Kamano & Kamano
[2011] FamCAFC 189
•16 September 2011
FAMILY COURT OF AUSTRALIA
| KAMANO & KAMANO | [2011] FamCAFC 189 |
| FAMILY LAW – APPEAL – Application for leave to appeal – Appeal against findings of guilt made by a Federal Magistrate in contravention proceedings pursuant to s 112AD – Where the mother asserted that she contravened the orders to protect the emotional health and safety of the children based on advice given to her by the children’s psychologist –Whether the learned Magistrate erred in finding that the appellant had not established a reasonable excuse for the contraventions – Whether the learned Magistrate erred in making findings about the advice which the children’s psychologist gave the appellant which were not supported by the evidence – Where, at trial, there were inconsistencies in the evidence given by the psychologist as to the advice he gave to the mother – Whilst other findings may have been open to his Honour, not established that the Federal Magistrate erred in making the findings of fact with respect to the evidence of the psychologist which he did – Not established that the learned Federal Magistrate erred by not informing the appellant’s Counsel, and giving him the opportunity to address him, on the findings which he made – No error established – Application for leave to appeal and appeal dismissed. |
| Family Law Act 1975 (Cth) |
| Abalos v Australian Postal Commission (1990) 171 CLR 167 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Allesch v Maunz (2000) 203 CLR 172 CDJ v VAJ (1998) 197 CLR 172 Dearman v Dearman (1908) 7 CLR 549 Edwards v Noble (1971) 125 CLR 296 Fox v Percy (2003) 214 CLR 118 Patterson v Patterson (1953) 89 CLR 212 Rutherford and Rutherford (1991) FLC 92-255 SSHontestroom v SS Sagaporack [1927] AC 37 Voulis v Kozary (1975) 180 CLR 177 Watt or Thomas v Thomas (1947) AC 484 |
| APPELLANT: | Mrs Kamano |
| RESPONDENT: | Mr Kamano |
| FILE NUMBER: | NCC | 2413 | of | 2008 |
| APPEAL NUMBER: | EA | 47 | of | 2011 |
| DATE DELIVERED: | 16 September 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 31 August 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 31 March 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 221 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Byrnes |
| SOLICITOR FOR THE APPELLANT: | Byrnes & Cox Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Hannaway |
| SOLICITOR FOR THE RESPONDENT: | Hannaway Lawyers |
Orders
That the application for leave to appeal and Amended Notice of Appeal filed 10 August 2011 be dismissed.
That written submissions in support of any application for costs be filed and served within 28 days.
That written submissions in opposition to any application for costs be filed and served within 56 days.
IT IS NOTED that publication of this judgment under the pseudonym Kamano & Kamano is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 47 of 2011
File Number: NCC 2413 of 2008
| Mrs Kamano |
Appellant
And
| Mr Kamano |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed 10 August 2011 Mrs Kamano (“the appellant”) appealed against findings of guilt made by Federal Magistrate Coakes on 25 February 2011 in proceedings brought against the appellant by Mr Kamano (“the respondent”) pursuant to s 112AD of the Family Law Act 1975 (Cth) (“the Act”).
On 25 February 2011 the learned Federal Magistrate delivered judgment in relation to the respondent’s applications but did not make any orders. Section 94AAA of the Act provides for appeals against “decrees”. Section 4 of the Act refers to a “decree, judgment or order”. The Court is accordingly satisfied that, subject to any requirement for leave to appeal, it has jurisdiction to entertain the appeal.
No issue was taken by the respondent that leave to appeal was required, notwithstanding that the findings recorded by the learned Federal Magistrate on 25 February 2011 were clearly interlocutory, and not dispositive of the proceedings before the learned Federal Magistrate.
To the extent that a grant of leave to appeal may be necessary, having regard to the principles which the Court has accepted as governing such applications, there can be no possible prejudice to the respondent if the appellant establishes appealable error and leave to appeal is granted as a pre-requisite to allowing the appellant’s appeal. (See Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, Rutherford and Rutherford (1991) FLC 92-255).
Background
The appellant’s Amended Notice of Appeal challenged the learned Federal Magistrate’s findings that the appellant had, without reasonable excuse, contravened a number of Court orders on the ten occasions to which he referred in the judgment delivered on 25 February 2011. Throughout these Reasons the learned Federal Magistrate’s findings that the appellant had contravened Court orders without reasonable excuse will be referred to as “contraventions”.
Sensibly in this Court’s view, although he did not abandon them, Counsel for the appellant only pressed the challenges to the first four contraventions which the learned Federal Magistrate found to have been proved. As the appellant’s Amended Notice of Appeal and her Counsel’s written submissions make clear, the appellant had hoped to persuade the Court, by demonstrating appealable error with respect to some or all of the first four contraventions which the learned Federal Magistrate found proved, that the remaining six contraventions were unsustainable.
Sensibly, in the Court’s view, Counsel for the appellant recognised that successfully agitating some or all of the challenges to the first four contraventions found proved by the learned Federal Magistrate could not provide a basis for impugning the other six contraventions he found proved.
Perusal of the outline of submissions in support of the appellant’s challenges to his Honour’s first four contraventions reveals why success with some or all of those challenges could provide no basis for appellate intervention with respect to the remaining six. No other basis for appellate intervention with respect to the sixth to tenth contraventions being advanced, it is necessary only for this Court to consider the challenges to the first four contraventions recorded by the learned Federal Magistrate.
To better understand the challenges to the learned Federal Magistrate’s findings, it is instructive to record what each contravention entailed.
The first contravention
The learned Federal Magistrate found that the appellant had failed to facilitate the parties’ children spending time with the respondent from 10 to 18 July 2010 as required by Order 4(v) orders made in the Federal Magistrates Court at Newcastle on 26 September 2007.
The relevant order provided that the children spend time with the respondent for one half of each school holiday period. The appellant admitted that the respondent had been entitled to have the children spend time with him during the period identified by the learned Federal Magistrate, and that she had not facilitated the children spending time with the respondent during that period.
The appellant asserted that she had a reasonable excuse for failing to comply with the order the breach of which she thus admitted. The reasonable excuse asserted by the appellant with respect to this ground was also asserted with respect to the other three contraventions challenged by her. The asserted reasonable excuse will be more fully referred to after identifying the remaining three contraventions found proved by the learned Federal Magistrate. His Honour concluded that the appellant had not made out the defence upon which she relied.
The second contravention
The second contravention found proved by the learned Federal Magistrate arose from Order 4(i) of the Orders of 26 September 2007, which provided in substance that during school term the children spend time with the respondent from 5.00pm Friday until 8.30am the following Monday.
The appellant admitted before the learned Federal Magistrate that between 30 July 2010 and 24 September 2010, inferentially on two occasions, she had failed to facilitate the children spending time with the respondent in accordance with Order 4(i).
His Honour concluded that the appellant had not made out the defence upon which she relied.
The third contravention
The third contravention found proved related to the appellant’s admitted failure to facilitate the children spending time with the respondent on three occasions between 21 July 2010 and 22 September 2010 in contravention of Order 4(ii) of the orders of 26 September 2007 which provided that the children spend time with the respondent from 5.30pm each Wednesday until Thursday at 8.30am.
His Honour concluded that the appellant had not made out the defence upon which she relied.
