J v J
[2011] WASCA 126
•8 JUNE 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: J -v- J [2011] WASCA 126
CORAM: PULLIN JA
BUSS JA
HALL J
HEARD: 16 MARCH 2011
DELIVERED : 8 JUNE 2011
FILE NO/S: CACV 44 of 2010
BETWEEN: J
Appellant
AND
J
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram :MARTIN J
Citation :[J] and [J] [2010] FCWA 44
File No :PTW 1430 of 1999
Catchwords:
Family law - Application to vary parenting order - Supervised contact between father and child - Whether primary judge made any errors of fact or law in making the variation to the parenting order and refusing to make other variations - Turns on own facts
Legislation:
Family Court of Western Australia Act 1997 (WA)
Result:
Application for an extension of time to appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr R I M Bannerman
Solicitors:
Appellant: In person
Respondent: Bannerman Solicitors
Case(s) referred to in judgment(s):
[J] and [J] [2006] FCWA 52
[J] and [J] [2010] FCWA 44
Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430
Bennett v Carruthers [2010] WASCA 131
Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513
House v The King [1936] HCA 40; (1936) 55 CLR 499
In the Marriage of Marsden and Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
In the Marriage of Rice and Asplund (1978) 6 Fam LR 570; (1979) FLC 90‑725
In Vitro Technologies Pty Ltd v Taylor [2011] QCA 44
Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
PULLIN JA: I agree with Buss JA.
BUSS JA: The appellant has applied to this court for an extension of time to appeal against a decision of Martin J made in the Family Court of Western Australia (the Family Court).
The appellant is the father and the respondent is the mother of a girl, S, born on 4 May 1999.
The decision in question related to competing applications by the appellant and the respondent for a variation of parenting orders concerning S that were made by her Honour on 28 October 2004, after a 10‑day hearing.
The primary judge heard the competing applications on 9 March 2010. On 9 April 2010, her Honour made new parenting orders and published reasons for making the new orders. See [J] and [J] [2010] FCWA 44.
The application for an extension of time to appeal
The last date for the appellant to appeal against the primary judge's decision was 30 April 2010. He did not file his appeal notice until 5 May 2010.
The applicable principles governing the exercise of this court's discretion to extend time are well‑known and need not be repeated.
The appellant's delay has been explained satisfactorily in his affidavit sworn 7 May 2010. The respondent would not suffer any relevant prejudice if an extension of time were to be granted. I will decide whether an extension should be granted or not after I have examined the merits of the proposed grounds of appeal.
The extensive and difficult background culminating in the parenting orders made by the primary judge on 28 October 2004
The extensive and difficult background culminating in the parenting orders made by the primary judge on 28 October 2004 is set out in her Honour's reasons for making those orders. The reasons were published on 26 May 2006: [J] and [J] [2006] FCWA 52, being about 19 months after the orders were made.
I have included passages from her Honour's reasons of 26 May 2006, which set out the relevant background, in the schedule to these reasons.
The parenting orders made on 28 October 2004
The parenting orders made on 28 October 2004 read:
1.The child, [S], born 4 May 1999, reside with the mother and she be responsible for her day-to-day and long term care, welfare and development.
2.Until further order, the father have no direct contact with the child.
3.The mother ensure that the child, [S], has direct physical contact with [her half-sister] [B] on at least two occasions per year.
4.The mother:-
(1)Provide to the child any presents, gifts, or letters from the father, but the mother have the right not to provide the item, or part of it, if she deems it inappropriate.
(2)Provide to the father a minimum of three photographs of the child each six months, and a brief summary of her activities and progress.
(3)Ensure the child has knowledge of her father, including provision of a photograph.
(4)Ensure the father is informed if the child requires hospitalisation or serious medical treatment.
5.Each party is to ensure the other is provided with a contact telephone number and contact address, and maintain a notice of address for service in the Family Court of Western Australia.
6.Until 30 April 2005, there be a misconduct restraining order restraining the father from approaching within:-
(i)100 metres of the child;
(ii)100 metres of any day care, kindergarten or school attended by the child;
(iii)attending within 100 metres of any property where the child is residing.
7.From 1 May 2005, the father be restrained by injunction from approaching within:-
(i)100 metres of the child;
(ii)100 metres of any day care, kindergarten or school attended by the child;
(iii)attending within 100 metres of any property where the child is residing.
8.(1) Until further order, the father be restrained from filing any application without prior leave of the Court.
(2)Any application seeking leave, if practicable, be listed in the first instance before the Honourable Justice Martin.
9.There be liberty to apply to members of the father's immediate family for contact orders.
10.The applications otherwise be dismissed. (emphasis added)
The background between 28 October 2004 and 9 March 2010
On 12 December 2005, the primary judge gave the appellant leave to file a contravention application. In the application, the appellant alleged that the respondent had contravened the parenting orders made on 28 October 2004 in that she had failed, without reasonable excuse, to ensure that S had direct physical contact with her half‑sister, [B], and had failed to provide the appellant with a summary of S's activity and progress. Eventually, on or shortly before 16 May 2006, the respondent pleaded guilty to the alleged contravention. No penalty was imposed on her.
On 16 May 2006, the primary judge made an order dismissing the contravention application. Her Honour also ordered that the parties 'file and serve a minute of proposed directions no less than seven days prior to 15 June 2006' and that 'the proceedings otherwise stand adjourned for further directions to 15 June 2006'.
On 28 July 2006, the primary judge ordered that Mr Stephen Cohen, a clinical psychologist, be appointed the 'single expert witness in these proceedings to conduct a review into this matter', and report on the following:
(a)the state of the [appellant's] mental health;
(b)whether the [appellant] is likely to comply with the reasonable recommendations of his doctor in relation to taking prescribed medication and/or attending therapy or counselling;
(c)the [appellant's] capacity to recognise and provide adequately for the physical, social and emotional needs of the child [S] … ('child');
(d)whether the child is at risk of abuse of any kind from the [appellant];
(e)the [appellant's] attitude to the role of the [respondent];
(f)the likely impact on the [respondent] should physical contact between the [appellant] and the child be ordered by the court;
(g)any recommendations considered appropriate in relation to contact between the child and the [appellant] and the manner in which this can best occur to minimise the impact on the child;
(h)in the event the single expert does not consider physical contact (including supervised contact) appropriate at this time, the reasons for those views and any recommendations on how contact between the child and the [appellant] should be progressed;
(i)any other matter which is considered relevant to the psychological, emotional or social well‑being of the child.
In a report dated 10 January 2007, Mr Cohen concluded:
1.[The appellant's] depression does not at this time represent a risk to the girls.
2.[The appellant's] capacity to self‑monitor and take appropriate steps to manage his depression when it exacerbates does represent a risk to the girls.
3.[The appellant] does not represent a risk of sexual abuse to the girls however his beliefs and actions are inappropriate given the microscope that he found himself under and the current milieu in regard to care of girls of [S] and [B's] age by a single father.
4.[The appellant] is not a risk of physical abuse to the children as no VRO's have ever been taken out by the mothers against him, the only one being a mutual Misconduct Restraining Order with [the respondent].
5.The major concern in this area is the amount of trust and difficulty that the mothers have been subject to because [of the appellant's] personality style. His obsession about matters, constant written material and an ongoing push for greater time with the girls places an enormous amount of pressure on the day to day care givers of the girls.
On 23 January 2007, the primary judge ordered that Mr Cohen be requested to provide a further report. In a further report dated 2 February 2007, Mr Cohen said:
After having written the initial report 9 January 2007, the recommendation would have been for supervised contact at Anglicare in [country town] possibly once every six weeks. However, given [the appellant's] subsequent letter and the way he revealed more about his obsessive, negativistic (non‑scientific) personality style, it is increasingly hard to justify re‑introducing the girls to their father.
