Kennett and Nickson and Ors
[2017] FCCA 990
•17 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KENNETT & NICKSON & ORS | [2017] FCCA 990 |
| Catchwords: FAMILY LAW – Parenting – family violence – father not a witness of truth – paternal grandparents not witnesses of truth – appalling acts of family violence – no time for father – no time for paternal grandparents. |
| Legislation: Evidence Act1995 (Cth), ss.26, 42 Family Law Act 1975 (Cth), ss.60CA, 60CC, 69ZT, 117(2A) |
| Cases cited: A v A [1976] VR 298 |
| Applicant: | MS KENNETT |
| First Respondent: | MR NICKSON |
| Second Respondents: | MR K NICKSON MS NICKSON |
| File Number: | MLC 7675 of 2014 |
| Judgment of: | Judge Wilson |
| Hearing dates: | 27 & 28 February 2017 1, 6, 7, 8, 27 & 28 March 2017 |
| Date of Last Submission: | 8 May 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 17 May 2017 |
REPRESENTATION
| Applicant in person |
| Counsel for the Respondents: | Mr K. MacFarlane |
| Solicitors for the Respondents: | Novatsis Alexander |
| Counsel for the Independent Children's Lawyer: | Ms S Jenkinson |
| Solicitors for the Independent Children's Lawyer: | Bowlen Dunstan & Associates Pty |
ORDERS
All previous parenting orders are discharged.
The mother have sole parental responsibility for the child X born (omitted) 2012 (“the child”).
The child live with the mother.
The father spend no time with the child.
The paternal grandparents spend no time with the child unless agreed to by the mother.
The mother is permitted to relocate with the child.
The mother is at liberty to change the child’s name from X to X without the father’s consent.
The father and the paternal grandparents pay the costs of the mother.
By no later than 4.00 p.m. on 21 May 2017 the father and paternal grandparents file and serve any written submissions on the costs order made pursuant to order 8 herein.
The appointment of the Independent Children’s Lawyer is discharged.
All extant parenting applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Kennett & Nickson & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 7675 of 2014
| MS KENNETT |
Applicant
And
| MR NICKSON |
First Respondent
| MR K NICKSON & MS NICKSON |
Second Respondents
REASONS FOR JUDGMENT
Introduction
This case concerned X, a four-year-old boy born to the applicant mother and the respondent father. X has been diagnosed at level 2 autism spectrum disorder (“ASD”) warranting intervention by a paediatrician, speech pathologists, a psychologist and an occupational therapist.
Subsequent to the making of final parenting orders on 24 March 2015, the mother and father agreed on a regime for equal shared parental responsibility involving X living with the mother and spending time with the father in the manner recorded in paragraph 3 of those consent orders.
On 23 August 2015 an incident occurred involving the mother, the father and X that led to the father being charged with offences involving assault to the mother and making threats to kill her. Between the third day of the trial of this proceeding and the fourth of 12 hearing days, the father was committed to stand trial before the County Court of Victoria and a jury of 12.
In this complicated proceeding a number of parties advocated an entitlement to spend time with or be involved with X. Let me catalogue them.
The mother sought orders for sole parental responsibility of X and that the father have no time with X on account of violence by the father towards the mother and X and on account of the father’s exposure of X to violence.
The father sought orders maintaining the existing regime for equal shared parental responsibility in respect of X and that the time he spends with X be reinstated following the mother’s suspension of such time after the incident on 23 August 2015.
The paternal grandparents sought orders in relation to time with X. However, those orders were sought on the premise that I refused the father any time with X.
Synopsis
For the reasons that follow, in my judgment –
a)orders should be made in favour of the mother conferring upon her sole parental responsibility for X;
b)orders should not be made in favour of the father conferring upon him equal shared parental responsibility for X;
c)orders should not be made in favour of the paternal grandparents conferring upon them time with X;
d)X should live with the mother;
e)the father should have no time with X; and
f)the paternal grandparents should have such time with X as the mother may deem appropriate that they have any.
The course of this proceeding
The trial of this proceeding was fixed on an estimated duration of two to three days. When the case was fixed for trial the mother was legally represented as were the other parties, including the Independent Children’s Lawyer (“ICL”).
When the case was called on for hearing on the first of what I expected to be two to three days of trial, I was informed –
a)the mother had terminated her legal representation and she proposed to run the case herself, unrepresented;
b)
the father and the paternal grandparents were represented by
Mr MacFarlane of counsel; and
c)the ICL, who had participated in this litigation for long enough, did not have any recommendations as to the outcome of the case and preferred to explore the evidence before making any recommendations.
The estimated duration of the trial was wildly inaccurate. By the end of the third day, being the duration allocated for the whole of this trial, the mother’s case was nowhere near concluded. A block of three further days was found and the case was heard over those three additional days. The case was not concluded by the end of the sixth day of trial. Sitting through a judgment writing week, I allowed the case to run for the seventh and eighth days in late March. The case was still not concluded by the end of the eighth day. Bearing in mind that the original estimate was two to three days, the case had more than doubled its estimated duration by the end of the eighth day. In the end, the case ran for 12 days.
The ridiculously inaccurate estimate of the duration of this trial profoundly impacted upon my docket. It prevented other cases, equally important cases concerning children in particular, from being heard and it torpedoed those other litigants casting them adrift. It is most unsatisfactory for legal representatives to procure the fixing of a trial on an estimated duration that turned out to be erroneous, not merely as to a day or two but as to a factor of 400%.
When the matter commenced, the mother announced she was a litigant in person for the trial. I explained to her how each phase of the case would unfold, consistent with the observations of the Full Court of the Family Court in Re F: Litigants In Person Guidelines[1] (“Re F”). The mother indicated she fully understood what I told her about each phase of the proceeding.
[1] [2001] FamCA 348.
Background
Before turning to X, it is necessary to put this dispute in context by addressing certain issues relevant to X’s parents.
The mother was born on (omitted) 1989. At the trial of this proceeding she was 27 years of age.
The father was born on (omitted) 1989. At the trial of this proceeding he too was 27 years of age.
The mother and father attended the same secondary school, although they were not friends at school as was the uncontradicted evidence in this case. They commenced living together in (omitted) 2011. They married on (omitted) 2011. X was born on (omitted) 2012. The mother and father separated on 26 May 2014.
At the age of 17, having worked for two years prior to that in (employment omitted), the mother commenced her career in (occupation omitted). On 3 March 2014 the (business omitted) known as “(omitted)” was acquired. She had undertaken her apprenticeship at that (employer omitted). She holds qualifications in (omitted).
The father has worked as a (occupation omitted), a (occupation omitted) and, since finding work, more recently as a (occupation omitted). The father has no formal qualifications, at least none that were mentioned in evidence.
The father remarried a woman whose name is Ms S. The father and Ms S were expecting a child when Ms S gave evidence in this case on 8 March 2017. She subsequently gave birth to the child. X’s mother had not remarried when this case was heard at trial.
It seemed that the regime for the time to be spent between X and the father pursuant to the final orders agreed in March 2015 lasted for only a matter of months until the incident on 23 August 2015. The mother deposed to the details of the incident in very great particularity in her affidavit material that she filed in this case. She called several witnesses on whose evidence she relied to demonstrate the physical consequences of the incident in the form of injury to her person. The father denied that the incident occurred at all. That was unsurprising as the father is yet to face the criminal trial for those alleged offences and his denial was to be expected in view of a not guilty plea.