The fourth contravention
The appellant admitted that she had failed to facilitate the children communicating with the respondent by telephone between 27 July 2010 and 21 September 2010 in contravention of Order 5 of the orders of 26 May 2007 which provided for the children to speak to the respondent between 6.00pm and 6.30pm on the occasions there defined.
His Honour concluded that the appellant had not made out the defence upon which she relied.
The appellant’s defence
The reasonable excuse asserted by the appellant with respect to each of the four contraventions to which reference has been made, as identified by the learned Federal Magistrate, was that she had a “need” to “stop the children from spending any further time with the father and communicating with him by telephone to protect their health and safety”.
It is not in doubt that the basis of the appellant’s defence before the learned Federal Magistrate was that she was acting upon advice given to her by a Mr S, a psychologist who gave evidence before the learned Federal Magistrate. The issue of fact which was pivotal to his Honour’s findings was whether, as she asserted, the appellant relied upon what Mr S had told her or, as his Honour found, what the appellant believed that he had told her. What Mr S told the appellant, and when, was the focus of inquiry before the learned Federal Magistrate, and before this Court.
For reasons which he articulated, the learned Federal Magistrate concluded that the mother had not made out the defence of reasonable excuse on the balance of probabilities. It is not in doubt that the appellant bore the onus of establishing “reasonable excuse” in accordance with the civil standard of proof.
The grounds of appeal
The Grounds of the appellant’s Amended Notice of Appeal which articulated the challenges which were maintained before this Court provided:
1.The learned Magistrate erred in finding that the appellant had not established a reasonable excuse in respect of contraventions 1 – 4.
2.The learned Magistrate erred in making findings about the advice which [Mr S] gave the appellant which findings were not supported by the evidence.
3.Due to the abovementioned error the learned Federal Magistrate did not properly consider the case the appellant put on reasonable excuse.
4.The learned Federal Magistrate erred by not giving the appellant’s Counsel the opportunity to address him on the separate findings made.
In substance, the appellant’s Grounds of Appeal raise two challenges. The first is that the learned Federal Magistrate erred in concluding that the appellant had not established that she had a reasonable excuse for contravening the orders which she admitted she had breached. Grounds 1, 2 and 3 variously articulate that broad challenge.
The second broad challenge (Ground 4) is in the nature of a natural justice challenge.
The challenge to the learned Federal Magistrate’s conclusion with respect to reasonable excuse – Grounds 1, 2 and 3
In support of these challenges, Counsel for the appellant referred in detail to the evidence of the appellant before the Federal Magistrate. Referring to the appellant’s evidence cannot materially advance the appellant’s case. The issue was not whether the appellant relied upon what she was told by Mr S, but what it was that he had told her, and when he had.
After the references to the evidence of the appellant upon which he relied, her Counsel submitted:
12.It is clear from the abovementioned affidavit and oral evidence that the appellant was asserting that [Mr S] had communicated to her advice that the children should not see their father from the time of the visit on 29 June.
The learned Federal Magistrate did not reject the appellant’s assertion that she had relied upon the advice Mr S had communicated to her, but rather, as his Reasons reveal, found that the advice of Mr S that the children’s emotional health and safety would or could be at risk from the respondent was not communicated to the applicant until November 2010. No contravention found proved by his Honour occurred after that time.
Counsel for the appellant referred the Court to the three written reports of Mr S which had been before the learned Federal Magistrate.
The first report, dated 9 July 2010, and addressed to a medical practitioner recorded:
I saw both boys today and confirm that they still present with high emotional fluctuations and emotional instability. The boys presented with clear symptoms of traumatisation. It is my opinion that presently both boys are easily susceptible to being re-traumatised.
The mother’s evidence, which the learned Federal Magistrate did not reject, was that Mr S had spoken to her on or about 9 July 2010, after the consultation with the children to which he referred in his report of that date.
In his second report, dated 6 August 2010, and addressed to the appellant’s solicitor, Mr S recorded:
On the 29th June 2010, I saw [the child J] and [the child T], who presented in a state of emotional distress. [The child T] was crying uncontrollably and hid in the corner. On this date [the child J]’s emotions were volatile, punching and kicking the walls as he left and turning over the children’s table and chairs in session. I wrote to [Dr H] following this visitation. The only reason for their distress was that they would disclose was that they found handover very upsetting. The mentioned handover, you reported to me was highly emotional with the children’s father becoming very vocally angry. You further reported during this handover [the child J] went over to a bin and was repeatedly kicking it. When I saw both boys following this event, they both presented with clear traumatisation resultant from it.
It was on that date that the advice upon which the appellant based her defence was alleged to have been given by Mr S.
In his second report, Mr S referred to his observations of the children earlier the same day, and recorded:
During session, both boys have often reported they do not wish to see their father as he is angry and at times has hurt them. Both boys have recounted multiple times they are fearful of their father. These statements from the boys were during neutral conversations which were discussing emotions.
…
Both boys continue to present to my practice with signs of high emotional instability. Both [the child J] and [the child T] have demonstrated quite aggressive acts involving kicking walls, punching each other, knocking over tables and swearing. It was hoped that over time with the correct intervention these would cease, or at least decrease. This has not been the case. The boys continue to report low desire to see their father and distress from the visitations and handover.
…
It is my opinion that in the majority of cases it is beneficial for children of divorced couples to have access to both their parents. The quantity and nature of visitations should take into account the past history of both parents and the current risk to the children. It is essential to ensure that the time spent with their parents will not further distress them or cause them physical or emotional duress.
As per our previous discussion it is my opinion a great deal of care must be given to their current emotional wellbeing. As both boys continue to present with high levels of emotional instability my recommendations are to ensure specialist Psychiatric evaluation and to reconsider the terms of handover. Both boys report finding handover incredibly distressing and as such would benefit from a more formalised process involving outside professionals overseeing the process.
Furthermore, I have not met the children’s father. As both boys continue to report high distress surrounding his visitations it is hoped that consideration be given from him as to how he can decrease [the child T] and [the child J]’s distress.
Reliance was also placed on the later report of Mr S, dated 20 November 2010 in which he recorded:
…
I spoke with both boys regarding what was making them angry. [The child T] reported words to the effect of “all I want to do is go and get my toys from Dad”. [The child T] further reported “seeing Dad makes me feel angry”. Both boys reported seeing friends of their father’s in public which they both reported scared them.
Counsel for the appellant referred in detail to Mr S’s oral evidence before the learned Federal Magistrate and submitted that:
21.In summary, [Mr S] gave evidence that from 29 June 2010 onwards he verbally advised the appellant that it was not in the best interests of the children that they continue to spend time with their father.
As it will be necessary to refer extensively to the totality of the cross-examination of Mr S in order to determine these challenges, it is preferable to defer referring, at this point, to passages selected by Counsel for each of the parties in support of the assertions made on behalf of that party. Counsel for the appellant asserted that, on balance, nothing emerging from the cross-examination of Mr S established that he had not first advised the appellant of his opinion as to the children’s best interests on 29 June 2010.
Under the heading “The Appellable Error”, Counsel for the appellant referred to what were submitted to have been erroneous findings of fact made by the learned Federal Magistrate which were material to his determination. It was submitted in that regard:
23.The finding at paragraph 168 – that it was not until November that, for the first time, [Mr S] told the appellant that in his opinion the children would not emotionally handle visitations with their father – is clearly incorrect based on the abovementioned evidence.
