JOYNER & WHITESIDE - [2015] FamCAFC 44

FAMILY COURT OF AUSTRALIA

JOYNER & WHITESIDE

[2015] FamCAFC 44

FAMILY LAW – APPEAL – CHILDREN – Appeal against parenting orders of Federal Circuit Court Judge – With whom a child spends time – Where the ICL and mother resist appeal – Where many of the contended grounds of appeal did not constitute grounds of appeal or, even if established, could not lead to any interference with the exercise of discretion of the trial judge – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Appeal against parenting orders – Where appeal wholly unsuccessful – Appellant to pay the costs of the respondent.

Family Law Act 1975 (Cth) s 60CC

Australian Coal v Shale Employees Federation v The Commonwealth (1993) 94 CLR 621
Gronow v Gronow 144 CLR 513
House v R (1936) 55 CLR 499
Metwally v University of Wollongong (1985) 60 ALR 68
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Stead v SGIC (1986) 161 CLR 141
V v V (2002) 211 CLR 238
Vismay & Shaw [2014] FamCAFC 124

APPELLANT:

Mr Joyner

RESPONDENT:	Ms Whiteside
INDEPENDENT CHILDREN’S LAWYER:	Wayne Dunstan

FILE NUMBER:

MLC

4710

2008

APPEAL NUMBER:

SOA

2013

DATE DELIVERED:

26 March 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

Ainslie-Wallace, Ryan & Tree JJ

HEARING DATE:

12 November 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

9 August 2013

LOWER COURT MNC:

[2013] FCCA 819

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Mr Ibrahim of Madinah Legal

COUNSEL FOR THE RESPONDENT:

Ms Conlan

SOLICITOR FOR THE RESPONDENT:

Victoria Legal Aid

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McCreadie

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Bowlen Dunstan & Associates Pty

Orders

Leave be given to the appellant father to amend the Order 1 sought in the Amended Notice of Appeal filed 26 September 2014 as sought in the Application in an Appeal filed 16 October 2014.
That the appeal be dismissed.
That the appellant father pay the respondent mother’s costs of and incidental to the appeal within one (1) month of the quantum of costs being agreed or assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Joyner & Whiteside has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 54 of 2013
File Number: MLC 4710 of 2008

Mr Joyner

Appellant

And

Ms Whiteside

Respondent

REASONS FOR JUDGMENT

Introduction

For reasons delivered on 9 August 2013 (“Reasons”) Judge Burchardt ordered that Ms Whiteside (“the mother”) have sole parental responsibility for the child of the parties, X (“the child”) born in 2006, who was to live with her, and spend time with Mr Joyner (“the father”) during the day on each alternate Sunday, for two religious days of significance and Father’s Day. There was also to be communication between the father and child each Wednesday. The father appeals against those orders and seeks in lieu that the child spend equal time with the parties.
These proceedings were undertaken with an Independent Children’s Lawyer. The mother and the Independent Children’s Lawyer (“ICL”) resist the appeal.

Background

The mother was born in 1978 in an African country. She is therefore presently 35 years of age. She arrived in Australia in 1999.
The father was born in 1968 in the same country as the mother and is presently 46 years of age. He arrived in Australia in 1999.
The parties met in 2000 when both were living in Melbourne. In 2003 the parties undertook what was described by the trial judge as an arranged marriage. The mother was not employed throughout the marriage while the father was employed. The parties separated on 19 February 2007 when the child was only a few months old.
The child has since separation lived in the primary care of his mother, save for some occasions when the father has withheld him.
The father remarried in 2008 to which relationship he had a further child, Y. That relationship concluded in 2010.
At the time of the trial, the mother had not re-partnered, and was living with her mother and the child in a unit in a Melbourne suburb. She was not in employment. The father was residing in a unit in inner Melbourne, apparently alone. He remained in part-time employment.
The father first commenced parenting proceedings in the Federal Magistrates Court (now Federal Circuit Court) in 2008. On 21 January 2009, consent interim orders were made for equal shared parental responsibility, and for the child to live with the mother, and spend short periods of supervised time with the father.
It seems that the father’s case in the lead up to a final hearing was that he had real concerns about the mother’s parenting capacity. Specifically, the father asserted a risk that the child was being sexually abused by the mother’s cousin and that the mother’s lack of English language skills would negatively impact on the child. Notwithstanding those concerns, final orders were made by consent on 1 April 2011. Those orders provided that the parties have equal shared parental responsibility for the child, who was to live with the mother, but spend gradually increasing time with the father, until a regime which saw him spend each alternate weekend from Friday 5:00pm until Sunday 5:00pm was reached. There was also additional time on Wednesdays.