His inability to perceive anything positive about the report is in line with and strengthens the recognition of the appropriateness of the beliefs of the mothers about his ability to accept anything without pushing further and further in whatever direction he desires, including greater access.
Physical contact should not take place until the girls have reached the age of 13 years. [The appellant] should be able to continue to write to the girls adhering closely to the advice of Justice Martin, keeping it positive, simple and as brief as possible.
On 27 February 2007, the primary judge ordered that each party file and serve any further documents on which he or she intended to rely, together with a minute of proposed orders sought, 10 days prior to a hearing which she scheduled for 11 April 2007. On 11 April 2007, the proposed hearing was adjourned to 17 July 2007. On 12 July 2007, the hearing date of 17 July 2007 was vacated and the proposed hearing adjourned to 7 September 2007.
In a report dated 27 August 2007, Dr Sid Srna, a psychiatrist, reported on the appellant. Dr Srna concluded that the appellant suffered from 'major depressive disorder recurrent type', with some features bordering on psychosis. Dr Srna also diagnosed the existence of obsessive compulsive narcissistic and antisocial traits. Dr Srna expressed these views:
Given the above described interplay of the depressive disorder and personality disorder and its impact on [the appellant's] behaviour and on his emotional state, and given his previously recorded transgressions of his parental role, I would be loath to recommend to grant him an unrestricted and unsupervised access to his two young daughters. Before any of this occurred, he should undergo an appropriate psychiatric treatment and management under an appropriate specialist supervision, including a re‑introduction of a daily dose of an antidepressant (and possibly of a suitable augmenting medication, eg a mood stabiliser), as well as to undergoing appropriate cognitive behavourial therapy in a structured setting. Once (and if) he responded to such treatment, a graduated access to his children would be the safest mode of re‑introducing him into the parental role. This should start from a fully supervised access and should progress to a less restrictive arrangement only under [the] supervision of a suitable professional with an experience in the relevant field. In this regard, I concur with Ms Cull's recommendations. Amongst other issues, the supervision should be focused on establishing appropriate boundaries and their continuous re‑enforcement in terms of [the appellant's] male parental role. It should also involve realistic planning in terms of time and personal resources management and put limits on how many roles and other engagements with other significant other minors. [The appellant] should take on and put limits on his tendency to engage in a role of a carer to his daughters only.
On 7 September 2007, the primary judge ordered that 'the proceedings stand adjourned generally'. Her Honour expressed the belief, in her reasons for decision relevant to the application before this court, that this occurred because the appellant accepted, as a result of Mr Cohen's and Dr Srna's reports, that it was 'pointless to proceed further at that stage' [21].
On 21 August 2008, the proceedings were relisted at the appellant's request. By then, the appellant had obtained and filed a report from Dr Danny Shub, a consultant psychiatrist. In a report dated 19 May 2008, Dr Shub said that he had seen the appellant on nine occasions. Dr Shub concluded:
•He does not believe there is any evidence to support the diagnosis of a personality disorder.
•[The appellant] has previously suffered from a depressive illness which is currently in remission and not requiring any medication at present.
•He does not believe that the [appellant] presents a threat to himself or others, and in particular he believed that he is capable of adequately parenting his children.
•He does not believe he poses any risk to his or other children.
•He strongly suggested that resolution occur as soon as possible and that if the Court deems necessary a graded supervision access arrangement be approved with a view to the [appellant] obtaining legal and adequate contact with his children, for example, five overnights per fortnight and half of the school holidays.
•In his view this arrangement would be in the best psychological interests of both the children and the [appellant].
On 21 August 2008, the primary judge made directions for the filing of further affidavit material with a view to there being a substantive hearing.
On 29 October 2008, the primary judge ordered that Mr Cohen be requested to prepare an updated report after he had interviewed the parties and S. Also, her Honour ordered that the appellant spend time with S under supervision at the [Family Centre], subject to any recommendations of Mr Cohen, including as to whether or not contact should occur.
The appellant and the respondent filed affidavits pursuant to the primary judge's order, but it is unnecessary, at this stage, to refer to any of their contents.
In a further report dated 15 December 2008, Mr Cohen noted that S had seen the appellant in December 2008. Mr Cohen reported:
At the second visit, after [S] had seen her father for about 10 minutes at Anglicare, she described him as very happy to see her. She spoke of being slightly anxious before seeing him but then actually not feeling anything after he left. She stated it was supposed to be an hour but they only talked for 10 minutes and she wasn't sure what had gone on, why it had been cut so short.
She was non‑committal about seeing him again. She stated seeing him had been quite stressful and she had been worried beforehand and a bit anxious. She could not identify anything specific for her to worry about. When asked if she would like to see [the appellant] again she stated she couldn't make up her mind, she was a bit frightened and scared of seeing him again but didn't know why.
Mr Cohen's recommendation, as at 15 December 2008, referred to S having diabetes. His recommendation reads:
[T]he child have no contact with the father for a two‑year period until her diabetes is settled. This is recommended for a number of reasons. There is certainly stress involved for [S] in seeing her father both directly and also the recognition of some degree of stress on the mother. There is a concern about the father's capacity to maintain appropriate guidelines in regard to the diabetes, both from the point of view of making the child have the required injections, ensuring appropriate diet and dealing with [S's] needs beyond his own needs when he has a petulant or depressive episode.
These orders were made by consent.
On 2 July 2009, the primary judge ordered that 'the matter be adjourned to a date to be set by the list judge, or included in the callover, for determination of the [appellant's] ongoing contact with [S], with an estimated hearing time of half a day'.
On 27 July 2009, Clinical Associate Professor Timothy Jones provided a report in relation to S's diabetes. He said that S's diabetes was 'currently reasonably stable', but the disease itself is inherently unstable.
On 25 August 2009, the primary judge ordered that a Family Court counsellor prepare and submit a report in relation to the current nature of S's relationship with her parents and other significant people, including her half‑sibling [B], and also any views S may express as to indirect contact and direct time to be spent with her father. The report of counsellor Refeld reads, relevantly:
Both parties discussed with the consultant the parental relationship and the boundaries that in the past appear to have been unclear. Both parties appear to love [S] very much. Considering specific time that the father and child spend together was not agreed upon today, it nonetheless appears to the Family Consultant, given the father's alleged preparedness to her diabetes and his willingness to incrementally increase time with [S], the Court may consider the possibility of time between the father and child to commence with 1 to 2 hour periods per fortnight, or even on a monthly basis. This would preferably take place between the child's regular insulin shots. The Court may wish to consider this time is initially at a supervisory centre, considering the lengthy period of time the father and child have not been together. The Family Consultant would anticipate the matter would need to be reviewed if and when this time was to increase, with a possibility to considering gathering the views of the child.
On 21 October 2009, the primary judge ordered that, until further order, the appellant have two hours MSN contact with S each weekend from 10.30 am and, if practicable, with video camera link. Her Honour also ordered that 'the proceedings stand adjourned' to 15 December 2009 at not before 9.15 am.
On 15 December 2009, the primary judge ordered that the appellant's MSN time with S continue on a fortnightly basis at a time to be agreed between the parties. Her Honour also ordered that 'the matter otherwise be adjourned to 29 January 2010 at 9.15 am'.
On 29 January 2010, the primary judge ordered that 'the matter' be adjourned to 9 March 2010 at 2.15 pm.
As I have mentioned, the primary judge heard the competing applications on 9 March 2010. At the conclusion of the hearing on that day her Honour made this order:
UPON the hearing of the following applications:-
•Form 1 filed by the Applicant on 22 October 2002
IT IS ORDERED THAT:
1.The decision is reserved to Friday, 9 April 2010, at 9:30 am.