In assessing the evidence in this case in relation to the 23 August 2015 incident, I have kept steadily in mind the observations of the High Court of Australia in M & M.[2] There, the High Court held that a first instance judge is not to determine the truth of the allegations about a child being subjected to physical or emotional abuse in the way that a criminal court would determine the truth of those matters. Instead, the High Court held that a first instance judge in my shoes must treat the best interests of the child as the paramount consideration. That much accords with s.60CA of the Family Law Act1975 (Cth) (“the Act”), a provision inserted in 2006, well after the High Court decided M & M in 1988.
[2] (1988) 166 CLR 69.
Accordingly, it was not my task to assess the criminality of the father’s conduct in this case. A different court will deal with that in due course. My task was multifaceted. As a starting point, I was required to assess the evidence to determine what was in the best interests of X. Section 60CA of the Act instructed me to do that. Next, in determining what was in X’s best interests, two issues had to be taken into account as prescribed by s.60CC(2) of the Act. The first was the benefit of the child having a meaningful relationship with both parents. The second was the need to protect the child from physical or psychological harm upon being subjected to or exposed to abuse, neglect or family violence. Of those two matters, s.60CC(2A) of the Act requires a court to give greater weight to the need to protect the child from psychological harm upon being subjected or exposed to abuse, neglect or family violence.
I have done that in this case, giving greater weight to the matters in s.60CC(2)(b) than to the matters set out in s.60CC(2)(a) of the Act.
In making any assessment of the competing positions of the parties in relation to allegations of violence, I have paid particular attention to
Mr MacFarlane’s submissions in opening that this was a hard-swearing case. I agree. It was. Oath was pitted against oath. Very considerable differences existed in many respects between the versions of events as given by the mother on the one hand when compared to that of the father and even of the paternal grandparents on the other hand. In reaching the conclusions at which I have arrived in this case, especially on the question of risk to X, it has been necessary for me to synthesise not only what each of the mother, father and paternal grandparents actually said in evidence but I have also had to assess the likelihood of that version being correct and whether that version was corroborated, as well as whether that version was supported by other objective evidence. I have also taken into account the fact of there being exquisite antipathy between the mother, on the one hand and the father and the paternal grandparents on the other. In short, each camp hates the other with venom I have not seen in many years.It was necessary to carefully analyse the totality of the evidence given by the mother, the father and the paternal grandparents for several reasons. One reason related to the hatred each held for the other. It seemed to me that by reason of that hatred, the evidence given by the mother, the father and by the paternal grandparents was likely to have been adverse against the other. Another reason related to the practical implementation of the orders to be made in this case. Specifically, it was necessary for me to consider whether any order for equal shared parental responsibility could ever be successfully implemented, underpinned as it was by cooperation between the mother and the father. It was readily apparent that they were unable to cooperate. Any trust or respect one had for the other had long since evaporated.
List of issues
Early in the trial of this proceeding it became apparent to me that it was desirable for all parties to identify and agree upon a list of the issues that fell for my determination. The respective openings made no reference to the issues I had to determine, except in very broad and unsophisticated terms. As result, I prepared and circulated a list of issues with nine numbered matters. The parties added the tenth issue. The list in its final form was as follows –
1.Whether the mother and father should have equal shared parental responsibility.
2.Whether, on account of physical or emotional violence, the father poses an unacceptable risk to X.
3. Whether the mother should have sole parental responsibility.
4. Whether X should live with the mother.
5.Whether the father should have time with X, unsupervised.
6.Whether the father should have time with X, supervised.
7.If the father should have supervised time with X, who should the supervisor be and for how long? What thereafter?
8. Whether the father has no time with X.
9. The role of the paternal grandparents.
10. Relocation.
Some details about X
Information in this case about X came from several sources, some of which were more reliable than others, some of which were from professional witnesses while others were from lay witnesses and some evidence came from sources less objective than others.
Let me first address the medical evidence in relation to X.
X was seen by psychologist Mr T in mid-December 2015. Mr T reported that X presented at an examination on 16 December 2015 with symptoms of anxiety and that X’s progress depended on whether he was subjected to new stressors. Mr T did not give viva voce evidence in this case.
The father gave evidence that he had read the report of Mr T although he said he recalled very little about it. He said he was suspicious about the contents of the report from Mr T because (so the father said) he thought it was being used by the mother as an excuse for the father not seeing X. He also said in his answers to questions put to him in cross-examination by the mother that he did not make contact with Mr T even to enquire whether X in fact had anxiety or learning problems.
X’s consultant physician was Dr L. Dr L was not called to give evidence. However, his notes were admitted into evidence.[3] In debate about the admissibility of those notes, Mr MacFarlane cautioned me against reading the notes too carefully because, so he said, they contained the mother’s narrative of X’s condition or the notes purported to record X’s history as given by the mother, most of which Mr MacFarlane said was hotly contested. I read Dr L’s notes with a view to searching for medical issues being his field of expertise. Insofar as those notes purported to record information given by the mother, I have looked at other evidence for verification of that other information. Dr L’s notes spanned a period 24 May 2013 to 6 January 2017.
[3] Exhibit Y - documents produced under subpoena dated 16 February 2017 directed to Dr L.
Immediately below I have set out the matters of importance to this litigation that emerged from Dr L’s notes. They included –
a)reference on 31 March 2014 to the resolution of tonsillitis with bilateral middle ear fluid;
b)reference on 15 April 2014 to vomiting and coughing and pneumonia;
c)reference on 2 December 2014 to a proposed adenoids and tonsil removal procedure “in a month or so”;[4]
d)reference on 21 December 2015 (that is to say about a year later, there being no notes covering the intervening period) to the effect that X had ear, nose and throat surgery that assisted X’s breathing, wellness (without tonsils) eating and growth; and
e)reference on 23 March 2016 to Dr L’s request for psychologist Ms A to get involved by examining X for an underlying neuropsychological issue.
[4] Exhibit Y - documents produced under subpoena dated 16 February 2017 directed to Dr L.
The father said in cross-examination that he had not read Dr L’s notes. He contradicted himself by later stating that he had read Dr L’s notes. When it was put to the father that Dr L described the hair pulling as potentially a stinging behaviour as part of X’s autism, the father stated in evidence that he (the father) was not aware of that and he also stated that he found “insane” the suggestion that X was pulling out clumps of hair after seeing the father.[5]
[5] Transcript of proceeding, 28 March 2017 at p.766.
In accordance with Dr L’s recommendation, on 13 April 2016 psychologist Ms A conducted an autism spectrum disorder assessment on X. Ms A provided a comprehensive report that the mother exhibited to her affidavit sworn 17 August 2016.[6] Ms A’s report was dated 5 May 2016.
[6] Exhibit “K3” to the affidavit of Ms Kennett sworn 17 August 2016.
X’s autism assumed such significance in this case that it is necessary for me to point up the many matters raised by Ms A in her report.
Ms A recorded that X presented with expressive language delay, lack of communicative gestures, limited attention and impaired social interaction skills.
