.
The father has a speech impediment which affects his ability to socialise and which is exacerbated by stress. At the time of the trial he was receiving a disability pension as a result of the ongoing effects of Q-Fever which he contracted in 1994.
The mother suffered a spinal injury in 2000 at the time of the twins’ birth, for which she underwent surgery in 2003. She has also suffered depression for many years.
The parties met through an internet dating agency site in approximately 1996. The father proposed marriage to the mother prior to meeting her. The father subsequently travelled to the Ukraine.
The parties were married in the Ukraine in February 1998.
The father returned to Australia in April/May 1998 and the mother arrived in Australia in August 1998. Throughout the parties’ marriage they lived on the central coast of New South Wales.
The parties’ eldest child A was born in Australia in May 1999 and was aged 10 years at the time of the trial judge’s orders.
The parties’ youngest children, twins K and M, were born in Australia in August 2000 and were aged 9 years at the time of the orders.
In August 2003 the parties’ child A allegedly first made a disclosure that the father had inappropriately touched her. Further disclosures were allegedly made by M in January and June 2005 and by K in November 2005 and February 2006.
There was an initial period of separation of the parties between May and July 2004, before they finally separated on 2 August 2004. The mother left the former matrimonial home after separation. The parties were divorced on 3 September 2005.
In approximately June 2004 the mother met Mr M. They commenced a relationship in December 2004 and commenced cohabitation in February 2005. They have a daughter, L, who was born in March 2006.
In August 2005 the mother and her partner Mr M relocated from the central coast of New South Wales to Brisbane.
On 7 October 2005 an order was made at the Lismore Federal Magistrates Court providing for the children to live with the mother and for the father to spend supervised contact with the children for two consecutive visits, one weekend per month.
In November 2005 the father pleaded guilty to a charge of cultivation of cannabis and he received a suspended sentence.
In June 2006 the order for supervised contact was varied to provide that the father have supervised contact at the Coffs Harbour Contact Centre every second Saturday.
A five day trial was heard by Jordan J in February 2007 and orders were made on 28 February 2007. Those orders provided, inter alia, for the children to live with the mother and for her to have sole parental responsibility for them. The father was to spend supervised time with the children at a contact centre on one occasion each alternate weekend. The father was given liberty to apply in relation to the conditions of ongoing time after 12 months. Orders were also made by consent at this time for property settlement, with the mother to receive the sum of $163,000 from funds held in an account in the names of the parties, plus 40 per cent of all interest accrued on the account.
The father filed an appeal against the orders made by Jordan J, but was unable to serve the documents on the mother as, by that time, she had left the country.
In March 2007 the mother married Mr M at a motel in Canberra. They married to enable Mr M to enter the Ukraine as a spouse on a permanent basis. The mother had travelled to Canberra to obtain Ukrainian passports for the children. The father’s signature was not required on the passport applications as he was not a Ukrainian citizen.
On 15 March 2007 the mother left Australia with the children and flew to Istanbul, Turkey. Despite having a return ticket, the mother’s evidence before the trial judge was that she did not intend to return to Australia. The mother apparently waited in Turkey for Mr M and their child to join her, they having been delayed for about a week while arranging passports, before travelling on to the Ukraine together.
The mother and Mr M returned to Australia briefly in August 2007 to attend a funeral. When the father ascertained the mother was in Australia he made an urgent application to the Court, however, they left Australia again, before Airport Watch List orders could be put in place.
By approximately April 2008 the monies the mother had received in her property settlement had apparently been exhausted. Mr M returned to Australia in April 2008 and the mother returned approximately one month later. The mother and Mr M thereafter settled in Western Australia with the children.
Between mid 2008 and early 2009 various orders were made (including information orders, location orders, publication orders and warrants for the mother’s arrest) requiring the mother to return with the children to New South Wales. The father also filed an application alleging the mother had contravened the orders of 28 February 2007.
On 17 February 2009, after a two day hearing, the trial judge found that the mother had contravened order 3 of the final orders made in February 2007, which provided for the time the father was to spend with the children. The issue of penalty was reserved to the final trial.
On 18 February 2009 interim parenting orders were made by Barry J providing for the mother and children to live with the maternal grandmother in N, New South Wales and for the father to spend supervised time with the children, such time to be supervised by the father’s brother and sister-in-law. The mother subsequently sought and obtained permission to reside with
Mr M’s parents at V, New South Wales. Later, in approximately August 2009, the mother, without permission from the Court, moved out of the Ms’ home and into a rental property in C with Mr M and the children.
On instructions from the Independent Children’s Lawyer, Mr J, psychologist, prepared a family report filed on 8 July 2009.
In July 2009 the mother presented to the Emergency Department of the C Mental Health Campus saying she had thoughts of suicide by driving her car into a tree or taking a drug overdose. The mother was admitted to hospital for three weeks. As a result, the final hearing listed in July 2009 was vacated and the matter was relisted in February 2010.
The mother unilaterally ceased compliance with the ongoing contact order as from 1 January 2010.
On 5 February 2010 a report by Dr W, psychiatrist, was released. On the ex parte application of the Independent Children’s Lawyer, this report was withheld from the parties until the commencement of the hearing.
The trial was heard by Barry J over five days from 8 to 12 February 2010. At the hearing the father and the Independent Children’s Lawyer were represented. The mother was unrepresented. His Honour delivered his reasons for judgment, and made orders until further order, on 19 February 2010.
Reasons for judgment of the trial judge
The trial judge recorded at the commencement of his reasons that it was a reasonable observation to say that the parties were “diametrically opposed” in the orders they sought. In summary, the father sought that the children live with him and have supervised time with the mother at a contact centre. The mother sought that the children live with her, that she have sole parental responsibility, that she be allowed to relocate to Brisbane and that the children spend time with the father as agreed, or failing agreement for up to four hours each alternate weekend at a contact centre.
The trial judge then outlined the “personal history” of both the father and the mother and the history of their relationship, before recording the events that occurred between separation and the first trial in February 2007.
The trial judge proceeded to summarise the first trial held in this matter before Jordan J in February 2007. The children had made disclosures of inappropriate behaviour by the father. The father had “vehemently denied” any sexual abuse. The trial judge recorded that Jordan J was “unable to positively rule in or out the prospect of sexual abuse”, and that his Honour was “inclined to the view that it may well be that some or all of these children [had] been exposed to inappropriate touching by their father and/or other inappropriate sexual behaviour.” Jordan J had further found that there was “evidence capable of supporting a finding that there [had] been sexual abuse of these children by their father in the past”, and that there was the possibility it could occur again in the future. Jordan J found that “[g]iven the ages of the children and the gravity of the alleged abuse at face value, the prospect of exposing these children to further abuse would be entirely unacceptable”, and that the children needed to be protected. The trial judge recorded that Jordan J therefore ordered that the father’s time with the children be supervised at a contact centre each fortnight.
The trial judge then recorded the events which had occurred immediately after the February 2007 hearing, which included the mother leaving Australia with the children and her marriage to Mr M. The trial judge recorded that the mother had said the catalyst for her leaving Australia was a communication from police that the father had applied to have guns which had been seized from him returned. However, his Honour rejected the claim by the mother that she was so concerned for her safety that she had no option but to “flee” the country (at paragraph 60). At no time had the mother applied for an apprehended violence order, she had given evidence that the father had another gun which had not been seized, and at no time during the hearing before the trial judge did she display any fear of the father.