The current proceedings and reasons for judgment

In 2012 the child attended B Primary School. From time to time during that year, he went into his father’s care showing signs of bruising. This led to the father becoming concerned about the physical safety of the child whilst at school, or otherwise in the mother’s care. In consequence he did two things. The first was that from time to time he withheld the child from going back into the mother’s care, contrary to the consent orders of 1 April 2011. The second was that he attempted to raise his concerns with the relevant authorities, including at the child’s school. He appears not to have been satisfied with the responses he obtained from the school, which were to the effect that the bruising was sustained in the course of usual playground activities, for instance, colliding with another boy when he and the child were both racing to be first in line.
The father also sought assistance from child protection authorities and police, although he was not satisfied with their responses. He began to believe that there was a conspiracy between, at least, the school and child protection authorities. Further, it appears as though the father’s concerns that he had held as at 2011 (dealing with the mother’s alleged intellectual impairment, the risk of sexual abuse, and her English language skills) continued unabated.
On 6 December 2012 the father again withheld the child from the mother. In consequence the child missed the last three weeks of his preparatory year, including a school excursion and three transition days for the next school year.
On 17 December 2012 the mother filed an Initiating Application seeking a recovery order and an injunction to restrain the father from further withholding the child. The Recovery Order was made on 7 January 2010 and executed on 10 January 2013.
As ultimately formulated, the final orders sought by the mother at trial were that she should have sole parental responsibility for the child, who should live with her and spend four hours on both Saturday and Sunday with the father on each alternate weekend. She justified sole parental responsibility resting with her on the basis that it was becoming increasingly difficult to parent the child as the father’s allegations and over holding of the child were causing a high level of anxiety for both herself and the child. There were several reasons why she contended there should be no overnight time spent between the child and the father. However, the mother primarily justified the orders sought on the basis that a reduction in time with the father was necessary to minimise the unsettling influence of the father, and was the only way to put stability back into the child’s life given the constant disruption caused by the father’s allegations and refusing to return the child.
For his part, the father appears to have conceded that the mother should have sole parental responsibility, but contended that the child should spend equal time with each parent on an alternate week about basis. Additionally the father sought specific orders in relation to the child’s schooling (he wanted him withdrawn from B Primary School and enrolled instead at E Primary School) and also wanted a change in the child’s weekend Religious School.
A family report was prepared by a social worker, Mr H (“the family report writer”) on 19 March 2013. He recommended that the child live with the mother, who should have sole parental responsibility for him and spend from 9:00 am to 5:00 pm on both Saturday and Sunday each alternate weekend with the father. Ultimately the ICL contended that orders should be made consistent with those recommendations, save that the father’s time with the child should be only on alternate Sundays rather than both Saturdays and Sundays.
In his reasons, the trial judge preferred the orders contended for by the ICL, and accepted the family report writer’s evidence. Particularly his Honour:
·Concluded that the mother should have sole parental responsibility because of the parents’ extremely poor communication, finding that “their capacity to communicate [is] almost nil” (Reasons [101]). Further, his Honour found that the father was “obsessed with his conspiracy theory and this manifests itself in his response to matters to do with whether or not [the child] has been abused, whether he is properly cared for, and whether he is the subject of ill treatment at school…” (Reasons [102]);
·Determined that the child should live with the mother and not spend overnight time with the father, primarily to limit the child’s exposure to the father’s views, and influence (Reasons [105]) but also because of the strained interaction between the child and the father (Reasons [107]) and further that the father’s intractable views of the mother’s intellectual impairment and the like, from time to time had led him to hold over the child (Reasons [110] – [113]);
·Accepted the family report writer’s evidence that the father “displays no insight or empathy into the impact of his [withholding] behaviour on [the child] or [the mother]. The psychological and emotional risk to [the child] to prolonged exposure to this behaviour and thinking outweighs the benefits derived from a more extensive relationship with his father” (Reasons [116]);
·Refused to change the child’s school or Religious School, or order a permanent restraint from the child being in the presence of the family member whom the father believed had sexually abused him (Reasons [2] and [123]).

The appeal generally

The Amended Notice of Appeal filed 26 September 2014 contained 13 grounds of appeal. Correctly, both the mother and the ICL observed that, strictly speaking, many of them did not constitute grounds of appeal or, even if established, could not lead to any interference with the exercise of discretion of the trial judge. Nonetheless it is convenient if we consider each ground of appeal notwithstanding such deficiencies as may attend them.
We should also at this point note that, pursuant to orders made by Strickland J on 9 July 2014, it was determined that this appeal could proceed without transcript, as the appellant was unable to afford the costs of obtaining it. There is a strong presumption in favour of the correctness of the decision appealed from: Australian Coal v Shale Employees Federation v The Commonwealth (1993) 94 CLR 621 at [66-67]. The absence of a transcript cannot be permitted to undermine the strength of the presumption and necessarily adds a layer of complexity for an appellant who attempts to challenge the adequacy of the reasons in the decision under appeal.