As with most medical professionals who provide reports for use in litigation, Ms A recorded in her report some information about X in the nature of his medical history. Mr MacFarlane cautioned me from accepting those aspects of Ms A’s report that were premised on information supplied by the mother, especially information that bore upon any allegedly criminal conduct committed by the father. Insofar as Ms A’s report contained a recital of uncontradicted evidence from the mother (for example, that X was born at 37-weeks gestation by means of a caesarean section), while of dubious relevance I see no reason why it would, at an evidentiary level, be erroneous for Ms A to record that information and for me to receive it. How probative that information was became debatable. Naturally, the situation was different in relation to facts surrounding disputed allegations of violence. To that end, I was required to determine those allegations separately. In any such determination, the fact that the mother had repeated her version of events to a person such as Ms A did not make the allegations any more credible.
Ms A reported on a number of matters she physically observed during her assessment of X. Among them were the following –
a)X’s speech was difficult to understand as he presented with significant articulation difficulties, that his speech consisted of echolalia, that he sang songs out of context and repetitively and that he was able to string words together using simple sentences to communicate his needs;
b)X’s reciprocal communication skills were weak;
c)X did not use non-verbal communicative gestures to enhance social communication with peers;
d)X’s peer-related social skills were an area of concern to Ms A as X did not demonstrate peer initiation social skills and he had a very limited ability to engage in joint attention;
e)X did not demonstrate evidence of imaginative or symbolic play skills;
f)during testing conducted by Ms A, X exhibited speech difficulty, speaking very loudly with significant articulation difficulty;
g)during testing, X exhibited speech and language patterns associated with autism spectrum disorder including echolalia, and a lack of reciprocal communication;
h)during different testing X demonstrated a limited ability to follow classroom routine, or to complete a task while at the threading table, by reason of poor fine motor skills;
i)X had his fingers in his mouth;
j)X’s attention and concentration were an area of weakness that significantly impacted his ability to learn; and
k)X did not transition between activities without significant teacher assistance.
Ms A conducted tests from the fourth edition of (omitted) Preschool and Primary Scale of Intelligence, a recognised measuring test of cognitive functioning and intellectual functioning. The average score on the FSIQ test was between 90 and 109 whereas Ms A reported that X’s test results were between 54 and 67, regarded as being in the extremely low range.
Ms A reported that X’s performance of verbal comprehension tasks was particularly strong when compared to his performance of tasks that involved his figuring things out by looking at them.
So far as X’s visual spatial processing was concerned, Ms A reported that X exhibited performance was significantly lower than other children his age and that he appeared to have extreme difficulty in undertaking tasks that involved puzzles and language-based tasks.
Ms A performed testing to assess X’s working memory, involving the measuring of his attention, concentration, mental control and reasoning. Ms A reported that X’s working memory was one of his weakest areas of performance.
Ms A examined X for other indicators. She concluded –
a)X’s vocabulary acquisition performance was below most of the children his age;
b)X’s performance according to the non-verbal index was extremely low when compared to other children his age;
c)his general ability index performance was significantly lower than other children his age;
d)relative weaknesses in X’s mental control and speed of visual scanning may create challenges as X engages in more complex cognitive processes; and
e)X’s adaptive behaviour composite classified his general adaptive functioning as low.
When applying the childhood autism rating scale, Ms A reported that a score of above 30 was suggestive of autism spectrum disorder and that X scored 34 consistent with a diagnosis of autism spectrum disorder.
Ms A diagnosed X with a level 2 diagnosis. She concluded X requires substantial support.
Ms A expressed the opinion that X would benefit from a multidisciplinary intervention approach involving a paediatrician, speech pathologist, psychologist and occupational therapists along with one-on-one individual teacher assistance. Ms A said that without a teaching aide, X was at risk of falling further behind in his academic learning.
Ms A made recommendations about services from which X would benefit, about his general cognitive functioning and about his attention difficulties as well as his social development. Among the more important were the following –
a)X would benefit from a multi-disciplinary approach to intervention;
b)having regard to the extremely low range of X’s full scale IQ, he may experience substantial difficulty in multiple areas of functioning;
c)X would benefit from personalised service at school and that adults may wish to set small measurable goals in each academic content area as well as in self-care, community interactions and household chores;
d)during study time X may maximise his productivity by eliminating outside distractions, extraneous noise, unnecessary interruptions and that at school, X should have a quiet place and that at home he should not do his homework in an unsupervised room;
e)X should have motor breaks and stretch breaks along with a wriggle seat or stress ball;
f)tasks should be broken into small single components; and
g)X should have opportunities to interact with other children his own age outside of the child care environment.
Ms A was not called to give evidence.
While not medical evidence or even expert or professional evidence in nature, a report of Ms E was put in evidence by the mother in her affidavit sworn 10 June 2016.[7] Ms E gave her report as an educator with (omitted) Childcare Centre. In that report, Ms E stated that X fell outside of the range of typical development of all children three years of age and that in some cases (which I took her to mean “circumstances”) of a developmental level between 12 to 24 months of age. Ms E recommended a referral to a paediatrician, continuity of care and routine and a referral to persons to assist in therapeutic work such as a psychologist, occupational therapist or allied health professional.
[7] Exhibit “B” to the affidavit of Ms Kennett sworn 10 June 2016.
In the mother’s affidavit sworn 14 February 2017, she exhibited a further report of Ms E.[8] It was dated 21 November 2016. In that report, the following matters arose –
a)X was identified as having developmental vulnerabilities across four out of five learning domains, the highest concern being expressive language delay (echolalia), lack of communicative gesture and affect, limited attention, repetitive behaviour, impaired social, emotional and self-help skills;
b)X experienced difficulty with inattention, hyperactivity, social functioning and anxiety;
c)during periods of visitation with his father, X was observed to regress significantly in terms of language and repetitious behaviour in that Ms E reported that X became withdrawn and had a tendency to repetitiously self-harm by pulling his hair or picking at his skin until he drew blood; and
d)X found it increasingly difficult to attend and participate in demanding activities and his anxieties decreased his ability to cope, both of which were destructive to his progress.
[8] Exhibit “AEK4” to the affidavit of Ms Kennett sworn 14 February 2017.
In that report, Ms E also stated that X required safe, supportive environments and interactions that were predictable and free from excessive demand and punishment. She reported that due to the substantial level of need X requires, he is placed in a heightened category of risk of physical or emotional abuse from carers that do not fully understand the limitations to his capacities in working memory, cognitive processing and adaptive behaviour. She also said that continuity of care and the preservation of routine and structure were extremely important to children with significant neurodevelopmental delays.
Ms E did not give viva voce evidence.
No evidence – lay or expert – was adduced in this case to the effect that X did not have autism spectrum disorder. The father’s approach to his son’s disorder was varied. I have recorded that in the passages set out below.
Based on the material that I have set out between paragraphs 37 to 52 above, I find on the balance of probabilities –
a)X currently has autism spectrum disorder at level 2;
b)he requires assistance from a multi-disciplinary approach involving a paediatrician, speech pathologist, psychologist and occupational therapist;
c)X will benefit from personalised services at school;
d)his study time will be enhanced by the elimination of outside distractions, extraneous noise and unnecessary interruptions and his homework should not go unsupervised;
e)he has considerable difficulty with concentration and a short attention span;
f)his non-verbal skills are extremely low;
g)his verbal skills are below those of most other children his age;
h)X’s adaptive behaviour functioning is low;
i)he has limited ability to follow a routine; and
j)he is at risk of physical or emotional abuse from carers who do not fully understand the limitations to his capabilities in working memory, cognitive processing and adaptive behaviour.
It seemed to me that any person with care for X over any amount of time will need to be particularly sensitive to, attuned to, cognisant of and fully aware of X’s very considerable difficulties that he will encounter in day-to-day life.