His Honour then recorded that a family report had been prepared by Mr J in July 2009 and a report of Dr W was released in February 2010.
The trial judge then turned to the hearing before him in February 2010. The father was the only witness in his case. With the case of the mother, the trial judge declined to allow her to adduce evidence from Mr M’s parents given the late stage at which she sought to rely on their evidence. Notwithstanding an objection from counsel for the father, the trial judge allowed the mother to call evidence from Mr M. Counsel for the Independent Children’s Lawyer relied on evidence from Mr J, Dr W, a further psychiatrist, Mr D, the father’s brother, sister and sister-in-law, and teachers from the children’s school at N (the teachers were not required to give oral evidence). The Independent Children’s Lawyer also relied on the family report prepared by Dr B which was before the Court at the first trial, and was referred to in Dr W’s report.
The trial judge then outlined the father’s case. At paragraph 95, the trial judge recorded the father’s concerns about the children being in the mother’s care. His Honour found the father to be an impressive witness, who readily made concessions against interest. The father had proposed before the trial judge that the children live with him and that his sister would reside with them for the first six to 12 months to enable the children to settle. The trial judge said that the father “was adamant, and convincingly so” that he had not acted inappropriately towards his daughters. However, the father accepted that he had made such accusations against Mr M. His Honour found the father’s answers generally to be openly and honestly given.
The trial judge then summarised the mother’s case at paragraph 107. The mother’s case included that the children had made disclosures of sexual abuse over a significant period of time, that she had been the children’s primary carer and that the children’s wishes indicated they were more closely bonded to her. His Honour also observed that despite the mother’s application being to relocate to Brisbane, in her written submissions she proposed that she relocate to Perth. There was no evidence though in support of either proposal.
The trial judge then had regard to the evidence in support of the father’s case. The first area addressed in this regard was the issue of the mother placing no value on the relationship between the father and the children. His Honour found at paragraph 112 that “the Father’s role in the children’s lives is undermined on a constant basis in the Mother’s household, both by the Mother and [Mr M]”. Further, his Honour commented, at paragraph 122, that it was “indicative of the Mother’s attitude towards the Father that for a period of two years she prevented all forms of communication between the children and their father.”
The next issue addressed was the mother’s ability to comply with court orders, with his Honour concluding he had no confidence that she would comply with court orders in the future, in particular orders restraining her from discussing issues with the children.
His Honour then addressed in detail the issue of the mother’s mental health by reference to the three psychiatric reports before the Court prepared by Dr B in 2006, Dr D in July 2009 and Dr W in February 2010 and the psychological report of Mr J prepared in July 2009 (at paragraphs 128 to 167).
The trial judge had regard to the features of a borderline personality disorder, and made observations as to whether these features were present in the mother (at paragraph 168). Ultimately, his Honour concluded, however, that he did not “need to convince [himself] by reference to the definition of Borderline Personality Disorder in the text books” and he relied on the opinion of the experts Mr J and Dr W. His Honour recorded that Mr J’s clinical observations were supported by the tests he conducted, and his Honour rejected the submission of the mother that Dr W had simply adopted Mr J’s recommendations, and that it was “abundantly clear” from Dr W’s evidence that he had read all relevant material and had a detailed knowledge of the matter. His Honour recorded that the experts were clear that the mother’s condition did not amount to a disorder, but that there was “concern that her features of histrionic, paranoid and borderline personality features were a major issue” for which the mother should “seek treatment on an urgent basis.” His Honour observed that despite the opinion of Mr J having been provided in mid 2009, the mother had nonetheless done nothing in a “practical sense” to follow his recommendations.
The trial judge then had regard to documents and records subpoenaed from the Western Australian Education Department and the New South Wales Education Department regarding the children’s school attendance.
The next issue addressed by the trial judge was the sexual abuse allegations and the disclosures by the children. After analysing the children’s disclosures, his Honour said that he could “safely make a finding that it [was] more likely than not” that the father had not sexually abused any of the children at any time (at paragraph 182) and his Honour set out in detail his reasons for this finding at paragraph 183 as follows:
·The only evidence that the Father has acted inappropriately towards his daughters consists of the disclosures by the girls themselves and by the claims of [the mother] and [Mr M] that they have witnessed the girls engaging in sexualised behaviour – often an indicia that children are being/have been abused. No matter how many times the children have repeated the disclosures the evidence of the adults cannot be any better then (sic) the veracity of the children in making the disclosures in the first place.
·The disclosures were first made by the children when they were only four years of age. [A’s] first disclosure is said to have occurred in August 2003. She was born in May of 1999. [M] was said to have made a disclosure in June 2005. She was born in August 2000. [K] did not make a disclosure seemingly until November 2005 at which stage she would have just turned five.
·The claims of sexualised behaviour are diminished somewhat by the claim of the Mother she observed [A] to be engaging in such behaviour at a time when she was one bordering on two.
·The Mother’s psychological profile as detailed by Mr [J] would indicate a pre-disposition to accept false claims and then to adhere to such claims with a totally rigid attitude.
·Dr [B] at page 6 of her report as previously quoted did not detect any features in the Father’s history which would indicate a sexual abuser.
·The Father was subjected to psychological testing by Mr [J] and he was of the view (paragraph 10.19) that:
“[Mr Houston’s] risk of committing an act of sexual violence (is) low.”
·There is compelling evidence of the Mother coaching the children in other areas such as her insistence that the children refer to their father [by his first name] and to Mr [M] as “Dad”. The Mother denied such coaching but the evidence to the contrary is overwhelming. If the Mother is capable of deliberate or inadvertent coaching in this respect it is equally plausible that she has deliberately or otherwise coached the children in the area of disclosures.
·In the interviews by officers from the Department of Community Services and the New South Wales Police on occasions not only have the children not made disclosures they have positively denied that such conduct occurred.
·On almost all occasions the girls have reacted spontaneously and lovingly with their Father. It is possible that the girls would react in this fashion but it is likely if abuse has occurred they would react on occasions in a sexualised manner. None of the observers has witnessed such conduct other than the Mother and Mr [M].
·Mr [J] observed at paragraph 11.7:
“11.17While I appreciate that the children’s accounts regarding sexual abuse have remained consistent over the years, the difficulty as I see it in this matter, is that if the children originally developed a false belief that their father had touched them in an inappropriate sexual manner four years ago, they have had plenty of time to internalise this belief and now see it as fact, even though it may not have occurred. In addition, the children have had ample opportunities to repeat their stories at various agencies and to child welfare authorities and counsellors. This may also have contributed to reinforcing and internalising inaccurate beliefs. Having said this, the only indication from any of the children that they may have been reminded of the issue by their mother was [A’s] comment. She said that she did not see her father for a long time. When asked why she said, “Because Mum wouldn’t let us”. When asked why her mother would not let them she said, “Because he was touching our private parts”. When asked how she knew this she said, “I remember when I was little”.
Addressing the issue of unacceptable risk, the trial judge said, at paragraph 187, that even if he was in a position of being unable to make a positive determination in relation to abuse, he would be “reluctant” to make a finding of unacceptable risk as the circumstances which presented to the Court at that time indicated that a risk of abuse would be of “an extremely low impact”. On the other hand the risk of being placed in the mother’s care was “at the higher end of the range”, particularly given her “suicidal ideation” and “the diagnosis of borderline personality features”. At paragraph 188 his Honour concluded, however, that he did “not find it necessary to go beyond the firm finding that I make that I am more than satisfied on the evidence before me that the Father has not at any time acted in an inappropriate manner towards his children.”