Grounds 1 and 6

These grounds were argued together. Ground 1 provides:
The Court erred by stating that the mother … was the applicant in these proceedings because the Application which sought to amend the care arrangements of the child were initiated by the father.
Ground 6 provides:
Under section 60CC(3)(a), (b), (c), (d), (f), (g), (i), (j), (l) and (m) the Magistrate erred by relying on evidence given by the Independent Child Psychologist [Mr H] whose written report demonstrated bias against the Father in that is was solely and entirely focussed on the Father and also demonstrates that his questioning of the Child was leading and delivered in a context that would make the Child apprehensive of interacting with the Father and this therefore did unduly influence the Child’s immediate behaviour in the presence of the Father while also failing to address the concerns raised by the Father regarding the aspects of negative influence that the Mother and her extended family impact on the Child.
Ground 1 misstates the facts. The mother was the applicant in the proceedings which were commenced by way of Initiating Application filed by her on 17 December 2012. She remained the identified applicant in the Amending Initiating Application filed 7 May 2013, which was the application being dealt with by the trial judge.
There is no error established by ground 1.
As submitted, ground 6 asserted that the judgment was infected with serious flaws which it was said attended the family report. Those flaws were said to be twofold. Firstly, it was contended that the family report was prepared in a “one-dimensional” way, in that it primarily focused upon the reasons why the father withheld the child on 6 December 2012, and did not investigate the quality of care which the child experienced when living with the mother. Secondly, the family report was said to be flawed because the family report writer was not aware that a substantial reason for the father’s concerns which led to him withholding the child in December 2012 was an alleged history of poor communication between himself and the school.
The argument then proceeded that because the ICL largely justified the orders which he sought by reference to the family report, and because the trial judge adopted the ICL’s proposed orders, therefore the orders as pronounced were infected by the flaws that were said to attach to the family report.
Before considering those arguments, it is useful to understand the key reasoning in the family report. The critical paragraph is [33] which provides as follows:
The recent incident of over holding [the child] appears to represent an unprovoked escalation of past behaviours. It significantly disrupted all aspects of [the child’s] life and [the father] displays no insight or empathy into the impact of his behaviour on [the child] or [the mother]. The psychological and emotional risk to [the child] thorough prolonged exposure to this behaviour and thinking outweighs the benefits derived from a more extensive relationship with his father. In this context it is recommended [the child] spend time with [the father] each alternate Saturday from 9:00am until 5:00pm and each alternate Sunday from 9:00am until 5:00pm.
From this it can be seen that it was the father’s behaviour and thinking that the family report writer concluded carried such a risk of harm to the child, as to outweigh the other benefits that would otherwise ensue from their relationship.
To return to the father’s submissions, we firstly deal with the allegation that the family report was too focused upon the father’s conduct, and not sufficiently focused upon the mother’s care. In support of this challenge, the solicitor for the father submitted that there was no questioning of the child about his care when living with the mother, and the child was only questioned about his father.
As we have previously indicated, no transcript of the hearing was available for our assistance at the hearing of the appeal. However we were told by the solicitor for the father (who appeared for the father both at trial and on appeal) without contradiction, that he had cross-examined the family report writer in relation to the manner in which he interviewed the child. He said the family report writer conceded that he did indeed only ask the child about his father, in accordance with his instructions from the ICL. For the purposes of this appeal, we are prepared to proceed on the basis that that is correct.
Whilst we accept that ordinarily a family report writer preparing a family report might be expected to investigate and analyse the child’s attachments with key figures in its life, and the physical environment in which those relationships take place, it does not follow that the family report writer is obliged to ask the same questions of, or in relation to, each parent. Rather in our view, the family report writer is entitled to structure the process which generates their report according to the individual requirements and dictates of each case. Those circumstances will include the age of the child in question, and hence the weight that might be given to comments made by the child in response to direct questioning.
Even assuming that the family report writer did not ask the child the same series of questions in relation to his time with his mother as he was asked in relation to the father, the family report details the family report writer’s interview with the child at [18] and [19], which provides insight into the child’s time in the care of the mother and father respectively:
18. …[The child’s] acquired and receptive language skills were at appropriate levels for his age and development and he looked healthy and well groomed. [The child] attends [B] Primary School and is in grade 1. He likes his teacher, was able to name several friends, and presents as well integrated into his school community. He talked about his swimming and soccer in positive terms.
19. [The child] had no understanding of our meeting and the writer explained the role in age appropriate terms. [The child] reports feeling bored and unhappy at his father’s, there are no computer games, and he mostly sits in the lounge and watches television when not visiting paternal relatives. He reports feeling confused and frightened when over held by his father and was happy and relieved when returned to his mother…
Such material is an explicit recognition that the child was at least happy to be significantly in the mother’s care.
It is noteworthy that at trial, it was the father’s case that the child should spend half his time with the mother, a position which is fundamentally inconsistent with the complaints that he made about her in relation to her ability to parent the child. The family report does disclose at [27] that the writer had regard to material germane to the mother’s parenting. Particularly where the family report writer stated:
…There is nothing in the material before the writer that suggests that [the mother’s] parenting is neglectful or inappropriate. On the contrary, the material and interviews suggest she is a nurturing and skilled parent and [the child] is thriving in her care. In this context, [the father’s] application for the full time care of [the child] is contraindicated and not recommended.
We are therefore not persuaded that the family report writer failed to adequately consider the quality of care the mother provided to the child.
However even if there were some such deficiency in the family report in this regard, it does not follow that it carried forward to impact upon and impeach the judgment. For instance at [30] of the Reasons the trial judge referred to the child’s living arrangements with the mother; at [32] his Honour referred to the mother’s evidence in relation to her care of the child including food, clothing and emotional comfort; and at [67] referred to the evidence of the child’s teacher, as to his progress at school, describing him as “…an extremely happy little child with lots of friends, including one in particular called [P]; he has made terrific progress; he has started with little reading but has caught up, and gone past, other children.”