As is developed below, I am satisfied that the father has next to no understanding or appreciation of X’s autism. In my judgment the father demonstrated an inexplicable and wholly unacceptable resistance (dare I say rejection) of the notion that his son was autistic. I am convinced beyond debate that the father not only refuses to recognise the medical diagnosis of his son’s autism but that he (the father) presently has no skills, willingness or insight into understanding the metes and bounds of X’s condition. I entertain no hope or belief, still less present satisfaction, that the father will take steps to learn about autism, to adapt to enhancing X’s quality of life and to behave appropriately so as to advance X’s best interests having regard to X’s autism.
X’s early days
The mother put into evidence incidents of X’s ill-health prior to the separation of the mother and father.
One incident occurred on 17 March 2014 to which the mother deposed in paragraph 44 of her affidavit sworn 17 September 2015. The father did not dispute the occurrence of the event, although he said he was unable to recall the date of the incident. On that occasion, X was hospitalised because he stopped breathing.
The second occasion took place on 9 October 2014 when X was again hospitalised with a high temperature and tonsillitis. The mother deposed to that event in paragraph 45 of her affidavit sworn
17 September 2015.
In August 2014 the mother enrolled X in childcare.
The mother has consulted a number of medical practitioners in relation to X for several years. One general practitioner has treated X for some time. His name is Dr M, whose name was embraced in this trial simply as “Dr M”. I shall use that name in these reasons. Dr M practised at (omitted) Health Centre. Dr M had provided a medical certificate dated 28 December 2015 stating that in his opinion X was suffering from personal illness and that as a result of that illness, he was unfit for visitation (his words) on 28 and 29 December 2015.
On 18 January 2016 Dr M wrote to a legal representative in this case to express his concern for the mother and X following what he called traumatic visits to the father and paternal grandparents subsequent to orders having been made in this case. Dr M stated in that letter that X had been exhibiting features of severe anxiety and was distressed when required to attend those visits. Dr M stated that he recommended that ongoing visits involving the father be supervised as the father’s time with X was detrimental to X’s well-being.
A considerable issue emerged in this case about the medical evidence. In essence, the father distanced himself from any medical opinion that had in any way incorporated an historical account of X as given by the mother. The father took the view that the mother was so malevolently disposed towards him that she gave medical practitioners historical information about X that painted the father in (what the father said was) an unacceptably negative manner. Specifically in relation to Dr M, the father rejected Dr M’s medical opinion out of hand on all subjects because, according to the father, Dr M not only relied unduly on the accuracy of the medical history of X as given by the mother, including untested information about violence alleged to have been committed by the father upon the mother, but that Dr M had taken a partisan view in favour of the mother against the father in this litigation.
Several things must be said about the father’s approach towards the medical evidence in this case.
First, obviously the father is not a medical practitioner. He did not study medicine and has no university qualifications in medicine. For that matter, he has no tertiary qualifications at all.
Second, it is common medical practice for medical practitioners to receive historical information of the reasons why a patient is brought to the medical practitioner. Seldom does the medical practitioner subject the information given to him or her to close scrutiny as might a court, for example. The patient’s history is for the relevant doctor’s information purposes only. Common experience shows that if, for example, a patient is presented in emergency circumstances with a deep laceration to a limb, say, the doctor may not need to know any more than the fact that the wound was caused in a chainsaw accident. Who was operating the chainsaw or the speed at which the chain was spinning at the time of the incident will usually be unimportant. Doctors are not ordinarily required to conduct a detailed examination into issues of causation in order for them to apply their medical skills. That said, certain triggers are well-known to precipitate certain medical results. Although not in every person, for many people exposure to stress can, for example, lead to sleep disorders or to a nervous reaction. Not every doctor needs specialist qualifications in psychiatry to prescribe an analgesic and rest as the treatment for stress.
Equally, if a doctor examines a patient and concludes that the patient exhibits severe anxiety and distress, it is no particular leap in logic for the doctor to identify what the doctor considers to be the cause or causes (or likely cause or likely causes) of the anxiety and distress and then to recommend the elimination of that or those causes.
Similarly, if a patient presents to a doctor without exhibiting anxiety and distress and if, with the introduction of a particular phenomenon thereafter exhibits anxiety and distress, again, that doctor does not need specialist qualifications in psychiatry to draw conclusions about the likely cause of the anxiety or distress.
In this case, the father was at pains to point out that he wholeheartedly rejected any suggestion by any medical practitioner involved in the case that X’s emotional fabric was in any way compromised in any shape or form by acts or behaviour attributable to the father. The father’s counsel engaged in an array of evidentiary debates before me in an endeavour to keep out of evidence any possible attribution to him of X’s unsettled (to put it neutrally) emotional state. I reject that contention. It seemed to me to be perfectly legitimate as a matter of deductive reasoning to receive evidence of one state of affairs (X’s settled disposition when in the mother’s care) and to receive evidence of X’s unsettled, anxious and distressed condition (when in the father’s or paternal grandparental care) and that as a matter of causation, to conclude that X’s unsettled, anxious and distressed state had a particular genesis. I do not accept the father’s complaint about that reasoning process.
The mother gave evidence that X spent time with the father over 12 visits during and subsequent to February 2016. Those dates were recorded in paragraph 11 of her affidavit sworn 10 June 2016. She stated that X had not spent time with the father since 23 April 2016. The mother swore –
a)X often had “emotional meltdowns” when she informed X that he was to spend time with the father;[9]
b)X “has nightmares and often wakes up screaming hysterically” after spending time with the father;[10]
c)X does not handle changes in his surroundings or deviations from his routine or things with which he is familiar;
d)after spending time with the father X often becomes quiet and withdrawn;
e)since August 2015, on several occasions after spending time with his father X “ripped his hair out of his head”;[11]
f)in the mother’s presence, X does not talk about the father or the father’s family; and
g)according to the mother, changeovers are difficult because X becomes clingy.
[9] Paragraph 14(a) of the affidavit of Ms Kennett sworn 10 June 2016.
[10] Paragraph 14(b) of the affidavit of Ms Kennett sworn 10 June 2016.
[11] Paragraph 14(e) of the affidavit of Ms Kennett sworn 10 June 2016.
The mother gave evidence about X’s daily routine.
The mother swore that X attends a three-year-old kindergarten each Tuesday, Thursday and Friday from 9.00 a.m. until 4.00 p.m. The mother swore that X wakes between 7.00 a.m. and 8.00 a.m. each day after which he eats breakfast and at 9.00 a.m. the mother takes him to kindergarten. She swore he sleeps during the day for two hours and at 4.00 p.m. he is collected by the mother or by the maternal grandmother. On days when he is not at kindergarten the mother swore she cares for X all day. He goes to bed at around 7.30 to 8.00 p.m. each day. The mother said she works around X’s schedule. She swore the routine that she described works well for X in establishing certainty and stability.
The father did not challenge the mother’s evidence about X’s routine.
The father challenged the mother about X’s hair-pulling but asserted that if X suffered any hair loss it was because X’s scalp had been shaved. The father denied that any hair-pulling was referrable in any way to the father.
