J & P

[2005] FamCA 989

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA

AT BRISBANE Appeal No. NA 17 of 2004

File No. BRF 1920 of 2002

BETWEEN:

Appellant Father

-and-

Respondent Mother

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM:  Bryant CJ, Finn and Kay JJ
DATE OF HEARING:        5 October 2004
DATE OF JUDGMENT:     20 October 2005

APPEARANCES:

Mr Galloway of Counsel (instructed by Garland Waddington) appeared on behalf of the appellant father.
Mr Hamwood of Counsel (instructed by Baldwins Lawyers) appeared on behalf of the respondent mother.

APPEAL SUMMARY

MATTER:  J and P
APPEAL NUMBER:  NA 17 of 2004
  (BRF 1920 of 2002)
CORAM:  Bryant CJ, Finn and Kay JJ
DATE OF HEARING:  5 October 2004
DATE OF JUDGMENT:               20 October 2004

CATCHWORDS:

FAMILY LAW – APPEAL – RESIDENCE and CONTACT – Whether the trial Judge gave sufficient reasons for his decision that the child should reside with the mother and have contact with the father – Whether the trial Judge gave sufficient reasons for finding, as the mother alleged, that the mother’s partner had hit the child when his Honour had also found that the mother had been an unreliable witness – Whether the trial Judge’s reasons were inconsistent in relation to his finding that the mother had lied to the Court and then his acceptance of the mother’s remorse in having failed to protect the child from her partner – Whether the trial Judge erred in failing to find, as was opined in expert evidence, that the child would be at an unacceptable risk of harm in the mother’s care – Whether the trial Judge failed to place sufficient weight on the mother’s failure to protect the child from abuse – Whether the trial Judge failed to place sufficient weight on other matters, including the mother’s lying, evidence of abuse to the child, sexualised behaviour of the child, evidence that the mother was not coping with the child, and evidence of suicide attempts by the mother – Whether the trial Judge ought to have placed the child in the father’s care given the mother had lied on oath and not complied with an undertaking not to reside with her partner.

Caselaw cited:

Bennett (1991) FLC 92-191

Gronow (1979) FLC 90-716

Appeal dimissed.

No order for costs.

Introduction and background

This is an appeal by the father against orders made by Bell J on 1 March 2004 which essentially provided that “M” the four year old child of the father’s relationship with the mother should continue to reside with the mother and that the father should have contact with her.
The factual background to this matter as it is recorded in the first four paragraphs of his Honour’s extempore judgment and in relation to which we do not understand there to be any dispute, is as follows.
The father, who was born in 1957, and the mother, who was born in 1974, met in about mid 1999 and a relationship commenced between them. There was some dispute between the parties as to when they began to live together. But it seems to be common ground that they were living together at least by the time the child, M, the subject to these proceedings, was born in June 2000.
By July 2001 the parties had separated, with the child remaining with the mother and having some contact with the father.
In October 2001 the father became aware that, in his Honour’s words, “the child had been substantially physically attacked.” The child was then about 16 months old, and photographs apparently taken as the time showed severe bruising on the upper thighs of the child.
When he became aware of this injury, the father removed the child from the mother and kept her for about three months.
Orders were then made apparently by consent providing for the child to reside with the mother on an interim basis.
As we understand the situation, the child (who would have been about, or just under, two years old when she returned to the mother) had continued to live with the mother up until the time of the hearing by his Honour of the parties’ cross-applications for residence in February 2004.
We were informed at the hearing of the appeal that those cross-applications had originally been listed for hearing by the Federal Magistrates Court in December 2002. For purposes of that hearing, affidavits had been prepared as well as reports by a social worker, Ms J.
The hearing before Bell J lasted for a period of five days from 23 February to 27 February 2004. At that hearing both parties were represented by Counsel and the child was also separately represented. The child representative supported the father’s case for residence, but we note at this point, did not appear at the hearing of the appeal.
The hearing concluded on the afternoon of Friday, 27 February 2004, and on the following Monday (1 March 2004) his Honour delivered what can clearly be described as an extempore judgment. Although in his judgment, his Honour expressed some serious concerns about the mother, he ultimately decided that the child should continue to live with her, and accordingly he made the orders which are the subject of this appeal.

The issues raised on the appeal

The father’s notice of appeal contained 13 grounds of appeal. The first of those grounds claimed that his Honour had given insufficient reasons for his decision that the child should remain residing with the mother. Two other grounds (grounds four and eight) were also directed to his Honour’s reasoning.
Although Counsel for the father did not vigorously press the adequacy of reasons complaint before us, we consider it necessary to analyse in some depth the content and structure of his Honour’s reasons for judgment, which, as we have said, were delivered extempore, virtually immediately following the trial.
Such an analysis of the judgment will not only address the grounds of appeal directed to the adequacy of reasons, but also provide some background to our consideration of the other grounds of appeal, which allege his Honour failed either to have regard to certain maters, or to attach sufficient weight to other matters.

