Jacks & Samson - [2008] FamCAFC 173

FAMILY COURT OF AUSTRALIA

JACKS & SAMSON

[2008] FamCAFC 173

FAMILY LAW – APPEAL – Appeal against orders made with respect to children in parenting proceedings between the parents and the grandparents of the children – Not established that the trial Judge’s discretion miscarried by way of being manifestly unjust or plainly wrong – Not established that the trial Judge failed to provide adequate reasons – Not established that the trial Judge’s discretion miscarried by failing to take into account relevant facts – Not established that the trial Judge erred in findings of fact – Not established that the trial Judge erred in principle in relation to the absence of cross-examination of a witness – Not established that the trial Judge’s discretion miscarried by error of principle in making orders permitting the children’s uncle to be present and spend time with the children during the periods they spend time with the grandparents, where the uncle was not a party to the proceedings and no such orders were expressly sought – Not established that the trial Judge’s erred in principle nor discretion in failing to have regard to s 43(b).

No error in principle in ordering the mother to attend psychotherapy – The 2005 amendments to s 64B(2) did not change the law to enable a court to make orders directed to parents or other persons to engage in a course of conduct which may benefit a child not directly connected to, or conditional upon, a parenting order for the child to live with, or spend time with, that parent or person – Whilst the trial Judge was entitled to rely on the mother’s expressed willingness to undertake voluntary therapy in reaching his overall conclusions for the parenting orders made, absent her consent to an order for such therapy, the order made is not supported in the circumstances of this case, under s 61C or s 64B(2)(i) – The circumstances of this case are distinguishable from those pertaining in L v T (1999) FLC 92-875; 25 Fam LR 590 such that there is no appealable error in making the order under s 67ZC.

Family Law Act 1975 (Cth) Part VII

CDJ v VAJ (1998) 197 CLR 172
Goode v Goode (2006) FLC 93-286
House v The King (1936) 55 CLR 499
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24
Brown v Dunn (1893) 6 R 67 (HL)
Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219
L v T (1999) FLC 92-875; 25 Fam LR 590

APPELLANTS:

MR JACKS AND MRS JACKS

RESPONDENTS:

MRS SAMSON AND MR SAMSON

FILE NUMBER:

SYF

3762

2006

APPEAL NUMBER:

2008

DATE DELIVERED:

19 November 2008

PLACE DELIVERED:

Sydney

JUDGMENT OF:

COLEMAN, BOLAND & STEVENSON JJ

HEARING DATE:

12 September 2008

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

19 March 2008

LOWER COURT MNC:

[2008] FamCA 176

COUNSEL FOR THE APPELLANTS:

Mr Simpson SC

SOLICITOR FOR THE APPELLANTS:

D.G. Balog & Associates

COUNSEL FOR THE RESPONDENTS:

Mr Hodgson

SOLICITOR FOR THE RESPONDENTS:

The Argyle Partnership

Orders

That the appeal be dismissed.
That there be no order for costs.

IT IS NOTED that publication of this judgment under the pseudonym Jacks & Samson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 48 of 2008
File Number: SYF 3762 of 2006

MR JACKS AND MRS JACKS

Appellants

And

MRS SAMSON AND MR SAMSON

Respondents

REASONS FOR JUDGMENT

By Notice of Appeal filed 28 April 2008 Mrs and Mr Jacks (“the parents”) appealed against orders made by O’Ryan J on 18 April 2008 with respect to their two children in parenting proceedings between the parents and the grandparents of their children, Mr and Mr Samson (“the grandparents”).
The orders of 18 April 2008 provided in substance that the grandparents “be at liberty to send letters, cards and/or gifts to each of their grand children [E] born on ... October 1998 and [A] born on … October 2000 on no less than three occasions in April, May and June 2008” [Order 1, Appeal Book Vol 1, page 22] and further that the grandparents “be at liberty to send gifts and cards to each of the children [E] and [A] for events such as their birthdays, Easter and Christmas and other special occasions.” [Order 2, Appeal Book Vol 1, page 22].
The parents were ordered to facilitate receipt by the children of communications from the grandparents pursuant to these orders and to confirm that the children had received such communications. [Order 3, Appeal Book Vol 1, page 22].
The trial Judge further ordered that:
4.The maternal grandmother spend time with the children [E] and [A] on a face-to-face basis in the counselling section of the Family Court of Australia, Sydney Registry, on three occasions for a period of not less than one hour in the months of April, May and June 2008 and for the purposes of this order the solicitor for the maternal grandparents arrange such counselling with the Director of Counselling, Family Court of Australia, Sydney Registry and thereafter notify the solicitor for the parents of those arrangements. [Order 4, Appeal Book Vol 1, page 22].
and that:
5.The maternal grandfather spend time with the children [E] and [A] in the presence of the maternal grandmother during the June 2008 visit pursuant to Order 4, hereof. [Order 5, Appeal Book Vol 1, page 23].
It was also ordered that from July 2008:
6.… in each four week period, the maternal grandparents spend time with the children [E] and [A] for a period of three hours as agreed between the parents and the maternal grandparents on either a Saturday or Sunday as agreed between the parents and the maternal grandparents and failing such agreement between 10:00 a.m. and 1:00 p.m. on Sundays in a supervised environment as agreed between the parents and the maternal grandparents and failing such agreement as recommended on or before 27 June 2008 by the Director of Counselling, Sydney Registry which may be a contact centre, and any costs involved in such supervision be paid by the maternal grandparents.” [Order 6, Appeal Book Vol 1, page 23].
Mr S Samson, the maternal uncle of the children, was permitted to be present and spend time with the children during periods spent by them with the grandparents pursuant to the trial Judge’s orders as and from July 2008. [Order 7, Appeal Book Vol 1, page 23].
The trial Judge’s orders provided that, after the expiration of two years, the children spend time with the grandparents:
8.1during the school term, every third week on Sunday between 9:00 a.m. and 1:00 p.m.; and
8.2for two days during each of the relevant New South Wales school holidays between 9:00 a.m. and 5:00 p.m. by agreement with the parents and failing such agreement on the first Monday and Friday of such holidays; and
8.3at such other times as the parents and maternal grandparents may from time to time agree. [Order 8, Appeal Book Vol 1, page 23].
Orders were made to facilitate such time being spent with the grandparents [Order 9, Appeal Book Vol 1, page 23].
Mrs Jacks (“the mother”) was ordered to “do all acts and things and follow the recommendation of Dr [M], psychiatrist, in his ‘Chapter 15 Court Expert Report’ dated 23 July 2007 and undertake individual psychotherapy treatment, as soon as practicable after the date of these orders with such treatment to have commenced no later than 31 May 2008” [Order 10, Appeal Book Vol 1, page 23] it being noted that Mrs Jacks had “indicated a willingness to undertake the individual psychotherapy treatment referred to in the Order 10”. [Order 11, Appeal Book Vol 1, page 23].
In their appeal to this Court, the parents sought that the trial Judge’s orders be set aside and that the grandparents’ application to spend time with the children be dismissed or, in the alternative, that upon the appeal being allowed, the grandparents application be remitted for rehearing before a single Judge of the Court, other than O’Ryan J.
The grandparents resisted the parents’ appeal and sought to maintain the trial Judge’s orders.

Background

The grandfather was aged 73 at the date of the trial Judge’s judgment. The grandmother was then aged 69.
The father was aged 46 and the mother was aged 39 at the date of the trial Judge’s judgment.
The parents married in March 1995.
The children the subject of the parenting proceedings were E, who was 9 years of age, and A who was 7 years of age at the date of the trial Judge’s judgment.
Mr S Samson, a son of the grandparents, was then aged 37.
The grandparents lived at M. The parents and the children lived nearby at N. There had been no contact between the children and the grandparents subsequent to May 2001. Prior to that time there had been significant contact between the children and the grandparents.