The maternal grandfather also gave evidence about X’s day-to-day routine, especially at changeovers when the maternal grandfather collected X. I found the maternal grandfather’s evidence to have been extremely powerful and realistic. He gave that evidence having been in X’s company for a long time over many interactions with X. The maternal grandfather’s evidence emerged in answers to my request for an elaboration on evidence earlier given by him about X’s quietness upon being collected from day care. In summary, the maternal grandfather said –
a)he (the maternal grandfather) would attempt to engage X in conversation;
b)normally X gave a single word answer to any questions asked; and
c)on occasions X was animated, often running to the maternal grandfather’s vehicle.
Conversely, when the maternal grandfather collected X from X’s time with the father, the maternal grandfather said that X –
a)was quiet;
b)usually sat silently, twirling his hair; and
c)was deep in thought, looking out of the window and watching the world go by, making it difficult to get an answer out of X.
The father’s version of X’s behaviour while in the father’s presence conveyed an altogether different theme. In summary, the father said –
a)X was always (repeat, always) playful, talkative and happy;
b)X has never been withdrawn or silent;
c)X was slightly reserved on the day the father diagnosed X as having suffered a burst eardrum;
d)X was always happy when he was speaking with the father;
e)before the father could open the back door to his vehicle, according to the father X would ask where the cat was because (according to the father) X remembered from the previous week that he had fun with the cat;
f)X remembered where his bike was parked; and
g)“X misses me when he’s not with me, all the time … it’s a natural instinct for a child to miss their father”.[12]
[12] Transcript of proceeding, 7 March 2017 at p.444.
The mother when cross-examining the father extracted the following evidence from the father –
So you’re telling me that as a trainee (occupation omitted) you are more qualified than X’s psychologist to diagnose him with anything?‑‑‑I’m saying that – I’m not – I’m not a child psychologist, I’m not a paediatrician, I’m not a child’s doctor in any professional field but I’m his dad. I know him. I know what he’s like. I know what he does. I know what he likes to eat. I know what he likes to do. I know – I know everything about him, and he hasn’t had a chance to spend much time with me over the past few years as you know but I know that he loves spending time with me and every experience that we have had with each has been great.[13]
[13] Transcript of proceeding, 27 March 2017 at p.645.
Even at this juncture, let me say at once that I reject the father’s assessment of the magnificence of the time he and X spent together. The father’s time with X prior to the father giving evidence had been so limited as to render it ridiculous for the father to state so confidently that the father knew everything about X. It struck me that the father was confusing his state of actual knowledge in relation to X with a wish for that to be his knowledge or, worse, that the father was deliberately and dishonestly giving false evidence. I reject the notion that X was always happy, talkative and playful. As a matter of common human experience, autistic children are commonly withdrawn, quiet and reserved. They frequently behave in the manner described by the maternal grandfather.
The father’s time with X has not been extensive. That may well explain why the father does not enjoy a relationship with X that is as connected as is X’s relationship with his mother. Superficially at least, I am willing to proceed on the basis that X has recently greeted his father in a friendly manner. The family consultant gave an effusive and, to my mind, unbalanced report based on an extremely short interaction between X and the father that she witnessed near the ninth day of the trial. On that occasion the family consultant requested an opportunity to observe X interacting with his father in the court’s observation facilities. The family consultant told me she watched X and the father interacting. She said she did not observe anything untoward.
In total, after having undertaken two observation sessions, the family consultant said she watched X and the father interact for a little over half an hour. The family consultant spent almost two days in the witness box in this case. I was left far from satisfied that the circumstances of her observations of X, the duration of her time observing X and the father and the depth of any such interaction was sufficiently meaningful that she was fully appraised of all relevant facts and circumstances as to enable her to give the opinions she purported to give in this case. On many issues I was significantly less than impressed by the family consultant’s evidence on certain critical issues. On those issues I reject the validity of her conclusions. I am not prepared to adopt them still less follow them.
Evidence in this case about violence
The allegations of the father’s violence towards the mother were among the most hotly disputed issues in this case. Certain evidence suggested that the father’s violence arose specifically because of the failed marriage between the mother and the father. That was the theory advanced by the family consultant. She postulated the view that the hostility between the father and mother ceased or reduced when the father and mother separated, when the father moved away and when the father remarried and then had a second son.
In the passages below I have examined that theory in considerable detail. Suffice to say, I reject the concept that all and any aspect of the father’s violent propensities have altogether abated. Curiously, it was the family consultant herself who gave evidence to the effect that the father remains capable of manifesting violent tendencies.
For the purposes of this examination of the evidence, let it be recorded that throughout the whole of the trial the father denied any and every single proposition, question, sentence or suggestion that in any way intimated that he was or in any way had ever been violent towards the mother or X. That was especially the case in respect of the events for which he has been committed to stand trial. In many ways, it was unsurprising that he maintained his denial about culpability of those events. Had he done otherwise, his defence in the criminal trial may very well have been compromised.
It is important to record each event said by the mother to be an event of violence towards her or towards X. The family consultant faintly opined that any acts of domestic violence were a long way in the past.
I disagree.
Family violence is not to be condoned or forgiven or excused – ever.
Family violence is not to be excused or sloughed off as being either in the distant past, as being provoked or as being the result of a toxic environment, in the way the family consultant asserted in this case, or as being part of a person’s history from which he has evolved, also in the way the family consultant asserted. The family consultant in this case may have taken a particularly liberal view about family violence. I do not share that view. Family violence must be stamped out of current Australian society. It has no place.
Of course, the mere assertion by one party to the marriage that the other was a perpetrator of family violence did not prove that the alleged event occurred as a matter of fact in the manner asserted. I was required to make findings of fact in this case about the existence of family violence.
In this case, the evidentiary standard in relation to the facts to be proved is on the balance of probabilities. That is a lesser evidentiary standard than beyond reasonable doubt, being the evidentiary standard against which the jury will be required to consider the evidence against the father in the forthcoming trial of his assault and threat to kill charges. By reason of the intersection of the facts in this trial with the forthcoming criminal trial, it was possible that according to one evidentiary standard the matter was proved yet it was not proved against the other evidentiary standard. Equally, it was possible that in both courts the matters were proved. It was equally possible that in both courts, neither case was proved.
Before going to the specifics of the incidents, let me say that the events of alleged violence relevant to this case date back to 2012 in one instance. And even though all relevant events may not have involved physical striking or contact with X, the Act does not carve out from its operation “direct violence” and “indirect violence”.
Further, I recognise that the mother has been particularly diligent at bringing to the attention of police and judges her version of events and her construction of the father’s physical treatment of her. She has adopted a strident and unremitting strategy in raising issues of family violence in this case. But that does not mean that her version of events is to be put to one side on account of that seemingly not-negotiable approach. Further, even if proved, some matters about which she complained may have had greater relevance than others.
The June 2012 incident
The context of this altercation related to the paternal grandfather’s purchase of the (business omitted) at which the mother worked and which she said she was interested in buying. On one particular day, the mother said she travelled to her then parents-in-law’s home to confront the paternal grandfather about his attempts to purchase the (business omitted). The mother swore that a verbal altercation erupted. Various witnesses swore that the mother was present at an incident in the paternal grandparents’ home, near their front door. Also present was the father, the father’s sister and the paternal grandparents. The mother swore that the conversation became heated. She said the father “exploded” (her word), using profane language. She swore the father then pushed her through two doors and down the front concrete step to the house. The mother said she became fearful so she locked herself in her car while the father banged on the car windows and screamed for the mother to get out of the car. She said that she drove off. The mother said the father continued to abuse her. She swore in paragraph 29 of her 17 September 2015 affidavit that she wanted to leave the father after that incident but that he promised to get help with his anger issues.