The trial Judge’s reasons for judgment

After outlining the historical background of the case in the first four paragraphs of his judgment (largely in the terms which we have adopted above), his Honour stated (paragraph 5) that as a result of the injuries which the child had sustained (in October 2001) “the father regrettably became over protective,” frequently taking the child “for examination by a GP”. His Honour recorded that those examinations “generally were negative” other than revealing bruising on the child below the knee and above the ankle.
Importantly, his Honour then recorded:
5.… These bruises are according to all the experts who were called, are bruises which one would expect a child of the age of the baby [M] to suffer during the vicissitudes of life, walking, falling and carrying on. However, one doctor did consider that there too many of these types of bruises. That was [Dr B].
His Honour then went on to record (in paragraph 6) that there were four other injuries to the child “which caused concern quite properly, to the father.”
The first of those injuries discussed by his Honour (paragraphs 6 to 7) was a bite mark on the child’s shoulder (which we understand to have been inflicted in about August 2002). His Honour recorded that the mother initially denied knowledge of the bite mark but later said she had bitten the child to stop her from biting other children and that this was something she perhaps learned from her mother or family. In this context his Honour made his first mention of the mother’s capacity to lie, which was a matter which he continued to emphasise throughout his judgment.
Again, importantly, his Honour noted (in paragraph 7) that Dr M (a psychiatrist) and Ms J (a social worker) had conceded that “this” (presumably the biting by the mother) “in itself is not of a serious nature”. However, his Honour went on to express his view that to bite a child with such force that marks were left was “totally inappropriate” and was “of concern” to him.
His Honour then (in paragraphs 8 to 10) returned to the issue of the mother’s lying, particularly in Court proceedings. His Honour focused on the incident in October 2001 when the child had been injured, and in relation to which the mother had initially given affidavit evidence that the injuries have been caused by her hitting the child at the instigation of her then partner, Mr N. However the mother subsequently in about October 2003 changed her evidence, maintaining that it was Mr N who had in fact hit and injured the child.
In this context his Honour commented (in paragraph 9) that having seen and heard Mr N in the witness box, he had concluded that “he was the perpetrator of the assault on the child.” His Honour then continued:
9.… But as was said by [Dr M] and as been said by the child representative, that really it is immaterial as to who did the assault upon the child because either way it shows that the mother was not looking after the welfare of the child. If she was not the assaulter then she should have protected the child. If she was the assaulter she should not have done it.
Then having referred to the fact that it was the father’s case that the mother was a liar, his Honour went on to say (in paragraph 10) “... the only thing I can find is that she is a liar, and it doesn't particularly matter.” His Honour went on to explain that latter observation in the following way:
10.… In the long run it does, and it matters tremendously to [M]. It doesn't particularly matter who assaulted the child, for the specific purposes of which I am referring. I do not for one moment suggest that a child being assaulted is not an important matter, it is.
It will be seen that His Honour again here expressed the importance of the issue of the assault on the child.
At that point in his judgment (paragraph 11), his Honour explained the basis of the father’s case for residence of the child, being his concerns about some sexualised play on the part of the child, and his concerns for the safety of the child if she remained with the mother given the father’s “general knowledge of [the mother’s] rages and changes of mood,” and the assault in October 2001 and the bite (which as we have indicated was in about August 2002) .
His Honour then returned (paragraph 12) to detail the remaining three of the four injuries which he had previously referred to, being bruises behind the knee, on the forehead, and right groin. He did not state the dates when that bruising was observed but he did state that there was an explanation for the bruises on the forehead although he did not elaborate on what that explanation was. Then in relation to the other bruises his Honour said:
13.There is no explanation as to the groin or the back of the knee, but [Dr R] conceded that in fact he was not an expert in the field of scan or child abuse, that it is equivocal in effect. It could be brought about by an overt act or accidentally, albeit he says that the bruise behind the knee is not a normal position for accidental injuries to take place, but he conceded it could not in effect be considered to be symptomatic of abuse.
14.[Dr B], I think it was on one occasion, I think I touched on this said that she thought there were too many bruises for a child. That is all. ..
His Honour then turned (in paragraph 14) to the issue of the sexualised conduct of the child which the father had videoed. His Honour recorded that all of the experts who had been asked about this conduct exhibited by the child, had agreed that she was “copying... having observed the sexual act.”
His Honour explained (in paragraph 15) that the father blamed the mother and Mr N in this regard. But his Honour also noted that when the child had been on contact with the father, he had been living with another couple, and he effectively concluded that he could not take the matter any further. However he also noted (in paragraph 15) that “the child’s sexualised conduct has tended to diminish in recent months.”
His Honour then embarked on a relatively detailed account of the mother’s problems (paragraphs 16 to 22). He referred first to the notes of the mother’s doctor, Dr L (which his Honour recorded had come into evidence over the objections of the mother’s Counsel), and commented that there “were some concerns in there for me.”
His Honour’s concerns as he elaborated them were that, on at least two occasions, the mother had indicated that she was having difficulty in parenting M and that she mentioned difficulty in controlling her rages and mood swings.
His Honour then explained (in paragraph 17) how in about August 2003, the mother had commenced counselling with a counsellor of 18 years’ experience, Miss M. His Honour then recorded Miss M’s evidence in the following terms:
18.She says that the mother was a good patient, if I can put it that way. She accepted the therapy and notwithstanding the fact that she was of the opinion that it would be advisable for the mother to have some form of psychiatric care or something of that nature, she subsequently determined that it was unnecessary and that the mother had, as far as she is concerned, gone a long way to overcoming what have been difficult time for her.
At this point (paragraph 19) his Honour referred to the mother’s history of relationships with three allegedly abusive males, including Mr N. His Honour went on (in paragraph 20) to make a number of very adverse findings against Mr N, including that he was a liar, and that he had perpetrated the assault on the child (being the assault of October 2001). However his Honour also noted (in paragraph 21) that Mr N (who had been called as a witness in the father’s case) had corroborated the evidence of the father in relation to the mother’s mood swings and rages.
His Honour then referred to two specific episodes being “the teeth in the thigh episode” and the “hi-fi episode” (which had, it can be assumed, been the subject of some focus during the trial), and he said that he would order the mother to attend an anger management course. He then proceeded to make a finding that there had been “enormous pressure” on the mother over the last two and half to three years and that this would “tend to exacerbate which (sic-semble “what”) may be a potential weakness in her personality.”
His Honour then concluded (in paragraph 22) that “[o]ther than for that, the mother has done a reasonably good job with [M].” It can be assumed that the “that” referred to the mother’s rages and mood swings.
His Honour then turned his attention to the father (in paragraph 22 to 24). He first expressed the view that the father had “gone off the rails”, and went on to explain how the father’s sister, a journalist, had apparently been responsible for a newspaper article alleging that the mother was a cruel mother.
Next his Honour expressed the view (in paragraph 23) that the father had “over-compensated for his love for [M]” and had “gone out of his way to ensure that she is protected.” His Honour then observed that “any proper father would do that”, but he went on to say (in paragraph 24) that the father had “gone too far”, saying:
24.But it is the extent that the father has gone to. He has gone too far. Virtually every time for a period of some five or six months, every time [M] came on contact he would whiz her off to a GP. That in itself is not good for the child. He has, understandably, endeavoured to over-protect the child to such an extent that it could quite easily be said that he has inculcated in her a feeling of unsafeness in her own mother's house. …
His Honour then referred to his concerns regarding the mother:
25.The mother deserves little confidence in being able to control herself in the future. She has lied to this Court. She has lied to her own mother and she has perpetrated that lie for a period of two years before she decided to tell the truth. If it is the truth. She still takes marijuana. …
But, having digressed to refer to the dangers of marijuana, his Honour then said that he did not believe that it was “a great destabilising factor in the mother’s life.”
His Honour recorded next (in paragraph 27) that the psychiatrist Dr M was of the opinion that neither parent “really had any psychiatric illness”, but that the mother had “a tendency to form relationships with abusive and rejecting males.”
Again in this context his Honour referred (in paragraph 28) to the fact that the mother had lied to protect Mr N. His Honour also referred to the mother’s breach of an undertaking given to the Court that she would not have Mr N living with her. Importantly, however, his Honour also noted that the relationship between the mother and Mr N had finished in about October 2003.
His Honour then referred to the opinion of Dr M that “there is an unacceptable risk of injury to [M] by the mother.” Then in an apparent endeavour to explain the basis of Dr M’s opinion of “an unacceptable risk” his Honour said:
30.… because… it is zero tolerance. That on one occasion she was involved by either not doing anything, or doing something in a physical attack upon her child of some severity, and she believes that that and the fact that she is a vulnerable personality with abusive men that she would not accept the risk. That it is unacceptable.
His Honour then rejected Dr M’s opinion apparently relying to some extent on the submissions of Dr Sayers, who was Counsel for the child representative, saying:
31.I think [Dr M] is being overly hard there. I think the one strike and you’re out is just a little bit too tough. There must be more than that as was pointed out by Dr Sayers and he does point to what [Dr M] mentioned is that she has to show a lot more to convince the Court that she will not get involved in another abusive relationship in which the child may be at risk and which she might lie to protect the perpetrator of the abuse. I think there is much in that. It is a concern.
Having made a comment that the mother is probably “a wonderful actress” – a comment which appears to relate to the mother’s involvement in acting – his Honour recorded (in paragraph 32) that the mother had convinced most of the experts that her remorse was genuine – although he appeared to question the subject of that remorse. However, in the following paragraph (paragraph 33) he expressed his belief that the mother’s remorse was probably genuine “in that she realised that she didn’t do enough to protect her child”.
In the same paragraph as he stated that belief, his Honour also stated his conclusion that the child should remain with the mother, who his Honour considered had, since 2001, “done reasonably well”. In this paragraph (paragraph 33) his Honour also again expressed the view that the father had done everything “too right” and had done “too much”. This might well be regarded as the pivotal paragraph of his Honour’s judgment and we will therefore quote it in full:
33.This is going to seem terribly unfair to the father. The child is going to remain with the mother. He has done everything right, except he has done it too right. He has done it too much. He has inculcated into the child that feeling that it may not be safe in the mother's residence. He said well why not, because she wasn't safe in 2001. But I believe that the mother since then, her remorse probably is genuine in that she realised that she didn't do enough to protect her child and since then I think that she has done reasonably well.
In the next paragraph of his judgment (paragraph 34), his Honour found that the child has “a close relationship with both” the parents. But he also found that she was “much more closely bonded with the mother” with whom she had been since birth (apart of course for the three months at the end of 2001). His Honour also found that the father had “been perhaps tardy in any maintenance assistance for the child.”