The trial judge then turned to consider in detail the provisions of s 60CC of the Family Law Act 1975 (Cth) (“the Act”).
In summary, firstly addressing s 60CC(2)(a), his Honour said it was an “extraordinary” feature of the case that the father continued to have such a positive relationship with the children notwithstanding the conduct of the mother. His Honour observed that while the father was bitter towards the mother and Mr M, he would expect him to be fully compliant with court orders and would not attempt to influence the children against the mother, as the mother had done towards him. His Honour concluded the father was not of a “vindictive frame of mind”.
The trial judge found the children had been and would continue to be at risk of psychological harm if they remained in their mother’s care (s 60CC(2)(b)) and that the children had a secure attachment to both their parents, although they would find it difficult to be separated from their mother (s 60CC(3)(b)). His Honour commented that the weight to be attached to the expressions of the children’s wishes had to be balanced against his Honour’s previous observations that at no time had the mother promoted a relationship between the children and the father (s 60CC(3)(a) & (c)).
In addressing s 60CC(3)(d), his Honour recorded that under the father’s proposal, the children would remain living in the same district and at the same school, while the mother’s proposal was “chaotic” and that “it [was] not at all clear what her plans [were]”. His Honour perceived that the mother’s relationship with Mr M was “problematic” and was of the view that the mother was likely to have difficulty in coping with four children without any support, referring to the children’s school records which showed significant absenteeism, and arriving late for school on a regular basis. His Honour considered that the problems for the children in the mother’s household were likely to continue unless she took positive action to receive treatment as recommended by both Mr J and Dr W.
In relation to s 60CC(3)(e) his Honour found there would be no problems if the mother remained in the C region, however, his Honour was unable to anticipate the situation if the mother moved from the area.
With respect to s 60CC(3)(f), his Honour recorded that the mother’s mental health issues militated against her being able to attend to the children’s emotional needs on an appropriate basis and assessed that the father had a far greater capacity to attend to the children’s intellectual and emotional needs unless and until the Mother could seek appropriate treatment.
Finally, in relation to s 60CC(3)(i), the trial judge accepted that both parents love the children and that the children love their parents. However, his Honour did note at paragraph 218 a number of criticisms by the mother of the father’s conduct, including in relation to his conviction for cultivation of cannabis, allegations by Mr M, an alleged assault against the mother allegedly arranged by him, and entries he had placed on the internet. However, his Honour considered that such behaviour as was established had not “impacted directly on the children.” The trial judge could not rule out, however, that the father may yet be charged in relation to further cannabis plants found at his brother’s property, and that could affect the children if it came to pass.
The trial judge recorded that Mr J strongly recommended that the Court consider making interim orders, mainly to see how the children would adjust to the change of environment at the father’s household. The Independent Children’s Lawyer not only supported this recommendation, but also submitted that “there should be a period of five to six weeks where (the children) spend no time with their mother to allow them a proper opportunity to settle into the new arrangements.”
His Honour then outlined the determination of the Court. His Honour proposed to put orders in place as recommended by the Independent Children’s Lawyer, and supported by the father, which would provide for the children to reside with the father and spend supervised time with the mother. At paragraph 226 his Honour outlined his reasons for this determination as follows:
a. Such an order accords with the recommendations of the psychologist, the psychiatrist, the Independent Children’s Lawyer and Counsel for the Independent Children’s Lawyer.
b. The reports of the psychologist and the psychiatrist Dr [W] would indicate there is an unacceptable risk to the security of the children if they were to remain in the Mother’s care.
c. In the event the children were to remain in the Mother’s care she would continue to undermine the relationship between the Father and the children.
d. The Court could have no confidence that the Mother would be in any way compliant with Court orders if given an opportunity to undermine the Father’s position with the children.
e. The emotional needs of the children in the long term would be best catered for in the Father’s household.
f. In accordance with the recommendations of the psychologist and the Independent Children’s Lawyer it is preferable that any orders to be put in place be interim orders to allow the Court to review its determination at the expiration of 12 months or such earlier period as the Independent Children’s Lawyer may deem appropriate.
g. The Independent Children’s Lawyer submitted draft orders. I propose to put in place orders which in large measure conform with the draft proposals. The draft proposals were in turn fully supported by Counsel for the Applicant Father.
Having outlined his reasons for determining the children should live with the father, the trial judge addressed parental responsibility. The proposed orders were to be interim and were to be reviewed after 12 months. His Honour considered in the circumstances that it was appropriate for the father to have sole parental responsibility, given the mother was only to have supervised time at a contact centre.
Finally, the trial judge considered the orders that he proposed. His Honour was of the view that the mother’s distress at his determination was likely to have a severe impact on the children if she was to continue to see or communicate with them in the immediate future. His Honour considered that it was better for the children to have a period whereby they could settle into the environment of the father’s household “without the risk of any influence from the mother.” The trial judge indicated he would suspend any telephone communication by the mother with the children for a period of five weeks, but provide for the children to telephone the mother. With respect to the costs of the supervised time at the contact centre, his Honour considered such costs should be shared equally by the parties. His Honour also noted that the parties could agree for the mother’s time to be supervised outside of the contact centre if the supervisor was approved by the Independent Children’s Lawyer.
Orders made 19 February 2010
Barry J made the following orders, until further order:
(1) That all previous orders be discharged.
(2) The Father have sole responsibility for the major long term issues relating to the children, [A HOUSTON] born May 1999, [K HOUSTON] and [M HOUSTON] (twins) born August 2000.
(3) The Father have sole parental responsibility for the day to day issues relating to the children.
(4) The children live with the Father on condition he reside in the same premises as his sister [Ms A] for a period of six (6) months from the date hereof.
(5) An injunction issue restraining the parents or their agents from removing or attempting to remove the children from their current enrolment at [N] Primary School without the written permission of the other parent or by order of this Honourable Court.
(6) That the Mother spend no time with the children and have no communication with the children for a period of five (5) weeks from the date of this order.
(7) At the expiration of the period of five (5) weeks the Mother spend time with the children supervised by the Family Contact Centre at [C] once a fortnight for the maximum time that can be made available by that Contact Centre.
(8) The Mother and Father are to comply with any appointments made by the Contact Centre for intake interviews and comply with the intake procedure of the Centre within twenty-one (21) days of the date of this Order.
(9) The parties share equally the costs of the Contact Centre.
(10) At the expiration of five (5) weeks the Mother be permitted to communicate with the children by telephone on Monday and Wednesday of each week between 6.00 pm and 6.30 pm or such other times as the parties may mutually agree in writing and the Father shall facilitate telephone communication to the Mother if the children wish to speak to her.
(11) That a transcript of the proceedings of 11 February 2010 limited to the oral evidence of Dr [W] be prepared expeditiously and be provided to the Mother and the legal representatives of the Father and the Independent Children’s Lawyer.
(12) Pursuant to section 121(9) of the Family Law Act 1975 leave be granted to the Independent Children’s Lawyer to provide to the Mother’s treating mental health professional or any mental health service she may engage, a copy of the reports of Mr [J] filed 8 July 2009, Dr [D] filed 19 August 2009, and Dr [W] filed 5 February 2010, together with a copy of the transcript of proceedings of 11 February 2010, a copy of these orders, and the reasons for judgment delivered this day.