Counsel for the father challenged the mother about that incident. He put to the mother that the father did not push the mother through two doors and down the front concrete step of the house. The mother was firm in her version of events saying he did in fact push her in the way she described.
The paternal grandmother gave the most robust evidence to contradict the mother’s version of events concerning that incident. She was pressed on the point by the mother. In essence, the paternal grandmother said that her son (that is to say, X’s father) heard increasing hostility in the conversation between the mother and the paternal grandfather and the father placed himself with outstretched arms between the mother and one or other persons. Slowly but incrementally, the paternal grandmother said the father walked towards the front door of his parents’ home with arms outstretched. As he advanced towards the door, the mother progressively stepped backwards one pace at a time. According to the paternal grandmother, after the father had “ushered” (her word) the mother to the door, the mother tripped and stepped awkwardly down a step never losing her balance, so the paternal grandmother said. When pressed for greater precision about her answer, the mother pointed out to the paternal grandmother that the paternal grandmother’s vantage point was obscured to such an extent that she was unable to see the incident. The paternal grandmother was asked to explain how she was able to give a seemingly accurate account of the event as an eyewitness observer to the event when her view was obscured. She said she did not know.
I found the paternal grandmother’s version of the incident unreliable. I have placed no weight on it.
The father gave evidence about his version of the event. He denied he pushed the mother through two doors and down the front concrete step as alleged by the mother. He did not give a detailed recital of his version of the incident. The father did not give evidence that he slowly stepped to the front door with both arms outstretched, as his mother had said. His evidence was vastly more general. However, the father did point out that the mother drove over his foot causing him significant inconvenience.
In his evidence the paternal grandfather denied the father pushed the mother as alleged.
In respect of this incident, the mother asserted that the event took place in the way for which she contended. True, the details of the incident she gave were less detailed than was her evidence of other events. The mother swore that the father’s sister was in the car and was a witness to the incident yet the father’s sister did not give evidence in this case. The father did not submit that an adverse inference should be drawn against the mother by reason of the fact that as a witness, the father’s sister was in the mother’s camp, that her absence in this case was unexplained and that a failure to give evidence was probably on account of the fact that the evidence would not have assisted the mother. No such submission was put nor did he call in aid authorities including O’Donnell v Reichard.[14]
[14] [1975] VR 916.
Even if such a submission had been put, it fell to me to assess on this issue, as with all issues where the father’s and mother’s evidence was in direct conflict, whose version I believed.
On this issue I believed the mother.
As the passages that follow attest, there are several reasons why I have decided to prefer the evidence of the mother over the evidence of the father where their evidence on a particular matter conflicted. Those several reasons have been canvassed below. But at this juncture it is important to record that in respect of the several incidents of family violence that feature in this case, I prefer the evidence on point of the mother over the contradictory evidence on point as given by the father.
The January 2013 incident
It will be recalled that X was born on (omitted) 2012. The second incident of family violence in this case allegedly took place a month after X’s birth.
The mother asserted that on a particular day, the date of which she did not say, she found the father asleep on the couch with his pants unzipped. She swore in paragraph 30 of her 17 September 2015 affidavit that she discovered the father had been watching pornography on his iPad and masturbating at a time when he should have been taking care of X. The mother swore that when she arrived home the father quickly did up his pants and started screaming at her. She said she told the father she was disgusted. The mother said the father threatened to smash the iPad. She said she was so disgusted she needed to get out of the house. She said the father, in anger, told the mother she was not taking X anywhere and that he stood in front of the pram then threw the mother across the room into the hall and onto tiles. The mother estimated the father threw her 10 feet. She swore that X woke and began crying. The mother swore that she remembered waking up. From her comment that she remembered waking up, I inferred that she was not awake – or, put differently, I inferred she was unconscious – and that she woke up from that unconscious state.
The mother said she was on the tiles at the time. She swore that she was unable to stand straight away. She produced a photograph of what she said was the distance she was thrown. The photographs she produced depicted a person holding a tape measure across a carpeted floor to a tiled floor area. Another photograph depicted a section of the tape measure outstretched to 10 feet. It was not possible to tell from the photograph of the person holding the tape measure what the length of the tape was. Even without making a factual finding about the precise distance the mother said the father threw her, the photographs revealed a tiled area, consistent with the mother’s evidence that she was thrown onto tiles. The room depicted in the photographs was sufficiently small that it seemed possible for a person to be pushed, although not necessarily “thrown” and for that person to stumble onto the tiled area.
The maternal grandfather gave evidence that the father admitted to him that he pushed the mother and that he was apologetic for doing so and that the mother mentioned to the maternal grandfather that the mother had been rendered unconscious.
In paragraph 24 of the father’s affidavit sworn 27 October 2015, the father denied the mother’s allegations of his watching pornography or throwing her across the room. He maintained that denial in his viva voce evidence. Beyond that denial, he offered no other version of events about the incident nor did he give a response to the other allegations the mother made in that paragraph of her affidavit. Those other pieces of information that went unanswered included –
a)where X was throughout the incident;
b)the date of the incident;
c)that the father allegedly screamed at the mother;
d)that the father threatened to smash the iPad;
e)that the mother said she needed to get out of the house;
f)that the father allegedly said the mother was not taking X anywhere;
g)that the father stood in front of the pram;
h)if not “throwing” the mother, whether the father applied any force towards the mother;
i)whether the mother’s head came into contact with the tiled floor;
j)whether the father called out the mother’s name in an attempt to wake her;
k)whether the mother attempted to stand, and if so, whether she was able to do so immediately; and
l)whether the father permitted the mother to attend a doctor.
None of those matters were addressed by the father. Instead, he made blanket denials in paragraph 24 of his 27 October 2015 affidavit. On one view, his denial of only two matters (watching pornography and throwing the mother across the room) meant that he accepted the other allegations.
Relevantly to the issue of violence, I am willing to proceed on the basis that the father denied throwing the mother across the room. Whether I accept that denial is a different issue. In the passages below, I have set out my assessment of the credibility of the mother on the one hand and of the father on the other.
The incident in June 2014
It will be recalled that the mother and father separated in May 2014.
The mother gave evidence about an event in about June 2014. She said that one night the father came to the mother’s house at a time when she was not at home. The mother swore in paragraph 34 of her 17 September 2015 affidavit that the father entered her home and destroyed a bunch of flowers, spreading debris over the house. She swore that the father had sent several abusive text messages to her to the effect that the mother and X had better not be with any male as he (the father) would kill him (the other male). The mother said she was terrified. She said that when she entered her home (inferentially, after the father had left) she found ripped flowers strewn around the house and she found that the father “had punched a huge hole in the bathroom door”.[15]
[15] Paragraph 34 of the affidavit of Ms Kennett sworn 17 September 2015.
In the early phases of this trial, Mr MacFarlane endeavoured to keep out of evidence anything that bore upon acts consistent with violence by the father. A large amount of time was spent in the trial debating line objections to affidavits filed by the mother. Of course, valid evidentiary objection should be taken and, wherever possible, the fate of those objections agreed between counsel. But in this case, time was spent debating objections on issues the father later admitted. For example, Mr MacFarlane spent large amounts of time debating evidence from one of the mother’s witnesses who purported to address the hole in the wall when the father admitted that act.