The trial Judge’s Judgment

Having identified the competing applications [Supplementary Appeal Book, page 2, paras 1-4], and relevant legal principles [Supplementary Appeal Book, pages 6-10, paras 16-33], the trial Judge provided a detailed factual background to the proceedings before him. [Supplementary Appeal Book, pages 10-20, paras 34-107].
It is necessary for present purposes to refer only to his Honour’s references to the termination of the relationship between the grandparents and the children in May 2001, and subsequent unsuccessful attempts by the grandparents to make contact with the children.
There was before the trial Judge expert opinion evidence from Drs M and W, each of whom was a medical practitioner with specialist qualifications in psychiatry. His Honour had earlier in his judgment [Supplementary Appeal Book, page 3, para 12] recorded portions of Dr M’s report of 23 July 2007. Those paragraphs read:
[37]It is my opinion that it would be beneficial for the children to have a relationship with the maternal grandparents. This would allow them to have a real experience, without the fantasy and questions associated with a lack of contact. As such, I see merit in the maternal grandparents’ application. It is however my concern that this potential benefit is outweighed by the fact that such contact will be profoundly disruptive to the mother. She was clearly distressed by the prospect of such contact. It is my clinical impression that such contact would trigger an exacerbation rather that a resolution of such emotional distress. This would have the potential to contaminate the relationship between the mother and the children and the paternal relationship, as predicted by the father. Under such circumstances, it is my view that contact would be highly disruptive for the children. This would outweigh the potential sleeper issue of the children’s awareness of [sic] time of their lack of contact with the maternal grandparents in their response to such matters should they be raised.
[38]It is thus my conclusion that despite the potential benefit of contact between the maternal grandparents and the children that this is outweighed by the mother’s predictable emotional distress.
[39]My discussion with [Ms B], the psychotherapist who had consulted with the maternal grandparents and father in the past, was consistent with these observations. While she had been supportive of the maternal grandmother having contact with her grandchildren, she readily acknowledged the vulnerabilities within the family. When it was put to [the mother] that she would benefit from individual psychotherapy to address the significant issues arising from her family of origin experience, she indicated a willingness to pursue such an intervention. She was unfortunately unwilling to consider any rapprochement with her parents nor condone their contact with her children. [Supplementary Appeal Book, pages 3-4, para 13].
His Honour had also recorded his “understanding of the effect” of Dr M’s responses to a “series of questions” addressed to him by the trial Judge [Supplementary Appeal Book, page 4, para 13]. He there recorded that:
15. I put a series of questions to Dr M and the following is my understanding of the effect of his evidence:
· the case is put by the protagonists on the basis there is no middle ground;
·no attempts have been made to compromise; to try and work through all the issues, except by judicial adjudication;
·no attempt has been made to seek other professional assistance to enable the parties to overcome all sorts of issues;
·the grandparents are seeking to spend limited periods of time with the two children;
·there is no difficulty about a communication between the grandparents and the children by way of gifts for special events and so on;
·the Grandmother and perhaps the maternal uncle have tried since 2001 to spend limited periods of time and/or have a communication by way of provision of gifts and the like and for special events with the children;
·it is beneficial to the children that they have a relationship with members of the maternal family;
·the evidence does not suggest that the children would be abused if in the care of the grandparents;
·there is no evidence that suggests that the children if in the care of the grandparents would be at risk of harm;
·however if there was a regime that allowed those things to occur it would have the potential to create a possibility of risk of harm for the children whilst in the care of the Mother because of the emotional distress experienced by the Mother or affect her capacity to properly parent the children;
·there is then a sleeper issue being the effect on the children over time of lack of contact with the grandparents;
·the Mother sought advice from a psychologist about the sleeper issue and the advice to the parents was that they should say to the children something along the lines of the following: “Each family’s circumstances are different and sometimes they cannot be together. This could be because they live too far away to see each other or they may not be alive. Sometimes it is better for some grown ups not to see each other at all, like Mummy’s parents. Yes they are alive but it is better we do not see them. I want you to know that this is not your fault that we do not want to see them”;
·there are concerns about the above script and the first concern is that there are always problems in misrepresenting things to children. The issue is very simple and one commonly sees it in children who find out down the track they were adopted; during their whole life they were told that someone was their father and then they find out down the track that he was not their father at all;
·it is difficult to see how children as they grow older would accept the script without a whole series of other questions and the script would become evidently different and that is the difficulty, the difficulty of telling a lie is that it then creates further problems;
·the sleeper issue may be activated even by the provision of gifts for special events and thus may have to be confronted shortly;
·it was suggested that the Mother should have psychotherapy;
·the best outcome would be for the Mother to actually resolve the issues within herself, hence the recommendation for individual psychotherapy, to come to a resolution that actually those issues are in the past; that she is safe now; that she is beyond all of that, that there is no indication that her children will be unsafe in the type of contact proposed and then to be in the position where she is actually able to accept contact;
·it comes down to the Mother’s ability to be able to accept a relationship between the children and the maternal grandparents “And to understand that actually avoidance is actually a destructive manner of dealing with stressful life experience”;
·because it is possible if something did not happen to assist them to work through this there could be other aspects of potential harm to the children;
·one would have to make sure, as part of a process, that at least objectively the Mother was satisfied that there was no possibility of harm to the children whilst they had some form of relationship with the grandparents although this would not overcome all the Mother’s issues. [Supplementary Appeal Book, pages 4-5, para 15].
The trial Judge acknowledged that Dr M had not interviewed the grandparents with the children. [Supplementary Appeal Book, page 20, para 110]. He referred to paragraph 32 of Dr M’s report which read:
[32]On exploring the current presentation of the parties, issues regarding their current and past psychiatric status was significant. The maternal grandfather was identified to have a Narcissistic Personality Disorder. Over the years he had experienced a fragile sense of self, emanating from his own developmental experiences, having lost his father at a tender age and experiences at boarding school. He emphasised his status and achievement as [a professional]. It was evident that he had lacked empathy for his daughter’s experience throughout her life. If slighted or under stress he had been prone to rage, depressive symptoms and suicidal behaviour. He lacked mindfulness for the powerful impact this had had on his daughter. He described abusive parenting strategies to control her behaviour. It was evident that his wife had spent her life appeasing and supporting his fragile ego. It appeared likely that he had a history of an underlying mood disorder which had been untreated. [Supplementary Appeal Book, para 114, page 22].
Having referred to the evidence of Dr W as that emerged from a report prepared by him, and to the outcome of a conference between Dr M and Dr W on the final day of the hearing before him, the trial Judge referred to the “oral report in relation to the matters which he and Dr W had agreed on”, the result of which was that Dr W was not required for cross examination. [Supplementary Appeal Book, page 23, para 121].
The trial Judge recorded Dr M’s expert opinion evidence that “it would be inappropriate to come to a definitive view of the Grandfather suffering from a narcissistic personality disorder as such”, the joint opinion of Drs M and W being that “the Grandfather has significant personality vulnerabilities and this would be in the order of there being excessive compulsive and narcissistic personality traits rather than a narcissistic personality disorder,” the basis of which the trial Judge recorded by reference to Dr M’s evidence [Supplementary Appeal Book, page 23, para 122].
Reference was then made to Dr M’s further evidence that:
123. … there had been no disclosure of sexual abuse by the Mother but she had acted in such an extreme manner and was so anxious and in particular was very concerned and described concerns about being touched by the maternal grandfather, the possibility of sexual abuse was raised. However on the balance of probability he would not reach a conclusion that the Mother has been subjected to child sexual abuse. The Mother at no stage made a disclosure, at no stage alleged that she had been specifically sexually abused and at no stage did he form a definitive opinion of the probability that she had been sexually abused and in particular he did not form an opinion that the Grandfather had committed such an offence. [Supplementary Appeal Book, pages 23-24, para 123].
His Honour recorded Dr M as having reported that he and Dr W agreed that “there was no evidence that the children were at risk of harm by their exposure to the grandparents. Dr M said that the concern that arose out of his assessment, and indeed it was his opinion, and Dr W was in agreement, was that [sic] that there would be potentially beneficial interactions between the children directly with the grandparents.” [Supplementary Appeal Book, page 24, para 124].

The trial Judge also recorded:
125. Dr [M] said that where the issue of vulnerability arises is specifically with regards to the direct impact on the Mother of her children being exposed to the grandparents and how that would affect her mental state based on the experience to date. Dr [W] indicated that he was not in a position to provide any formal view with regard to that issue directly as he had not assessed either the Mother or the Father and so it was accepted that Dr [M] was in the best position as the single expert to provide an opinion based on the history and his assessment of the parties as to the impact that that would have on the Mother and then upon the children. He said that there was no change to his opinion with regard to that key issue. [Supplementary Appeal Book, page 24, para 125].
Having referred extensively to the submissions made on behalf of the parties, [Supplementary Appeal Book, pages 24-26, paras 127-128] the trial Judge considered “the best interests” of the children. [Supplementary Appeal Book, pages 27-28, paras 129-139].
His Honour recorded with respect to the wishes of the children that he had “no evidence as to the views of each child except that Dr M said that it was striking that the child [A] reported that she wished to be able to go to New Zealand to meet the maternal grandparents.” [Supplementary Appeal Book, page 27, para 129].
Having regard to the evidence before him, the trial Judge was “unable to form any view about the nature of the relationship of each child with each of the grandparents” but had “no doubt that the children have a close and loving relationship with their parents.” [Appeal Book, para 130, page 27].
On the evidence, the trial Judge was “satisfied that the parents are not willing and do not have the ability to facilitate, and encourage, a close and continuing relationship between each child and the grandparents or any member of the maternal family.” [Appeal Book, para 131, page 27].
The dilemma arising from the evidence was expressed by his Honour in the following terms:
132. If I made an order that the children spend time with the grandparents this would have an effect on the children given what Dr [M] said about the effect on the Mother and in turn the cascading effect on the children. On the other hand I have no doubt that it will have an effect on these children if they have no time with their maternal grandparents or have no association with any member of their maternal family. [Appeal Book, para 132, page 27].
The trial Judge did not consider there to be any “practical difficulty and expense of each child spending time with and communicating with the grandparents” [Supplementary Appeal Book, page 27, para 133], and was satisfied that, if such orders were made, the grandparents “would be able to adequately provide for the needs of each child, including emotional and intellectual needs.” [Supplementary Appeal Book, page 27, para 134].
His Honour also recorded that, if he made an order that the children spend time with the grandparents, “the Mother may not be able to adequately provide for the needs of each child, including emotional needs.” [Supplementary Appeal Book, page 27, para 135].
The attitude of the grandparents to each child was considered by the trial Judge to be “appropriate”. [Supplementary Appeal Book, page 27, para 137].
His Honour was “not satisfied that there was any family violence involving either child or the Mother”. [Supplementary Appeal Book, page 28, para 138].
The trial Judge recorded his concern that the attitude of the parents to any order that the children spend time with the grandparents “may lead to the institution of further proceedings in relation to each child.” [Supplementary Appeal Book, page 28, para 139].
Under the heading “Conclusion” the trial Judge referred to the evidence of Dr M that there would be “no difficulty about a communication between the grandparents and the children by way of gifts and so on for special events.” [Supplementary Appeal Book, page 28, para 140].
His Honour also recorded his conclusion that “it would be beneficial to the children that they have a relationship with members of the maternal family. As Dr [M] said this would allow the children to have a real experience, without the fantasy and questions associated with a lack of contact. I agree with Dr [M] that there is merit in the grandparents’ application.” [Supplementary Appeal Book, page 28, para 141].
Reference was made to the fact that there had in the past been “an association” between the children and the grandparents of which “both children have some memory”. [Supplementary Appeal Book, page 28, para 142]. His Honour also reiterated that the case did not involve a significant absence where “the grandparents have simply reappeared and sought to impose themselves in the lives of the children”, the commencement of proceedings having been “the last resort” on the part of the grandparents pursuant to their desire to see their grandchildren. [Supplementary Appeal Book, page 28, para 143].
A “significant degree of hostility on the part of the parents towards the grandparents” was found by the trial Judge. He found no corresponding hostility by the grandparents towards the parents. [Supplementary Appeal Book, page 28, para 143].
Reference was then made to the parents’ reliance upon the need to protect each child from the risk of physical or psychological harm, abuse, neglect or family violence and concluded that “[w]hatever may have been the Mother’s experience I am not satisfied that the children would be abused or at risk of harm if in the care of the grandparents. The children would not be exposed to physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.” [Supplementary Appeal Book, page 28, para 144].
The trial Judge was, however, satisfied that:
145. … if I made an order that the children spend time with the grandparents it could have the potential to create a possibility of risk of harm for the children whilst in the care of the Mother because of the emotional distress experienced by the Mother and the cascading effect of this on the children or affect her capacity to properly parent the children. [Supplementary Appeal Book, page 29, para 145].
There followed a consideration of what had come to be referred to at the trial as the “sleeper issue” which arose from the circumstances in which the children were living, with one child believing that the grandparents live in New Zealand. The trial Judge referred to the effect on the children of the lack of contact and association with the grandparents. [Supplementary Appeal Book, page 29, para 146].
His Honour referred to Dr M’s evidence that there were “concerns about misrepresenting things to children and it is difficult to see how the children as they grow older would accept the script [which the parents had given them] without a whole series of questions.” His Honour also recorded that Dr M had “made clear that the difficulty of telling a lie is that it then creates further problems” and that “[i]f as suggested by Dr [M] I allowed the provision of gifts and so on for special events then the need to get the script right without telling a lie may be imminent.” [Supplementary Appeal Book, page 29, para 146].
The trial Judge recorded that:
147. Having regard to the evidence of Dr [M] and Dr [W] I accept that the Mother may have experienced some difficulties and sadness and that from time to time the Grandfather may have behaved in ways that others would find inappropriate or difficult. As Dr [M] said Ms [B], the psychotherapist who consulted with the grandparents and the Father in the past, readily acknowledged there were vulnerabilities within the family. However I do not accept that the Grandfather abused the Mother or put her at risk of harm or that the Mother’s life experience was as difficult as she now recounts. [Supplementary Appeal Book, page 29, para 147].
It was accepted by the trial Judge that the mother was not “seeking to mislead me or that she is not genuine in her beliefs as to why she is unable to consider any rapprochement with the grandparents nor condone their contact with the children”, recording that:
148. … The Mother is in need of professional help. Dr [M] suggested that the Mother should have psychotherapy. Dr [M] made clear what the best outcome would be that the Mother should have individual psychotherapy to actually resolve the issues within herself so as to come to a resolution that actually those issues are in the past; that she is safe now and that she is beyond all of that. Further that the Mother accepts that there is no indication that the children will be unsafe in the type of contact proposed and the Mother then be in the position where she is actually able to accept contact. As Dr [M] said it comes down to the Mother’s ability to be able to accept a relationship between the children and the maternal grandparents. Significantly Dr [M] said “And to understand that actually avoidance is actually a destructive manner of dealing with stressful life experience”. Dr [M] conceded it is possible that if something did not happen to assist the Mother and others to work through the issues then there could be other aspects of potential harm to the children. [Supplementary Appeal Book, page 29, para 148].
Correctly there is no doubt, the trial Judge reiterated this his obligation was to make orders which were in the best interests of the children, and that “[i]t would be easy to simply adopt the opinion of Dr [M] in his report on the ultimate issue namely that despite the potential benefit of contact between the grandparents and the children this is outweighed by the Mother’s predictable emotional distress.” [Supplementary Appeal Book, page 30, para 149].
Also correctly, there can be no doubt, the trial Judge acknowledged that there were “risks for the children whatever I do”, they being, if the orders sought by the grandparents were made “short term and long term risks for the children as a consequence of the reaction of the Mother”, if the orders sought by the parents were made “risks for the children including long term risks for the children of not having had any relationship with any member of the maternal family and how this would be dealt with by the parents.” [Supplementary Appeal Book, page 30, para 149].
Ultimately, the trial Judge concluded:
150.I have come to the conclusion that it is in the best interests of the children that a process be undertaken to work through the issues. I am going to make orders that set in place the following regime. I will give the parties an opportunity to provide me with a minute of orders giving effect to what I propose and failing agreement I will hear further submissions as to the terms of the proposed orders. [Supplementary Appeal Book, page 30, para 150].
Having indicated the nature of the orders proposed by him to give effect to his Reasons for Judgment, minutes of which the trial Judge directed Counsel to submit, his Honour recorded that:
151.… This regime will continue for a period of two years. There is then the issue as to what should happen at the expiration of the two years. It could then be reviewed and perhaps a further application made. I have decided that at the expiration of two years the regime will be that during the school term the children will spend time with the grandparents every third week on Sunday between 9:00 am and 1:00 pm and for a period of two days for each of the New South Wales school holidays by agreement. The Mother is to undertake the individual psychotherapy recommended by Dr [M] and to do so as soon as practicable and have commenced it by the end of May 2008. In fact it would be in the interests of the Mother to forthwith commence this individual psychotherapy. [Supplementary Appeal Book, page 30, para 151].