24.It was made clear to the learned Federal Magistrate that such advice was given to the appellant on 29 June and, thereafter, at subsequent visits.
In the passage identified by Counsel for the appellant, the learned Federal Magistrate found:
168.Whilst there is some ambiguity in [Mr S]’s evidence as to the advice he has given the mother from time to time as to the children seeing their father, I find when I weigh the whole of his evidence that he has never said to her that he thought the children should not see their father and that he has never told the mother not to promote contact with their father and that it was not until November for the first time that he told her in his opinion that the boys would not emotionally handle visitations with their father.
Counsel for the appellant took issue with the learned Federal Magistrate’s finding that the appellant’s “interpretations” of what Mr S said to her in June and July 2010 were not “in accordance with the evidence of [Mr S]”.
His Honour recorded in that regard:
169.The difficulty arises in the mother’s apparent interpretation of [Mr S]’s statements to her, in June and July, and to which she deposed. Such statements which the mother attributes to [Mr S] are not in accord with the evidence of [Mr S].
170.The mother’s interpretation of [Mr S]’s recommendation to her on 29 June 2010 is that the children not see their father at that time and that things had to settle before they see their father again.
171.The mother’s interpretation following the consultation on 9 July 2010 was that [Mr S] was saying that he did not think the boys should see their father at the moment as they were still too upset to go. That was not [Mr S]’s evidence.
172.When the mother saw [Mr S] in August her interpretation of what he said was that the children were still too traumatised to see their father and therefore needed to see a paediatric psychiatrist and not spend time with their father.
His Honour’s ultimate finding that:
173.I find on the balance of probabilities that the mother chose to adopt an interpretation of [Mr S]’s statements to her which she found favourable, and in accordance with her wishes that the children not spend time with their father, which I find on the evidence is her wish.
was submitted to have not been reasonably open on the evidence before him.
It was further submitted that the learned Federal Magistrate’s finding that:
176.The mother asserts that it was necessary to deprive the father of spending time with the children to protect the children’s emotional health and safety but the mother adduces no evidence at all that the children were at risk of either physical injury from the father or any risk to their emotional health or safety.
was not reasonably open to him having regard to the written and oral evidence of Mr S.
The submissions on behalf of both parties, and particularly on behalf of the appellant, refer variously to the best interests of the children and the risk to the emotional health or safety of the children associated with them spending time with the respondent.
Counsel for the respondent submitted, and the Court accepts that, in the circumstances of this case, the appellant could not establish the defence of reasonable excuse in reliance upon suggestions to her by Mr S that it was not in the “best interests” of the children that they spend the time or communicate with him as the orders which gave rise to the contravention applications required.
What is in the best interests of a child is to be determined by parental agreement, or by a court of competent jurisdiction where parents cannot agree. Part VII of the Act provides how the best interests of children are determined. A party’s determination, even if based upon expert opinion evidence, that it is in a child’s best interests to contravene a Court order will rarely constitute a reasonable excuse for doing so. In the absence of a reasonably based belief that complying with a Court order would expose the children to a risk of physical or psychological harm, a party bound by them must comply with Court orders until they are varied or suspended by a Court.
Counsel for the respondent submitted that:
8. The test is whether it was necessary to protect the health or safety of the children. The mother was unable to adduce any evidence of that.
9. On page 28 at paragraphs 176 and 177 His Honour wrote:
“The mother asserts that it was necessary to deprive the father of spending time with the children to protect the children’s emotional health and safety but the mother adduces no evidence at all that the children were at risk of either physical injury from the father or any risks to their emotional health or safety.
To establish the ground upon which she relies, it is necessary for the mother to prove more than her own subjective view as to the potential for the children to be subject to emotional trauma through spending time with their father.”
As Counsel for the respondent submitted, and Counsel for the appellant sensibly accepted, in this case the appellant needed to establish that the risk to the emotional health or safety of the children constituted a reasonable excuse for failing to comply with the Court’s orders. The case was conducted that way before the learned Federal Magistrate.
Not surprisingly, Counsel for the respondent relied upon paragraphs 176 and 177 of the learned Federal Magistrate’s Reasons for Judgment, which the Court has set out above, in support of his resistance to the appellant’s challenges.
Counsel for the respondent also relied upon paragraph 180 of the learned Federal Magistrate’s Reasons for judgment in which his Honour said:
180.The mother relies entirely upon the incident which occurred on 28 June 2010 as the cause of the children’s subsequent adverse behaviour as described by her and [Mr S]. It seems to me that it was not open to the mother to conclude objectively or safely that was the sole cause of the children’s subsequent behaviour. Consequently, I find that the mother has failed to establish she made an objective decision.
Paragraph 183 of the learned Federal Magistrate’s Reasons for Judgment was also relied upon by Counsel for the respondent. His Honour there said:
183.The other difficulty faced by the mother is whether she withheld the children from spending time with their father for no longer than was necessary to protect their health or safety.
Counsel for the respondent referred to a number of passages in the cross-examination of Mr S in support of his ultimate assertion that Mr S was “an unreliable witness, because he changes his evidence and often obfuscated”.
As indicated earlier, it is necessary to closely consider the evidence of Mr S and, particularly having regard to the submissions of Counsel for the appellant, final addresses before the learned Federal Magistrate. Rather than refer in isolation to the passages of Mr S’s evidence in cross-examination which were asserted to support the case of the appellant or the respondent, the Court will consider the evidence emerging during the course of Mr S’s cross-examination, some parts of which provide support for the case of the appellant, others for the case of the respondent.
Not surprisingly, Mr S was examined and cross-examined at some length (27 pages of transcript). Sensibly, Mr S’s qualifications to give the expert opinion evidence he gave were not challenged.
In cross-examination, Counsel for the respondent referred Mr S to his report of 6 August 2010. The following exchange then took place:
All right, can I take you to the second page, in the second last paragraph, I will just read the whole thing out so I get it in context:
As per our previous discussion it is my opinion a great deal of care must be given to their current emotional wellbeing as both boys continue to present with high levels of emotional instability. My recommendations are to ensure specialist psychiatric evaluation and to reconsider the terms of handover.
?---That’s correct.
Both boys report finding handover incredibly distressing and as such would benefit from a more formalised process involving outside professionals overseeing the process.
That’s all correct?---That’s correct.
So you made two recommendations in August, the first one was that they have specialist psychiatric evaluation?---That is correct.
…
Okay. And your second recommendation was to reconsider the terms of handover; is that correct?---That is correct.
…
All right. So was it your expectation at that time that the children would continue to see their father but have a different handover process?---Potentially through an outside organisation such as Interrelate whereby a third party could be used.
All right. So you thought that the children would continue to see their father?---I thought that if the children were to continue to keep seeing their father that a third party would be best.
Okay. So did you recommend that to [the mother]?---At that stage, no, I did not. I had provided the report.
Right. And I notice that the report is addressed to [the mother]?---Certainly.
Then a handwritten copy to Mr Byrnes?---Yes.
Right. So did you send a copy to [the mother]?---Yes, I did.