The reference in this order to a 'Form 1 filed by the Applicant [that is, the appellant] on 22 October 2002' is to an application filed by the appellant on 22 October 2002 in which he sought various parenting orders including that S reside with him, and have contact with her mother for five days per fortnight, varying when S commenced kindergarten. See [J] and [J] [2006] FCWA 52 [48].
The parenting orders made on 9 April 2010
The parenting orders made on 9 April 2010 were these:
1.i) The father spend supervised time with the child [S], born [May 1999], on one occasion in each four weeks for up to three hours at the [Contact Centre], commencing, as soon as practicable, after the child's birthday.
ii)a) Any family members of the father's are permitted to accompany the father to the visits, with a maximum of three people at a time.
b)The father is to inform [the Contact Centre] the names of people who will be attending in order that the child has advance notice of this.
iii)The father pay the costs of supervision.
iv)The parties attend all intake interviews and otherwise comply with all requests of the contact centre to progress these contact arrangements.
2.Any further supervised contact be at the request of the child and be subject to the availability of the [Contact Centre].
3.The mother provide to the father:
i)through her solicitors, or at handover, a minimum of three photographs every six months;
ii)by a sealed letter, provided at handover, a brief summary of the child's activities, health and progress in the previous month;
iii)any response from the father is to be forwarded through the mother's solicitors, unless the mother otherwise agrees.
4.The mother facilitate the child having MSN contact with her father at 10:30 am on one Sunday per month, at [S's] request, with the intention this occur monthly in between visits, and the mother facilitate email and telephone contact by the child with the father in accord with the child's wishes.
5.In the event the mother contacts the father by SMS or otherwise regarding arrangements, the father be permitted to respond, but only with respect to that issue.
6.The father be restrained by injunction:
i)from filing any further applications to vary these orders until the child turns 12 years of age;
ii)from contacting the mother other than through her solicitors.
7.The order appointing the Independent Children's Lawyer be discharged.
8.The applications for the applicant father to spend time with [S] be adjourned generally, but there be liberty to apply if there are difficulties arranging the supervised visits. (emphasis added)
The requirement for leave under order 8(1) of the orders made on 28 October 2004; the decision in Rice and Asplund
The appellant did not file a formal application seeking leave under order 8(1) of the orders made on 28 October 2004, which provided that '[u]ntil further order, the [appellant] be restrained from filing any application without prior leave of the Court'. Also, the appellant did not file a formal application seeking a variation of the parenting orders.
The primary judge did not deal with order 8(1) in her reasons for decision which are under appeal. Also, her Honour did not deal in her reasons with the 'threshold test' arising from the decision of the Full Court of the Family Court of Australia in In the Marriage of Rice and Asplund (1978) 6 Fam LR 570; (1979) FLC 90‑725.
A perusal of the Family Court file reveals that a formal order was not made granting leave under order 8(1). Also, a perusal of the file reveals that no formal consideration was given to the 'threshold test'.
In In the Marriage of Marsden and Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152, the Full Court of the Family Court of Australia reviewed the 'threshold test' enunciated in Rice and Asplund. Bryant CJ, Finn and Cronin JJ said:
In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the 'rule' in Rice and … it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.
Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation [48] ‑ [50].
It is apparent from the numerous directions and other hearings before the primary judge which preceded the substantive hearing of the competing applications on 9 March 2010, that her Honour decided, at least implicitly, that there were changed circumstances which made it appropriate for the appellant to be permitted to re‑agitate the terms of the then existing parenting orders.
Mr Bannerman appeared as counsel for the respondent at the hearing which culminated in the orders made on 28 October 2004. He has appeared for the respondent on numerous occasions since those orders were made including at the hearing of the competing applications before the primary judge and at the hearing before this court.
During oral submissions before this court, counsel for the respondent said that, according to his recollection, her Honour gave the appellant leave, informally, under order 8(1), in response to a letter written by the appellant to the Family Court.
Also, during oral submissions before this court, the following exchange occurred in relation to the 'threshold test':
BANNERMAN, MR: I think I do concede and we did concede that three years after the trial that we had in 2004 and in circumstances where [S] had spent some time in early 2007 with [the appellant], that there would be changed circumstances and it would have been improper for me to argue before the Family Court that in the latter part of 2007, at that point, there was no change in circumstances, because clearly on any reading of the papers, there would have been …
…
BUSS JA: As I understand from what you are saying, it is that the matter was dealt with informally. There were changes in circumstances, not the least of which, the child was three years older. You didn't see that there was any reasonable basis for contending that there was not a change of circumstances. So in essence, in an informal way, without there having been an application formally made to file a new application, you accepted that there were changes in circumstances …
BANNERMAN, MR: I think your Honour has my point exactly (appeal ts 9 ‑ 11).
The relevant legislative framework
Part 5 of the Family Court Act 1997 (WA) (the Act) is headed 'Children'. The provisions of pt 5 which are relevant to the disposition of the appeal before this court include s 66, s 66A ‑ s 66E, s 70A and s 89AA.
The primary judge's reasons for making the parenting orders made on 9 April 2010
In her reasons, the primary judge set out in detail the material facts and circumstances including the views expressed in the reports produced by the various experts and the family consultant.
Her Honour addressed the primary considerations set out in s 66C(2) and the additional considerations set out in s 66C(3) of the Act. It is unnecessary to reproduce her Honour's reasons in relation to each of these considerations.
The primary judge summarised the respective contentions of the appellant, the respondent, and the independent children's lawyer, as follows:
The [appellant's] position is that now his mental health is good, he is back in employment and [S's] medical condition has stabilised, that it would be very much in her interests to spend gradually increasing time with him, increasing to one day per fortnight quite quickly. There should be a further hearing in five months to consider moving to overnight time. He sought to be involved in the child's school.
The mother's position is that there should be no definite arrangements for contact, but that she would arrange it if [S] expressed a wish to see her father.
The involvement in legal proceedings and with the father over the years has been a great strain on the mother and she has been treated for anxiety and depression and attended counselling. She has coped with a lot of family support. She is very concerned about [S's] health being affected by stress or becoming upset.
Having regard to the lengthy and difficult background, the mother has no trust that the father will maintain boundaries. I agree there is still no certainty of this in an unsupervised setting.
The Independent Children's Lawyer proposed monthly supervised visits, but there be no further proceedings until [S] turns 12 years old, in May 2011 [84] ‑ [88].
The primary judge then made and expressed these findings and conclusions:
I am satisfied that it is presently in [S's] interests to have a regular, but limited opportunity to maintain a direct connection and relationship with her father, and that this will not place her, or her mother, under unacceptable stress if it occurs in a supervised setting with which the child has some familiarity, as at the … Centre, even though I accept the centre is not an ideal venue. This is in the context that it was the mother who first reinstated contact, and [S] obviously has some affection for her father, but has mixed emotions in relation to him.
While I am very much aware that the family consultant proposed contact to be in accord with [S's] wishes, it is apparent she would be very reluctant to possibly upset her mother by saying she wanted to see her father. I have concluded that, for the next year, definite but limited contact should occur, and then it will probably be left up to [S] depending on how it goes. It is very important for there to be a cautious approach.
Unfortunately, the [appellant] proposes to move too far too fast - while it is understandable he would want to do so, he appears not to understand the problems this will cause. His approach has the effect of fuelling the respondent's concerns about his pushing the boundaries, and maintaining pressure on her. If he could just maintain a limited but relaxed involvement for a time, it is likely the situation would ease.
It is not practicable or appropriate for the father to have school involvement at this stage.
If this progresses well, the contact may be extended after about a year, depending on [S's] views as she will then be about 12 years of age.
I accept there should be no further proceedings initiated by the father in this time, but the door will be left open for further orders to be sought should there be difficulties with the supervised contact.
