L & E

[2006] FamCA 386

FAMILY LAW ACT 1975

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

Appeal No. EA25 of 2005
File No. SYF4779 of 1992
IN THE MATTER OF:

Appellant Husband

- and -

Respondent Wife

REASONS FOR JUDGMENT

BEFORE:                 Holden, Coleman and May JJ
HEARD:                   5th day of September 2005
JUDGMENT:           22nd day of May 2006

APPEARANCES: Mr P Hallen of Senior Counsel (instructed by Adrian Twigg & Co, Solicitors, Level 10, 162-166 Goulburn Street, Sydney, NSW 2010) appeared on behalf of the appellant

Ms J Knox of counsel (instructed by Paul and Paul, Lawyers, Level 15, 179 Elizabeth Street, Sydney NSW 2000) appeared on behalf of the respondent
Mr C Sperling of counsel (instructed by the Legal Aid Commission NSW, 323 Castlereagh Street, Haymarket NSW 2000) appeared as the Child Representative

Name of Appeal	L & E
Appeal Number	EA 25 of 2005
File No.	SYF 4779 of 1992
Coram	HOLDEN, COLEMAN AND MAY JJ
Date of Appeal Hearing	5 September 2005
Date of Publication of Judgment	22 May 2006

CATCHWORDS

FAMILY LAW – APPEALS – from decision of Family Court judge against a discretionary order – grounds for challenging the trial Judge’s exercise of discretion.

CHILDREN – Contact – wishes of child - whether the trial Judge erred in her application of weight to the legislative framework – inter-relationship of ss 60B with 65E and 68F(2)

LEGISLATION CITED/CONSIDERED:

Family Law Act 1975 (Cth) – ss 60B; 65E; 68F(2)

CASE LAW CITED:
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
De Winter v De Winter (1979) FLC 90-605
Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716
House v The King (1936) 55 CLR 499
Lovell v Lovell (1950) 81 CLR 513
Mallet v Mallet (1984) FLC 91-507; (1984) 156 CLR 605
Norbis v Norbis (1986) FLC 91-712; (1986) 161 CLR 513
R v R: Children's wishes (2000) FLC 93-000

Appeal dismissed.
Appellant pay the child representative’s costs fixed in the sum of $3257.00

Appellant pay the respondent’s costs of and incidental to the appeal, with such costs to be assessed in default of agreement.

This is an appeal from an order of Moore J dated 18 February 2005 discharging all previous contact orders and making no provision for the husband to have contact with his son, T (“the child”).

Background

At the time of trial, the appellant husband was 47 years of age and the respondent wife, 46. They married on 23 September 1990 and separated in August 1991 prior to the child’s birth on 4 January 1992. They divorced in January 1993.
There has been litigation between the parties with respect to the appellant husband’s contact with the child since 1992.
The orders governing the arrangements for contact were made by consent on 23 July 1998. From late August 1998, contact was to occur each alternate weekend from Friday afternoon to Sunday afternoon, the hour of return to be extended after 6 months and provision was made for block periods of contact during school holidays as well as contact on special occasions. As at the date of trial, contact between the child and his father was still taking place according to those orders, save for some recently agreed variations, pending the hearing.
The current proceedings were commenced on 18 June 2004 when the respondent wife filed an application seeking a reduction of contact between the child and his father. Following the issue of a Family Report on 15 October 2004, she amended her application seeking that there be no face to face contact. The appellant husband sought a dismissal of her application and therefore the continuation of the orders current at the time of trial.
The child representative proposed orders consistent with the respondent wife’s position.

The judgment of the trial Judge

Her Honour began by noting that each party gave evidence and otherwise relied upon a report dated 8 October 2004 from Ms F, a clinical psychologist who had conducted a number of counselling sessions with the child since March 2003. She noticed that reliance also had been placed on the five Family Reports prepared by Ms K since 1995.
On the subject of the credibility of the parties, her Honour said:
“7.As their different proposals indicate, there is a large gap in the approach and views of the parents about what the outcome should be. Yet their differences arise more out of the attribution of motive or responsibility of one kind or another rather than out of any meaningful dispute about the history of what actually occurred and when it occurred. Their reliability or creditworthiness, therefore, is really not a central issue. The necessary findings in this case will concern what can be concluded or inferred from events and from professional assessments undertaken over the years rather than findings about disputed facts. Having said that, there was a deal of evidence from each parent about what [the child] has said or done at various stages and I should say I have been given no reason to doubt that what was reported of his statements or actions represents the best recall of what was said or done. ”
Her Honour then summarised the position of each of the parties in the following way:
“8.The [respondent wife’s] position comes about by reason of the strong views that [the child] has expressed not to have contact with his father. On the other hand, [the appellant husband’s] position is that [the child’s] attitude has been the result of influence from his mother who very early on set about alienating him from a relationship with his father. In advocating his case, [counsel] did not suggest her conduct, conscious or unconscious, is the only cause for the alienation, the [appellant husband’s] attitudes and personality no doubt have played their part (I should say there was no indication of that concession from [the appellant husband] himself), along with the ordinary challenges of adolescence. Nonetheless, the [respondent wife’s] application is now said to be the culmination of a long term plan rather than a recent response to [the child’s] views, contrary to her evidence. Putting [the appellant husband’s] case, [counsel] maintained [the child’s] interests would be best served by the Court insisting on the relationship continuing and the child being relieved of the pressure to conform to his mother’s agenda and he suggested the stress [the child] is currently experience (sic) might be relieved by some reduction in time spent with his father, supported by appropriate counselling. As [counsel] put it, the solution offered by the [respondent wife] and child representative is not a solution for the problem, but a surrender to it.”
Her Honour observed:
“9.The stark contrast apparent from these positions makes it necessary to review the family circumstances, the child’s responses, relationships, attitudes and capacities over the many years of litigation that began shortly after [the child’s] birth. The best source of that in the earlier years are the various Family Reports and the Judgments of Lawrie J.”
Her Honour then extensively considered the history of the proceedings and the various Family Reports that had been prepared. It is unnecessary for us to set out that part of her Honour’s judgment at this stage. We will, if and where appropriate, refer to passages from the earlier Reports when we discuss the grounds of appeal. Her Honour then turned to summarise the evidence of Ms K as follows:
“28.…
·[The child] was assessed as confident, articulate and polite. Ms K said he described the issues he had dealt with in moving from primary to high school with insight, he felt he had settled well into his new school environment and he was enjoying school. His school report indicates he is achieving academically and that he is well liked and respected by teachers and peers.