(13) Leave be granted to the Independent Children’s Lawyer to provide a copy of these Orders and the reasons for judgment delivered this day to the Department of Community Services, New South Wales.
(14) The Mother shall within seven (7) days of the date of this order:
a.consult with the same general practitioner in respect to all medical issues;
b.advise the Independent Children’s Lawyer of the name of the general practitioner and provide an authority to the Independent Children’s Lawyer so that the Independent Children’s Lawyer may obtain information of the Mother’s progress and to provide such information of the Mother’s health and any written report as may be requested by the Independent Children’s Lawyer;
c.consult with the Mental Health Access Line 13000 369 968 for intake and referral to a Mental Health Service in her area;
d.advise the Independent Children’s Lawyer of having consulted with the Mental Health Access Line 1300 369 968 for a referral to the Mental Health Service in her area and provide the name of the treating psychiatrist or service she proposes to attend;
e.provide an authority to the Independent Children’s Lawyer to obtain information of the Mother’s progress and to provide such information of the Mother’s health by way of written report as may be requested by the Independent Children’s Lawyer.
(15) Neither parent denigrate each other or any members of their family or friends in front of the children or expose the children to anyone else doing so.
(16) On giving forty-eight (48) hours notice in writing to each party leave is given to the Independent Children’s Lawyer to re-list an application.
(17) In any event the matter be listed for further mention on a date twelve (12) months from the date hereof or as close as possible thereto.
(18) The Mother, [MS HOUSTON] (possibly also known as [MS M]) a female born … August 1973 and her servants and agents are restrained from taking or sending or attempting to take or send the children, [A HOUSTON] (possibly also known as [A M]) born … May 1999 and twins [M HOUSTON] (possibly also known as [M M]) and [K HOUSTON] (possibly also known as [K M]) both born … August 2000, from Australia.
(19) The Marshal and all officers of the Australian Federal Police and the Police Forces of the States and Territories are requested and authorised to give effect to these Orders.
(20) The Australian Federal Police place the names of the Mother, [MS HOUSTON] (possibly also known as [MS M]) a female born … August 1973 and the children [A HOUSTON] (possibly also known as [A M]) born … May 1999 and twins [M HOUSTON] (possibly also known as [M M]) and [K HOUSTON] (possibly also known as [K M]) born … August 2000, on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the Mother or the children from Australia in breach of these Orders.
(21) The Mother, [MS HOUSTON] (possibly also known as [MS M] be restrained from seeking to apply for an Australian, or Ukrainian passport for any of the children, [A HOUSTON] (possibly also known as [A M]) born … May 1999 and twins [M HOUSTON] (possibly also known as [M M]) and [K HOUSTON] (possibly also known as [K M]) born … August 2000, or from having any or all of the children added to her own passport.
(22) In the event the Mother wishes to make a complaint to any Government Department or any person in authority that the children have been abused by the Father or the Father has in any way acted inappropriately with them, then at the time of making such complaint the Mother must forthwith forward to the person to whom the complaint is made a copy of the reasons for judgment delivered on 19 February 2010.
IT IS FURTHER ORDERED:
(23) Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.
NOTATION:
The Manager, Child Dispute Services, is requested to arrange for a Family Consultant to explain the orders made by the Court this day and in summary form such that it is likely to be understood by the children explaining the reasons for such determination. (Emphasis in original)
The mother appeals all orders.
Applications to adduce further evidence
On 14 February 2011 the Independent Children’s Lawyer filed an Application in an Appeal seeking to have annexure “B” to an affidavit of Ms Falcomer, also filed on 14 February 2011, before the Court. This annexure is a copy of Exhibit 1 at trial. We were informed that Exhibit 1 had been unable to be located on the Court record. There was no objection by either the mother or the father to this material being before the Court, and at the hearing we therefore allowed, by consent, the documents attached to Ms Falcomer’s affidavit to become part of the appeal record.
At the hearing of the appeal, the mother sought to rely on evidence in relation to the father’s mental health, in the form of a transcript of remarks made by counsel in criminal proceedings against the father’s brother for cultivation of cannabis in February 2006. In these remarks there was apparently reference to a report provided by the father’s psychiatrist in those proceedings. That report was not provided to us by the mother and the mother did not formally file an Application in an Appeal seeking to adduce this further evidence.
Section 93A(2) of the Act provides that in an appeal the Full Court can, in its discretion, receive further evidence upon questions of fact. The law in relation to adducing further evidence on appeal is well settled. In CDJ v VAJ (1998) 197 CLR 172, the High Court discussed the circumstances in which an appellate court may exercise its discretion to admit further evidence. McHugh, Gummow and Callinan JJ said at 201:
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.
Their Honours then said:
111.… Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
And finally their Honours said at 203:
116.The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
We indicated at the hearing of the appeal that having taken note of the nature of the evidence sought to be adduced by the mother, and without the psychiatrist’s report being available to us, we would not be assisted by this information, and the application to adduce the evidence was dismissed.
Grounds of appeal and orders sought
The mother’s grounds of appeal as contained in her Notice of Appeal filed on 15 March 2010 are as follows (spelling and grammatical mistakes in original):
1. The trial Judge prejudged matter prior the mother filing any documents to support her case.
2. The mother was denied natural justice.
3. The trial Judge is biased.
4. The trial Judge was not accepting the treating psycaitrist report and made indication of which doctor would suit better his prejudice.
5. The trial Judge made finding in contradiction expert medical evidence.
6. The trial Judge failed to protect the children.
7. The trial Judge ignored the specialist advice and put his bias before the best interest of the children which resulted in psychological harm of the children.
8. The trial Judge failed to provide an adequate reasons as to why mother has to see children in Contact Centre which according to experts would result in great psychological impact on the children.
9. The trial Judge erred in conviction of the mother for contravention of Justice Jordan orders without reasonable excuse.
10. The trial Judge forced the mother to plea without knowledge of her legal rights and representation.
11. The trial Judge failed to provide for the children to spend substantial and sugnificant time with the mother.
12. The independent children lawyer failed to represent the childrens wishes and best interest.
13. The trial Judge failed to consider childrens wishes.
14. The trial Judge erred of not giving any weight to the childrens disclosures.
15. The trial Judge erred in making findings based on evidence provided by witnesses that have a great animosity towards the mother, have closed mind on issue of sexual abuse by the father and would protect his interest.
16. The trial Judge erred in learning all of the avilable evidence.
17. The psychiatrist Dr [W] and psychologist [Mr J] didnt use the opportunity to undertake thorough assessment.
18. Dr. [W] took a hostile attitude towards the mother in his report.
19. The mother was denied the thorough cross examination of the witnesses by trial Judge.
20. The trial Judge made factual errors.
21. The report wrighters made factual errors..
22. The trial Judge failed in providing the children with meaningful relationship with sugnificant people in their lifes, the step-father and half sister.