Having then again (in paragraph 35) expressed the view that the father had gone “too far” in his efforts to protect his daughter, his Honour in the penultimate paragraph of his judgment (paragraph 36) said that not only as “a direct result” of the father’s having gone too far in his efforts to protect the child, but also of “all the other matters that [he had] referred to in taking into consideration those particulars in s 68F,” he would order that the child reside with the mother.
It is clear from the final sentence of that penultimate paragraph that his Honour well understood that he had reached a decision contrary to that which had been urged upon him by the child representative.

The adequacy of the reasons overall

It was established by the decision of the Full Court of this Court in Bennett (1991) FLC 92-191 that reasons for judgment in a case concerning the future living arrangements for a child or children, will not be adequate if the Appeal Court is unable to ascertain the reasoning upon which the decision is based.
In the present case we are able to ascertain, as we consider our above analysis of his Honour’s judgment should demonstrate, that although his Honour had great concerns regarding:
(a)an incident in about August 2002 in the past whereby the mother had injured the child by biting her, and an earlier incident in October 2001 in which the mother had either herself severely bruised the child by hitting her or failed to protect the child from being so injured by Mr N;
(b)the mother’s history of lying, particularly to Courts;
(c)her capacity for anger and mood swings; and
(d)her history of involvement in abusive relationships,
he nevertheless concluded that the mother was genuinely remorseful for her past failings in relation to the safety of the child, and that, apart from the above-mentioned concerns, she had done “a reasonably good job” with the child.
His Honour also concluded that while the child had a good relationship with both parents, she was more closely bonded to the mother, with whom she had lived for virtually all of the four years of her life (save, it would seem, for the three months following the incident in October 2001).
So far as the father was concerned, his Honour concluded that he had been over-protective of the child to the extent that the child had become insecure with the mother.
The overall path of his Honour’s reasoning which led him to conclude that the child should remain living with the mother can, so far as this appeal Court is concerned, be readily ascertained. Thus ground one which asserts an overall insufficiency of reasons for the decision has not been established.

Other grounds relating to reasons

The first of the two grounds of appeal which are directed to specific aspects of his Honour’s reasoning is ground four, in which it is asserted that his Honour’s finding that the wife’s former partner, Mr N, had injured the child was not based “upon any discernible reasoning process”, and “in any event could not have been open upon his Honour’s other observations about the unreliability of the mother.”
As we understand the situation, the mother had in about October 2003 changed her evidence about the October 2001 assault on the child to say that it had been committed by Mr N. Under cross-examination by the mother’s Counsel before his Honour, Mr N denied having ever hit the child (see Transcript 25/02/04 at 338 and 340). His Honour of course had the benefit of seeing and hearing that cross-examination, and was clearly entitled to reach the conclusion (in paragraph 9 of his judgment) that Mr N had assaulted the child.
Before us, Counsel for the father submitted that, notwithstanding the advantage which his Honour had of seeing and hearing Mr N in the witness box, he was not entitled to find that Mr N had assaulted the child given that Mr N had never changed his version of the events in question and also given that his Honour was prepared to accept Mr N’s evidence in relation to another matter (being the mother’s fits of rage). We do not accept that submission.
It is open to a trial Judge to accept a witness on one matter, but not on another. It is also open to a trial Judge to refuse to accept a witness’ version of events in circumstances where the witness has never changed that version of events, and/or where that witness’ evidence is contrary to the evidence of another witness, who has been found to be unreliable.
As his Honour expressly said (in paragraph 9) he had “seen” and “heard” Mr N in the witness box and formed the conclusion that Mr N was the perpetrator of the assault on the child. We do not consider that his Honour was required to provide any further “discernible reasoning process” (as is asserted by ground four) for this conclusion.
The second ground of appeal which is directed to a specific aspect of his Honour’s reasoning is ground eight which is in the following terms:
8.There is a significant non sequitur in his Honour’s reasons, between his findings in paragraph 25 of the judgment (“the mother deserves little confidence in being able to control herself in the future. She has lied to this Court...”) and paragraph 33 “... but I believe that the mother since then, her remorse probably is genuine and that she realised that she didn’t do enough to protect her child and since then I think that she has done reasonably well”.
It was submitted by Counsel for the father in his written submissions that in the passage in question in paragraph 25, his Honour is referring to all aspects of the mother’s behaviour; that is, not only her capacity to lie but also her capacity for anger. This reading of the passage in question from his Honour’s judgment could well be correct. But we do not see this interpretation as necessarily inconsistent with what his Honour later said in paragraph 33 concerning the mother’s remorse about the fact that she had not previously done enough to protect the child being genuine.
We take this view because all of the concerns, which his Honour would have had in mind in paragraph 25 of his judgment, would ultimately relate to protecting the safety of the child. The passage in question in paragraph 33 indicates that his Honour had concluded that the mother would be likely in the future to endeavour to protect the child.
We are not persuaded that the “non sequitur” alleged in ground eight exists. There are, however, other matters raised in the written submissions in support of ground eight which appear to relate to his Honour’s treatment of the evidence of Dr M. We will consider those matters in the context of the next grounds to be addressed.