The father should be kept informed of [S's] progress and development ‑ the mother does not want to have any contact with the father, but I propose the mother provide a written update to the father by a letter each month, which could form a basis for conversation with [S] (not that I expect the [appellant] would have much difficulty in communication with his daughter).
[S's] MSN contact with her father may continue on a fortnightly basis on Sunday mornings, but be entirely in accord with [S's] wishes. I would prefer a less formal arrangement such as email.
Generally, any communication with the respondent by the [appellant] should be through her solicitors.
Following further submissions of the parties at judgment, I accept that the [appellant] may respond to messages from the respondent about changes in arrangements. I am not prepared to direct there be a further trial in the proceedings at this stage, and would hope this would not be necessary in the future, having regard to [S's] age in particular [89] ‑ [98].
The applicable principles of appellate review
Section 211(3) of the Act provides for an appeal to this court from a decree of the Family Court given in its original or appellate jurisdiction. Section 211(3) also provides that this court may affirm, reverse, or vary the decree the subject of the appeal and may make such decree as, in the opinion of this court, ought to have been made in the first instance. In s 209A, the term 'decree' is defined, for the purposes of pt 7 (which comprises s 209A ‑ s 211B), to include, relevantly, a judgment or an order.
This court may exercise its appellate powers under s 211(3) only if the family law judge made a material error. The appeal is not an appeal de novo.
If the decree of the family law judge involved the exercise of a judicial discretion then the principles of law which regulate the circumstances in which an appellate court may review the exercise of a judicial discretion apply. See House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 ‑ 505 (Dixon, Evatt & McTiernan JJ). For example, error in exercising a judicial discretion will be shown where the primary decision-maker has acted on a wrong principle, or has allowed extraneous or irrelevant factors to influence him or her, or has failed to take into account some material consideration, or has mistaken the facts.
If the decree of the family law judge involved the exercise of a judicial discretion, and the complaint on appeal is that no weight, or insufficient weight, was given to relevant considerations, the appellate court should not interfere unless the failure to give adequate weight to relevant considerations 'really amounts to a failure to exercise the discretion actually entrusted to the court': Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513, 519 (Latham CJ). See also Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513, 519 ‑ 520 (Stephen J); Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614 (Gibbs CJ).
Although an appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance' (Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, 561), it must necessarily observe the 'natural limitations' that exist where the appellate court proceeds wholly or substantially on the record. See Dearman (561); Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [23]. In Dearman, Isaacs J said:
The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the Judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal (561).
In Fox v Percy, Gleeson CJ, Gummow & Kirby JJ said in relation to the 'natural limitations' of an appellate court proceeding wholly or substantially on the record:
These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole [23]. (footnotes omitted)
The grounds of appeal and the orders wanted
The appellant relies on 55 grounds of appeal. It is unnecessary to reproduce them. They may be classified into four categories, and the grounds in each category may be dealt with together.
The first category alleges that the primary judge gave insufficient weight or too much weight to particular evidence, facts, issues or considerations. The grounds in this category comprise grounds 1 (in part), 2, 3, 8 ‑ 12, 14, 16, 17, 19 (in part), 21 ‑ 25, 27 ‑ 31, 32 (in part), 33 (in part), 34, 35, 36 (in part), 37, 38, 40 ‑ 42, 44, 45, 47, 48, 50, 51, 52 (in part) and 53.
The second category alleges that the primary judge gave insufficient reasons for particular findings or conclusions. The grounds in this category comprise grounds 1 (in part), 6, 13, 15 (in part), 26, 36 (in part), 43, 46 and 54.
The third category alleges that the primary judge inadequately investigated, considered or assessed various issues. The grounds in this category comprise grounds 4, 15 (in part), 18, 19 (in part), 32 (in part), 33 (in part) and 52 (in part).
The fourth category alleges that the primary judge denied the appellant procedural fairness. The grounds in this category comprise grounds 5, 7, 20, 39 and 49.
The remaining ground of appeal, namely ground 55, does not require separate consideration. It merely alleges that '[g]iven the above factors, the conclusions drawn by the judge are erroneous and not in [S's] best interests'.
The orders wanted by the appellant comprise 45 paragraphs. He contends, in substance, that this court should set aside all existing parenting orders and make new orders.
I will now consider the merits of each category in turn.
The first category of grounds of appeal
In the first category of grounds the appellant alleges that the primary judge gave insufficient weight or too much weight to particular evidence, facts, issues or considerations.
The decree of the primary judge involved the exercise of a judicial discretion. In these circumstances, this court should not interfere with the orders made by her Honour unless the appellant establishes that:
(a)her Honour gave insufficient weight or too much weight, as the case may be, to particular evidence, facts, issues or considerations; and
(b)the failure to accord proper weight really amounted to a failure to exercise the discretion entrusted to her.
I have read the primary judge's reasons, and examined the grounds of appeal in the first category and the submissions made by the appellant in support of them.
The primary judge has been the judge manager and the trial judge in respect of the ongoing disputes between the appellant and the respondent which have been litigated in the Family Court for a number of years. Her Honour made reference to the extensive and difficult background as recorded in her reasons published on 26 May 2006: [J] and [J] [2006] FCWA 52. I have reproduced this background in the schedule to these reasons. Her Honour's reasons in relation to the competing applications in question in this appeal were detailed. She referred to the numerous reports which had been obtained by the court or put into evidence by the parties. She also referred to the principal affidavits of the appellant and the respondent.
In these circumstances, the primary judge was well placed to evaluate all of the material evidence and to decide upon the weight to be given to particular evidence, facts, issues or considerations in determining the nature and extent of any variations to be made to the then existing parenting orders; in particular, in determining whether and to what extent the appellant should have unsupervised contact with S.
I am not persuaded that the primary judge gave insufficient weight or too much weight to particular evidence, facts, issues or considerations, as alleged. Further, and in any event, there is no basis for concluding that, even if her Honour gave insufficient weight or too much weight to any particular evidence, facts, issues or considerations, there was in consequence a failure to exercise the discretion entrusted to her.
There is no merit in the grounds of appeal within the first category.
The second category of grounds of appeal
In the second category of grounds the appellant alleges that the primary judge gave insufficient reasons in relation to the following:
(a)'the contrasting comparison between the evidence given by the [appellant] in his affidavits and the evidence given by the [respondent] in her affidavits and thus the relevant truthfulness of each party or the validity of their evidence': ground 1 (in part);
(b)'the consideration of why the matter proceeded … outside the case management Guidelines or normal court practice': ground 6;
(c)'with respect to consideration and assessment of the known and proven risk to children and particularly children in single parent families where there [is] mental illness in the parent': ground 13 (read with ground 12);
(d)'why not regarding alternative means by which past stress [to the respondent] caused by contact [with the appellant] or implications of mental illness … could [not] be reduced or discharged': ground 15 (in part, read with ground 14);
(e)'as to one child requiring formal supervised contact where … the judge has allowed the younger sibling to have contact "in the presence" of others without any specification to the parties [who] can do so': ground 26;
(f)'to justify the reasons why it is not in [S's] best interests to be away from her mother given that the child is 11, the [respondent] claims to be suffering from mental illness': ground 36 (in part);
(g)'with respect to the contradiction imposed by the evidence supplied of the [respondent] making untrue or delusional statements in her affidavits and thus impacting upon her ability to care for the child': ground 43;
(h)'as to why the [appellant] could not meet the needs and requirements of [S] to allow her to experience her right to contact with her father and siblings': ground 46; and
(i)'for ignoring the assertions of the [respondent] of sexual assault and attempted molestation with violence and not reporting the matter to the appropriate authorities as required in the Act': ground 54.
The reasons of a trial judge need not be lengthy or elaborate. See Beale v Government Insurance Office(NSW) (1997) 48 NSWLR 430, 443; Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [28].