In the following paragraph the trial judge referred to, and apparently accepted, the child’s teacher’s evidence that:
...There were no problems with the mother and that [the child] was always neat and tidy. He always has a healthy lunch with fruit…
Therefore, to some extent the criticism mounted by the father under this ground descended to an assertion that there should have been questions directed to the child in relation to such things as his sleeping arrangements, what he ate at home and his relationship with his mother. However, it is plain that in relation to these matters the trial judge had regard to the evidence derived from sources outside of the family report.
Next we turn to the allegation that the family report writer failed to properly appreciate the alleged difficulties which the father had in communicating with the child’s school, which in turn, it was argued, provided some explanation for his concerns as at December 2012, and which led to him withholding the child from returning to the mother’s care. The first point is that we cannot be satisfied that the family report writer in fact did not know of the poor communication history between the father and the school. The highest that the solicitor for the father was prepared to put it before us was that “he believed he may have raised it” with the family report writer in cross-examination. That is not a sufficient basis from which to found the factual premise which underpins this aspect of the ground of appeal. Absent transcript or agreement between the parties, we are not prepared to speculate on what may have occurred at trial.
In any event, the solicitor for the father conceded that the family report writer was not cross-examined by reference to any impact which any history of poor communication between the father and the school might have had upon his opinion and recommendations. Where a party does not make those sorts of challenges at trial, they should only in the most exceptional of circumstances in relation to contentious factual matters, be permitted to raise a new argument on appeal. Otherwise they remain bound by the way they conducted their case at trial: see Metwally v University of Wollongong (1985) 60 ALR 68.
Ground 6 wholly fails.

Grounds 2, 11 and 12

Ground 2 provides:
The Magistrate erred in his statement by making reference to an ‘extensive set of proceedings’ between both parties but failed to reduce the weight given to the significance of those proceedings based upon evidence that indicated that the father’s language skills and reliance on expeditious practices of his previous lawyers, especially regarding him apparently ceasing to require a conclusive examination of the child for abuse, demonstrated his lack of understanding and ability to make an informed decision relating to the outcomes of those proceedings due to what might be regarded as exploitation.
Ground 11 provides:
Under section 60CC(2), (2A) and (3) the Magistrate erroneously gave weight to submissions regarding the risk of the Child being subject to physical or psychological harm in view of the Father’s concerns and attempts to maintain the safety of the Child.
Ground 12 provides:
Under section 60CC(l) and (m) the Magistrate erred in his consideration of the relevance of the length of the parenting dispute between the Parties thus reflecting a more punitive rather than meritorious judgement as it is so indicted throughout the judgement and also stated in the headnotes and this is reflected as due to the occurrence of change in the status quo against the Father despite him being considered to having had a reasonable apprehension that justified why he over held his Child.
In oral argument before us the solicitor for the father emphasised that these grounds supported the father’s contention that the Reasons reflected a punitive approach, particularly punishing the father for the holding over of the child in December.
We are not persuaded that the judgment is punitive in nature. A proper consideration of [110] to [113] of the Reasons establishes that there were three steps in the trial judge’s reasoning arising from the father’s retention of the child in December 2012. The first is that his Honour found, as a matter of fact, that the father had withheld the child. The second is that the father’s retention of the child was found to be “for reasons which have no objective basis” although “the father has undoubtedly acted from what he perceives to be proper motives.” The third step is that the effect of that retention has both been bad for the child’s schooling, and for the child generally, to the point of being “extremely damaging to the child.” It was expressly to minimise the risk of such damage in the future that the orders were made reducing the father’s time with the child [129].
These findings were open to the trial judge. We do not construe any of these three grounds as directly challenging that approach, or those findings which are cogent, logical and reasonable. It is not punitive in the way contended for by the father.
Turning to the individual grounds as advanced in the written Summary of Argument, it is difficult to obtain a firm grasp as to what the nub of the matter of complaint raised by ground 2 comprises. It is correct to say that at [3] of the Reasons the trial judge noted the previous “extensive” litigation between the parties, and indeed that appears to be uncontroversial. His Honour also adverted to the father’s difficulty with the English language at [84].
At [13] of the father’s Summary of Argument he said as follows:
Therefore to refer to these proceedings as being extensive appears to infer an abuse of process or some indignant short coming of the father though on each occasion the impetus of the father’s actions have been motivated out of concern for the safety of the child which must be regarded as the paramount and above all other concerns.
We do not think that his Honour’s use of the word “extensive” to describe the previous litigation contains any finding or inference that the father had, in some sense, misconducted himself in those proceedings. We do not read the Reasons as finding or inferring conduct of the father’s akin to an abuse of process or other “shortcoming”. There is nothing elsewhere in the Reasons from which such a conclusion is stated or could be inferred. Moreover, it is plain that the court accepted that the father’s actions were justified in his own mind; they were however not objectively justified.
This ground of appeal has no merit and fails.
As to ground 11, at [104]-[105] of the Reasons, the trial judge found that the child was at risk of psychological harm from spending time with the father, because of the father’s propensity to use that time to investigate matters with a view to making unwarranted notifications about the child to relevant authorities.
Specifically, at [105], the trial judge accepted [34] and [35] of the family report which stated:
34.In conclusion, the recommendations in this report are aimed at supporting the parenting capacity of [the mother] and providing stability and continuity for [the child]. [The mother] has endured considerable assessment, scrutiny, and disruption to her role as the primary care giver as a result of [the father’s] allegations and behaviour. The requirement for agencies to constantly respond to [the father’s] allegations risks becoming a form of systems abuse.
35.It is difficult to predict the long term impact on [the child] of constant exposure to the allegations of neglect and sexual abuse suffice to say it will be negative and psychologically damaging if it continues at its current levels. The recommendations in this report seek to limit [the child’s] exposure to [the father’s] views and influence, while providing sufficient time to maintain the relationship, until [the child] is mature enough to articulate a more definitive preference around the arrangements.
The trial judge was not persuaded that there was any such risk of harm posed to the child by the mother [108], [109] and [110].
The need to protect a child from serious psychological harm, when a live issue in a particular case, should always be a matter of concern and careful evaluation by a court. Therefore the trial judge was obliged to give real weight to the risk of harm which he found that the child was exposed to. In doing so he did not err.
This ground of appeal must fail.
Turning then to ground 12, it appears clear that the genesis of most of the disputes between the parties since separation in relation to the child, have been founded upon the father’s belief that the child is at risk of varying kinds of harm in the mother’s care. His Honour had regard to relevant passages of the family report to which we have already referred. Indeed the trial judge concluded that the likely perpetuation of those claims by the father posed a risk of psychological harm and systems abuse to the child [105], [110] and [129]. It was this consideration which appears to have motivated the court to determine that the father’s time with the child should not include overnight time and should be restricted to one day per fortnight [129]. Properly construed, this is to be seen as a protective mechanism rather than a punitive one, although the father may see it as punitive.
His Honour was satisfied that the effect of the orders, which minimised the child’s time with the father, was in conformity with the additional consideration in s 60CC(3)(l).
There is no merit in ground 12 and it fails.