·On the topic of his relationship with his father, [the child] said it had never been close or positive and the distance was becoming greater as he has moved into adolescence. He identified the only positive time spent with his father was when they do not have to interact ie. [the child] is playing sport or they go to movies. He feels his father has no understanding of his needs and his father’s wishes always override his own. He insists they go to dinner after he has played sport before going home, despite [the child’s] wish to the contrary. His father tells him “you can’t dictate to me, I want to go, you are just making trouble, your mother tells you to say that”. He reported his father saying to him: ‘you can’t talk to me as if you are an adult … you must talk to me as if you are a small little boy’. He reported time being wasted driving around for no reason or dropping him off at a shopping centre and not returning for hours. He was also concerned his father keeps bringing up what [the child] said are isolated incidents as though they had occurred regularly. He vehemently denied ever hitting his paternal grandmother and the dress incident on his recollection occurred when he was 8 years old. He is aware his father has slept on the floor in his room and he does not feel confident this has ceased. He expressed frustration: ‘he ignores me … does not acknowledge anything I have said or says it’s being addressed or you know my answer.’.

·Ms K concluded [the child] was finding it increasingly difficult to express other than negative feelings about his father, he experiences his father’s attitude as not just critical of him but also critical of his peers, he regards his father’s behaviour as unfathomable (taping him), and he reports his father as saying bad things about his mother and maternal relatives (they are not your real mother and grandparents). [The child] believes his father is deliberately trying to provoke him and calls him ‘stupid’ and ‘rat’ in Macedonian. He cannot see any resolution to the estrangement he feels towards his father, either in the short or long term, and he wants contact to cease although he would be happy for his father to receive photographs and school reports. He felt that if contact were reduced to one day a month with no block periods during school holidays he might be able to find a way to manage the issues, but he said he would be at a loss to know what he would do if the Court ordered that he continue to have contact with his father.

·Of the interaction between [the child] and his father, Ms K said [the child] moved so there was no physical contact between them and his father made only a limited attempt to take part in a game he said he did not know how to play. Allegations and denials marked their conversation and each contradicted the other’s recollections of what were shared experiences. There was no sense of mutuality of experience and nor did [the father] seem to have any insight into the fact that [the child] may not have had the same positive experience of events he had found enjoyable. At one stage [the child] accused his father of not listening to him and [the father] replied not to [the child] but to Ms K saying ‘I listen to what he says if it is worth listening to.’ His response to [the child’s] comment about his father sleeping in his room was to say to Ms K ‘I used to sleep in his room as I don’t get to see him often.’ When [the father] was leaving he attempted to touch [the child] who immediately got up from the chair and moved away, requesting his father not touch him.

·In her discussion, Ms K said contact between [the child] and his father has always been problematic despite the involvement of the Early Intervention Centre, numerous Family Reports and attempts by the parents to reach a mutual resolution. She concluded the mother remains supportive of contact but assessed her as increasingly feeling her support is problematic and perhaps not in [the child’s] long term interests. Ms K assessed her as sufficiently insightful to understand the importance of the child’s bond with the father, particularly being a male child, though she is increasingly concerned about the impact contact is having on [the child’s] wellbeing and normal development. She is fearful a continuation of the current level of stress for [the child] could result in his experiencing problems both academically and more generally. Commenting on the mother’s proposal to continue contact but at a reduced level, Ms K said she could not reconcile her level of concern for [the child] with her proposal except to assume the [respondent wife] feels it extremely unlikely the Court would support a cessation of contact.

·Ms K expressed concern that the level of suspicion and distrust expressed by the father in the past has increased and he is now totally focussed on the mother and the maternal grandmother. Of even greater concern are his statements regarding [the child’s] alleged hitting his grandmother and his extrapolation from what seemed to be one off events from many years ago in such a way as to indicate they are ongoing issues. Despite her attempts to discuss [the child’s] developmental stage and adolescent issues with him, [the father] continually countered by saying ‘he is just a little boy’. She considered he has not developed the capacity to understand that [the child] is a young person maturing and moving into adolescence and likely to indulge in actions and behaviours and make comments which differ from his father’s standards of behaviour or world view. She went on to say she could not be certain whether the mutually disrespectful and dismissive attitude between [the child] and his father has its source in the father’s past acceptance of [the child’s] negative behaviour, but that is likely. As she had predicted in her fourth Report, [the child] now has a high level of resistance to contact.

·As for [the child] himself, he is developing as a normal adolescent. That often leads to distancing from parents, but in this case that distance is only marginally related to adolescent development. It has its source, in all likelihood, in the early history of his father’s struggle to form a bond with him. She expressed regret that [the husband] demonstrated no insight into any of the issues between himself and [the child] and nor for [the child], simply blaming the [mother] and maternal grandmother.

·She concluded that any contact would be a negative and emotionally unhealthy experience for [the child] and in fact there are benefits for him of not having contact. That was her recommendation. She also recommended that the mother provide copies of school reports and photographs and information about his life at the end of each school term, she use her best endeavours to encourage [the child] to write to his father, and that [the father] seek professional assistance to help him deal with the emotional consequence of her recommendation.”