23. The trial Judge failed to adequately weight issues of credability.
24. The trial Judge took very hostile attitude towards the mother and mothers witnesses.
25. The trial Judge made findings contrary to the evidence.
26. The trial Judge failed to identify and apply standart of proof according to Section 70NAF Family Law Act 1975 (Cth)
27. The trial Judge failed to give adequate reasons for suspendent imprisonment.
28. The trial Judge denied the mother of procedural fairness.
Of these grounds of appeal we do not propose to deal with the following grounds for the reasons set out:
a)Ground 9
On 17 February 2009, after the two day hearing of the application by the father alleging that the mother had contravened the orders made by Jordan J on 28 February 2007, his Honour found that the mother had contravened paragraph 3 of those orders without reasonable excuse. There was no appeal filed in relation to that finding, there was no application for an extension of time to appeal, and accordingly it is not now open to the mother to pursue that in this appeal.
b)Ground 10
On 21 January 2010 at a preliminary hearing before the trial judge,
his Honour, before setting down for hearing the father’s application alleging contravention, informed the mother of the charge and asked her how she pleaded, “guilty or not guilty”. The mother responded “I am guilty, but I have reasons for that”. The mother was unrepresented at the time. Then, on the first day of the hearing, namely 16 February 2009, when the mother was legally represented and after the precise charge was clarified, his Honour put that charge to the mother and asked whether she admitted the contravention. The mother responded “[y]es your Honour”, and then added “[b]ut not without reasonable excuse”.
There is no evidence before us to support the claim that the trial judge “forced the mother to plea (sic)”, and in any event, in relation to the relevant plea, namely on 16 February 2009, the mother was legally represented at the time. However, again there was no appeal filed in relation to this issue and no application for an extension of time to appeal, and accordingly, even if there was merit in the challenge, it is not now open to the mother to pursue that in this appeal.
c)Grounds 20, 23, 24 and 25
The complaints made in these grounds lack sufficient specificity to allow us to address them, and there was nothing in the mother’s written submissions or in her oral submissions to overcome this deficit. In particular, we were not taken to anything in the documents before us to identify or support the complaints.
d)Ground 26
This complaint again relates to the finding made by the trial judge on
17 February 2009 that the mother had contravened paragraph 3 of the orders made by Jordan J on 28 February 2007. As with grounds 9 and 10, no appeal was filed in relation to this finding and no application for an extension of time was made, and thus it was not open to the mother to pursue this issue in this appeal.
e)Ground 27
This complaint is misconceived. The trial judge has not in fact imposed any penalty. Following the finding made on 17 February 2009
his Honour adjourned the question of penalty to the trial, but that issue has still not been finally dealt with. His Honour did comment on
17 February 2009 that an option that he can look at is a “suspended custodial sentence” for “something like two years”, subject to conditions, but appropriately went on to say “I’ll research cases on it and hear the submissions – I don’t rule out other options.” Then his Honour said this in his reasons for judgment delivered on
19 February 2010:
194.The other factor which persuades me that the Father is not of a vindictive frame of mind is that when asked to address on the question of penalty for the finding of contravention against the Mother for taking the children to the Ukraine the Father does not seek the imposition of a term of imprisonment.
195.As I commented at the time in almost all such cases where children have effectively been abducted and withheld from a parent for a period of two years it is more common than not that a sentence of imprisonment is imposed.
196.The Independent Children’s Lawyer likewise submitted that it was not in the interests of the children or the parties themselves that such a sentence be imposed.
However, at the hearing of the appeal the parties confirmed that no penalty has yet been imposed.
Thus, this ground of appeal cannot succeed.
f)Ground 28
As is apparent from the mother’s written submissions this complaint again relates to the contravention hearing conducted by his Honour on 16 and 17 February 2009. The mother suggests that she was “unprepared” and her “request for adjournment was denied”. We observe that there was in fact no request for an adjournment, and we repeat that the mother was legally represented at this hearing. The transcript does not reveal the mother’s solicitor making any suggestion that he was not ready to proceed. In any event, as with grounds 9, 10 and 26, because of there being no appeal filed and no application for an extension of time made, it was not open to the mother to pursue this challenge.
The balance of the grounds of appeal can be grouped into the following topics:
§ That the trial judge was biased and prejudged the matter (grounds 1, 3 and 7);
§ That the mother was denied natural justice and procedural fairness (grounds 2 and 19);
§ That the trial judge erred in not accepting certain expert evidence, accepting evidence of witnesses with animosity towards the mother and/or in making findings contrary to the evidence (grounds 4, 5, 15 and 16);
§ The trial judge failed to provide adequate reasons (ground 8);
§ The trial judge failed to “protect the children” and erred in not giving weight to the children’s disclosures (grounds 6 and 14);
§ The trial judge failed to consider the children’s wishes (ground 13);
§ The trial judge erred in failing to provide for the children to spend substantial and significant time with the mother and failing to provide for the children to have a meaningful relationship with significant people in their lives (grounds 11 and 22);
§ Complaints in relation to the Independent Children’s Lawyer (ground 12);
§ Complaints in relation to Mr J and Dr W (grounds 17, 18 and 21).
The mother seeks that there be a “retrial” of the matter as a Magellan matter, that the orders of Barry J be “reversed” and that the orders revert to the orders of Jordan J, and that the children “have new legal representation.”
Discussion
Grounds 1, 3 and 7
These complaints arise out of the contravention hearing in February 2009, and in particular his Honour’s findings in relation to the mother’s conduct which led to that hearing. For example, in her written submissions in relation to ground 1 the mother suggests that during the contravention hearing “the comments by the learned judge show that his mind was made (sic) regardless of evidence that was put at (sic) front of him.”
In her written submissions the mother did not take us to any of the comments that she is here referring to, but she did in her oral submissions.
First the mother took us to his Honour’s reasons for judgment delivered on
21 July 2008. Those reasons related to a hearing that took place when the mother was still apparently in the Ukraine, and his Honour made orders for the issue of an arrest warrant, restraining the mother from taking the children from Australia, placing the mother and the children on the Airport Watch List, giving permission to publish or broadcast details of the proceedings, and making a location order.
The comments specifically identified by the mother are as follows:
4.For the father in this hearing counsel puts forward three options the Court may care to adopt. All are centred, one way or another, on interpretations of r. 21, but essentially the first option is the proposal that I am inclined to adopt and that is if there is non-appearance on a contravention application a Court can order the arrest of the respondent. Counsel accepted that it is fairly artificial because it has not been served, but the respondent has put herself beyond the reach of the Court. The Court is entitled to take into account the flagrant nature of her conduct.
. . .
13.I am not sure that it is really necessary in terms where the father is attempting to pursue legal redress where the mother is seemingly in blatant contravention of existing orders.
Next, and finally, the mother took us to the transcript of the hearing on
21 January 2009, which was the directions hearing prior to the hearing of the application alleging contravention which took place on 16 and 17 February 2009. The mother was represented on this occasion, and after she pleaded guilty his Honour made the following comment:
Your behaviour to date would seem to be absolutely outrageous, that from the very start there was a concerted intention never to comply with Court orders. Within less than a month of Jordan J’s decision, without any indication to the judge that you intended to take the children overseas, you left Australia. As I understand it you left Australia on two occasions. When you returned to Australia, you went to Western Australia, which is about as far removed from Brisbane as is possible. Great expense has occurred issuing location orders and other orders to ascertain your whereabouts. It is quite apparent that you knew the Court proceedings were in existence. I do not need to go into that part of the evidence, but we have evidence to confirm that.
It seems to us that on the basis of the evidence before his Honour at these times his Honour was justified in making these remarks. In any event, we are not persuaded that they demonstrate that the trial judge had prejudged the matters which he was subsequently called upon to determine in relation to the parenting issues.
As to “bias” the complaint appears to be that the trial judge has a reputation of ensuring that court orders are obeyed, and of punishing those who contravene them. The mother suggests in her written submissions in relation to ground 3 that this was his Honour’s agenda in her case regardless of what the evidence was. However, again, the mother failed to take us to anything in the appeal documents which demonstrate such an approach by the trial judge.