Ground 3

This ground provides:
Under section 60CC(2), (3)(a), (b), (c), (d), (f), (g), (i), (j), (l) and (m) the Magistrate erred in his reliance on affidavit evidence of the mother … filed in previous proceedings that was not put in the current proceedings concerning this appeal and therefore that evidence was not duly subject to cross-examination and furthermore the Magistrate did not reflect on affidavit evidence of the father … filed in previous proceedings.
The trial judge’s references to affidavit evidence prepared in anticipation of the hearing on 1 April 2011 occurred in two locations within the Reasons. The first is at [10] and [11] where his Honour said:
10. The parties have filed quite a number of affidavits, both in this tranche of proceedings and in the proceedings before Judge Hughes. I do not propose to traverse these materials in any great detail. They show, however, that the positions that the parties adopt now have been to a very considerable extent constant throughout.
11. The father’s position in his affidavits – perhaps stressed more in earlier than later ones – is that the mother is a poorly-educated, very simple woman, who cannot properly look after the child. The father asserts that the mother is wholly dependent upon her sister, [Ms A], and her mother. He asserts that the mother’s illiteracy (in all scripts and languages) and her complete lack of English make her utterly dependent upon her sister and mother.
The second reference is at [16] to [18], as follows:
16. It should be noted that in proceedings before Judge Hughes, both parties were the subject of psychiatric examination. The report of Mr [K] dealt with the father’s mental health, and it is sufficient, in my view, to say that it showed nothing remarkable. The father has sought to make capital out of some remarks in the report of Dr [K] who examined the mother. Dr [K’s] report, which is annexed to the affidavit of the mother filed 17 August 2009, is dated 30 April 2009.
17. In my view, the most telling extract from that report is at [11] where Dr K said:
“In summary, this is a woman without any psychiatric ill health issues or a diagnosis as such. However, I suspect that her personality type is of the soft maternal, and somewhat dependent disposition. People with this personality type often make particularly good parents.
As she does not have a psychiatric ill health condition, no treatment is indicated for her. I consider it most unlikely that there would be allegations upheld that she was somehow physically aggressive to the child. However, a court will hear the totality of the evidence, and decide that situation.
She appears to get on well with her own mother, and sister who live in the commission flats where she resides. No treatment is indicated for her at this stage. She seems to be warmly devoted towards her child, and I gained the impression was a stable, and appropriate mother.”
(original emphasis)
18. It should be noted that there are two family reports prepared by Mr [S], to which I have already referred. Those reports speak for themselves. They record inter alia the father’s criticisms of the mother as set out above, and I note that in each instance Mr [S] was of the clear view that the child should live predominantly with the mother.
It is common ground before us that all of the material referred to in those paragraphs was material that had been prepared in anticipation of the trial before Federal Magistrate Hughes, which settled on 1 April 2011.
Other than Dr K’s report of 30 April 2009, there is no part of the mother’s earlier evidence which is recited or alluded to by the trial judge.
There is no reason to think, given the reference in the family report to the two previous family reports, and the fact that Dr K’s report was relied upon by the father rather than the mother, that the father has been denied natural justice in being unable to adequately respond to any of that material. The father having relied on those portions of Dr K’s report which he did, to the extent that the material is considered by his Honour, the father cannot now complain.