Matters allegedly not taken into account by the trial Judge

We come then to the grounds of appeal which allege that his Honour did not take into account certain matters in reaching his decision.
Ground two is concerned with the evidence of Dr M and is in the following terms:
2.His Honour did not take into account the evidence of [Dr M] to the effect that the child was at risk, other than by saying that the doctor was being “overly hard there”. If this is a rejection of the evidence of [Dr M], then no reasons are given for its rejection. If [Dr M’s] evidence has not been rejected, then no reasons are given for it not being taken properly into account.
Ground twelve would seem to be related to ground two as it also touches upon the evidence of Dr M. It asserts that “[o]verall, there was nothing in his Honour’s reasons to indicate that the child was no longer at risk (as [Dr M] said she was).”
It should be explained at the outset of this discussion that Dr M is a psychiatrist of many years’ experience who was engaged, apparently by the child representative, to prepare a psychiatric assessment of both parents. After conducting interviews of about an hour’s duration each with each of the parents and with each parent and the child in June 2003, Dr M prepared a report dated 7 July 2003. Dr M also gave extensive oral evidence at the trial (see Transcript 26/02/04 at 390-431).
It is also useful at the outset to recall that there were parts of Dr M’s evidence on which his Honour did in fact rely. Those parts are to be found:
·in paragraph 9 of his judgment where his Honour adopted the doctor’s view that it was immaterial whether the mother had committed the assault on the child or not protected the child from the assault (see paragraph 21 above); and
·in paragraph 27 of his judgment where his Honour clearly accepted Dr M’s opinion that neither parent had any psychiatric illness, but that the mother had a tendency to form relationships with abusive and rejecting males (see paragraph 38 above).
Turning then to the complaint that his Honour did not take into account Dr M’s opinion that the child was at risk, it is clear from paragraph 30 of his judgment (which we have earlier quoted in part but will here set out in full) that his Honour was well aware of Dr M’s opinion that the mother presented an unacceptable risk of injury to the child:
30.[Dr M] is very concerned about this case as is (sic) all the experts and everybody. She is of the opinion that there is an unacceptable risk of injury to [M] by the mother because, and I am afraid that I must in a way agree with part of Dr Sayers' submissions that it is zero tolerance. That on one occasion she was involved by either not doing anything, or doing something in a physical attack upon her child of some severity, and she believes that that and the fact that she is a vulnerable personality with abusive men that she would not accept the risk. That it is unacceptable.
It is equally clear in our view that his Honour then went on to reject Dr M’s opinion on this point of the mother posing an unacceptable risk of injury to the child. He did so because he thought that Dr M was “being overly hard there” and that “the one strike and you’re out is just a little bit too tough.”
It might be said that his Honour was mistaken when he referred to “one strike”, since more than one strike could be attributed to the mother given the biting incident in August 2002 and the incident in October 2001. Further there can be little doubt that minds would certainly differ as to whether Dr M’s opinion on this matter was “overly hard”. But his Honour was of course not required to accept the doctor’s evidence, and he indicated his reasons for not accepting her opinion on this particular matter.
While we may have some concerns regarding his Honour’s rejection of Dr M’s opinion of an unacceptable risk to the child, it is also necessary to have regard to the following evidence from Dr M which illustrates the risks which would also be involved in removing the child from the mother and also the very difficult balancing exercise which his Honour had to undertake (Transcript 26/02/04 at 429-431):
[COUNSEL FOR THE MOTHER]: Yes. You understand that the child was in the father’s care for some five weeks after the October 2001 incident? --- Yes.
Now, for the first three weeks of that five weeks, despite the father’s asserting that he had the capacity to take the child to contact in Noosa, he didn’t do so: does that give you some concerns about the father’s understanding of the primary nature of that bond? --- I think it would have certainly been better for the child if she had seen her mother during that period, and the father’s lack of understanding of that is a negative.
The father, again in about August 2003, puts events in train which leave the mother to place the child in care so as to protect her from the consequences of the father’s action. Once again is that likely to heighten the child’s anxiety? --- Yes.
Is it likely to be an explanation for the reasonably high level of separation anxiety that [Ms J] observed? --- Yes.
Is it not the case that if there is a significant change in the child’s care at this stage that will build upon those two previous separations and seriously attack the integrity of that mother/child bond? --- Yes.
Is that not probably one of the gravest harms that the child could experience? --- Yes.
Is that not the kind of harm that has to be weighed against the risks to the child of further physical abuse in the context of one serious abuse occurring over two years ago and the bite occurring about eight months after that? --- Yes.
Is that the balance? --- Yes.
…
HIS HONOUR: I suppose what we’re getting down to is the least detrimental alternative? --- Yes, you Honour.
This evidence well illustrates that any decision made by his Honour about the child’s future living arrangements would involve a difficult balancing of risks.
We conclude that there is not sufficient substance in either ground eight or ground 12 or in any of the complaints contained in the submissions made on behalf of the father in relation to his Honour’s approach to Dr M’s evidence, which would justify our interference with his decision.