The mother also suggests that the trial judge was biased because he chose to believe the father’s evidence in preference to the evidence of others including her partner. However, the mother has not taken us to anything which persuades us that his Honour erred in accepting the father’s evidence, or more particularly that his Honour exhibited any bias against her in so finding.
With ground 7 the mother maintains the theme that the “whole exercise in front of the judge was about punishing the mother for not complying with court orders”. Again though we were not taken to anything specific in the appeal documents that demonstrated this. The only semblance of such is the mother’s submission that the failure by the trial judge to provide for the children to have counselling demonstrates that his Honour’s agenda was about punishing her rather than the wellbeing of the children. However we fail to see the connection.
We also observe that the mother is not correct when she claims in her written submission in support of ground 7 that the trial judge threw the children into the “deep end” by not having anyone explain his orders to them. The fact of the matter is that his Honour made the following notation to his orders:
The Manager, Child Dispute Services, is requested to arrange for a Family Consultant to explain the Orders made by the Court this day and in summary form such that it is likely to be understood by the children explaining the reasons for such determination.
We also do not accept the mother’s submission in ground 7 that the “trial judge ignored the specialist advice”. His Honour carefully and painstakingly in his reasons for judgment, considered the reports and the evidence of all of the experts who were called as witnesses for the Independent Children’s Lawyer, namely Mr J, psychologist, Dr W, psychiatrist, and
Dr D, psychiatrist. In addition his Honour referred to the report of Dr B which had been before the Court at the hearing in February 2007 and which report was referred to in the report of Dr W.
Finally, it is also relevant to note that at no time did the mother apply for the trial judge to disqualify himself for bias or prejudgement or for any other reason.
In the circumstances we find no merit in these grounds of appeal.
Grounds 2 and 19
It is difficult to discern from her written submissions in support of ground 2 how it is said the trial judge denied the mother natural justice. As with grounds 1 and 3 the mother again complains that the trial judge in effect ignored her evidence, but the balance of the submission is a grab-bag of discrete complaints ranging over a number of issues. For example, the mother suggests as follows:
The judge makes diagnosis of the Borderline Personality disorder where it is contrary to the experts’ opinion and out of the area of his expertise and on grounds of his Honour’s diagnosis he finds the mother not fit for an unsupervised contact with the children, yet he finds her well enough to self-defend in the hearing.
Firstly, it is quite clear from his Honour’s reasons for judgment that he did not make such a diagnosis, and he deferred to the diagnoses of the experts. His Honour, after referring to the text book definition of “Borderline Personality Disorder” and making brief observations of the mother’s behaviour said this:
169.I do not need to convince myself by reference to the definition of Borderline Personality in the text books. I rely on the opinions of Mr [J] and Dr [W]. Mr [J’s] clinical observations are supported by the tests which he administered to which I have adverted earlier in these reasons. [The mother] expressed the view that Dr [W] simply adopted the report of Mr [J] and did not independently come to the conclusion she suffered borderline personality.
170.It is abundantly clear from Dr [W’s] oral evidence that he had read all of the important documents which had been forwarded to him by the Independent Children’s Lawyer and had a detailed knowledge of the background issues in this matter. It is an insult to Dr [W’s] professional integrity to suggest that he would simply adopt the opinions of a psychologist without forming his own opinion on such diagnosis.
171.The experts were clear that [the mother’s] condition did not amount to a disorder but there was concern that her features of histrionic, paranoid and borderline personality features were a major issue and called for [the mother] to seek treatment on an urgent basis. Notwithstanding the opinion of Mr [J] expressed in mid-2009 [the mother] has done nothing in a practical sense to follow the recommendations made.
Secondly, it is also incorrect for the mother to suggest that it was as a result of his Honour’s diagnosis that he found her “not fit” for “unsupervised contact with the children”. Further, the mother is incorrect in this same submission to claim that even if she suffered from such a disorder “there was no evidence that she was incapable of continuing with her parental responsibilities”, that the trial judge erred in finding that she was “unfit to fulfil her duties with the children” and that there was “no evidence that [she] presents any danger to the children”.
We agree with the submission of the Independent Children’s Lawyer that the requirement that the mother only have supervised time with the children was based upon a proper acceptance by his Honour of the expert evidence of Mr J and Dr W. For example, in his evidence-in-chief Mr J, upon being asked what conditions should be imposed upon the children spending time with the mother, said this:
It would either need to be supervised or there would need to be a responsible adult present when that occurs.
Further, in his report dated 5 February 2010, Dr W said this:
Despite Mr [J’s] (and other treating professionals’) advice to enter into treatment for her problems [Ms Houston] has so far failed to do so. She appears to lack the insight into her own problems. Her psychiatric conditions will significantly impact on her ability to care for her children if they do not change considerably. She is at risk for ongoing suicidal ideation, plans and actions. She has had previous thoughts of harming the children and should the Court’s findings not be to her liking this could occur in the future. It might be better for this report to be released at Court so that their safety can be assured.
Again, in his report Dr W provides the following summary of his assessment of the mother’s mental and physical health:
[Ms Houston] presents with a number of paranoid themes. She consistently gives a history of people wanting to harm her or her children. She blames other people or agencies when the evidence to substantiate her beliefs is not available and complains about them to other authorities. She unfortunately shares these beliefs with her children and acts on them to the extent of defying Court Orders and leaving the country with the girls. Whether these beliefs are based on facts is for the Court to decide but their nature, volume and the dearth of evidence to support them suggests that they are not. If they are not factual then it is difficult to tell whether these beliefs are delusional, malicious, or the product of an anxious, depressed, somatising, drug dependent mother with vulnerable personality traits of the paranoid, histrionic and borderline subtypes. In my clinical opinion it is most likely the latter.
[Ms Houston] has a lengthy history of Major Depression Disorder. She wanted to harm the children when they were young, tried to drown herself in 2003, overdosed in 2008 and presented suicidal in a wheelchair demanding Oxycontin in mid-2009 when she was supposedly off these types of medications. She is taking a high dose of the anti-depressant Efexor but remains chronically depressed and suicidal. At her interview she stated that she was better with the support of [Mr M] but her relationship with him has been unstable. She has been using drugs for a chronic pain condition that Dr [S] can find no organic basis for. As such she meets the DSM 4 diagnostic criteria for Somatoform Pain Disorder and Opioid Dependence Disorder. If [Ms Houston] continues to take the high dosage of panadeine extra and neurofen that she is currently abusing she is at significant risk of dying from liver failure in the near future. [Mr J] felt that [Ms Houston] suffered from a Borderline Personality Disorder. In my opinion she has prominent features of this personality disorder but also has prominent histrionic and paranoid personality traits.
It is not the physical care of the children that was in issue, but rather the ability of the mother to attend to the children’s emotional and psychological needs on an appropriate basis. His Honour found (at paragraph 213) that, “the Mother’s mental health issues militate against her being able to” do this.
In the same vein it is also apparent that in making these submissions the mother has overlooked an important aspect of his Honour’s findings in relation to the likely harm that the children will suffer if they are in her care, and also if any time with them is unsupervised, namely the finding that the children will be exposed to psychological harm because of the mother’s inability to accept that the children should have a relationship with their father and her constant attempts to undermine any relationship that they do have (for example, see paragraphs 112, 114 and 115 of his Honour’s reasons).