His Honour’s reference to the parties’ earlier material was at its highest treated as background material which, uncontroversially, supported the positions each of the parties held at trial and demonstrated that their positions had remained relatively constant over the years.
Moreover, even if there had been some failure to afford procedural fairness to the father, it is incumbent upon the father to satisfy us that such failure made a difference to the outcome of the proceedings: see Stead v SGIC (1986) 161 CLR 141. As to that, although at [10], [11] and [16] to [18] of the Reasons the trial judge did indeed recite aspects of the earlier evidence, these matters were not central to his Honour’s findings, which arise out of the evidence adduced in the hearing before his Honour and his acceptance of the expert opinion provided by the family report writer.
This ground of appeal fails.

Ground 4

This ground provides:
Under section 60CC(2), (3)(a), (b), (c), (d), (f), (g), (i), (j), (l) and (m) the Magistrate erred in his estimation of the Father’s evidence fundamentally in principle by failing to examine details referred to by the Father concerning his responsibilities towards the child as were referred to in previous rulings or due to the lack of completeness documented in regards to the Father’ evidence given in relation hereto; by failing to appreciate the extent of the deterioration of the Father’s relationship with the Child’s school and that the touted progress of the Child especially considering his younger age could be easily contrived as a mechanism to undermine the Father; and by placing misplaced insistence on the number of days the Father over held the Child over the reasons given and actions taken in regards to why the Father did over hold the Child. Also for the Magistrate to assert that the Father does not know ‘where the truth lies’ is a pervasive comment which fails to consider the lack of communication that has occurred between the Father and agencies who in some respect or another have responsibilities toward the Child and otherwise misconstrues the Father’ preventative approach of concern for his Child as being ‘obsessive’ rather than sound and legitimate.
It is very difficult to get to the nub of the complaint raised by this ground of appeal, but it appears to be a complaint that the trial judge failed to properly evaluate and give weight to the father’s evidence. In particular, it appears to complain that the trial judge failed to properly appreciate that the father’s retention of the child on occasions was a reasonable and protective response and that the court generally construed the father’s behaviour unfavourably.
There were five matters which the solicitor for the father specifically asserted his Honour failed to give adequate weight. Those were:
·The mother’s alleged statements to the child that the father does not love him;
·The father’s psychologists’ views as to the soundness of the father’s mental state, the reasonableness of his conduct and the genuineness of his beliefs;
·The evidence of the father’s subsequent wife that they were able to co-parent easily in relation to Y;
·The father’s reasons for withholding the child from returning to the mother’s care, and particularly his concerns that the child was at risk of being sexually assaulted by a family member of the mother; and
·The asserted alienation by the mother of the child from the father, for instance, her failure to put the father’s name on the child’s school enrolment form.
It is well established that there are inherent difficulties in challenges as to weight in matters such as these: Gronow v Gronow 144 CLR 513 at 519-520. There Stephen J stated:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.
It is also well established that, particularly in such fact rich cases of this nature, a trial judge is not obliged to refer to every piece of evidence, or every contention relied upon by a party: see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259; V v V (2002) 211 CLR 238 at [80] and Vismay & Shaw [2014] FamCAFC 124 at [45].
Rather the real question is whether the determinations of fact made were reasonably open on the evidence. The question of the weight given to individual components of the evidence is quintessentially a matter for the trial judge, subject to the caveat that if the finding of fact is either not reasonably open on the evidence, or otherwise plainly wrong, appellate intervention may ensue: House v R (1936) 55 CLR 499. That is not the way in which this appeal ground is cast or was argued. Even if it were so argued, it would not have merit. That is because although findings were made by the trial judge consistent with the first four matters listed in paragraph 70 of these reasons, it is apparent that these were not matters which his Honour viewed as weighing substantially in favour of the orders sought by the father, or as undermining the desirability for the child of the orders propounded by the mother and ICL.
This ground of appeal will be dismissed.

Ground 5

This ground was abandoned.

Ground 7

This ground provides:
Under section 60CC(3)(a)(c)(d)(g) the Magistrate erred by giving disproportionate weight and also relying on evidence given by [the child’s teacher] … for the reasons that she was a surprise witness not duly subpoenaed and therefore questions that might have been asked regarding her of other witnesses were not able to be asked and she was in effect able to give testimony effectively unchallenged.