The Grounds of Appeal

Senior Counsel for the parents, for reasons which he outlined, agitated Ground 5 prior to addressing the remaining grounds of the Amended Notice of Appeal. Counsel for the grandparents responded to that ground before dealing with other grounds. It is thus appropriate that we deal with ground 5 first.
Ground 5, as amended pursuant to leave granted during the proceedings, provided:
That his Honour’s discretionary judgment miscarried in circumstances where, as against the established facts, the exercise of discretion embodied by his Honour’s orders were [sic] manifestly unjust and plainly wrong particularly in circumstances where:
5.1the children were well adjusted and developing well;
5.2the family comprising the appellants and the children is intact and happy;
5.3the evidence (both expert and lay) of the likely profound effect upon the happiness and security of the family unit if the respondents were successful; and,
5.4the evidence as to the consequences of success by the respondents upon the female appellant and consequently upon her capacity as a parent.
and otherwise mistook the evidence of the benefit to the grandchildren of the contact sought being only a potential benefit.
In his written submissions in support of these challenges, Senior Counsel asserted that “the outcome of his Honour’s exercise of discretion is manifestly unjust and plainly wrong”. [Appellants’ Summary of Argument par 28, page 13].
In oral submissions, Senior Counsel for the parents submitted that, if no other ground of appeal relied upon by the parents succeeded, this ground would, on the basis that, on the facts as found by him, the trial Judge’s decision was “so unreasonable as to mean that the exercise of his discretion must have miscarried”.
Unlike other grounds relied upon by the parents, this challenge does not assert that the exercise of discretion was vitiated by material error of fact, or that the trial Judge erred in law. Nor does the challenge require that the trial Judge’s discretion miscarried by reason of any identifiable fact, or circumstance, or in any identifiable way.
We do not believe it to be a gross or unfair oversimplification of this challenge to suggest that the complaint is essentially that the evidence, and particularly the expert evidence on the effects on the mother of any order that the children spend time with the grandparents, and its likely impact on her care of the children, and thus the children, so outweighed any potential benefits to the children arising from such orders as to preclude the making of such orders in the reasonable exercise of discretion.
We would understand the thrust of this challenge to be encompassed by the concluding sentence of the judgment of the High Court in House v The King (1936) 55 CLR 499 in which their Honours (Dixon, Evatt and McTiernan JJ) said (at 504-505):
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
More recently, in CDJ v VAJ (1998) 197 CLR 172, Kirby J described the principles governing challenges of this kind as requiring it to be demonstrated that the exercise of discretion was “plainly wrong”. Helpfully, his Honour said in that regard (at 230-231):
1. Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified. [footnotes omitted]
In support of the challenge, Senior Counsel submitted in his Summary of Argument that “it would take a case of extraordinary demand to properly call for the exercise of a discretion, the result of which is to compel parents to raise their children in a manner that is contrary to their [the parents’] strongest and common desires.” [Appellants’ Summary of Argument par 29, page 13].
Senior Counsel asserted that his contention was “fortified when it is acknowledged that there is no ongoing relationship between the children and [the grandparents] that has recently been severed, or of which the children have any conscious knowledge and the evidence, both expert and lay, was consistent that the making of such orders would pose very substantial consequences in a strong and predictable reaction” from the children’s mother which “would ultimately entail damaging consequences for the children”. [Appellant’s Summary of Argument, par 30, page 14].
It was submitted that Dr M “saw the consequences [of ordering that the children spend time with the grandparents] as outweighing the otherwise beneficial issues for the children of having a relationship” with them. [Appellants’ Summary of Argument, par 31, page 14].
Reliance was placed upon the evidence before the trial Judge suggesting that, apart from the issue with which the trial Judge was concerned, the “children are progressing well” “in a happy and functional family unit” which Dr M described as “the primary unit which is important to support in its functioning”. [Appeal Book 2, page 335, lines 9-12].
In support of that proposition Senior Counsel relied upon the following passage from Dr. M’s report:
Despite the risk factors identified for the children, their presentation during the assessment and feedback from the school and other parties identified them to be currently progressing well. Each established a good rapport and spoke in a connected way about their life experience. There was no evidence of a significant emotional or behavioural disorder. Both described happy family and developmental experiences. Each acknowledged that they had no contact with the maternal grandparents. It was striking that [A] reported that she wished that she would be able to go to New Zealand to meet them. This highlighted the current gap in their life experience and the potential benefit of there being the opportunity to establish contact between the children and their maternal grandparents. [Appeal Book 2, par 36, page 192].