Counsel for the respondent submitted that the fact that Mr S had not on 6 August 2010 advocated that the respondent should cease spending time with the children by reason of a perceived risk to the emotional health or safety of the children was reinforced by the reality that he only recommended changing the arrangements for “handover” in the manner he described.
It was submitted to be inconceivable that, had Mr S entertained the concern asserted on behalf of the appellant, he would have suggested a continuation of the orders, subject only to the variation with respect to “handover”.
Objectively, the passages of Mr S’s evidence referred to above are difficult to reconcile with an assertion that on 6 August 2010 he was suggesting that continuing to spend time with the respondent constituted a risk to the emotional health or safety of the children.
Mr S’s position in relation to the issue was less clear however after the following exchange, again in the course of cross-examination:
MR HANNAWAY: All right. So just to be certain, your recommendations were to change the changeover place?---If within psychiatric evaluation had taken place, if it was deemed that it was still appropriate for them at that stage.
And have you told- - -
MR BYRNES: Well, hang on. Let him finish the answer.
THE WITNESS: At that stage if it was deemed that it was appropriate on their emotional wellbeing to continue with the handover at that stage, a third party would be best.
In response to questions from the learned Federal Magistrate, Mr S clarified that “I did deem that it was appropriate for the psychiatric evaluation to go forward first” which clearly implied prior to “a consideration of a different handover”. Notwithstanding that, Mr S also accepted that it would have been “appropriate for the boys” for the implementation of a “different changeover” prior to any psychiatric assessment being undertaken. Mr S then confirmed to Counsel for the respondent that what he had told his Honour was “essentially what you told [the mother]”, inferentially, in early August 2010.
When shown his 20 November 2010 report, Mr S confirmed that “at that stage their [the children’s] emotional instability, yes, had led me to the decision that at this point their distress was highlighted and needed to be taken into consideration”.
Counsel for the respondent then asked:
MR HANNAWAY: At some, so at some time between the 6 August report and the 20 November report you have formed, have you formed the view that the children should not be seeing their father?---At that stage, with their presentation, yes, at that point.
Are you able to say if it was in November or September? Can you put a month on it that you came to that view?---At that point it would be within November as per my report.
And so in November you concluded that the children should not be seeing their father?---Yes, at that point, yes.
And did you tell [the mother] in November that was your view?---I had told [the mother] that I was to create a report in that regard.
Yes?---And that at that stage between myself and also discussions within their general practitioner that not words to the effect that they should not see their father though they should not be put through that emotional distress necessarily.
All right. Okay, I will clarify that?---Yes.
You said, “Not words to the effect that they should not see their father”?---Yes.
Did you ever say to her, “I don’t think the children should see their father”?---No.
Not even once?---Not from my recollection. Not those words.
So on the, I don’t know if you would remember this so- - -?---Yes.
And if you don’t remember, please say, “I don’t remember”?---Certainly.
That evidence of Mr S is consistent with the finding of the learned Federal Magistrate. If it were the only date or time Mr S suggested in his evidence in relation to when he informed the appellant of his opinion, the appellant’s challenges could be swiftly rejected.
However, the following exchange occurred shortly thereafter:
So on that 29 June you didn’t tell her that you recommended that the children not see their father?---No, I, from memory I would have recommended that it’s not in their bests interests emotionally to see their father.
Significantly, Mr S replied to the question which ensued:
All right. But you didn’t say to her, “The children should not see their father”?---No.
Later in cross-examination, Mr S’s 6 August 2010 report was again raised with him and the following exchange occurred:
On 29 June I saw [the child J] and [the child T] who presented in a state of emotional distress. The only reason for their distress was that they would disclose was that they found handover very upsetting.
?---Yes.
Is it your view that the major problem is handover?---At that stage, yes.
Did you say earlier in evidence that it was about November that you formed a different view, that the children should not see their father?---In November, the children should not see their father because of their emotional distress, that’s correct.
Before that, you didn’t hold that view?---
MR BYRNES: I object, your Honour, that’s not the evidence that he’s given.
HIS HONOUR: That’s right, Mr Hannaway.
MR BYRNES: He’s given evidence that, on 29 June, his view was that it was not in the best interests of the children emotionally to see their father, that’s the evidence that he has given.
Shortly thereafter the following exchange occurred:
HIS HONOUR: I’m sorry, just to add there. So in August you were suggesting that it wasn’t the mother, it wasn’t in the children’s best interest for them to spend time with heir father?---Primarily, on 6 August, it was following to reconsider the terms of the handover, so the potential for at interrelate if that was deemed appropriate through the psychiatric evaluation.
MR HANNAWAY: Can you direct me to where it says in your 6 August report where it says that you don’t think the children should see their father?
HIS HONOUR: That’s not the evidence. I think [Mr S] says, as I understand it and tell me if I am wrong, that on 6 August, he does not say that it was his view at that time that it was not in the children’s best interest to spend time with their father. It doesn’t say that.
MR HANNAWAY: Okay.
MR BYRNES: But, your Honour, in fairness, because I think this is of some significance, [Mr S] is saying that he communicated with [the mother] on 6 August that it wasn’t in the children’s best interest that they spend time with their father. That’s the evidence, [Mr S].
HIS HONOUR: Yes, that’s right.
MR BYRNES: It’s not in the report but I think in fairness to Mr Hannaway, I think that needs to be stated in fairness to Mr Hannaway.
HIS HONOUR: Well, I agree with that. That is [Mr S]’s evidence.
MR BYRNES: Yes.
HIS HONOUR: Well, let’s make it very clear so there is really no dispute. Is it fair to say, [Mr S], that in August when you saw the mother, you were of the view, and you told the mother, that it wasn’t in the children’s best interest for them to spend time with their father?---That is correct, your Honour.
Which is different from the report, of course?---That’s correct your Honour.
MR HANNAWAY: Is that the first time that you told [the mother] that - - -? That it wasn’t in their best interest?
Yes.
MR BYRNES: I object, your Honour, he has already given this evidence.
HIS HONOUR: No, Mr Byrnes, I am against you. It’s, as you say, quite likely is critical. It’s a different question, is that the first time.
MR BYRNES: But, he has already asked that question.
HIS HONOUR: No, I am against you.
THE WITNESS: At that stage, from the best of my knowledge, I believe that – I cannot recall the exact conversations I have had in that regard but that was the first time that I put it, I suppose, in those specific terms, to [the mother].
That was the first time that you had put it, in those specific terms to [the mother] that you did not consider it was in their best interests to see their father?---Yes. From the best of my knowledge – and again I cannot recall – I believe that directive. At that stage that would be the first time.
In re-examination Mr S was asked:
I want to suggest to you that in answer to a question from Mr Hannaway, you said that on 29 June, you said to [the mother] words to the effect, it was not in the best interest emotionally for the children to see their father. Is that correct?---I beg your pardon. After answering Mr Hannaway, I did recall that the 29 June was the incident that had occurred and that in discussion I had suggested to [the mother] that it wasn’t necessarily in their best interest emotionally.
Okay, Mr Hannaway and his Honour put certain propositions to you including that there was a high level of conflict between [the mother] and [the father]. That was put to you, do you agree with that?---I certainly do.