Our conclusion that we would not be justified in interfering with his Honour’s decision because he did not accept and act upon Dr M’s opinion is supported by the following evidence given by the social worker, Ms J, concerning the placement of the child (Transcript 27/02/04 at 467-468 and 473-475):
[COUNSEL FOR THE CHILD REPRESENTATIVE]:… I was then going to move on to the issue – is the father’s household if she were to be there and is it fair to say it’s basically the – concerns about her ongoing emotional abuse that are your principal concerns if she was to be with the father? --- [MS J] That’s right. I have no concerns in the father’s household about physical abuse at all. I – I think that the problem with the father has been that he has not been able to draw distinctions anywhere along this – this process between what is his – his anger at the mother or events that have happened, or perhaps that pertain to earlier events in his own life that he projects on to her, no matter which way. He doesn’t draw a distinction between his personal issues and his concerns about the child’s safety. And – and I hear the argument and I – that – you know if he had – having seen the extensiveness of the child’s bruises in October 2001, that – that that would have been a very shocking experience for him and traumatic and would have made him overly vigilant. I hear that argument, and it would be ungenerous not to give him some extra leeway for having overreacted. But it went on and it went on. And it seems to me that after two years, you can’t – you can no longer apply that argument validly.
…
[COUNSEL FOR THE MOTHER:] Would it be fair to say that if at the end of the day all his Honour has to go on is that initial October 2001 incident, the bite which is explained as being part of a parenting practice, and a couple of other very equivocal possible bruises, but bruises which could easily occur in the course of normal childhood play, there’s not enough there to risk the loss to [M] of her primary attachment and the security of that primary attachment? Would that be your position? --- If that’s all there is, then that’s my position.
…
[COUNSEL FOR THE FATHER]: You know [Dr M], don’t you? --- Indeed I do.
Yes. She is, could I say, a colleague of yours? --- She is.
Though you occupy separate professions they are parallel? --- They are closely intertwined.
Yes. And you have worked with her on many occasions? --- I’ve worked with her since 1976.
All right. I’ll take that as a “yes” then. All right. And she is a person in whose professional judgment you place great faith? --- I do.
Now, she’s told the Court that in her opinion the child is at risk in her mother’s care. I take it that you would not wish to dissent from that view? --- Well, I suppose if you put it in a black and white term and not degrees, then ---
I’m quoting her? --- I can’t – I can’t dispute the fact that there is a risk for the child in the mother’s household.
HIS HONOUR: [Dr M] did on a second occasion say that the risk was unacceptable? --- Yes.
First of all she said the child was at risk.
[COUNSEL FOR THE FATHER]: Yes.
HIS HONOUR: And at a later stage she said that the risk was unacceptable.
[COUNSEL FOR THE FATHER]: And can I add this? She also said to the Court that most agencies would consider the child to be at significant risk.
…
[MS J]: Yes. Well, I certainly don’t take as – as strong a position as that.
The second complaint alleging that the trial Judge has failed to have regard to a particular matter is contained in ground nine where it is asserted that he “ignored the fact, regardless of the identity of the abusers of [M], that the mother had failed to protect [M]”.
We have some difficulty understanding this complaint. In our view whatever other criticisms might be made of his Honour’s reasons, it must be conceded on any fair reading of them, that one of the matters which received the most emphasis in his judgment was the mother’s failure to protect M from Mr N whom his Honour found to be the perpetrator of the abuse in 2001. We need only refer in this regard to the passages quoted earlier from paragraphs 9, 10 and 33 of his reasons. (See paragraphs 20, 21 and 43 above.)
To be fair to the appellant father, however, it may be that this ground is not drafted as clearly as it might have been. We say this because, in the written submissions in support of the ground, the emphasis is on a claim that his Honour had overlooked the fact that at an early stage when the mother was claiming that she was the perpetrator of the abuse in 2001, she had also apparently expressed remorse for such abuse.
Again we do not think that it can be said that his Honour was not well aware of the mother’s change of story (see paragraph 8 of his judgment) and also of the possibility that the exact subject of her remorse may have been difficult to define. We refer in this regard to paragraph 32 where relevantly for present purposes his Honour said:
32.She probably is a wonderful actress. … She convinced most of the experts including [Ms J], if I remember correctly, that her remorse was genuine. Well I am not quite sure what the remorse was for, whether it was remorse for being not found out, being found out, or the remorse of allowing her child to be beaten by a bully. …
It has to be acknowledged that these statements made by his Honour do not seem at least at first glance to be entirely consistent with the comments made in the immediately following paragraph:
33.… But I believe that the mother since then, her remorse probably is genuine in that she realised that she didn't do enough to protect her child and since then I think that she has done reasonably well.
However on close consideration of these paragraphs and of the relevant evidence, we are satisfied that in paragraph 32 his Honour was referring to the very point which Counsel has emphasised in his submissions in support of ground nine, being that the mother had previously convinced the experts of her remorse at having herself inflicted the injuries on the child. The comments made by his Honour in paragraph 33 were, we are reasonably satisfied, made by his Honour in light of his own observations of the mother giving her evidence before him.
We therefore conclude that ground nine has no substance.