The father filed his trial affidavit on 15 May 2013, being the day before the commencement of the trial. On the second day of the trial, counsel for the ICL sought, and obtained, leave to issue a subpoena to the child’s teacher to give evidence in the trial on 24 May 2013. No ground of appeal relates to, or application for leave to appeal has been brought from, that grant of leave.
It follows that those appearing for the father had from 17 May 2013 until 24 May 2013 to prepare for the cross-examination of the child’s teacher. Indeed she was then cross-examined by the solicitor for the father. No application was made to defer that cross-examination or adjourn the trial.
Further the solicitor for the father said to us that during the course of his cross-examination of the child’s teacher, he stopped asking questions of her “when it became apparent that she was just flatly lying.” He said that at that juncture he told the trial judge that, since the witness was lying, there was no point in asking her any further questions. On appeal, the solicitor for the father conceded that was a forensic decision on his part. In a sense, the solicitor for the father thereupon pinned his hopes to being able to persuade the trial judge that the child’s teacher was dishonest, rather than continuing to test her evidence.
This ground of appeal, perhaps more than any other, is made more difficult for the appellant to argue in consequence of the absence of transcript. That is because, as the child’s teacher gave her evidence in chief orally pursuant to subpoena, we do not even have any affidavit of hers before us. Further, it appears as though all that occurred during the course of the cross-examination was that the father formed the view that the witness was being dishonest, advised the solicitor for the father of that, and the solicitor for the father advised the court accordingly. No request to recall the father or any other witness to give evidence to rebut the child’s teacher’s evidence was made, nor was any other issue raised by the father in relation to the child’s teacher’s evidence at the trial.
As it transpired, the father did not persuade the trial judge that the child’s teacher was lying, and his Honour accepted her evidence. Once accepted as truthful, her evidence was important and compelling.
There is no merit in this ground of appeal.

Ground 8

This ground provides:
Under section 60CC(2), (3)(a)(b), (c), (ca), (d),(g), (i), (j), (l) and (m) the Magistrate erred by considering the Father was wrongly entrenched in his belief that his Child had been or was being abused by relying on professional evidence which was inconclusive or was not otherwise brought to the attention of the Father and thus left him without knowledge of the findings and therefore reasonably left him feeling uncertain and that his concerns were being neglected. In respect of this the Magistrate failed to give weight to evidence of several Psychologists who had reported on the Father and in particular to the recent report by the Psychologist Ms [M] that attested to his soundness of mind and the reasonableness of the concerns he has for his Child while the Magistrate also failed to give any weight to the numerous Psychological reports that attested to the Mother being subject to the direction of her extended family and substantially reliant on them and her demonstrated evasiveness to discuss her relationship with them.
As argued, this ground focussed upon the father’s belief that the child was being abused, and particularly the determination of the trial judge not to give any weight to the evidence of Ms M, a private psychologist who had been providing therapy to the father. The trial judge dealt with this issue at [55] to [57] as follows:
55. Ms [M] is a registered psychologist who adopted her affidavit sworn 20 May 2013. She has been the father’s treating psychologist since 2009 but during that period has only seen him five times; the consultations were to do with stress issues. Under cross-examination by counsel for the mother, Ms [M] conceded that she had not read the three family reports that had been prepared, nor any of the mother’s affidavit material.
56. Ms [M] had only met [the child] once, which was in the last twelve months. She had had no discussions with the school or DHS. She conceded that the other reporters were better informed than she was. Under cross-examination by counsel for the Independent Children's Lawyer, Ms [M] conceded that her views were based entirely upon what the father had told her. It is sufficient to say that Ms [M], while clearly a competent professional in her field, was approaching the matter on an information base solely controlled by the father.
57. Ms [M’s] concession that the other reporters were better informed than her was entirely appropriate. Accordingly, I give her report no weight.
His Honour returned to this issue at [90] where he said:
Ms [M] is obviously a competent professional, but it is equally clear her evidence, as I say, should be given no weight.
By challenging the question of weight, this ground of appeal as cast is misdirected. On the assumption that what it intended to contend was that the trial judge ought not to have preferred the views of the family report writer over those of Ms M, it could not possibly succeed. That is for precisely the reasons identified by the trial judge about why he declined to act upon Ms M’s evidence. She was the father’s therapist, had concluded her views based entirely upon what the father had told her and not any other material, and even herself conceded that the other reporters were better informed than she was. Not only was the trial judge entitled to prefer the evidence of the family report writer over Ms M, but in the circumstances of this case, he was virtually obliged to do so.
This ground of appeal must fail.

Ground 9

This ground was abandoned.