At all events, in cross-examination the mother asked the father for details of an event in mid-2014 when he let himself into her home and he punched a hole in the bathroom door. The father said he remembered the event. He said he admitted punching a hole in the bathroom door. He said he was unable to control his anger. That answer was clear and unambiguous. The father was not tricked or cajoled into admitting that he punched a hole in the bathroom door and that he was unable to control his anger.
As will become apparent later in these reasons, the family consultant who gave evidence in this case adopted a curious approach to the father’s alleged acts of violence. Essentially, it was the thesis of the family consultant that whatever acts of violence may have been committed by the father arose by reason of the toxic relationship between the father and the mother and that upon the separation of the mother and father, any risk associated with past acts of violence abated.
I do not share her enthusiasm for that thesis. I have explained my reasons for my view in the passages that follow. It was plain enough that the father admitted the occurrence of the incident in June 2014.
The maternal grandmother gave uncontradicted evidence that the father spoke to her about the incident in which he “knocked [the mother] out”.[16] The maternal grandmother said the father promised to get help but that “[h]e didn’t obviously”.[17] Counsel for the father put to the maternal grandmother that the father never admitted throwing the mother across the floor and he never admitted to being violent to the mother to which the maternal grandmother disagreed.
[16] Transcript of proceeding, 1 March 2017 at p.265.
[17] Ibid.
Pausing there, the mother was not legally represented. Throughout the trial of this proceeding the mother –
a)gave evidence in the witness box for a sustained period of time;
b)withstood a withering cross-examination from the father’s counsel;
c)was forced to address line objections to affidavits filed in her case when every available basis for objection had been taken by the father’s counsel, some being highly technical in nature while others required a detailed knowledge of the rules of evidence;
d)was subjected to interruptions by counsel for the father where on several occasions he simply rose, thereby arresting her flow of cross-examination, not making a proper evidentiary objection (an activity I had to stop him doing);
e)was subjected to interruptions from counsel for the ICL on the same basis; and
f)was forced to receive and deal with documents on the run, in court, and not during periods of recess.
In short, this was an extremely hard-fought case by both counsel. To some extent that may have been understandable from the perspective of the father having regard to the nature of the criminal charges he faces.
That may (I repeat, may) explain the approach of the father’s counsel in the case. But it cannot possibly account for the approach adopted by counsel for the ICL.
The mother withstood a full frontal assault by the father’s counsel the thrust of which was the advancement of the father’s case for time with X. After announcing that the ICL had not formulated its position in the case, counsel for the ICL duplicated the cross-examination of the mother along similar, if not identical lines to the father’s counsel’s cross-examination. The same case concept was advanced, namely that the father should have time with X. After opening by telling me she had no position to adopt, the ICL’s counsel cross-examined the mother with a pointed and directed focus to advancing the case that the father should have time with X. I found that position to have been extraordinary. At no stage did the ICL’s counsel advocate the flipside to the father’s case, namely, that the father should have no time with X. With the family consultant, the ICL’s counsel only fleetingly flirted with that concept but never explored it fully, let alone sufficiently. The allegations of violence in this case cried out for a full examination of the facts underpinning the many incidents of violence. Rather than doing that, counsel for the ICL trawled over facts explored very thoroughly by the father’s counsel.
After bringing to the ICL’s counsel’s attention that I was concerned with her cross-examination being a duplication in large measure of the father’s counsel’s cross-examination, the ICL’s counsel told me –
a)the actual solicitor appointed as the ICL was not then in court (as it happened the actual ICL attended court to instruct on one or two days only of this trial);
b)the ICL had not formed a view about what to recommend, something I found extraordinary given the length of time the ICL had held office in this case; and
c)the ICL’s counsel was exploring further issues with the mother some of which were different to the issues about which the father’s counsel cross-examined and that in order for the ICL to present a full picture of the state of the evidence, it was necessary and appropriate for the ICL to adopt that approach.
It seemed to me that the course proposed by the ICL’s counsel risked contravening rules that were imposed so as to eliminate the hardship to a witness when faced with cross-examination by different counsel on the same or similar issues. The authorities on point are of considerable veneration. Some speak of “parties in the same interest”. Those cases include GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd(No 3)[72] (“GPI Leisure”), Eva Pty Ltd v Charles Davis Ltd[73] (“Eva Pty Ltd”), the older decision in Chippendale v Masson[74] (“Chippendale”) and the decisions of the Federal Court of Australia in NMFM Property Pty Ltd v Citibank Ltd (No 8)[75] and Canberra Residential Developments Pty Ltd v Brendas.[76]
[72] (1990) 20 NSWLR 15, 24.
[73] [1982] VR 515.
[74] (1815) 171 ER 56.
[75] [1999] FCA 266.
[76] [2010] FCAFC 125.
The rule itself may be shortly stated. Where two or more parties are in the same interest, the trial judge’s discretion will be properly exercised if not more than one counsel is permitted to cross-examine. The issue relevant here was whether the ICL and the father were “in the same interest”. The ICL should have been advocating the best interests of X whereas counsel for the father advanced the father’s interests. So at first blush, the two interests were not the same. But when it was recognised that the relief sought by the father could only ever have been granted if that was in the best interests of X, and when it was also recognised that the advancement of the best interests of X was the sole reason for appointing the ICL, the two interests were in reality the same. That view was reinforced on the facts of the case when one takes into account that the ICL’s case outline made submissions that reflected a degree of parallel with the father’s propositions.
I told the ICL’s counsel that I did not share her enthusiasm for the proposition that she was entitled to cross-examine the mother on any matter she thought appropriate so as to enable the ICL to formulate its ultimate recommendations.
In my view, on the first day of the trial of this proceeding, the ICL should have, but failed to, appear armed with a fully formulated position rather than probing every witness who went into the witness box for information akin to taking instructions.
In my opinion, the ICL’s approach in this case contributed to the unacceptable prolongation of the length of the trial in this case.
The rule against permitting multiple counsel from cross-examining the same witness rests on the wise policy of protecting the witness from undue and confusing interrogation as well as on the wise principle of securing brevity of the trial’s duration. Beach J held as much in Eva Pty Ltd citing the views of Gibbs CJ in Chippendale.
Often, in parenting cases of which this was one, strict rules of evidence do not apply. That is the thrust of s.69ZT of the Act. But that section provides that s.26 of the Evidence Act1995 (Cth) continues to apply to a parenting proceeding. Section 26 of the Evidence Act allows the court to control the questioning of witnesses. Section 42(4) of the Evidence Act permits the court to control leading questions. On that issue, considerable guidance was given by Young J of the Supreme Court of New South Wales in GPI Leisure where his Honour laid out 13 guidelines in relation to the cross-examination of witnesses. It is useful to reproduce those 13 guidelines here as follows –
(1) The only actual “right” is the right to have a fair trial.
(2)It is the duty of the trial judge to ensure that all parties have a fair trial.
(3)In carrying out his duties the trial judge must so exercise
his discretion in and about the examination and
cross-examination of witnesses that a fair trial is assured.(4)Ordinarily, a judge in carrying out his duty will see that the trial is conducted in the manner that is commonly used throughout the State, namely that witnesses are examined, cross-examined and re-examined.
(5)Where there is more than one counsel for the same party, then ordinarily the judge will not permit any more than one counsel to cross-examine the same witness.
(6)Where there are parties in the same interest, the judge will apply the same rule as stated in (5).