It is necessary, in assessing the adequacy of the reasons, to consider them as a whole. An appellate court may take into account what can legitimately be inferred from the reasons. See Beale (444); Bennett v Carruthers [2010] WASCA 131 [27] ‑ [28].
The circumstances of the particular case, including the nature and significance of the issues in dispute, are fundamental in determining whether the reasons are adequate. See In Vitro Technologies Pty Ltd v Taylor [2011] QCA 44 [19].
The reasons must be sufficiently detailed to enable an appellate court effectively to discharge its functions and for the parties to understand why they have won or lost. See Beale (442).
As I have mentioned, the critical issue before the primary judge was the nature and extent of any variations that should be made to the then existing parenting orders including, in particular, whether the appellant should have unsupervised contact with S. It was expressly envisaged that any variations to the existing orders should not continue indefinitely. Her Honour said in her reasons that if the arrangements between the appellant and S under the new parenting orders progressed well, then 'the contact may be extended after about a year, depending on [S's] views as she will then be about 12 years of age' [93]. Her Honour added that there should be no further proceedings initiated by the appellant until S attained the age of 12 years, 'but the door will be left open for further orders to be sought should there be difficulties with the supervised contact' [94]. Order 8 of the orders made on 9 April 2010 provides, relevantly, that '[t]he applications for the [appellant] father to spend time with [S] be adjourned generally'. All of this indicates that the hearing of the competing applications on 9 March 2010 was, in substance, interim in character.
It is readily apparent, on a fair reading of her Honour's reasons as a whole (including her reference to the evidence and the relevant statutory provisions, and her findings and conclusions), that she was cognisant of the issues to be decided, the competing evidence, and the detailed and troublesome history between the parties.
The primary judge's reasons disclose with sufficient clarity the intellectual process which culminated in her making the orders which are challenged in this appeal. It was unnecessary, especially when it was expressly envisaged that the appellant would be entitled to make another application for a further variation of the parenting orders after S's 12th birthday on 4 May 2011, for her Honour to make explicit findings on each and every disputed piece of evidence or each and every disputed point, regardless of its importance. Her Honour made adequate findings on those issues which it was necessary to resolve in order properly to determine, in substance on an interim basis, the merits of the competing applications. I am satisfied that the reasons achieve their requisite function and purpose. The appellant is able to discern why her Honour made the orders she did and why she declined to permit unsupervised contact between the appellant and S. Also, this court is not impeded by any deficiency in the reasons from properly discharging its functions in the appeal.
The grounds of appeal within the second category fail.
The third category of grounds of appeal
In the third category of grounds the appellant alleges that the primary judge failed adequately to investigate, consider or assess the following:
(a)'the contradictions between the allegations made by the [respondent] and the evidence given by the [appellant]': ground 4;
(b)'why not regarding alternative means by which past stress [to the respondent] caused by contact [with the appellant] or implications of mental illness … could [not] be reduced or discharged': ground 15 (in part, read with ground 14);
(c)'the downstream benefits to [S] (functionally an only child) of having contact with her father and by implication, siblings, and the paternal family': ground 18;
(d)'the known potential and unevaluated risk of harm to the child from the mother in cases where mental illness exist[s] … One interpretation of [S's] behaviour stated by the [respondent] could be that of a child suffering from parental mental illness': ground 19 (in part);
(e)'the family consultant's report': ground 32 (in part);
(f)'the evidence of obsessiveness of the [respondent] and possible enmeshment towards [S] and its affect [sic] on the relationship between the mother and child, and also the claimed mental illness and its effect on the mother and child's relationship': ground 33; and
(g)'the failure of the [respondent] to obey court orders regarding the provision of information to the [appellant] and [S] to have contact with her siblings': ground 52 (in part).
It was not the role of the primary judge to undertake investigations in relation to these issues. Her role was to consider or assess issues which were material to the determination of the competing applications by reference to relevant evidence adduced in the expert reports (including the family consultant's report) and by the appellant and the respondent. The third category of grounds do not add anything of material substance to the first and second categories of grounds. In my opinion, when the third category of grounds is examined in the context of a fair reading of her Honour's reasons as a whole, no material error of fact or law is disclosed.
There is no merit in the grounds of appeal within the third category.
The fourth category of grounds of appeal
In the fourth category of grounds the appellant alleges that the primary judge denied him procedural fairness. The particular allegations are these:
(a)'failing to follow and not allowing the matter to proceed as per normal case resolution practice (eg Case Management Guidelines) or as occurred in other case examples provided': ground 5;
(b)the appellant did not 'have the opportunity to adequately present his case, present supporting evidence and test [the] evidence provided and cross‑examine in person [the respondent]': ground 7;
(c)her Honour failed 'to allow cross‑examination of the single expert': grounds 20 and 39; and
(d)her Honour failed to allow 'the appellant to present evidence regarding the accuracy of the allegations made by the [respondent] and for the allegations to be investigated and the history of the attitude of the [respondent] to be investigated': ground 49.
Fairness is essentially a practical concept. It is not abstract in nature. The law of procedural fairness is concerned to avoid practical injustice. See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] (Gleeson CJ). The requirements of procedural fairness are flexible. Proceedings where procedural fairness must be accorded may be organised to ensure fairness having regard to the nature and circumstances of the particular proceeding, including the relevant facts, the statutory context, the matters in dispute, the circumstances of the particular parties whose interests may be affected, and the legal representation of parties before the relevant body or tribunal. See Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 [56] (Buss JA).
In my opinion, there is no merit in the appellant's complaints about procedural fairness.
There is nothing of substance in the allegation as to 'normal case resolution practice' or 'Case Management Guidelines'. The appellant did not object to the practice and procedure adopted by the primary judge in hearing the competing applications. The appellant did not suffer any practical injustice from the form or substance of the practice and procedure followed by her Honour.
The appellant's contention that he did not 'have the opportunity to adequately present his case, present supporting evidence and test the evidence provided and cross‑examine in person [the respondent]' is without merit.
The appellant relied on affidavit material he had filed and also on his sworn oral evidence at the hearing on 9 March 2010. The appellant and the respondent gave oral evidence and were cross‑examined. None of the experts nor the family consultant was called as a witness. The appellant did not apply to cross‑examine any of them. He did not request an adjournment or an additional hearing date.
The primary judge gave the appellant an adequate opportunity to make oral submissions on 9 March 2010. Further, towards the end of the hearing on 9 March 2010, her Honour gave the appellant permission to make supplementary written submissions. The appellant was content. This is apparent from the following interaction between her Honour and the appellant:
HER HONOUR: Anyway, it doesn't really matter. Look, I'm sorry, [the appellant]. I have to ask you to put something into print.
[THE APPELLANT]: Okay. No worries.
HER HONOUR: Can you do it in the next seven days?
[THE APPELLANT]: Yes, I will do.
HER HONOUR: No more than two pages.
[THE APPELLANT]: Your Honour ‑ ‑ ‑
HER HONOUR: Three pages.
[THE APPELLANT]: Aerial 10 font?
HER HONOUR: I don't know.
TAYLOR, MS: It's tiny.
HER HONOUR: We've been there before. But I really don't care because I just don't want you to think you've been cut off in your prime, so to speak.
[THE APPELLANT]: I understand that.
HER HONOUR: And of course the others have to have a copy of that. If you two want to raise anything, you're welcome. I'm going to give judgment in a month's time. I have in mind Wednesday, 7 April.
[THE APPELLANT]: Okay (ts 65 ‑ 66).
On 16 March 2010, the appellant sent an email to the primary judge's associate requesting an opportunity to inspect the court file to assist him in preparing his written submissions. An appointment was made to enable the appellant to view the file.