Her Honour then turned to summarise the evidence of the clinical psychologist, Ms F, as follows:
“30.Ms F described [the child] in his initial presentation as a quiet, composed child who impressed as mature and highly articulate though tearful and visibly distressed in talking about his father and his experience of associated problems. She reported the mother as seeking support and guidance for [the child] to help him cope with the relationship with his father and to teach [the child] some strategies to help him cope with contact and help him better manage the anxiety and distress he feels. She outlined some of the specific problems [the child] had raised during his sessions:
·taking him away on long holidays and restricting his contact with his mother during those times,
·having inflexible rules;
·not agreeing to change the arrangements regardless of inconvenience or distress for [the child];
·not allowing any of his school friends to visit or play;
·not allowing him to bring any items from his mother’s home;
·complaining about taking [the child] to soccer on Saturday mornings as it was in ‘my time’;
·not agreeing to arrangements to allow him to play chess in a school team on Friday afternoons.
·his father lectures him, is cranky with him and tells him ‘you are mine, this is my time and you have to do what I want’;
·his father is critical of him;
·his grandmother is mean to him and makes him feel bad and at times swears at him and calls him names in Macedonian;
·both his father and grandmother are frequently critical of his mother and maternal grandmother, he feels he must defend them, and they end up arguing;
·his father was sleeping in his room and watching television there at night;
·his father tape records their conversations and has persisted doing this despite [the child’s] protests.
31.She reported [the child] feeling his father does not really care about him and he is being punished, he begins to worry about the visit days beforehand making it difficult to concentrate on his schoolwork, he worries about the criticism and dreads the arguments and whether his grandmother will be mean and how he will cope with missing his mother especially during the longer visits. He told her if he had a choice he would have no contact at all with his father and would never see him again.
32.Ms F reported [the mother] had always believed it is important for [the child] to have ongoing contact with his father but she now perceives the relationship to be quite damaging for [the child] and she was concerned the situation would deteriorate further. In contrast to his behaviour with his father, his mother described him as well behaved with a pleasant nature at home and she had never experienced any behavioural problems with him.
33.Ms F commented that [the child] is now older and more articulate about his wants and needs and he feels they are not being considered at all by his father who enjoys baiting him and, rather than love him, he sees him as an object of ownership. She described [the child] as experiencing significant anxiety and distress about contact visits with his father with whom he has a poor relationship and said he feels helpless and angry about the situation. She suggested to the mother that the contact should be changed to be more flexible and appropriate to [the child’s] age and needs. The mother reported she had attempted to negotiate this with [the father] on numerous occasions but he had refused to discuss the situation and so she was currently seeking to have the orders changed.
34.As the arrangements would continue and [the father] was unlikely to work in collaboration with her, Ms F suggested working with [the child] to help him develop some better coping strategies and ways of reacting and responding in a manner that would help the boy in conflict with his father and grandmother. She also proposed teaching [the child] some anxiety management strategies to help him cope with the anxiety he experiences before each visit as well as the worry about his mother while he is away from her. She set out in her Report the strategies and techniques she has sought to convey to [the child].”
Under the heading Objects, Principles and S 68F(2) factors her Honour turned to consider the child’s wishes. She said:
“36.[The child], now 13 years of age, has expressed his wishes about his own arrangements unequivocally, despite some apparently reluctant inclination at one point to negotiate a reduction as the solution for his dilemma: he wants no further physical contact with his father. He has expressed this to his mother, Ms K and to Ms F and also to his father - in very direct terms.
37.[Counsel for the father] submitted these wishes should be given little weight because they are the result of alienation promoted, consciously or unconsciously, by his mother …”

In dealing with the submission made by Senior Counsel for the appellant husband, her Honour concluded:
“38.However, I am unable to accept [the child’s] wishes deserve little weight. I do accept the proposition that his interests are not necessarily to be equated with his wishes – plainly there must be consideration of the whole range of relevant factors – and I accept that consideration of his interests relates not just to the short term but also to the longer term. I also accept there are risks for the well-being of a child who is alienated from a parent. Speaking generally, Ms K outlined them in her evidence: the child may maintain a very negative perception of the parent; perhaps a distorted view of the role of that parent; it can cause them to have reduced self-esteem; to cut off from that part of themselves they feel is most like the alienated parent; and it may cause stunted growth and therefore may lead to problems in relationships they form in the future. None of that could be in doubt. Where I part from the submission is [counsel for the husband’s] analysis of what is at the heart of the problem that has led this child to his present position.
39.The weight of the evidence simply does not support a proposition to the effect that under the influence of his mother [the child] is (now or over the years) mouthing her position which is (and has been) to sabotage his relationship with his father. …”
Her Honour then described actions of the mother that might have conveyed negative messages to the child. She concluded:
“39.…
·It is also true that [the mother] maintained opposition to arrangements proposed by [the father] up until the orders were made by consent in July 1998. But I do not accept her resistance to his proposals were in truth directed towards inhibiting the development of the relationship between father and son. One only has to follow through from the very first professional assessment of the Early Intervention Program (when [the child] was a baby) to the last assessments (at the age of 12 ½ years) to see the recurring and almost constant theme of shortcomings in [the father’s] ability to be appropriately responsive to the child, to be sensitive to the child’s needs, or to be child focussed. As I assess it, the positions she has taken have been directed to the child’s age, stage of development, or problems of one kind or another as the years went by that [the child] was unable to resolve himself with his father. Quite to the contrary, on a reading of the 1998 Family Report one might wonder how it was that she proposed the orders she did at the time (and then consented to after the Report was available) because, plainly, [the child] had identified then significant problems in the relationship with his father in themes that are still being repeated now over 6 years later with much more force.”
Her Honour went on to say:
·“… The very fact that she sought help for [the child] outside the Court process to deal with problems he was articulating, first with Ms G and later in 2003 with Ms F, is indicative of her efforts to make the relationship work for [the child]. [The husband’s] refusal to participate did nothing to assist in the resolution of what was making his son so unhappy. He may well have refused on the advice of his solicitor - his prerogative of course - and his suspicions of a person nominated by the mother may well have been at the heart of that. By the same token he did nothing to present an alternative method of addressing in a constructive and supportive environment what his son was telling him (at least in 2003) of his difficulties. [The father’s] failure to consider possibilities or explanations other than his own view about the source of the problems has had disastrous consequences. That he lacked the ability to do so is increasingly apparent from Ms K’s Reports over time, more particularly her last Report of October 2004.”
On this aspect of the matter, her Honour concluded:
“40.I cannot agree, therefore, there is any support for the proposition that [the mother] set out to restrict or frustrate contact or that she has engaged in a course of conduct calculated to produce that result. I reject that [the child’s] strong views about his father and spending time with him find their source in his mother’s attitude or her expectations of him or her personality.
41.I do not ignore the prospect of a variety of factors at work, but the weight of the evidence establishes that [the child’s] views in all probability are primarily the product of his experience of his father’s attitudes and personality and his experiences of time spent in his father’s household.”
Her Honour then described the uncomfortable and distressing experiences that the child had with his father and the complaints he made that were ignored. She concluded:
“43.His father, so it seems, is incapable of considering any view point other than his own, he does not listen to his son, and he does not accord him the right to have his views respected. Whatever might have been the success at times over earlier years of time spent with his father, these aspects of his father’s personality and attitudes have created the fertile ground from which [the child’s] position has grown.
44.As I find, [the child’s] wishes are those of a relatively mature and intelligent boy who, without success, over many years has tried to have his father listen to him about his feelings and needs and make adjustments. I am satisfied that considerable weight should be given to his wishes in determining what arrangements should be in place for the foreseeable future.”
Her Honour then described the child’s relationship with each of his parents as follows:
“45.As for his relationships, I am satisfied that [the child] has a close and supportive relationship with his mother. No doubt there are satisfactory relationships in place with his maternal extended family, including his maternal grandmother with whom he lives.
46.Born after his parents separated, his relationship with his father has taken a somewhat unusual course and began as an infant in rather restrictive surroundings. Nonetheless, as the orders and processes over the years bear out, contact was maintained and increased to the extent that at the age of 6 ½ he was spending alternate weekend and part of his school holidays with his father as well as special occasions. Earlier on there were times when their relationship was developing well, despite the monitored environment in which it was introduced and fostered. But when the Reports are analysed from beginning to end, there is a consistent thread running through them of difficulty of one kind or another. What is now indisputable is that their relationship has broken down, it is marked by mutual disrespect and constant argument, and now by open defiance from [the child]. It can be taken from the evidence generally that [the child’s] relationship with his paternal grandmother is also poor.”
Her Honour then turned to a consideration of the attitude of each of the parties to their responsibilities and capacity to care for his needs. She summarised as follows:
“48.… To summarise, I am satisfied that [the mother] has a proper attitude to her responsibilities as a parent, I have been unpersuaded by argument to the contrary, and I am satisfied she is a capable and caring mother. Support for this comes from an analysis of the whole of the evidence, including and more particularly from the evidence of Ms K who has been well placed through five Reports over many years to become well acquainted with the parents and make the assessments she has. I regret to say I cannot be similarly satisfied about [the father’s] attitudes and capabilities. He demonstrated commendable commitment in the efforts he made to establish his place in [the child’s] life after he was born and he has maintained that commitment since through his involvement in a number of ways with [the child’s] upbringing. He has demonstrated his practical commitment by regular payment of child support. Yet he appears unable to consider any point of view other than his own, including his son’s; he lacks the capacity to listen to and respect the views of his son even when directly raised with him; he does not demonstrate any insight into the effect of his behaviour on others, more particularly on his son; and he appears not to have the skills - or in my assessment any real willingness to obtain them from a professional source - to make the changes so necessary to his son’s well-being and the restoration of their relationship.”
Her Honour then summarised Senior Counsel’s submission for the husband as follows:
“50.Mr Brereton’s able submissions urged intervention by the Court to try to change the situation that poses a risk to [the child] in the longer term if his father has no role in his life and he rightly pointed out that [the child’s] behaviour in various episodes has been highly anti-social – it is certainly behaviour that would be extremely worrying for any parent. He also maintained it would be wrong to give up on the relationship by terminating any face to face contact, a step not supported by Ms F and Ms K who accepted reduced contact coupled with counselling was an alternative to Ms K’s recommendation and worth trying in preference to giving up on the relationship. He urged counselling and evaluation by a psychiatrist with expertise in family systems and adolescent development as appropriate and desirable (taking up Ms K’s earlier recommendation for an expert report)…. ”
In dealing with that submission, her Honour concluded as follows:
“51.… More to the point, to have any prospect of success I would have thought it essential for the parent to approach the process of restoration with a willingness to listen and change, to be open to self-reflection no matter how hard or confronting that might prove to be, and to have some capacity at least to develop insight into the dynamics that have produced a serious rift with a child. As for [the father’s] capacity to take this approach, I accept that is part of [the father’s] affidavit and it may well be that he would participate in such a process if it were ordered here. Asked about this at the hearing, he agreed he would ‘if the Court ordered it’. Yet I saw no indication of the presence of any qualities or attitudes to suggest that course worthwhile. He has a fixed, one dimensional view of the cause of the trouble, acknowledges no responsibility himself for any of it, and has developed an unhealthy, troubling and troubled relationship with his son.”
Her Honour then reached her ultimate conclusions, which were:
“52.On the one hand, it is plainly beneficial for a child to have ongoing contact with a parent and, prima facie, that is the case with [the child]. There are risks for him in the longer term should that not happen. There is also a reluctance to validate, in a sense, [the child’s] own behaviour in the conduct of his relationship with his father. On the other hand, to continue to impose that obligation on him also has significant risks for his well-being. It would be contrary to his strongly articulated wishes when he is now aged 13 years; it would continue to expose him to the inappropriate conduct of his father when there is no indication that his father is capable of the change that is so obviously necessary or even has any insight into the problems from the child’s perspective; and it would continue to compel [the child] to experience a relationship that is openly and mutually disrespectful and fraught with conflict.
53.Having considered and weighed the matters discussed, I have come to the conclusion that it would be consistent with [the child’s] interests to terminate any obligation for him to have physical contact with his father and to take up the proposals for contact to be maintained in other ways … ”