His Honour, justifiably in our view, given the history of the proceedings, had no confidence that the mother would comply with Court orders, not only in relation to the children spending time with the father if they were living with the mother, but also in restraining her from discussing adult issues with the children. His Honour found that there was compelling evidence of the mother coaching the children on a number of issues.
With ground 19 the complaint raises a specific aspect of an alleged failure to afford natural justice or procedural fairness. However, the complaint is not made out. The mother did not take us to any part of the transcript which supported her claim. The father in his written submissions pointed to occasions when the trial judge asked the mother about timeframes but there is no instance of the trial judge preventing or restricting the time for the mother’s cross-examination of witnesses. For example, during the mother’s lengthy cross-examination of the father the following was said:
HIS HONOUR: Alright. How much longer are you likely to be with Mr
---[MS HOUSTON]: Not really much longer. Not much longer. A couple of more questions. A couple of more questions.
HIS HONOUR: Alright, thank you.
The cross-examination then continued over a further 10 pages of the transcript when his Honour commented as follows:
HIS HONOUR: I will take the evidence – I have been asking the witness how long she is going to be. I don’t want to put pressure on her but obviously her estimates are even worse than most barristers that I know.
And then shortly thereafter his Honour asked the mother:
HIS HONOUR: - - - He is not available tomorrow and then we will resume the evidence. Can you give me a realistic estimate how many other questions you have of this witness?
[MS HOUSTON]: Two or three probably.
The cross-examination then continued with a further six questions until the mother concluded her cross-examination approximately 34 minutes into the usual luncheon adjournment on that day, namely 10 February 2010.
There was an issue about the ability of the mother to conduct the proceedings without having legal representation, and his Honour carefully and thoroughly addressed that issue on the first day of the hearing. His Honour concluded as follows:
HIS HONOUR: . . . If at any stage in the proceedings I arrive at a determination the matter should not proceed because of inherent unfairness to a party, or because I sense the respondent doesn’t properly understand the nature of the proceedings or is incapable of adequately conducting the case, I will reconsider the issue that was raised by the Independent Children’s Lawyer today.
For my own part, I am quite confident that the respondent fully understands the nature of the proceedings. It is a question of whether she is capable of adequately conducting the case. I note there is an Independent Children’s Lawyer who has a totally independent role in these proceedings, but the judge is often there to ensure that various issues are canvassed in any event. In any event, I will make a decision on that at a later point in time. I note that there is no application for an adjournment.
Significantly, no-one sought to revisit this issue at any time during the hearing.
We agree with the submission of the Independent Children’s Lawyer that the “trial judge was very cognisant of the fact that the appellant represented herself”. His Honour gave the mother every opportunity to present her case and even allowed her to explore issues that were of marginal relevance. As the father summarised in his written submissions, his Honour “allowed the Appellant much leniency in presenting her case, namely:
·allowing the evidence of Mr M (by way of unsworn statement) after the Respondent objected to it;
·insisting on assistance by the duty solicitor;
·encouraging the Appellant to further particularise her proposed orders;
·explaining how to effectively question a witness;
·allowing objectionable questioning;
·confirming the Appellant understood answers that she received in cross-examination;
·allowing the Appellant time to ask for clarification; and
·allowing the Appellant to clarify any matters before closing her case.”
At the conclusion of the trial his Honour also had no doubt that for a self-represented litigant she performed “to a high standard”.
We can find no appealable error here by the trial judge.
Grounds 4, 5, 15 and 16
With ground 4 it is again unclear precisely what the mother is complaining of, but on the basis of the transcript quoted in her written submissions she seems to be suggesting that in the trial judge naming specific experts who might provide the necessary comprehensive report his Honour was nominating experts who would provide a report to coincide with his Honour’s views, and presumably would not then be an independent report.
We find no substance in this complaint. In mentioning specific experts who might be instructed to provide reports his Honour was doing nothing more than highlighting that it was necessary for there to be a well informed and detailed report in this case.
Dr D, consultant psychiatrist is presumably the “treating psychiatrist” referred to by the mother in ground 4. He prepared a report dated 25 July 2009 and this was annexed to his affidavit filed on 19 August 2009. In that report Dr D says that he “was responsible for the management of [Ms Houston] during her July (2009) admission to the [C Mental Health Clinic]”. He was called as a witness in the case of the Independent Children’s Lawyer, and he was made available for cross-examination.
His Honour referred to the report and evidence of Dr D in his reasons for judgment at paragraphs 144 to 150, and there is nothing said there that indicates any non-acceptance or ignoring of either his report or his evidence.
However, in her written submissions in relation to ground 5 the mother appears to identify the issue that she says arises from Dr D’s report. It is again her complaint that the trial judge ignored the expert evidence and “diagnosed” her as having a borderline personality disorder. She says that Dr D did not diagnose her with that disorder, and that he should know because he was in charge of her psychiatric care for three weeks. Further, the mother says that this is consistent with the evidence of Mr J and Dr W.
We have already addressed this issue when considering ground 2 but again we say that the complaint is misconceived. The trial judge did obtain information from the Internet, and he included that in his reasons for judgment, but we refer to paragraphs 169 to 171 of those reasons set out in paragraph 85 above. We also note that before accessing the Internet his Honour informed the parties of that and enquired if they had any difficulty with him doing that. No objection was expressed by any party to that course of action.
We also observe that we were not taken to anything by the mother which demonstrated or supported in any way her claim that the “trial judge had discussed the matter with the report writers”.
With ground 15, the mother appears to be specifically complaining about
his Honour previously appointing Mr H (the father’s brother) and Ms P (the father’s sister-in-law) as supervisors, and his Honour accepting their evidence at trial.
There is of course no appeal against the order appointing these persons as supervisors, and thus the only issue is whether his Honour erred in accepting their evidence.
It seems that Jordan J did not appoint them as supervisors at the time of the trial in February 2007, but, of course, the trial judge here is not bound by any findings of Jordan J, and that per se does not demonstrate an error by the trial judge. His Honour was entitled to make his own assessment of their credibility on the basis of the evidence before him.
His Honour said this in his reasons:
111. The Independent Children’s Lawyer relied on affidavits of [Ms P], [Mr H] and [Ms A] which annexed diary notes of the supervised time the children spent with their father. Whilst I note these witnesses are the sister-in-law, brother and sister respectively, of [the father], I found their evidence was given in a straight forward, honest manner. The evidence of each was internally consistent and consistent with their observations of the children’s general pattern of behaviour.
His Honour then quoted from the diary entries of Ms P and said this:
112.I do not intend to refer in detail to the affidavits of [Mr H] and [Ms A] but the entries are in a similar vein. Assuming, as I do, the accuracy of the records made the only conclusion to be drawn is that the Father’s role in the children’s lives is undermined on a constant basis in the Mother’s household, both by the Mother and [Mr M].
113.The notes kept by the three supervisors have a consistent ring of truth about them. They would each need to be extremely skilled writers of fiction if they have manufactured this evidence.
Nothing to which we have been referred, either in the context of this challenge or elsewhere, provides a basis for concluding that his Honour in accepting the evidence of these witness palpably abused the advantage he enjoyed as the trial judge.
In Abalos v Australian Postal Commission (1990) 171 CLR 167 (at 178) McHugh J (with whom Mason CJ, Deane, Dawson and Gaudron JJ concurred) referred to “the power of the Court of Appeal” and to the judgment of Lord Sumner in SSHontestroom v SS Sagaporack [1927] A.C. 37 (at 47):
not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.