On 18 March 2010, the appellant sent his written submissions to the Family Court. The submissions dealt with the expert reports, the respondent's 'mental health issue', the respondent's 'assertions regarding father', S's wishes, the appellant's contention that the respondent was evasive or unable to accept that S may wish to see the appellant, and S's 'issues'.
As to the respondent's cross‑examination, the respondent was represented by counsel at the hearing on 9 March 2010. The respondent was not present in person. Counsel for the respondent requested that she give oral evidence‑in‑chief and be cross‑examined in a telephone conference call (ts 4). The appellant did not object to this course. He did not make application to the primary judge for the respondent to attend and be cross‑examined in person. The respondent gave oral evidence on affirmation in a telephone conference call. She was examined‑in‑chief by her counsel and then cross‑examined by the independent children's lawyer and the appellant. The appellant concluded his cross‑examination by stating, 'I think that's all' (ts 47).
Her Honour did not refuse to permit the appellant to adduce evidence or cross‑examine regarding the accuracy of the allegations made by the respondent.
The appellant did not take any steps at or before the hearing on 9 March 2010 or, indeed, before the primary judge delivered her decision on 9 April 2010, to call additional evidence. In particular, he did not apply to cross‑examine the single expert appointed by the Family Court or the family consultant. Her Honour did not refuse 'to allow cross‑examination of the single expert'.
The appellant had an adequate opportunity to ask questions of the respondent in cross‑examination. The scope and content of this cross‑examination (at ts 40 ‑ 47) was not restricted or curtailed by her Honour. There were no material interruptions.
The only reasonable inference open on an examination of the orders made at the numerous directions and other hearings which occurred before 9 March 2010, the transcript of the hearing on 9 March 2010 and the correspondence between the appellant and the Family Court before 9 March 2010 and between 9 March 2010 and 9 April 2010, is that the appellant was, at all material times, aware that there would be a substantive hearing of the competing applications on 9 March 2010. Also, the only reasonable inference open from the transcript of the hearing on 9 March 2010 and the correspondence between the appellant and the Family Court after the hearing, is that, at all material times, the appellant was aware that her Honour intended to deliver judgment and reasons for decision on the competing applications on 9 April 2010. There is nothing in the transcript of the hearing which suggests that the appellant misunderstood the purpose of the hearing or that he was under the misapprehension that he would have another opportunity to cross‑examine (including to cross‑examine the experts and the family consultant).
The grounds of appeal within the fourth category fail.
Ground of appeal 55
As I have mentioned, ground 55 alleges that '[g]iven the above factors, the conclusions drawn by the judge are erroneous and not in [S's] best interests'. This ground adds nothing to the other grounds, and it must therefore fail.
Conclusion
I would dismiss the application for an extension of time.
First, and decisively, the grounds of appeal are unmeritorious.
Secondly, the material before this court indicates that at a hearing on 10 January 2011, the primary judge decided to 'list the matter' on 10 May 2011 at 9.30 am, being shortly after S's 12th birthday, with a view to hearing submissions as to whether the appellant should be permitted once again to make application to vary the parenting orders. This exchange occurred:
HER HONOUR: All right. Well look, I'm not going to make any order now. You've heard what I've said. But what I am going to do is, pessimistic as I am, I'm just going to list the matter in May because we're going to be back anyway. We might as well cut a long story short.
[THE APPELLANT]: Your Honour, in all honesty, I do have serious concerns. I'm not trying to be malicious. I do have serious concerns for [S's] health and wellbeing. Every expert I speak to and every book I read, I'm being genuine here.
HER HONOUR: [Counsel for the respondent] is obviously aware that he's going to have to get some evidence about how [S's] going and how [the mother's] going too.
[THE APPELLANT]: Okay.
HER HONOUR: Health‑wise, and there's an issue of your health you know continually in this. You know, but I'm prepared to accept that your health is quite good at the moment.
[THE APPELLANT]: Yes.
HER HONOUR: But anyway, I'm suggesting ‑ look I haven't got lists for May, but I was just going to suggest picking a day out of a hat so to speak. Say, Tuesday, 10 May at 9.30. We'll just adjourn everything over to then, which takes us beyond … the significant date (ts 14). (emphasis added)
Counsel for the respondent informed this court that the 'everything' referred to by the primary judge was whether the appellant should be permitted once again to make application to vary the parenting orders, the status of an application made by the appellant in relation to parenting orders concerning S's half‑sister, B, and a contravention application filed by the appellant on 24 September 2010.
Even if there had been any merit in the grounds of appeal, the natural limitations affecting the hearing before this court would have precluded the making of new parenting orders as set out in the appellant's orders wanted. The only relevant order that this court could have made would have been to remit the competing applications to the Family Court for rehearing according to law.
At the hearing of the appeal, counsel for the respondent informed this court that there was not a potential Rice and Asplund point to be taken in the Family Court on 10 May 2011. He did not anticipate raising it (appeal ts 64).
In these circumstances, even if the grounds of appeal had any merit it would have been appropriate for this court, in the exercise of its discretion, to refuse to extend time on the basis that the appellant should pursue the pending proceedings in the Family Court by reference to the facts and circumstances which currently exist.
HALL J: I agree with Buss JA.
SCHEDULE
The relevant background as set out in the primary judge's reasons of 26 May 2006
9The [father] is 44 years old and has been, for several years now, a disability pensioner, although he has [a] profession. The [mother] is 34 years old and engaged in home duties. The parties met at [evening] classes and commenced a relationship in early 1998, which ended about five months later, in August 1998, about 10 weeks after the [mother] became pregnant by the [father]. The child, the subject of these proceedings, is [S], born May 1999. The parties have never resided together.
10The [mother] has no other children. The [father] has two adult boys, [SH], then aged about 23 years, and [DH], then aged about 21 years, who, as a teenager, spent considerable periods of time living with him after his separation from their mother. In January 2004, [DH]'s partner gave birth to his son. Sadly, the child is severely disabled and, I believe, is in residential care. The [father] has done his best to help the grandchild and [DH].
11The [father] also has a child by a relationship with [Ms BN]. Their daughter, [B], was born in May 2000. There have been defended proceedings in relation to this child, which were heard immediately following, and partly together, with these proceedings.
12In early 2002, through the internet, the [father] met an American woman, [Ms LL], who came to Australia with her daughter, [KL], then aged four years, in September 2002. [Ms LL] and the [father] married in November 2002. She went back to America for a time in December 2002, returning in May 2003. She finally left the [father] on 9 January 2004, and moved to the eastern states with [KL]. She has been involved with the [father] in Family Court proceedings for property settlement, and gave evidence in these proceedings by video‑link.
13The [mother's] case is that from the outset, the [father] was controlling and obsessive, and was very keen to have a baby girl. Initially, he was very involved in the pregnancy, for example, trying to control the [mother's] movements, what she ate, and where and in what manner she would have the baby. Shortly after the relationship broke up, the [mother] attempted to obtain a violence restraining order against the [father], she says because she was scared of him and because he threatened violence to her and the baby.
14The [father's] position was that the [mother] told him she was involved with another man, and the child would not even know that the [father] existed. The [mother] admits that she then had a male friend, [GP], whose assistance she called on, but says she was not in an ongoing relationship with him, although she did refer to him as her boyfriend in court documents. She had been in a relationship with him at some time.
15The [mother] had been prepared to move into a property owned by the [father] in October 1998, for which she paid a reduced rental. However, the [father] retained keys so that he could come in and out of the property as he wished. In December 1998, the [mother] moved out of the [father's] property and into a home with [GP].