Grounds of Appeal

By an amended Notice of Appeal, the following grounds were relied upon:
“1Her Honour was in error in concluding that the evidence did not support a proposition to the effect that under the conscious or unconscious influence of his mother, [the child] was mouthing her position to sabotage his relationship with his father (J 39), nor that [the mother] set out to restrict or frustrate contact or that she had engaged in a course of conduct calculated to produce that result (J40); and in failing to find that at least since shortly after the 1998 orders were made, [the mother] had determined to make an application to reduce or terminate contact when [the child] was of an age at which his expressed wishes would be given weight.
2Her Honour was in error in deciding to terminate any obligation for [the child] to have physical contact with his father (J53) and adopt proposals for contact to be maintained in other ways, in light of the following:-
2.1the separate representative’s expert Ms F did not support so extreme a course;
2.2the court counsellor Ms K accepted that reduced contact coupled with counselling with an alternative to termination of physical contact and worth trying in preference to giving up on the relationship;

2.3the father was willing to participate in counselling with an appropriate independent expert;

2.4[The child] had indicated a preparation to accept a reduced programme of contact;

2.5there had been no counselling and evaluation by a psychiatrist with expertise in family systems and adolescent development;

2.6the “proposals for contact to be maintained in other ways” would in reality have the effect of maintaining no contact at all.

3That the Trial Judge was in error in using observations made by her of the father in rejecting the alternative proposal made on his behalf, without sufficiently detailing those observations, or their likely potential significance in the ultimate finding of rejection of the alternative proposal to the father’s Senior Counsel.
4The learned trial Judge did not inform the parties that she intended to use her observations of the father as a basis for rejecting the proposal submitted upon, when those observations were not put to either expert and the expert evidence was that the proposal was an available alternative.”

In the event that the appeal was allowed, the husband sought the following orders:
“1.That the appeal be allowed.
2.That the orders made by Moore J on 18^th February 2005 be set aside.
3.That in substitution for the contact orders made on 23^rd July 1998 the child born 4^th January 1992 have contact with his father:-
3.1during school terms, for one weekend each month from after school Friday until 7pm Sunday (or Monday in the event of a long holiday weekend), being (unless otherwise agreed) the weekend on which the first Sunday of the month falls, the father to collect [the child] from his school at the commencement of contact and return him to the mother’s home at the conclusion of contact.
3.2for a period of five days and four nights during each school vacation, being (unless otherwise agreed) the first Monday to Friday of such vacations commencing in the calendar year 2005 and alternate odd years thereafter, and the last Monday to Friday of such vacations commencing in 2006 and alternate even years thereafter, the father to collect [the child] from his mother’s residence at 9:00am on the Monday at the commencement of contact and return him at 5:00pm on the Friday to her residence at the conclusion of contact.
4.That the parties and [the child] attend on a child psychiatrist with expertise in family systems and adolescent development as may be required by such psychiatrist for the purpose of counseling (sic) and further report.”