Senior Counsel for the parents submitted that the evidence before the trial Judge, including the unchallenged expert opinion evidence, was that the mother had “been damaged as a consequence of her own childhood experiences as a consequence of her exposure” to the maternal grandfather. [Appellant’s Summary of Argument, par 34, page 15]. In support of these submissions, Senior Counsel for the parents referred to a number of passages in the evidence before the trial Judge. [Appeal Book Vol 2, page 211, Appeal Book Vol 2, page 364; Appeal Book Vol 2, page 325].
In his report dated 23 July 2007, Dr M said, in a passage to which the trial Judge referred in his judgment:
It is my opinion that it would be beneficial for the children to have a relationship with the maternal grandparents. This would allow them to have a real experience, without the fantasy and questions associated with a lack of contact. As such, I see merit in the maternal grandparents’ application. It is however my concern that this potential benefit is outweighed by the fact that such contact would be profoundly disruptive to the mother. She was clearly distressed by the prospect of such contact. It is my clinical impression that such contact would trigger an exacerbation rather than a resolution of such emotional distress. This would have the potential to contaminate the relationship between the mother and children and the parental relationship, as predicted by the father. Under such circumstances, it is my view that contact would be highly disruptive for the children. This would outweigh the potential sleeper issue of the children’s awareness over time of their lack of contact with the maternal grandparents and their response to such matters should they be raised. [Appeal Book 2, par 37, page 193].
Senior Counsel for the parents relied upon evidence given by Dr M in cross examination by Counsel for the grandparents in the following terms:
Now, returning again then to paragraph 37, you refer to the fact, there in about line 7, that you consider that contact would be profoundly disruptive to the mother and that she was clearly distressed by the prospect of such contact?---Yes.
And that's a view that you still adhere to based upon the fact that you were the person who interviewed the mother whereas Dr [W] wasn't in that position. Is that so?--- That view was formed on the basis of my assessment of the mother, the documentation provided with regard to her views and her experience and, most importantly, it was very much confirmed by my assessment of the father. [Mr P Jacks] went into detail with regard to his concerns and his experience of the mother and the change in her behaviour and the difficulties she had emotionally in coping with the children's experiencing contact with the maternal grandparents and indeed describing the mother's response to her contact with the maternal grandparents. Leading up to the cessation of contact he indicated that he had maintained some unrevealed contact with the maternal grandmother as a means of protecting the mother because he was so concerned with regard to her emotional response and it was certainly his view that since the initiation of the Court process he described the mother as being anxious 24/7, reliving her childhood all over again and being very fearful for the children's welfare and living in a state of continual stress and anguish, and so it was certainly based on my assessment of the mother and the additional history obtained from the father with regard to the mother's response to contact with the maternal grandparents. [Appeal Book 2, lines 10-34, page 319].
Reliance was also placed upon evidence of the father in response to questions asked of him by the trial Judge in which he said:
Now, you told me that you were coming to the end of your tether, or you acknowledged that proposition put to you by Mr Hodgson and you also indicated to the effect that you don’t know if you can carry on or continue on. Is that right? --- That’s correct.
Can you explain to me what you mean by that? --- I’m drained.
I understand? --- I am completely drained, I’m run out. I have my own accounting practice, I have no one working for me. So if I’m not there I don’t get paid. So an enormous financial strain is being placed on me. I’ve got to go home sometimes and just pick the pieces up, put the kids to bed, take the kids to school and I don’t know if I can go on. [The mother] is just absolutely beside herself and I honestly don’t think I can do it.
Do you want to take a break? --- I’m alright, I just don’t think I can – I can see my whole family just falling apart.
At some point in the future, and this is the troublesome thing - - -? --- It’s not about that, it’s just ongoing.
HIS HONOUR: I will take a break and you let me know when you are ready to continue. [Appeal Book 2, lines 4-25, page 364].
Senior Counsel for the parents submitted that in cross-examination, Dr M adhered to the opinion expressed by him in the passage of his report set out earlier in these Reasons in relation to the likely effect on the children of ordering that they spend time with the maternal grandparents.
It was thus submitted on behalf of the parents that the possible detriments for the children so clearly outweighed the possible benefits as to render any orders that the children spend time with the grandparents so unreasonable as to enliven appellate intervention.
On behalf of the grandparents it was submitted that the trial Judge had not failed to have regard to any relevant fact or circumstance in the exercise of his discretion, and that his Honour had not been shown to have had regard to irrelevant or extraneous facts and circumstances. It was further submitted that no material error of fact had been identified as having vitiated the trial Judge’s exercise of discretion. As we have earlier noted, that however does not preclude this challenge from succeeding.
Counsel for the grandparents asserted that the trial Judge correctly “considered that there were risks to the children in whatever he did”, for reasons which his Honour correctly identified and considered.
Counsel for the grandparents also relied upon the evidence of Dr M. The relevant passage of Dr M’s cross examination provided:
And just in relation to the 2001 symptoms, is it the case that you could determine no – or the extent of any impact on her ability to care for the children?---No.
In relation to the 2006 symptoms, were you able to determine any inability for her to care for the children other than by surmise?---The only comment that I’d make is that [Mr Jacks] was concerned that there was a ripple effect impacting on to his marriage and on to the children.
…
So a flowing on of exhaustion, spinning thoughts, highly anxious, those types of things on to the children. Is that right?---That that would then impact upon their family functioning.
Well, that it would or it could or it did?---He specifically indicated that he was concerned that her fears and her anxiety and her reliving her childhood experience were passed on to the children.
Well, they were passed on to the children. So what was the impact upon the children?---I’m unable to specifically identify that.
So there was nothing provided to you as to the impact upon the children. Is that so?---That’s correct. [Appeal Book Volume 2, page 333, lines 22-45].
and:
Okay. There's a sleeper issue that you refer to, and you say that the disruption to the children if there was a regime would outweigh the potential sleeper issue of the children's awareness over time of lack of contact with the maternal grandparents?---Yes.
And according to the mother she sought advice about that sleeper issue – you may have read that - from a psychologist. She doesn't identify who it is but I think [Mr Jacks] identifies the possible source of this. This is her advice: that they would say to the children:
Each family's circumstances are different and sometimes they cannot be together. This could be because they live too far away to see each other or they may not be alive. Sometimes it is better for some grownups not to see each other at all, like mummy's parents. Yes, they are alive but it is better we do not see them. I want you to know that this is not your fault but we do not want to see them.
That's the script that they've been advised to use to respond to this sleeper issue. Now, pausing there, any comment on that script?---I think it's a concern. The first concern is that here [sic] are always problems in misrepresenting things to children. Certainly the issue is very simple, and one commonly sees that in children who find out down the track they were adopted and their whole life they were told that someone was their father and then they find out down the track that he wasn't their father at all.
I must say I find it difficult to see how children as they grow older would wear that without a whole series of other questions?---And - - -
And then the script would become a totally different expanded version?---And that's the difficulty. The difficulty of telling a lie is that then it creates further problems.
Now, the difficulty - one of the difficulties is that that sleeper issue may be activated even by the provision of gifts for special events?---That's true.
In other words, the children are going to say, "Who did this come from"?---Yes.
"X?" And if it's says "your loving grandmother"?---Yes.
We could be confronted with the sleeper issue forthwith?---Yes.
So is there any way through this maze or is it, as they have put it to me, no possibility? I notice that you suggest the mother should have psychotherapy. I don't know if that's happened?---Yes.
I'll find out of course?---Certainly the best outcome would be for the mother to actually resolve the issues within herself, hence the recommendation for individual psychotherapy, to come to a resolution that actually those issues are in the past, that she's safe now, that she's beyond all of that, that there is no indication that her children would be unsafe in the type of contact that we're talking about and then to be in a position where she is actually able to accept contact.
So it really comes down to the mother's ability - - -?---Yes.
- - - to be able to accept a relationship between her children and members of her family?---And to understand that actually avoidance is actually a destructive manner of dealing with stressful life experience.
Because is it possible that if something didn't happen to assist them to work their way through this, that there could be other aspects of potential harm to the children if something didn't happen, for example, in how they cope with that sleeper issue?---Yes.
How the children react to that sleeper issue?---Yes.
All right. But I would assume that one would have to make sure - or would one have to make sure as part of a process that at least objectively the mother - I'm not saying would overcome her issues at all, but that there was no possibility of harm to the children whilst they had some form of relationship with their grandparents?---Yes. [Appeal Book 2, Line 22 page 336 – Line 16 page 337].
On behalf of the grandparents reliance was placed upon the concession made by Dr M in cross-examination with respect to paragraph 37 of his report, the contents of which we have set out earlier in these Reasons. Dr M there said:
But we've got two episodes of significant trauma to the mother, the 2001 trauma of the incidents and the 2006 trauma of the proceedings. What can you tell me, as far as [Mr Jacks'] prediction is concerned, happened to the children? What was the contamination of the children that he predicted, of the relationship - contamination of the relationship with the children?---I'm unable to identify any specific direct impact on the children. [Appeal Book 2, lines 17-22, page 334].
It was accordingly submitted that:
… the Trial Judge in evaluating the issues was entitled to determine upon the evidence of Dr [M] that the benefit to the children of having a relationship with their maternal grandparents (which was clearly a relationship strongly desired by the grandparents), combined with Dr [M’s] evidence of the potential harm to the children of “the sleeper issue,” outweighed the potential harm to the children and contamination of their relationship with there [sic] mother, which may be brought about by their mother’s distress. This was in circumstances where there was no evidence that such distress had previously had any impact upon the mother’s relationship with the children or been disruptive to them. Dr [M] had also agreed that there could be some detriment to the children if they were deprived of having the involvement in their lives of loving grandparents. [Outline of Written Submission on behalf of the Respondent Grandparents, pages 16-17].
We approach this challenge mindful of the long standing caveats in relation to appellate disturbance of discretionary judgments. The principles have been stated on a number of occasions by the High Court over the last seventy years, and do not require extensive restatement in this appeal. We are mindful of what Kirby J said in CDJ v VAJ (1998) 197 CLR 172 in the passage we have earlier cited. We are also mindful of his Honour’s further observations (at 230-231) that:
2. Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction. [footnotes omitted]
This is particularly so where, as is conceded for the purpose of this challenge, the trial Judge’s discretion was not based upon material errors of fact, consideration of irrelevant or extraneous facts or circumstances, or the absence of consideration of relevant facts or circumstances, and there is no suggestion that his Honour failed to apply the relevant legal principles to the exercise of discretion by reference to relevant statutory provisions and legal principles.
It is also to be remembered that the possibility that this Court might have reached a different conclusion does not establish error on the part of the trial Judge. To better evaluate this challenge, it is necessary to have regard to the reasoning process which led his Honour to his ultimate conclusion.
In the course of his consideration of the expert opinion evidence of Drs M and W, the trial Judge recorded:
As to the mother Dr [M] said that she was identified to have symptoms of post-traumatic stress disorder which had been chronic and precipitated by her father’s behaviour throughout her developmental years and that this had a substantive impact on her personality disorder. He said that the grandparents attempt to re-establish contact through the Court had resulted in hyper-vigilance in re-experiencing phenomena, such as intrusive nightmares and thoughts. [Supplementary Appeal Book, par 115, page 22].
His Honour was thus clearly aware of Dr M’s expert opinion of the mother’s psychological health and the nexus between that condition and the grandfather’s “behaviour throughout her developmental years”. [Supplementary Appeal Book, par 115, page 22].
The trial Judge referred to the potential risks to the children should an order be made that they spend time with the grandparents and recorded:
As to an objective to direct risk to the children Dr [W] noted that neither he nor Dr [M] had observed the Grandfather relating to the children. Dr [W] said that setting aside the Mother’s concerns he would have thought that the Grandfather’s type of personality structure together with the Grandfather’s self doubts, self effacing nature and his age and slight frailty would not usually be associated with objective harm to the children either in terms of physical abuse arising out of impulsive acts, or in terms of emotional abuse. [Supplementary Appeal Book, par 119, page 23].
Although we do not see that this complaint ultimately turns significantly on this topic, having regard to the findings of fact he had made, the difficult “balancing exercise” which the trial Judge undertook did not require consideration of any risk of physical or emotional harm or abuse as a contra-indicator of the children spending time with their grandparents.
His Honour was also entitled, when undertaking the balancing exercise, to have, and did have, regard to the evidence before him to which he referred in the following terms:
124.Dr [M] said that the third issue that he and Dr [W] discussed was the issue of the possibility of a cascade of events resulting in potential harm to the children and whether that posed the potential of their [sic] being an unacceptable risk to the children in the context of their being contact between the children and grandparents. He said that on the basis of his assessment, and he and Dr [W] were in agreement with regard to this, there was no evidence that the children were at risk of harm by their exposure to the grandparents. Dr [M] said that the concern that arose out of his assessment, and indeed it was his opinion, and Dr [W] was in agreement, was that that there would be potentially beneficial interactions between the children directly with the grandparents. [Supplementary Appeal Book page 24, par 124].
Lest there be any doubt that the trial Judge was in any way uncertain as to the issues around which this challenge essentially revolves, the following passage from his Reasons for Judgment removes the potential for any such doubt:
125.Dr [M] said that where the issue of vulnerability arises is specifically with regard to the direct impact on the Mother of her children being exposed to the grandparents and how that would affect her mental state based on the experience to date. Dr [W] indicated that he was not in a position to provide any formal view with regard to that issue directly as he had not assessed either the Mother or the Father and so it was accepted that Dr [M] was in the best position as the single expert to provide an opinion based on the history and his assessment of the parties as to the impact that that would have on the Mother and then upon the children. He said that there was no change to his opinion with regard to that key issue. [Supplementary Appeal Book par 125, page 24].
That impression is reinforced by the following passage which appears during the course of the trial Judge’s consideration of the “best interests” of the children:
132.If I made an order that the children spend time with the grandparents this would have an effect on the children given what Dr [M] said about the effect on the Mother and in turn the cascading effect on the children. On the other hand I have no doubt that it will have an effect on these children if they have no time with their maternal grandparents or have no association with any member of their maternal family. [Supplementary Appeal Book, par 132 at page 27].
Against that background, under the heading “Conclusion”, the trial Judge further revealed the path of reasoning which led him to his ultimate conclusion. Whether the evidence before him established that time spent with the maternal grandparents would be “beneficial” or “potentially beneficial” to the children, this ground proceeds on the basis that his Honour was entitled to find as he did when he said:
141.I am of the view that it would be beneficial to the children that they have a relationship with members of the maternal family. As Dr [M] said this would allow the children to have a real experience, without the fantasy and questions associated with a lack of contact. I agree with Dr [M] that there is merit in the grandparents’ application. [Supplementary Appeal Book, par 141, page 28].