16The father was anxious to become involved in parenting the child, and, on 4 February 1999, three months prior to the child's birth, commenced proceedings in the Court of Petty Sessions in [the regional centre]. He sought a number of orders, including ‑
•an injunction restraining the [mother] from leaving Western Australia;
•he be informed of the delivery of the child as soon as possible after birth;
•he be acknowledged as the father on the birth registration form;
•the mother have the option of the child either having her surname or selecting the child's first names, with the father having the other choice;
•[GP] not be present at the birth or immediately after, until the [father] had seen the child;
•a raft of orders in relation to contact to be effective either prior to, or immediately upon, the birth of the child, including that he be given access within two hours of her birth for 15 to 30 minutes;
•until breastfeeding ceased or one year, whichever came first, the father sought two hours contact on alternate days and then either week-about contact or contact each week from 16:00 hours each Friday to 0800 on the following Monday.
17On 12 March and 9 April 1999, there were court hearings in [the regional centre]. On 12 April 1999, it was ordered that the mother notify the father, within 24 hours, of the fact of the birth of the child and the details of the sex of the child.
18Shortly prior to [S]'s birth, the [mother] again attempted to obtain a restraining order against the [father], she says because he had said that he would forcibly be at the child's birth, would allow her 30 minutes with the new baby and then would take the baby away and home with him. The [mother] was not successful in obtaining an interim restraining order, and did not pursue the application on its final hearing.
19After [S]'s birth, on 4 May, the [father] attended the hospital, uninvited, having found out about the birth from a friend. He brought his sons and a friend, [SW]. [SW]'s evidence was that the mother did not ask him to leave the hospital.
20On 11 May 1999, orders were made restraining the [father] … by injunction from attending at the hospital to visit [S], unless specifically invited to do so. The mother undertook to contact the father on discharge from hospital and for arrangements to be made to allow contact.
21Unfortunately, the [mother] and [GP] appeared in a local newspaper photograph of new babies, the implication of the caption being [GP] was the father of the child. The mother's explanation was that it all happened very quickly and there was not really an opportunity to explain the situation.
22A dispute arose about the registration of the child's birth. The [mother], she says because the [father] would not agree on the child's name, attempted to register the child's birth without including the [father] as the father. However, the father had contacted the Registrar-General's Office back in October 1998, and informed them that he was the child's father.
23The [father] then filed a further application to have the child's name changed from [S] without specifying to what name he wanted it changed. The mother had to respond, and try to get him to sign the birth certificate, because he refused to do so.
24About a month after [S]'s birth, the [father] came to the [mother's] home, demanding to see the child. [GP] came to the door, and the father became violent and smashed a window. The father did apologise the next day. As a result of damage to her home, he was charged and convicted of causing malicious damage. He was accompanied by his then girlfriend, [Ms BN], who referred to the incident in her affidavit evidence.
25On 23 June 1999, on the [father's] application filed 4 February 1999, it was ordered, until further order, that the father have contact with the child for two hours on Wednesday after work and for two hours on Saturday, with the Saturday contact to be exercised at the Family Visiting Centre in town, and the Wednesday contact to be supervised by Mrs [K], the [mother's] mother, if she consented, or by any other person mutually acceptable to the parties. The parties were to do all such acts and execute all such documents as necessary to register the birth of the child, naming the parties as the natural parents of the child and, until further order of the court, describing the child with the Christian name of [S] and the surname of [K] ‑ [H] with no middle given name. Therefore, as a result of the dispute, the child's birth was not registered until 4 1/2 months after the child was born.
26It was also ordered that the child be separately represented at the further hearing of the proceedings.
27On 7 September 1999, the order for supervision of contact at the Family Visiting Centre was discharged, and it was ordered that supervision of contact was to be at the discretion of the [mother]. The [mother's] evidence is that she then started supervising the contact as she was anxious to ensure the child was alright and she also wanted to get the matter out of the court system. Her evidence is that the [father] did not seem interested in the child during contact visits, but seemed more interested in questioning her about her life.
28Other restraining order applications were filed by the mother, but not proceeded with.
29By early 1999, the father had recommenced his relationship with [Ms BN] and they started living together in May 1999. She moved down to the country town with her two children to live with the father in one of his rental properties. For several weeks in early 2000, the couple and [Ms BN]'s daughter, [N], went to [the eastern states] on holiday. In June 2000, three weeks after [B]'s birth, she left the [father].
30The [father] had suggested that both the [mother] and [Ms BN] and the children should live together with him in a shared type of relationship. This suggestion was rejected by the [mother].
31On 14 May 2001, it was ordered that, until further order, the [father] have contact on two occasions per week on Wednesday from 9:00 am to 12:00 noon and on Sunday from 3:00 pm to 6:00 pm with handovers to again take place at the Family Visiting Centre and the costs of the handover service be shared equally between the parties.
32On 18 June 2001, it was ordered, as and by way of additional contact, the [father] have defined contact on special occasions, including on Father's Day from 4:00 pm Saturday to 4:00 pm Sunday. The [father] was then to have contact on Wednesday of each week from 9:00 am to 12:00 noon and on each weekend from 2:00 pm Sunday to 2:00 pm Monday, with changeover to be at the Family Visiting Centre. The [father] was also to have additional contact with the child at the Father's Camp on two occasions each year on 21 days' notice.
33On the weekend of Father's Day in 2001 (not 2000 as the [mother] says in her affidavit), contact was to commence at 4:00 pm on Saturday, but [S] was sick on that day and the [mother] did not think that she was fit to go on contact. She rang the family centre and said that she would bring the child at 9:00 am on the next day, Father's Day, so that the father could have contact from then. The [father] was very unhappy about this, and gave the centre a note saying that he was owed a number of hours and would not bring the child back until Tuesday night, his normal contact being from Sunday through to 2:00 pm on Monday. He proposed not to return the child until Wednesday, as the centre was not open on Tuesday night for handovers.
34The [father] snatched the child from the [mother] in the car park and drove off in his car with her. The mother and supervisor ran after him. The [mother] had had her arms trapped in the window of the car as she had been trying to reach [S] who was screaming and the [father] had wound up the windows, but the supervisor pulled her free. The child was thrown into the back seat, and she was not immediately properly secured in the car, although the [father] says he did this soon after. The [father] sped off. When the child was returned on Wednesday, the [mother]'s evidence is that she was very dirty, tired and upset and still sick.
35The mother's evidence was that the child would be very angry after being away from her mother for two nights at a time and suffered tantrums.
36On 13 September 2001, the [mother] filed an application seeking to vary the orders of 18 June 2001. The father filed a detailed response, seeking, among other orders, that [S] be baptised into [a church] and attend services, he describing himself as an 'intermittent but regular church attendee'.
37Having regard to the recent events, surprisingly, on 27 September 2001, at a conciliation conference shortly afterwards, in [the regional centre], the Registrar noted that the mother was 'content with the current regime of contact'. The [father] had not attended the conference. The mother's evidence is that she did not think there was anything she could do about the situation.
38The father filed a Form 49 application on 9 October 2001, in relation to failing to make the child available at 4:00 pm on the Father's Day weekend. On 3 December 2001, the Form 49 application was dismissed, with the father to pay costs of $300.
39The [mother] father appealed the order on 21 December 2001, and on 11 February 2002, the appeal was dismissed, but with no order for costs of the appeal.
40On 21 January 2002, the mother obtained a violence restraining order against the father.
41On 17 May 2002, an item appeared in the 'West Australian' newspaper about the father seeking a surrogate mother to have a baby through the Internet. It said he was keen to bring up a child on his own. This was at a time when the father had two little girls, aged three and two years, for whom he was responsible, and with both of whose mothers he was embroiled in legal proceedings. He was not working, was suffering from depression and could ill afford, emotionally, practically or financially to have more children. The father's explanation was it was not a serious option and he was 'just trying to do something'.
42The father met [Ms LL] through the site as she contacted him and wanted to know why he would do such a thing.