In his submissions to the learned Federal Magistrate, Counsel for the appellant anticipated “there is going to be some argument from Mr Hannaway as to the exact wording of what [Mr S] said”, before submitting to the learned Federal Magistrate that, in a number of reports, commencing with his verbal advice to her on 29 June 2010, upon which he elaborated in cross-examination, Mr S had given advice to the appellant which gave rise to a reasonable apprehension on her part of a risk to the emotional health or safety of the children if they spent time with the respondent pursuant to the Court orders.
The learned Federal Magistrate then said:
HIS HONOUR: I think the trouble with that submission though is this. [Mr S]’s qualifications weren’t challenged. He is clearly an experienced psychologist of some three years. That’s not put in issue He is a paediatric psychologist. There is no issue about the circumstances under which he saw the children. There is no issue about the matters that he reports about the children both by way of his observation of them and what they say to him. He relies upon things told to him by the mother.
I am likely to accept him as an expert witness. There is no challenge as to his findings and his reasoning.
The crux of the case for the appellant before the learned Federal Magistrate was articulated clearly by her Counsel in the following terms:
… my client was acting on information which was communicated to her by somebody who was suitable qualified. She is entitled to rely on that information. The information that was provided to her and the advice that was provided to her was quite clear.
The following exchange occurred between Counsel for the respondent and the learned Federal Magistrate:
HIS HONOUR: Well, yes, but, look, there’s no doubt about that. Look, just before you go any further, just let me go back to – what he said was this in response to the question from you in cross-examination, towards the end of that cross-examination.
I told the mother in August that it was not in the children’s best interests to spend time with their father.
Then he says in re-examination that he had formed the view it was not in the children’s best interests to spend, well, he says here:
…not in the children’s best interests to see the father at that time.
That’s what he said in re-examination.
MR HANNAWAY: Are we talking about August?
HIS HONOUR: No, no, June.
MR BYRNES: No, 29 June.
HIS HONOUR: See it was to him specifically in re-examination about June. And he had formed the view at that time that it was not in the children’s best interests to see the father at that time. What’s less than clear is whether that, what precisely was communicated with the mother at that time.
MR HANNAWAY: But my recollection is that he said that he told the mother that it may not be in the children’s best interests.
HIS HONOUR: In June.
MR HANNAWAY: In June.
HIS HONOUR: Yes.
MR HANNAWAY: But that he did not say, that he did not make a recommendation to stop all contact.
HIS HONOUR: That’s certainly his evidence.
MR HANNAWAY: Yes. And his earlier evidence was – which is different to that – I asked him did he form the view that the children should not see their father sometime between the August report and the September report and he said, yes, he formed that view around about November. So that’s in conflict with what he has later said which is that he formed that view earlier. So I’ve got some problems because [Mr S]’s evidence was different at different times of his evidence. So then if we look at the report dated 6 August 2010, that was quite clear that he recommended that [the mother] reconsider – I don’t have the exact words – but my recollection is reconsider the changeover process.
HIS HONOUR: Well, no what he said is:
Both boys report finding handover incredibly distressing and as such for the benefit of a more formalised process involving outside professionals overseeing the changeovers.
And then you put to him, “Does that mean Interrelate?” and he said, “That’s right.” To that effect. Yes?
MR HANNAWAY: Okay:
And reconsider the terms at handover.
In his ---
HIS HONOUR: Yes.
MR HANNAWAY: They’re the exact words in his report. So if that was his recommendation in, to [the mother] and the letter is dated to both her and to Mr Byrnes. So his recommendation was to reconsider the terms of handover and that’s nowhere near saying, “I think we should stop all contact.”
HIS HONOUR: Yes.
MR HANNAWAY: So I do have to say that the value of [Mr S]’s evidence is a little bit questionable because he contradicted himself on a number of times. He also agreed that he had only really heard the mother’s version. He had not seen any of the previous family law documents such as the full family reports or the two judgments. He had seen the children but he had not spoken with the father other than on one telephone call where he made, [the father] made an appointment to see him.
HIS HONOUR: Well, now, Mr Hannaway, all of that’s quite right. But, of course, I’ve got to, what I have to take into account is the context in which [Mr S] is consulted in the first place and he, the mother takes the boys to see him because he is a psychologist and on her evidence it’s because she is concerned about their behaviour and reactions.
MR HANNAWAY: Well ---
HIS HONOUR: So what he is required to do he is discounting the criticism of him. He’s got to work on the material that he is given. Now, if it were a larger picture, of course, and it was a report for the purposes of court proceedings, different story.
MR HANNAWAY: Yes. I ---
HIS HONOUR: I’ve got difficulty in seeing how I can’t attach weight to what he is saying.
MR HANNAWAY: Well, the amount of weight that you can attach has to do with a comment by Muirhead J in, I think it was Chamberlain number 2, where he says:
There’s no magic about the opinions of experts because, like many of us, they can make errors not only because they may work on theories that others may not share but also because an opinion can only be as good and valid as the facts on which it is based.
So on that basis I would urge your Honour not to place too much weight on [Mr S]’s evidence because he simply did not have the factual base there.
HIS HONOUR: Well no, you see, I don’t think I can do that, Mr Hannaway. If I, I can empathise with your position and your submission but these are contravention proceedings. They’re not parenting proceedings about where the children are to live. And it’s a question of whether the mother acted reasonably within the meaning of sections 17 NAE and had a reasonable excuse for the course she chose to adopt.
In response, Counsel for the appellant submitted:
MR BYRNES: I’m just concerned that Mr, my recollection of [Mr S]’s evidence was that in cross-examination initially he was asked about consultation on 29 June and my note says that in response to a question from Mr Hannaway, he clearly said that the advice that he gave to [the mother] on that, at that time was that it was not in the best interests emotionally for the children to see their father. So that was the evidence that he gave. Then, subsequently, Mr Hannaway put to him that the 6 August was the first time he had communicated that advice to my client and he said he agreed with that. And then in re-examination I asked him about the advice he had given on the 29th and he said words to the effect of, “That, look, I’m sorry. I was wrong when I said to Mr Hannaway it was 6 August, it was actually 29 June.”
In his Reasons for Judgment, the learned Federal Magistrate carefully considered the evidence of Mr S.
His Honour recorded:
162.As to whether the children had changed during the time he had seen them, [Mr S] thought that their presentations declined quite significantly after 28 June 2010 but had then become relatively stable.
His Honour further recorded:
166.[Mr S] said that at the time of the August report, he had not told the mother not to provide contact with their father but that by November he had formed the view that it was advisable for the children not to see their father. [Mr S] said that at the time of the August interviews he told the mother that it was not in the children’s best interests to spend time with their father and to reconsider handovers. [Mr S] conceded he had not included such opinion in his report.
As Counsel for both parties recognised, the critical finding of fact of the learned Federal Magistrate was “not until November for the first time that he [Mr S] told her [the appellant] in his opinion that the boys would not emotionally handle visitations with their father”.
Given that all the contraventions found by the learned Federal Magistrate pre-dated November 2010, the focus of interest is whether prior to 9 July 2010 Mr S told the appellant that in his opinion the boys “would not emotionally handle visitations” with the respondent and, as such, continued contact would constitute a risk to the children’s emotional health or safety. The earliest contravention found by the learned Federal Magistrate could not have been prior to 10 July 2010.