The complaints concerning the weight given to certain matters

All the remaining grounds of appeal (save for ground 13 which we will address in our conclusion) assert that his Honour has failed to properly take into account, or has given insufficient or no weight to, certain matters. Those matters are:
·that the mother has lied comprehensively on oath (ground three);
·the history of the presentation of the child with bruising (ground five);
·the mother’s now admitted evidence that she had bitten the child (ground six);
·the video evidence of the child mimicking sexual intercourse “when such must have arisen, on the balance of probabilities, from observations made in the mother’s household” (ground seven);
·the fact of the mother’s later presentation to her general practitioners, and an admission she made that she was having difficulty managing her child (ground ten); and
·the evidence of the mother and of Dr L’s notes that the mother had made suicide attempts (ground 11).

Before we consider each of those matters, it is important to emphasise that the capacity of an appellate court to interfere with a discretionary judgment (such as the present) is very limited. This limitation is explained in the following passage from the judgement of Stephen J in Gronow (1979) FLC 90-716 (at 78,848-78,849):
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
In relation to the matter of the mother’s lying under oath (ground three) it was submitted on behalf of the appellant that, because of the history of such lies, the trial Judge should have concluded that he could not know what version of events was correct and therefore should have acted conservatively in the child’s interests.
His Honour was well aware of the mother’s past lying. As we said in our analysis of his Honour’s reasons, it was a matter which he constantly emphasised. However we do not think it can be said that his Honour was precluded from making his own assessment of the voracity of the mother’s evidence given before him because of her past untruthfulness. It must also be remembered that in accepting the mother’s latest version of the assault of 2001, his Honour had the advantage, having seen and heard Mr N, of being able to conclude that Mr N was the perpetrator of that assault.
We are therefore not satisfied that his Honour did not properly take into account the mother’s past lying as is asserted by ground three.
As to the weight which his Honour attached to the history of the presentation of the child with bruising (ground five), his Honour referred to this matter in the following paragraphs of his judgment (parts of which we have earlier quoted, but here repeat):
5.As a direct result of these injuries sustained by the child, the father regrettably became over protective. He on frequent occasions, I think it was suggested on 22 occasions, he took the child for examination by a GP. The examinations generally were negative, other than the child exhibited signs of bruising, particularly below as what is referred to as pre-tibial. Below the knee and above the ankle. These bruises are according to all the experts who were called, are bruises which one would expect a child of the age of the baby [M] to suffer during the vicissitudes of life, walking, falling and carrying on. However, one doctor did consider that there too many of these types of bruises. That was [Dr B].
…
12.I had foreshadowed that there other injuries and these I think are three in number. One, there was a bruise behind the knee. One there was a bruise on either side of the forehead and the third one was the right groin. All of these could perhaps be said to be occasioned by overt acts on the part of the mother or our splendid [Mr N], or it could be accidental. There was an explanation for the bruises on the forehead. On the side of the temple I think it was, more than anything.
13.There is no explanation as to the groin or the back of the knee, but [Dr R] conceded that in fact he was not an expert in the field of scan or child abuse, that it is equivocal in effect. It could be brought about by an overt act or accidentally, albeit he says that the bruise behind the knee is not a normal position for accidental injuries to take place, but he conceded it could not in effect be considered to be symptomatic of abuse.
14.[Dr B], I think it was on one occasion, I think I touched on this said that she thought there were too many bruises for a child. That is all. …
The submissions made on behalf of the appellant father in relation to this matter were to the effect that, given that his Honour found that the child had been injured when in the mother’s household by Mr N and given Dr B’s opinion that the child had presented with too many bruises, his Honour was bound to act in the interests of the child’s safety.
Although his Honour referred twice in his judgment (paragraphs 5 and 14) to the fact that Dr B has expressed the opinion that there were “too many bruises” on the child, he did not expressly explain why it was that this evidence did not cause him to change the child’s residence arrangements. This is a matter of some concern to us. But given that Dr B’s last observations of the bruising were apparently made in November 2002 and given the difficult balancing exercise which his Honour had to undertake (as we discussed in connection with Dr M’s evidence), we are not satisfied that our interference with his Honour’s decision, on the basis of the weight that he apparently attached to the opinion of Dr B in relation to the bruising which the child had exhibited, would be warranted.
In relation to the mother’s eventual admission that she had bitten the child (ground six), it was submitted on behalf of the father that this was also a matter which should have led his Honour to conclude that there was a risk that the child was physically unsafe in the mother’s care.
It is clear from what his Honour said in paragraphs 6 and 7 of his judgment that he was very concerned about these matters – indeed it would seem that he may well have been more concerned than the experts, Dr M and Ms J – and we therefore set out in full paragraphs 6 and 7 of his judgment:
6.There were four other injuries that the child suffered which caused concern quite properly, to the father. And one is a bite mark which was on the shoulder of the child. The mother initially, as is her want and I will be touching on that further along, denied having any knowledge of this bite mark. In fact, denied even seeing it. At a subsequent stage, and I will touch upon the more serious lies that she has perpetrated upon this Court, said that she bit the child in order to stop it from biting other children and that this was something which she had perhaps learnt from the feat of her mother, or in her family.
7.It has been conceded by [Dr M] and [Ms J], the Court reporter, a psychologist, that in fact this in itself is not of a serious nature. It is inappropriate, totally inappropriate, but it is not of a serious nature. I myself consider that biting of a child with such force, and I emphasise it is a question of degree, to leave a bite mark upon the shoulder is totally inappropriate and should never happen to any child. A smaller bite on perhaps a finger or something like that may not have. But if there is sufficient force applied to that child to leave bite marks it is of concern to me.
In view of the concerns which his Honour expressed in these paragraphs concerning the mother’s having bitten the child, it cannot be said that his Honour in any way under estimated the seriousness of this matter or would have failed to weigh it with all his other concerns about both parents when he reached his ultimate decision.
In relation to the sexualised behaviour of the child (ground seven) his Honour discussed this matter in the following paragraphs of his judgment:
14.… The sexualised conduct that was videoed by the father in his hypersensitive fashion. It was put to several experts, all of whom agree that what [M] was exhibiting was copying of her having observed the sexual act.
15.The father points the finger at the mother and [Mr N] for this, once again it is equivocal. This is a great problem in cases such as this when children are of such young ages. He himself had possession of the child for contact periods when he was living with another couple. I don't know whether they were married or not, but they were a couple. It could have been the child saw it there, it could have been the child saw it with [the mother] and [Mr N]. Unfortunately that is about as far as it would go. Fortunately and this is where the father shows his honestly, the child's sexualised conduct has tendered to diminish in recent months and we would expect it to hopefully disappear.
It is true, as was submitted on behalf of the father, that this was a matter of serious concern to Dr M. However in circumstances where his Honour was able to find – apparently on the basis of the father’s own evidence – that the conduct was apparently diminishing, his Honour was entitled to give this matter the limited weight which he apparently did. It is important to point out in connection with this matter that there was no challenge before us to the finding that the conduct had tended to diminish in the months prior to the trial.
In relation to the complaint in ground 10 that his Honour failed to give proper weight “to the fact of the mother’s later presentation to her general practitioner,” and an admission that she was having difficulty managing the child, his Honour addressed these matters in the following way:
16.The mother has been attending a [Dr L] for some considerable time. The report, or the notes, of [Dr L] were put before me over the objection of Mr Hamwood for the mother. There were some concerns in there for me. On at least two occasions, the mother indicates that she was having difficulty in parenting [M]. One was in the early stages in 2002, I think it was. And then she mentions difficulty in controlling her rages. I think she says she flips out on at least one occasion, and as late as September of last year she was still saying that she was having trouble with rages and mood swings.
17.I refer to September in particular because around about August, I think it was, she came into the hands of a [Miss M], who is a counsellor, has had some 18 years experience in counselling and she counselled the mother. At one stage I think it was twice a week and then dropped off to once a week, a total of something like 30 hours.
18.She says that the mother was a good patient, if I can put it that way. She accepted the therapy and notwithstanding the fact that she was of the opinion that it would be advisable for the mother to have some form of psychiatric care or something of that nature, she subsequently determined that it was unnecessary and that the mother had, as far as she is concerned, gone a long way to overcoming what have been difficult time for her.
We assume that the reference to the “later presentation to the general practitioner” in ground 10 is a reference to the event referred to by his Honour in the last sentence of paragraph 16 when he said “... as late as September of last year she was still saying that she was having trouble with rages and mood swings.” We were not taken to evidence of any event which was said to have fulfilled the description of a “later presentation”.
We are not persuaded that his Honour did not give appropriate weight to the admissions that the mother made to her general practitioner about her capacity to cope with the child. It was obviously a matter of concern to his Honour, but he was also obviously able to find sufficient comfort about those concerns in the evidence of the mother’s counsellor, Miss M. In these circumstances there would be no justification for our interference with his Honour’s decision on the basis of the weight he attached to the mother’s presentation and admissions to her doctor.
The final ground relating to matters of weight is ground 11 which asserted that his Honour gave no weight to the evidence of the mother and to Dr L’s notes that the mother had made suicide attempts.
Certainly his Honour did not refer specifically in his judgment to any suicide attempt on the part of the mother. However the only submission made on behalf of the father which was apparently directed to this matter is the following written submission:
20.Again, the self-harming behaviour of the mother should have indicated to his Honour an unstable personality and a source of risk to [M].
While we would not want to downplay in any way the seriousness of self-harming behaviour on the part of a parent, both from the parent’s own perspective and the well-being of that parent’s children, it is, with respect, clear from his judgment that his Honour was well aware of the nature of the mother’s personality and the risks she might pose to the child. We do not consider that the conclusion ultimately reached in the judgment is likely to have been different, had specific reference been made to the evidence of the suicide attempt or attempts by the mother. It is to be noted that we were not taken to evidence of any such suicide attempt or attempts.