This ground also proceeds on the basis that his Honour was entitled to find as he did that:
142.This is not a case where there has never been any association between the children and the grandparents. In fact it is clear that both children have some memory of that association. The child [E] told Dr [M] that she did not see people from her mother’s side much except when she was really little and she did not know why and did not know where they lived. The child [A] spoke of her contact with the paternal grandparents and when asked about her maternal family, explained that she did not see them but would go and see them one day. Further when exploring her wishes, this includes going to see her mother’s parents in New Zealand. [Supplementary Appeal Book, par 142, page 28].
Although not of great significance, it is apparent that the trial Judge factored into the balancing exercise the reality that there had, albeit not for some years, been some “association between the children and the grandparents” of which the children have “some memory”. As his Honour recognised, the evidence of Dr M suggested that the children had some interest in seeing their maternal grandparents at some time in the future.
His Honour was under no misapprehension as to the attitude of the parents to the children spending any time with the grandparents, noting that there was a “significant degree of hostility on the part of the parents towards the grandparents but not on the part of the grandparents towards the parents”. [Supplementary Appeal Book, par 143, page 28].
The trial Judge reiterated the absence of “risk of harm” should the children spend time with their grandparents and absence of any exposure to “abuse, neglect or family violence” should such an order be made. [Supplementary Appeal Book, par 144, page 28].
Importantly, the expert evidence before him with respect to the mother’s health, the contra-indicator of time spent with the grandparents being in the children’s best interests, was acknowledged by the trial Judge in the following terms:
145.I am however satisfied that if I made an order that the children spend time with the grandparents it could have the potential to create a possibility of risk of harm for the children whilst in the care of the Mother because of the emotional distress experienced by the Mother and the cascading effect of this on the children or affect her capacity to properly parent the children. [Supplementary Appeal Book, par 144, page 28].
In the context of considering the mother’s allegations with respect to her “childhood experience while in the care of her parents” [Supplementary Appeal Book par 147, page 29] the trial Judge accepted that “as Dr [M] said it comes down to the Mother’s ability to be able to accept a relationship between the children and the maternal grandparents”. [Supplementary Appeal Book par 148 page 29].
His Honour also referred to Dr M’s concession that “it is possible that if something did not happen to assist the Mother and others to work through the issues then there could be other aspects of potential harm to the children”. [Supplementary Appeal Book par 148, page 30].
Drawing these competing considerations together, his Honour then said:
149.…It would be easy to simply adopt the opinion of Dr [M] in his report on the ultimate issue namely that despite the potential benefit of contact between the grandparents and the children this is outweighed by the Mother’s predictable emotional distress. There are risks for the children whatever I do. If I made the orders sought by the grandparents then there are short term and long term risks for the children as a consequence of the reaction of the Mother. On the other hand if I made the orders sought by the parents and dismissed the application of the grandparents there are risks for the children including long term risks for the children of not having had any relationship with any member of the maternal family and how this would be dealt with by the parents. [Supplementary Appeal Book par 149, page 30].
The trial Judge concluded his Reasons by saying “I have come to the conclusion that it is in the best interests of the children that a process be undertaken to work through the issues”. [Supplementary Appeal Book, par 150, page 30].
As is apparent from the orders ultimately made by him, the trial Judge provided for a graduated regime for the children to spend time with the grandparents. In reliance upon the mother’s indication of her willingness to do so, which his Honour noted at the end of his orders, an order that she attend psychotherapy was made.
During the course of cross-examination by Counsel for the grandparents, Dr M said:
It is likely that in the context of having had a sustained period of separation of the mother from her parents, that that has – she has used avoidance as a strategy. Typically in context [sic] of anxiety where avoidance is used as a strategy, it has a tendency to amplify the underlying vulnerability to anxiety and so she had avoided anything to do with her parents. Now that has been brought back into centre stage, that then has amplified her sense of anxiety in light of the current circumstances. It is of concern that if the mother continues to feel highly anxious, highly distressed and particularly every time the children were left in the care of her parents, if as [Mr Jacks] predicts that then is a source of stress on their marriage, that then is a source of stress on how the mother is functioning, that then that [sic] has the potential over time to impact upon the wellbeing and functioning of the children. [Appeal Book Vol 2, page 335, lines 11-24].
and:
There is no evidence no evidence presently that suggests that the children if in the care of the maternal grandparents would be at risk abuse?---Yes.
However, if I did set up a regime that enabled those things to occur, as I understand you to say it would have the potential to do – and this is what I want to articulate with you – to create a possibility of risk of harm whilst in the care of the mother?---Because of the emotional distress experienced by the mother, yes.
Or affects her capacity to properly parent the children?---Yes. [Appeal Book Vol 2, page 336, lines 11-20].
and further that:
So is there any way through this maze or is it, as they have put it to me, no possibility? I notice that you suggest the mother should have psychotherapy. I don’t know if that’s happened?---Yes.
I’ll find out of course?---Certainly the best outcome would be for the mother to actually resolve the issues within herself, hence the recommendation for individual psychotherapy, to come to a resolution that those issues are in the past, that she’s safe now, that she’s beyond all of that, that there is no indication that her children would be unsafe in the type of contact that we’re talking about and then to be in a position where she is actually able to accept contact.
So it really comes down to the mother’s ability? - - -?---Yes.
- - - to be able to accept a relationship between her children and members of her family?--- And to understand that actually avoidance is actually a destructive manner of dealing with stressful life experience.
Because it is possible that if something didn’t happen to assist them to work their way through this, that there could be other aspects of potential harm to the children if something didn’t happen, for example, in how they cope with that sleeper issue?---Yes.
How the children react to that sleeper issue?---Yes.
All right. But I would assume that one would have to make sure – or would one have to make sure as part of the process that at least objectively the mother – I’m not saying would overcome her issues at all, but that there was no possibility of harm to the children whilst they had some form of relationship with their grandparents?---Yes. [Appeal Book Vol 2, page 337, lines 18-47].
Dr M reiterated in his evidence that “the more affected the mother is, the more probable and more significant the impact would be upon the children” and confirmed that it would be his recommendation that the mother “get some professional assistance”. [Appeal Book Vol 2, lines 15-22, page 339]
Counsel for the grandparents then asked:
MR HODGSON: And obviously if she was receiving such assistance and also having the support of her loving husband, those would be obviously very positive matters to deal with that and to deal with the impact upon the children. Would you agree with that?--- [Appeal Book Vol 2, lines 23-26, page 339].
to which Dr M replied:
Yes. I would, however – you know, it should, however, be acknowledged that whilst I have recommended psychotherapy for the mother, she indicated a willingness to consider that at the time of my assessment, one should recognise the limitations of therapeutic intervention in such circumstances. It would depend on the motivation of the mother, her ability to actually grasp hold of issues that she has, certainly by her own self-report been very long-standing, very difficult for her to address and one would expect that that would require a long-term and committed intervention and it may indeed kind of require significant intervention. I note that there was a comment – anyway, I won’t go further. [Appeal Book Vol 2, lines 26-35, page 339].
We have not been referred to any other evidence in relation to the prospect of psychotherapy undergone by the mother being successful. Nor did his Honour expressly or impliedly conclude that it would be. The evidence before him did not oblige his Honour to find that psychotherapy would necessarily fail.
It is clear that the orders made by the trial Judge provided on the one hand reasonable objective safeguards against the mother’s concerns whilst providing the mother with the opportunity, which she indicated a willingness to accept, to undertake psychotherapy. The expert opinion evidence supported the possibility of such psychotherapy successfully addressing the parents’ concerns about the children spending time with the grandparents.
Whilst the trial Judge could not and did not find that such psychotherapy would alleviate the mother’s concerns, and enable her to better cope with the children spending time and having a relationship with her grandparents, as learned Counsel for the grandparents submitted, his Honour was “entitled to have some optimism” that it would have that outcome.
In our view, on the findings of fact made by him, in the exercise of an undoubtedly broad discretion, the trial Judge could have concluded that, on balance, the potential benefits to the children of spending time with the maternal grandparents were outweighed by the potential risk associated with such a regime by virtue of its impact on the parenting skills of their mother.
Conversely, we are not persuaded that, in the circumstances as detailed by him, the learned trial Judge erred in making the orders he did. Objectively, in circumstances where the evidence entitled him to have “some optimism” that psychotherapy which the mother agreed to undertake may be successful and where, for at least two years, the grandparents would spend time with the children in an environment in which they would be protected from their mother’s worst fears, we do not find that his Honour erred in the manner asserted in reliance upon this challenge.
In our view it is important to have regard to the terms of the orders made by the trial Judge as, ultimately, the appeal is against those orders. As the trial Judge clearly recognised, to the extent that parenting orders can ever successfully attempt to be “final”, he expressly by his orders, and impliedly by his Reasons for Judgment, allowed for the possibility that the psychotherapy may not have the positive benefits to which the expert opinion evidence before him suggested to be a possibility.
In the circumstances, we do not find this ground established.

Ground 1

Ground 1 of the Amended Notice of Appeal provided:
1.That his Honour erred in law in failing to give any, or any adequate reasons for his decision, but not limited to reasons for:
1.1 concluding that it is in the best interests of the children to make orders in favour of the respondents despite:
1.1.1.the female appellant’s predictable emotional distress and the likely effect thereof upon the children,
1.1.2. the opinion of Dr. [M] to the contrary;
1.1.3.the evidence of the appellants as to the likely effect of such a decision upon the presently well functioning family unit comprising the appellants and their children and upon the appellants personally;
1.2 concluding implicitly that Dr. [M’s] opinion that the benefits in the respondent’s application would be outweighed by other factors (judgment para 13) should be rejected;
1.3 referring to the content of several letters (judgment paras 78, 80, 82, 86, 89 & 91) as “instructive” and yet failing to disclose how that is so and what part the content thereof played in his reasoning process;
1.4 the factual resolution of allegations relating to the historical conduct of the male respondent; therein bearing upon or relevance [sic] to the opinion of Dr. [M] that the female appellant suffered post traumatic stress disorder precipitated by such behaviour and the reasoning process that thereby led to his Honour’s conclusion that the children were not at risk of abuse or harm or risk of exposure thereto in the care of the respondents as his Honour found in para 144 of the judgment.
As Senior Counsel for the parents clearly indicated, this ground was sought to be established by reference to a number of particular complaints articulated in the ground.