Ground 10

This ground provides:
Under section 60CC(3)(f) and (g) the Magistrate erred by failing to give weight to the maturity and develop of the Child who is no longer as dependant on the Mother.
As expanded upon in his Summary of Argument, the father said:
The Magistrate gave no consideration to the maturity to the child as a factor that would allow the child to spend more time with the father and even to be questioned in regards to allegations of abuse which the family counsellor … failed to avail himself of the opportunity though the issue of abuse had been alleged.
Although advanced by the ground of appeal, in the course of his oral submissions the solicitor for the father did not press any suggestion that the child should now be re-interviewed. This portion of the complaint was sensibly abandoned. Rather, as argued this ground was restricted to an argument that the family report writer did not question the child as to his desire to spend time with his father as distinct from his mother, and further that the trial judge did not consider the child’s maturity, and hence postulated greater ability to spend equal time with his father.
The answer to the criticism directed towards the family report writer is contained within paragraph [21] of the family report. Relevantly the family report writer noted:
...[The child] disclosed he would like to spend less time with his father but found it difficult to articulate a time or structure. The writer discussed a variety of options but [the child] struggled to conceptualise time frames and structures over a weekly or fortnightly period.
The process adopted by the family report writer elicited the child’s view in favour of a reduction in time. Further, obviously the child, being unable to conceptualise timeframes of a week or fortnight, he was unable to express any preference how time with his father might best be structured. Plainly, the family report writer explored the matter with the child to the extent which his maturity allowed.
At [106] – [107] it would appear the trial judge gave some weight to the child’s views about his time with the father compared to his happiness when reunited with his mother, and hence must have been of the view that the child was of sufficient age and maturity that those views should be at least listened to.
However it is quite another matter to say that somehow or other the child’s age and maturity thereby lessened the risk of emotional harm which the father was found to pose in relation to the child. At the time of trial, the child was only five years of age, and there was no evidence given to suggest that was an age which would likely see the child have sufficient resilience to withstand the systems abuse and other emotional turmoil which spending time with the father was found to expose him to.
This ground of appeal fails.

Ground 13

This ground provides:
Under section 60CC(2)(a) the Magistrate erred by failing to recognise the likely effect that the order will have on the relationship between the Child and the father as the time shared between the Father and the Child has been severely reduced and in effect will operate to isolate the Child from the Father and deprive him of having any meaningful relationship with his Father and thus undermine their relationship.
The gravamen of this ground of appeal is that the trial judge failed to take into account the likely impact of the reduced time on the quality of the relationship between the father and the child. That argument plainly must fail because the trial judge expressly adverted to it at [110] – [113] and [129] as follows:
110. I repeat once again, the mother has been a good mother; she has done all the things that would have been proper for her to do to assist [the child’s] development. The father unfortunately has been remiss. The over-holding of [the child], for reasons which have no objective basis, has plainly been both bad for his schooling and bad for [the child] generally. I refer once more to [the family report].
111. The father is of the clear view, as expressed to [the family report writer], that the mother is intellectually impaired and not capable of providing appropriate care. The father refuses to take [the child] to his extra‑curricular sporting activities and perceives them "as an impost on his time with him" (per [the family report writer]).
“… He alleges the school is responsible for much of the alleged physical abuse and is at the centre of a conspiracy to cover up their behaviour. Organizations involved in the conspiracy include the school, police, DHS, and various medical services that have refused to act on his complaints.” ([The family report] at paragraph 12).
112. At paragraph [27], [the family report writer] recorded:
“His concerns, complaints, and allegations have been investigated and assessed by a number of agencies and professionals over the last four years and have not been substantiated. However, no amount of forensic examination or investigation is able to disabuse [the father] of his beliefs and concerns in the matter. There is nothing in the material before the writer that suggests [the mother’s] parenting is neglectful or inappropriate. On the contrary, the material and interviews suggests she is a nurturing and skilled parent and [the child] is thriving in her care. In this context, [the father’s] application for the full time care of [the child] is contraindicated and not recommended.”
(original emphasis)
113. In the face of findings such as these (and once again I refer to [the family report writer’s] report generally) it must be said that while the father has undoubtedly acted from what he perceives to be proper motives, his conduct has been extremely damaging to [the child].
…
129. Otherwise I should say that the orders sought by the Independent Children’s Lawyer seem to be to be eminently in [the child’s] best interests. I think the more limited time proposed by the Independent Children’s Lawyer is appropriate, particularly having regard to the father's evidence, by which I mean both what he said and his demeanour when he said it. Regrettably, he is enmeshed in his view of the world and [the child’s] time needs to be reduced to avoid the danger of further systems abuse.
It is true that the orders made by the trial judge effected a reduction in the time which the father would spend with the child. However the rationale for that reduction of time was the need to protect the child from harm. Whilst at [104] the trial judge acknowledged that “[e]verybody agrees that it is desirable that [the child] have a meaningful relationship with both his parents” a fact of which he plainly remained aware of that while nonetheless giving greater weight to the need to protect the child [129]. Moreover, the trial judge accepted the evidence of the family report writer that it was not the quantity of time, but the quality of time, that was important in enabling the child to have the benefit of a meaningful relationship with the father. His Honour accepted that the child appeared to have difficulty interacting with the father, and there was no reason to think that increasing the duration of that difficult interaction would be beneficial for the child.
This ground of appeal is without merit.

Conclusion

For these reasons the appeal must fail and will be dismissed.

Costs

At the conclusion of the appeal we invited the parties to make submissions as to costs. The appeal has been wholly unsuccessful and, although both parties are of modest means, the father has slightly superior financial circumstances to the mother’s. Moreover the father contributes a little less than $15.00 per month towards the maintenance of the child by way of child support, with the mother otherwise maintaining the child. All parties were legally aided.
We are satisfied that in this case an order for costs in favour of the mother should be made and the usual rule that each party should bear their own costs is displaced.
The ICL did not apply for costs.

I certify that the preceding one hundred and two (104) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Tree JJ) delivered on 26 March 2015.

Associate:

Date: 26 March 2015