The learned Federal Magistrate accurately suggested that there had been “some ambiguity” in Mr S’s evidence. Mr S’s answers in cross-examination and re-examination abundantly support that conclusion. The ambiguity in Mr S’s evidence renders more difficult the submission of Counsel for the appellant that the findings of fact made by the learned Federal Magistrate were not reasonably open to him.
Necessarily, the crux of Counsel for the appellant’s case is that, contrary to his Honour’s findings in paragraphs 168 and 176, there was expert opinion evidence from Mr S before him that, prior to the first contravention which his Honour found proved, the appellant had received advice from Mr S, upon which she was entitled to rely, of “risk” to the children’s “emotional health or safety”.
His Honour was thus asserted to have erred in finding (in paragraph 168) that the appellant first received such advice in November 2010, and accordingly erred in finding that she had adduced “no evidence at all” (in paragraph 176) that the children were at risk prior to that time.
There are two findings of fact made by the learned Federal Magistrate which these grounds challenge. The first is that the appellant was first advised by Mr S in November 2010 that continued contact with the respondent constituted a risk to the emotional health or safety of the children. The second finding is that the appellant had adduced no evidence prior to that time of such risk. Paragraphs 168 and 176 must be read in conjunction. The findings recorded in paragraph 168 preclude reading paragraph 176 in the way Counsel for the appellant urges the Court to. Both paragraphs refer, one expressly, the other by necessary implication, to events prior to November 2010.
So far as the former finding is concerned, the evidence of Mr S suggested that he may or may not have given such advice to the appellant on about 29 June 2010, 9 July 2010, 6 August 2010 or 20 November 2010. Accepting that the there were subtle differences in the wording of questions asked of Mr S in cross-examination, re-examination and by the learned Federal Magistrate, the fact remains that Mr S did not consistently assert that he had first advised the appellant of the risk to the emotional health and safety to the children on any of the dates to which reference has been made. As Mr S properly acknowledged, his evidence was inconsistent in relation to the issue.
The learned Federal Magistrate could have found that Mr S advised the appellant of a risk to the emotional health and safety of the children prior to 20 November 2010 and as early as 29 June 2010, depending upon which of Mr S’s answers in cross-examination he relied upon. With all due respect to Mr S, and accepting that much turned upon the words he used, the significance of which he could not be expected to have understood, few propositions put to him by anyone questioning Mr S were not acceded to.
The principles governing appeals against findings of fact are not in doubt. It would not normally be constructive to restate those principles. Having regard to the nature of the proceedings which give rise to the present appeal, and in deference to the submissions of Counsel for the appellant, some exposition of the principles is warranted. The challenges agitated on behalf of the appellant in this case do not render reference to the authorities relating specifically to challenges to findings of credit, particularly those based upon demeanour, of particular assistance, although the authorities to which reference will be made do to some extent include discussions of the principles which are relevant to such challenges.
In Dearman v Dearman (1908) 7 CLR 549 Griffith CJ, with whom Barton, Issacs and Higgins JJ agreed, said (at 553):
Now, it is well settled that upon an appeal from a Judge of first instance who has had the advantage of hearing the witnesses, especially in a case where there is a conflict of evidence, the court of Appeal cannot reverse his decision on questions of fact unless it sees that the decision is manifestly wrong.
In Patterson v Patterson (1953) 89 CLR 212 (at 219), Dickson CJ and Kitto J reviewed the authorities dealing with the position of the Court of Appeal in relation to challenges to findings of fact made by a primary judge. Their Honours referred with approval to the decision of the English Court of Appeal in Watt or Thomas v Thomas (1947) AC 484 in which Lord Thankerton said (at 487–8):
I. Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion; II. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence; III. The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question. It will hardly be disputed that consistorial cases form a class in which it is generally most important to see and hear the witnesses, and particularly the spouses themselves.
In Edwards v Noble (1971) 125 CLR 296 Barwick CJ, with whom McTiernan, Windeyer and Walsh JJ concurred, considered (at 303) the “principles which an appellate court ought to observe in considering whether or not to disturb a finding of fact untainted by error of law or misapprehension or oversight of fact.” His Honour said, significantly for present purposes, in the context of an appeal by way of “re-hearing” (which an appeal to this Court undoubtedly is (see CDJ v VAJ (1998) 197 CLR 172 and Allesch v Maunz (2000) 203 CLR 172)) (at 304):
The question is not whether the appellate court can substitute its view of the facts which, of course, it is empowered to do: but whether it should do so. In any appeal against a finding of fact, whether or not by way of rehearing, however much the appellate court may be in an equal position with the trial judge as to the drawing of inferences, in my opinion, the appellate court ought not to reverse the finding of fact unless it is convinced that it is wrong. If that finding is a view reasonably open on the evidence, it is not enough in my opinion to warrant its reversal that the appellate court would not have been prepared on that evidence to make the same finding. Merely differing views do not establish that either view is wrong.
Relevantly for present purposes, his Honour also said (at 307):
In my opinion, there was material on which the primary judge could have found that the appellant by his negligence caused or contributed to the respondent's injuries. If he had so found, I do not apprehend any ground on which his finding of fact could have been disturbed. But he was not bound to come to that conclusion. That, to my mind was not the only reasonable conclusion to which a tribunal of fact could come in the circumstances of the case nor, in my opinion, was there any such preponderance in favour of the view that the appellant was so negligent that it could properly be held that the primary judge was wrong in finding a verdict for the defendant. It seems to me that either view of the appellant's conduct in relation to the respondent's injuries was reasonably open on the evidence: there is in my opinion no basis for considering one view preponderates over the other.
In Abalos v Australian Postal Commission (1990) 171 CLR 167 McHugh J, with whom Mason CJ, Deane, Dawson and Gaudron JJ agreed, referred with approval to the judgment of Lord Sumner in SSHontestroom v SS Sagaporack [1927] A.C. 37 (at 47) that:
… not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.
In Voulis v Kozary (1975) 180 CLR 177, having referred to the English authorities, including SSHontestroom v SS Sagaporack, McTiernan J said (at 183):
Applying these principles to the present case, I am of the opinion that, on a survey of the whole of the evidence, to quote the words of Lord Summer above, there is a “glaring improbability about the story accepted [by the learned judge], sufficient in itself to constitute a governing fact, which in relation to others has created a wrong impression”.
In Fox v Percy (2003) 214 CLR 118 the High Court (per Gleeson CJ, Gummow and Kirby JJ) relevantly recorded (at 125):
The nature of the “rehearing” provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the subsections quoted. The “rehearing” does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.
The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
Nevertheless, mistakes, including serious mistakes, can occur at trial in the comprehension, recollection and evaluation of evidence. In part, it was to prevent and cure the miscarriages of justice that can arise from such mistakes that, in the nineteenth century, the general facility of appeal was introduced in England, and later in its colonies. Some time after this development came the gradual reduction in the number, and even the elimination, of civil trials by jury and the increase in trials by judge alone at the end of which the judge, who is subject to appeal, is obliged to give reasons for the decision. Such reasons are, at once, necessitated by the right of appeal and enhance its utility. Care must be exercised in applying to appellate review of the reasoned decisions of judges, sitting without juries, all of the judicial remarks made concerning the proper approach of appellate courts to appeals against judgments giving effect to jury verdicts. A jury gives no reasons and this necessitates assumptions that are not appropriate to, and need modification for, appellate review of a judge's detailed reasons.