Applicable law

This is an appeal against a discretionary judgment. Section 79 of the Family Law Act 1975 (Cth) (“the Act”) grants to the trial Judge a very wide discretion: see, generally, De Winter v De Winter (1979) FLC 90-605 at 78,092 per Gibbs J; Mallet v Mallet (1984) FLC 91-507 at 79,110; Norbis v Norbis (1986) FLC 91-712. That being so, the limited nature of the appeal process must be recognised, as the numerous authorities in relation to the appellate review of discretionary orders demonstrate: see, for example, House v The King (1936) 55 CLR 499 at 505; Lovell v Lovell (1950) 81 CLR 513 at 519; Gronow v Gronow (1979) FLC 90-716 and Mallet (supra) at 79,111 and 79,119.
In the absence of an error in approach or principle, the failure to take into account relevant circumstances, or the taking into account of irrelevant circumstances, the challenge must be that the orders fell outside a reasonable exercise of discretion, that is, that the orders were “unreasonable or plainly unjust”.

Submissions on appeal

Counsel for the husband, in dealing with the grounds of appeal, identified his four arguments as follows:
(1)The learned trial Judge acted on wrong principles in that she gave too little weight to the object of Part VII of the Act and the principles underlying that object.
(2)She gave inappropriate or excessive weight to one of the s 68F(2) factors, namely the wishes of the child.
(3)She failed to take into account a relevant matter, namely the best interests of the child.
(4)The result was unreasonable or plainly unjust and that this came about because her Honour failed to advise that she intended to use the observations of the husband to reject his proposal.
We now turn to consider the submissions advanced in support of each of the above. The husband’s proposal at the conclusion of the trial was that there should be reduced contact, coupled with expert evaluation and counselling. Her Honour rejected that proposal. It is submitted that she erred in that the legislative framework, under which the case fell to be decided, demanded that every step available be taken to ensure that the husband was able to fulfil his duties and obligations as a parent.
Counsel for the husband referred, in particular, to s 60B of the Act, which provides as follows:
“60 B Object of Part and principles underlying it
(1)The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that, except when it is or would be contrary to a child's best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and

(c)parents share duties and responsibilities concerning the care, welfare and development of their children; and

(d)parents should agree about the future parenting of their children.”
We accept that s 60B legislatively enshrines a statement of intent about what the Parliament saw as the underpinning core of the law relating to children in the Act. In B and B Family Law Reform Act 1995 (1997) FLC 92-755, the Full Court (Nicholson CJ, Fogarty and Lindenmayer JJ) considered the inter-relationship of the object and principles of s 60B with
(a)s 65E, which requires that the child’s best interests be the paramount consideration in making a parenting order; and
(b)s 68F(2), which outlines how a court determines what is in a child’s best interests.
The Full Court said at 84,219 - 20:
“9.51 In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII of the type to which we have referred, starts from that essential premise and it remains the final determinant.
9.52 The legislature has also made it clear that in that process the Court is required to have regard to both the provisions contained in s 68F(2) and those contained in s 60B.
9.53 The wording of s 68F(2) makes that clear ¾ the Court "must consider" the various matters set out in (a)-(l) of that sub-section. That sub-section sets out a list of matters which the Court is required to consider to the extent that they are relevant to the particular case. The weight which is attached to any one consideration will depend upon the circumstances of the individual case and is a discretionary exercise by the trial Judge. The list is similar to the list contained in previous legislation but with the additions previously referred to. The list is not intended to be exhaustive. That is made clear by par (1) ''any other fact or circumstance that the court thinks is relevant'' . This simply underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of the particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.
9.54 Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to s 65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub- section (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court's consideration of the matters in s 68F(2) and to the overall requirement of s 65E. The matters in s 68F(2) are to be considered in the context of the matters in s 60B which are relevant in that case. But s 65E defines the essential issue.
9.55 Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of the children in the particular case. Although the Attorney- General submitted that the inter-relationship between the three sections was as much about procedure as it was about substantive law, we think it would be a mistake for this essential exercise to be clouded by procedural or semantic issues.
9.56 The Court now, as previously, is required to determine what is in the best interests of the particular children (s 65E). It will direct attention to both of the other sections, but the weight to be attached to individual components of those sections may vary significantly from case to case.
9.57 This approach, which emphasises the essential importance of the exercise of the discretion in each case, accords with the approach otherwise adopted by courts to the discretionary provisions in the Family Law Act see for example the decision of the High Court in Mallett v Mallet (1984) FLC ¶ 91-507; (1984) 156 CLR 605, and ZP v PS (1994) FLC ¶ 92-480; (1994) 181 CLR 630. For many years in child related cases the legislature and the courts have consistently emphasised that the welfare or best interests of the particular child in the particular circumstances of that case is the determinant, and have eschewed the application of fixed or general rules as the solution. That continues to be the case; the Reform Act should not be understood as suggesting otherwise.”