Final ground of appeal and conclusion

In his final ground of appeal (ground 13) the father asserts that, in circumstances where the mother had lied extensively on oath, and also to a Court counsellor and others, and where she had breached her undertaking not to reside with Mr N, “there was an imperative basis for placing the child in the father’s care.”
In expanding on this ground in his written submissions, Counsel for the father submitted that the mother’s history of deceptive behaviour did not permit the placing of any confidence in her that she would be able to protect the child from violence, be it committed by herself or her partner, or that notwithstanding her own anger and self-destructive behaviour she did not pose a risk to the child. Complaint is also made on behalf of the father that his Honour did not give proper consideration to the issues of risk and violence as he was required to do under s 68F(2)(g), (i) and (j) of the Family Law Act 1975.
These submissions overlook, with respect, the fact that in addition to the matters of risk and violence, there were other matters contained in s 68F(2) which his Honour was required to consider and did in fact consider; notably the child’s relationships and attachments and the demonstrated capacities of each parent as a parent. Again in this context, we draw attention to the passage of transcript quoted earlier from the oral evidence of Dr M and Ms J. As we had earlier said, these passages show the difficult task which his Honour faced in this case. It was clearly a case – indeed like many parenting cases – where there was no inherently right answer. Another Judge may well have reached a different conclusion to his Honour. But that does not establish that his Honour was wrong. Nothing has otherwise been put to us to establish that his discretion miscarried in a way which would justify our intervention within established principle.
However given the submissions which were made to us on behalf of the father, we think it is important to make the following observations.
While it would have been preferable for his Honour’s judgment to have addressed more directly the matters required to be addressed under s 68F(2) of the Act, it has not been shown that any of those matters which have relevance to this case were not addressed. Clearly, the child’s relationships with both parents, and some of their respective capacities as parents – in particular their capacities to protect or to over-protect the child – were addressed by his Honour. The absence of any further analysis of the parties’ respective parenting capacities may be explained by their not having been brought into question at trial. (See in this regard the child representative’s submissions at trial at paragraph 23.)
It would also have been preferable for his Honour to explain more fully the opinions of, and differences between, each of the professional or expert witnesses and indicate a little more fully why he was accepting or rejecting a particular opinion.
However, those comments having been made, it has to be said that his Honour’s judgment was in many ways an insightful and sensitive judgment, in which he clearly appreciated the weaknesses of both parties. It could well be said that the mother’s weaknesses were far greater than those of the father, but his Honour had to balance that fact against the fact that the child had lived with the mother for most of her life, that she was more closely bonded to the mother, and that his Honour was able to make a finding, unchallenged before us, that she had done “a good job” with the child.
Accordingly, we propose to dismiss the appeal.

Costs

Although the mother sought costs in the event that the appeal was dismissed, we do not consider that the circumstances warrant the making of a costs order in this case.

Orders

That the appeal be dismissed.
That there be no order for costs in relation to the appeal.

I certify that the preceding 107 paragraphs are a true copy of the reasons for judgment of this Honourable Full Court

Associate

[2005] FamCA 989

20 October 2005

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