(7)Where the issues are complex and there is no overlapping of cross-examination and the proposal is outlined before
cross-examination begins, it may be proper for the judge to permit cross-examination of one or more witnesses by more than one counsel in the same interest notwithstanding prima facie rules (5) and (6).(8)It may be that in the interests of time or to prevent “torture” of the witness or for other good reasons, a judge may in special circumstances limit cross-examination. Such a situation would occur where, for instance, there was only a fixed amount of time before an event occurred and a decision was essential before that event occurred.
(9)It is usually not proper to indicate at the commencement of the hearing that cross-examination will be limited to X minutes subject to the right to make an application for an extension, although such a ruling might be justified if time was limited. It would, however, appear to be proper for the judge to say, at any stage during the cross-examination, that he would, unless convinced that the cross-examiner was being of more assistance to the court, curtail
cross-examination in Y minutes time. This power would of necessity be used sparingly.(10)Group cross-examination either by all counsel cross-examining the witness at one time or a group of witnesses being cross-examined by one counsel at the same time is not a procedure that should be permitted.
(11)In all proceedings, the court has a duty to prevent
cross-examination purely for a collateral purpose or to “torture” the witness.(12)In interlocutory proceedings, especially proceedings for an interlocutory injunction, the collateral purpose rules must be looked at very closely because ordinarily it is not proper to permit counsel to go on a fishing expedition and all that the plaintiff need show is a prima facie or strongly arguable case on the merits. Cross-examination on laches, balance of convenience etc is, of course, in a different plight.
(13)Ordinarily a judge should permit cross-examination of all witnesses by all counsel unless one or more of the above rules apply.[77]
[77] (1990) 20 NSWLR 15, 24.
While suspicious of the appropriateness of the approach taken by counsel for the ICL, and cognisant of my duty to prevent a witness from being ‘tortured’ in the witness box, I told the ICL’s counsel that I would carefully monitor the questioning of the mother and of the father. I told her I expected her to pursue the father with the same vigour as she did the mother. Counsel of the ICL subjected the unrepresented mother to greater hardship in the witness box than she did the father, a matter that I found unbalanced, even taking into account the freedom counsel enjoys when making forensic decisions about the conduct of the case. Curiously, having opened in a manner that revealed no position whatsoever, in final address counsel for the ICL made the stunningly forceful submission that this was a “clear case” (her words) for an order that the parents have equal shared parental responsibility so long as very clear orders were pronounced to ensure the parents’ conflict ceased. The submission no more had to be made for its impossibility of application or enforcement to be apparent. To say the least, I decline to accede to the invitation urged.
On behalf of the ICL it was submitted that child support for X is being paid. It is scarcely necessary to point out that the sum being paid was $7.00 per week. That absurdly low sum was seriously put forward by counsel for the ICL as a sum that the father should be acknowledged for paying. In his questioning, the father admitted a packet of cigarettes cost $30.00, more than the monthly sum he paid by way of child support. The submission of the counsel for the ICL on this point was unmeritorious. It bordered on ridiculous. She should not have made it.
I reject it.
Counsel for the ICL contended that recent supervised time spent between the father and X revealed the development of the relationship between the two that should be given time to bloom. That submission overlooked the fact that the father failed to take up several appointments, as were recorded in the affidavit of Ms C sworn 5 May 2017. As with other aspects of this case, the position propounded by the ICL focussed, in my view in an unbalanced way, on some sort of rehabilitation of the father rather than on the risk to X by the father’s antecedent violent behaviour.
The mother pointed out in her final address that on several occasions the father did not actually participate in the supervised time, citing work commitments. Precisely why the father did not attend supervised time in the period between the close of the evidence and final addresses was not as important as the fact that the father did not attend.
I found the affidavit of Ms C very helpful. It revealed contact on the following dates –
a)15 April 2017;
b)17 April 2017,
c)21 April 2017;
d)25 April 2017; and
e)29 April 2017.
The visit on 3 April 2017 was cancelled by the father.
As mentioned above, I am not required to follow the recommendations of the ICL. I do not propose to do so in this case.
Authorities
It was yet another extraordinary phenomenon of this case that in final addresses counsel, whether for the ICL or the father, took me to no learning whatsoever. I found that bewildering as this case raised some complex issues. If authority existed, especially usefully guiding authority, I would have been assisted in learning of it. I had to find it myself.
Conversely the mother, a person untrained in the law, handed up to me three authorities that I found useful, one of which, Maynard & Orr,[78] bound me and had a close factual parallel. I have relied on that authority. In it orders were made similar to those I have made in this case.
[78] [2015] FamCA 998.
Conclusion
In specific response to the issues that fell for my determination in this case I have decided those issues in the manner set out below.
The mother should have sole parental responsibility for X.
The mother and father should not have equal shared parental responsibility.
The father has posed and continues to pose a risk to X on account of the father’s violent behaviour.
X should live with the mother.
The father should have no time with X.
The father should not have supervised time with X.
It is unnecessary to address who the supervisor should be.
The paternal grandparents should have no time with X.
The mother is free to relocate to South Australia.
Costs
In my judgment it is appropriate to make a costs order in this case under s.117(2A) of the Act. The father and the paternal grandparents failed on all issues. The mother incurred costs up to the time she became unrepresented. I accept that she has obtained legal services and thereby incurred costs for which she is liable for which she may have already paid or those costs have been paid on her behalf.
The trial took an extraordinarily long time. Its actual duration exceeded its estimated duration fourfold.
Turning to the elements of the section that I am required to consider, the following matters are my considerations.
The father and the paternal grandparents have already expended several hundreds of thousands of dollars on this litigation. They are sufficiently well-resourced from available or borrowed funds to pay those fees. Conversely, I infer that the mother became unrepresented by reason of her inability to meet legal fees. That addresses ss.117(2A)(a) of the Act.
There was no evidence of the matters canvassed in ss.117(2A)(b) of the Act.
I have already addressed the conduct of the parties, but mainly in relation to the ICL. As for the father, I found him to be an untruthful witness. I have found the paternal grandmother to have breached her undertaking and otherwise to have given evidence in a careless manner. As to the paternal grandfather, I have found him to be unworthy of time with X on account of his alignment with the father who I have found to be violent towards the mother and X. I also took the view that the paternal grandfather was an obdurate witness who failed to concede issues that should have been conceded. He was not a truthful witness.
So far as ss.117(2A)(d) of the Act was concerned, the mother commenced this proceeding because of the shocking incident on
23 August 2015. She behaved entirely properly in adopting that course. To that extent the father contravened the orders of this court.
So far as ss.117(2A)(e) of the Act was concerned, the mother was wholly successful in this case on all issues.
No evidence was adduced in relation to offers of settlement.
So far as the ICL’s costs are concerned, I propose to make no order in relation to them. True, I was not assisted by the ICL in this case. But beyond the harshness of the cross-examination of the mother, the ICL did not engage in a step that enlivened s.117(2A) considerations.
For these reasons it is appropriate to make an order that the father and the paternal grandparents pay the mother’s costs of this proceeding. If they wish to attempt to persuade me otherwise, I give leave for them to provide a written submission to me to be filed and served by 4.00 p.m. on 21 May 2017. If no such submission is filed by that time, my costs order stands. If those submissions are filed, I will provide a short note of my decision, if indeed I alter my preliminary views on costs.
For these reasons, I have made the orders set out in the early portion of these reasons for judgment.
I certify that the preceding four hundred and seven (407) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 17 May 2017
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