At the appeal senior counsel for the appellant husband submitted that in light of the evidence called by: the child representative; the Court counsellor; and the appellant husband, the extreme step of terminating contact was beyond the generous ambit of the trial Judge’s discretion. It was argued that her Honour had not made any attempt to explore a less extreme solution despite the absence of the appellant husband undergoing expert counselling evaluation and that there was evidence showing: firstly, that the child was reluctant to accept a reduced program of contact; and secondly, that the proposals for contact to be maintained in other ways were impractical.
In written submissions, the appellant husband argues:
“Ground 2: Her Honour was in error in deciding to terminate any obligation for [the child] to have physical contact with his father (J53) and adopt proposals for contact to be maintained in other ways, in the light of the following: (1) the separate representative’s expert Ms F did not support so extreme a course; (2) the court counsellor Ms K accepted that reduced contact coupled with counselling was an alternative to termination of physical contact and worth trying in preference to giving up on the relationship; (3) the Father was willing to participate in counselling with an appropriate independent expert; (4) [the child] had indicated a preparedness to accept a reduced program of contact; (5) there had been no counselling and evaluation by a psychiatrist with expertise in family law systems and adolescent development; (6) the ‘proposals for contact to be maintained in other ways’ would in reality have the effect of maintaining no contact at all.”
We begin by noting that no application was made by the appellant husband during the course of the hearing before the learned trial Judge for an adjournment to seek an assessment by a psychiatrist with expertise as contended for now by the appellant husband.
Given the nature of the appellant husband’s submissions with respect to the evidence of Ms F and Ms K, it is necessary to closely examine that evidence. Insofar as Ms F is concerned, during the course of her cross-examination by counsel for the appellant husband, the following exchange took place:
“[Counsel:] Well, as a matter of general principle, is it your view that contact between the child and a non custodial parent is to be encouraged?--- [Ms F:] It is, but I would like to qualify that.
Yes?---It is to be encouraged if it is a good relationship.
Well, even if it isn’t a good relationship, isn’t it to be encouraged in the hope that a good relationship can be established?---It is to be encouraged if a good relationship is likely to be established.
And why is it to be encouraged?---Because it is a parent, because how a child feels at 12 or 15 is not how they might feel at 16. But if it is a difficult relationship and it is not going to improve and there is no hope of it improving, then I would not encourage such a relationship. I would encourage a relationship if it was going to be worked on, if both parties were going to engage in improving that relationship, a difficult relationship I would suggest would be harmful. Not difficulty, more a conflictual relationship is potentially harmful.
…
Now, at the end of your report, you put at page 4, you say that:
That contact consistently results in confrontation and clear emotional distress for [the child]
And that you’re very concerned about his emotional and psychological wellbeing and believe that it will be at risk if the current arrangements continue. Are you suggesting that the solution is in effect to cease all face to face contact or not?---No I’m not suggesting that at all.
What is it that you’re suggesting?---Well at that point there were no changes in the contact arrangements and what I was suggesting was that – and I haven’t put that in here that the arrangements – that the relationship – working on the relationship that – that current – should things not change, I would – I would think that the situation would deteriorate further and there’s evidence that that’s happened.
And would you see as one potential approach to the problem a reduced but not ceased regime of face to face contact, coupled with some arrangements for counselling?---That’s one potential solution.
And that’s a solution worth trying?---I think that that needs – the solution needs to be made in light of – of what [the child] and his family wish and that – that’s one potential solution that could be – could be tried, yes.
And such a solution would be a preferable potential solution to one which involved just terminating any attempt at sustaining face to face contact?---At this point there has been no – no indication that – that this would happen, that there would be any – any counselling working on it together. [The child] wishes no contact, I – I always think it’s – it’s worthwhile to try to do the best to continue a relationship if that is possible.
Well you told us a few moments ago that you weren’t proposing that there be total cessation of face to face contact and I take it from that that you would be proposing something that would put less stress on [the child] than you perceive the current arrangements are, but do something to maintain the face to face relationship?---Yes.
And one way of doing that would be a less extensive regime of face to face contact than was in place when you wrote your report in October, coupled with perhaps Court supervised arrangements to bring about counselling between [the child] and his father to see what could be done to mend the relationship and you would agree that that would be an approach well worth trying?---That would be an approach worth trying.
And it would be vastly preferable to giving up on the relationship?---I couldn’t say that. I mean it’s worth trying, but I’m – whether it would be preferable if things don’t change, then no it wouldn’t be preferable if things continue.
But it would be better to make that effort, wouldn’t it, than just not to try to continue the relationship at all?---Yes.”
In our view, the highest that the evidence of Ms F could be put was that it was one potential solution but there had been no indication that counselling would happen or counselling would happen on a co-operative basis.
Insofar as the evidence of Ms K is concerned, the following exchange took place between her and counsel for the father:
“Now, we’ve discussed to some extent the desirability of therapy with an appropriate specialist and you raised in an answer you gave a little while ago something which you had raised in – well, which you said you had hoped came out in your report. In paragraph 20 of your most recent report, you said that [the child] felt that if contact were reduced to one day a month with no block periods during school holidays, he might be able to find a way to manage the issues which could arise during such contact. I think you mentioned in your oral evidence that you had thought that – well, you discussed and raised the possibility, did you, of a weekend or a couple of – a weekend a month and - - -?---Up to four.
- - - a few nights during holidays? ---Yes, that’s correct.
And your impression from discussing that with [the child] was that if that was something that was decided, it was something that he would probably comply with?---Yes, that’s correct.
And do you see that that type of regime coupled with the type of therapy that you have in mind with an appropriate specialist might be a way forward which could preserve a relationship between [the child] and his father?---There’s a possibility.
And that offers at least some prospect of preserving a relationship whereas a cessation of all contact would signal to [the child], in effect, victory in his fight and he didn’t have to have anything more to do with his father?---Well, it may not – it might in the short term. In the medium to longer term, that’s not what it would signal to [the child]. There’d be a sense of puzzlement – what was this all about all these years and now dad’s walked away. But, in the shorter term, if it was to go to a 30A expert with a report and therapy attached to that, then it might assist [the child] in particular if there was a period of no contact in the lead-up to that and that contact is organised by that psychiatrist/therapist.”
Ms K went on to conclude, following this question of the husband’s counsel:
“In any event, would you see that a true available alternative to your recommendation in paragraph 36 or paragraph 37 of your report is that there be an evaluation by an appropriate specialist and counselling by that specialist and a reduced program of face to face contact of the type which you – we discussed a few moments ago?---If both parents supported that.” [Emphasis added]
Given the qualified approval of both experts to the appellant husband’s proposal and given that it was quite clear that in order for expert counselling to be successful there would have to be co-operation from all involved, we would have thought it incumbent upon her Honour to make some assessment as to the likelihood of the situation between the child and his father improving.
In our view, there was ample evidence from which her Honour could conclude that the situation, having regard to the husband’s attitude towards the wife and to counselling, would not improve. On his own admission, he is suspicious of his wife and distrusts her. He dislikes her. He is suspicious of those who have tried to assist the child because he has been taken to them by the wife. This is evidenced by the following exchange during the course of the father’s cross-examination:
“I’m sorry, I didn’t hear what you said?---I could work – we could work together on the relationship, to improve it.
Right. Have you been trying to do that in the last 18 months?---What I have been doing is what I’ve been told by the Court.