43On 21 June 2002, the [mother] filed an application for departure from child support assessment. By July 2001, he had been retrenched from his employment and received a redundancy payment, which meant his income remained the same until 30 November 2001, but he then received Centrelink payments. He was suffering from major depression by that time. The father's evidence was he had to cease work because of the demands of contact and the proceedings. The mother claimed it was because he did not want to pay child support. The father's application for departure was dismissed on 24 February 2003, partly because of the father's asset position as compared to that of the mother. He then had several rental properties.
44On 3 September 2002, the father unsuccessfully applied for an adjournment of the trial of the proceedings in relation to parenting orders because he was not ready to proceed. The father did not then appear at the hearing a few minutes later, and, at trial the trial Judge dismissed his application filed 4 February 1999, finding the father was not in tune with the child's financial or emotional needs. There were concerns about his behaviour towards the mother. Handover was to continue at [the] Family Visiting Centre with costs to be shared equally.
45It was ordered that the child reside with the mother, who was to have sole parental responsibility. [S] was to have contact with the father every second weekend from Friday at 4:00 pm until Sunday at 5:00 pm, and every Wednesday for five hours, until she attended kindergarten in 2003.
46The [father] refers to this as 'a great tragedy' when he and [S]'s time together was 'maliciously, deliberately and unnecessarily removed'.
47On 6 September 2002, by consent, but without admission, a misconduct restraining order was granted against the [mother], for a period of two years.
48On 22 October 2002, the father filed an application seeking, among other parenting orders, that [S] reside with him and [Ms LL], and have contact with her mother for five days per fortnight, varying when [S] commenced kindergarten.
49The mother's evidence was that after the trial she had concerns about the contact, which are referred to later.
50In January 2003, the [mother] received a telephone call from [Ms BN] advising her of serious concerns about the father's behaviour and, in particular, the contents of two emails which contained highly disturbing information regarding the possibility of [S] and [B] being sexually abused by their father. During this conversation the [mother] states that she was 'struck by the similarities in what she was saying about her daughter and also with [S].'
51It is alleged that the father's then wife, [Ms LL], who at that time was in America, had sent the email to a friend [Ms AJ]. The email, dated 1 January 2003, contained allegations that the father had:-
•deceived her as to his presentation, lifestyle and home environment;
•that he and his home environment were 'filthy';
•that he allowed his youngest child to go for hours with a messy diaper;
•that he hid behind the computer looking at porn or slept all day when the children are with him;
•that he paraded around them undressed, told them they had to sleep naked with him while they are naked, made them bath with him even when they said they did not want to, and rubbed them in ways she did not find acceptable when they got out of the bath telling them that they were 'sexy'.
52[Ms LL] had allegedly confronted him about these behaviours but the father had said 'it was normal' and she was 'overreacting because of cultural differences between Australia and America'. The house was described as having 'mouse poop' all over the kitchen cabinets, faeces spread over the bathroom and being filled with trash and clutter. She then stated 'his obsession with filing court appeals, his obsession with porn, the sexual behaviour with his children and the severity of his depression' as being reasons why she allegedly decided to return to the United States.
53The [mother] then contacted the Child Abuse Prevention Service. She contacted Crisis Care at DCD, and following their advice, she withheld contact. She filed an application for contact to be supervised, and on 23 January 2003, filed a Form 66 Notice of Child Abuse based on the allegations contained in the emails.
54On 23 January 2003, there was a further hearing in Perth and separate representation for the child was again ordered.
55In February 2003, the child commenced kindergarten. The father turned up on the first day and took photographs. The mother said [S] was terrified, but she does not appear upset in the photographs tendered into evidence. The father sought ongoing contact at school and the principal, [CN], was very concerned about the situation, the father being very insistent and demanding. His explanation was he had been brought up in a Steiner school in which parents were very actively involved. This issue will be referred to further subsequently.
56A court expert, Denise Cull, a forensic psychologist, was appointed to prepare a report in relation to both proceedings. The father indicated he would not be prepared to cooperate, nor would [Ms LL], who by then had returned to Australia. [Ms LL] filed an affidavit denying she was the author of the email in which the allegations were contained.
57At this time, to March 2003, contact was still continuing, with changeovers occurring at the Family Visiting Centre, supervisors reported [S] was pleased to see her father, but, on return, she was often dirty, with food on her clothing and without shoes.
58On 16 March 2003, the mother wrote to the father, saying she had concluded it was in [S]'s best interests for unsupervised contact to cease as she was appalled and deeply shocked by the child having been returned with no underwear, under a rag of a dress, with mosquito bites. The child was filthy dirty and covered in different layers of food. Her hair was a matted mess, with food in it. In addition, the father had confused the child by saying she had two homes.
59On 26 March 2003, the [father] filed a Form 49 application.
60On 11 April 2003, it was ordered, until further order, that the father have liberal contact, to be exercised under the supervision of the Family Visiting Centre, at all reasonable times that did not interfere with the child's attendance at kindergarten, with the parties to meet the costs equally. The father was entitled to attend at the child's kindergarten to be involved in the parent roster.
61On 12 April 2003, the father forwarded to the child representative a document he entitled 'notice of withdrawal of cooperation', saying he was focusing on an appeal, the court being biased against men:
As such I cannot formally support the continuation of the current resolution path and I will then become an accomplice to the operation of an unfair and discriminatory system.
62He advised he was refusing to cooperate in the preparation of any expert report.
Thus I will not commit myself to obey the current court orders and I will take actions as necessary to protect [S] [the other child subject of proceedings]. Should it be seen as necessary, this will include removing her to a location of safety, however in such a case, I will continue to attend all case listings and I will inform U after I have taken these issues.
63On 14 April 2003, he filed a Form 43 appeal, which was partly dismissed on 12 May 2003.
64On 30 June 2003, the court expert produced her report which will be referred to subsequently.
65On 7 July 2003, an application of the [mother] filed 9 June 2003, and an appeal were dismissed, and it was ordered, until further order, that the [father] be restrained by injunction from attending at the child's school, Primary School, or within 100 metres of the school. From October 2003, to trial, there had been no incidents at the child's school.
66On 31 July 2003, it was ordered that the orders of 7 July 2003, be varied to allow the [father] to contact the school to make arrangements to set up an interview between him and the Principal and/or teacher provided they were willing to participate.
67The [father] filed an application on 26 August 2003, seeking that the current court expert, Ms Cull, be dismissed from the current proceedings and there be a new expert appointed.
68The father exercised some supervised contact at the Family Visiting Centre in August and September 2003. During the second half of 2003, he exercised less contact than that to which he was entitled.
69On 12 September 2003, the father filed a response seeking to have liberty to attend school parent activities, dismissal of the order for supervised contact, and contact for five nights per fortnight. He also sought an order that the child's correct surname be used, and that the contact arrangements revert to those in place before supervision was imposed, and there be make-up contact at the rate of an extra two days per week.
70On 16 October 2003, the Chief Judge heard the father's application and ordered that the trials in relation to the two separate cases proceed consecutively.
71On 9 January 2004, the father and [Ms LL] separated for the final time, in difficult circumstances. The father's mental health deteriorated. The couple had been going to move to [the eastern states] where [Ms LL] intended to study. The [father's] evidence was that he planned to travel back to visit [S] and [B] for two to three months of the year, but would not do so unless he had unsupervised contact.
72On 5 February 2004, the Chief Judge dismissed the father's application to be permitted to attend all parent activities, for dismissal of the court expert, and appointment of a new expert, and extended make-up contact. His Honour referred to the father's criticisms of the expert, which were themselves unsupported by expert evidence, and referred in his judgment to the 98 pages of material filed by the father in support of his application.
73From December 2003 to May 2004, the father exercised supervised contact about twice per month.
18
1