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this court reiterated the rule that:
“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.”
As this court there said, that approach was “not only sound in law, but beneficial in … operation”.
After Warren v Coombes, a series of cases was decided in which this court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. - 03-03113fn041#03-03113fn041 This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.
The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.
Over more than a century, this court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings. (footnotes omitted)
For the present challenge to be unsuccessful, it is necessary only for the respondent to demonstrate that the finding of fact made by the learned Federal Magistrate was reasonably open to him. It is not for the respondent to demonstrate that the finding of fact made by the learned Federal Magistrate was the only one reasonably open to him.
Having regard to the authorities to which the Court has referred, the issues in the present case are:
(i)Whether there was evidence that the first time Mr S advised the appellant of a degree of risk to the emotional health or safety of the children sufficient to justify non-compliance with the Court’s orders was in November 2010.
(ii)Whether it was reasonable in all the circumstances to make a finding in those terms.
(iii)Whether the totality of the evidence rendered plainly wrong, or glaringly improbably, a finding in those terms.
It is not in doubt that there was evidence in the terms described in paragraph 92(i), above. Support for concluding that the learned Federal Magistrate’s finding was “reasonable” can be gained from the terms of the reports which Mr S wrote on 9 July 2010 and 6 August 2010. Mr S was cross-examined on 2 March 2011. His reports were written very shortly after the consultations which gave rise to them. They could reasonably be presumed to have accurately recorded the matters which Mr S regarded as being of significance in the light of those consultations.
Mr S’s report of 9 July 2010 recorded his opinion that the children presented “with high emotional fluctuations and emotional instability” and “with clear symptoms of traumatisation”. Mr S’s opinion was that, “presently both boys are easily susceptible to being re-traumatised”. Mr S did not there record that the emotional health and safety of the children would be at risk if they continued to have contact with the respondent.
In his report of 6 August 2010 Mr S reported with respect to his observations on 29 June 2010:
On the 29th of June 2010, I saw [the child J] and [the child T], who presented in a state of emotional distress. [The child T] was crying uncontrollably and hid in the corner. On this date [the child J]’s emotions were volatile, punching and kicking the walls as he left and turning over the children’s table and chairs in session. I wrote to [Dr H] following this visitation. The only reason for their distress was [sic] that they would disclose was that they found handover very upsetting. The mentioned handover, you reported to me was highly emotional with the children’s father becoming very vocally angry. You further reported during this handover [the child J] went over to a bin and was repeatedly kicking it. When I saw both boys following this event, they both presented with clear traumatisation resultant from it.
Again, Mr S did not there record that the emotional health and safety of the children would be at risk if they continued to have contact with the respondent.
Having seen the children earlier that day, the following matters of relevance were communicated by Mr S on 6 August 2010:
Both boys continue to present to my practice with signs of high emotional instability. Both [the child J] and [the child T] have demonstrated quite aggressive acts involving kicking walls, punching each other, knocking over tables and swearing. It was hoped that over time with the correct intervention these would cease, or at least decrease. This has not been the case. The boys continue to report low desire to see their father and distress from the visitations and handover.
As such, I have referred both Boys for further specialist Paediatric Psychiatric evaluation at the local Child & Adolescent Mental Health Team. I have booked the boys in for my review in one month’s time and look forward to hearing the outcome of their visit.
It is my opinion that in the majority of cases it is beneficial for children of divorced couples to have access to both their parents. The quantity and nature of visitations should taken into account the past history of both parents and the current risk to the children. It is essential to ensure that the time spent with their parents will not further distress them or cause them physical or emotional duress.
As per our previous discussion it is my opinion a great deal of care must be given to their current emotional wellbeing. As both boys continue to present with high levels of emotional instability my recommendations are to ensure specialist Psychiatric evaluation and to reconsider the terms of handover. Both boys report finding handover incredibly distressing and as such would benefit from a more formalised process involving outside professionals overseeing the process.
Furthermore, I have not met the children’s father. As both boys continue to report high distress surrounding his visitations it is hoped that consideration be given from him as to how he can decrease [the child T] and [the child T]’s distress.
Again, Mr S did not there record that the emotional health and safety of the children would be at risk if they continued to have contact with the respondent.
On 20 November 2010 Mr S reported:
Following the latest appointment with both boys it is my opinion they have both increased their aggression. It is my opinion both boys appear incredibly hesitant to see their father still. Both boys display genuine anger and fear when discussion [sic] the possibility of seeing their father.
He reiterated:
It is my opinion both boys are hesitant to see their father. It is my opinion both boys show genuine fear and aggression when discussing the topic of their father.
The difference in the wording of his opinion in that report clearly signified that by November 2010 Mr S considered that the emotional health and safety of the children would be at risk if they continued to have contact with the respondent.
The terms of his reports remove the potential for concluding that Mr S was confused or innocently misled during the course of his cross-examination. A recurrent theme of Mr S’s reports prior to November 2010 was that “handovers” be changed. As Counsel for the respondent submitted, that was consistent with an opinion that the children should continue to spend time with the respondent, and inconsistent with an opinion that doing so involved a risk to the emotional health or safety of the children.
The inconsistencies in Mr S’s evidence, and his express disavowal at times that, prior to November 2010, he had advised the appellant of a risk to the emotional health and safety of the children sufficient to justify non-compliance with the Court’s orders provide further support for concluding that it was reasonable for his Honour to find as he did in relation to the pivotal issue of fact raised by the appellant’s defence.
Against the foregoing review of the evidence before the learned Federal Magistrate, and the Court’s conclusions with respect to it, no issue of glaring improbability or manifest error materialises.
As is apparent from the transcript of the proceedings before the learned Federal Magistrate, and the submissions of Counsel for the parties before this Court, whilst other issues may have been relevant to whether or not the appellant established a defence of reasonable excuse, the focus, correctly in this Court’s view, of the appeal, as was the case at trial, has been the appellant’s attack on the findings of fact made by the learned Federal Magistrate with respect to the evidence of Mr S. No basis for appellant intervention in relation to his Honour’s findings has been demonstrated.
Ground 4
Ground 4 of the Amended Grounds of Appeal provided:
4.The learned Federal Magistrate erred by not giving the appellant’s Counsel the opportunity to address him on the separate findings made.
The crux of this challenge was articulated by Counsel for the appellant in the following terms:
45. With respect, if his Honour was to make a finding that such advice was not communicated until November it was incumbent on him to query the abovementioned assertions by the appellant’s solicitor and give him an opportunity of responding.
46. It is respectfully submitted that it was not open to his Honour to make the finding which he did in paragraph 168 without giving the appellant’s solicitor the opportunity to address specifically on that issue.
47. With respect, his Honour’s misunderstanding of the evidence means that he was unable to properly consider the appellant’s case. The question which his Honour needed to consider was whether, given the advice which [Mr S] gave the appellant, did she have a reasonable excuse to contravene the orders.