Grounds 1.1 and 1.2

In support of Grounds 1.1 and 1.2 it was submitted:
His Honour properly identified evidence which, in the event that orders were made in favour of the respondents, demonstrated:
(a)That the female appellant would suffer emotional distress and it was likely that her distress and anxiety would affect the children;
(b)That Dr. [M], whilst concluding that it would be to the benefit of the children to spend time with the respondents, was of the opinion that those benefits were outweighed; and
(c)That such an outcome would be likely to have significant effect upon this intact and properly functioning family.
Clearly his Honour was entitled to reject the evidence identified in paragraph 2, but should he do so in the context of the present dispute, it is encumbent [sic] upon him to explain the reasons for doing so rather than simply the conclusion. This was the ultimate issue in the case. The dilemma for the trial judge was clear from the beginning and, consistent with authority, both the parties and this court are entitled to understand the path of reasoning for his Honour’s conclusion. [Appellant’s Summary of Argument, paras 2-3, pages 3-4].
It was then submitted that:
His Honour properly identified the nub of Dr. [M’s] views: J2#13. The primary judge acknowledged that the appellants were neither willing, nor had the ability to facilitate and encourage a relationship between each child and the respondents: J26#13. His Honour seemingly accepted Dr. [M’s] view that the effect of the children spending time with the respondents would have an effect upon the female appellant which would ultimately transgress to effect [sic] the children: J26#132. Significantly, it was this cascading effect that Dr. [M] opined outweighed the benefit to the children of spending time with the respondents. There was no serious challenge to Dr. [M’s] opinion on this issue. [Appellant’s Summary of Argument, para 4, page 4].
It was further submitted on behalf of the parents that:
Whilst the primary judge expressed the view that “it will have an effect on these children if they have no time…” with the respondents and family: J26#132. He does not at any point articulate the implicit view (nor any reason for such a view) that he saw this some way as outweighing Dr. [M’s] concerns as to the effect on the female appellant and consequent effect upon the children.
The foregoing implicitly draws into his Honour’s conclusion at J27#141, yet there is a total absence therein of explanation for the view. Indeed, at first blush, on reading #141 the reader may be excused for inferring that his Honour’s conclusion was ultimately one of agreeing with Dr. [M], whereas in fact, for reasons unexplained, he was rejecting Dr. [M’s] opinion. [Appellant’s Summary of Argument, para 6, pages 4-5].
and that:
The path of reasoning simply is not sufficiently transparent. This proposition is fortified by recognition that this constituted the resolution of the critical issue in the case. [Appellant’s Summary of Argument, pars 2 – 7, pages 3, 4 & 5].
On behalf of the grandparents, it was submitted in response that:
These grounds omit any reference to “the sleeper issue” and the potential harm to the children as a consequence. It is submitted that this was a matter of significance in the Trial Judge’s ultimate determination. There was no evidence as to how the mother’s distress and emotional anxiety would affect the children. Neither Dr. [M], the father nor the mother could provide any instances of how such distress which the mother claimed to have experienced in the past (namely in 2001 and 2006) had affected the children or the proper functioning of the family. On all accounts, the children were happy, well adjusted children, who derived considerable benefit from spending time with their paternal grandparents.
It is submitted that the path of the Trial Judge’s reasoning is able to be followed in reaching his conclusion. It is further submitted that there was a serious challenge made to Dr. [M’s] opinion as to the “cascading” effect upon the children, particularly when there had been no such effect in the past. The Trial Judge was satisfied that if the children spent time with the grandparents, it could have the potential to create a possibility of risk of harm to them whilst in the care of the mother. It was however apparent that the Trial Judge agreed with Dr [M’s] opinion that there was merit in the grandparents’ Application as it would be beneficial to the children to have a relationship with members of the maternal family. It is submitted that the Trial Judge has appropriately evaluated the competing issues in coming to his decision. [Outline of Written Submission on behalf of the Respondent Grandparents, page 8, Grounds 1.1 and 1.2].
As learned Counsel for the grandparents submitted, part of the evidence supporting the conclusion that it would be in the children’s best interests to spend time with the maternal grandparents to which the trial Judge referred was the unchallenged evidence before his Honour of potential detriment for the children in the longer term were they to continue having no contact with or knowing anything of their maternal grandparents.
The law which governs this challenge, and challenges to the adequacy of reasons generally, is not in doubt and does not require extensive re-stating in this appeal. Both counsel do not disagree as to the principles which govern this and the other challenges agitated pursuant to this ground.
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279, McHugh JA said:
[W]ithout the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as “a necessary incident of the judicial process” because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.
The giving of reasons for a judicial decision serves at least three purposes.

First, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge's decision. As Lord MacMillan has pointed out, the main object of a reasoned judgment “is not only to do but to seem to do justice”: The Writing of Judgments (1948) 26 Can Bar Rev at 491. Thus the articulation of reasons provides the foundation for the acceptability of the decision by the parties and by the public.
Secondly, the giving of reasons furthers judicial accountability. As Professor Shapiro has recently said (In Defence of Judicial Candor (1987) 100 Harv L Rev 731 at 737):
“… A requirement that judges give reasons for their decisions —

grounds of decision that can be debated, attacked, and defended —

serves a vital function in constraining the judiciary's exercise of power.”
Thirdly, under the common law system of adjudication, courts not only

resolve disputes — they formulate rules for application in future cases:

Taggart “Should Canadian Judges Be Legally Required to Give Reasoned Decisions In Civil Cases” (1983) 33 University of Toronto Law Journal 1 at 3-4. Hence the giving of reasons enables practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future.
…
If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given: Wright v Australian Broadcasting Commission (at 701, 713). In Iveagh (Earl) v Minister of Housing and Local Government [1964] 1 QB 395, Lord Denning MR, speaking of a Minister's duty under the Tribunals and Inquiries Act 1958 (UK) to furnish “the reasons for the decision”, declared (at 410) that:
“… The whole purpose of the enactment is to enable the parties and

the courts to see what matters he has taken into consideration and what view he has reached on the points of fact and law which arise.”

Immediately thereafter their Honours, (Kay, Coleman and Brown JJ) examined the possible statutory bases for such order. Their Honours rejected s 67ZC. That provision was not amended by the amending Act, and it is not suggested by the grandparents’ counsel to be a source of power for the order under challenge. Their Honours, in the circumstances of the case before them, did not consider s 64B as it was then enacted, as an appropriate source of power but said referring to s 67ZC at paragraph 57:
In our view, whatever the limits of the wardship power are, a parent cannot be required to partake in a course of conduct or cease an activity merely because it would be in the child's interest that the parent so do. It may clearly be demonstrated that it is in a child's interest that a parent remain healthy and to that end give up smoking. Some would say it is essential that all adults undergo regular exercise, eat only healthy foods, and refrain from consuming alcohol. It would not be, in our view, a proper exercise of the “welfare” power for a court to place limits on a parent’s conduct unless it could be demonstrated that those limits are necessary for the welfare of the child. Even then, careful consideration would need be given to the right of the parent to conduct their life as they see fit.
Later their Honours said at paragraph 60:
Had the ongoing psychiatric treatment been imposed as a condition of contact, then, in our view, on the evidence available to her Honour such an order could well have been upheld. However, the form of the order leaves it free standing, and in our view it does not comfortably fit within any of the heads of power that we have identified. In those circumstances we ordered that Order 13 be set aside.
At the time of the Full Court decision in L & T s 64B then provided:
64B Meaning of parenting order and related terms
(1)     A parenting order is:
(a)     an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or
(b)     an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).
(2)    A parenting order may deal with one or more of the following:
(a)     the person or persons with whom a child is to live;
(b)     contact between a child and another person or other persons;
(c)     maintenance of a child;
(d)     any other aspect of parental responsibility for a child.
(3)     To the extent (if at all) that a parenting order deals with the matter mentioned in paragraph (2)(a), the order is a residence order.
(4)To the extent (if at all) that a parenting order deals with the matter mentioned in paragraph (2)(b), the order is a contact order.
(5)To the extent (if at all) that a parenting order deals with the matter mentioned in paragraph (2)(c), the order is a child maintenance order.
(6)To the extent (if at all) that a parenting order deals with any other aspect of parental responsibility for a child, the order is a specific issues order. A specific issues order may, for example, confer on a person (whether alone or jointly with another person) responsibility for the long‑term care, welfare and development of the child or for the day‑to‑day care, welfare and development of the child.
(7)    For the purposes of this Act:
(a)     a residence order is made in favour of a person, or the person, with whom the child concerned is supposed to live under the order; and
(b)     a contact order is made in favour of a person, or the person, with whom the child concerned is supposed to have contact under the order; and
(c)     a specific issues order is made in favour of a person, or the person, on whom the order confers duties, powers, responsibilities or authority in relation to the child concerned.
(8)     For the purposes of this Act:
(a)     a person has a residence order in relation to a child if a residence order made in favour of the person is in force in relation to the child; and
(b)     a person has a contact order in relation to a child if a contact order made in favour of the person is in force in relation to the child; and
(c)     a person has a specific issues order in relation to a child if a specific issues order made in favour of the person is in force in relation to the child.
The amending Act now provides that a parenting order may deal with “any other aspect of the care, welfare and development of the child” as well as “any other aspect of parental responsibility” (s 64B(2)(i)), but orders about the day to day care, welfare and development of a child could previously be made as specific issues orders (s 64B(6)).
We propose to consider whether, as was submitted by the grandparents’ counsel, the order could have been made on the basis it dealt with an aspect of parental responsibility.
In Goode and Goode (2006) FLC 93-286 the Full Court discussed at paragraphs 29 to 39 the difference between parental responsibility and equal shared parental responsibility. The Full Court confirmed as correct, post the amending Act, the discussion of the Full Court in B and B; Family Law Reform Act 1995 (1997) FLC 92-755 at 84,216-17 where their Honours noted that the definition of parental responsibility “provides little guidance, relying as it does on the common law and relevant statutes to give it content”.
The authorities on parental responsibility refer to the responsibilities being akin to guardianship and to encompass matters such as responsibility for long term decisions affecting a child, including the child’s education, medical treatment, religious upbringing and name. (See H and W (1995) FLC 92-598 and Chandler & Chandler (1981) FLC 91-008 at 76,112.)
In this case the parents’ parental responsibility for the children has not changed in any respect as a result of the application or orders made by his Honour. The mother’s joint parental responsibility with the father under s 61C is not conditional upon her attending a psychiatrist for therapy. Nor is the grandparents’ time to be spent with the children conditional upon the mother undergoing therapy (and perhaps successfully overcoming her anxieties or other psychiatric disability). As we will shortly expand, the “stand alone” form of the order, given its lack of direct correlation to aspects of the parents’ joint parental responsibilities under s 61C (which can be exercised jointly or severally and which have not been displaced by an order of the Court), suggests a lack of power to make the subject order as an aspect of parental responsibility.
It has not been suggested that either s 68B or s 114 provide the necessary source of power.