Well, you haven’t been told anything by the Court, what to do, I don’t believe. Do you mean you’ve complied with the orders?---Yes.
What have you been putting in place – what strategies have you put in place to improve this deteriorating relationship between yourself and [the child]?---Trying to understand – understand [the child]. I’ve done what I can – what I’m prepared to do as a father.
Right. Do you believe you’ve exhausted all of your strategies to improve that relationship thus far?---No.
So you have some other strategies you’d like to adopt?---Possibly.
What principally are those strategies?---Just keep identifying what the issues are, why is he concerned, what’s – what’s behind it all?
Right. And what do you believe is behind it, sir?---I believe that his mother is behind it all.
Right. I see. So have you considered, perhaps, going to counselling? “Yes” or “No”?---Possibly.
Well, you’ve possibly thought about it, or you might possibly do it?---I’ve thought about it.
Yes. And after you went through that process did you come to a conclusion as to what you might do about counselling?---No.
Right. You’re still thinking about that?---Yes.
Right. Now, do you think it might be a good idea to get some professional help?---Well, I haven’t changed as far as my relationship with [the child]; I’ve been the same all my life with him.
Well, your relationship has deteriorated to a stage where, I think everyone in this courtroom would suggest, it’s just appalling. Have you thought about getting some professional help?---No, because I don’t need it.
You don’t need it?---No.”
After hearing the evidence of Ms F and Ms K, the appellant husband responded to questions by the wife’s counsel as follows:
“Was there any part of the evidence given by either Mrs F or Mrs K that you’ve taken heed of and you would like to deal with whatever it was, or whatever those issues were with [the child]?---There was a lot of evidence given that maybe it’s a bit too much to remember everything.
Do you believe that they might be right in terms of you obtaining some professional assistance yourself?---I don’t feel that I need the professional assistance. It’s up to the Court.”
Furthermore, according to the evidence of Ms F (AB 507), the appellant husband refused to engage in working on his relationship with his son.
In her report dated 5 October 2004, Ms K said:
“35. It is unfortunate that for his part [the father] demonstrates no insight into any of the issues between himself and [the child] nor for [the child], simply blaming the mother and maternal grandmother.”
We are of the view that, having regard to the evidence as a whole and those parts to which we have particularly referred, it was well open to the trial Judge to come to the conclusions that she did as set out in paragraphs 22 and 23 of these reasons for judgment.
For the sake of completeness, we turn to deal with the suggestion that the child was prepared to accept reduced contact. This is to be found in the report of Ms K (AB355) and is as follows:
“20.[The child] cannot envisage any resolution to the estrangement he feels in relation to his father either in the short or long term. It is [the child’s] wish that contact cease, although he would be happy for his father to receive school photographs and reports. Alternatively, [the child] feels that if contact were reduced to one day a month with no block periods during school holidays, he might be able to find a way to manage the issues which could arise for him during such contact.
21.[The child] said he was at a loss to know what he would do should the Court order that he continue to have contact with his father.”
There was an abundance of other evidence that the child’s real wish was to terminate face-to-face contact with his father. We do not think the evidence overall indicates a “preparedness” to accept a reduced program of contact. Being prepared to accept a reduced program and possibly finding a way to manage the issues which could arise during such contact are entirely different things.
We now turn to the second argument which is that her Honour gave inappropriate and excessive weight to the child’s wishes. It is said that excessive weight was given because those wishes were clearly influenced by the respondent wife and were more a reflection of her wishes.
How children’s wishes should be dealt with was discussed in R and R: Children’s wishes (2000) FLC 93-000. In that case, the Full Court, Nicholson CJ, Finn and Guest JJ reviewed various authorities and concluded:
“44.It is quite clear that their Honours were not saying that if the child’s wishes are valid then they are to be acted on by the Court and indeed this is not the law. What is required is that they be given appropriate and careful consideration and not simply treated as a factor in the determination of the child’s best interests without giving them further significance. When validly held reasons are departed from by the trial Judge, it is apparent that good reason should be shown for doing so.” [See also R v R (Children’s wishes) (2002) FLC 93-108].
The husband’s case at trial was that the wife has been trying to reach a position where the child, almost since birth, has had no face to face contact with him. It was strongly contended at trial that various actions and proceedings taken by the respondent wife were indicative of a desire to have contact cease and that the child’s views from time to time were consistent with applications brought by the wife. In the Court below, counsel raised the same matters that are raised on this appeal. Her Honour dealt with each of those extensively in paragraphs 39 - 41 of her judgment inclusive.
In our view, her Honour had ample evidence upon which to arrive at the conclusions that she did.
Ms F gave evidence that the respondent wife’s express purpose in seeing her was to “help [the child] with some strategies to manage his anxiety and distress of his experiences during contact visits with his father and in the time preceding those visits”.
In a response to a question from the wife’s counsel, Mr Lloyd, Ms F said:
“My impression from those occasions that I saw them was that [the mother] was very willing to work with [the child] and myself on any strategies that might improve his mood, address his anxiety and help him to overcome or to address any problems.”
Mr Lloyd asked her if she had any occasion to form the professional opinion that the respondent wife saw her for the purpose of effectively wanting to lessen contact between her son and the appellant husband. She answered, “No”.
During the course of her cross-examination, the following exchange took place between the husband’s counsel and Ms F:
“[Counsel:] When [the child] and his mother first came to see you their positions about contact were aligned, weren’t they; they were both saying the same thing to you?---[Ms F:] No, no they weren’t.
No. In what way is that proposition wrong?---[The child] stated that he didn’t want to have any contact with his father at all but his mother stated that she wished contact to continue, that she thought it was very important for [the child] to continue to have contact with his father, but that the relationship was deteriorating and that she would like it to be more flexible and more open, that she – so to accommodate [the child’s] needs and changing needs and his wishes in the situation.
I don’t suppose she told you at any stage that when she’d been to [a] Clinic a couple of years before she told the social worker there that she intended to apply to the Court to change the contact arrangements when [the child] was old enough to have his voice heard?---No.
At some stage during your discussions with [the child] and his mother did his mother express to you the view that it would be better if there was no contact?---No.
Has she ever expressed that view to you?---No.”
During the cross-examination of Ms K by the husband’s counsel, the following exchange took place:
“Now, if I can come to your most recent report of 5 October last year – you told us in your evidence this morning – sorry, this afternoon, your evidence-in-chief, that [the mother] had been, so far as you could tell, very supportive of the contact relationship?---That’s correct.
And in so far as you could tell, is it fair to say, it appeared that since your 1997 report she had been supportive of a relationship between [the child] and his father?---In terms of having assisted [the child] to sustain the relationship.
And did she present in 2004 as someone who for the last six years since the 1998 orders had been committed to trying to make the contact relationship work?---Yes, I formed the view that she believed it was in [the child’s] interests that it continue and she had done a range of things to try and assist that.
Did she tell you that within six months of the 1998 orders being made she had seen another counsellor whom she had told, in effect, that [the child’s] views hadn’t been listened [to] by the Court in the past and she would bide her time until [the child] was old enough to have his views heard before applying to change the contact arrangements?---I have no recollection of being told that.
She succeeded, in any event, in conveying to you the appearance of a person who was devoted to making contact work?---That’s correct.”
Later, during her cross-examination, the following exchange took place:
“Would you say that the complaints he makes, for example, that his father doesn’t listen to him, that his father says bad things about his mother and some of the other complaints who mention, mirror complaints made by the mother early in these proceedings?---Well, yes, but I have never picked up a sense of [the child] being coached or mirroring the statements his mother’s made.”