Rather than paraphrase the submissions made in further support of this complaint, it is preferable to reproduce them. They asserted:
39.In that regard attention is drawn to page 66 of the Transcript on 2 March 2011 where, from line 1 – line 33, the following exchange occurred (during the submissions of Mr Hannaway):
His Honour: “Well, yes, but, look, there’s no doubt about that. Look, just before you go any further, just let me go back to – what he said was this is response to the question from you in cross-examination, towards the end of that cross-examination:
I told the mother in August that it was no in the children’s best interests to spend time with their father.
Then he says in re-examination that he had formed the view it was not in the children’s best interests to spend, well, he says here:
…not in the children’s best interests to see the father at that time.
That’s what he said in re-examination.”
Mr Hannaway: “Are we talking about August?”
His Honour: “No, no, June.”
Mr Byrnes: “No, 29 June”.
His Honour: “See it was (put) to him specifically in re-examination about June. And he had formed the view at that time that it was not in the children’s best interests to see the father at that time. What’s less than clear is whether that, what precisely was communicated with the mother at that time.”
Mr Hannaway: “But my recollection is that he said that he told the mother that it may not be in the children’s best interests.”
His Honour: “In June.”
Mr Hannaway: “In June.”
His Honour: “yes.”
40.Furthermore, at page 68 of the Transcript of 2 March 2011 (from line 1 – line 20) (again during Mr Hannaway’s submissions) the following exchange occurred:-
His Honour: “I’ve got difficulty in seeing how I can’t attach weight to what he is saying.”
Mr Hannaway: “Well, the amount of weight that you can attach has to do with a comment by Muirhead J in, I think it was Chamberlain number 2, where he says:
There’s no magic about the opinions of experts because, like many of us, they can make errors not because they may work on theories that others may not share but also because an opinion can only be as good and valid as the facts on which it is based.
So on that basis I would urge your Honour not to place too much weight on [Mr S]’s evidence because he simply did not have the factual base there.”
His Honour: “Well no, you see, I don’t think I can do that, Mr Hannaway. If I, I can empathise with your position and your submission but these are contravention proceedings. They’re not parenting proceedings about where the children are to live. And it’s a question of whether the mother acted reasonably within the meaning of sections 17NAE and had a reasonable excuse for the course she chose to adopt.
41.Clearly his Honour notes that [Mr S] was of the view from 29 June 2010 that it was not in the best interests of the children that they spend time with the father and that he communicated that to the appellant.
42.It is also noteworthy that in the submissions of the appellant’s solicitor his Honour did not give any indication that he did not accept that [Mr S] gave the advice set out above.
43.At lines 29-46 on page 59 of the transcript of 2 March 2011 and lines 1-12 on page 60 of the transcript of 2 March 2011 the following exchange occurred:-
Mr Byrnes: “On 29 June, on 6th and on 20 November, on each of those three occasions, he says that he communicated to my client that it was not in the best interests of the children emotionally for them to see their father. That’s my recollection of his evidence. Now, that’s extremely – that’s crucial for my client’s case – and, from my client’s point of view, because the reasonable excuse which we rely on is when that the children, having presented in this manner, my client did the appropriate thing which was to seek to address the children’s distress and concern and take them to somebody who was suitably qualified to deal with that. I don’t think there’s any challenge to [Mr S]’s qualifications.
After [Mr S] saw the children and provided that advice to my client, she acted on it. There can’t be any dispute in relation to that, your Honour. [Mr S] has done a number of reports. He elaborated on those reports in cross-examination by Mr Hannaway and gave the evidence that I alluded to a moment ago. So he says that that’s the advice which I have communicated to [the mother]. Your Honour might say – and I’m going to urge your Honour not to say this – this, I don’t necessarily accept what [Mr S] says. I don’t accept [Mr S]’s report. I disagree with [Mr S]. Mr Hannaway might make the same comments.”
His Honour: “I think the trouble with that submission though is this. [Mr S]’s qualifications weren’t challenged. He is clearly an experienced psychologist of some three years. That’s not put in issue. He is a paediatric psychologist. There is no issue about the circumstances under which he say the children. There is no issue about the matters that he reports about the children both by way of his observation of them and what they say to him. He relies upon things told to him by the mother.
I am likely to accept him as an expert witness. There is no challenge as to his findings and his reasoning. He has studied [the father] obviously. The issues seems [sic] to be whether a different interpretation can be put upon the children’s behaviour which may warrant the mother taking a different course from that which she chose to adopt.”
44.There was no challenge by the learned Federal Magistrate to the assertion that [Mr S] had communicated the abovementioned advice to the appellant from 29 June onwards.”
In response it was submitted by Counsel for the respondent that the learned Federal Magistrate was not, in the circumstances, obliged to undertake the courses asserted to have been appropriate by Counsel for the appellant. As with the earlier challenge to which the Court has referred, the respondent’s submission was that the learned Federal Magistrate had not erred in finding as he did having regard to what were submitted to have been the deficiencies in the evidence of Mr S as they emerged during the course of cross-examination.
With respect to Counsel for the appellant, the submissions in support of this complaint proceed on a false premise. Nowhere in his reasons for judgment did the learned Federal Magistrate resile from what he had said during final addresses, and fail to accept Mr S’s expert opinion evidence. The issue before the learned Federal Magistrate was what Mr S told the appellant and when he did. As this Court’s consideration of grounds 1, 2 and 3 makes clear, Mr S gave a number of different versions of those events in his written and oral evidence.
The issue before the learned Federal Magistrate was one of fact, namely when it was that Mr S first advised the appellant that, in his expert opinion, there was a risk to the emotional health or safety of the children which provided reasonable justification for non-compliance with the Court’s orders. It is clear from the learned Federal Magistrate’s Reasons for Judgment that, as this Court concludes was open to him, he found that to have first been communicated in November 2010.
Implicit in this challenge is the suggestion that the learned Federal Magistrate had contemplated a finding or conclusion but, by not revealing that during the course of the trial, denied the appellant, who was ultimately disadvantaged by his Honour’s finding, natural justice.
The questions asked by the learned Federal Magistrate were proper, neutral and relevant to the issue before him and, importantly, did not in any way suggest their answers. It is clear that, as Mr S had given the appellant advice as to the risk to the emotional health or safety to the children, which provided reasonable justification for non-compliance with the Court’s orders, it was crucial for his Honour to know when that advice was first communicated to her. As is not in doubt, Counsel for both parties had ample opportunity to agitate anything emerging from answers to the learned Federal Magistrate’s questions of Mr S.
In submissions at the conclusion of the trial, the learned Federal Magistrate clearly, and fairly, raised the issue of when Mr S first told the appellant of the risk to the emotional safety or health of the children. Ultimately, as this Court’s discussion of the first three Grounds of Appeal agitated on behalf of the appellant reveals, the case before the learned Federal Magistrate came down to an issue of fact.
The issue before this Court is whether the findings of fact made by his Honour were reasonably open to him. It is in that area that the appeal succeeds or fails. The Court does not accept that this challenge, in isolation or in reliance upon anything raised in support of earlier challenges can succeed.
Conclusion
No ground of appeal or proposed ground of appeal having been shown to have merit, the appeal and/or the application for leave to appeal should be dismissed.
Costs
By agreement between Counsel for the parties, costs will be reserved, and orders made for the filing of certain submissions in relation to costs.
I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Justice Coleman delivered on 16 September 2011.
Associate:
Date: 16.09.11
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