Does Section 64B(2)(i) provide the power to support Order 10?

We turn then to consider whether the order can be supported under s 64B(2)(i). There can be no doubt that s 64B(2) enables a court to make orders similar to those made prior to the amending Act as specific issues orders, to include provision that time to be spent by a parent or other person with a child is dependent on that parent or person undergoing psychiatric treatment. But that is not the case here. Rather the parents’ parental responsibility for the children is not dependent upon compliance with Order 10. The children continue to live with the parents who will make decisions for their day to day welfare without the necessity for any court order to that effect.
Order 10 is an order which compels the mother to undergo medical treatment which Dr M considered could require therapy over an extensive period of time, at her cost (Transcript, 6 February 2008, p 88). On its face, it has no direct nexus to “any other aspect of the care, welfare and development” of the children, and is a “stand alone” order as was the order in L & T.
Given the ambiguity as to what is encompassed by s 64B(2)(i) we have had to resort to the Revised Explanatory Memorandum (see Acts Interpretation Act 1901 (Cth) s 15AB). It provides no commentary on s 64B(2)(i). However, paragraph 173 of the Explanatory Memorandum gives some background to the amendments:
New subsection 64B(2) provides greater detail and clarity about the matters that a parenting order can deal with. These matters include who a child is to live with, the time and other communications the child is to have with another person or persons, the allocation of parental responsibility and the form of consultations persons with parental responsibility are to have with one another. In particular, paragraph 64B(2)(g) provides that a parenting order may deal with the steps that should be taken before an application is made to a court for a variation of the order. Paragraph 64B(2)(h) provides that a parenting order may deal with the process to be used for resolving disputes about the terms or operation of the order. The aim is to ensure orders are appropriately framed and flexible to reduce the need for people to go to court about the operation or variation of parenting orders.
While we consider, accepting the expert advice, it would be sensible and probably very beneficial for the mother to undertake therapy, we have considerable doubts that in the circumstances of this case the order, as framed, can be supported under s 64B(2)(i).
We have no doubt that his Honour was entitled to, and did, rely on the mother’s expressed willingness to voluntarily undertake recommended therapy, and to balance that factor with all other relevant matters in the exercise of his discretion in making his orders. We also accept it was appropriate for his Honour to make a notation of the mother’s position as he did in paragraph 11 of his orders.
While as the Full Court found in L & T that it would be extremely beneficial and in the best interests of the welfare of a child, for a parent not to smoke in the child’s presence, we are not satisfied that s 64(2)(i), without more, permits a court to make a parenting order that a parent attend a quit smoking course. Our reasoning is analogous to the reasoning of the Full Court in L & T when discussing the welfare power in s 67ZC(1). The situation would, of course, be different if that parent sought an order for a child to live with, or spend time with him or her, and a court found that during such periods the parent would smoke in a car whilst the child is in the car, or in the house where the child was residing whilst living, or spending time, with the parent. Then the parenting order made in favour of the parent for the child to live with (or spend time with) the parent could be conditional upon attending the quit smoking course as being in the best interests of the child. In our view s 64B(2)(i) confirms and clarifies the law in this regard.
We note that in Sampson & Hartnett (No 10) (2007) FLC 93-350 Bryant CJ and Warnick J did not consider s 64B(2)(i) supported an order that required a parent to live in a particular place (see paragraph 30).
It may be cogently argued that his Honour made this order to ensure the mother’s capacity to cope with the grandparents spending time with the children, and absent the order it was probable that her stress could affect her parenting capacity and thus adversely impact on the children. Thus the order, although on its face not appearing to be a parenting order, could arguably be so classified, being one being which deals indirectly with an aspect of the care welfare or development of the children. However, the form of the order as made rather reflects the form of a mandatory injunction compelling the mother to undertake medical treatment. It is not a parenting order made in favour of the mother (or the grandparents) (see s 64B(6)).
We then turn to consider whether the order could be supported under s 67ZC. Unfortunately neither counsel made submissions directed to that section.
It is not in doubt that s 67ZC is regarded, subject to constitutional limitations, as devolving jurisdiction under the Act akin to the parens patriae jurisdiction (see Marion’s Case (1992) 175 CLR 218; (1982) FLC 92-293; Minister for Immigration & Multicultural & Indigenous Affairs v B (2004) 219 CLR 365; (2004) FLC 93-174). However counsel for the grandparents did not seek to support Order 10 relying on s 67ZC, but relied on s 64B(2)(i) or s 61C. In AMS v AIF; AIF v AMS (1999) 199 CLR 160; (1999) FLC 92-852 Gaudron J said at paragraph 87:
Notwithstanding that the welfare jurisdiction is similar to the parens patriae jurisdiction and that that jurisdiction will support a wide variety of orders and orders of great width, it would be reading too much into a statute simply conferring jurisdiction with respect to the welfare of a child to read it as authorising any order that would promote the child's welfare. That would be to convert a jurisdiction designed to protect against risk into a jurisdiction to supervise parents and guardians in the exercise of their rights and responsibilities.
Hayne J in discussing guardianship and the parens patriae jurisdiction said at 213:
…Nevertheless, it may be doubted that this power permitted the making of any and every kind of order directed to a parent simply because it was thought that the child might benefit as a result…
In the circumstances of this case s 67ZC would provide a head of power for the order made, if the order could be classified as necessary for the welfare of the children. Having regard to the potential implications of the order requiring perhaps lengthy attendances by the mother on a therapist, at an unknown cost, with inherent limitations as to success as acknowledged by Dr M (Transcript, 6 June 2008, p 88), it appears to us, absent the mother’s consent, the circumstances in this case, required careful consideration of whether the facts meant the mother fell into the exceptional category requiring the making of such an order, and whether the matter was thus distinguishable from L & T. We will return to further discuss this source of power shortly.
As we have already noted, counsel for the grandparents submitted that s 61C and/or s 64B(2)(i) provided the relevant source of power to make the order. It does not appear to us as presently advised, that the amendments to s 64B(2), and in particular the addition of the words “any aspect of the care, welfare or development of the child” introduced by the amending Act were intended to enable a court to make orders directed to parents or other persons (in intact or separated families) to engage in a course of conduct which may benefit a child not directly connected to, or conditional upon, a parenting order for the child to live with, or spend time with, that parent or person. We do not, for the reasons earlier expressed, and having regard to the following matters, accept that submission.

In reaching this conclusion, we have had regard to the following:
·in appropriate circumstances s 67ZC may support the making of an order compelling a parent to engage in particular conduct necessary for the welfare of a child independently of a parenting order being made;
·the s 64B(2)(i) deals with an aspect of a parenting order;
·a parenting order is made in favour of a person;
·if the legislation had intended provide for making of “independent” orders under s 64B(2) it would have done so explicitly; and
·the explanatory memorandum does not suggest such an intention.

In summary, while we are satisfied the trial Judge was entitled to rely on the mother’s expressed willingness to undertake voluntary therapy in reaching his overall conclusions for the parenting orders made, absent her consent to an order for such therapy, the order made is not supported in the circumstances of this case, under s 61C or s 64B(2)(i).
Whilst the trial Judge did not explicitly distinguish L & T, and it would have been useful if his Honour had done so, he carefully, in the exercise of his discretion, considered the risk to the children if the mother’s anxiety impacted on them, and put Order 10 in place as part of a necessary scheme to minimise such risk. It is not suggested his Honour failed to take into account any relevant factors, nor did he take into account any irrelevant factor in determining his orders, including Order 10, were in the best interests of the children. On balance, we have come to the conclusion there is no appealable error in making Order 10 under s 67ZC, and that the unique circumstances of this case were distinguishable from those pertaining in L & T.
We thus conclude that this challenge does not have substance.

Ground 4.2

Ground 4.2 provided:
4.That his Honour’s discretionary judgment miscarried as a consequence of errors in principle comprising:
4.2drawing an inference (implicitly) adverse to the case of the appellants for their failure to cross-examine [Mr. Samson], or at least failing to appreciate that [Mr. Samson]’s evidence was not in direct conflict with that of the female appellant as to historical allegations but was more a challenge about the degree and extent of the occasions she described including events by which their nature did not suggest that he had direct knowledge; and
In support of this ground it was submitted that:
At #107 his Honour recorded as “important” that [Mr S Samson] was not cross examined on his evidence.
What is important (and clear from #107) and the reason that [Mr S Samson] was not cross examined, was that (contrary to the trial judge’s description at #147) [Mr S Samson’s] evidence was not in direct conflict with that of the female appellant. The issue was one of perception, degree and colour. His Honour correctly understood this evidence when he recorded at #107 “[Mr S Samson] categorically denied that he and his sister were subjected to the extent of the emotional, psychological and physical abuse that was contended for by the mother” (our emphasis). [Appellant’s Summary of Argument, paras 25-26, page 12].
It was then submitted on behalf of the parents that:
Absence of cross examination and any available inference would not operate to make the evidence any stronger yet his Honour has elevated the consequence (#147) to constituting a denial that was not challenged. [Appellant’s Summary of Argument, para 26, page 12].
On behalf of the grandparents is was submitted in response that:
[T]he failure by the Appellant’s Counsel to cross examine [Mr S Samson] had the consequence that his evidence was accepted unchallenged. [Outline of Written Submission on behalf of the Respondent Grandparents, page 14, Ground 4.2].
and that:
[T]his unchallenged evidence casts doubt upon the veracity and reliability of the mother’s evidence concerning her “dreadful or terrible childhood”. [Outline of Written Submission on behalf of the Respondent Grandparents, page 14, Ground 4.2].
There is perhaps an irony in the logic underpinning this challenge. Notwithstanding that Mr S Samson was not cross-examined to suggest that the children’s welfare would be in some way adversely affected were he to be present during time spent with the grandparents, this challenge appears to seek to exclude him from doing so. Moreover, it is not suggested that the trial Judge failed to correctly understand the evidence of Mr S Samson.
The rule in Brown v Dunn (1893) 6 R 67 (HL) was explained by Hunt J in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 (at 16) in the following terms:
It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn.

In Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 Mahoney JA discussed the rule in Browne v Dunn and said at 235-6
…Browne v Dunn provides an illustration of the principle that a trial must be conducted fairly and so as not to defeat its purpose as a means of ascertaining where, in the case as developed by the two parties, the truth lies. If a trial is not so conducted, it may be held to have miscarried. Whether a trial has miscarried will depend upon all of the circumstances of the case. The matter is one of impression and it is in this sense that, in such cases, the grant of a new trial is said to be discretionary: a new trial will be granted on the ground of miscarriage of justice when the court is satisfied that, for whatever reason and after balancing up all relevant factors, justice requires that there be a retrial.
Browne v Dunn provides an illustration of one of the ways in which a trial
may miscarry. Where, in a civil case, a witness is not cross-examined, it may
normally be assumed that the evidence of that witness is not in contest.
Therefore, as was there decided, in such a case a party who has not cross-
examined a witness will not normally be entitled to submit in address that
the witness's evidence should not be accepted.
But the circumstances of the particular case may negative such an
assumption. Whether it is right to make such an assumption will depend
upon, for example, whether counsel has at the time, given an adequate
reason for not cross-examining the witness or otherwise made it clear that it
is not a proper case in which to make that assumption: ibid at 71 per Lord
Herschell LC. It may be that the witness's evidence is fanciful or such as not
to warrant cross-examination: ibid at 79 per Lord Morris; or that cross-
examination is foregone for other adequate reasons, for example, delicacy:
see Phipson on Evidence, 12th ed, (1976) par 1543 at 618-619 and Halsbury's
Laws of England 4th ed, vol 17, par 278 at 194.
Similarly, failure to cross-examine a witness may not found such an
assumption or render the course of the trial unfair if it is clear from the
manner in which generally the case has been conducted that his evidence will
be contested. This was pointed out by Lord Herschell (at 71). The nature of
the defendant's case and the particulars given, and otherwise the conduct of
it may make it sufficiently clear that such an assumption is unwarranted and
that there has been no surprise or prejudice concerning the matter.
In Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (supra) at 16 Hunt J stated that the rule is “attended more with ignorance than with understanding”. Hunt J stated (at 23) that the practical aspects of the requirement of fairness are:
In many cases, of course, counsel for the party calling the witness in question will be alert to the relevance of the other material in the case to be relied upon for the challenge to the truth of the evidence given by his witness or to the credit of that witness, and in those circumstances counsel will be able to give his witness the opportunity to deal with that other material in his own evidence in chief.
In MWJ v R (2005) 222 ALR 436 ; [2005] HCA 74 the High Court per Gummow, Kirby and Callinan JJ stated at [40]:
Reliance on the rule in Brown v Dunn can be both misplaced and overstated. If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put.
We are ultimately less than entirely clear as to how the matter complained of pursuant to this challenge is asserted to have caused the trial Judge’s discretion to have miscarried. It is sufficient to record that nothing to which we have been referred demonstrates that the trial Judge’s discretion miscarried by virtue of Mr S Samson’s evidence and/or the absence of cross-examination of him by Counsel for the parents. Nor are we persuaded that the trial Judge erred, or otherwise misdirected himself, in reliance upon the fact that Mr S Samson was not required for cross examination.
We do not understand the parents’ case to have been that, if, despite their opposition, orders were made that the children spend time with the grandparents, that Mr S Samson should be excluded from any such periods of time. In fairness, neither the ground of appeal nor anything asserted in support of it, suggests otherwise.
We see no merit in this challenge although, as is apparent, if the parents’ challenges to the trial Judge’s orders providing for the grandparents to spend time with the children were successful and the grandparents are to spend no time with the children, the foundation upon which Mr S Samson might do so would dissolve.

Ground 4.3

Ground 4.3 provided:
4.That his Honour’s discretionary judgment miscarried as a consequence of errors in principle comprising:
4.3making orders for [Mr S Samson] to have time with the children when:
4.3.1he was not a party to the proceedings;
4.3.2 no such order was sought and the appellants were denied natural justice as to the opportunity to address such an order being made.
Nothing further was submitted on behalf of the parents in relation to this ground, Counsel noting in his written submissions “the terms of the ground disclose the complaint and the basis for it.” [Appellant’s Summary of Argument, page 13, para 27].
In response to this ground, it was submitted on behalf of the grandparents that:
[T]he Trial Judge envisaged that [Mr S Samson] could have some opportunity for a continuing involvement with his nieces as he had sought by the reference in his Affidavit. The Appellant’s Counsel did not seek to cross examine him about this opportunity. [Outline of Written Submission on behalf of the Respondent Grandparents, page 14, Ground 4.3].
and that:
Order 7 provided that [Mr S Samson] may also be present and spend time with the children during the periods they spend time with their maternal grandparents. An order was not made that he spend time with the children in circumstances other than when the grandparents spent time with the children. There was not a discrete order for him to spend time with the children. [Outline of Written Submission on behalf of the Respondent Grandparents, page 15, Ground 4.3].
It was then submitted on behalf of the grandparents that:
[T]he Trial Judge was simply specifically permitting [Mr S Samson] to be present in order to avoid future conflict or complaint by the mother than [Mr S Samson] was spending time with the children when they were spending time with their grandparents. Obviously when the children are spending time with the grandparents, they are entitled to bring the children into contact with third parties. The mother’s principal criticism of [Mr S Samson] was that he was collaborating with the grandparents. It is submitted that her other criticisms of his conduct were fatuous. (Appeal Book Volume 2 page 347.30.) Accordingly there was no reason to prevent [Mr S Samson] from being present when the grandparents spent time with the children. [Outline of Written Submission on behalf of the Respondent Grandparents, page 15, Ground 4.3].
Save in one respect raised by Senior Counsel for the parents, there is force in the submission of learned Counsel for the grandparents that the trial Judge’s order simply reflected the reality that Mr S Samson could be present during contact periods exercisable by the grandparents.
Absent an order prohibiting Mr S Samson from so doing, and we do not perceive there had been evidence before his Honour which would have provided a basis for so doing, or being asked to do so, we see no reason why Mr S Samson could not have been present, provided the grandparents were agreeable, during any time the grandparents spent with the children.
Significantly, properly construed, the trial Judge’s orders did not in our view confer on Mr S Samson any rights which were beyond the right to be present and spend time with the children “during the periods they spend time with the maternal grandparents” pursuant to the trial Judge’s orders, provided that the grandparents were agreeable to his doing so.
Objectively, nothing to which we have been referred establishes that, if the challenge to the trial Judge’s orders that the children spend time with the grandparents fails, there is any independent basis for setting aside the order with respect to Mr S Samson. Even if it could, setting aside the order in favour of Mr S Samson would not preclude him from being present during periods of time the grandparents spent with the children.

Ground 6

Ground 6 provided:
6. His Honour’s discretionary decision miscarried in that his Honour:
6.1erred in principle in failing to have regard to the mandate of s.43(b) Family Law Act; or in the event that he did so;
6.2failed to express adequate reasons as to what regard he had to s.43(b) Family Law Act and what role that had in reaching his conclusions.
In support of this ground it was submitted that:
His Honour’s decision was obliged to be determined giving the “widest possible protection and assistance” to that family unit. [Appellant’s Summary of Argument, para 37, pages 16-17].
Having asserted that the “integrity of this family unit and the welfare of the dependent children is at risk as a consequence of the orders made”, Senior Counsel for the parents submitted that:
On the facts of this case no reasonable exercise of discretion could have led to the orders made by his Honour in the shadow of section 43(b). In the alternative in the event that that contention be rejected, then with all the facts of the case his Honour’s decision was at least prima facie at odds with the statute. It is submitted that he had a heightened obligation in terms of the reasons required, to explain the reasoning for the decision in the context of that section. [Appellant’s Summary of Argument, pars 38 & 39, page 17].
It was further submitted on behalf of the parents that:
It is to be conceded that no submission was put at trial mandatory to the provisions of s.43(b), however, as a mandatory principle to be applied in the application of jurisdiction it ought not have been required and the appellants ought not be prevented from raising the point as against his Honour on appeal. [Appellant’s Summary of Argument, para 40, page 17].
In response to this challenge, it was submitted on behalf of the grandparents that “it is not incumbent upon the Trial Judge to express adequate reasons as to what regard he has had to Section 43(b) of the Act.” [Outline of Written Submission on behalf of the Respondent Grandparents page 17, Ground 6].
In reference to s 43 (a) and (c), Counsel for the grandparents submitted that:
[C]hildren have a right to have a relationship with other significant persons in their lives and in particular their grandparents. It is submitted that the orders of the Trial judge protect that right, as well as protect their welfare. [Outline of Written Submission on behalf of the Respondent Grandparents page 17, Ground 6].
In support of this, Counsel for the grandparents submitted that:
[T]he definition of “family” has been expanded by the amendments to the Act and that the term “family” is not restricted for example to a married couple and their natural children. It is submitted that Section 43(b) can be read in a wider sense to include family relationships. In any event, as members of the family unit, the children have a need to [sic] the widest possible “protection and assistance.” [Outline of Written Submission on behalf of the Respondent Grandparents page 17, Ground 6].
It was further submitted that:
[I]n any event that there was no evidence of how “the effect” upon the mother would impact upon the happiness and security of the family and the welfare of the children. This was the prediction of the father, which was not based upon any past experience. It is further submitted that the Trial Judge exercised his discretion appropriately and that his decision was not at odds with Section 43(b) of the Act. [Outline of Written Submission on behalf of the Respondent Grandparents pages 16-17, Ground 6].
Section 43 of the Act provides:
Principles to be applied by courts
The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to:
(a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;
(b) the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children;
(c) the need to protect the rights of children and to promote their welfare;
(ca) the need to ensure safety from family violence; and
(d) the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children.
Sensibly, it is not suggested that s 43 could operate to preclude the making of orders of the kind made by the trial Judge in this case. Significantly in our view, s 43 of the Act is not contained within Part VII of the Act. Part VII refers to the matters to which a judge exercising the powers conferred by that part must have regard. They are numerous, and do not include s 43, either expressly or by necessary implication. We are thus not persuaded that the trial Judge’s failure to expressly refer to s 43 of the Act constitutes an error of principle.
It is not, and could not be suggested, that the trial Judge was unaware that the parents were cohabiting in a marriage. Nor could it be suggested that the trial Judge was under any misapprehension as to the potential impact upon the marriage of the parents of any orders that the children spend time with the grandparents despite the opposition of the parents to their doing so.
The trial Judge was acutely aware of the impact on the mother of making orders that the children spend time with the grandparents and its potential consequential impact upon the father. We have earlier set out a number of parts of his Honour’s Reasons for Judgment in relation to those matters.
Thus, whilst we are not persuaded that the trial Judge was obliged to have regard to the principles emerging from s 43 of the Act, nothing to which we have been referred persuades us that his orders could in any way have offended those principles. On the contrary, the trial Judge’s concern to accommodate the mother’s concerns, and thereby alleviate their impact on the children and the father, can be seen as recognising and reflecting the principles articulated by s 43 of the Act. Further, in our view the terms of the orders made by him provided the preservation, protection and safety to which s 43 refers.
We accordingly find the trial Judge has erred in neither principle nor discretion in any of the ways asserted by this ground.

Conclusion

No ground of appeal having been made out, the appeal should be dismissed.

Costs

Through their learned Counsel, the grandparents informed the Court that, if successful, they did not seek any order for costs against the parents. We respectfully commend the grandparents for adopting that course and hope that such conciliatory approach will not be lost on the parents, the reality being that, having unsuccessfully challenged the discretionary judgment, the grandparents would have had at least an arguable case for costs.

I certify that the preceding two hundred and sixty three (263) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 19 November 2008