And later:

“And it calls for consideration at least of the possibility that, consciously or unconsciously, [the child] over the years had learnt what pleased his mother and came to adopt a position aligned with what he understood she would want?---The information that [the child] gave me at the interview was – I have no doubt came from his own experience of his father.”

There was little development of argument with respect to the third matter identified, namely that her Honour failed to take into account a relevant matter. Although her Honour did not specifically mention the legislation governing the proceedings before her and did not specifically refer to best interests in her judgment; as and experienced judge, it is inconceivable that her Honour was in any doubt that the child’s welfare was paramount, and nothing to which we have referred causes us disquiet in that respect. If she did not have the child’s best interests in mind, then it is difficult to understand the reference to s 68(f)(2) factors above at paragraph 36 of the judgment. It is also true that her Honour did not go through the s 68F(2) factors seriatim. In our view, it was unnecessary for her to do so. Clearly, the most important factors in this case were:
(a) the wishes of the child;
(b) the effect on the child of any change in circumstances; and
(c)parental attitudes to their responsibility and capacity to care for the child’s needs.
In our view, her Honour dealt with each of these adequately.
Finally, Senior Counsel for the appellant husband dealt with his amended grounds of appeal. The first complaint is that her Honour was in error in using “observations” made by her of the father in rejecting the alternative proposal made on his behalf without sufficiently detailing those observations or their likely potential significance in the ultimate finding of rejection of the alternate proposal put forth by senior counsel for the appellant husband.
The observation complained of is as follows:
“51. … Yet I saw no indication of the presence of any qualities or attitudes to suggest that course worthwhile. [The father] has a fixed, one dimensional view of the cause of the trouble, acknowledges no responsibility himself for any of it, and has developed an unhealthy, troubling and troubled relationship with his son.”
We have already outlined the evidence of the experts as to the necessity for willing participation by all the parties and the child in the alternative proposal. Her Honour’s findings with respect to the husband that are relevant to this ground of appeal were:
“48.… Yet he appears unable to consider any point of view other than his own, including his son’s; he lacks the capacity to listen to and respect the views of his son even when directly raised with him; he does not demonstrate any insight into the effect of his behaviour on others, more particularly on his son; and he appears not to have the skills – or in my assessment any real willingness to obtain them from a professional source – to make the changes so necessary to his son’s well-being and the restoration of their relationship.”
Her Honour’s other findings about which complaint is now made are contained in the passage from paragraph 51 of the reasons.
In our view, there was ample evidence for her Honour to reach the conclusions that she did concerning the behaviour and personality of the appellant husband.
The significance of her findings with respect to the husband is self-evident. With respect to the alternative proposal her Honour said:
“51.… More to the point, to have any prospect of success I would have thought it essential for the parent to approach the process of restoration with a willingness to listen and change, to be open to self-reflection no matter how hard or confronting that might prove to be, and to have some capacity at least to develop insight into the dynamics that have produced a serious rift with a child. …”
The second complaint is that the trial Judge did not inform the parties that she intended to use her observations of the appellant husband as a basis for rejecting the proposal submitted upon, when those observations were not put to either expert, and the expert evidence was that the proposal was an available alternative.
We are at a loss to understand why her Honour ought to have formed a final view with respect to the character of the appellant husband prior to the completion of the trial, or why it was necessary for her to do so, so as to be able to put those observations to the expert witnesses.
In our view, her Honour dealt adequately in her reasons as to why she came to the conclusion that it would not be to the advantage of the child that therapy take place.
It is regularly part and parcel of the determination of issues relating to the welfare of the child that it is necessary for a trial Judge to make assessments of the parties. As we have said, her Honour arrived at her assessment on the basis of the evidence before her.
In Roth v Quinn [2004] Fam CA 816, the Full Court said:
“39.The need for appellate respect for the advantages of trial Judges, and especially where their decisions might be affected by the credibility of witnesses whom the trial Judge sees, but the appellate court does not, is well known. So too are the principles to be applied, see Jones v Hyde (1989) 85 ALR 23 at 27-8; Abalos v Australian Postal Commission (1990) 71 CLR 167 at 179 and Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.
40.In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Ors (1999) 160 ALR 588, Kirby J described the trial Judge's real advantages at p. 619 as follows:
‘[89] None of the foregoing considerations requires the abandonment of the respect which appellate courts, by present legal authority, must pay to the advantages enjoyed by the trial judge. Instead, they require renewed attention to precisely what the advantages are which the trial judge has over those enjoyed by the appellate court, conducting a second look at the facts, usually with more opportunity to evaluate particular facts than is possible in the midst of a trial and with the appellate advantage of viewing such facts in the context of the record of the complete trial hearing.
[90] The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are the real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge [citations omitted].’”
Nothing to which we have been referred persuades us that, exercising such "caution", we are entitled to interfere with any finding or conclusion of the trial Judge.
It was implicit in the evidence of both experts that for the alternative proposal to succeed, there would need to be co-operation and commitment from all parties. Based on the evidence that we have outlined earlier in these reasons for judgment, it was clearly open to her Honour to make the assessment that she did.
Being of the opinion that none of the grounds of appeal have merit, we would dismiss the appeal.

Costs

In the event that the appeal was unsuccessful, the respondent wife sought an order that the appellant husband pay her costs. Similarly, in the event of lack of success, counsel for the child representative sought an order that the appellant husband pay the costs of the child representative in the amount of $3,257 (the legal aid scale).
The appellant husband was entirely unsuccessful. There was no submission of his incapacity to pay costs.
The appellant husband argued that there should be no order as to costs as he was only trying to maintain something that the Act prescribes. In our opinion it is appropriate that the appellant husband pay the respondent wife’s costs, to be assessed in default of agreement, and the costs of the child representative in the sum of $3,257.
Orders
1. That the appeal be dismissed.
2.That the appellant husband pay the costs of the child representative fixed in the sum of $3,257.
3.That the appellant husband pay the respondent wife’s costs of and incidental to the appeal as agreed or failing agreement, as assessed under Division 19.6.2 of Chapter 19 of the Family Law Rules 2004.

I certify that the preceding 76 paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court

Associate

[2006] FamCA 386

22 May 2006

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