In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588 (“Earthline”), having extensively reviewed the history of “Appellate review of facts”, and the “Emphasis on the duty of appellate review and its constraints”, Kirby J explained “the trial judge’s real advantages” in relation to the credit of witnesses. In the course of his judgment (619, paragraph 90) his Honour said:
The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary of electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge.
In relation to ground 16, the mother identifies her complaint in her written submissions, namely that, “[t]he trial judge make (sic) several unfavourable comments and judgments about video that was exhibited in the court case in February 2007 that is on the case file without watching it.”
There was a DVD which became an exhibit in the trial before Jordan J. However, that DVD was not introduced as evidence before the trial judge here, and that is sufficient to dispose of this ground of appeal. It is also again apparent that the mother has misrepresented his Honour. His Honour, in referring to the trial before Jordan J in February 2007 noted that the DVD was in evidence at that time and he quoted from Jordan J’s reasons for judgment where his Honour said this:
19.In any event the children did make some vague disclosures about the father touching their private parts, and one of the girls suggested that she had pushed her father’s hand away. It does not need to be observed that, later in that conversation, the children – or at least one of them – appeared to suggest that the father had not touched them. Accordingly, that whole exercise produced an equivocal outcome.
Thus, any “unfavourable comment” about the DVD came from Jordan J himself and not the trial judge here.
Clearly then there is no merit in any of these grounds of appeal.
Ground 8
The mother is again selective as to the basis of the complaint that she makes. In her written submissions she suggests that the only reason given by the trial judge for the mother having supervised time with the children is his Honour’s “own diagnosis of the mother having a Borderline Personality Disorder”, and in any event that in itself does not indicate “an unacceptable risk to the children”. She says that whether she suffers from that disorder or not there is no evidence that she poses “an unacceptable risk to the children.”
We have already addressed the claim that the trial judge diagnosed the mother as suffering from a borderline personality disorder, and in the context of ground 2 we have addressed whether there was evidence that the mother posed an unacceptable risk to the children requiring that her time with them be supervised. We do not need to repeat what we have said about that, and we find that not only did his Honour provide adequate reasons for this outcome, but there was ample evidence to justify such a finding.
Grounds 6 and 14
The specific challenge made in ground 6 is explained in the mother’s written submissions. There she says that the children are incapable of protecting themselves and thus measures should have been taken to protect them from abuse.
Putting aside for the moment the fact that the trial judge made a specific finding that the father has not abused the children, as the Independent Children’s Lawyer says, this is “contrary to the evidence presented during the trial”. Indeed, the following emerged during Mr J’s evidence-in-chief:
One issue that does, of course, loom large is that there has been a finding in a previous trial in relation to the father. You at paragraph 11 point 11 at page 44 of your report, Mr [J], discuss the level of involvement in – in counselling that these children have had, and I think earlier in your report you at paragraph 11.5 you mentioned that the children at that time when you saw them had attended 25 sessions of counselling at Bray (sic) Hearts and also counselling through Mental Health Services with a Mr [X]. From your assessment of these girls, [A, M and K], is it your understanding or have you formed the opinion that they have sufficient protective measures, that they would alert a person, a responsible person, whether it was attempted to be perpetrated upon them by anybody? --- Absolutely I think that inappropriate or untoward behaviour or abuse by adults, and as has been shown by their – their – one of the children very quickly reported to her father some inappropriate behaviour by the maternal grandmother’s partner. He subsequently – [Mr Houston] I believe was – was – when I spoke to him was anticipating taking action on that immediately by referring the matter to the Department.
We do not understand the balance of the written submission of the mother in relation to ground 6.
With ground 14, again, we find no substance in this complaint. His Honour carefully analysed the “disclosures” by the children between paragraphs 177 and 188 of his reasons for judgment and concluded as follows:
I do not find it necessary to go beyond the firm finding that I make that I am more than satisfied on the evidence before me that the Father has not at any time acted in an inappropriate manner towards his children.
We are not persuaded that his Honour erred in reaching this conclusion, or in how he treated the “disclosures” of the children.
We observe that yet again the mother misrepresented the evidence in her written submission. It is simply not correct to say that “[t]he children were disclosing to numerous authorities the abuse they suffered in (sic) the hands of the father” (our emphasis added). His Honour quite properly recorded the following in his reasons for judgment:
178.The children were interviewed by professional interviewers at either DOCs or the Juvenile Response Team. For the most part the children did not make statements confirming the disclosures said to have been made to [the mother] and [Mr M]. The results of the investigations were almost overwhelmingly “not substantiated” or no further investigation.”
179.The complaints of June 2005 were accepted for investigation. After [A’s] interview at the school where she denied the allegation the investigation was suspended and no further police action was taken.
. . .
183.My reasons for so concluding follow.
. . .
•In the interviews by officers from the Department of Community Services and the New South Wales Police on occasions not only have the children not made disclosures they have positively denied that such conduct occurred.
We find no merit in these grounds of appeal.
Ground 13
This is also a ground that misrepresents the evidence before the trial judge. His Honour did address the issue of the wishes of the children in paragraphs 199 and 200 of his reasons for judgment.
Although the children did express their wishes his Honour found that “[t]he weight to be attached to the expressions of the children’s wishes has to be balanced against the observations previously made that at no time has the mother promoted a relationship between the Father and his daughters”.
We are not persuaded that his Honour erred in the weight that he attributed to the wishes of the children.
Grounds 11 and 22
Ground 11 is misconceived. Given his Honour’s findings in relation to the mother, and including the pivotal finding that the children “have been and would continue to be at risk of psychological harm if they were to remain in the mother’s care”, it was not open to his Honour to make an order that the children spend “substantial and significant” time with the mother.
It also must not be forgotten that his Honour accepted the recommendation of the psychologist, Mr J, and the submission of the Independent Children’s Lawyer that only interim orders be put in place “to allow the court to review its determination at the expiration of 12 months or such earlier period as the Independent Children’s Lawyer may deem appropriate”.
This also provides the answer to the complaint in ground 22, and we agree with the submission of the father that “it is more important for the children to re-establish the bond with their father than maintain a bond between a stepfather and half-sister. This is especially pertinent in a situation like this where the children were to be removed from the mother”.
It would not necessarily be expected that the mother would be aware that
s 60CC(2)(a) of the Family Law Act 1975 (Cth) only applies as between the parents of the children.
Again, we find no merit in these grounds of appeal.
Ground 12
There is no appealable error identified in this ground. A complaint against the Independent Children’s Lawyer should have been addressed by making an application at the time to discharge the particular Independent Children’s Lawyer and have an alternative Independent Children’s Lawyer appointed. There is no error here by the trial judge.
Grounds 17, 18 and 21
These grounds comprise criticisms of the reports, evidence and attitudes of the experts in this case. However, again there can be no error here by the trial judge, even if these criticisms are warranted. For example, it is not alleged that as a result of deficiencies in the expert evidence his Honour erred in how he treated the evidence of the experts. Accordingly, once again there is no merit in these grounds of appeal.
Conclusion
We have found that there is no merit in any ground of appeal and thus the appeal must be dismissed.
Costs
In the event that the appeal was unsuccessful, neither the father nor the Independent Children’s Lawyer sought costs against the mother. Thus there will be no order for costs.
I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland and Ainslie-Wallace JJ) delivered on 1 September 2011.
Associate:
Date: 1 September 2011
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